*1 but paid accrued and interest on amount, according Section Attorney’s
408.064. fees un- awarded not subject der this subsection are (i). 408.221(b), (f), Sections 408.147(c) (Vernon § Tex. Lab.Code Ann. added). Supp.2002) (emphasis The statute unambiguous attorney’s is clear are fees recoverable when insurance disputes finding. carrier a commission provision no recovery There is for the attorney’s employee fees dis- when Therefore, finding. putes commission the trial court acted without reference to
any guiding principles. rules and See Downer, 241-42; Amador, at at sustain No. 133. We Issue
Four.
Having Issues overruled No. One Three, through portion we affirm that the trial court’s judgment. Having sus- Four, Issue
tained No. we reverse and attorney’s render award of fees. Sr., Individually PEREZ, Alberto and as Representative Personal of the Estate Perez, Jr., Deceased, Appel of Alberto lant/Cross-Appellee, Lopez,
Albert LOPEZ and Rachel Appellees/Cross-Appellants.
No. 08-00-00242-CV. Texas, Court of Appeals El Paso. 7, 2002. March *4 Dallas, Turley,
Linda appellants. for Myers, Hughes, H. Keith Steven L. Mounce, Green, Galatzan, Myers, Safi & Paso, El appellee. for BARAJAS, C.J., Before Panel No. 3 LARSEN, CHEW, and JJ.
OPINION BARAJAS,
RICHARD Chief Justice. wrongful from a appeal This is a double arising and action from the death survival son, Appellant’s death of minor Alberto Perez, trial, alleged At Appellant Jr. Appellees, Key owners of Lock and ABC Company, negligent picking were trigger locked lock on a bolt action 30.06 rifle, request, pa- at the minor’s without knowledge, permission, rental consent or returning operational and then rifle to who used it to commit suicide. the minor stated, For the reasons we reverse the trial court. judgment of I. it, THE although SUMMARY OF EVIDENCE found he knew minor his son visiting day. would be his house that same Perez, (“Albert”), minor, Alberto Jr. a day, Later that the minor took the rifle Appellees/Cross-Appellants, contacted Al- and committed suicide. bert Lopez Lopez, and Rachel owners of Paso, Key Company ABC Lock and in El Appellant brought negligence action Texas, if they and asked could make a new against Appellees sought damages key for the lock on rifle because anguish mental and loss of companionship. key he did not have a to the lock. Rachel jury The returned a verdict finding that told him that she could not make a new Appellees both negli- were key, but that she could pick the lock for gent negligence and that their a proxi- him if he brought the unloaded rifle to her jury mate cause of Albert’s death. The shop and proper had identification. Albert percentages allocated of responsibility as took the unloaded rifle and his driver’s Lopez, thirty-four percent follows: Albert Appellees’ license to store. Rachel and (34%), Lopez, thirty-three percent Rachel “joking Albert were around” about what (33%), Alberto, Sr., thirty-three per- he intended gun. to do with the She (33%). jury cent damages found no *5 asked, “You’re going go out there Alberto, past Sr.’s or future loss of anybody?” and rob responded, Albert no companionship damages and for his “No, I just go want to hunting.” Rachel past or anguish. jury future mental The stated that Albert started laughing after Appellees grossly negligent failed to find exchange. jury as well. The the estate of awarded Alberto, Jr., $5,000 for funeral and burial Lopez, co-owner of ABC Lock a Motion to Key, expenses. Appellees and filed Dis- eigh- knew that Albert was not teen, regard Jury Judg- and Enter Answers verify so he called his home to that Verdict, Notwithstanding ment which proper he in possession weapon. was of the answered, by was overruled of the trial court. answering No one no order machine Trial, call, Appellant filed Motion for picked up his New and he was never able by which verify operation was overruled law. proper whether Albert was Nevertheless, parties appeal. Both issues on possession bring of the rifle. Ra- picked chel the lock after her husband II. DISCUSSION
