Appeal from the Circuit Court of Cook County. No. 01 L 05894. Honorable Carol Pearce McCarthy, Judge Presiding.
The opinion of the court was delivered by: Justice Murphy
On May 5, 2001, Joshua Adames (Josh) was shot in the abdomen while playing with William Swan (Billy). Billy's father, David Swan (David), was employed by the Cook County sheriff's department at the time. Billy, age 13, had found David's service weapon in his parents' bedroom closet and was playing with it when Josh came over. While playing, Billy accidentally shot Josh in the stomach and he died as a result of the abdominal wound.
Plaintiffs, Hector Adames, Jr., and Rosalia Diaz, co-special administrators of the estate of Joshua Adames, brought suit against various defendants. At issue on appeal are plaintiffs' claims against defendant Cook County Sheriff Michael F. Sheahan (Sheahan) and defendant Beretta U.S.A. Corp. (Beretta). Following the conclusion of discovery, the trial court granted defendants' separate motions for summary judgment. Plaintiffs now appeal the trial court's orders granting defendants' motions for summary judgment. For the following reasons, we affirm in part and reverse in part the findings of the trial court.
On the morning of Sunday, May 5, 2001, Billy was home alone while his mother was at work and David and his brother went out. Billy called Josh and invited him over to play. Billy went into his parents' bedroom to watch through their window for Josh's arrival. Billy knew that inviting Josh over and going into his parents' bedroom were both against the rules.
Billy noticed that his parents' closet door was open and he saw a box on a shelf. Billy retrieved the box, which was unlocked and contained three guns belonging to David, including a Beretta 92 Series handgun (handgun) with a full magazine clip of bullets. Billy never saw his father carry or clean a gun in the house, but thought that his father might have a gun.
Billy had never handled a gun before, but he picked up the handgun and pushed a button that released the magazine holding the bullets. Billy replaced the clip and removed it several times. He also moved the slide mechanism at the top of the handgun and a bullet popped out. Billy repeatedly removed and replaced the bullets and magazine from the handgun. Billy stated that he understood the handgun to be loaded when the magazine was in place. However, he thought that bullets came out of the top of the magazine when the handgun was fired, not from within the chamber of the handgun. Billy also thought that removing the magazine fully unloaded the handgun.
After a few minutes, Billy saw his friend, Michael, riding his bicycle outside. Billy took the three guns, put them in his pockets and went downstairs to see Michael. Billy showed Michael the guns and how they worked. Josh arrived and Michael went to another room in Billy's house.
Billy and Josh began wrestling and playing around. Billy showed Josh the handgun, ejecting the magazine and bullets as described above. Billy removed the magazine and the bullet using the slide on the handgun, placing the bullets and magazine in his pocket. Billy first pretended to fire the handgun six or seven times at Josh before he actually pulled the trigger. Billy knew the handgun was dangerous and it could hurt or kill somebody, but he thought that the magazine had to be loaded in the handgun to fire a bullet. Tragically, the handgun discharged a chambered bullet that hit Josh in the abdomen.
Billy ran upstairs and put the guns back in his parents' closet. Billy then ran back downstairs and realized that he had shot Josh. He called 911 and told the dispatcher that he found a gun and accidentally shot his friend while playing. Billy also stated that he did not know there were any bullets in the handgun.
Billy was subsequently found delinquent in juvenile court proceedings relating to the shooting. The delinquency holding was based on a finding that Billy committed involuntary manslaughter and reckless discharge of a firearm. Billy was placed on probation. This court affirmed the delinquency finding of the juvenile court. In re W.S., No. 1-02-1170 (2003) (unpublished order under Supreme Court Rule 23).
David testified that he graduated from the police academy in 1988, was deputized with the Cook County sheriff around January 1988, and promoted to lieutenant in 1997 or 1998. David carried a gun with him to work as an officer. When David started with the sheriff's office, his service revolver was a Smith & Wesson .38 Special. Eventually, he became certified in automatic weaponry and the handgun became his service handgun. David was promoted to supervisor and no longer needed his handgun on the job and, therefore, rarely brought it to work. David continued as a supervisor after the incident, even though all of his firearms were confiscated by the police investigators.
