Posted on 12/06/2012 9:33:50 AM PST by marktwain
If you don’t lock up your guns – or at least keep them unloaded – when you have guests, you could be sued when something goes wrong.
One Vermont family is finding out just how horribly wrong things can go: They are being sued for wrongful death in the wake of an accidental shooting between two house guests, which left one of them dead. The suit alleges that the family was negligent, because the weapon involved in the incident was loaded, unsecured and belonged to a family member.
Tragic Facts
Jeffrey Charbonneau, 24, and his friend Nick Bell, 25, ran into their friend Jim Goodwin at dinner on the night before Thanksgiving 2010. Because their homes were crowded with family members in for the holiday, Jim invited the two friends to stay at his family’s house for the night while his parents and brother were away with family.
The next morning, Bell came into the room where Charbonneau was sleeping to wake him up and get going back to their own families for Thanksgiving. The bedroom belonged to Goodwin’s brother, Charlie, an avid hunter. Bell found what turned out to be a loaded .22-caliber semi-automatic rifle with no safety engaged hanging on the wall and, in what he likely meant to be a joke, Bell walked around Charbonneau’s bed holding the gun. It discharged, and a bullet entered Charbonneau’s heart from his side, killing him almost instantly.
Bell pled no contest in May to the felony of manslaughter, and to the misdemeanors of assault with a weapon and reckless endangerment, according to a local news report. He was sentenced to a year in jail.
(Excerpt) Read more at blogs.lawyers.com ...
The second amendment is relevant because the Supreme Court has ruled that you have the right to have a loaded, unlocked gun in your house. If you can be sued for doing that, you no longer have that right.
Why anyone lives in VT I’ll never know.
Exactly so.
However, don’t expect the Gun Control Nazi’s to change their minds over it.
Next you’ll be liable if a robber accidentally shoots himself with your gun in your house while robbing it.
The 2d Amendment does not protect a homeowner from their own negligence, this case has nothing to do with the right to bear arms. Any gun owner can be and will likely be sued if someone is injured or killed by unsafe use of a firearm. Plus, it’s just a damn stupid thing to do.
Sounds like theft, unauthorized appropriation of someone else’s property. Plus assumption of risk, playing with firearm without checking to see if safety is engaged or it is loaded.
How is this negligence, though. I understand if it’s a kid, or something. But doesn’t a sane adult know better than to play with a gun? Why isn’t doing so, especially without permission, an assumption of risk?
Only partly true. The stupid thing was having a loaded .22 rifle hanging on the wall.
If it is a handgun meant for home defense and is unlocked, loaded and hidden in a place only accessible to the owner then that is quite a different thing than stupid. IMO.
Guns have taken a front seat again recently for several reasons:
1) Sales records are being broke almost daily.
2) Talking heads are using recent events and violent crime to demonize tools.
3) An end run at the American Second Amendment is being prepared if not already in motion.
The media is making these stories front-page works to put guns at the front of the mind of the public. This way when Obama starts flapping his Marxist mouth about a need for gun control, he can point to the dearth of gun violence stories plastered across the front pages of the nation’s newsrags.
Make no mistake, guns are going to be front and center in politics at some point in the next 4 years. When Congress and the Senate pass a gun ban bill akin to Obamacare, utilizing archaic and unconstitutional procedural maneuvers, make no mistake that the public will NOT be slinking back in their armchairs to take it up the tailpipe. This time, it’s personal.
Thus the adage: "ALL guns are loaded."
I would bet that the owner of this particular rifle had removed the magazine and/or emptied all of the rounds out of the feed tube without checking the chamber.
That said, the gun did not jump off of the wall all by itself, nor did it pull its own trigger. "Negligent discharge of a firearm" is just that.
The fault is with the perp, not the owner and not the firearm.
I share your concerns about about 2nd Amendment issues, however, we shouldn’t be making this out to be something more than it really is. It’s a premises liability case, pure and simple. It’s no different than if somebody trespasses on your property and drowns in your pool. You’re going to get sued. I don’t like it; I don’t agree with it but it’s just the way it is.
At least, as far as I know, Vermont doesn’t have stupid and restrictive laws than mandate locking up firearms or face a criminal penalty. What you do with your guns is up to you.
There is a big difference between liability for inherently dangerous situations, such as slip and fall when the homeowner knew it existed, that it was dangerous, but did nothing to prevent it; and a situation where a guest created a deadly situation where none had existed before.