instructed her to do so and returned the n Appellantbrings rifle to the minor after the fee was paid. $4 and Appel- four issues bring lees one cross-issue. We address The record that Appellant shows discov- them in turn below. (which belonged ered the rifle to his older son) in his house about a week before the Insufficiency A. Factual Nonetheless, Appellant suicide. did not newly remove discovered rifle or oth- An “insufficient evidence” or fac by erwise it insufficiency finding secure from access his minor tual issue involves a son, Albert, suicide, day weight of the against great Jr. On is so and preponderance he took the rifle to work with him the evidence as to be because several interested in factual pur- manifestly wrong. co-workers were The test for chasing it. He that the in In re insufficiency discovered issues is set forth Estate, 662, Appellant King’s lock had been removed. took 150 Tex. S.W.2d (1951). 660, supervisor reviewing the rifle home after his him an issue told 661-62 asserting finding against that he could not leave it at work. He that a it great weight preponderance returned under the bed where he had and evidence, that after his Appellant evi- testified son’s we must consider all of the dence, death, both the evidence which tends to sleeping through he had trouble fact, prove the existence of a vital as well he some night. He admitted that had disprove as evidence which tends to its to his son’s psychological problems prior It jury existence. is for the to determine Dr. seeing death and had been Ambrose testimony weight given to be to the Appellant testified that Aboud. Dr. Aboud and to resolve evi- conflicts depressed that he was after complained Goatcher, dence. See Carrasco Appellant Albert’s death. He stated that 772 (Tex.App.-El Paso sadness, crying, as symptoms related such writ). jury’s finding no should be appetite, difficulty sleeping, and loss if there probative sustained is some evi- early morning awakening. Dr. Aboud de- support provided dence to it and it is not Appellant depressed termined that was against great weight preponder- prescribed medication. The medi- Thus, ance of the evidence. See id. Appellant’s depres- cation did not “cure” cannot our judgment substitute for that of sion and Dr. Aboud offered to refer him to the fact finder even if we a fact con- find Dr. psychiatrist. Appellant indicated to If, trary to that jury. found howev- go Aboud that it would be a shame to to a er, the contrary great verdict is so to the psychiatrist; sign it weak- weight preponderance of the evidence Dr. ness or failure. Aboud stated unjust, to manifestly as be the issue should until his depressed remained be sustained. him July, office visit with 1998. last In Issues No. Ap One and Two Perez, Appellant’s daughter, Irene testi- *6 pellant complains Alberto Perez Sr. that forget- fied that father was distant and her jury’s damages the verdict of no for mental ful since her brother’s death. She stated anguish past in the and future and no very prior that he was active to the death. damages for companionship loss of and that he to yard Ms. Perez stated used do society contrary to the overwhelming work and work on cars but that he had “let weight of the evidence contrary or to the go.” most of that stated that he looks She argue uncontroverted evidence. Appellees now, lot, very aged tired has a and does Appellant that seeks to revive the “zero rule,” not eat as much as he used to. Ms. Perez