Thursday, October 11, 2012
Ex-LAPD Officer Loses Bid to Expand Suit Against Gunmaker
By KENNETH OFGANG, Staff Writer
The state Supreme Court yesterday declined to allow a paralyzed former Los Angeles police officer to sue a gun manufacturer for failure to warn that the gun could be fired while holstered.
Justices, at their weekly conference in San Francisco, voted unanimously to deny Enrique Chavez’s petition for review of a July 24 ruling by Div. Seven of this district’s Court of Appeal. The ruling still allows Chavez to press forward under a strict liability theory.
Chavez was injured after his 3-year-old son, seated behind him in Chavez’s personal vehicle, picked up the officer’s service revolver, which discharged. Chavez and his counsel argued that Glock, Inc. had a duty to warn that the Glock 21 pistol should only be used with specific holsters that restrict access to the trigger guard in light of its “light trigger pull” and lack of a manual safety device.
The Court of Appeal, however, said the defendants were entitled to summary adjudication on that claim because the officer, as a “sophisticated user,” knew enough about gun safety to store the weapon properly.
The court did allow Chavez to proceed on his design defect and breach-of-implied warranty theories against Glock and the Los Angeles Police Revolver and Athletic Club, which sold the gun. Presiding Justice Dennis Perluss said an expert’s opinion that the gun was defective because its spring-loaded-to-fire striker, trigger pull, and lack of any manual safety or grip safety typically found on other pistols created an unnecessary and dangerous risk of accidental discharge was sufficient to create a triable issue of fact.
Chavez testified that the gun was holstered and under the seat of his vehicle when the child, who was in the back seat, apparently grabbed it. The child was riding in the back of the vehicle because Chavez had to take him to the home of Chavez’s father, who was going to have to watch the child because the officer had just been called and told he had to go to court.
Placing the child in the back was safer than placing him in the front seat, the officer explained, due to fear of airbag deployment. He was not secured in a car seat, Chavez explained, because it had been left in his wife’s car.
Chavez sued the maker and seller of the holster, as well as Glock and the Revolver Club, on the theory that the gun should have been concealed. But the Court of Appeal agreed with Los Angeles Superior Court Judge Kevin Brazile that there was no triable claim against those defendants under the consumer-expectations test, because the holster worked exactly as Chavez would have expected it to.
Weight of Evidence
Glock and the Revolver Club argued, as Perluss put it, “that they had no duty to design a firearm that an unsupervised three-year-old could safely play with when left loaded and unsecured by a trained police officer who had ignored every warning and instruction he had read about firearm storage safety.” But those arguments went to the weight of the evidence and did not establish that the claim was barred as a matter of law, the jurist said.
The panel also rejected claims that a federal statute designed to restrict claims against gun manufacturers based on criminal misuse of weapons applied. And it held that an apparent inadvertent switch in weapons—Chavez’ gun was actually issued to his partner and vice versa—did not destroy privity because the guns were identical in all relevant aspects.
The case is Chavez v. Glock, Inc., B230346.
Copyright 2012, Metropolitan News Company