Diggles v. Horwitz

OPINION

BURGESS, Justice.

This is a personal injury case involving a suicide in which a summary judgment was granted for the defendants. Claude Dig-gles had a history of mental problems and, in early March 1984, was committed to a local mental health facility. On the morning of March 19, he left the facility and went to Phillip’s Pawn Shop. He purchased a .25 caliber Raven Arms semi-automatic pistol. A short time later he returned to the shop and asked to purchase ammunition. Although the pawn shop did not sell ammunition, the owner gave him five rounds. Diggles left the shop and committed suicide by shooting himself with the gun he purchased. Appellant filed suit against the Mental Health-Mental Retardation facility, Phillip Horwitz, the pawn shop owner, and the gun manufacturer. All defendants answered and filed motions for summary judgment. Summary judgment was granted in favor of all defendants and appellant appeals as against Horwitz and Raven Arms.

THE HORWITZ SUMMARY JUDGMENT

Horwitz moved for summary judgment upon the following bases:

(1) Diggles’ death was a suicide and his intentional act was the sole cause of his death,
(2) A retailer has no duty to control the improper use of a firearm,
(3) The retail sale of a firearm does not create a nuisance or a dangerous environment,
(4) The allegations of creating a nuisance and dangerous environment constitute a non-justiciable political question, are matters solely within the legislative prerogative, and, if upheld, would constitute a violation of the doctrine of separation of powers and an unconstitutional exercise of police powers and would violate the second amendment of the United States Constitution (right to bear arms), and *841(5) The allegations can form no basis for recovery because no defect in the product is alleged.

Summary judgments must stand on their own merits, and a non-movant's failure to answer cannot supply, by default, summary judgment proof necessary to establish a movant’s right. Lee v. McCormick, 647 S.W.2d 735, 738 (Tex.App. — Beaumont 1983, no writ). A defendant moving for summary judgment has the burden of showing there are no material issues of fact as to all elements of his affirmative defense. Traylor v. United Bank Orange, 675 S.W.2d 802, 804 (Tex.App. — Beaumont 1984, writ ref’d n.r.e.). Suicide as the sole cause is an affirmative defense under TEX. CIV.PRAC. & REM.CODE ANN sec. 93.-001 (Vernon Supp.1989). This is consistent with our supreme court’s holding in Exxon Corp. v. Brecheen, 526 S.W.2d 519, 524 (Tex.1975) where the court recognized the general rule that suicide constitutes an intervening force that breaks the line of causation from the wrongful act to the death. The court however, also adopted the RESTATEMENT (SECOND) OF TORTS sec. 455 (1965) which modifies suicide as an absolute bar. Although Horwitz alleges the affirmative defense in his motion, he cites no authorities nor any summary judgment proof in his brief in support of the motion. The motion must be supported by its own summary judgment proof. Chandler v. El Paso Nat’l Bank, 589 S.W.2d 832, 835 (Tex.Civ.App. — El Paso 1979, no writ). The motion for summary judgment is only a pleading, Barrow v. Jack’s Catfish Inn, 641 S.W.2d 624 (Tex.App. — Corpus Christi 1982, no writ), and pleadings do not constitute proper summary judgment evidence, Shouse v. Annuity Bd. of the S. Baptist Convention, 663 S.W.2d 163 (Tex.App. — Corpus Christi 1983, no writ). Likewise, he did not urge this as a possible ground for the granting of the summary judgment in his brief to this court. He presented no argument, no authorities, nor pointed out any summary judgment proof. Thus, the summary judgment cannot be sustained on this ground.

Appellant argues there are fact issues relating to both ordinary negligence and strict liability. We agree as to ordinary negligence. There are fact issues as to whether selling the gun and giving the ammunition to the deceased was negligence. We do not agree as to the strict liability. Appellant’s strict liability theory is based upon an ultrahazardous activity and a failure to warn the seller as to the dangers of the product. The definition of “unreasonably dangerous” was not extended to include a consideration of marketing techniques in Clancy v. Zale Corp., 705 S.W.2d 820 (Tex.App. — Dallas 1986, writ ref’d n.r.e.). The manufacture or sale of a handgun has not been recognized as an ultrahazardous activity in Texas. Robertson v. Grogan Inv. Co., 710 S.W.2d 678 (Tex.App. — Dallas 1986, no writ) and Ellsworth v. Bishop Jewelry & Loan Co., 742 S.W.2d 533, 536 (Tex.App. — Dallas 1987, writ denied).

THE RAVEN ARMS SUMMARY JUDGMENT

Raven Arms moved for summary judgment upon the following bases:

(1) Diggles’ death was a suicide and his intentional act was the sole cause of his death, thus no act by Raven could be a proximate cause,
(2) Raven Arms had no duty to warn of dangers which are obvious and commonly known,
(3) Raven Arms had no duty to control the improper use of firearms,
(4) All those nuisance and dangerous environment grounds urged by Horwitz, and
(5) No defect is alleged.

Raven Arms presented no summary judgment evidence on the affirmative defense of suicide as a sole cause. Thus, the summary judgment cannot be upheld on this basis. It can, however, be upheld on another basis. There was summary judgment evidence that all Raven Arms did was manufacture the handgun and deliver it to a wholesaler who sold it to Horwitz. The sale of the handgun is not an ultrahazardous activity, Ellsworth, 742 S.W.2d at 536. *842Appellant contends that Raven Arms breached its duty to warn sellers of the hazards of selling handguns. However, there is no duty to warn of hazards which are obvious or actually known. Hagans v. Oliver Mach. Co., 576 F.2d 97 (5th Cir.1978). Raven Arms submitted Horwitz’ deposition wherein he testified he knew of the dangers of handguns, he knew he should exercise extreme caution in selling handguns, and he knew not to sell guns to someone who was intoxicated, insane or acting strangely. Raven Arms, in its motion for summary judgment, has shown, as a matter of law, no duty it breached.

The summary judgment as to Horwitz is reversed. The summary judgment as to Raven Arms is affirmed.

AFFIRMED IN PART, REVERSED IN PART.