For example, if two guests walk into your kitchen, then one removes a butcher knife from its holder, spins around and unintentionally stabs the other person; importantly, having intended to “prank” them by pretending to stab them; the homeowner is nowhere at fault.
It fails in two regards, that the homeowner is not at fault, and the actual shooter or stabber is at fault.
Yes, a knife is an inherently dangerous tool to use, and the homeowner knew this, and did nothing to mitigate its functional use as a knife. This changes nothing.
The same with a gun.
Last night Beckel went postal on The Five when someone noted that the FBI claims 2.5M people a year save themselves with their guns. Liberals will never, ever accept the truth. Gun-grabbing is a Religion of the Left, impervious to fact and truth. The VT constitution allows all to have a firearm. This is how the loathsome left gets around that right. The biggest damage from The Kenyan’s 2012 reelection is four more years of his appointing communist judges.
Absolutely. Obama was able to do what no socialist president before him had done: universal healthcare.
The next item on his legacy agenda will be abolition of the second amendment.
When Congress and the Senate pass a gun ban bill akin to Obamacare,utilizing archaic and unconstitutional procedural maneuvers,make no mistake that the public will NOT be slinking back in their armchairs to take it up the tailpipe.
Yes, they will.
You sir have obviously never had skunks and other vermin in your yard.
“No one should be liable for the criminal actions of another person.”
So, you think that the parents in the following case should not be held liable?
http://www.freerepublic.com/focus/f-news/2966014/posts
I believe it does, it is my right and that person handled my property without asking.
If he had stolen your car from the garage went to town and got drunk and killed someone are you liable?
Does he have permission to access your safe and take your cash?
Can he molest your kids... Being a guest in a home does not give you cart blanche.
I don't believe that the SCOTUS has ever said that. Please provide the case citation and specific quote. If I am wrong, I'll say so.
Actually, I have.....every Summer. I do nothing about them except scan the area before letting the dog out.
I do nothing because trapping them means disposal or release (Hav-a-Hart) which gets you very stink-a-fied.
Shooting them means you have created a niche as well.
You must first get rid of the food supply in your yard. In my case it is Japanese Beetle grubs. I have been trying for years to do that with limited success.
Other than that...just like confrontations while carrying concealed, avoidance is the best policy.
Vermont used to be a beautiful place. Now it is overrun with the maggot infested dope heads.
The skiing used to be great. Now it sucks, not so much for the snow but for the retards who hang out at every trail intersection and smoke weed and chat up the ski bunnies.
You can attempt to legislate my health. I don’t have to abide. You will not, under any circumstance, legislate my ability to defend myself. I’ve said it numerous times, my soul is prepared.
Stormdog is absolutely right: This has less to do with firemarms and the Second Amendment than it does with premesis liability. Under the common law dating back to Colonial England a landowner is liable for injuries sustained as a result a known dangerous condition especially if the injured person is an invited guest and the injuries are the foreseeable consequence of the dangerous condition.
And as for other vermin...I have them as well. Or should I say 'had'?
If I see them, I leave them. Until I have time to set up a proper kill zone, get out the rifle and dispatch them when they return. And they will return...once.
I just don't leave my firearms out in view and loaded.
Stormdog is absolutely right: This has less to do with firearms and the Second Amendment than it does with premesis liability. Under the common law dating back to Colonial England a landowner is liable for injuries sustained as a result a known dangerous condition especially if the injured person is an invited guest and the injuries are the foreseeable consequence of the dangerous condition.
I agree, but it is still wrong. Before 1960, this would never have even been considered for a lawsuit, and if it were, it would have been thrown out of court and the attorney would be in danger of losing his license.
The tort law in this country was deliberately changed to make suits like this possible. I highly reccommend: Liability: The Legal Revolution and Its Consequences by Peter W. Huber.
Also is the concept of “reasonable person.”
Is reasonable to assume that a person would pick up a rifle/pistol and then play with it and in the process, point it at another person and pull the trigger?
No.
No reasonable man would do that. Therefore, the fault lies with the shooter-—he was acting stupidly. He was acting unreasonably.
I have a batch of dipsh*^ left wing libtards that live in VT. My wife was born there but is a staunch conservative (thanks to me). Her mother was a lib but is now a staunch conservative (thanks to me). My wifes Dad was a lib and died a miserable lib in VT. He was a huge Bernie Saunders fan. I used to argue with him about Bernie and he’d say, “just you wait. Bernie will work miracles”. And I’d say, “yeah. On your wallet, freedom and liberty”.