David testified that he owned three guns: the handgun, the .38 Special, and a .25 automatic. All three guns were stored in the same locking case, along with ammunition. David stored the case, and additional ammunition, on the top shelf in his closet. He maintained one key to the case on his key ring and an additional key in the junk drawer of his dresser. Approximately a year before the shooting, David completed his annual firearm qualification. David disagreed with Billy's testimony and stated that he locked up all three guns in the lockbox, returned them to the top shelf in his closet and did not touch the guns after that date. For the purposes of defendants' summary judgment motions and these proceedings, the presumption is that the lockbox was unlocked.
David understood that the sheriff's office required deputies to secure and store their weapons in either a locking box, like he used, or with a trigger lock. David testified that, pursuant to department requirements, he stored the ammunition separately from the handgun and that the handgun was stored without a bullet in its chamber. David knew how to check if a bullet was in the chamber and how to clear the weapon. David also knew about trigger locks, but did not have one and did not look into purchasing one for his handgun. However, David was not aware that the handgun would fire a bullet with the magazine removed. David also was unaware of a settlement by Beretta in a different case that included an agreement to include either magazine disconnect safeties in all guns sold after January 1, 2001, or a warning label that the firearm is capable of firing when the magazine is not engaged.
David stated that his house rules included a prohibition on any child in the parents' bedroom at any time and no one outside the family was allowed in the house when he or his wife was not home. David testified that he reminded Billy of this rule on May 5, 2001, and Billy told him that he was going to go to the park. David speculated that Billy found the lockbox and the key and gained access to the gun. However, from the moment he returned to the house after the shooting to the day of his deposition, Billy had never openly discussed the shooting. David admitted that he never informed his children that he maintained guns in the household and that he never taught them gun safety.
In response to the shooting, Sheahan filed a complaint against David before the Merit Board claiming that David failed to properly secure and store his handgun. David's guns were taken from him by the police in their investigation and never returned to him. Following a bench trial, David was found not guilty of criminal charges based on the proscription under section 24-9 of the Criminal Code of 1961 (720 ILCS 5/24-9 (West 2004)) against improper storage of a firearm in a premise in which a minor under 14 is likely to gain access to the firearm.
C. Sheriff's Office Rules and Policies
Sheahan's general counsel, executive director, and weapons training officers testified to the department's rules and procedures and training programs. At the time of the incident, Sheahan had a general order in place that mirrored or exceeded the requirements of section 24-9 of the Criminal Code of 1961. 720 ILCS 5/24-9 (West 2004). The purpose of the general order is to promote safe gun usage, citing 1,134 Americans were killed in 1997 from accidental shootings and that, annually, about 300 children are killed in accidental shootings. The general order requires officers to secure duty weapons in a secured lock box container or other location that would prohibit access by unauthorized persons to avoid accidents. In addition, officers are required to store any keys to such locking devices in a secure location separate from the weapon. Officers were taught to expect children to look everywhere in their homes. Therefore, weapons must always be inaccessible to children and properly stored to avoid accidents with children.
Sheahan's training program also included materials on educating family members, particularly children. Education of children was detailed as an additional responsibility beyond proper storage. Specifically included in the materials is the recommendation to openly discuss firearm safety with children and avoid ignoring the issue.
Officers are informed that their responsibility for their firearm includes unintentional discharge because of improper storage, education, or disarming of the firearm. Officers were re-certified in their firearms annually, which included a program on home firearm safety. Although David did not need a weapon to perform his duties as a supervisor, he completed this program annually.
Extensive testimony and documentation was presented regarding the handgun itself and various safety measures available in the industry. The handgun is a semiautomatic pistol designed for law enforcement and military use. The handgun is loaded by filling the magazine with bullets and inserting the filled magazine into the magazine well. The handgun is prepared for discharge by chambering the first round, pulling the slide to the rear of the handgun, and releasing it. When the safety is off, the handgun may be fired by its double-action trigger pull. After the chambered round is fired, the slide recoils to the rear, the spent cartridge is ejected, and the next live round is chambered upon the return of the slide.
