Sogo v. Garcia's Nat. Gun, Inc.

• Decision Date: 02 March 1993
• Docket Number: No. 92-17,92-17
• Citation: 615 So.2d 184
• Parties: 18 Fla. L. Week. D623 Irma SOGO, as Surviving Mother of Anthony Damaso Sogo, and as Personal Representative of the Estate of Anthony Damaso Sogo, Appellant, v. GARCIA'S NATIONAL GUN, INC., Appellee.
• Court: Florida District Court of Appeals

Page 184

615 So.2d 184

18 Fla. L. Week. D623

Irma SOGO, as Surviving Mother of Anthony Damaso Sogo, and as Personal Representative of the Estate of Anthony Damaso Sogo, Appellant, v. GARCIA'S NATIONAL GUN, INC., Appellee.

No. 92-17.

District Court of Appeal of Florida Third District.

March 2, 1993.

Miguel San Pedro, Miami, for appellant.

Lee, Schulte, Murphy & Eaton, P.A., and Rebecca Greer Tanner, Coral Gables, for appellee.

Before BARKDULL, COPE and GODERICH, JJ.

PER CURIAM.

Irma Sogo, the surviving mother and personal representative of the Estate of Anthony Damaso Sogo, appeals an adverse summary final judgment. We reverse.

According to the amended complaint, defendant Garcia's National Gun, Inc., sold a firearm to Anthony Damaso Sogo on August 5, 1989. According to the amended complaint, Garcia's delivered the firearm to Sogo immediately, in violation of Dade County Code section 21-20.14.1, which requires a waiting period of three working days. Several hours later, Sogo used the firearm to commit suicide by shooting himself in the head.

Irma Sogo, decedent's mother, brought suit against Garcia's on her own behalf and as personal representative of the Estate of Anthony Damaso Sogo. She contended that Garcia's was negligent in selling the firearm to the decedent in violation of the ordinance. The trial court dismissed the amended complaint "with prejudice based on the failure of Plaintiff to state a cause of action and, more specifically, the Court finds that under the particular circumstances set forth in the Complaint, Plaintiff cannot establish a causal relationship between the alleged acts of negligence and the suicide death of the decedent."

Dade County by ordinance prohibits delivery of "a handgun to a purchaser within three (3) working days after the purchase of the handgun." Metropolitan Dade County Code Sec. 21-20.14.1. The ordinance contains a number of exemptions. For present purposes the plaintiff has alleged that the sale took place in violation of the ordinance, i.e., was non-exempt. The text of the ordinance is set out in the margin. ^*

As we understand it, the purpose of the ordinance is to provide a "cooling off" period for persons who attempt to purchase a handgun in order to inflict harm on themselves or others. The idea is to withhold the means of acting on such a plan or impulse by forbidding delivery until the end of the cooling off period. The theory is that in many cases this will prevent the plan or impulse from ever being acted on.

The trial court reasoned that there could be no liability on the part of Garcia's, since the decedent's decision to take his own life was an independent intervening cause. However, as Prosser states:

If the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligent, among other reasons, because of failing to guard against it; or the defendant may be negligent only for that reason.

W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 44, at 303 (5th ed. 1984); see Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54, 55-56 (Fla.1977); Exchange Bank v. Florida National Bank, 292 So.2d 361, 362 (Fla.1974); Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98, 101 (Fla. 3d DCA 1980); Cruz v. Hundley, 371 So.2d 698, 699 (Fla. 3d DCA 1979); Railway Express Agency, Inc. v. Garland, 269 So.2d 708, 710-11 (Fla. 1st DCA 1972), cert. denied, 275 So.2d 14 (Fla.1973); see also Montgomery Ward & Co. v. Cooper, 339 S.E.2d 755, 757 (Ga.Ct.App.1986).

Here, Garcia's is chargeable with knowledge of the Dade County ordinance and the risk that it was designed to guard against. See Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522-23 (Fla.1980). The act of decedent was, by virtue of the ordinance, a foreseeable intervening cause. The complaint therefore sufficiently alleges a causal relationship between Garcia's negligence and decedent's death.

Garcia's next contends that decedent is not a member of the class intended to be protected by the Dade County ordinance. Garcia's argues that the ordinance is intended to guard against the possibility that a purchaser will purchase a handgun and use it on third persons, but not against the possibility that the purchaser may use the firearm on himself. We disagree. In our view the required cooling off period is designed to interrupt a plan or impulse by the purchaser to acquire a handgun to use against himself or others, and the ordinance is directed at both. We conclude that the purchaser is within the class intended to be protected by the ordinance, and find no textual basis in the ordinance to exclude him.

Garcia's contends that the amended complaint did not sufficiently state a cause of action because it fails to plead that there was no exemption applicable to this transaction. We disagree. Under familiar principles, the amended complaint must be construed in the light most favorable to the pleader. Here, the plaintiff has alleged the facts of the handgun purchase and has pled specifically that the transaction was accomplished in violation of Dade County ordinance 21-20.14.1. When plaintiff pleads that the handgun was sold in violation of the ordinance, a fair reading of plaintiff's allegation is that there was no applicable exemption; if there were an applicable exemption, then the ordinance would not have been violated.

For the reasons stated, we conclude that plaintiff's amended complaint stated a cause of...