Lemaire v. Richard

125 So. 3d 558, 13 La.App. 3 Cir. 581, 2013 WL 5927837, 2013 La. App. LEXIS 2301
CourtLouisiana Court of Appeal
DecidedNovember 6, 2013
DocketNo. 13-581
StatusPublished
Cited by2 cases

This text of 125 So. 3d 558 (Lemaire v. Richard) 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
Lemaire v. Richard, 125 So. 3d 558, 13 La.App. 3 Cir. 581, 2013 WL 5927837, 2013 La. App. LEXIS 2301 (La. Ct. App. 2013).

Opinion

SAUNDERS, Judge.

| iThis is a vicarious liability case in which a gun shop manager accidentally discharged his own gun, shooting a customer. The manager’s gun discharged as he was disassembling it in order to compare it to the customer’s malfunctioning gun, as they were both Glock 19 pistols. The customer sustained a gunshot wound on the right side of his chest, and he filed suit against the manager, the gun shop owner, and the lessor of the property for damages arising from this injury. The lessor was dismissed from the suit, and the manager reached a settlement. After a bench trial on the issue of the shop’s liability, the trial court ruled in favor of the shop, finding no vicarious liability. The plaintiff appeals. For the reasons discussed herein, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Derek Lemaire (hereinafter “Lemaire”), purchased a gun from defendants, Dave Richard and Linda Richard d/b/a Dave’s Gun Shop (hereinafter “the shop”). Shortly thereafter, the gun jammed. Lemaire contacted the manager of Dave’s Gun Shop, Jeremiah Deare (hereinafter “Deare”) on November 10, 2008, regarding the problem. Deare invited him to bring the gun to the shop for inspection. Deare testified that “we said bring it by. We can take a look at it and see if there’s anything — I mean, you can look at something, ‘Oh, yes. That piece is broken.’ If there was nothing obvious about it, we don’t do repairs so we would send it back to the factory for him.”

Lemaire arrived at the shop sometime around 7:00 p.m. that evening. Although each parking space in the lot is available to [561]*561customers of any store in the shopping center, Lemaire parked his truck directly in front of the gun shop. The shop’s hours are 9:00 a.m. to 6:00 p.m. The parties disputed the frequency with which the shop stays open after hours, but there is no dispute that the door was 12unIocked at the time Lemaire arrived. Another customer was present in the shop, talking to Deare. Dave Richard, the shop’s owner (hereinafter “Richard”), was present as well, working on inventory. Lemaire waited for Deare to finish -with the other customer before discussing his gun.

After that, Deare’s testimony conflicts with that of Lemaire. Lemaire testified that he did not initially bring the gun into the shop because “I never bring a loaded weapon into a shop until I tell someone. There’s no sign on the door to say, ‘Leave your gun unloaded,’ like some gun shops, but just to be safe.” He testified that as he was leaving the shop to retrieve his gun from his truck and bring it back to the shop, Deare followed him out to the parking lot to assist him, at which point the incident occurred.

In contrast, Deare testified that Le-maire retrieved the gun from his truck and brought it back inside the store, at which point “[w]e ran through a couple of possibilities of what it was. We offered to send it back. That offer was refused. If I remember correctly, it was, ‘I’ll keep shooting and see if it fixes itself.’ ” Deare later testified that they disassembled the gun in the shop but were not able to determine why it was malfunctioning. Deare testified that at that point, Lemaire left the shop with the gun, having refused to send the gun back to Glock, its manufacturer. Deare testified that he left as well, locking up the shop for the night and walking out to the parking lot, where the incident then occurred.

A police report by investigating detective Glenn Landry states that after being Mirandized, Deare told the detective that he walked outside to the parking lot, where he saw Lemaire, who then began discussing the jamming problem. The report states that this conversation led to disassembling Deare’s gun and thus the shooting incident in the parking lot. Nowhere does the report mention Lemaire ever entering the shop that night.

IsRichard testified that he did not speak to Lemaire that night, although he saw Lemaire enter the shop and then leave with Deare. There is also conflicting testimony as to whether Deare locked the door on his way out to the parking lot. Richard testified that he saw Deare lock the door on his way out and believed he was leaving for the night. Deare’s testimony is similar. Lemaire testified that Deare did not lock the door when he followed Lemaire outside because they intended to return to the shop.

Two police officers who were the first to arrive on the scene testified at trial that the lights were on in Dave’s Gun Shop. One of them, Sergeant Paul Matte, testified that the shop door was not locked:

Q: When you went into Dave’s, did Dave come out before you went into Dave’s Gun Shop?
A: No, sir.
Q: When you went into Dave’ Gun Shop, was the door locked?
A: No, sir.
Q: So you went in and met Dave inside?
A: Yes, sir.

Deare testified that he did not unlock the shop door after the shooting. Richard testified that he was not aware of the incident until police arrived and he saw flashing lights outside, at which point he [562]*562unlocked the door to exit the shop and see what was going on.

Deare testified that in going outside with Lemaire he intended to say goodbye to Lemaire and leave for the day; then once outside, it occurred to him that he could compare Lemaire’s gun to his own. Lemaire testified that Deare was accompanying him to retrieve the gun out of customer courtesy.

|4Peare and Lemaire then met at Le-maire’s truck, which was still parked outside the shop. Deare told Lemaire he was going to take a look at his own gun to compare it to Lemaire’s, or to remove the slide from his own gun and test it in Lemaire’s. Lemaire heard Deare remove his own gun from its holster. Lemaire began packing his gun into its case in the back seat of his truck. Lemaire testified that Deare never touched the gun Lemaire brought in; Deare touched only his own gun. Deare testified, rather, that “I took his apart and we put his back together, and it was in the truck,” clarifying later that he disassembled Lemaire’s gun on the passenger side front seat of Lemaire’s truck. Deare testified that he saw no parts broken and did not see an obvious cause of malfunction in Lemaire’s gun. Deare testified at his deposition that he then wanted to look at his own gun to compare it to Lemaire’s in order to identify a source of malfunction “to warrant sending it back to Glock.” As Deare was disassembling his own gun, which requires pulling the trigger, Lemaire came around either the corner of his truck or around its open back door (Deare testified the former, Lemaire the latter). As he did, Deare’s gun accidentally discharged, shooting Lemaire in the chest. Deare agrees that he shot Lemaire.

Deare testified that he was comparing the two guns “as a friend.” Lemaire testified that he was Deare’s friend “at the gun shop for sales purposes and stuff,” and that they spent time together outside the gun shop once, eating at a restaurant with an additional friend. Lemaire stated that his entire conversation with Deare on November 10, 2008, was about the problems with his gun.

Deare also testified that the shop normally covers shipping fees to send a gun it has sold back to Glock for inspection or repair, and that Glock then covers repair costs for its products.

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Cite This Page — Counsel Stack

Bluebook (online)
125 So. 3d 558, 13 La.App. 3 Cir. 581, 2013 WL 5927837, 2013 La. App. LEXIS 2301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lemaire-v-richard-lactapp-2013.