Gun Safety

According to data from the National Safety Council and the National Center for Health Statistics, “Americans are more likely to die from gun violence than the combined risks of drowning, fire and smoke, stabbing, choking on food, airplane crashes, animal attacks, and natural disasters.”[1] In 2016 alone, there were 3.85 deaths due to gun violence per every 100,000 people.[2] An average of 222 individuals per day were injured by firearms between the years of 2011 and 2015.[3]

Often, victims of gun violence rely solely on the criminal justice system to obtain legal recourse for their injuries. While the criminal justice system can punish offenders for their intentional or reckless use of a firearm, it may not cover accidental or negligent shootings. As such, a civil lawsuit may be the appropriate tool for a victim of gun negligence to obtain fair compensation for their injuries.

Actions for gun negligence fall under two main categories: (1) product defects and (2) user error. An experienced personal injury attorney can help you determine whether your injuries are compensable and, if so, under what theory of recovery.

Product Defects

Under Ohio law, an individual can pursue an action against a manufacturer for injuries, emotional distress, physical damage, or death caused by a defective firearm.[4] To hold a firearm manufacturer liable for injuries caused by a defective firearm, the injured person or surviving family members must show one of the following:

  1. Manufacturing Defect: A manufacturing defect may exist where there is a deviation from design specifications. For example, a manufacturer may be responsible if a gun owner is injured due to an incorrectly installed safety feature on the firearm.
  2. Design Defect: Design defects arise where the foreseeable risks of the design of the firearm outweigh the benefits associated with that particular design. In other words, if an alternative design for a firearm was just as feasible and could have avoided the injury, a gun manufacturer may be liable.
  3. Inadequate Warning: Manufacturers are required to provide consumers with adequate warnings and instructions on how to safely use their products. A gun manufacturer that fails to provide instructions on how to safely unload a weapon may be liable if a gun owner is injured while improperly unloading the weapon. It is important to remember that manufacturers are not responsible for failing to communicate a warning where the risk is open and obvious or is a matter of common knowledge.[5]
  4. Nonconformance to Representations: If a gun manufacturer makes a representation regarding the performance of a gun and the gun does not perform in accordance with such representation, the manufacturer may be liable.

The supplier of the gun, whether a big box outdoor store or an individual salesman, may be liable in the same manner as the manufacturer if: (a) the manufacturer no longer exists; (b) the supplier altered the gun prior to the sale; or (c) the supplier marketed the gun under its own label or trade name.[6]

User Error

If a person’s carelessness, and not the gun itself, is to blame for the incident, an injured party may be able to recover under a theory of negligence. In a negligence action, a plaintiff is required to show that the defendant owed a duty to the plaintiff, the defendant breached that duty, and the plaintiff was injured as a result of the defendant’s breach. An important question in evaluating a gun negligence case is: “Did the gun owner or handler use reasonable care in the storage, training, or operation the gun?”

  1. Negligent Storage: A gun owner can be liable for negligently storing or securing their firearm. Sadly, a common example of negligent storage is where a gun owner leaves a loaded firearm unsecured and a child accidentally shoots himself or others.
  2. Negligent Entrustment: A gun owner may be liable for allowing an incompetent, inexperienced, or reckless individual access to a gun.
  3. Negligent Handling: An example of negligent handling is where a gun owner fails to keep the safety on while showing the gun to a friend and the gun discharges, injuring the friend.

A subset of the “user error” category encompasses negligent acts by firearm distributors, gun range operators, and firearm training facilities.

  1. Negligent Sales: A firearms dealer can be liable for negligent sales where: (a) a gun is sold to a purchaser and all legal requirements of sale are not met; (b) a gun is sold to a purchaser in violation of the law; or (c) a gun is sold to a purchaser who is under the influence, mentally unstable, or who indicates they are likely to misuse the weapon.
  2. Negligent Gun Range Management: Gun range owner/operators may have a duty to keep their location reasonably safe. Injuries sustained from slipping on ejected shell cases, gun oil leakage, or accidental weapons discharges may be compensable. Note: In Ohio, an individual cannot recover for harm caused by noise at a shooting range.[7]
  3. Negligent Training: Firearms instructors may be liable for injuries that occur as a result of the administration of inadequate or improper training.

Were you or a family member a victim of gun violence?

After a shooting, it is important to preserve the firearm (if possible) and contact local law enforcement. In order to best preserve any potential cause of action, victims of gun negligence should contact a personal injury attorney as soon as possible for a case evaluation.

Burnside Law, LLC represents law-abiding gun owners, law enforcement officials, and gun violence victims in actions related to gun safety issues. We are experienced in dealing with insurance companies and we can help you fight for the just compensation you are owed.

[1] Business Insider, How likely is gun violence to kill the average American? The odds may surprise you, (Feb. 15, 2018) http://www.businessinsider.com/mass-shooting-gun-statistics-2018-2 (Feb. 22, 2018).

[2] NPR, Deaths From Gun Violence: How the U.S. Compares With the Rest of the World, (Feb. 15, 2018) https://www.npr.org/sections/goatsandsoda/2018/02/15/586014065/deaths-from-gun-violence-how-the-u-s-compares-to-the-rest-of-the-world (Feb. 22, 2018).

[3] Everytown for Gun Safety, Gun Violence by the Numbers, (https://everytownresearch.org/gun-violence-by-the-numbers/ (Feb. 22, 2018).

[4] Ohio State Bar Association, Harm Caused by Defective Products Can Lead to Liability Claims, (Dec. 13, 2016), https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-440.aspx (Feb. 22, 2018).

[5] Id.

[6] R.C. § 2307.78.

[7] R.C. § 1533.85.