The case of Herland v. Izatt began when an intoxicated party guest picked up a loaded gun belonging to the host and accidentally shot herself in the head.
Although the host/gunowner was not the subject of criminal charges for the horrific accident, the woman’s family filed civil negligence action, alleging general negligence, premises liability and negligent entrustment.
While the trial court in the case granted summary judgment to defendant, finding he owed no duty of care to his guest, the Utah Supreme Court reversed. Specifically, the high court ruled that gun owners do have a duty to exercise reasonable care in supplying a firearm to an intoxicated individual.
However, the court was quick to point out gun owners are not necessarily liable for damages in cases where a person injures themselves because the victim’s own negligence may well exceed the gun owner’s as a matter of comparative negligence law.
This is especially true in a place like Alabama, which adheres to the rule of pure contributory negligence. Per the 1968 Alabama Supreme Court ruling in Ala. Power Co. v. Schotz and the 1990 ruling in John Cowley & Bros., Inc. v. Brown, a plaintiff who makes a negligence claim will not be able to collect damages if it is shown plaintiff was also negligent.
That means where our wrongful death attorneys in Montgomery would most likely see a claim of gun owner negligence would not be on behalf of an intoxicated party guest, but rather a child. Youth are generally not expected to adhere to the same standards of exercising reasonable care. Alabama does not have a gun storage law creating basis for criminal charges, but that does not mean one couldn’t be held liable for injuries caused by failing to safely store weapons when it’s known children are likely to be present.
Still, the Herland case is an interesting one form a civil liability standpoint in that it clearly establishes a duty of care concerning an impaired person with access to a dangerous instrumentality, such as a gun.
According to court records, defendant invited several friends to his home after a night of drinking. Decedent, 30, was a friend-of-a-friend. The group continued to drink, and decedent became intoxicated. Her blood-alcohol concentration was later measured at 0.25. At some point, decedent gained access to defendant’s handgun, though exactly how that occurred is in dispute, as defendant gave differing accounts. To the 911 dispatcher, he indicated the woman grabbed it out of his cabinet, put it to her temple and pulled the trigger. During the same call, he stated the woman grabbed it off the counter and suggested a game of Russian roulette. He said he told her it was not a revolver so it would fire if the trigger was pulled. He noted the gun is “kinda always out.” He then later told police he had opened the gun case to show decedent a shotgun, and she then grabbed the hand gun. In another version, he stated she gained access to his gun safe after he showed her the shotgun, closed the case and walked away.
Although no criminal charges were pursued, decedent’s family alleged defendant was negligent in allowing her access to a loaded gun despite her severe level of intoxication.
Trial court judge granted judgment favoring defendant prior to trial, but the state high court determined plaintiff should be allowed to have the case heard by a jury. The court made no assertions, however, regarding the strength of plaintiff’s argument. It will be up to the estate to overcome an assertion of greater comparative fault (Utah follows the modified comparative fault bar, meaning if decedent was 50 percent or more at-fault, recovery will be barred).
Call Allred & Allred P.C. at 1-866-942-9315 to speak with a Montgomery personal injury lawyer.
Herland v. Izatt, Jan. 30, 2015, Utah Supreme Court
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Grant v. Wiley Sanders Trucking Lines – Deciding Estate Representative for Alabama Wrongful Death Lawsuit, Dec. 30, 2015, Montgomery Injury Lawyer Blog