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Cowart v. KMart Corporation5/8/2000
Billy Cowart and Julie Elaine Cowart, individually and as representatives of the Estate of Richard Glenn Cowart, Deceased (collectively, the Cowarts), sued Kmart Corporation (Kmart) for negligently selling ammunition to Manuel Carrasco and James Gabriel that another person, Leonard Bell, used to shoot and kill Richard Cowart. To defeat the Cowarts' negligence action, Kmart filed a motion for summary judgment, alleging that the shooting incident was not foreseeable. The trial court granted Kmart's motion. In one point of error, the Cowarts appeal the summary judgment. We affirm.
BACKGROUND
On April 4, 1992, Manuel Carrasco and James Gabriel went to Kmart to buy bullets. They bought a box of CCI .22 long rifle mini-mag bullets. Carrasco was seventeen years old at the time of the sale. There is no evidence of Gabriel's age in the record. Carrasco and Gabriel had taken a .22 caliber pistol from Carrasco's younger brother, who had taken it from a friend's home. With the ammunition they purchased at Kmart, Gabriel and Carrasco spent the afternoon target shooting with the pistol. Later, Gabriel and Carrasco took the unloaded pistol with them in a car as they picked up friends, including Leonard Bell. After Bell discovered the gun in the car, he aimed and dry-fired it at persons several times. During the evening, Gabriel, Carrasco, and Bell went to a Jack- in-the-Box restaurant, purchased beer and went to the country to consume it, and returned to the Jack-in-the-Box. Finally, the three decided to go to Denison to "cruise" and look for a fight. There Gabriel, Carrasco, and Bell encountered Richard Cowart and began "horsing around." Gabriel and Carrasco went back to the car, where Carrasco loaded the gun and handed it to Gabriel. Gabriel placed the gun in his waistband, concealed by his jacket. Gabriel then walked up to Bell, who had Richard in a head lock. Bell then took the pistol from Gabriel, apparently not knowing it was loaded, aimed and fired it, shooting and killing Richard.
Criminal charges were brought against Bell and Carrasco, resulting in convictions for involuntary manslaughter. The Cowarts then filed a civil lawsuit against Carrasco, Gabriel, and Kmart. The Cowarts' claim against Kmart was for the negligent sale of the ammunition to minors. In its second amended motion for summary judgment, Kmart asserted that Bell's criminal conduct was an intervening and superseding cause of Richard's death, and, "as such, [the alleged negligence of] Kmart was not the proximate cause of the injury to decedent." The trial court granted Kmart's motion. In a single point of error, the Cowarts complain the trial court erroneously granted the summary judgment in favor of Kmart.
STANDARD OF REVIEW
The standards for reviewing summary judgments are well established. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548; Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff's theory of recovery, or (2) plead and conclusively establish each essential element of an affirmative defense. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979); Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657 (Tex. App._Dallas 1992, no writ).
PROXIMATE CAUSE
In this negligence case, Kmart sought to prevail on its motion for summary judgment by negating the foreseeability element of proximate cau
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