CHAVEZ v. GLOCK, INC. No. B230346.
207 Cal.App.4th 1283 (2012)
144 Cal. Rptr. 3d 326
ENRIQUE HERRERA CHAVEZ et al., Plaintiffs and Appellants, v. GLOCK, INC., et al., Defendants and Respondents.
Court of Appeals of California, Second District, Division Seven.
July 24, 2012.
Law Offices of Ian Herzog, Ian Herzog , Evan D. Marshall and Justin Ehrlich for Plaintiffs and Appellants.
Tucker, Ellis & West, Curtiss L. Isler , Bart L. Kessel , Rebecca A. Lefler ; Renzulli Law Firm, John F. Renzulli and Christopher Renzulli for Defendants and Respondents Glock Inc., and Los Angeles Police Revolver and Athletic Club.
Bacalski, Ottoson & Dube, The Eclipse Group, Gary C. Ottoson and Denise M. Serino for Defendant and Respondent Bushnell, Inc.
Schaffer, Lax, McNaughton & Chen and Richard P. Dieffenbach for Defendant and Respondent Andrews Sporting Goods, Inc.
Los Angeles Police Officer Enrique Herrera Chavez was shot in the back with his service weapon, a Glock 21, by his three-year-old son, rendering him a paraplegic. Chavez and his wife, Leonora Aduna Chavez, sued the manufacturers and retailers of his gun and its holster for strict product liability and related torts, alleging the Glock 21 is defective because it has a light trigger pull without an appropriate safety mechanism to prevent accidental discharge and the holster fails to sufficiently protect the trigger or properly secure the gun. The trial court granted the motions for summary judgment filed by each defendant. We affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Shooting Incident
Chavez joined the Los Angeles Police Department (Department) in 1996. According to Chavez, he was taught at the police academy an officer should carry a firearm in a ready-to-fire condition both on and off duty. Chavez was particularly influenced by the story of an officer who was shot in her driveway after an assailant had followed her home from the police station.
Chavez was also taught about firearm safety, including the proper way to store firearms at home. For example, the Department's firearms training manual states, "Home Firearms Safety. Many officers maintain personally owned weapons at home for sport or protection purposes. To preclude accidents with firearms at home from occurring with any firearm which is not under the direct control of an officer, the following precautions must be practiced in addition to the general and specific firearm safety rules. [¶] Separate the ammunition from the weapon. [¶] Store the weapon and ammunition separately out of the reach of children. [¶] ... [¶] If no secure container is available, utilize a trigger lock or disassemble the firearm."
After completing his training at the police academy, Chavez was issued a Beretta 92F pistol. In 2000 Chavez was assigned to the Newton Division in South Central Los Angeles. About that time Chavez began leaving the holstered Beretta in his truck overnight after he had arrived home and satisfied himself the area was safe. By doing so, the handgun was available for use if Chavez needed it while getting into his truck in the morning and driving to work.
In September 2003 Chavez purchased a Glock 21, which the Department had recently approved as a replacement for the Berretta, from the Los Angeles Police Revolver and Athletic Club (Revolver Club). Subsequently, Chavez purchased from Turner's Outdoorsman an "Uncle Mike's Sidekick Ambidextrous Hip Holster" manufactured by Bushnell, Inc. The package stated the holster was designed for use with Glock pistols.
Chavez began carrying the Glock 21 as his service weapon after passing a training course. As he had with the Beretta, Chavez carried the Glock in the holster on his Sam Browne utility belt while on duty and then placed it in the Uncle Mike's hip holster when off duty, leaving it under the driver's seat or console area of his truck after arriving home.
In early 2006 the Department recalled the Glock 21 pistols and ordered them tested and, if necessary, repaired before being used on duty. While Chavez's Glock was at the armory for testing, he again used his Beretta as his service weapon.
Chavez's dog died shortly after he returned home. In order to transport the dog to the pet cemetery, Chavez had to remove the child car seat from the front passenger seat of his truck; he placed it in his wife's car. When he returned home, he went to sleep, leaving the guns and ammunition in the truck.
Shortly after Chavez awoke the following day, he was notified he had to go to court to testify. Chavez had previously arranged with his parents to provide childcare when both he and his wife were at work, so he called his father to arrange to drop off three-year-old Collin. When he went to his truck with Collin, however, Chavez realized he had removed the car seat. He called his wife, who told him the car seat was still in her car. Chavez then concluded the safest place for Collin to ride was the rear passenger fold-down jump seat because the airbags in front could not be deactivated. Although Chavez saw the handle of the Beretta on the floor below the driver's seat where he had left it, he forgot the Glock was also in the truck. Chavez believed the Beretta was beyond Collin's sight line and grasp. Chavez fastened Collin into the jump seat with the seatbelt.
