Have You Been Injured By A Gun?
As we all know, guns and gun violence are a hot topic of discussion these days. Beyond the headlines and intense debate, there is important information to consider if you or someone you know has suffered a personal injury by the use of a fire arm. One would be hard pressed to cite a commonly owned consumer product more destructive to public health than the fire arm. After all, the primary purpose of a fire arm is to kill or injure either humans or wildlife. Victims of gun violence and gun accidents do have some legal rights and remedies to consider.
Many injuries and deaths occur due to the negligent handling of fire arms. You cannot drive a car without liability insurance, but you can own a gun and not carry insurance to protect those that could be harmed by your gun. Unless and until laws creating gun owner liability insurance requirements are in enacted, the primary source for covering injury claims related to gun use is the standard homeowner’s insurance policy.
In most cases the general liability provisions of the homeowner policy as well as other typical general liability provisions in business and umbrella policies will cover gun injury and death. Some examples of claims involving negligence are as follows:
- Failure to use the safety
- Failure to ensure the gun is not loaded
- Failure to lock the gun
- Failure to use the gun with reasonable care
- Negligent entrustment
In a tragic case of suicide, we successfully helped a family seek justice against the gun owner for the death of their relative caused by the negligent entrustment of a hand gun. However, this case also illustrated a difficulty in pursuing negligence claims for gun injury. The policy for the gun owner had a clause excluding liability for injury caused by a criminal act. Because the owner was convicted of a crime in connection with the death, the insurer was not required to pay damages in the case.
In another case, our client was visiting his friend’s home when the friend brought out his parent’s gun and shot our client in the leg. This was an accidental shooting resulting from the parent’s failure to secure or lock their gun. Fortunately, our client made a full recovery. We pursued a claim against the parent’s homeowners insurance and were able to get all of our client’s bills paid and get him compensation for the countless hours of therapy and pain he endured.
Victims or their families should also consider whether the injury was caused by a defective product. Gun makers can be responsible to injured persons if their products are defective in the design or manufacturing. In some cases gun makers were held responsible for triggers that were too sensitive. In other cases, gun makers were held accountable because the guns carried inadequate warning of foreseeable risks. Claims based on the theory of strict products liability are now more difficult to pursue. This is because Congress has enacted the 2005 Protection of Lawful Commerce in Arms Act to protect gun makers, gun dealers, and gun sellers from these types of claims. 15 U.S.C. §§ 7901-7903. Although the Protection of Lawful Commerce in Arms Act does not prohibit many of the traditional theories of liability, cases for victims are being dismissed by the courts pursuant to the Act before they have the opportunity to seek discovery which could establish the claims under a permissible theory of liability. Though this may be an unintended consequence of the Act, it remains a substantial barrier to many valid claims.
The above information is NOT a substitute for legal advice and should not be interpreted as the dissemination of legal advice. It is only meant as general guidance on various issues which may be applicable to your situation. It is critical that youconsult with an experienced attorney before taking any legal action or have specific questions addressing your particular case answered.