Chavez v. Glock, Inc.

• Decision Date: 24 July 2012
• Docket Number: No. B230346.,B230346.
• Citation: 12 Cal. Daily Op. Serv. 8309,144 Cal.Rptr.3d 326,2012 Daily Journal D.A.R. 10149,207 Cal.App.4th 1283
• Court: California Court of Appeals Court of Appeals
• Parties: Enrique Herrera CHAVEZ et al., Plaintiffs and Appellants, v. GLOCK, INC., et al., Defendants and Respondents.

207 Cal.App.4th 1283

144 Cal.Rptr.3d 326

12 Cal. Daily Op. Serv. 8309

2012 Daily Journal D.A.R. 10,149

Enrique Herrera CHAVEZ et al., Plaintiffs and Appellants,

v.GLOCK, INC., et al., Defendants and Respondents.

No. B230346.

Court of Appeal, Second District, Division 7, California.

July 24, 2012.

Law Offices of Ian Herzog, Ian Herzog, Santa Monica, Evan D. Marshall and Justin Ehrlich, Los Angeles, for Plaintiffs and Appellants.

Tucker, Ellis & West, Curtiss L. Isler, Bart L. Kessel and Rebecca A. Lefler, Los Angeles; Renzulli Law Firm, John F. Renzulli and Christopher Renzulli for Defendants and Appellants Glock Inc. and Los Angeles Police Revolver and Athletic Club.

Bacalski, Ottoson & Dube, Gary C. Ottoson and Denise M. Serino, San Diego, for Defendant and Appellant Bushnell, Inc.

Schaffer, Lax, McNaughton & Chen, Los Angeles, and Richard P. Dieffenbach for Defendant and Appellant Andrews Sporting Goods, Inc.

PERLUSS, P.J.

Los Angeles Police Officer Enrique Herrera Chavez was shot in the back with his service weapon, a Glock 21, by his three-year-old son, rendering him a paraplegic. Chavez and his wife, Leonora Aduna Chavez, sued the manufacturers and retailers of his gun and its holster for strict product liability and related torts, alleging the Glock 21 is defective because it has a light trigger pull without an appropriate safety mechanism to prevent accidental discharge and the holster fails to sufficiently protect the trigger or properly secure the gun. The trial court granted the motions for summary judgment filed by each defendant. We affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Shooting Incident

Chavez joined the Los Angeles Police Department (Department) in 1996. According to Chavez, he was taught at the police academy an officer should carry a firearm in a ready-to-fire condition both on and off duty. Chavez was particularly influenced by the story of an officer who was shot in her driveway after an assailant had followed her home from the police station.

Chavez was also taught about firearm safety, including the proper way to store firearms at home. For example, the Department's firearms training manual states, “Home Firearms Safety. Many officers maintain personally owned weapons at home for sport or protection purposes. To preclude accidents with firearms at home from occurring with any firearm[ ] which is not under the direct control of an officer, the following precautions must be practiced in addition to the general and specific firearm safety rules. [¶] Separate the ammunition from the weapon. [¶] Store the weapon and ammunition separately out of the reach of children. [¶] ... [¶] If no secure container is available, utilize a trigger lock or disassemble the firearm.”

After completing his training at the police academy, Chavez was issued a Beretta 92F pistol. In 2000 Chavez was assigned to the Newton Division in South Central Los Angeles. About that time Chavez began leaving the holstered Beretta in his truck overnight after he had arrived home and satisfied himself the area was safe. By doing so, the handgun was available for use if Chavez needed it while getting into his truck in the morning and driving to work.

In September 2003 Chavez purchased a Glock 21, which the Department had recently approved as a replacement for the Berretta, from the Los Angeles Police Revolver and Athletic Club (Revolver Club). Subsequently, Chavez purchased from Turner's Outdoorsman an Uncle Mike's Sidekick Ambidextrous Hip Holster manufactured by Bushnell, Inc. The package stated the holster was designed for use with Glock pistols.

Chavez began carrying the Glock 21 as his service weapon after passing a training course. As he had with the Beretta, Chavez carried the Glock in the holster on his Sam Brown utility belt while on duty and then placed it in the Uncle Mike's hip holster when off duty, leaving it under the driver's seat or console area of his truck after arriving home.

In early 2006 the Department recalled the Glock 21 pistols and ordered them tested and, if necessary, repaired before being used on duty. While Chavez's Glock was at the armory for testing, he again used his Beretta as his service weapon.