Less than 10 minutes later, Collin picked up the Glock and discharged a round into Chavez's back as they were stopped at a red light. According to Chavez, after the force of the shot slammed him against the window, he reached in back to grab Collin but could not reach him. He then reached for the gun, grabbing it and the holster together. As he picked up the holster and gun and held them upside down, the gun slid out of the holster.
The gunshot rendered Chavez a paraplegic. The Department brought a complaint against Chavez for failure to control his firearm, which was
In July 2008 Chavez and his wife filed their complaint and on January 8, 2009, a first amended complaint for strict product liability, negligence, breach of implied warranty and loss of consortium. Named as defendants were Glock, Inc., Revolver Club, Bushnell
2. The Motions for Summary Judgment or, Alternatively, Summary Adjudication
a. Glock and Revolver Club's motion
i. Design defect
Glock and Revolver Club jointly moved for summary judgment or, alternatively, summary adjudication, contending Chavez could not establish any of the three alleged defects in the Glock 21's design caused his injuries. First, they argued Chavez could not prove a heavier trigger pull would have prevented the accident because he is not able to establish the amount of force Collin exerted on the trigger when he discharged the pistol. Next, they asserted Chavez could not prove a grip safety would have prevented the accident because there is no evidence where Collin's hands were positioned or how he was handling the pistol at the time of discharge. Finally, they asserted a manual safety would not have prevented the accident because Chavez admitted he always stored and carried his Beretta with the manual safety decocking lever disengaged and thus the only reasonable inference is that he would not have engaged a manual safety on the Glock 21 if there had been one. Glock and Revolver Club further argued Chavez's reckless conduct, including leaving loaded guns in his truck and failing to secure Collin in a proper car seat, was the sole cause of his injury.
In support of their motion Glock and Revolver Club submitted the declaration of Emanuel Kapelsohn, a law enforcement firearms instructor and training consultant. According to Kapelsohn, "[T]he handgun designed for law enforcement use must, within reasonable limits, be as easy for the user to operate under stress as possible, with the least chance possible for any user error that would prevent the handgun from being used effectively for its intended purpose. Among other things, the clear preference of U.S. law enforcement for at least the past twenty years has been for handguns with more manageable trigger pulls (such as the Glock), and for designs (such as the Glock) without manual safeties." Kapelsohn explained he had "repeatedly seen users of firearms with manual safeties and/or decocking lever[s] ... try to fire but find themselves unable to do so, because they have not disengaged the safety, or have re-engaged it inadvertently"
Regarding the trigger pull, Glock offers several options to law enforcement agencies.
Glock and Revolver Club also submitted the declaration of retired Sergeant Louis Salseda, who had been the sergeant in charge of Chavez's firearms training when he was in the police academy. Salseda corroborated many of the points made by Kapelsohn. Additionally, he stated the Department's special investigative section had selected the Glock 21 after extensive testing and evaluation over a four-year period because of the "simplistic operation... under high stress, loss of fine motor skills operations." Other Department divisions subsequently evaluated and approved Glock pistols for use.
ii. Failure to warn and breach of implied warranty
Glock and Revolver Club contended manufacturers have no duty to warn consumers about generally known or obvious dangers. Chavez admitted he understood the warnings and instructions on safe firearm storage set forth in the instruction manual that accompanied the Glock 21.
As to Chavez's implied warranty cause of action, Glock and Revolver Club argued Chavez could not establish vertical privity: Based on an examination of serial numbers, it was determined the handgun fired by Collin had been purchased by Chavez's partner. Somehow Chavez and his partner had inadvertently switched weapons.
In a final brief paragraph, Glock and Revolver Club contended Chavez's claims were barred by the Protection of Lawful Commerce in Arms Act, title 15 United States Code sections 7901 to 7903 (PLCAA or Act), which generally provides immunity to firearms manufacturers and dealers from lawsuits falling within the Act's definition of a "qualified civil liability action" unless the lawsuit falls within one of six exceptions, including for product liability actions, to that definition. (Id., §§ 7902, 7903.) Presuming without argument Chavez's lawsuit is a qualified civil liability action, Glock and Revolver Club argued the exception for product liability actions did not apply because the firearm discharge was caused by Chavez placing Collin in the car without a child seat where he could reach the pistol, conduct that constituted volitional criminal acts in violation of Penal Code former section 12035 (now Pen. Code, § 25100) (unlawful storage of a firearm) and Vehicle Code section 27360 (failure to properly secure child in car seat).