damages which requires jury the to an ex- something Appellant award also testified that had every for element of damages proven.1 tremely sleeping. hard time 411, Lowery Berry, reversing judgment jury 1. In a 153 Tex. 269 In based on find- (1954), upheld S.W.2d 795 the Court a deci- ings damages past physical pain of zero Appeals reversing of the Court sion of Civil a Ap- anguish, the and mental Dallas Court of judgment nothing that a minor take based on peals appropriate the of re- stated standard finding jury damages of no because the Grider, 811, view in Monroe v. 884 S.W.2d undisputed facts disclosed that the minor had 1994, denied). (Tex.App.-Dallas writ In 820 damages accordingly suffered and the answer analysis, we all of the our are to consider disregarded. jury of the should be The "zero evidence, contrary both favorable and to damages damages. rule” not a rule is of findings, and and remand for a new reverse Rather, challenge it is common name for a against great only the verdict is so trial if negative jury findings damages to as to based weight preponderance and of the evidence weight great preponderance on evidence, of the unjust. Kings manifestly In re that it is See requires appellate which court 660, Estate, 662, 244 661 150 Tex. S.W.2d considering to follow standard rules in (1951). challenge. 66 jury judge
The is the sole of credi that of demonstrate an abuse discretion bility Downer, and it is within their province to has 701 occurred. See S.W.2d at weigh any the evidence and resolve con 242 (citing Southwestern Bell Telephone heard jury testimony flicts. from nu (Tex. Johnson, v.Co. 389 S.W.2d it merous witnesses and was their function 1965)). judgment A error of mere is not reject any, part, to or accept or all of an abuse See of discretion. v. Mar Loftin testimony witnesses’s the evidence. tin, (Tex.1989). 145, 146 776 S.W.2d We cannot substitute our conclusions for jury certainly those of the and it not Evidentiary Error 1. province
within the of this Court to inter Three, Appellant In No. ar Issue fere jury’s with the resolution of conflicts gues court erred the trial sustain pass to on weight the evidence or objections ing questions Appellee to Al credibility testimony. of the witnesses’s Lopez regarding knowledge bert his of evidence, of the considering all dowe posed operational risks an by providing not contrary find the verdict to be so firearm to Appellees a minor. assert great weight preponderance by failing error has waived manifestly unjust. evidence as to be Is proof to make an how showing sues are offer No. One and Two overruled. have answered the Lopez would B. Abuse of Discretion proffered this questions and Court
Standard
Review
cannot
determine whether
exclusion of
level of
evidence rises to the
harmful
“A [party] who attacks the rul
ing
agree.
error. We
trial
as an
of a
court
abuse of discre
tion
heavy
labors under a
burden.” John
concerning
error
preserve
To
son v. Fourth
Appeals,
Court
evidence, the complaining
the exclusion of
(Tex.1985)
916, 917
(orig.proeeed-
party
actually offer the evidence and
must
ing). The test for abuse of
discretion is
ruling
secure an
from the court.
adverse
whether,
Court,
opinion
this
Garza,
See
Johnson v.
facts present
appropriate
an
case for
denied).
1994, writ
(Tex.App.-Austin
*7
Rather,
trial
actions.
ques
court’s
it is a
may
court
be
to
reviewing
While
able
tion
the court
of whether
acted without
discern
the nature of the
from the record
any guiding
reference to
princi
rules and
of
propriety
evidence
the trial
and
ples.
v. Aquamarine Opera
See Downer
proof,
of
court’s
an offer
ruling, without
tors, Inc.,
238,
(Tex.1985),
701 S.W.2d
241-42
can never
whether exclusion of
determine
denied,
1159, 106
rt.
476 U.S.
S.Ct.
ce
Thus,
harmful.