This process will continue each time the trigger is pulled until the magazine is empty, at which time the slide remains locked open until the slide catch lever is released. Therefore, the user knows when firing the handgun that the magazine and chamber have been emptied. A user may also check if a round has been chambered by manually pulling the slide back and visually determining if a round has been loaded. Additionally, the handgun has a chamber loaded indicator -- a small extractor head painted red -- that protrudes from the side of the slide when the chamber is loaded. Other safety devices on the weapon include: an ambidextrous safetydecocking lever; a hammer drop catch; a flared and serrated trigger guard; an automatic firing pin catch; a two-piece inertial firing pin unit; a reversible magazine release button; and a slide overtravel stop. Beretta did not include a magazine disconnect safety on this model.
Each handgun sold by Beretta was packaged with an instruction manual that included specific warnings and safety instructions. Like the training provided by Sheahan, the instruction manual contains repeated warnings of the dangers of firearms and the importance of proper handling and storage to avoid accidental injury or death. In particular, it contains advice to owners to store guns in locked storage units out of reach of children with ammunition stored separately.
Further, the manual contains advice to owners to make sure the cartridge chamber is empty when storing the handgun. Explicit step-by-step instructions on how to safely and completely unload the handgun are provided. The manual also includes instructions on how to fully engage the safety, release the magazine, fully retract the slide to extract and eject the chambered cartridge, and, finally, visually inspect the open slide and magazine well to ensure all cartridges have been completely ejected. This information is repeated several times in the manual.
Plaintiffs presented witnesses who opined that the gun as designed was unreasonably dangerous. Plaintiffs' expert, Stanton Berg, a firearms consultant, admitted that an accident-proof handgun is impossible, but claimed that repetitive accidents may be designed out by gun manufacturers. Berg opined that if the handgun had a magazine disconnect safety, a device that stops the firearm from firing when the magazine is not fully inserted, the shooting in this case would not have occurred. Berg noted that this safety device was invented in 1910 and had even been used by Beretta on 92 Series handguns utilized by some police departments. Berg listed over 300 models of handguns that utilize a magazine disconnect safety and concluded that a handgun without such a safety is defective.
Berg continued to opine that the chamber loaded indicator located on the side of the slide was insufficient. He claimed the indicator was too small to provide an effective warning that a bullet was chambered. Berg also testified that the handgun should contain a warning on the firearm itself that it could be fired with the magazine removed. Berg admitted on cross-examination that the nature and function of a firearm is to discharge a projectile at a high rate of speed. Berg stated that the majority of law enforcement agencies in the country utilized firearms without a magazine disconnect safety. Berg also admitted that it was a valid concern of these agencies to assure that they utilize firearms without anything that threatened to be an impingement on the firing of the gun.
Wallace Collins, a firearms and ammunition design and safety expert, testified to his study of safety assists suitable for handguns. Collins determined that the following safety characteristics were available at the time the handgun was manufactured, but were not included: a magazine disconnect safety; a warning that the gun will fire when the magazine is released; a better-located chamber-loaded indicator with clear directions; and a key lock. Therefore, Collins concluded that the handgun was unnecessarily dangerous.
Collins testified that these safety features were readily available, inexpensive, and commercially feasible. Collins opined that the key safety component that was missing was the magazine disconnect safety. Collins concluded that countless accidents like the shooting in this case could be avoided by the implementation of the devices.
Stephen Teret, a professor of epidemiology for the School of Public Health at Johns Hopkins University, also was deposed as a witness for plaintiffs. Teret prepared a report on the shooting and testified that he concluded that the absence of a magazine disconnect safety caused the shooting in this case. Teret included data in his report from a survey designed by the Johns Hopkins Center for Gun Policy and Research, performed by the National Opinion Research Center and reported in the Journal of Public Health Policy. The survey asked respondents whether they thought that a pistol can still be shot when its magazine is removed. Of the 1,200 respondents: 65% answered the pistol could still be fired; 20.3% answered the pistol could not be fired; 14.5% did not know; and .2% refused to answer. Of the 34.8% who responded that the pistol could not fire when the magazine is removed or that they did not know, 28% lived in a gun-owning household. Teret also testified that he felt the chamber loaded warning was not effective and could not possibly warn people who have no knowledge about guns.
Witnesses for Beretta testified that they understood that children gain access to guns and accidental shootings have occurred both with and without the magazine inserted in the gun. It was agreed that this incident would not have occurred with a magazine disconnect safety installed on the handgun. It was further admitted that Beretta was capable of manufacturing guns with such a feature at a cost of up to $10 per gun. However, Beretta did not include a magazine disconnect because there was no market demand for that feature. Beretta also admitted to other manufacturers' use of the aforementioned safety devices on their handguns.
