Lead Opinion
OPINION
This is a double appeal from a wrongful death and survival action arising from the death of Appellant’s minor son, Alberto Perez, Jr. At trial, Appellant alleged that Appellees, owners of ABC Lock and Key Company, were negligent in picking the locked trigger lock on a bolt action 30.06 rifle, at the minor’s request, without parental permission, consent or knowledge, and then returning the operational rifle to the minor who used it to commit suicide. For the reasons stated, we reverse the judgment of the trial court.
Alberto Perez, Jr. (“Albert”), a minor, contacted Appellees/Cross-Appellants, Albert Lopez and Rachel Lopez, owners of ABC Lock and Key Company in El Paso, Texas, and asked if they could make a new key for the trigger lock on a rifle because he did not have a key to the lock. Rachel told him that she could not make a new key, but that she could pick the lock for him if he brought the unloaded rifle to her shop and had proper identification. Albert took the unloaded rifle and his driver’s license to Appellees’ store. Rachel and Albert were “joking around” about what he intended to do with the gun. She asked, “You’re not going to go out there and rob anybody?” Albert responded, “No, I just want to go hunting.” Rachel stated that Albert started laughing after the exchange.
Albert Lopez, co-owner of ABC Lock and Key, knew that Albert was not eighteen, so he called his home to verify that he was in proper possession of the weapon. No one answered, no answering machine picked up the call, and he was never able to verify whether Albert was in proper possession of the rifle. Nevertheless, Rachel picked the lock after her husband instructed her to do so and returned the rifle to the minor after the $4 fee was paid.
The record shows that Appellant discovered the rifle (which belonged to his older son) in his house about a week before the suicide. Nonetheless, Appellant did not remove the newly discovered rifle or otherwise secure it from access by his minor son, Albert, Jr. On the day of the suicide, he took the rifle to work with him because several co-workers were interested in purchasing it. He discovered that the trigger lock had been removed. Appellant took the rifle home after his supervisor told him that he could not leave it at work. He returned it under the bed where he had found it, although he knew his minor son would be visiting his house that same day. Later that day, the minor took the rifle and committed suicide.
Appellant brought a negligence action against Appellees and sought damages for mental anguish and loss of companionship. The jury returned a verdict finding that both Appellees and Appellant were negligent and that their negligence was a proximate cause of Albert’s death. The jury allocated percentages of responsibility as follows: Albert Lopez, thirty-four percent (34%), Rachel Lopez, thirty-three percent (33%), and Alberto, Sr., thirty-three percent (33%). The jury found no damages for Alberto, Sr.’s past or future loss of companionship and no damages for his past or future mental anguish. The jury failed to find Appellees grossly negligent as well. The jury awarded the estate of Alberto, Jr., $5,000 for funeral and burial expenses. Appellees filed a Motion to Disregard the Jury Answers and Enter Judgment Notwithstanding the Verdict, which was overruled by order of the trial court. Appellant filed his Motion for New Trial, which was overruled by operation of law. Both parties bring issues on appeal.
II. DISCUSSION
■Appellant brings four issues and Appel-lees bring one cross-issue. We address them in turn below.
A. Factual Insufficiency
An “insufficient evidence” or factual insufficiency issue involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. The test for factual insufficiency issues is set forth in In re King’s Estate,
In Issues No. One and Two Appellant Alberto Perez Sr. complains that the jury’s verdict of no damages for mental anguish in the past and future and no damages for loss of companionship and society was contrary to the overwhelming weight of the evidence or contrary to the uncontroverted evidence. Appellees argue that Appellant seeks to revive the “zero damages rule,” which requires the jury to award something for every element of damages proven.
Appellant testified that after his son’s death, he had trouble sleeping through the night. He admitted that he had some psychological problems prior to his son’s death and had been seeing Dr. Ambrose Aboud. Dr. Aboud testified that Appellant complained that he was depressed after Albert’s death. He stated that Appellant related symptoms such as sadness, crying, loss of appetite, difficulty sleeping, and early morning awakening. Dr. Aboud determined that Appellant was depressed and prescribed medication. The medication did not “cure” Appellant’s depression and Dr. Aboud offered to refer him to a psychiatrist. Appellant indicated to Dr. Aboud that it would be a shame to go to a psychiatrist; that it was a sign of weakness or failure. Dr. Aboud stated that Appellant remained depressed until his last office visit with him in July, 1998.