evidence was
when
2279,
(1986);
67 definitions, to and instructions proof explained questions, in Anderson the offer is may and the jury, 695 320 to the court Higdon, (Tex.App.-Waco given v. S.W.2d be n.r.e.): 1985, thereof, may writ ref d or a or refuse give part them them, may proper. be See excluded, give as to When tendered evidence is The court shall submit P. 273. testimony whether of one’s own witness Tex.R. Civ. definitions as shall testimony direct examination or such instructions and on opponent’s jury on to to render proper witness cross-exami- be enable nation, in to later it is Civ. P. 277. complain order verdict. See Tex.R. Further necessary complainant more, for the to make questions, the court shall submit the proof exception instructions, an offer of on a bill of to raised definitions that are and testimony what show the witness’ and the evidence. pleadings [sic] the written Otherwise, Smith, have 278; would been. there Elbaor Tex.R. Civ. P. v. See nothing to appellate (Tex.1992). before court 240, An in 845 S.W.2d (1) in the court’s show reversible error trial only if it proper struction is assists the ruling. (3) (2) law, jury, accurately states and evi support pleadings finds in the 325; also, Works, Wyler Id. at see Indus. McReynolds v. Garcia, (Tex. dence. See First 494, Inc. v. 999 S.W.2d Office (Tex. Management, 948 Paso App.-El pet.). no writ). 1997, no The trial court App.-Dallas Appellant While Counsel for stated what submitting has considerable discretion Lopez, would she have asked she never instructions definitions explanatory made an offer he proof showing how jury to render a verdict. See enable proffered ques- would have answered the Bell, Mobil Chemical Co. answers, tions. Without those we cannot (Tex.1974). 245, 256 determine whether the evidence excluded can be the basis for reversible error. Is- jury to have in- Appellant sought Three sue No. is overruled. per on se a result of negligence structed as of Texas Penal Code Appellees’ violation Jury 2. Instruction Error 46.01(3) 46.06(a)(2). See Sections Tex. Four, Issue No. con (Vernon 46.01, §§ 46.06 Ann. PeN.Code refusing tends that the trial court erred 46.06(a)(2) 1994). provides:. Section requested per to tender his se negligence (a) person A an offense if the commits Appellees instruction. maintain that person: requested this apply instruction did agree. case. We (2) sells, knowingly intentionally charge We review the court’s *8 rents, leases, sell, gives or or offers to an of
under abuse discretion standard. rent, lease, any younger to give or child Texas Human v. Dep’t See Services of firearm, club, years any or ille- than 18 (Tex.1990). E.B., 647, The 802 S.W.2d 649 knife; gal court’s to requested trial failure submit a 46.06(a)(2) (Vernon § Tex. Pen.Code Ann. will error instruction constitute reversible 1994). defined follows: A firearm is as probably if the failure caused the rendition made, Tex.R.App. adapted or improper judgment. any designed, of an See device 44.1(a)(1); by King, expel projectile through a a barrel P. Sanchez v. 932 S.W.2d to writ). 177, explo- 1996, using energy generated by Paso an (Tex.App.-El 182 no may or substance or device provides party burning Rule 273 that either sion readily to written convertible to use. present request the court 68 46.01(3) (Vernon § mi- creating dangerous a situation for the
Tex. Pen.Code Ann. 1994). nor and others. components The proximate of
Appellant asserts
a child
was
foreseeability.
cause
in fact and
are cause
age
eighteen
under the
of
and falls within
Dallas,
Boys
Doe v.
See
Clubs Greater
persons
protect-
the class of
intended to be
of
Inc.,
472,
(Tex.1995);
907
477
Tra
S.W.2d
by
argues
ed
the statute.
Appellant
94,
v. City Mesquite,
vis
830 S.W'2d
98
proved
because he
a violation of the stat-
of
(Tex.1992).
es
These elements cannot be
ute, that the rifle would not fire with the
by
conjecture, guess,
tablished
mere
trigger
in place,
capable
lock
but was
of
speculation. See McClure v. Allied Stores
firing
projectile
Appellees
a bullet or
after
(Tex.
Texas, Inc.,
901, 903
608 S.W.2d
lock,
Ap-
removed the
and because
of
Co.,
1980); Farley
529
v. MM Cattle
pellees
age
knew Albert
under the
was
751,
(Tex.1975).
S.W.2d
755
The test is
eighteen,
in refusing
the trial court erred
negligent
whether the
act or omission was
to submit the instruction.
pro-
inju
bringing
a substantial factor in
about
vides
authority
support
no
to
this conten-
have
ry, without which the harm would not
tion and
any.
we are unaware of
Doe,
occurred. See
at 477.
907 S.W.2d
Nonetheless,
Supreme
the Texas
Court
in fact
if
Cause
is not shown
the defen
every penal
has held that not
statute cre
more than furnish
negligence
dant’s
did no
appropriate
ates an
standard of
care
injury possible.
a condition which made the
therefore,
liability
civil
purposes;
a court
117, 120
Campbell,
See Bell v.
434 S.W.2d
is not required
adopt
penal
statute’s
(Tex.1968).
