APPEAL from an order of the Superior Court of Los Angeles, County, Kevin C. Brazile, Judge. (Los Angeles County Super. Ct. No. BC394135)
The opinion of the court was delivered by: Perluss, P. J.
CERTIFIED FOR PUBLICATION
Affirmed in part and reversed in part.
Los Angeles Police Officer Enrique Herrera Chavez was shot in the back with his service weapon, a Glock 21, by his three-year-old son, rendering him a paraplegic. Chavez and his wife, Leonora Aduna Chavez, sued the manufacturers and retailers of his gun and its holster for strict product liability and related torts, alleging the Glock 21 is defective because it has a light trigger pull without an appropriate safety mechanism to prevent accidental discharge and the holster fails to sufficiently protect the trigger or properly secure the gun. The trial court granted the motions for summary judgment filed by each defendant. We affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
Chavez joined the Los Angeles Police Department (Department) in 1996. According to Chavez, he was taught at the police academy an officer should carry a firearm in a ready-to-fire condition both on and off duty. Chavez was particularly influenced by the story of an officer who was shot in her driveway after an assailant had followed her home from the police station.
Chavez was also taught about firearm safety, including the proper way to store firearms at home. For example, the Department's firearms training manual states, "Home Firearms Safety. Many officers maintain personally owned weapons at home for sport or protection purposes. To preclude accidents with firearms at home from occurring with any firearm which is not under the direct control of an officer, the following precautions must be practiced in addition to the general and specific firearm safety rules. [¶] Separate the ammunition from the weapon. [¶] Store the weapon and ammunition separately out of the reach of children. [¶] . . . [¶] If no secure container is available, utilize a trigger lock or disassemble the firearm."
After completing his training at the police academy, Chavez was issued a Beretta 92F pistol. In 2000 Chavez was assigned to the Newton Division in South Central Los Angeles. About that time Chavez began leaving the holstered Beretta in his truck overnight after he had arrived home and satisfied himself the area was safe. By doing so, the handgun was available for use if Chavez needed it while getting into his truck in the morning and driving to work.
In September 2003 Chavez purchased a Glock 21, which the Department had recently approved as a replacement for the Berretta, from the Los Angeles Police Revolver and Athletic Club (Revolver Club). Subsequently, Chavez purchased from Turner's Outdoorsman an Uncle Mike's Sidekick Ambidextrous Hip Holster manufactured by Bushnell, Inc. The package stated the holster was designed for use with Glock pistols.
Chavez began carrying the Glock 21 as his service weapon after passing a training course. As he had with the Beretta, Chavez carried the Glock in the holster on his Sam Brown utility belt while on duty and then placed it in the Uncle Mike's hip holster when off duty, leaving it under the driver's seat or console area of his truck after arriving home.
In early 2006 the Department recalled the Glock 21 pistols and ordered them tested and, if necessary, repaired before being used on duty. While Chavez's Glock was at the armory for testing, he again used his Beretta as his service weapon.
By end of shift at 6:00 a.m. on July 10, 2006, Chavez had received his Glock back from the armory and made all the adjustments necessary to begin carrying it again. After he left the station, he placed the loaded Beretta with the manual safety decocking lever disengaged on the floorboard underneath the front seat of his truck (a Ford Ranger) and the loaded Glock, which does not have a manual safety device, underneath his leg.*fn1 He also placed a bag with multiple rounds of ammunition--both for the Beretta and a shotgun--in the back of the truck. When he arrived home, Chavez moved the Glock to a position underneath the center console and left the ammunition and the Beretta where they were because his wife and child were in the house and he "didn't want to deal with it"; he was also tired because he had not slept in two days.
Chavez's dog died shortly after he returned home. In order to transport the dog to the pet cemetery, Chavez had to remove the child car seat from the front passenger seat of his truck; he placed it in his wife's car. When he returned home, he went to sleep, leaving the guns and ammunition in the truck.
Shortly after Chavez awoke the following day, he was notified he had to go to court to testify. Chavez had previously arranged with his parents to provide child care when both he and his wife were at work, so he called his father to arrange to drop off three-year-old Collin. When he went to his truck with Collin, however, Chavez realized he had removed the car seat. He called his wife, who told him the car seat was still in her car. Chavez then concluded the safest place for Collin to ride was the rear passenger fold-down jump seat because the air bags in front could not be deactivated. Although Chavez saw the handle of the Beretta on the floor below the driver's seat where he had left it, he forgot the Glock was also in the truck. Chavez believed the Beretta was beyond Collin's sight line and grasp. Chavez fastened Collin into the jump seat with the seat belt.
Less than 10 minutes later, Collin picked up the Glock and discharged a round into Chavez's back as they were stopped at a red light. According to Chavez, after the force of the shot slammed him against the window, he reached in back to grab Collin but could not reach him. He then reached for the gun, grabbing it and the holster together. As he picked up the holster and gun and held them upside down, the gun slid out of the holster.