b. Bushnell's motion
i. Design defect
Bushnell moved for summary judgment or summary adjudication, contending Chavez could not establish any defect in the holster caused his injury because it was not in use at the time of the accident. In support of its argument, Bushnell submitted a declaration from Lance Martini, a forensic scientist with expertise in the areas of firearm evidence, gunshot residue, firearm failure analysis and other firearm-related subjects. Based on his examination and testing of Chavez's holster, as well as an exemplar holster of the same make and model and an exemplar Glock 21, Martini opined Chavez's pistol had been fully removed from the holster when it was fired because of the lack of any gunshot residue on the holster and any evidence the holster had been cleaned. Martini also concluded the gun could not have been in a fully seated position in the holster with the retention strap secured when it was fired because the holster would not have allowed sufficient movement of the slide to partially eject the expended cartridge casing, which was found "stove-piped" — that is, jammed in the ejection port. According to Martini, "If the Glock pistol would have discharged with the holster strap secured, the pistol would have been found in the holster, with the strap secured, and the slide fully forward (in battery) and the expended cartridge case fully contained within the chamber."
Bushnell also asserted the holster was not defectively designed under the consumer expectation test because no reasonable person would have expected the holster to prevent a three year old from getting his or her hand on the trigger or removing the gun from the holster.
ii. Other causes of action
Bushnell argued Chavez's cause of action for failure to warn failed for lack of causation and because, as a law enforcement officer, Chavez was precluded from recovering under the sophisticated user defense. As to breach of warranty, Bushnell argued there was no vertical privity because he had purchased the holster from Turner's.
c. Turner's motion
Turner's raised many of the same arguments in its motion as Bushnell and was supported in part by Martini's declaration. Turner's also submitted a declaration from John Bianchi, a former police officer and manufacturer of firearm's accessories. Bianchi opined the Glock 21 and holster fit and functioned normally and the condition of the holster did not indicate Chavez's gun was in the holster when fired.
d. Chavez's combined opposition
i. Design defect
Chavez submitted a combined opposition supported by a declaration from Carter Lord, a "legal consultant/expert on firearms and firearms safety, ballistics, protective equipment, and testing issues." Disputing defendants' characterization of the case, Chavez explained he was not contending the gun and holster should be "childproof." Rather, "the question is either whether the gun and/holster perform as safely as an ordinary consumer would expect or whether the design results in an excessive preventable danger."
a. The Glock 21
Emphasizing the consumer expectation test focuses on a reasonable hypothetical consumer, not a particular plaintiff, Chavez argued a jury could find
With respect to the risk-benefit test, Chavez argued Lord's declaration was sufficient to create a triable issue of fact whether the benefits of the Glock 21, balanced against the feasibility and cost of alternative designs, outweigh the pistol's inherent risk of harm. Lord essentially opined the combination of design features of the Glock 21 — that is, the "light trigger pull," the spring-loaded-to-fire striker ("half-cocked and unlocked") and lack of any manual safety or grip safety typically found on other pistols — created an unnecessary and dangerous risk of accidental discharge. Lord asserted proper training on a handgun with a heavier trigger pull or safety device should yield accurate or reliable performance. Lord also observed the rates of accidental discharge had increased significantly since law enforcement agencies had begun using Glock model pistols, "including having officers shoot themselves in the leg while holstering their pistols (commonly referred to as the `Glock Leg') ...."
Lord also opined, even assuming a light trigger pull results in greater accuracy and a manual safety is dangerous because it requires a user to think before using the weapon, a grip safety would substantially increase the safety of the Glock 21 without adversely affecting its use even in stressful situations because it does not require any affirmative act to disengage other than gripping the gun in a firing position. According to Lord, the grip safety would have likely prevented the accident in this case because, "it is unlikely that the hand of a small child (a three year old in this case) would have the size or leverage to depress the grip safety and actually extend the finger out far enough to pull the trigger."
Regarding causation, Chavez contended Glock and Revolver Club had failed to carry their initial burden on summary judgment, explaining, although he did not have evidence of the amount of force exerted on the trigger by Collin specifically, the grip strength of children in general is subject to measurement. Chavez also argued it was reasonably foreseeable a child might pick up a firearm.
b. The holster
Chavez argued a jury could find the holster did not meet ordinary consumer expectations because the Glock 21 was capable of being discharged while seated in it. According to Lord, "It is exceedingly dangerous for a holster to allow access to the holstered trigger guard of a weapon therein,
Responding to Bushnell's contention the gun could not have been in the holster when it was fired because of the absence of discharge residue, thus defeating causation, Lord stated, "With regard to the discharge residue, the residue from a single shot appears not to show up visually on the holster. After multiple shots (6) in my case, there was visible gunshot residue at the muzzle area of the holster. I do not believe that conclusions can be made one way or the other relating to the visual presence of gunshot residue based on a single shot."
