Metropolitan News-Enterprise


Tuesday, March 18, 2008


Page 1


Court: No Liability to Third Parties for Pistol’s Hair Trigger


By STEVEN M. ELLIS, Staff Writer


A man who gave his daughter a pistol with a hair trigger is not liable for the death of her boyfriend, who died when the gun went off in the decedent’s hands, the Fifth District Court of Appeal ruled yesterday.

Affirming Stanislaus Superior Court Judge David G. Vander Wall’s grant of summary judgment against the survivors of Max Birchfield in their wrongful death action against Charles Sweatt, the court ruled in an unpublished opinion that Sweatt could not be held liable because he did not owe a duty of care to third parties.

Birchfield, a U.S. Army veteran who served in combat in Afghanistan and was trained as a sniper, was in the bedroom of Leandra Sweatt when her single-action .22-caliber revolver went off in his hands, fatally wounding him in the chest.

Charles Sweatt, Leandra Sweatt’s father, had lent or given the gun to his daughter for self-defense after her divorce when she began experiencing frightening incidents at her house, including mysterious knocks on the door.

‘Joking Around’

According to a police report, Leandra Sweatt told an officer that she and Birchfield had been “joking around” in her bedroom and that Birchfield was sitting on the bed while she was dusting with her back turned to him when she heard a shot and turned to see Birchfield clutching his chest with the gun lying on the bed.

When police and ambulance personnel arrived, Birchfield was lying on his back on the floor with a burn mark on his shirt in the center of his chest. He died within minutes, and the coroner reported the manner of death as suicide.

Birchfield’s family filed a wrongful death complaint against both Charles and Leandra Sweatt alleging general negligence. They contended that Birchfield would not have been shot had the pistol been kept in a secure location or unloaded, or if the Sweatts had informed him that it was not equipped with a safety and had a hair trigger.

By his own admission, Charles Sweatt knew that the gun had a hair trigger, and an expert witness later testified that the application of less than one pound of pressure—less than 16 ounces, or slightly more than that needed to operate an average retractable ball-point pen—was sufficient to fire the gun.

Sweatt told a police officer about an incident in which the gun had fired a shot into the ground a short distance from his feet when he performed a “quick draw” maneuver, but in a later deposition refused on Fifth Amendment grounds to answer a specific question about this incident, stating generally that he had never experienced an accidental discharge.

Fifth Amendment Raised

He similarly refused to confirm or deny that he had told his daughter when giving her the gun not to cock it until she was ready to fire, since it would probably go off once cocked because of the hair trigger.

The parties settled the case against Leandra Sweatt, and Charles Sweatt moved for summary judgment. He argued that he had no duty of care to Birchfield, that the plaintiffs could not prove he was negligent in giving the gun to his daughter, and that they could not prove his conduct caused the accident.

The plaintiffs countered that the injury was foreseeable and within the scope of Sweatt’s duty; that the evidence of the gun’s dangerousness showed it was negligent to give it away to one intending to use it; and that a tape of a 911 call made by Leandra Sweatt immediately after the shooting pointed to accidental discharge as the cause, attributable to Charles Sweatt’s negligence in giving away the dangerous gun.

The trial court granted Sweatt’s motion, ruling that he could not have reasonably foreseen that his daughter would fail to take the necessary precautions in storing or using the gun, despite his warnings.

On appeal, the Court of Appeal rejected this conclusion, but nonetheless affirmed the judgment.

Writing for the court, Justice Rebecca A. Wiseman opined that the injury was foreseeable, but noted that foreseeability is only one of the factors to consider under Rowland v. Christian (1968) 69 Cal.2d 108, in determining the scope of a defendant’s duty of care.

Noting that other factors include “the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved,” Wiseman  wrote that “the key to the problem presented here…is to decide whether the type of scenario at issue is dangerous or risky enough to warrant imposing a duty on the donor to third parties foreseeably injured by accidental discharges.”

Turning to three California Supreme Court cases dealing with whether vehicle owners had a duty to third parties injured by negligent operation by a thief who uses the vehicle—Richards v. Stanley (1954) 43 Cal.2d 60, Hergenrether v. East (1964) 61 Cal.2d 440, and Richardson v. Ham (1955) 44 Cal.2d 772—as providing “a scale of degrees of dangerousness against which we can measure our case by analogy,” Wiseman opined that it was not.

Considering the policy of preventing future harm and comparing the facts in Richards—where third parties were injured after a thief stole a car parked overnight with keys in the ignition—to those presented in Hergenrether and Richardson —where third parties were injured after thieves stole a two-ton truck and a 26-ton bulldozer, respectively—Wiseman concluded that the balance of the Rowland factors were closer to the former than to the two latter cases.

She also opined that the imposition of a duty would have burdensome implications for lawful transactions involving firearms, implying that gun dealers have a duty to ascertain the trigger pull weight of each gun sold, isolate such guns below an unknown threshold, and tailor warnings to each buyer according to their intended use.

Wiseman then concluded that the causal links between Charles Sweatt’s conduct and Birchfield’s death were too attenuated to impose a duty of care:

“While in his girlfriend’s bedroom, a weapons-trained veteran found himself with a loaded and cocked revolver pointed at his chest at point-blank range when something caused it to discharge… [T]hough the accident was reasonably foreseeable, [Sweatt’s] connection with it was not close, and Rowland tells us that this weighs against finding a duty.”

Justices Thomas A. Harris and Stephen Kane joined Wiseman in her opinion.

The case is Birchfield v. Sweatt, F052443.


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