Smith ex rel. Smith v. Bryco Arms

• Decision Date: 27 July 2001
• Docket Number: No. 20,389.,20,389.
• Citation: 131 N.M. 87,33 P.3d 638,2001 NMCA 90
• Parties: Patrick Glenn SMITH and Jeanne Louise Smith, individually and as natural parents and next of kin of Sean Patrick SMITH, Plaintiffs-Appellants, v. BRYCO ARMS, Jennings Firearms, Inc., (NV), a/k/a B.L. Jennings and Jennings Firearms, Inc., (CA), Defendants-Appellees.
• Court: Court of Appeals of New Mexico

33 P.3d 638

131 N.M. 87

2001 NMCA 90

Patrick Glenn SMITH and Jeanne Louise Smith, individually and as natural parents and next of kin of Sean Patrick SMITH, Plaintiffs-Appellants, v. BRYCO ARMS, Jennings Firearms, Inc., (NV), a/k/a B.L. Jennings and Jennings Firearms, Inc., (CA), Defendants-Appellees.

No. 20,389.

Court of Appeals of New Mexico.

July 27, 2001.

Michael G. Rosenberg, Rosenberg & Associates, P.C., Albuquerque, NM, Brian J. Siebel, Center to Prevent Handgun Violence, Washington, DC, for Appellants.

Sally Ann Hagan, J.D. Behles & Associates, a Commercial Law Firm, P.C., Albuquerque, NM, for Appellees.

OPINION

BUSTAMANTE, Judge.

{1} In this case we consider, under theories of strict products liability and negligence, the liability of the manufacturer and distributor of a .22 caliber handgun, referred to as the J-22, for the accidental shooting of an Albuquerque boy, 14-year-old Sean Smith (Sean), by his 15-year-old friend D.J. Valencia (D.J.). The trial court granted summary judgment to the gun manufacturer, Defendant Bryco Arms (Bryco), and to the gun distributor, Defendant Jennings Firearms, Inc. (NV), a/k/a B.L. Jennings and Jennings Firearms Inc. (CA) (Jennings).

{2} Plaintiff raises strict products liability and negligence theories of recovery against Bryco and Jennings. Both theories are predicated upon the fact that the J-22 handgun does not incorporate a "magazine-out safety," a "chamber load indicator," or a written warning on the gun itself alerting users that the J-22 can fire even though the magazine has been removed. The issues on appeal are (1) whether the court erred in ruling that, as a matter of law, Bryco and Jennings were not negligent because they had no duty to incorporate the safety features described above; (2) whether the trial court erred in ruling that, as a matter of law, the J-22 does not present an unreasonable risk of injury for purposes of strict product liability; and (3) whether Plaintiff came forward with evidence sufficient to raise a genuine issue of material fact that the failure to incorporate the above safety features was a proximate cause of Sean's injury. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

{3} The shooting occurred on January 29, 1993, at Sean's house. No parents were home at the time. Sean, Michael Brummett (Michael) age 15, and Brian Romero (Brian) age 16, were at Sean's house. The three boys decided to go out to get some food. While they were out, Michael legally purchased the J-22 handgun and ammunition for $40 from an individual identified only as Bernard. The sale occurred in a parking lot in Albuquerque. While purchasing the gun, Michael examined the chamber and saw it was empty and asked to see the ammunition magazine. Michael inserted the magazine into the gun and purchased it. The three boys examined the gun in the car. When they got back to Sean's house, the boys again examined the gun. Michael put the gun and magazine clip in his jacket, brought it into the house, and took the gun with him into the bathroom. At some point, Sean also called D.J. to come over. Michael removed the magazine and kept it with him in the bathroom while the other boys passed the gun around in the livingroom. Sean, D.J., and Brian testified that they thought the gun was unloaded and would not fire with the magazine out. The boys testified that they did not realize that a bullet might remain in the chamber even though the magazine had been removed. When the gun was passed to D.J., he "stupidly" pulled the trigger and unintentionally shot Sean as Sean was talking on the telephone, hitting him in the mouth and seriously injuring him.

{4} Sean and his parents, Patrick and Jeanne Smith (Plaintiffs), initially filed a complaint to recover damages for personal injury, alleging that the parents of D.J., Michael, and Brian were negligent for failing to supervise the boys properly. The complaint was then amended to name the three boys and their parents, alleging negligence of minors, negligence as a matter of law, vicarious parental liability, and parental negligence. The complaint was amended a second time to add Bryco, the manufacturer of the J-22, and Jennings, the distributor of the J-22. The second amended complaint alleged that Bryco and Jennings were liable in strict products liability and negligence for manufacturing and distributing a product defective because of inadequate warnings and their failure to incorporate feasible safety devices into the design of the J-22 gun that would have prevented Sean's injuries. The claims against the minors and their parents were settled, leaving Bryco and Jennings as Defendants.