ii. Failure to warn
Chavez did not dispute Glock's argument it had no duty to warn about the danger of the Glock 21 in general. Rather, Chavez argued Glock had a duty to warn the Glock 21 should only be used with specific holsters that restrict access to the trigger guard in light of the fact the gun had a light trigger pull and no manual safety device. In support of Chavez's position Lord opined, "A review of the materials sold with the Glock 21 makes no mention of the type of holster that is appropriate to be used therewith. Any reasonable manufacturer knows or should know that its pistol is highly likely to be used and carried in a holster, and a warning about the specific variety of holster appropriate for use was in this case mandatory. Glock users (and holster distributors) should have been instructed that due to the Glock 21's configuration, it is to be holstered only in a holster that restricts access to the trigger guard."
Similarly, with respect to Bushnell, Chavez argued the holster packaging should not have stated it was designed for use with Glock model pistols in light of the ease with which it could be fired when properly holstered.
3. The Trial Court's Orders and Entry of Judgment
After a hearing on July 16, 2010 the trial court granted summary judgment in favor of all defendants.
a. Glock and Revolver Club's motions
On August 19, 2010 the court filed its final order granting Glock and Revolver Club's motion for summary judgment. With respect to design defect under the risk-benefit test, the court found, "[T]he Glock Model 21 pistol at issue in this action is not defectively designed as a matter of law because the substantial benefits of the Glock pistol design, including the trigger pull configuration the Los Angeles Police Department specifically chose and required, and the absence of a manual safety, including a grip safety, outweigh any risk of danger that may be inherent in this design. [Citation.] The Court also finds that the plaintiffs cannot establish that any of their proposed alternative designs would have prevented this incident." The court further found Chavez could not prove the Glock 21 was defective under the consumer expectation test.
Regarding Chavez's failure to warn cause of action, the court found, "[T]he undisputed facts demonstrate that adequate warnings were provided and the plaintiffs have failed to present any evidence tending to dispute the relevant facts surrounding the various warnings on safe firearms storage that were provided to [Chavez] or that the risks associated with storing a loaded firearm where a child can reach it were obvious and were well known to [Chavez] at the time of the incident."
Based upon the same rationale the court found Chavez's causes of action for product liability and failure to warn grounded in negligence, as well as his breach of implied warranty cause of action, were without merit. The court further found the breach of warranty cause of action failed because there was no privity of contract. Inasmuch as Chavez's causes of action failed, so too did Leonora Chavez's cause of action for loss of consortium.
The court, however, rejected Glock and Revolver Club's argument Chavez's claims were barred by the PLCAA, essentially finding the alleged criminal acts by Chavez did not cause the discharge of the gun. The court explained, "[T]he alleged code violations were not violated by the shooter, and bear a tenuous relationship to the complained of injury. As such, it cannot be said that the claims are barred by this statute."
b. Bushnell and Turner's motions
On August 20, 2010 the trial court filed its final order granting summary judgment in favor of Bushnell. The court found Lord was not qualified to testify concerning holsters and thus disregarded his opinions on those points. The court further found the holster was not inherently dangerous and was not defectively designed either standing alone or used in conjunction with the
With respect to Chavez's failure to warn cause of action, the court found, Chavez, as a sophisticated user, "knew or should have known of the danger and risks associated with guns and their holsters, especially when accessed by minor children, such that Bushnell had no obligation to warn him of any such dangers and risks." Moreover, even if Bushnell had a duty to warn Chavez, it was satisfied by express safety warnings accompanying the holster. Based upon these findings, the court held Chavez and Leonora Chavez's other causes of action failed as well.
On November 22, 2010 the trial court filed its final order granting summary judgment in favor of Turner's, finding there were no triable facts as to any of Chavez's causes of action and thus Leonora Chavez's derivative loss of consortium cause of action failed as well. Judgments were entered in favor of all defendants.
1. Standard of Review
A motion for summary judgment is properly granted only when "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
When a defendant moves for summary judgment in a situation in which the plaintiff would have the burden of proof at trial by a preponderance of the evidence, the defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar).) As an alternative to the difficult task of negating an element, the defendant may present evidence to "show that one or more elements of the cause of action ... cannot be established" by the plaintiff. (§ 437c, subd. (p)(2); see Aguilar, at p. 853.) A defendant "has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence:
Only after the defendant's initial burden has been met does the burden shift to the plaintiff to demonstrate, by reference to specific facts not just allegations in the pleadings, there is a triable issue of material fact as to the cause of action. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) On review of an order granting summary judgment, we view the evidence in the light most favorable to the opposing party, liberally construing the opposing party's evidence and strictly scrutinizing the moving party's. (O'Riordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284 [30 Cal.Rptr.3d 507, 114 P.3d 753].)
