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Premises owner liable for death of child playing with loaded gun

In Plasencia v. Burton, the Texas Court of Appeals, Houston, affirmed a premises owner's liability for the death of a two-year-old boy who was killed while playing with a loaded shotgun.
 
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    February 12, 2014 /24-7PressRelease/ -- In Plasencia v. Burton, the Texas Court of Appeals, Houston, affirmed a premises owner's liability for the death of a two-year-old boy who was killed while playing with a loaded shotgun that had been left within the boy's reach, and affirmed the award to the father of $100,000 in actual damages.

Facts

On March 5, 2008, the father visited a junk yard to take away scrap metal. He was accompanied by his wife and their two children, ages two and four. The junk yard owner took the children to an office at the junk yard and left them to entertain themselves while the owner and the father loaded scrap metal onto a trailer and the mother painted a different office. Sometime later the father heard an intense noise, after which he immediately stopped working and ran to the office, where he found his son, lying dead on the floor next to a shotgun.

Procedural history

The father sued the property owner for wrongful death. After a bench trial, the trial court determined that the owner was liable and awarded $100,000 in actual damages, for mental anguish, loss of companionship and loss of society.

Liability of premises owner

The owner appealed, arguing that there was no proof presented at trial that he had a legal duty of care to the child. The appeals court held that the owner owed a duty of care to the father and his family, citing legal precedent that a premises owner has a duty under Texas law to take action to make the premises reasonably safe or to warn persons lawfully on the premises of an unreasonable danger. By placing the children in a room with an unsecured, loaded shotgun within their reach, the owner created an unreasonable risk of danger to the children, said the court, and the owner was therefore liable, as the evidence at trial established that the father did not know about the shotgun, while the owner was aware of the gun's presence and failed to warn the father about it.

Liability of parents

The owner also argued that the parents had a duty to supervise their minor children, that the parents should have known that a scrap yard is generally not a safe place, and that the child's death was a result of a breach by them of their parental duty. The appeals court held that that the parents' alleged negligence cannot excuse the owner from liability where the owner knew the children were playing alone in a room with a loaded, unsecured shotgun which he failed to remove or warn the parents about.

Proof of damages

The owner also argued that there was no proof offered at trial to support the trial court's award. The appeals court determined that grief-stricken parents do not need to submit evidence of physical symptoms to prove their mental anguish in the loss of a child. The father's testimony of the grisly details of discovering his son's body was sufficient proof to support the award for mental anguish, loss of companionship and loss of society. The court also compared the amount of damages awarded in similar wrongful death cases and determined that $100,000 would fairly and reasonably compensate the father for the damages he suffered as a result of his son's death.

Individuals who have suffered loss as a result of another's negligence or other wrongful acts are urged to seek the advice and assistance of a competent attorney experienced in personal injury and wrongful death matters.

Article provided by The Krist Law Firm, P.C.
Visit us at www.kristlaw.com



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