Irene Perez, Appellant’s daughter, testified that her father was distant and forgetful since her brother’s death. She stated that he was very active prior to the death. Ms. Perez stated that he used to do yard work and work on cars but that he had “let most of that go.” She stated that he looks very tired now, has aged a lot, and does not eat as much as he used to. Ms. Perez also testified that Appellant had an extremely hard time sleeping.
B. Abuse of Discretion Standard of Review
“A [party] who attacks the ruling of a trial court as an abuse of discretion labors under a heavy burden.” Johnson v. Fourth Court of Appeals,
1. Evidentiary Error
In Issue No. Three, Appellant argues that the trial court erred in sustaining objections to questions to Appellee Albert Lopez regarding his knowledge of risks posed by providing an operational firearm to a minor. Appellees assert that Appellant has waived any error by failing to make an offer of proof showing how Albert Lopez would have answered the proffered questions and that this Court cannot determine whether the exclusion of the evidence rises to the level of harmful error. We agree.
To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court. See Johnson v. Garza,
When tendered evidence is excluded, whether testimony of one’s own witness on direct examination or testimony of the opponent’s witness on cross-examination, in order to later complain it is necessary for the complainant to make an offer of proof on a bill of exception to show what the witness’ [sic] testimony would have been. Otherwise, there is nothing before the appellate court to show reversible error in the trial court’s ruling.
Id. at 325; see also, Wyler Indus. Works, Inc. v. Garcia,
While Counsel for Appellant stated what she would have asked Lopez, she never made an offer of proof showing how he would have answered the proffered questions. Without those answers, we cannot determine whether the excluded evidence can be the basis for reversible error. Issue No. Three is overruled.
2. Jury Instruction Error
In Issue No. Four, Appellant contends that the trial court erred in refusing to tender his requested negligence per se instruction. Appellees maintain that the requested instruction did not apply to this case. We agree.
We review the court’s charge under an abuse of discretion standard. See Texas Dep’t of Human Services v. E.B.,
Appellant sought to have the jury instructed on negligence per se as a result of Appellees’ violation of Texas Penal Code Sections 46.01(3) and 46.06(a)(2). See Tex. PeN.Code Ann. §§ 46.01, 46.06 (Vernon 1994). Section 46.06(a)(2) provides:.
(a) A person commits an offense if the person:
(2) intentionally or knowingly sells, rents, leases, or gives or offers to sell, rent, lease, or give to any child younger than 18 years any firearm, club, or illegal knife;
Tex. Pen.Code Ann. § 46.06(a)(2) (Vernon 1994). A firearm is defined as follows:
any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.
Appellant asserts that Albert was a child under the age of eighteen and falls within the class of persons intended to be protected by the statute. Appellant argues that because he proved a violation of the statute, that the rifle would not fire with the trigger lock in place, but was capable of firing a bullet or projectile after Appellees removed the trigger lock, and because Ap-pellees knew Albert was under the age of eighteen, the trial court erred in refusing to submit the instruction. Appellant provides no authority to support this contention and we are unaware of any.
Nonetheless, the Texas Supreme Court has held that not every penal statute creates an appropriate standard of care for civil liability purposes; therefore, a court is not required to adopt the penal statute’s standard. See Smith v. Merritt,
C. Cross-Issue
In their sole cross-issue, Appellees assert that the trial court erred in failing to grant their motion for directed verdict and motion for judgment notwithstanding the verdict because there was no evidence that the minor’s suicide was foreseeable or that their acts were a cause in fact of the suicide. Appellant argues that the evidence establishes Appellees’ negligence was a cause in fact of his son’s death and that Appellees could foresee they were creating a dangerous situation for the minor and others.
The components of proximate cause are cause in fact and foreseeability. See Doe v. Boys Clubs of Greater Dallas, Inc.,
Appellees cite Cowart v. Kmart Carp.,
The court observed that although the likelihood that the ammunition will be used is foreseeable at the time it is sold, at most the kind of danger Kmart could foresee from the sale was misuse or mishandling resulting from the buyer being too young to appreciate the danger of the ammunition. See id. at 784. The court acknowledged that a minor’s ability to appreciate the danger of ammunition depends on the age of the minor. See id. However, because the minors in Cowart were seventeen years old, the court held they were old enough to appreciate the danger of negligent or intentional misuse of ammunition. See id.
