Huntingburg teen shot by stolen gun

[T.Lex]

Proper legal result, but still a tragedy

Indiana Court of Appeals opinion today.

https://www.in.gov/judiciary/opinions/pdf/02141901jgb.pdf

Gun owner left pistol (presumed to be loaded) in plain sight, in unlocked vehicle. A minor (not sure how old) took the gun, showed it to his friend, and while doing so shot and killed the friend.

Legal guardian sued the gun owner.

Gun owner was found not liable as a matter of law because the kid stole the gun.

Right legal result, but still a tragedy.

 

[HoughMade]

...Right legal result, but still a tragedy.

There's a lot of that.

 

[2A-Hoosier23]

Hypothetical, even though I'm sure this has happened at some point:

An irresponsible gun owner leaves his gun safe unlocked and he has, let's say, non-familial guests over. Guests' kids run all over the house, eventually find the safe, grab a loaded gun, then all of a sudden, dead kid in the house. Parents of dead kid try to sue gun owner. What might happen next?

 

[eldirector]

Hypothetical, even though I'm sure this has happened at some point:

An irresponsible gun owner leaves his gun safe unlocked and he has, let's say, non-familial guests over. Guests' kids run all over the house, eventually find the safe, grab a loaded gun, then all of a sudden, dead kid in the house. Parents of dead kid try to sue gun owner. What might happen next?

Lawyer-types make some money. Non-lawyer-types spend a lot of money. A lot of heartache and angst. Anti-Freedom-types want to punish everyone for the bad choices of a few. Everyone loses.

The same when "guest's kids" fall in the pool, steal keys to the car, decide that kicking the dog is a good idea, or steal a handful of pills from the medicine cabinet. Inevitably, the kids are victims, and the homeowner is the bad guy.

 

[bwframe]

People should be held accountable for their actions.

 

[Ark]

I agree with the ruling. Being the victim of a crime is not negligence. It's not your duty to achieve perfect security of your property, it's other people's duty to obey the law and not steal. Bad consequences of their crimes are their responsibility, not the victim's. Proper storage should be a cultural norm, not a legal obligation.

That said, if you refrain from leaving easy targets laying about in plain view, you will find yourself victimized less often.

 

[GIJEW]

If you dig a big hole, don't fence it off, or mark it, and someone falls in it, then you are liable. How is leaving a firearm in plain view in an unlocked vehicle, or on a counter-top, less negligent? The goof who left his pocket pistol on a sofa in IKEA after it fell out of his pocket (a kid coon-fingered and fired it), at least was unaware of where his pistol was.

Rights and responsibility are a package deal, and if we accept leaving loaded guns unsecured as an acceptable standard, the people who are neutral about guns will support the gun banners who want to disarm us.

 

[MarkC]

Right legal result, but still a tragedy.

Unfortunately, this is the kind of event that bolsters the gun control proponents' emotional arguments. Although there are some positive gun bills moving through the general assembly right now, there were a huge slew of anti-gun bills filed. This is the kind of sad event that can fuel the anti-gun arguments. The MDA types have been all over the statehouse, and they have a handful of friends among the senators and representatives.

Also, I would not want to be the owner who's unsecured firearm led to someone's death at the hands of a young criminal.

 

[T.Lex]

If you dig a big hole, don't fence it off, or mark it, and someone falls in it, then you are liable. How is leaving a firearm in plain view in an unlocked vehicle, or on a counter-top, less negligent?

In Indiana, there's a law that provides for immunity from that kind of liability if the firearm is stolen.

Which makes sense in the "normal" notion of a stolen gun. This case is on the edge (IMHO) of where that immunity makes sense.

 

[MarkC]

If you dig a big hole, don't fence it off, or mark it, and someone falls in it, then you are liable. How is leaving a firearm in plain view in an unlocked vehicle, or on a counter-top, less negligent? The goof who left his pocket pistol on a sofa in IKEA after it fell out of his pocket (a kid coon-fingered and fired it), at least was unaware of where his pistol was.

Rights and responsibility are a package deal, and if we accept leaving loaded guns unsecured as an acceptable standard, the people who are neutral about guns will support the gun banners who want to disarm us.

There is a BIG difference between the unmarked hole someone accidentally falls in versus a criminal stealing a poorly secured firearm and misusing it. Insulating the owner from liability because the harm occurred as a result of an intervening criminal act is a policy position, one adopted by our General Assembly.

What is legally right versus morally right are often two different things.

 

[GIJEW]

I agree with the ruling. Being the victim of a crime is not negligence. It's not your duty to achieve perfect security of your property, it's other people's duty to obey the law and not steal. Bad consequences of their crimes are their responsibility, not the victim's. Proper storage should be a cultural norm, not a legal obligation.

That said, if you refrain from leaving easy targets laying about in plain view, you will find yourself victimized less often.

The expectation that people not steal or generally mess with other people's stuff, doesn't entirely apply to children. Yes, it SHOULD but children aren't fully enfranchised citizens because they're considered to be ignorant, impulsive, and irresponsible, little people in the process of growing up who can't be relied on to do the right thing. Other people being irresponsible doesn't excuse us from being responsible. Not achieving 'perfect security' because a burgler broke down your locked door, found an acetylene torch in your garage and cut your safe open? Agreed, that's on the burgler. In this case the gun owner did NOTHING to secure his firearm.

 

[GIJEW]

There is a BIG difference between the unmarked hole someone accidentally falls in versus a criminal stealing a poorly secured firearm and misusing it. Insulating the owner from liability because the harm occurred as a result of an intervening criminal act is a policy position, one adopted by our General Assembly.

What is legally right versus morally right are often two different things.