That case fails because the four year old child is below the age of responsibility and is therefore incapable of committing the crime.
His parents are responsible for his actions.
res ipsa loquitur is merely a rule of evidence which creates a presumption that a defendant acted negligently simply because a particular accident occurred.
The presumption arises only if (1) that which caused the accident was under the defendant’s control, (2) the accident could only occur as a result of a careless act and (3) plaintiff did not contribute to the accident.
I guess I better do something about the loaded Winchester Model 1887 on the pegs over the doorway...
WELL the gun grabber goofs, they got bob costas on their side so there’s that...and bob he’s a big intellectual n’..hes against that shoot ‘em up Tony, dad gummed be a man stand on your own two feet and fear no one gun culture ....it’s the same one that those funky ole founding fathers espoused....
Let’s see here now....costas v. JEFFERSON......costas v JEFFERSON....costas v. JEFFERSON......all in all i think TJ had the right idea..something like...
‘I advise the gun. it gives boldness, enterprise and independence to the mind...carry one on every walk’ Note to bob....this makes more sense than your nonsense....best be keepin to the ole play-by-play bob, just sayn’
So if somebody grabs a cop’s gun and shoots somebody else, is the cop “negligent”? And what’s the difference? The shooter in this case had no authority to touch the gun in question.
Vermont used to be known for its Machine Tool industry, now it is know for Lesbians and Maple Syrup.
Hulka,
You just flunked your first year of law school. The question is whether the owner acted reasonably in hanging a loaded rifle on the wall in plain sight in decorative fashion, knowing that a large segment of the population is too stupid to get out of bed in the morning (as evidenced by the results of the last election). This is no different than storing a can of Drano next to the salt box in the food pantry: Reasonable people recognize the potential for stupidity and take reasonable steps to prevent injury to invited guests. That means storing dangerous chemicals out-of-sight in a safe location with other chemicals and it means removong the ammunition from a firearm hung in plain site as a decorative object (or at least placing a warning sign on the gun).
2.5 million a year is one large number, I had no idea it was that many! I wonder what that divides out to on a rough daily per-state occurrence and then down into a per-day occurrence thing of people saving themselves with a defensive use, or presentation only, of their weapons. Are those stats out there somewhere?
And you just flunked law, life and common sense.
;-)
Find in Blackstone where it states (in common law) that you are responsible for somebody’s stupidity or reckless act.
My 1915, Blackstone Second Edition, has no reference. Does yours? If you can find it, please let me know. Always trying to learn.
“knowing that a large segment of the population is too stupid to get out of bed in the morning” As true as that may be, that is irrelevant. Are we are to assign to each and every person the responsibility to assess and moderate, control their perceived level of common sense. . .at all times?
Anyway, using your scenario (”This is no different than storing a can of Drano next to the salt box in the food pantry,” that is a non-sequiter and irrelevant.
Consider: Are we to take visitors in our home on a tour, pointing out, “look, that is an electrical socket, don’t be putting a steel knife in there, and over there, that is my refrigerator, a big sucker, don’t try and climb on top as you might fall down, and over there is my computer, it locks up sometimes but don’t pull it apart because you might get a shock, and that over there, is a squirt gun-—you can tell by the plastic and color-—and that is a firearm. . .don’t confuse the two. . . .etc. At what point does the the silliness stop?
Storing a real firearm amongst toy guns and you might have a point, but in this case, he hung it up on the wall—out of normal, reasonable reach (I assume).
Decorative or not, it was a stand-alone item that some idiot
a) Did not take reasonable steps to verify for himself the firearm was real or not
b) Did not take reasonable steps to check to see if it was loaed when HE actively took the firearm off the wall
c) Played with it
d) Recklessly pointed it at the (soon to be) injured party
e) AND pulled the trigger.
The above are all conscious acts on the part of the idiot and in no way reflect irresponsible behavior on the part of the firearm owner.
A gun is a weapon. Because some people are “too stupid to get out of bed in the morning” doesn’t shift responsibility to the firearm owner. In this case, where the person had to actively stake many deliberate steps in order to inflict the injury, the responsibility is the shooters, alone, and no one else.
Now, if he left the firearm on the floor with a 5-yr old running around and the 5-yr old shot someone, then you might have a point. But the guy was an adult and he acted irresponsibility, like a 5-yr old, perhaps, and he should be the responsible party. Say. . .what about the firearm manufacturer, perhaps they should be held liable because they did not design the weapon to have safety catches that only the owner would know about.
