Mixing Guns and Alcohol Isn’t Enough for Liability, Court Rules

Texas Lawyer

By John Council, Texas Lawyer

July 27, 2017

TEXAS – Guns and booze are a notoriously dangerous combination. Yet a Texas court of appeal has ruled that homeowner can’t be held liable for an accidental shooting just because a .45 caliber pistol was left on a table where his guests were drinking alcohol.

After she was accidentally shot in the ankle during a backyard barbecue, Ruth Hernandez sued the owner of the house where the event was being hosted. But Houston’s Fourteenth Court of Appeals concluded in a June 27 decision that the homeowner could not be sued for premises liability.

“We hold that an objective Texan host, knowing only that guests are drinking and a gun is available for use, is not aware that a serious injury is likely to occur,” wrote Justice Brett Busby.

Carlos Leon, a Sugar Land attorney who represented Hernandez at the trial court, said he was stunned by the decision.

“The social message is contrary to common logic. I don’t even think the NRA at the highest executive levels would argue that drinking and using firearms does not pose a risk,” Leon said. “Essentially what this court has said with this opinion is that in the great state of Texas, we don’t think gun use coinciding with drinking is a problem.”

The defendant in the case is Oziel Gonzalez-Flores, who hosted the family barbecue at his home, where people were drinking beer and wine. According to the court decision, no one at the gathering appeared intoxicated.

One of Gonzalez-Flores’ cousins brought the .45 caliber pistol to the gathering and Gonzalez-Flores and other guests, including Hernandez, used it to shoot at soda cans in the back yard. Hernandez testified that until she was shot, she never felt unsafe. She was hit when the gun accidentally went off after Gonzalez-Flores’ cousin tried to grab it off of a picnic table.

Hernandez sued Gonzalez-Flores for gross negligence and premises liability in a Harris County state district court. But the trial court granted Gonzalez-Florez a no evidence summary judgment motion, dismissing Hernadez’s case. On appeal, Hernandez argued that Gonzalez-Flores was grossly negligent because he was aware people were drinking and shooting a gun at his home.

In his decision, Justice Busby affirmed the trial court’s ruling dismissing Hernandez gross negligence claim because she could not prove that Gonzalez-Flores had “actual, subjective awareness of an extreme degree of risk.” Busby also concluded the trial court was correct because Gonzalez-Flores had his back to the shooting when it occurred.

“This evidence cannot support Hernandez’s negligent activity theory because it does not show any ongoing activity by Gonzales-Flores,” he wrote.

Dale M. “Rett” Holidy, a Houston attorney who represents Gonzalez-Flores, did not immediately return a call for comment.

Peter Kelly, a Houston attorney who represented Hernandez on appeal, said he will seek review by the Texas Supreme Court.

“Both unregulated firearms and alcohol use have been identified as public health issues by the surgeon general of the United States,” Kelly said. “So Texas’s highest court should have the opportunity to assess how those known dangers comport with premises liability in this state.”