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Court of Appeal:
Walmart Is Not Liable for Shooting Spree Involving Ammunition Stolen From Store
Opinion Says Strict Liability Claims, Asserting That Bullets Were Negligently Stored in Violation of Laws Requiring Secure Displays, Fail Because Regulations Do Not Require Theft-Proof Security
By a MetNews Staff Writer
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GUSTAVO GARCIA slayer |
A negligence per se claim filed by family members of a man who was murdered during a shooting spree that followed the theft of ammunition from a Tulare County Walmart store—accomplished by manipulation of the doors to a display case which was secured by a ratchet lock—fail because the governing statutory framework only requires the cabinets holding the rounds be “locked” and not that they be immune to theft, the Fifth District Court of Appeal held yesterday.
Under the negligence per se doctrine, codified at Evidence Code §669, the failure to exercise due care is presumed if a defendant “violated a statute…or regulation of a public entity” in such a way that the breach proximately caused injury or death and the resulting harm is the type of “occurrence…which the…[law] was designed to prevent.”
At issue is Penal Code §30350, which provides that “[a]n ammunition vendor shall not…display for sale…any ammunition in a manner that allows that ammunition to be accessible to a purchaser…without the assistance of the vendor or an employee of the vendor.”
California Code of Regulations, Title 11, §4262 in turn specifies that “[a]mmunition displayed in a shopping area open to the public is not considered ‘accessible’ provided it is in a locked container (e.g. display case, cabinet, cage).”
The plaintiffs argue that the fact that the shooter was able to breach the display case shows that the cabinet was not a “locked container” within the meaning of §4262.
In an unpublished opinion authored by Fresno Superior Court Judge Gregory T. Fain, sitting by assignment, and joined in by Presiding Justice Brad Hill and Justice Kathleen Meehan, the court held on Tuesday:
“We…conclude section 30350 and regulation 4262 do not require a heightened level of security for ammunition display cases that is sufficient to prevent the theft of ammunition. The purposes of the statute and regulation are met where the display case is sufficiently secure to prevent would-be purchasers and transferees from accessing ammunition without employee assistance.”
Maneuver Glass Doors
The question arose after Gustavo Garcia was able to use his hands to maneuver the glass doors and get inside the display case—in less than 30 seconds—on Dec. 16, 2018, stealing multiple boxes of Winchester nine-millimeter rounds. Approximately 35 minutes later, Garcia shot one victim, using the stolen ammunition, who was in a field 20 miles away.
A few minutes later, he committed an armed robbery at a nearby convenience store, shooting off another stolen round. Two hours after the holdup, Garcia shot and killed Rolando Soto Sr., who was standing in his front yard.
The following day, Garcia was killed in a car crash as he attempted at high speed to flee from police officers.
Laura Soto, the decedent’s wife, on behalf of herself and the couple’s three children filed a complaint against Walmart Inc. and employee George Souza on May 26, 2020. The operative complaint asserts causes of action for general negligence, negligence per se, and intentional tort.
Tulare Superior Court Judge David C. Mathias dismissed all causes of action against Souza and proceeded to hold a court trial as to the claims against Walmart, awarding judgment in its favor.
Judicial Legislation Avoided
Fain said in his opinion affirming that judgment:
“Plaintiffs contend the trial court’s judgment in this matter endangers the citizens of California. The court is charged with interpreting and following the law. It does not have the power to legislate. Plaintiffs’ contention is best directed to the Legislatures of this state or the federal government.”
The case is Soto v. Walmart Inc., F086202.
Garcia’s shooting spree made headlines in 2018 because the perpetrator had a lengthy criminal history and had twice been deported before the deadly events. He killed Rolando Soto Sr. two days after he was released from custody on another matter.
U.S. Immigration and Customs Enforcement (“ICE”)—which had requested an immigration hold on Garcia following his arrest on a misdemeanor charge of being under the influence of a controlled substance—issued a statement saying:
“This deadly rampage could have been prevented if ICE had been notified of his release. This is an unfortunate and extremely tragic example of how public safety is impacted with laws or policies limiting local law enforcement agencies’ ability to cooperate with ICE.”
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