Foreseeability requires that
Merritt,
standard.
See Smith v.
940
have
person
ordinary intelligence
should
(Tex.1997)
602,
(citing
S.W.2d
607
Carter
negli
anticipated
danger
created
Son, Inc.,
William Sommerville &
584
v. Mr.
gent act or omission. See Nixon
274,
(Tex.1979);
S.W.2d
278
Rudes v. Gott
Co., Inc., 690
Property Management
schalk,
552,
201,
159 Tex.
324 S.W.2d
(Tex.1985);
546,
Duran v.
S.W.2d
549-50
(1959)). Thus,
fail to
trial
find that the
Inc., 921
Supermarkets,
Furr’s
court
any guid
acted without reference to
1996, writ de
(Tex.App.-El
Paso
ing
principles
rules and
and did not abuse
nied).
danger
injury
is foreseeable
failing
Appel
its discretion in
to submit
reasonably
general
might
if its
character
requested
lant’s
instruction.
Issue No.
Nixon, 690
anticipated.
have been
See
Four is overruled.
550; Duran,
at 790.
S.W.2d at
921 S.W.2d
“might reason
injury
It asks whether the
C. Cross-Issue
ably
...” as a
contemplated
have been
conduct.
result
defendant’s
cross-issue,
In
Appellees
their sole
McClure,
found J., LARSEN, Dissenting. shooting constituted an extraordi- wart’s conclusions disagree I with several normal, nary, sequence not a events here, and there- majority reached was initiated after Kmart’s sale respectfully I dissent. fore must ammunition. See id. at 785.
70 sufficiency
Factual 1991). of zero (Tex.App.-Dallas 225 We are damage findings not entitled to merely reverse we because conclude more supports evidence an affir First, in detailing the evidence on Alber- finding. mative Rather, Id. at 226. only to Perez Sr.’s anguish mental- and loss of great evidence, where the weight of the companionship son, society of his the preponderates verdict, against jury’s the majority recites no evidence supporting may we reverse and remand trial. for new jury’s the finding of zero damages. In- Id. This variously standard is formulated stead, (and all evidence listed all that solic- as where the con verdict shocks the trial) ited at supports a finding that Mr. science, clearly unjust, clearly is indi Perez suffered terribly following his son’s Co., cates bias. Pool v. Ford Motor 715 suicide, any as almost parent would. The (Tex.1986). I conclude majority opinion simply recites the defer- the evidence here meets the Pool ential standard apply in determining standard, and indeed I discern no evidence factual sufficiency evidence, then supporting jury’s the decision award no engage fails to any analysis in of what damages on the elements of mental an evidence supports jury’s the damage find- guish in companionship and loss of this ings prevents them being from mani- case. Using appropriate standard for festly unjust. I Indeed, can find none. issue, analyzing the I Per would sustain defendants in response their only brief cite ez’s Issues No. One and Two. two pieces of evidence that might support jury’s failure damages: to award Negligence per se plaintiff suffered depression and sought prior suicide, treatment to his Similarly, son’s its discussion of Issue No. divorce, Four, that after parents’ his analyze majority only Jr. not fails to week, lived with during case, his mother particular facts this but does seeing mainly his father fully on not even I Although weekends. recite the law. case, this that, I agree second fact find irrelevant under the deferential standard to the anguish issue mental and loss of of review we apply, must the trial court did companionship. There is no evidence that abuse its in refusing discretion plaintiff was anything negligence a loving, per but in- requested se instruction father, here, volved and that he and the de- impres- this set facts is one of first ceased’s mother were divorced sion and does not I believe deserves a thor- more cited, diminish that. ough analysis. The first fact My attempt while short at one relevant, perhaps answered the testi- follows. mony of Dr. depression Aboud Perez’s If the law on negligence per se were as different,