2. The Law Generally Governing Product Liability
a. Strict product liability
i. Design defect
ii. Warning defect
There is no duty to warn of known risks or obvious dangers. (Johnson v. American Standard, Inc., supra, 43 Cal.4th at p. 67; see Holmes v. J. C. Penney Co. (1982) 133 Cal.App.3d 216, 220 [183 Cal.Rptr. 777] [dangers and potential harms associated with CO2 cartridges used to power pellet gun were obvious; seller need not warn about them].) Additionally, "[a] manufacturer is not liable to a sophisticated user of its product for failure to warn of a risk, harm, or danger, if the sophisticated user knew or should have known of that risk, harm, or danger." (Johnson, at p. 71.) This affirmative defense is "`a natural outgrowth of the rule that there is no duty to warn of known risks or obvious dangers.'" (Id. at p. 67.) The defense applies both to a cause of action that a failure to warn resulted in strict liability and a cause of action that a failure to warn was negligent. (Id. at p. 71.)
b. Negligent product liability
i. Design defect
"[T]he test of negligent design `involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm.' [Citation.] ... `A manufacturer or other seller can be negligent in marketing a product because of the way it was designed. In short, even if a seller had done all that he could reasonably have done to warn about a risk or hazard related to the way a product was designed, it could be that a reasonable person would conclude that the magnitude of the reasonably foreseeable harm as designed outweighed the utility of the product as so designed.' [Citation.] Thus, `most of the evidentiary matters' relevant to applying the risk/benefit test in strict liability cases `are similar to the issues typically presented in a negligent design case.'" (Merrill v. Navegar, Inc., supra, 26 Cal.4th at pp. 479-480.)
ii. Failure to warn
3. The Trial Court Erred in Granting Summary Judgment in Favor of Glock and Revolver Club; Summary Adjudication of Chavez's Failure to Warn Causes of Action Is Proper
a. Causation as an element of Chavez's design defect cause of action
Whether proceeding under a consumer expectation or risk-benefit test, one essential element of Chavez's cause of action for strict liability-design defect is proof the Glock 21's design (and its corresponding failure to perform safely) was a substantial factor in causing his injury. Analyzing the trigger pull, lack of a manual safety and lack of grip safety separately, Glock and Revolver Club argue Chavez cannot establish that modification of any of these alleged defects would have prevented the accident.
We agree Chavez cannot demonstrate the lack of a manual safety proximately caused his injury in light of the undisputed evidence that, consistent
Glock and Revolver Club's causation argument is primarily predicated on Chavez's concession he cannot prove either the amount of force Collin exerted on the pistol when he discharged it or the manner in which he held the pistol. Misconstruing both the nature of causation evidence needed by Chavez to prove his strict liability cause of action and their own burden on summary judgment, Glock and Revolver Club assert Chavez would have to show that Collin was physically incapable of exerting the amount of force necessary to fire a gun with a heavier trigger pull and that Collin could not have deactivated a grip safety by some means other than a normal single-handed grip (for example, by holding the gun in one hand and pulling the trigger with the other or by leaning his body against the handle). Such argument alone is insufficient to meet Glock and Revolver Club's initial burden either to conclusively negate causation or to demonstrate Chavez does not have, and cannot reasonably obtain, evidence establishing causation. (See Aguilar, supra, 25 Cal.4th at pp. 853, 855 & fn. 23 [defendant does not meet its burden on summary judgment "simply" by pointing out "`absence of evidence to support' an element of the plaintiff's cause of action"]; Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1003.)
To be sure, the absence of direct evidence regarding how Collin fired the gun renders the causation question more difficult to resolve. But, it is neither impossible to prove causation nor is proof on this issue necessarily speculative. (Cf. Arthur v. Avon Inflatables Ltd. (1984) 156 Cal.App.3d 401, 407-408 [203 Cal.Rptr. 1] [whether an emergency transmitter device "could have properly functioned and its signal been received by passing aircraft so as to produce at least a chance of successful rescue [citation] presented a factual question on the issue of contributing proximate cause"].) The hand size and grip strength of children are readily measurable. Although there may be some variation among individual children, the jury could reasonable infer from such evidence whether a child of Collin's age and size could depress a grip safety. Similarly, a child's ability to pull a trigger of various trigger pull strengths is measurable. (See Naureckas et al., Children's and Women's Ability to Fire Handguns (1995) 149 Archives Pediatrics & Med. 1318 <http://www.ncbi.nlm.nih.gov/pubmed/7489067> [as of July 24, 2012] [study of one- and two-index-finger trigger pull strength of mothers and children].) A jury could reasonably infer from this information whether a heavier trigger would have reduced or avoided the risk of harm in this case. (See Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 121 [184 Cal.Rptr. 891, 649 P.2d 224] ["`[i]t is not incumbent upon a plaintiff to show that an inference in his favor is the only one that may be reasonably drawn from the evidence; he need only show that the material fact to be proved may logically and reasonably be inferred from the circumstantial evidence'"].)
