 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Cowart v. KMart Corporation5/8/2000
uicide not foreseeable by Wal-Mart because salesclerk had no reason to believe minor was suicidal or intended to use ammunition to injure himself); Robinson, 372 So. 2d at 1076 (premeditated murder by minor purchaser of guns and ammunition not foreseeable because malicious and intentional act is less foreseeable than negligence when store clerk knew purchaser in school and no evidence purchaser had criminal record or "exhibited the propensity to handle firearms in a dangerous manner").
Considering the third factor, the intervening force, Bell, operated independently of Kmart. Kmart did not sell bullets to Bell. The pistol was loaded without Bell's knowledge. Bell took the gun, not knowing it was loaded, and shot. It was this series of circumstances, operating independently of and beyond the control of Kmart after the sale of the ammunition, that put a loaded gun in Bell's hands. The facts show that Carrasco loaded the pistol and gave it to Gabriel, and Bell took the gun from Gabriel and shot and killed Richard. Thus, Bell's act was independent of Kmart's sale of the ammunition. See Ward v. University of the South, 354 S.W.2d 246, 250-51 (Tenn. 1962) (noting even though guns and ammunition are dangerous, sale creates only a condition from which no harm is reasonably foreseeable or could have resulted if not for subsequent unrelated, intervening act).
The fourth factor also favors Kmart:
The operation of the intervening force was due to the act of a third person, Bell. Regarding the fifth and sixth factors, Bell's act was wrongful or criminal . He created the dangerous situation by grabbing Richard, taking the gun and pointing it at Richard, and then firing. Concerning Bell's degree of culpability, there was evidence that he was convicted of involuntary manslaughter.
Application of these factors to the facts of this case provides an evidentiary basis for Bell's criminal conduct being a superseding cause of Richard's injuries. With this evidence of a superseding cause before the court, the burden shifted to the Cowarts to present evidence sufficient to raise a fact issue that the use of the ammunition by Bell was foreseeable by Kmart. Without summary judgment evidence that Kmart or its employees had knowledge or reason to suspect, by the demeanor or behavior of Carrasco or Gabriel, that either they or Bell would use the bullets for an illegal purpose, Kmart properly established it could not have proximately caused Richard's death.
CONCLUSION
Whether criminal activity is foreseeable in a particular instance requires "more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defendant's conduct brings about the injury." Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995). The Cowarts provided no summary judgment evidence of any fact that should have alerted any Kmart employee that Gabriel or Carrasco would put the bullets in the hand of someone who would engage in criminal conduct. Thus, there was no controverting evidence Kmart could foresee that Carrasco, Gabriel, or Bell would use the purchased ammunition for a criminal purpose. Without this controverting evidence, there was no fact issue on foreseeability for the trial court. Therefore, because Kmart negated the foreseeability element of the Cowarts' claim, the trial court properly rendered summary judgment. See Chapman v. Oshman's Sporting Goods, Inc., 792 S.W.2d 785, 787-88 (Tex. App._Houston [14th Dist.] 1990, writ denied); Peek v. Oshman's Sporting Goods, Inc., 768 S.W.2d 841, 847 (Tex. App._San Antonio 1989, writ denied); Diggles v. Horwitz, 765 S.W.2d 839, 841 (Tex. App._Beaumont 1989, writ denied); January v. Pea
Page 1 2 3 4 5 Texas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|