{5} Bryco and Jennings filed separate motions for summary judgment. After full briefing and a hearing, the trial court issued a Decision Letter and granted summary judgment in favor of Defendants. The Decision Letter reads as follows:

As a matter of law I do not think that Defendants were either negligent in the manufacture of the gun, nor do I think they are liable under strict products liability. It is not alleged that the gun in question had a defect which caused the injury. The gun operated exactly as designed. Handguns are intended and designed to be deadly weapons. The fact that they are capable of being misused, and are in fact often misused, does not render them defective.

This lawsuit against gun manufacturers is another attempt to outlaw or severely restrict the manufacture of a product using the tort law. In my opinion such efforts are better left to the legislative branch of government. If the legislature wants to require all manner of safety devices or warnings they may do so. It should not be for the courts and juries to make that law on a case by case manner. If this is a case for extending the tort law, it should not be done by this Court. A significant change in the law, as is advocated by Plaintiffs in this lawsuit, should be made, if at all, by the Supreme Court.

STANDARD OF REVIEW

{6} If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law, then summary judgment should be granted. Rule 1-056(C) NMRA 2001; Paca v. K-Mart Corp., 108 N.M. 479, 480, 775 P.2d 245, 246 (1989). Summary judgment, however, is a drastic measure that should be used with caution. Knapp v. Fraternal Order of Eagles, 106 N.M. 11, 12, 738 P.2d 129, 130 (Ct.App.1987). "In deciding whether summary judgment is proper, a court must look to the whole record and view the matters presented in the light most favorable to support the right to trial on the merits." Cunningham v. Gross, 102 N.M. 723, 725, 699 P.2d 1075, 1077 (1985). We review questions of law de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582.

DISCUSSION

{7} As reflected in its Decision Letter, the trial court applied a restrictive definition of defect. In the trial court's view, a defect consisted of a flaw in the fabrication of the particular J-22 involved in this case. The trial court reasoned that here, the J-22 functioned exactly as it was designed to do: when D.J. pointed the gun at Sean and pulled the trigger, the J-22 fired. Thus, under the trial court's restrictive definition of defect, the J-22 was not defective. The trial court relied on Plaintiffs' failure to show a manufacturing defect which resulted in a malfunction.

{8} The trial court's unwillingness to consider possible design and warning defects sidestepped the true gravamen of the Plaintiffs' case: that the gun as designed was defective because it did not incorporate available and economically reasonable design features and warnings which would have prevented the shooting. See Fernandez v. Ford Motor Co., 118 N.M. 100, 109, 879 P.2d 101, 110 (Ct.App.1994) ("Under Section 402A, there are three types of defects: manufacturing defects, design defects, and warning defects."). Apparently viewing the application of normal products liability and negligence concepts to handguns as a significant change in the law, the trial court deferred to our Supreme Court for action. Characterizing Plaintiffs' action as an attempt to "outlaw or severely restrict" the manufacture of guns, the trial court also opined that the legislature is the most appropriate forum for any remedy. We address this concern first and then consider whether our general products liability and negligence law adequately encompasses Plaintiffs' cause of action.

{9} The notion that the courts cannot speak in the area of products liability without legislative guidance has been considered and rejected by the New Mexico Supreme Court. In Brooks v. Beech Aircraft Corp., 120 N.M. 372, 382, 902 P.2d 54, 64 (1995), for example, the Court explained that the standards for measuring strict liability and negligence are the general and traditional rules of relevance and materiality for all evidence upon which unreasonable risk of harm and negligence are to be decided, unless the legislature has preempted the application of these principles with specific statutory product requirements. As such, New Mexico courts have long held manufacturers and distributors responsible in strict liability or negligence for failing to include safety devices in their products. Id. at 383, 902 P.2d at 65 (failure to include shoulder harness in aircraft); see also Cleveland v. Piper Aircraft Corp., 890 F.2d 1540, 1556 (10th Cir.1989) (failure to include rear seat visibility and shoulder harness); Fabian v. E.W. Bliss Co., 582 F.2d 1257, 1260-61 (10th Cir.1978) (failure to include punch press guards); Fernandez, 118 N.M. at 109-12, 879 P.2d at 110-14 (failure to include back-up alarm on tractor and trailer); and Salinas v. John Deere Co., 103 N.M. 336, 341, 707 P.2d 27, 32 (Ct.App.1984) (failure to include "corn saver" in combine).

{10} All parties in the chain...