Indeed, as the Supreme Court explained in Campbell v. General Motors Corp., supra, 32 Cal.3d 112, "It is particularly appropriate that the jury be allowed to determine the inference to be drawn when the evidence indicates that a safety device, designed to prevent the very injury that occurred, was not present. To take the case from the jury simply because the plaintiff could not prove to a certainty that the device would have prevented the accident would enable the manufacturer to prevail on the basis of its failure to provide the safeguard. [Citation.] Such a rule would provide a disincentive to improve the safety features of a product and thereby interfere with one of the major policy goals of strict liability." (Id. at p. 121, fn. omitted.)
b. Lack of causation as an affirmative defense
There is no question children gain access to firearms. Indeed, Glock's own safety warnings and Penal Code section 25100 making it a criminal offense under certain circumstances to store firearms where children have access to them make this clear. While a jury may well find Chavez's conduct substantially contributed to the accident (see Torres v. Xomox Corp., supra, 49 Cal.App.4th at p. 17; see generally CACI No. 1207A ["Strict Liability — Comparative Fault of Plaintiff"]), we cannot say that conduct, even if sufficient to establish criminal storage of a firearm, absolves Glock and Revolver Club, as a matter of law, from all liability for a design defect that may otherwise be shown to exist in the Glock 21. (Cf. Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 833 [20 Cal.Rptr.2d 296] ["`[T]he law now requires a manufacturer to foresee some degree of misuse and abuse of his product, either by the user or by third parties, and to take reasonable precautions to minimize the harm that may result from misuse and abuse.' [Citation.] `[T]he extent to which designers and manufacturers of dangerous machinery are required to anticipate safety neglect presents an issue of fact.'"].) Chavez's responsibility for his own injuries is quintessentially a question for the jury.
c. The risk-benefit test
Without a doubt, Glock and Revolver Club proffered substantial expert evidence establishing the merits of the Glock 21 and supporting the Department's decision to select the weapon for general agency use. Nevertheless, Chavez provided his own expert evidence that there are safer designs that would accomplish the Department's goals without adversely impacting safety or accuracy. For example, Lord opined the inclusion of a grip safety on a gun with the 5.5-pound connector trigger pull of the Glock 21 and lack of manual safety would minimize the risk of accidental discharge without undermining performance because "[n]o additional thought or hesitation is required in a high stress situation" to knowingly and intentional fire the gun.
Glock and Revolver Club insist Lord's opinion is not substantial evidence and fails to create a triable issue of fact under the risk-benefit test because it is conclusory and unsupported by facts and Lord, who is not a firearms trainer, has no experience instructing others on the safe and effective use of firearms (see § 437c, subd. (d) [supporting and opposing declarations "shall show affirmatively that the affiant is competent to testify to the matters stated in the ... declarations"].) The trial court, however, overruled Glock and Revolver Club's objections to Lord's declaration. Glock and Revolver Club do not directly challenge these evidentiary rulings on appeal, which we accordingly do not disturb. (See Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015 [120 Cal.Rptr.2d 281].) Thus, their attempt to dismiss the significance of Lord's declaration goes only to the weight of the evidence, not its complete absence. Determining the credibility of expert witnesses and deciding whether Kapelsohn's risk-benefit opinion is entitled to greater weight than Lord's are questions for the jury.
d. The consumer expectation test
Glock and Revolver Club do not argue the consumer expectation test is not applicable to Chavez's cause of action for design defect and do not dispute Chavez's assertion it would be error to conclude the test is inapplicable here as a matter of law. (See Soule, supra, 8 Cal.4th at p. 568; McCabe, supra, 100 Cal.App.4th at p. 1124.)
Pursuant to Campbell, once a plaintiff establishes the consumer expectation test is properly applied to his or her case, the threshold for withstanding a motion for summary judgment or nonsuit, thus permitting the jury to determine whether the allegedly defective product satisfied ordinary consumer expectations, is quite low. Nonetheless, as the Supreme Court cautioned in Soule, supra, 8 Cal.4th at page 568, "[T]he jury may not be left free to find a violation of ordinary consumer expectations whenever it chooses." (See Campbell v. General Motors Corp., supra, 32 Cal.3d at p. 127 ["[t]he quantum of proof necessary to establish a prima facie case of design defect under the [consumer expectation test] cannot be reduced to an easy formula"].)