If the pistol was out of sight in an unlocked car, you could argue poorly secured, but in plain view, he might as well have left it on the hood. He didn't secure it all.

 

[MarkC]

The expectation that people not steal or generally mess with other people's stuff, doesn't entirely apply to children. Yes, it SHOULD but children aren't fully enfranchised citizens because they're considered to be ignorant, impulsive, and irresponsible, little people in the process of growing up who can't be relied on to do the right thing. Other people being irresponsible doesn't excuse us from being responsible. Not achieving 'perfect security' because a burgler broke down your locked door, found an acetylene torch in your garage and cut your safe open? Agreed, that's on the burgler. In this case the gun owner did NOTHING to secure his firearm.

Your point about the youthful thief being a minor is well-taken, and for good reason we have a separate criminal system to handle (most of) the cases involving youth.

The opinion just notes the thief was a minor, it does not indicate his age. There is a big difference in emotional development between a ten year old kid and a teenager who is seventeen.

Again, morally right and legally right are two different things.

 

[T.Lex]

Because of the internets, we do have some of the rest of the story.

https://duboiscountyherald.com/b/authorities-identify-teen-killed-in-accidental-shooting

Shooter was 15.

 

[MarkC]

Because of the internets, we do have some of the rest of the story.

https://duboiscountyherald.com/b/authorities-identify-teen-killed-in-accidental-shooting

Shooter was 15.

Still a minor, but likely old enough to know that he shouldn't be stealing other people's stuff.

But, still a tragedy. An avoidable tragedy, but the courts and the legislature have spoken about where liability should lie.

 

[Mangledman]

This seems like a dangerous and slippery slope. The willful ignorance of leaving a loaded weapon in plain sight, sets a bad example for all. Wherever he went leaving his weapon in plain sight gives gun owners bad press. This is the ignorance of toxic masculine hillbillies that cling to GOD and GUNS our enemies love. We ain't smart enough to bear this kind of responsibility. These guns just lying around waiting to kill people. We have generations of people that couldn't tell their kids the word NO. Leaving his firearm like that could just as easily put the owner at the scene of a crime, or someone could have the MAN waiting for him to come back after running his plates and the serial number of his weapon.
There are cases of willful negligence, as in the back yard hole, but someone has to break the law to get there. I could see this case going both ways. If this feller came back to his car with someone trying to steal his weapon, where could that lead? This the last kind of press we don't need

 

[T.Lex]

This seems like a dangerous and slippery slope. The willful ignorance of leaving a loaded weapon in plain sight, sets a bad example for all. Wherever he went leaving his weapon in plain sight gives gun owners bad press. This is the ignorance of toxic masculine hillbillies that cling to GOD and GUNS our enemies love. We ain't smart enough to bear this kind of responsibility. These guns just lying around waiting to kill people. We have generations of people that couldn't tell their kids the word NO. Leaving his firearm like that could just as easily put the owner at the scene of a crime, or someone could have the MAN waiting for him to come back after running his plates and the serial number of his weapon.
There are cases of willful negligence, as in the back yard hole, but someone has to break the law to get there. I could see this case going both ways. If this feller came back to his car with someone trying to steal his weapon, where could that lead? This the last kind of press we don't need

 

[VUPDblue]

 

[bwframe]

It's "nobodies fault" works until the numbers are high enough that they tell us "nobody can have one."

If we cannot educate and police our own about the inherent responsibility of gun ownership, the anti's will happily do it for us.

 

[HoughMade]

If you dig a big hole, don't fence it off, or mark it, and someone falls in it, then you are liable. How is leaving a firearm in plain view in an unlocked vehicle, or on a counter-top, less negligent?...

It's not, but that's irrelevant. There's a statute.

However, if the guy who falls in the hole is a trespasser, then your only duty is to refrain from wilfully or wantonly injuring him after you discover his presence....still no liability.

[T]he duty owed to a trespasser is the duty merely to refrain from wantonly or willfully injuring him after discovering his presence.

Taylor v. Duke, 713 N.E.2d 877, 881 (Ind. App. 1999); citing, Frye v. Trustees of Rumbletown Free Methodist Church, 657 N.E.2d 745, 748 (Ind. App. 1995).

I think we all know that the shooter's at fault, but he doesn't have insurance or money. That's how "who to sue" gets decided.

Oh, and this is hardly only sort of case where someone get tragically injured and there is no deep pocket to go after:

https://caselaw.findlaw.com/in-court-of-appeals/1008221.html

I was involved in this case at the trial level and worked on the COA briefs, but had already left the firm (just over 7 months after starting there and 2 months after being sworn in) by the time the decision was rendered.

The facts most favorable to the Cunninghams reveal that Bakker owned a parcel of unimproved land in Griffith, adjacent to its business premises and near a residential area where the Cunninghams lived.   In August 1995, Bakker retained Magurany and his tree removal service to remove limbs from a tree on the unimproved property, and directed Magurany to “cut the limbs and to leave them where they fell.”   Record at 376.   The limbs were eight to ten feet long.   R. at 371.   Bakker intended to remove them but did not do so for approximately one week because he was busy.   R. at 373.   On September 2, 1995, a group of children went to the property to play baseball, as they had in the past.   The group consisted of the Cunningham children, Erick, age 13;  Jason, age 12;  Josh, age 8;  and Justin, age 6;  as well as a cousin, David Nowack, age 12.   The boys discovered that one of the limbs was left on the base path that they traditionally used.   Two of Justin's older brothers, Erick and David, attempted to remove the limb, and Justin attempted to help.   The boys warned Justin to stay away because the limb was heavy.   However, Justin slipped and fell underneath the limb, which then fell from his brothers' arms, fracturing Justin's skull.   Justin subsequently developed meningitis, which resulted in permanent deafness in both ears.