Diggles v. Horwitz

prove available resources to them. do We answered the only known witness to the not drowning. know exact of location the drown- ing, drowning, the cause of the where the governmental Where the unit has notice mean tide line low is located in the area injury, probable cause, its and the drowned;

where the deceased was we do involved, names and of all addresses not from know which de- direction the requirement party is no the injured that approached groin, ceased prox- the rock give notice within six months inten of an imity of the drowning, whether de- tion to file a claim. County Tarrant Hotel, stay ceased a Galveston or Hosp. (Tex. Ray, Dist. v. S.W.2d 271 whether he came to Galveston because of 1986, App. n.r.e.); Worth writ ref’d —Fort advertising by agency or quasi-agency Mathes, City Denton v. of City of County or of Galveston. Worth writ ref’d —Fort As a of ques- n.r.e.). result these unanswered tions, we do not know who was in control opinion, appellees In our both had actual of part that of the water where the de- drowning, of notice and fact that drowned; determine, ceased not we can as appellants give failed to of formal notice law, a matter of as deceased’s status their claim does not defeat their cause of licensee; business invitee or a and we can action. not determine the appel- extent either of presence Because of the of fact is lees’ to warn the deceased of sues that need to be decided the trial at dangers swimming involved in in the undis- law, may level before we rule on matters putably area we must reverse and remand the cause drowned. a determination of those issues. do appellants not that know did give of appellees either formal notice claim, required by their Tex.Civ.Prac. & However,

Rem.Code sec. 101.101. Vic Lt.

Maceo, the Director of the Galveston Coun

ty Control, Department Sheriff’s Beach in

vestigated the drowning made a writ report

ten Representatives it. City present of Galveston were Lt. DIGGLES, when Marie Linda Freeman Individ Maceo was investigating drowning ually and as Next Friend of the Minor investigated the incident on the Child, city’s Diggles, Appellants, Eddie county’s behalf. Lt. Maceo testi deposition fied on report that the HORWITZ, Phillip Individually and given any other city county depart Phillip’s Shop Pawn d/b/a ment, abrogate fact does not actual Inc., Appellees. charged notice. Lt. Maceo was with the investigation duties of No. impliedly and was 09-87-192-CV. charged disseminating report with Texas, Appeals Court of If interested authorities. this were not Beaumont. so, any department then whose in duties investigating

cluded un accidents Jan. 1989. der the Texas Tort Claims Act could defeat Rehearing Denied Feb. 1989. any against political action the State its making report merely subdivisions placing it in its Ma- file cabinet. Lt. gave report

ceo’s the time and date of the

drowning and the approximate location

where it occurred. described condi surf questions

tion of the and included

OPINION BURGESS, Justice. personal injury involving

This is a case in suicide which a was granted Dig- for the defendants. Claude and, gles problems history had a of mental committed to a early March morn- facility. On the local mental health ing facility and March he left the pur- Phillip’s He Shop. Pawn went .25 Raven Arms semi-auto- chased a caliber he re- time later pistol. matic A short purchase asked to shop turned to the and shop did pawn ammunition. gave him ammunition, the owner sell shop and five left rounds. shooting himself with committed suicide filed suit Appellant gun purchased. against Retarda- Health-Mental Mental Horwitz, shop pawn facility, tion Phillip All de- owner, gun and the manufacturer. for filed and motions fendants answered Summary judgment summary judgment. and granted in of all defendants favor and appellant appeals against Horwitz Arms. THE SUMMARY HORWITZ JUDGMENT judgment summary Horwitz moved for upon following bases: his (1) a suicide and Diggles’ death was his sole cause of intentional death, (2) A to control retailer has firearm, use improper of a (3) does The retail of a firearm sale envi- dangerous a nuisance or create ronment, (4) allegations creating a nuisance constitute environment mat- question, political non-justiciable legislative preroga- solely within the ters and, tive, would constitute upheld, Radford, Jamail, George C. M. Wendell separation of the doctrine violation Beaumont, appellants. for exercise powers and an unconstitutional powers would violate Beaumont, police Gaultney, A. David Marc States Sheiness, Houston, amendment of United Henley, F. Mi- second Garland arms), Houston, to bear appellees. (right D. Constitution Curry, chael (5) allegations Appellant can form no basis for argues there are fact relating issues to both prod- ordinary negligence because defect liability. agree and strict as to alleged. ordi uct nary negligence. There are fact issues as judgments Summary must stand on their selling gun giving whether merits, own and a non-movant's failure to ammunition to the negli deceased was default, supply, by cannot answer summa gence. agree not do as to the strict ry proof judgment to necessary establish a liability. Appellant’s liability theory strict McCormick, Lee v. right. movant’s 647 upon is activity based an ultrahazardous 735, (Tex.App. S.W.2d 738 —Beaumont and a failure to warn the seller as to the 1983, writ). moving no A defendant dangers product. of the The definition of summary judgment has the burden of dangerous” “unreasonably extend showing there are no material issues of marketing ed to include a consideration of fact as to all elements of his affirmative in Clancy Corp., v. Zale techniques 705 Traylor v. Orange, United Bank defense. 1986, 820 (Tex.App. S.W.2d writ —Dallas 802, (Tex.App. 675 S.W.2d 804 —Beaumont n.r.e.). ref’d The manufacture sale a of 1984, n.r.e.). ref’d writ Suicide as the sole handgun recognized has not been as an cause is an affirmative defense under TEX. in Texas. Robert activity ultrahazardous CIV.PRAC. & REM.CODE ANN sec. 93.- Co., Grogan son v. Inv. 710 S.W.2d 678 001 (Vernon Supp.1989). This is consistent and Ells (Tex.App. 1986, writ) no —Dallas in Exxon supreme holding with our court’s Co., Bishop Jewelry worth v. & Loan 742 Corp. Brecheen, v. 519, 526 S.W.2d 524 533, 1987, (Tex.App. S.W.2d 536 —Dallas (Tex.1975) recognized where the court denied). the writ general rule that suicide constitutes in THE RAVEN ARMS