Cheers
The manslaughter sentencing is correct and enough. That said, folks should think (without the threat of law) about how they store their tools and weapons, and the kind of people allowed into their homes.
That counted for real guns, toy guns, sticks, and fingers. I taught my kids the same. Even a 5 year old should know better.
Course I once had an argument with Hubby as he was aiming an “unloaded” rifle in the house(not at anybody). I told him not to be doing that in the house. He said that it was not loaded and made fun of me for my concern.
I told him that was just the way that some people accidentally got shot and killed, and left the room. Two seconds later I heard a strange noise.
Went back into the room, and looked at Hubby's red face. There was a bullet hole in the kitchen cabinet. Yep, I said well, I told you so didn't I? Then I left the room again.
Stats are from DOJ — at least until Obama hides them. Drilling-down (per the NRA magazine First Freedom), almost all the time once a gun is simply shown to a criminal they run away. Actually having to shoot occurs less than 1% of the time. The most loathsome aspect of Obama’s Liberalism is the demand that people remain defenseless before violent criminals.
Just remember to treat it like it's loaded when you pick it up, regardless of whether or not you think it is.
I was at a gun show that had a fishbowl full of ammunition that they had taken out of "unloaded" firearms that were coming in the door. Someone at that show, while I was there, managed to put a .45 round into the floor. No doubt thru an "unloaded" firearm. Needless to say, conversation stopped for a few minutes.
Hey Pab. Yeah, that is why I mentioned a weapon’s ‘presentation’. I knew it was part of the defensive ‘use’ statistics. If you divide that 2.5 million down it is still one huge number of ‘uses’ per state-per day. I have legally carried, (and constantly physically trained with and kept up on my state’s current laws), a handgun for many many years daily and have never had to use, or even present, my weapon, not even once. I pray to the Big Man upstairs that I will never have to but I am mentally and physically conditioned to if, and only if, a use of a legal lethal force instance is warranted and forced upon me by an attacker to save my old butt and/or my loved ones. You are dead on the money about hussein. If he gets his way none of us will be able to defend our lives or our loved ones legally with a firearm. Stay safe Pab.
Here is a pretty good break down of the numbers. It was posted on freerepublic today:
http://www.freerepublic.com/focus/f-bloggers/2966263/posts
I think the 2.5 million number comes from a several victim surveys, and actually varies a fair amount. The 2.5 million was what some credible researchers concluded was the most likely number.
Thanks for the link MT. My math is bad but using that 2.5 million number it looks like the defensive presentation or use comes out to around 150 times each in each state, each day. (obviously only valid if the states were Pop. the same and the demographics were equal). Does 150 sound correct to you? That sounds like a lot of times each day, in each state that a weapon is ‘used’ to save the bacon. And I’m sure all of the instances are not reported. Anyway, if hussein and his UN goons pull it off we will not legally be able to defend ourselves with a firearm sometime within the duration of his second term.
The vast majority of the cases are not reported, in part because no shots were fired, or, if they were, no one was hit. The times that people are hit only comes to about 12,000 per year, so that would be about 36 per day. Even then, most will not be considered news and reported in the media.
The numbers also include when firearms are used to defend against animals. I have killed several rattlesnakes, and have come very close to shooting a couple of dogs, but have never reported these to anyone in authority.
What if Bell had picked up a hammer and beat Charbonneau’s brains out? Would The Goodwins be liable?
How about if he picked up a cigarette lighter and set the place on fire?
Why is a rifle any different?
Wow, this is terrifying.
I'm a geologist.
Cain smote Abel with a rock...
There are rocks lying around almost everywhere, almost none have their safeties engaged, and neither I not those in my profession have the time or resources to secure them all.
Almost anyone can train one to attack, too. All they have to do is pick up the rock, say "sic 'em" and throw the rock at their intended target.
We're doomed.
Let’s play with that idea a second. Suppose it had been a sword hung on the wall, instead of a gun. Suppose the defendant took the sword down and ‘playfully’ inflicted a mortal wound. Is the property owner liable for the defendant’s actions?
Labyrinthos posted:
I don’t believe that the SCOTUS has ever said that. Please provide the case citation and specific quote. If I am wrong, I’ll say so.
marktwain replies:
DISTRICT OF COLUMBIA, et al., PETITIONERS v.
DICK ANTHONY HELLER
Here is the first half of paragraph 4 of part IV:
“We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.”
Here is the summation paragraph:
In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
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