Birchfield v. Sweatt, F052443 (Cal. App. 3/17/2008)

• Decision Date: 17 March 2008
• Docket Number: F052443
• Court: California Court of Appeals
• Parties: JOHN BIRCHFIELD et al., Plaintiffs and Appellants, v. CHARLES SWEATT, Defendant and Respondent.

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JOHN BIRCHFIELD et al., Plaintiffs and Appellants, v. CHARLES SWEATT, Defendant and Respondent.

F052443

Court of Appeals of California, Fifth Appellate District

March 17, 2008

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Stanislaus County, No. 370646, David G. Vander Wall, Judge.

Law Office of John K. Ormond and John K. Ormond, for Plaintiffs and Appellants.

McNamara, Dodge, Ney, Beatty, Slattery, Pfalzer, Borges & Brothers, Lisa R. Roberts, Gary A. Watt, and Christopher T. Lustig for Defendant and Respondent.

OPINION

WISEMAN, J.

Max Birchfield died after a handgun he was holding discharged, apparently accidently,¹ and shot him in the chest. This happened in the bedroom of Leandra Sweatt, Max's girlfriend, who had been given or lent the gun by her father, Charles Sweatt, to use for self-defense. When he gave Leandra the gun, Charles knew it had a hair trigger—it could be fired with substantially less pressure on the trigger than an average gun of its type. The trial court granted Charles's motion for summary judgment in this wrongful-death action brought by Max's survivors. It concluded that Charles had no duty of care to Max. We agree. Under the particular circumstances of this case, the balance of factors we must consider under Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland) does not support the imposition of a duty to a third party.

FACTUAL AND PROCEDURAL HISTORIES

The gun was a single-action .22-caliber revolver, which Charles Sweatt bought in 1969 or 1970. Charles's daughter, Leandra, was divorced in 2000 and afterward began experiencing frightening incidents at her house, including mysterious knocks on the door. After these incidents, Charles gave the gun to Leandra for her protection.

By his own admission, Charles knew the gun had a hair trigger when he gave it to Leandra. According to the plaintiffs' expert, application to the trigger of less than one pound of pressure—less than 16 ounces—was sufficient to fire the gun. This is only slightly more than the 10 to 15 ounces needed to operate an average retractable ball-point pen. The normal range of trigger pull weights for similar single-action revolvers is two to three pounds, according to the expert. When telling a police officer about the hair trigger, Charles described an incident in which he performed a "quick draw" maneuver which resulted in a shot being fired at the ground a short distance from his feet. At his deposition, Charles refused to answer a specific question about this incident and stated generally that he had never experienced an accidental discharge. Charles also told a police officer that when he gave Leandra the gun, he told her not to cock it until she was ready to fire, since it would probably go off once cocked because of the hair trigger. At his deposition, Charles refused to confirm or deny that he made this statement.

Max Birchfield was a veteran who served in the army in Afghanistan. While in the army, he received training as a sniper and engaged in active ground combat, attaining the rank of sergeant before completing his service.

Leandra placed a 911 call from her house in Ceres on April 13, 2004. The transcript of the call includes the following statements:

"THE CALLER: ... He shot himself. My boyfriend has shot himself in the chest. I need someone here right away.

"911 OPERATOR: Where is the gun at? Where is the gun at?

"THE CALLER: It's—you know, it was an accident. It was a gun accident. [¶] ... [¶] He's dying. [¶] ... [¶]

"MEDICAL PERSON: What happened? [¶] ... [¶] [D]id he—he just shot himself?

"THE CALLER: Yes.

"MEDICAL PERSON: And was it intentional?

"THE CALLER: No. He was trying to—we were—oh, my God.

"MEDICAL PERSON: And he was cleaning?

"THE CALLER: I was cleaning.

"MEDICAL PERSON: Okay.

"THE CALLER: He picked up the gun because it was on the bed and I was cleaning and dusting, and it went off and it hit him in the chest. [¶] ... [¶]

"MEDICAL PERSON: Go unlock the door if it's locked, okay?

"THE CALLER: Okay. Do I leave him? [¶] ... [¶] I don't have any clothes on.

"MEDICAL PERSON: That's okay ...."