tervening force that breaks the line of cau SUMMARY JUDGMENT wrongful sation from the act to the death. however, adopted The court Raven summary judg- also RE Arms moved for upon ment following bases: STATEMENT sec. TORTS (1965) (1) 455 which Diggles’ modifies suicide as an death was suicide and his absolute alleges bar. intentional act was sole Horwitz cause of his death, motion, by thus the affirmative no Raven could defense in his be he cause, proximate no cites authorities nor any summary judg proof (2) ment support duty his brief in Raven Arms had no to warn of dangers motion. which are supported The motion obvious and common- by must be known, ly proof. Chan summary judgment its own Bank, dler v. El Paso Nat’l (3) 589 Arms duty S.W.2d Raven had no to control improper firearms, 835 use of Paso no —El writ). summary The motion for judgment (4) All those nuisance and en- Barrow v. Cat only Jack’s is pleading, Horwitz, grounds urged vironment Inn, 641 624 (Tex.App. S.W.2d fish —Cor pus 1982, writ), pleadings Christi (5) no do alleged. No defect is proper summary judgment constitute presented summary Arms Raven no Bd. Annuity evidence, Shouse the S. judgment evidence on the de affirmative Baptist Convention, (Tex. Thus, fense of suicide as a sole cause. writ). App. Corpus Christi no Like — summary judgment upheld cannot be on wise, urge possible he did not this as a can, however, upheld this basis. ground granting summary for the summary judg another basis. There was judgment in his brief to this court. He ment all evidence that Raven Arms did was authorities, presented argument, nor handgun manufacture it deliver pointed any summary judgment proof. out sold wholesaler who it Horwitz. The Thus, summary judgment cannot be handgun sale of the is not an ultrahazard Ellsworth, ground. sustained on this activity, ous 742 S.W.2d at 536. Appellant Diggles Raven used pistol contends Arms wound. Claude duty handgun its to warn sellers pistol normally breached as a functioned However, selling handguns. thereafter, and, hazards it is loaded functions when hazards is no to warn of trigger pulled. When actually Hagans known. obvious v. purchased handgun appeared he alto- Co., 576 Oliver Mach. F.2d Cir. gether normal, anyone, or as normal as 1978). submitted Horwitz’ appeared very he calm. He stated he deposition wherein he testified he knew of handgun protection of for the wanted handguns, dangers he knew handgun of this his home. The retail seller in selling exercise extreme caution should purchase directly from Raven did not handguns, guns knew and he not to sell in a Arms, handgun not sold Inc. The intoxicated, someone who was insane or loaded condition. acting strangely. Raven in its mo granting shown, summary judgment, tion for has Arms, Inc., inas correct for Raven law, duty a matter of no it breached. suicide Diggles’ much as Claude summary judgment The as to is Horwitz the Arms intervening act for which was an reversed. The as to record, liable, this company was not under Arms Raven is affirmed. in is as rule Texas a matter of law. The suicide PART, well established that an intentional IN