was qualitatively and much more states, majority judge then no would severe, than problems he had exhibit- failing ever abuse his or her discretion prior ed to the suicide. charge jury, simply to so because evidence, In analyzing the I do not use civil required adopt case “a court is not n the discredited damages” “zero rule. penal Nev Although statute’s standard.” ertheless, true, I am mindful ap that courts of this incomplete statement is and mis- peals possess equal power to review the In a leading. ignored by majori- case sufficiency of evidence to support ty, both a Supreme Texas Court has set out a jury’s answers, affirmative and negative determining detailed set of criteria for including jury’s failure to award dam a penal when statute should set the stan- Kornell, ages. Pilkington S.N., v. liability. S.W.2d dard for tort Perry *11 (Tex.1998). unsupervised prevent minors from Perry 304-07 be- is to S.W.2d firearms, which is exact- inquiries. operable the familiar threshold access to gins with (or here, permitted, trag- with ly what their conduct plaintiff plaintiffs Does the the decedent) Nevertheless, say I cannot that ic results. belong to the class that the stat- language the of protect? plain- ute was intended to Is the Tex. Pen.Code (Vernon 1994) re- clearly prohibits § a that 46.01 injury type tiffs the statute was al- from a firearm moving a lock designed prevent? to Id. at 305. Without Perez, Jr., minor, doubt, apparently possession in the lawful ready a prong This of the test favors persons within the class of intended to be of a minor.1 charge negli- § to on by Tex. 46.06 the trial court’s refusal protected Ann. Pen.Code (Vernon 1994). Suicide, along gence per acci- se. with dents, irresponsible gunplay, unsuper- Third, applying negligence per whether vised access to firearms all of which can liability fault. Id. se would create without tragedy, and do lead to terrible are the Here, liability at 308. strict would not injuries penal this are type provision result, only criminal- because the statute designed prevent. to I hold that would intentionally knowingly a supplying izes or prongs both are inquiry threshold firearm to a minor. This characteristic Supreme met here. The instructs Court liability. of civil weighs the statute favor us, however, end, this not our does Fourth, imposing negligence whether only begins review here. Id. per impose liability se would ruinous dis- determining appro- When whether it is to the seriousness of the proportionate priate impose liability to tort for violations conduct. Id. This author be- defendant’s statute, penal of a pointed Court has irresponsible lieves the conduct of defen- a number of non-exclusive factors which extreme, con- dants is serious but guide determining should the court in and his sidering age of Albert Jr. question. Id. These factors include gun, I apparently legal possession of following. believe there is room here for reasonable
First, disagree. in the In such a circum- change whether absent minds to law, stance, negligence common defer to the trial court’s dis- per se action duty solely would derive its element from cretion.
the criminal statute. Id. at 306. That is Fifth, di- injury whether resulted here, not the situation as discussed below rectly indirectly or from the violation of foreseeability. in the on I section believe Perry the statute. Id. The court cautions liability civil prong this test favors lack causation not in itself of direct violating public safety this statute. liability im- dispositive, as civil has been
Second, clearly statutory de- where viola- posed whether statute situations merely facili- injury by or tions caused an prohibited required fines conduct. Id. at person. Id. at 307. The statute at here does tation the tort of a third issue Poole, conduct, 309, Corp. v. clearly prohibit Lopez’s (citing El Chico (Tex.1987); Nixon v. although certainly spirit of the statute 312-13 seventeen, Albert, person chargeable and the with under firearm 1. Had Jr. been (1) stronger negligence per be case for se could negligence: failed to secure the criminal firearm; (2) made for a violation of Tex. Pen.Code place in a left the firearm Ann. (Vernon 1994), provides § 46.13 which person knew or should have which the person offense if a child [un- “a commits an gain the child would access.” known age gains readily dis- der access to a 17] *12 Co., 546, lock, Property trigger Mr. 548-49 to which the minor had no (Tex.1985)). Here, consequences were key, This is a far be removed. different again, indirect and I would defer to the proof that question, require and does discretion of the trial court. signs depression, the minor exhibited of aggression, judgment.3 or lack of Gun reasons,
For these and not for those set shop psychologists, owners are not but court, by out the trial I would overrule they responsibilities do have societal inher Perez’s issue four. dangerous in the merchandise in which
ent
Forseeability
922(b)(1) (Li
they traffic. See 18 U.S.C.
