Firearm Liability: Proving Fault in Negligence Cases

As noted above the fact that a defendant is negligent with respect to a weapon does not mean that the plaintiff automatically recovers. The plaintiff must still show that the negligence caused his or her injury. This is called showing causation. Showing causation requires proof of two related things. First, the plaintiff has to show that the defendant's act or omission (the breach of duty) was the actual cause of the injury and the plaintiff must show that there is a reasonable connection between the defendant's negligence and the plaintiff's injuries. For example, if a parent buys his seventeen-year-old child a gun in violation of federal, state, and local law, he may be negligent. But, if the gun is not the cause of injury until twenty years later, the connection between the negligence and the injury may be too remote, even though the negligently purchased gun was the actual cause of the injury.

In assessing the cause of the injury, the courts will also look at the conduct of the plaintiff and other parties involved in the incident. Thus, a plaintiff who is negligent and whose negligence contributes to his or her injury will usually be required to bear some of the responsibility for the injury. However, criminal conduct on the part of one of the parties involved may cut off the negligent party's responsibility altogether. For example, if the negligently purchasing parent, mentioned above, stores the weapon in his or her home and a thief takes it and uses it at some later point in time, the thief's actions may cut off the liability of the negligent purchaser. On the other hand, if the seventeen year old child irresponsibly hands the gun off to one of his even more irresponsible buddies and that buddy goes on to rob and injure someone with the gun, the negligently purchasing parent could be liable, because her negligence made possible the buddy's access to the gun.

There are many ways that negligence can occur with respect to weapons. Cases involving negligence can range from obviously dangerous conduct, such as playing Russian roulette with loaded weapons to simply careless conduct such as loading a weapon without the safety on or selling a weapon without having it thoroughly examined and test-fired. Less obvious are the cases involving negligence in the sale, entrustment or storage of weapons.

Negligent Sales in Firearm Cases

Negligent sales may occur when there is a sale in violation of law or when there is a sale to purchasers who are intoxicated, mentally unstable, or who indicate that they are apt to misuse the weapon. A negligent sale case may also occur when a store gives physical possession of a weapon to a prospective purchaser before all the legal requirements for the sale are completed. Recently a least one court has held that gun manufacturers have a duty to exercise reasonable care in marketing and distribution of their products so as to guard against risk of criminal misuse.

Negligent Entrustment in Firearm Cases

Negligent entrustment cases are similar to negligent sale cases. In both negligent sale and negligent entrustment cases the crux of the argument is that the defendant was negligent in allowing someone who the defendant knew or had reason to know was incompetent, inexperienced or reckless to have access to the gun. Entrustment occurs when the gun is given to the person, the person is given permission to use it or the defendant knows that the person will use it without permission.

Courts often combine negligent entrustment with negligent storage because negligent storage is a passive form of negligent entrustment. Negligent storage involves storing the weapon in such a way that it is likely to be misused. The usual scenario in such cases is when guns are left accessible to children, particularly small children who do not and cannot be expected to appreciate the danger posed by the weapon. In negligent storage cases, the theft of the gun does not necessarily relieve the owner of liability if the theft was reasonably foreseeable. In such cases the courts will look at how securely the weapon was stored.

Firearm Cases: Getting Legal Help

Injuries from firearms are on the rise as are the number of laws regulating the use of firearms. The law governing recovery in the case of firearm injury is complex. If a firearm that is defective has injured you, you may be able to recover for your injuries under products liability law. If you were injured by firearm that was not defective you may be able to recover under a negligence theory. An attorney experienced in handling this type of case can look at the facts of your case and the applicable laws to determine whether your injuries were caused by a product defect, negligence, or both. To find an experienced attorney, use the "Find a Lawyer" tool on the left side of this page, or click here.