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Thread: Leaving gun where drunk person can easily get it may be tortious. Herland v. Izatt

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    Leaving gun where drunk person can easily get it may be tortious. Herland v. Izatt

    Herland v. Izatt (Utah Jan. 30, 2015) https://scholar.google.com/scholar_c...41583591210943
    Utah public policy supports imposing a duty on gun owners to exercise reasonable care in supplying their guns to others — such as children and incompetent or impaired individuals [who] they know, or should know, are likely to use the gun in a manner that creates a foreseeable risk of injury to themselves or third parties….
    http://www.washingtonpost.com/news/v...y-be-tortious/
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    Regular Member OC for ME's Avatar
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    So much for kids and drunks protecting themselves...way to go Utah Supreme Court.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Read the decision

    This is a case where reading the decision, or at least some important portions of it, will probably set most minds at ease.

    To whit (and noting that court decisions are the property of the public):

    Quote Originally Posted by Utah Supreme Court
    ....
    In this case we are asked to determine whether gun owners have a duty in tort to exercise reasonable care in supplying their guns to intoxicated individuals. We conclude a gun owner does have such a duty. Supplying an intoxicated individual with a gun, just as supplying a car to such a person, creates a foreseeable risk of harm. But the fact that gun owners have such a duty does not mean that they will necessarily be liable for damages when those individuals injure themselves, because in most cases the intoxicated individual's negligence will likely exceed that of the gun owner as a matter of comparative negligence

    The central facts of this case are as follows: after a night of heavy drinking at a party, Neely Creager picked up a loaded handgun and shot herself in the head-a shooting that both parties agree for purposes of this appeal was accidental. Ms. Creager's estate filed this negligence action against Travis Izatt, who was the host of the party and the owner of the handgun. Her estate premised the suit on multiple theories of liability, including general negligence, negligent entrustment, and premises liability. The district court granted summary judgment for Mr. Izatt, concluding that he owed no duty to Ms. Creager. We reverse and conclude that Mr. Izatt may owe a duty to Ms. Creager, who at the time she obtained his gun was severely impaired and posed a risk to herself and to the rest of those attending the party. But this conclusion depends upon how the fact finder below resolves a key factual dispute about whether Ms. Creager gained access to the gun due to an affirmative act or an omission. We emphasize that our holding today concerns only the duty owed by Mr. Izatt to Ms. Creager; we do not decide questions of breach or proximate cause, such as whether Mr. Izatt did, in fact, exercise reasonable care. Nor do we decide the question of whether any fault on the part of Mr. Izatt exceeded the fault of Ms. Creager. For the resolution of these questions we remand for further proceedings consistent with this opinion.
    The decision goes on to address the legal theories and logic used in determining whether a duty of care exists and to examine the difference between acts and omissions. Frankly, there is little to disagree with in the analysis from either a legal or a common sense perspective. The court did not resolve the facts of the case; those were remanded to the lower court. But it effectively said, "Gun owners may be liable for injuries if they provide a firearm to an impaired individual." Basic safety rules would prevent any responsible gun owner from suffering liability under this ruling as it currently stands. Don't hand your gun to someone too drunk, stoned, obviously mentally incompetent, or otherwise clearly unable to safely handle it.

    So long as this decision does not form a basis on which to impose so-called "safe storage" laws, I see no serious problems with it.

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    Quote Originally Posted by OC for ME View Post
    So much for kids and drunks protecting themselves...way to go Utah Supreme Court.
    I agree with OC.

    If I leave a sledgehammer outside and a drunk gets it and kills 100 kids with it ... am I liable?

    My neighbor served in WWII .. he killed more with his shovel in the trenches of Russia/Germany than he did with his gun.

    Anything can kill.

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    Regular Member OC for ME's Avatar
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    The gun owner couldn't get his story straight and he should not own a gun.

    Did Mr. Izatt "supply" the gun, as the court is using the term, how they seem to be defining the term, or did he merely leave it where anyone could possess it? Based on his several accounts I remain unenlightened.

    I wonder if UT defense of person laws will cover a kid who has access to his parents gat? I mean, a child is a child under the law...no?

    If the state cannot be held liable for "acts or omissions" why should a citizen?

    There is nothing reasonable about this decision.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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