Further, the court held there was no liability because Kmart could not foresee that the sale would result in negligent or intentional misuse of the ammunition by another, who was not a party to the sale. See id. at 785. The court found there was no evidence presented that should have alerted any Kmart employee that the minors would put the bullets in the hand of someone who would engage in criminal conduct. See id. at 786. The court also found that the acts directly leading to Co-wart’s shooting constituted an extraordinary, not a normal, sequence of events that was initiated after Kmart’s sale of the ammunition. See id. at 785.
In the case at bar, it is undisputed that Albert committed suicide. Thus, we must determine whether there was any evidence presented that his death was foreseeable. Appellees testified that Albert did not do or say anything that led them to believe or suspect he was going to commit suicide. Omar Ramos, Albert’s best friend, was with Albert at Appellee’s shop and confirmed their testimony. Appellant and Albert’s sister and mother testified that they had no idea that Albert was depressed or that he was considering suicide. Ramos testified that he knew Albert was upset, but he didn’t tell anyone about it. Based on this testimony, there is no evidence that Albert said or did anything to put Appel-lees on notice of his intent to commit suicide. The evidence established that Albert’s suicide was not foreseeable to his family. Likewise, the evidence established that it was not foreseeable to Appellees. Appellant was required to present some evidence that Appellees had notice that Albert intended to commit suicide. In failing to present such evidence, Appellant did not meet his burden of proof. Thus, the trial court erred in failing to grant Appel-lees’ directed verdict. Appellees’ Cross-Issue is sustained.
Having overruled each of Appellant’s issues on review, but further having sustained Appellees’ cross-point that there was no evidence of foreseeability or proximate cause, we reverse, the judgment of the trial court and render judgment in favor of Appellees’ Cross Appellants.
Notes
. In Lowery v. Berry,
In reversing a judgment based on jury findings of zero damages for past physical pain and mental anguish, the Dallas Court of Appeals stated the appropriate standard of review in Monroe v. Grider,
Dissenting Opinion
Dissenting.
I disagree with several conclusions reached by the majority here, and therefore I must respectfully dissent.
First, in detailing the evidence on Alberto Perez Sr.’s mental- anguish and loss of companionship and society of his son, the majority recites no evidence supporting the jury’s finding of zero damages. Instead, all evidence listed (and all that solicited at trial) supports a finding that Mr. Perez suffered terribly following his son’s suicide, as almost any parent would. The majority opinion simply recites the deferential standard we apply in determining factual sufficiency of the evidence, then fails to engage in any analysis of what evidence supports the jury’s damage findings and prevents them from being manifestly unjust. I can find none. Indeed, defendants in their response brief cite only two pieces of evidence that might support the jury’s failure to award damages: that plaintiff suffered depression and sought treatment prior to his son’s suicide, and that after his parents’ divorce, Albert Jr. lived with his mother during the week, seeing his father mainly on weekends. In this case, the second fact I find irrelevant to the issue of mental anguish and loss of companionship. There is no evidence that plaintiff was anything but a loving, involved father, and that he and the deceased’s mother were divorced does not diminish that. The first fact cited, while perhaps relevant, is answered by the testimony of Dr. Aboud that Perez’s depression was qualitatively different, and much more severe, than any problems he had exhibited prior to the suicide.
In analyzing the evidence, I do not use the discredited “zero damages” rule. Nevertheless, I am mindful that courts of appeals possess equal power to review the sufficiency of evidence to support both a jury’s affirmative and negative answers, including the jury’s failure to award damages. Pilkington v. Kornell,
Negligence per se
Similarly, in its discussion of Issue No. Four, the majority not only fails to analyze the particular facts of this case, but does not even fully recite the law. Although I agree that, under the deferential standard of review we must apply, the trial court did not abuse its discretion in refusing the negligence per se instruction requested here, this set of facts is one of first impression and I believe deserves a more thorough analysis. My short attempt at one follows.
If the law on negligence per se were as the majority states, then no judge would ever abuse his or her discretion in failing to so charge the jury, simply because in a civil case “a court is not required to adopt the ■ penal statute’s standard.” Although true, this statement is incomplete and misleading. In a case ignored by the majority, the Texas Supreme Court has set out a detailed set of criteria for determining when a penal statute should set the standard for tort liability. Perry v. S.N., 973
When determining whether it is appropriate to impose tort liability for violations of a penal statute, the Court has pointed to a number of non-exclusive factors which should guide the court in determining the question. Id. These factors include the following.
First, whether absent a change in the common law, the negligence per se action would derive its duty element solely from the criminal statute. Id. at 306. That is not the situation here, as discussed below in the section on foreseeability. I believe this prong of the test favors civil liability for violating this public safety statute.
