Cappo v. Savage Industries, Inc.

691 So. 2d 876, 1997 La. App. LEXIS 913, 1997 WL 167908
CourtLouisiana Court of Appeal
DecidedApril 4, 1997
Docket29432-CA
StatusPublished

This text of 691 So. 2d 876 (Cappo v. Savage Industries, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cappo v. Savage Industries, Inc., 691 So. 2d 876, 1997 La. App. LEXIS 913, 1997 WL 167908 (La. Ct. App. 1997).

Opinion

691 So.2d 876 (1997)

Tony F. CAPPO, et al., Plaintiff-Appellant,
v.
SAVAGE INDUSTRIES, INC., et al., Defendant-Appellee.

No. 29432-CA.

Court of Appeal of Louisiana, Second Circuit.

April 4, 1997.
Rehearing Denied May 1, 1997.

*877 Anthony J. Bruscato, Monroe, for Plaintiff-Appellant.

Theus, Grisham, Davis & Leigh by David H. Nelson, Monroe, for Defendant-Appellee.

Before WILLIAMS, CARAWAY and PEATROSS, JJ.

WILLIAMS, Judge.

Plaintiff, Tony Cappo, appeals a trial court judgment rendered in favor of the defendant, Savage Industries, Incorporated ("Savage"), rejecting plaintiff's wrongful death claim for the shooting death of his son, Robert Cappo. For the reasons assigned below, we affirm the trial court's judgment.

FACTS

On the afternoon of September 20, 1982, fourteen-year-old Timothy Cappo, fourteen-year-old Brad Ray, and sixteen-year-old Robert Cappo were attempting to fix a radio at the home of the Cappos' mother, Billie Tolbird. The boys were in Timothy and Robert Cappo's bedroom where Timothy kept an unloaded twelve-gauge bolt action shotgun manufactured by Savage Industries. At some point during the afternoon, Brad picked up the gun, loaded it with a shell and pointed it at Robert. The gun's safety was off. According to Brad's deposition testimony[1] and Timothy's trial testimony, Brad was only playing and did not intend to shoot Robert. No disagreement or fight preceded Brad's actions.

Robert did not want the loaded gun pointed at him, and he emphatically communicated this to Brad. Despite Robert's disapproval, Brad continued to point the gun at Robert. Eventually, Robert took an axe handle and started swinging in Brad's direction in an effort to make Brad stop pointing the gun at him. After several swings, the axe handle contacted the barrel of the gun. The gun *878 discharged, killing Robert instantly. According to both Brad and Timothy, Brad never touched the trigger, but kept his hand cupped around the metal guard in front of the trigger.

The Ouachita Parish Sheriff's Office investigated the incident. In addition to taking statements from Timothy and Brad, the officers tested the accident gun by striking the barrel while the safety was off to see if the gun would discharge. According to Pat Willis, an investigator with the sheriff's office, the gun would discharge more often than not when the barrel was struck with moderate force. Based on its investigation, the sheriff's office ruled the shooting an accident.

Subsequently, Robert's parents, Tony Cappo and Billie Tolbird, filed suit against Savage, the manufacturer of the accident gun. At some time later, Benjamin Brown, a former owner of the gun was added as a defendant.[2]

Several expert and lay witnesses testified at trial or by deposition. Justin Jones testified regarding the history of the accident gun. Jones testified that his father gave him the used gun when he was a teenager in the early nineteen-sixties and he kept the gun for one hunting season or approximately one year. According to Jones, when he owned the gun, it was a sound, safe firearm and he had no problems with it. He further testified that he had never attempted any type of repairs to the gun but only took the stock off and bolt out to clean those pieces. Jones never took the gun to a gunsmith to have it repaired or maintained. After keeping the gun for one year, Jones traded it to Jerry Bass.

Bass told a different story about the condition of the gun he obtained from Jones. Bass testified at trial that the accident gun had a "hair trigger" when he received it from Jones. Bass stated that Jones did not tell him about the trigger. However, during his deposition, Bass stated that Jones told him about the trigger. Bass also testified that the safety was unstable when he received the gun from Jones. Regarding repairs to the gun, Bass testified that he never did anything to the gun other than clean it with oil, and he never took it to a gunsmith for repair. Bass further stated that he gave the gun to Charlie Brown, his foster son, when Charlie was about eleven or twelve years old.

Charlie Brown did not testify. However, his brother, Benjamin Brown, testified that he borrowed the accident gun from Charlie, and the gun he received had serial numbers. Plaintiff's counsel noted that according to Savage, the Model 18 had never been assigned serial numbers. Benjamin did not believe the accident gun was the same gun that had been in his possession, because Charlie's gun had been well taken care of. He also testified that the accident gun did not have the same screws as Charlie's gun. He further noted that the clip was missing from the accident gun, whereas Charlie's gun had a clip held together with duct tape. Additionally, Benjamin stated the stock on Charlie's gun had a yellow rubber pad on it, whereas the stock on the accident gun had no pad.

When responding to whether Charlie's gun worked properly, Benjamin testified at trial that he did not know the gun was unsafe when he borrowed it. However, during his deposition, Brown testified that he had always known Charlie's gun would discharge without the trigger being pulled and the condition of the gun worsened while it was in his possession. He also testified that the gun would fire even with the safety properly engaged.

According to Benjamin, he disassembled the trigger guard and bolt selector and cleaned the firing pin with a finger nail file. Benjamin testified that he did not alter the trigger or sear. During his deposition, however, Benjamin stated that he used a file and sandpaper to make flat surfaces on the trigger and sear notches. He further testified that his brother, Charlie, had told him (Benjamin) that he attempted to work on the gun. During the trial, Benjamin testified that Charlie had told him (Benjamin) that he altered the trigger and sear, but during his *879 deposition, Benjamin testified that he did not know what type work Charlie may have done to the gun.

Although there was some discrepancy at trial as to how the Cappo boys came to be in possession of the accident gun, it is undisputed that Benjamin Brown possessed the gun immediately before the Cappo boys obtained possession of it.

The trial court also heard the testimony of several gun experts as to the design of the gun and the condition of the gun at the time of the accident. After reviewing the testimony and exhibits filed, the trial court rendered judgment in favor of Savage and against the plaintiff. In his reasons for judgment, the trial judge made several findings: (1) the plaintiff did not prove by a preponderance of the evidence that it was more likely that the accident gun fired due to being struck than due to Brad Ray's pulling of the trigger; (2) the plaintiff did not prove by a preponderance of the evidence that the trigger-sear mechanism of the accident gun was defectively designed, or that its design is a defect that outweighs its utility; and, (3) the plaintiff did not prove a defect in assembly of the accident gun by a preponderance of the evidence. Plaintiff appeals.

DISCUSSION

Although this case was not tried until 1996, the accident giving rise to the cause of action occurred in 1982. Thus, the law of products liability as it existed in 1982 is applicable to this case. See Taylor v. American Laundry Machinery, Inc., 27,121 (La.App.2d Cir. 6/23/95), 658 So.2d 288; writ denied, 95-1877 (La. 11/3/95), 661 So.2d 1385.

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Bluebook (online)
691 So. 2d 876, 1997 La. App. LEXIS 913, 1997 WL 167908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cappo-v-savage-industries-inc-lactapp-1997.