The gun shot rendered Chavez a paraplegic. The Department brought a complaint against Chavez for failure to control his firearm, which was sustained. The Orange County District Attorney, however, elected not to prosecute Chavez for child endangerment pursuant to Penal Code section 273a.
In July 2008 Chavez and his wife filed their complaint and on January 8, 2009 a first amended complaint for strict product liability, negligence, breach of implied warranty and loss of consortium. Named as defendants were Glock, Inc., Revolver Club, Bushnell*fn2 and Andrews Sporting Goods, Inc. dba Turner's Outdoorsman (Turner's). The amended complaint alleged, in essence, the Glock 21 is defective as to both design and warnings because it has a light trigger pull (5.5 pounds) yet lacks a safety mechanism to prevent accidental, unknowing or inadvertent discharge. With respect to the holster, the amended complaint alleged it is defective either because the trigger is not sufficiently protected and thus the gun can be fired while in the holster or the holster fails to properly secure the gun so a three-year-old cannot remove it.*fn3
2. The Motions for Summary Judgment or, Alternatively, Summary Adjudication
a. Glock and Revolver Club's motion
Glock and Revolver Club jointly moved for summary judgment or, alternatively, summary adjudication, contending Chavez could not establish any of the three alleged defects in the Glock 21's design caused his injuries. First, they argued Chavez could not prove a heavier trigger pull would have prevented the accident because he is not able to establish the amount of force Collin exerted on the trigger when he discharged the pistol. Next, they asserted Chavez could not prove a grip safety would have prevented the accident because there is no evidence where Collin's hands were positioned or how he was handling the pistol at the time of discharge. Finally, they asserted a manual safety would not have prevented the accident because Chavez admitted he always stored and carried his Beretta with the manual safety decocking lever disengaged and thus the only reasonable inference is that he would not have engaged a manual safety on the Glock 21 if there had been one. Glock and Revolver Club further argued Chavez's reckless conduct, including leaving loaded guns in his truck and failing to secure Collin in a proper car seat, was the sole cause of his injury.
In addition to asserting lack of causation, Glock and Revolver Club contended Chavez could not establish a design defect under either the consumer expectation or risk-benefit tests as a matter of law: They argued, as a sophisticated user, Chavez knew it was dangerous to store a loaded firearm where his children could reach it, knew children are attracted to and can operate guns and admitted he did not expect manual safeties would make a firearm childproof. They also argued the Glock 21's trigger pull and lack of a manual safety device make it a superior weapon for law enforcement because of the ease and accuracy with which it can be fired.
In support of their motion Glock and Revolver Club submitted the declaration of Emanuel Kapelsohn, a law enforcement firearms instructor and training consultant. According to Kapelsohn, "[T]he handgun designed for law enforcement use must, within reasonable limits, be as easy for the user to operate under stress as possible, with the least chance possible for any user error that would prevent the handgun from being used effectively for its intended purpose. Among other things, the clear preference of U.S. law enforcement for at least the past twenty years has been for handguns with more manageable trigger pulls (such as the Glock), and for designs (such as the Glock) without manual safeties." Kapelsohn explained he had "repeatedly seen users of firearms with manual safeties and/or decocking lever[s] . . . try to fire but find themselves unable to do so, because they have not disengaged the safety, or have re-engaged it inadvertently"*fn4 and "[i]nstances in which a safety on a duty weapon has resulted in an officer being injured or killed have not only occurred, but have been widely publicized in the law enforcement literature . . . ." Consequently, the Department had trained its officers to carry their Beretta pistols with the safeties off. Regarding grip safeties, Kapelsohn described them as "problematic, especially in the stressful defense use, or simulated defensive use." He testified their use by law enforcement agencies was quite limited and "has not enjoyed anything approaching the popularity and widespread law enforcement agency use of [various models], which do not use grip safeties."
Regarding the trigger pull, Glock offers several options to law enforcement agencies.*fn5 Kapelsohn explained the 5.5 pound connector required by the Department, which produces a trigger pull in the range of 5.5 to seven pounds, increases the accuracy and speed with which the pistol can be fired: "While a certain weight of pull and a certain length of trigger travel are necessary for the trigger to be controllable by the officer in stressful situations, making the trigger pull excessively long or heavy is detrimental both to accuracy, and to the speed with which the officer can fire the pistol safely and effectively. The accuracy/speed balance translates, in turn, into both officer safety (in the officer's ability to defend himself) and the safety of others (in the officer's ability to defend them from impending attack). Accuracy also means the officer will miss fewer shots, each of which potentially endangers fellow officers and the public." Kapelsohn measured the trigger pull of Chavez's Glock 21, finding it above 6.5 pounds and below 6.75 pounds--a trigger pull he described as "not an excessively light trigger, and . . . in the same approximate weight range as many of the other most popular brands and models of law enforcement pistols on the market."