may not sell or
censed firearm dealers
in
Finally,
majority’s
discussion on
21);
persons
age
under
handguns
deliver
duty, I take
with the
issue
characterization
Tamez, 960
Wal-Mart Stores v.
majori
foreseeability.
of the law on
The
(Tex.1997) (violation
125, 128
of federal
ty’s analysis
Lopezes
rests on whether the
law
18).
should have foreseen Albert
suicide.
Jr.’s
to child under
to sell
ammunition
Rather,
I do not think this is the law.
Moreover,
point
I
to the actions of
would
particular injury need not have been fore
as evidence that
Lopezes
themselves
injury
general
seeable if the
of such a
least,
they, at
found it foreseeable that
reasonably
character as
have
might
been
firearm in
Albert Jr. would misuse the
anticipated,
injured
party
and
was so
way. Knowing
eigh-
some
that he was not
wrongful
situated
relation to the
act that
teen, they tried to call his home before
injury might reasonably
have been
lock,
removing
“joking
and
Property
foreseen. Nixon v. Mr.
Man
around,”
to do
asked him what he intended
Thus,
agement,
2. it seems adolescent sui- that in the home that foreseeable, suicide; (3) cide firearm is all too in the enhance the risk of and most practical legal sense if not the one. In a pertinent, showing guns kept studies that article, recent law review one commentator greatly the home enhance the risk of suicide observed: McClürg, for Andrew J. adolescents. leading Suicide is the second cause of death Storage Public Health Case for Safe among ages youths of fifteen between Add One Firearms: Adolescent Suicides nineteen, leading and and the third cause of Gun,” 953, Hastings “Smoking More L.J. youths aged twenty- death for fifteen to 956-57, (2000). 965-66 four. ... While the overall suicide rate in relatively States United has remained reports that 3. for Disease Control The Center stable since the rate of suicide for 3,385 firearms there were a total of tripled. adolescents has more than Fire- involving under. In deaths children 19 and percent account of all suicides arms for 2,896 year, 15 and 19 that children between including youth country, in this suicides. incidents. were killed in firearm related suicides, 1,078 underage and There were total large body public growing A health gun-related of chil- there were 975 suicides easy access to fire- evidence confirms Statistics dren between 15 and 19. Office of significantly arms increases the risk of sui- Programming, Injury National Center for in three forms cide. These studies come Control, CDC Center Dis- Prevention and (1) pertinent this Article: studies show- ease Control. ing higher gun ownership rates corre- rates; (2) higher late with suicide studies duty, determining legal issue the func- duty remember must factions, two of tion interrelated of several foreseeability likelihood of
which are utility of weighed against the social injury Houston the defendant’s conduct. Greater *13 528, 525 Phillips, Trans. Co. v. 801 S.W.2d (Tex.1990); Franklin, Doe v. writ). 1996, no (Tex.App.-El Paso
Here, patently I would find it foreseeable that, minor would given opportunity, aby which protected
misuse a firearm had no lock which the minor balance, I key. find the social would nil; utility Lopezes to be conduct they certainly spirit violated the of laws
designed prevent gaining minors from facts, I con- guns.
access to Under these clude the trial court submitted properly this jury. case to the I overrule would Appellees cross-point.
Conclusion I conclude fail- jury’s Because that the damages anguish ure to find for mental against loss of are companionship great weight preponderance
evidence, and because I overrule would Appellees’ cross-point, I would reverse
trial judgment court’s and remand for a
new trial. HERNANDEZ, Appellant,
Alexander Texas, Appellee. STATE No. 11-01-00063-CR. Texas, Appeals Court of Eastland. March 2002. Tatum, Richardson, appel- G.
John lant.