Second, whether the statute clearly defines the prohibited or required conduct. Id. at 307. The statute at issue here does not clearly prohibit the Lopez’s conduct, although certainly the spirit of the statute is to prevent minors from unsupervised access to operable firearms, which is exactly what their conduct permitted, with tragic results. Nevertheless, I cannot say that the language of Tex. Pen.Code § 46.01 (Vernon 1994) clearly prohibits removing a trigger lock from a firearm already in the apparently lawful possession of a minor.
Third, whether applying negligence per se would create liability without fault. Id. at 308. Here, strict liability would not result, because the statute only criminalizes intentionally or knowingly supplying a firearm to a minor. This characteristic of the statute weighs in favor of civil liability.
Fourth, whether imposing negligence per se would impose ruinous liability disproportionate to the seriousness of the defendant’s conduct. Id. This author believes the irresponsible conduct of defendants is serious in the extreme, but considering the age of Albert Jr. and his apparently legal possession of the gun, I believe there is room here for reasonable minds to disagree. In such a circumstance, we defer to the trial court’s discretion.
Fifth, whether the injury resulted directly or indirectly from the violation of the statute. Id. The Perry court cautions that lack of direct causation is not in itself dispositive, as civil liability has been imposed in situations where statutory violations caused an injury by merely facilitation the tort of a third person. Id. at 309, (citing El Chico Corp. v. Poole,
For these reasons, and not for those set out by the trial court, I would overrule Perez’s issue four.
Forseeability
Finally, in the majority’s discussion on duty, I take issue with the characterization of the law on foreseeability. The majority’s analysis rests on whether the Lopezes should have foreseen Albert Jr.’s suicide. I do not think this is the law. Rather, the particular injury need not have been foreseeable if the injury was of such a general character as might reasonably have been anticipated, and the injured party was so situated in relation to the wrongful act that the injury might reasonably have been foreseen. Nixon v. Mr. Property Management,
Moreover, I would point to the actions of the Lopezes themselves as evidence that they, at least, found it foreseeable that Albert Jr. would misuse the firearm in some way. Knowing that he was not eighteen, they tried to call his home before removing the trigger lock, and “joking around,” asked him what he intended to do with the gun, whether he would use to it “go out and rob anybody.” To me this indicates their' knowledge, on some level, that something was amiss.
Conclusion
Because I conclude that the jury’s failure to find damages for mental anguish and loss of companionship are against the great weight and preponderance of the evidence, and because I would overrule Appellees’ cross-point, I would reverse the trial court’s judgment and remand for a new trial.
. Had Albert, Jr. been under seventeen, a stronger case for negligence per se could be made for a violation of Tex. Pen.Code Ann. § 46.13 (Vernon 1994), which provides that “a person commits an offense if a child [under age 17] gains access to a readily dis-chargeable firearm and the person with criminal negligence: (1) failed to secure the firearm; or (2) left the firearm in a place to which the person knew or should have known the child would gain access.”
. Although sadly, it seems that adolescent suicide by firearm is all too foreseeable, in the practical sense if not the legal one. In a recent law review article, one commentator observed:
Suicide is the second leading cause of death among youths between the ages of fifteen and nineteen, and the third leading cause of death for youths aged fifteen to twenty-four. ... While the overall suicide rate in the United States has remained relatively stable since 1950, the rate of suicide for adolescents has more than tripled. Firearms account for 60 percent of all suicides in this country, including youth suicides.
A large and growing body of public health evidence confirms that easy access to firearms significantly increases the risk of suicide. These studies come in three forms pertinent to this Article: (1) studies showing that higher gun ownership rates correlate with higher suicide rates; (2) studies showing that guns kept in the home greatly enhance the risk of suicide; and (3) most pertinent, studies showing that guns kept in the home greatly enhance the risk of suicide for adolescents. Andrew J. McClürg, The Public Health Case for the Safe Storage of Firearms: Adolescent Suicides Add One More “Smoking Gun,” 51 Hastings L.J. 953, 956-57, 965-66 (2000).
. The Center for Disease Control reports that in 1999, there were a total of 3,385 firearms deaths involving children 19 and under. In that year, 2,896 children between 15 and 19 were killed in firearm related incidents. There were 1,078 total underage suicides, and there were 975 gun-related suicides of children between 15 and 19. Office of Statistics and Programming, National Center for Injury Prevention and Control, CDC Center for Disease Control.