Glock and Revolver Club also submitted the declaration of retired Sergeant Louis Salseda, who had been the sergeant in charge of Chavez's firearms training when he was in the police academy. Salseda corroborated many of the points made by Kapelsohn. Additionally, he stated the Department's special investigative section had selected the Glock 21 after extensive testing and evaluation over a four-year period because of the "simplistic operation . . . under high stress, loss of fine motor skills operations." Other Department divisions subsequently evaluated and approved Glock pistols for use.
ii. Failure to warn and breach of implied warranty
Glock and Revolver Club contended manufacturers have no duty to warn
consumers about generally known or obvious dangers. Chavez admitted
he understood the warnings and instructions on safe firearm storage
set forth in the instruction manual that accompanied the Glock 21.*fn6
In addition, the risks posed by storing loaded firearms
where children can reach them are obvious and were well known to
Chavez because of his training.
As to Chavez's implied warranty cause of action, Glock and Revolver Club argued Chavez could not establish vertical privity: Based on an examination of serial numbers, it was determined the handgun fired by Collin had been purchased by Chavez's partner. Somehow Chavez and his partner had inadvertently switched weapons.
In a final brief paragraph, Glock and Revolver Club contended Chavez's claims were barred by the Protection of Lawful Commerce in Arms Act, title 15 United States Code sections 7901 to 7903 (2006) (PLCAA or Act), which generally provides immunity to firearms manufacturers and dealers from lawsuits falling within the Act's definition of a "qualified civil liability action" unless the lawsuit falls within one of six exceptions, including for product liability actions, to that definition. (Id. at §§ 7902, 7903.) Presuming without argument Chavez's lawsuit is a qualified civil liability action, Glock and Revolver Club argued the exception for product liability actions did not apply because the firearm discharge was caused by Chavez placing Collin in the car without a child seat where he could reach the pistol, conduct that constituted volitional criminal acts in violation of former Penal Code section 12035 (now Pen. Code, § 25100) (unlawful storage of a firearm) and Vehicle Code section 27360 (failure to properly secure child in car seat).
Bushnell moved for summary judgment or summary adjudication, contending Chavez could not establish any defect in the holster caused his injury because it was not in use at the time of the accident. In support of its argument, Bushnell submitted a declaration from Lance Martini, a forensic scientist with expertise in the areas of firearm evidence, gunshot residue, firearm failure analysis and other firearm-related subjects. Based on his examination and testing of Chavez's holster, as well as an exemplar holster of the same make and model and an exemplar Glock 21, Martini opined Chavez's pistol had been fully removed from the holster when it was fired because of the lack of any gunshot residue on the holster and any evidence the holster had been cleaned. Martini also concluded the gun could not have been in a fully seated position in the holster with the retention strap secured when it was fired because the holster would not have allowed sufficient movement of the slide to partially eject the expended cartridge casing, which was found "stove-piped"--that is, jammed in the ejection port. According to Martini, "If the Glock pistol would have discharged with the holster strap secured, the pistol would have been found in the holster, with the strap secured, and the slide fully forward (in battery) and the expended cartridge case fully contained within the chamber."
Bushnell also asserted the holster was not defectively designed under the consumer expectation test because no reasonable person would have expected the holster to prevent a three-year-old from getting his or her hand on the trigger or removing the gun from the holster.
In support of Bushnell's argument the holster was not defectively designed under the risk-benefit test, Martini opined, "The primary design feature/application of an inside the waistband holster, such as the incident holster, is concealability. Secondary aspects are speed of access, security, complexity, and comfort. A variety of holsters are available today and have been for many years which range from a simple open top pouch type configuration with no retention features to elaborate internal and external retention devices. These factors are all balanced against each other and assigned priorities by the user based on their needs, preferences, and abilities. . . . The Uncle Mike[']s Number 15 Sidekick holster offers an excellent balance of speed of access, firearm security, and quality of manufacture without excessive bulk or complexity for an inside the waistband holster."
ii. Other causes of action
Bushnell argued Chavez's cause of action for failure to warn failed for lack of causation and because, as a law enforcement officer, Chavez was precluded from recovering under the sophisticated user defense. As to breach of warranty, Bushnell argued there was no vertical privity because he had purchased the holster from Turner's.
Turner's raised many of the same arguments in its motion as Bushnell and was supported in part by Martini's declaration. Turner's also submitted a declaration from John Bianchi, a former police officer and manufacturer of firearm's accessories. Bianchi opined the Glock 21 and holster fit and functioned normally and the condition of the holster did not indicate Chavez's gun was in the holster when fired.
d. Chavez's combined opposition
Chavez submitted a combined opposition supported by a declaration from Carter Lord, a "legal consultant/expert on firearms and firearms safety, ballistics, protective equipment, and testing issues." Disputing defendants' characterization of the case, Chavez explained he was not contending the gun and holster should be "childproof." Rather, "the question is either whether the gun and/holster perform as ...