We agree with the trial court that this is one of those perhaps exceptional cases in which the product at issue is one about which consumers may form minimum safety assumptions but no jury could reasonably conclude the product failed to perform under the circumstances as safely as an ordinary consumer would expect. That is, no reasonable consumer — whether relatively
Risk-benefit and consumer expectation are alternative theories for establishing a cause of action for design defect strict liability, not independent causes of action. Accordingly, notwithstanding Chavez's inability to prove design defect under the consumer expectation test, Glock and Revolver Club are not entitled on remand to an order granting summary adjudication on this claim. (See § 437c, subd. (f)(1) ["[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action ..."]; see also DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 418-419 [54 Cal.Rptr.2d 792] [motion for summary adjudication may not attack one particular compensatory damage claim if granting the motion would leave intact the cause of action containing other claims for compensatory damages].) However, the trial court, Glock and Revolver Club are not without procedural devices, including, for example, a motion in limine, to deal with the consumer expectation claim when this matter is returned for trial. (See Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1259-1260 [13 Cal.Rptr.3d 668]; see also § 437c, subd. (s) [party may move for summary adjudication of a legal issue or claim that does not completely dispose of a cause of action upon stipulation of the parties and approval of the court if resolution of the motion will reduce trial time or significantly increase the likelihood of settlement].)
e. The failure to warn cause of action
Chavez received firearms training as a United States Marine for four years and as a police officer for 10 years. Additionally, Chavez testified he began carrying the Glock 21 as a service weapon after he had passed a transition course; had read the instruction manual for the pistol;
Chavez does not dispute he is a sophisticated user. He argues, correctly, the sophisticated user defense does not bar a design defect cause of action asserted under a risk-benefit theory. (See Honeywell, supra, 179 Cal.App.4th at p. 558.) But, as in Honeywell, Chavez asserts both a design defect cause of
f. Chavez's remaining causes of action
i. Negligent design defect
ii. Breach of implied warranty
"There are, of course, multiple court-created exceptions to the general rule of privity. [Citation.] For example, exceptions to the privity requirement have been found in cases involving foodstuffs, drugs and pesticides, [and] substances marketed with the knowledge the purchaser may not be the ultimate consumer of the product [citations]. The strict requirement of privity has also been excused when an inherently dangerous instrumentality causes harm to a buyer's employee. [Citations.] Whether these cases are viewed as expanding the doctrine of privity or relieving a plaintiff of the obligation to demonstrate privity in favor of the emerging tort doctrine of strict liability [citations], the result is the same." (Jones v. ConocoPhillips, supra, 198 Cal.App.4th at p. 1201.) Inasmuch as the guns were identical and the alleged breach of implied warranty is not specific to a particular model number, but the overall design of the Glock 21, Chavez is entitled to assert a cause of action for breach of implied warranty. (Cf. Barth v. B. F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 247 [71 Cal.Rptr. 306] ["in cases involving instrumentalities dangerous because of latent defects, implied warranties apply even in the absence of privity"].)
iii. Leonora Chavez's loss of consortium cause of action
4. There Are Triable Issues of Fact Whether Chavez's Causes of Action Are Barred by the PLCAA
Ordinarily "[t]he proper analysis for determining the applicability of the PLCAA is two-fold," requiring first a determination whether the lawsuit in
In any event, there are triable issues of fact whether Chavez's lawsuit falls within the exception to the Act for product defect actions under the second step of the analysis. (15 U.S.C. § 7903(5)(A)(v).) Chavez focuses on his son's actions in firing the weapon and argues the discharge of the pistol was not caused by a volitional criminal act because his three-year-old son did not possess the requisite criminal intent (that is, knowledge of wrongfulness) when he pulled the trigger. (See Pen. Code, § 26 [children under age of 14 are not capable of committing a crime "in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness"].) Glock and Revolver Club dispute the exception applies, looking not to Collin's actions, but Chavez's. They argue the discharge of the gun was caused by Chavez's volitional criminal acts of leaving the loaded pistol unsecured in his truck and placing Collin in the backseat of his truck, just a few feet away from the pistol, without being secured in a child car seat.
Unlike the definition of "a qualified civil liability action," which broadly includes any civil action "resulting from the criminal or unlawful misuse" of a firearm, Congress much more narrowly defined the exclusion from excepted product defect suits to apply only if "the discharge of the product was caused
Even if we were to accept Glock and Revolver Club's statutory interpretation, however, material issues of fact exist that preclude summary judgment under the PLCAA. As discussed, Chavez has not conceded, nor is it a foregone conclusion, that he committed the offense of criminal storage of a firearm.
