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Perez v. Lopez3/7/2002
rit of the statute is to prevent minors from unsupervised access to operable firearms, which is exactly what their conduct permitted, with tragic results. Nevertheless, I cannot say that the language of Tex. Pen. Code ยง 46.01(Vernon 1994) clearly prohibits removing a trigger lock from a firearm already in the apparently lawful possession of a minor. This prong of the test favors the trial court's refusal to charge on negligence per se.
Third, whether applying negligence per se would create liability without fault. Id. at 308. Here, strict liability would not result, because the statute only criminalizes intentionally or knowingly supplying a firearm to a minor. This characteristic of the statute weighs in favor of civil liability.
Fourth, whether imposing negligence per se would impose ruinous liability disproportionate to the seriousness of the defendant's conduct. Id. This author believes the irresponsible conduct of defendants is serious in the extreme, but considering the age of Albert Jr. and his apparently legal possession of the gun, I believe there is room here for reasonable minds to disagree. In such a circumstance, we defer to the trial court's discretion.
Fifth, whether the injury resulted directly or indirectly from the violation of the statute. Id. The Perry court cautions that lack of direct causation is not in itself dispositive, as civil liability has been imposed in situations where statutory violations caused an injury by merely facilitation the tort of a third person. Id. at 309, (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 312-13 (Tex. 1987); Nixon v. Mr. Property Corp., 690 S.W.2d 546, 548-49 (Tex. 1985)). Here, the consequences were indirect and again, I would defer to the discretion of the trial court.
For these reasons, and not for those set out by the trial court, I would overrule Perez's issue four.
Forseeability
Finally, in the majority's discussion on duty, I take issue with the characterization of the law on foreseeability. The majority's analysis rests on whether the Lopezes should have foreseen Albert Jr.'s suicide. I do not think this is the law. Rather, the particular injury need not have been foreseeable if the injury was of such a general character as might reasonably have been anticipated, and the injured party was so situated in relation to the wrongful act that the injury might reasonably have been forseen. Nixon v. Mr. Property Management, 690 S.W.2d at 551. Thus, the relevant inquiry is not foreseeability of the suicide, but whether it was foreseeable that an unsupervised minor would misuse a firearm after requesting that its existing trigger lock, to which the minor had no key, be removed. This is a far different question, and does not require proof that the minor exhibited signs of depression, aggression, or lack of judgment. Gun shop owners are not psychologists, but they do have societal responsibilities inherent in the dangerous merchandise in which they traffic. See 18 U.S.C. 922(b)(1) (Licensed firearm dealers may not sell or deliver handguns to persons under age 21); Wal-mart Stores v. Tamez, 960 S.W.2d 125, 128 (Tex. 1997) (violation of federal law to sell any ammunition to child under 18).
Moreover, I would point to the actions of the Lopezes themselves as evidence that they, at least, found it foreseeable that Albert Jr. would misuse the firearm in some way. Knowing that he was not eighteen, they tried to call his home before removing the trigger lock, and "joking around," asked him what he intended to do with the gun, whether he would use to it "go out and rob anybody." To me this indicates their knowledge, on some level, that something was amiss.
In det
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