Dealers on trial: a spotlight on litigation in the shooting industry.
Fortunately for firearms sellers, the suing parties routinely do not win these cases.
The following is a good example of the legal claim of "negligent entrustment." Dealers should note the importance of ensuring their customers know firearms are dangerous and should be handled with respect. This also applies when you loan your firearms to others.
A negligence action was brought against a retailer when a .22 rifle accidentally discharged while in the possession of the buyer's 14-year-old son. The father had given the firearm to his son for target practice.
As a side note, a "strict liability" lawsuit was also filed against the manufacturer of the rifle. However, the court found the rifle was not a defective product, nor was it rendered "unreasonably dangerous" by any "act or failure to act" by the retailer.
The plaintiff's lawyer argued that the store had not adequately warned the father concerning the experience, maturity and knowledge required to use the firearm. This, it was alleged, rendered the firearm defective and unreasonably dangerous, and the store's owner was responsible legally for damages.
The argument was not successful. The court ruled that the store's personnel had no specific knowledge of the competence, maturity, judgment or "propensity for carelessness or recklessness" of the buyer or his son.
It also ruled that the store did not have the ability to control the use of the rifle after the sale since the gun was sold outright. This is an important point. The rifle was not given to the father in "entrustment." The store had not temporarily placed the weapon in someone's custody - read that as "loaned." Since there was a sale, the rifle no longer belonged to the store's owner.
In addition, the court ruled that during the sale there was no special relationship with a third person. In certain cases, this could create law-imposed duties and responsibilities. For example, it would have been important for the salesperson to provide additional safety information if the son had been with the father at the time of the purchase.
In the end, it was held that the plaintiff's misuse of the rifle was the cause of the alleged unexpected firing. While this would seem to be the obvious conclusion to such a case, dealers should be aware that many such cases are before the courts. Fortunately, as in this case, dealers usually are not found at fault.
Warnings on the use of dangerous products only go so far. In this case, if anyone should have known of the boy's inexperience it was his father.
There was no misleading by the dealer, nor any neglect in providing proper warnings to a buyer who was determined to be competent. Finally, this was not a case where the injuries could have been "foreseeable." As I have noted in past cases, under some conditions, this "foreseeable" element can target a dealer for liability. This usually results when the buyer is not "reasonably" screened.
The important lesson from this case, which echoes so many others, is dealers must carefully screen their customers before making a sale. Just as important, dealers - and all gun owners - must consider all the ramifications of lending a firearm to anyone.
RELATED ARTICLE: WHAT YOU CAN DO
The National Shooting Sports Foundation is conducting a campaign to place pro-hunting videos in 100,000 elementary, junior and senior high schools across the country by the end of 1996.
But what other pro-gun or pro-hunting books, magazines and videos are in your community's school and public libraries? What's there for Johnny or Jane when the teacher asks for a report on gun control, hunting or the Second Amendment?
You need not wait for a national group like the NSSF to take action. In fact, in some locales libraries may be more open to materials donated by local groups than to those provided by national organizations.
Many libraries prefer donations of hardback books rather than soft backs simply because they hold up better under long and heavy usage. However, they may be happy to accept either one, as well as subscriptions to various gun-related magazines or videos.
Your gun shop may want to start by adopting a nearby branch of your local public library or a local school library. First, decide which books, videos and magazines you would like to see placed in that library - remembering that this can be a gradual process and does not have to be a bank-busting blitzkrieg.
Once you have a list of pro-gun materials firmly in mind, meet with your local librarian to see what he or she would be willing to accept.
The Second Amendment Foundation will be happy to work with you on library donation projects that provides some books at cost and others even free. Contact the Second Amendment Foundation, at 12500 NE 10th Place, Bellevue, WA 98005; (206) 454-7012.
As your donations continue, check in at the local library to make certain the pro-gun materials really are being made available to readers. Try to gauge which materials are most effective, and then consider spreading your program to other libraries in the community.
Remember, you don't have to bankroll this alone. Local outdoor groups and gun clubs may be willing to support you financially. They may even have a library program of their own.
Your customers may be willing to drop a buck or two into a jar if they know the money is being used to fight the pro-gun cause right at home.
There has been much discussion of the need to recruit youngsters into the shooting sports and pro-gun movement. Providing the proper materials to libraries is an important step in continuing the pro-gun battle on all fronts.
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|Date:||Feb 1, 1995|
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