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Perez v. Lopez3/7/2002
ermining the legal issue of duty, we must remember that duty is the function of several interrelated factions, two of which are foreseeability and likelihood of injury weighed against the social utility of the defendant's conduct. Greater Houston Trans. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Doe v. Franklin, 930 S.W. 2d 921, 927 (Tex. App.--El Paso 1996, no writ). Here, I would find it patently forseeable that, given the opportunity, a minor would misuse a firearm which was protected by a trigger lock to which the minor had no key. In balance, I would find the social utility of the Lopezes conduct to be nil; they certainly violated the spirit of laws designed to prevent minors from gaining access to guns. Under these facts, I conclude the trial court properly submitted this case to the jury. I would overrule Appellees cross-point.
Conclusion
Because I conclude that the jury's failure to find damages for mental anguish and loss of companionship are against the great weight and preponderance of the evidence, and because I would overrule Appellees' cross-point, I would reverse the trial court's judgment and remand for a new trial.
March 7, 2002
SUSAN LARSEN, Justice
(Publish)
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