By end of shift at 6:00 a.m. on July 10, 2006, Chavez had received his Glock back from the armory and made all the adjustments necessary to begin carrying it again. After he left the station, he placed the loaded Beretta with the manual safety decocking lever disengaged on the floorboard underneath the front seat of his truck (a Ford Ranger) and the loaded Glock, which does not have a manual safety device, underneath his leg.¹ He also placed a bag with multiple rounds of ammunition—both for the Beretta and a shotgun—in the back of the truck. When he arrived home, Chavez moved the Glock to a position underneath the center console and left the ammunition and the Beretta where they were because his wife and child were in the house and he “didn't want to deal with it”; he was also tired because he had not slept in two days.

Chavez's dog died shortly after he returned home. In order to transport the dog to the pet cemetery, Chavez had to remove the child car seat from the front passenger seat of his truck; he placed it in his wife's car. When he returned home, he went to sleep, leaving the guns and ammunition in the truck.

Shortly after Chavez awoke the following day, he was notified he had to go to court to testify. Chavez had previously arranged with his parents to provide child care when both he and his wife were at work, so he called his father to arrange to drop off three-year-old Collin. When he went to his truck with Collin, however, Chavez realized he had removed the car seat. He called his wife, who told him the car seat was still in her car. Chavez then concluded the safest place for Collin to ride was the rear passenger fold-down jump seat because the air bags in front could not be deactivated. Although Chavez saw the handle of the Beretta on the floor below the driver's seat where he had left it, he forgot the Glock was also in the truck. Chavez believed the Beretta was beyond Collin's sight line and grasp. Chavez fastened Collin into the jump seat with the seat belt.

Less than 10 minutes later, Collin picked up the Glock and discharged a round into Chavez's back as they were stopped at a red light. According to Chavez, after the force of the shot slammed him against the window, he reached in back to grab Collin but could not reach him. He then reached for the gun, grabbing it and the holster together. As he picked up the holster and gun and held them upside down, the gun slid out of the holster.

The gun shot rendered Chavez a paraplegic. The Department brought a complaint against Chavez for failure to control his firearm, which was sustained. The Orange County District Attorney, however, elected not to prosecute Chavez for child endangerment pursuant to Penal Code section 273a.

In July 2008 Chavez and his wife filed their complaint and on January 8, 2009 a first amended complaint for strict product liability, negligence, breach of implied warranty and loss of consortium. Named as defendants were Glock, Inc., Revolver Club, Bushnell ² and Andrews Sporting Goods, Inc. dba Turner's Outdoorsman (Turner's). The amended complaint alleged, in essence, the Glock 21 is defective as to both design and warnings because it has a light trigger pull (5.5 pounds) yet lacks a safety mechanism to prevent accidental, unknowing or inadvertent discharge. With respect to the holster, the amended complaint alleged it is defective either because the trigger is not sufficiently protected and thus the gun can be fired while in the holster or the holster fails to properly secure the gun so a three-year-old cannot remove it.³

2. The Motions for Summary Judgment or, Alternatively, Summary Adjudication

a. Glock and Revolver Club's motion

i. Design defect

Glock and Revolver Club jointly moved for summary judgment or, alternatively, summary adjudication, contending Chavez could not establish any of the three alleged defects in the Glock 21's design caused his injuries. First, they argued Chavez could not prove a heavier trigger pull would have prevented the accident because he is not able to establish the amount of force Collin exerted on the trigger when he discharged the pistol. Next, they asserted Chavez could not prove a grip safety would have prevented the accident because there is no evidence where Collin's hands were positioned or how he was handling the pistol at the time of discharge. Finally, they asserted a manual safety would not have prevented the accident because Chavez admitted he always stored and carried his Beretta with the manual safety decocking lever disengaged and thus the only reasonable inference is that he would not have engaged a manual safety on the Glock 21 if there had been one. Glock and Revolver Club further argued Chavez's reckless conduct, including leaving loaded guns in his truck and failing to secure Collin in a proper car seat, was the sole cause of his injury.

In addition to asserting lack of causation, Glock and Revolver Club contended Chavez could not establish a design defect under either the consumer expectation or risk-benefit tests as a matter of law: They argued, as a sophisticated user, Chavez knew it was dangerous to store a loaded firearm where his children could reach it, knew children are attracted to and can operate guns and admitted he did not expect manual safeties would make a firearm childproof. They also argued the Glock 21's trigger pull and lack of a manual safety device make it a superior weapon for law enforcement because of the ease and accuracy with which it can be fired.

In support of their motion Glock and Revolver Club submitted the declaration of Emanuel Kapelsohn, a law enforcement firearms instructor and training consultant. According to Kapelsohn, “[T]he handgun designed for law enforcement use must, within...