According to a police report, Leandra told an officer that she and Max had been "joking around" in the bedroom where she kept the gun on the headboard. Max was sitting on the bed while Leandra was dusting. While her back was turned, she heard the shot. She turned to see Max clutching his chest and the gun lying on the bed. In the same police report, the officer wrote: "When I asked her if they had had an argument prior to the shooting, she wouldn't give me a straight answer. She said she never would have suspected he would have wanted to shoot himself because he had just been joking with her." Anne Dirmeyer, Max's mother, testified at a deposition that Leandra gave her this account while they were at the hospital after the shooting: "Max told her that breaking up with her was like being shot in the heart. And when he had said that, he had the gun pointed at his heart, and the gun went off." Leandra showed a police officer the words "I love you" written in lipstick on the bathroom mirror. She said Max had written it.

When police and ambulance personnel arrived at Leandra's house, Max was lying on his back on the floor; there was a burn mark on his shirt in the center of his chest. He died within minutes of being shot. On the death certificate, the coroner reported the manner of death as suicide.

John Birchfield and Rachael Giorlando, Max's father and sister, filed a wrongful death complaint in superior court. Anne Dirmeyer later became a plaintiff also. The complaint alleged general negligence and named as defendants Charles and Leandra Sweatt and the City of Ceres.² It stated:

"Charles Sweatt owned a .22 caliber pistol which he knew was dangerous in that it did not have a safety and did have a `hair trigger.' He entrusted the pistol to Leandra who knew or should have known that it did not have a safety and did have a `hair trigger ....' Leandra left the pistol in a place where it was accessible to others and in a fully loaded condition. For reasons unknown to Plaintiffs, on April 13, 2004, Max Birchfield was shot dead by said pistol. Max would not have been shot had the pistol been kept in a secure location, unloaded or if the Sweatts had informed the person that used the weapon that it was not equipped with a safety and had a `hair trigger.'"

After being sued, Charles and Leandra invoked their Fifth Amendment privilege against self-incrimination, refusing at their depositions to answer questions about the gun or the shooting. The parties settled the case against Leandra.

Charles moved for summary judgment. He conceded he knew the gun had a hair trigger when he gave it to Leandra. He argued, however, that he had no duty of care to Max, that plaintiffs could not prove he was negligent in giving the gun to Leandra, and that they could not prove his conduct caused the accident. Plaintiffs contended that the injury to Max was foreseeable and was within the scope of Charles'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 the 911 tape pointed to accidental discharge, attributable to Charles's negligence in giving away the dangerous gun, as the cause.

In granting the motion, the trial court addressed only the duty element of the tort. It stated:

"Defendant, Charles Sweatt's motion for summary judgment is GRANTED. Mr. Sweatt did not owe a duty of due care to the decedent—and the existence of a duty is a legal question the Court must resolve on summary judgment, provided there are no material disputed facts. The moving papers and the undisputed facts show that Mr. Sweatt loaned the gun in question to his daughter, Leandra, who was responsible for its presence in the home on the night of the incident in question. The parties do not dispute that Mr. Sweatt warned Leandra about the gun's `hair trigger' and it was Leandra who chose, for whatever reason, to keep the loaded gun in her bedroom, where decedent was killed. Mr. Sweatt could not have foreseen that, despite his warning to her of the gun's `hair trigger,' Leandra would fail to take the necessary precautions in storing and/or using the gun—nor could he control her actions in failing to do so. The absence of an ability to control another's actions is fatal to the claim of legal responsibility. Wise v. Superior Court (1990) 222 Cal.App.3d 1008. While there do exist some factual disputes between the parties—i.e. whether or not Mr. Sweatt told the police that the gun had `accidentally discharged' before—these disputes are not material for purposes of conducting the duty analysis. Pursuant to the balancing test espoused by the [court] in Rowland [, supra,] 69 Cal.2d 108, this Court finds that Mr. Sweatt is not legally responsible for the tragic event which took the life of Max Birchfield."

DISCUSSION

Like this case, Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465 involved a trial court's no-duty finding at the summary judgment stage. The Supreme Court summarized the applicable law on both summary judgment and the duty element of negligence:

"A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612 [76 Cal.Rptr.2d 479, 957 P.2d 1313].) In the trial court, once a moving defendant has `shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the...