Beretta introduced evidence that the Beretta FS is utilized by police departments throughout the country. Testimony was presented that the handgun, as manufactured, met or exceeded industry standards. Further testimony on behalf of Beretta claimed that for the past 20 years, the vast majority of law enforcement agencies have consistently expressed a preference for no magazine disconnect safety or internal locking devices. Law enforcement officers and agencies do not want weaponry that may become inoperable by an inadvertent release of the magazine, that could possibly jeopardize the safety of officers and the public.
F. Motions for Summary Judgment
Both defendants filed motions for summary judgment. The trial court granted the motions in separate orders dated August 23, 2005. With respect to Sheahan, the trial court found that questions of material fact remained to preclude summary judgment on plaintiffs' arguments regarding the propriety of weapon storage and scope of employment. However, summary judgment was granted based on the trial court's finding that Sheahan did not have a duty to protect the victim from the criminal acts of Billy Swan. The trial court also noted that, had a duty existed, the cause of the harm was not reasonably foreseeable.
Beretta argued in its motion for summary judgment that its product was not unreasonably dangerous, it had no duty to warn due to the obvious danger, and that Billy Swan's actions were an intervening cause. Beretta's motion was granted in its entirety. Plaintiffs timely filed their appeal of these two rulings.
Summary judgment may be granted when "the pleadings, depositions, and admissions on file, [and] affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2004). The sole function of the trial court is to determine if material issues of fact exist; it is not to try the issues. Kim v. Citigroup, Inc., 368 Ill. App. 3d 298, 305 (2006). We review an order granting summary judgment de novo. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d 342, 349 (1998). While we also review the evidence in a light most favorable to the non-movant, we cannot ignore evidence unfavorable to the non-movant and may sustain the trial court on any basis called for in the record. Ruane v. Amore, 287 Ill. App. 3d 465, 474 (1997).
Plaintiffs assert five issues on appeal. With respect to Sheahan, plaintiffs argue that the trial court erred in finding that Sheahan had no duty to Josh and that Billy Swan's conduct was criminal and an independent intervening cause. As to the claims against Beretta, plaintiffs argue that the trial court erred in: failing to find that the handgun was unreasonably dangerous from failure to include a magazine disconnect or a sufficient chamber loaded indicator; failing to find that the handgun was unreasonably dangerous for failing to adequately warn the user; and, as with Sheahan, finding that Billy Swan's conduct was an independent intervening cause superceding Beretta's legal responsibility. However, Beretta asserts in its response and sur-reply that the United States Congress's enactment of the Protection of Lawful Commerce in Arms Act (PLCAA) (Pub. L. 109--12, 119 Stat. 2095 (2005)) (adding 15 U.S.C. § 7901 through 7903) provides gun manufacturers immunity from claims such as those advanced by plaintiffs.
A. Scope of Sheahan's Duty to Third Parties
Plaintiffs first argue that the trial court erroneously determined that Sheahan had no duty to protect Josh from a criminal attack. While the question of duty is a question of law to be determined by the trial court, plaintiffs maintain that because of the trial court's reliance on the criminal attack, it failed to examine the proper factors to determine whether a party owes a duty to another. Plaintiffs argue that they established the factors relevant to the establishment of a duty, namely: reasonable foreseeability of the injury; the likelihood of injury; the magnitude of the burden to guard against such an injury; and the consequences of placing that burden on the defendant. Ward v. K mart Corp., 136 Ill. 2d 132, 140-41 (1990). Therefore, plaintiffs argue that the finding of the trial court must be reversed.
Plaintiffs argue that Sheahan owed a duty to Josh. Plaintiffs cite the rules and training materials created by the sheriff's department requiring safe and secure storage of handguns by officers. In addition, plaintiffs argue that under common law and section 24-9 of the Criminal Code of 1961 (720 ILCS 5/24-9 (West 2004)), Sheahan has a duty to assure his deputies safely secure their service firearms away from children. Furthermore, plaintiffs note that in Gaffney v. City of Chicago, 302 Ill. App. 3d 41 (1998), which is taught to deputies ...