5. The Trial Court Properly Granted Summary Judgment in Favor of Bushnell and Turner's
a. The trial court abused its discretion in excluding Lord's declaration
"It is true ... that the question whether a witness qualifies as an expert is a matter addressed in the first instance to the sound discretion of the trial court. [Citation.] It is also elementary, however, that the court will be deemed to have abused its discretion if the witness has disclosed sufficient knowledge of the subject to entitle his opinion to go before the jury." (Brown v. Colm, supra, 11 Cal.3d at pp. 646-647 [trial court erred in excluding doctor's testimony "based entirely upon his lack of personal experience with the standard of care prevailing in 1949"].)
The trial court abused its discretion in excluding Lord's opinion the gun was in the holster when it was discharged. Lord's experience and expertise in the field of firearms and ballistics are broad.
Because we hold Lord's additional opinion the holster's design was defective is insufficient to create a triable issue of fact under the risk-benefit test, we need not address whether his failure to identify holster design as one of his areas of expertise renders this aspect of his opinion testimony inadmissible.
b. There are triable issues of fact whether the holster caused Chavez's injuries
Chavez testified the Glock 21 was still in the holster when he picked it up immediately after being shot. That testimony, together with Lord's opinion the absence of gunshot residue did not necessarily mean the gun was out of the holster when it was discharged, create a triable issue of fact on causation. Martini and Lord submitted declarations presenting contradictory opinions on the issues of the absence of gunshot residue on the holster, whether the gun could be fired with the retention snap fastened and the conclusions to be drawn from the stovepipe jam. That conflict cannot properly be resolved on summary judgment.
Bushnell's argument it was not reasonably foreseeable a law enforcement officer would leave a holstered gun accessible to a child does not necessarily defeat causation for the reasons we explained in connection with Glock's similar argument regarding the pistol: Children gain access to firearms.
c. Chavez has failed to demonstrate a triable issue of fact the holster is defective under the risk-benefit test
Martini's declaration was sufficient evidence to shift the burden to Chavez to demonstrate there is a triable issue of fact whether "the benefits of the challenged [holster] design, [when balanced against such factors as the feasibility and cost of alternative designs,] outweigh [its inherent risk of harm]." (Barker, supra, 20 Cal.3d at p. 432.) In support of his opinion the holster provides "an excellent balance of speed of access, firearm security, and quality of manufacture without excessive bulk or complexity for an inside the waistband holster," Martini explained it offers, among other benefits, a "[s]emi-rigid design allowing for one handed reholstering (important officer safety aspect)"; "[f]ull enclosure of the pistol's trigger and trigger guard area by the holster's shell thus minimizing access to these areas while the pistol is inserted in the holster even when the retention snap is not engaged"; and "[f]oam/nylon laminate construction which allows for a lightweight, low bulk and comfortable holster yet possessing the required integrity to properly support, position and secure a large and heavy firearm such as the fully loaded Glock 21 pistol."
In his opposing declaration Lord does not address the fact one of the key design features of this particular holster is conceal ability or evaluate the feasibility, costs and benefits of an alternative design that would still provide sufficient conceal ability while adding an additional margin of safety. Rather, he merely described in conclusory fashion "a design change wherein the material around the outer edge of the holster (bordering the trigger guard[)] should be tighter and made of stiffer material."
d. Chavez has failed to demonstrate a triable issue of fact the holster is defective under the consumer expectation test
Martini's declaration addresses the expectations of law enforcement officers who use concealable holsters, noting the considerations for their use are very different from those for holsters that offer a higher degree of firearm safety: "Plaintiff was trained and familiar with the operation and safety features of the Safariland Triple Retention Holsters which he used for
e. Failure to warn and other causes of action
As discussed in connection with Chavez's failure to warn causes of action against Glock and Revolver Club, these causes of action against Bushnell and Turner's fail because Chavez was a sophisticated user. Chavez's negligent product design causes of action fail for the reasons his strict liability causes of action fail, and his causes of action for breach of implied warranty fail because he does not challenge the trial court's ruling on them (see Reyes v.
The judgments in favor of Bushnell and Turner's are affirmed. The judgments in favor of Glock and Revolver Club are reversed. On remand the trial court shall enter orders of summary adjudication as to Chavez's causes of action for failure to warn against Glock and Revolver Club and conduct further proceedings not inconsistent with this opinion. Bushnell and Turner's are to recover their costs on appeal. Glock, Revolver Club and Chavez are to bear their own costs on appeal.
Zelon, J., and Jackson, J., concurred.
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