AFFIRMED IN REVERSED line the intervening is act which breaks an PART. connection be the causal causation or BROOKSHIRE, concurring. Justice the wrongful act and allegedly an tween wrong for the in a suit death of decedent readily cordially concurs The writer Brecheen, Corp. v. ful Exxon death. See disposition in of the made the case Exxon, (Tex.1975). su In 526 S.W.2d 519 Arms, Tragically, Inc. Court as to Raven wrote, at pra, Supreme Court Texas on Claude committed suicide page 523: posture appeal March 1984. The brought The no under Appellants is this: filed written is “Where an action Arms, general rule response to Inc.’s amended wrongful Raven statute the death intervening summary judgment. Ap- motion for an is that suicide constitutes pellants allegations in had made several of causation the line force which breaks Arms, Inc., petition their Raven wrongful act to the death from liable, liability generally, products under wrongful ren- act does not therefore the liable_” laws. civilly der defendant Appellants’ posture appeal is that acts, act, wrongful But a certain handgun unreasonably question in whereby the produces frenzy a rage or warnings. is dangerous for lack of That committing so devastat- person suicide was Appellants that the as- only contention wrongful injured by the defendant’s ingly effective, challenge No efficient sert here. and, thereafter, destroys himself or acts any Appellants is made rage in resulted during herself such grounds by Raven other asserted wrong- impulse, an then uncontrollable summary judg- for Inc.’s amended motion may ful act or actions of defendant compa- ment which would entitle the as within the the correct case considered legal ny No other summary judgment. from the defendant’s line of causation is theory or cause action wrongful and actions to suicide. acts Arms, Inc., against Raven in this advanced This simply is not our case here. That handgun appeal other than general appeal definitely falls within unreasonably dangerous an hand- rendered glaringly is that Raven rule. clear warning. gun lack solely Arms, Inc., illness not cause a mental did it rage nor did cause nor did it cause a Appellants’ dispute that the

There is bring uncontrol- frenzy nor decedent, his did about Diggles, met death Claude Arms, Inc., Hence, impulse. pistol Raven self-inflicted shot lable a result of a

843 simply not Diggles’ tragic liable for Mr. See Ramsey, Hulsebosch v. suicide; Arms, Inc., Raven was entitled to (Tex.Civ.App. [14th Dist.] —Houston summary judgment. See TEX.CIV. writ). PRAC. & REM.CODE ANN. sec. 93.001 above, For the reasons set out I cordially (Vernon Supp.1989). join opinion in the of the Court as to Raven Furthermore, Arms, Inc., as a Arms, Inc. manufacturer, solely the role of a

manufacturer, does not have any plain

warn when and ordinary dangers actually obvious and are known to the

injured person Hagans v. Oliver involved. Co., (5th Cir.1978);

Mach. 576 F.2d 97 Met

al Magnusen, Window Products Co. v. S.W.2d [14th —Houston n.r.e.); writ ref d RESTATE Dist.] SHELDON POLLACK TORTS, MENT 402A, Sec. CORPORATION, Appellant, (1965). j Also, comment warning is not required in the case where the user has special knowledge or knowledge sufficient TEXAS, PIONEER CONCRETE OF experience expertise concerning the INC., Appellee.

product’s ordinary dangers. Martinez v. No. 05-88-00065-CV. Carriers, Inc., Dixie 529 F.2d 457 Cir.1976). ignorant was not Texas, Appeals Court of potentialities handgun. A warn Dallas. ing by the company, under this record, would have been of no effect. In Jan. 1989. fact, pistol involved, being a .25 caliber Rehearing Denied March 1989. weapon defective, was not nor was it un reasonably dangerous. RESTATEMENT TORTS, 402A, Sec. com i.j.. See,

ments generally, Patterson v.

Gesellschaft, (N.D.Tex. F.Supp.

1985). present Under precedents decisional State,

in our cannot be a products

based liability, upon prod liability

ucts theory, product, unless the

itself, contains a defect. Professor Pros-

ser, an authority eminent in the law

Torts, Torts, writes in The Law of

Ed.1971), discussing certain essential ele products liability

ments of recovery, at

page 659: must, however,

“There something be

wrong product with the which makes

unreasonably dangerous to those who ordinary

come in contact An with it.

pair of shoes does not unreason- become

ably unsafe because the soles become wet; slippery

somewhat when nor is danger

there unreasonable in a hammer

merely because it can mash a thumb. quite

Knives and axes would useless they did not cut.”

Case Details

Case Name: Diggles v. Horwitz

Court Name: Court of Appeals of Texas

Date Published: Jan 26, 1989

Citation: 765 S.W.2d 839

Docket Number: 09-87-192-CV

Court Abbreviation: Tex. App.