The Volokh Conspiracy

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Volokh Conspiracy

Leaving gun where drunk person can easily get it may be tortious


So holds the Utah Supreme Court in last week's Herland v. Izatt (Utah Jan. 30, 2015), and the holding applies even when the gun owner leaves the gun accessible in his own home (and the drunk person is a guest):

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….

[I]n cases involving use of a gun, such as this one, the affirmative act giving rise to a duty may be (1) directly supplying or handing a gun to another, (2) placing the gun within reach of another, or (3) consenting (either explicitly or implicitly) to the use of the gun by another.

And the gun owner might be liable even when the drunk people injure or kill themselves, though under Utah comparative negligence principles this will likely be rare:

[I]ntoxicated individuals will likely find it difficult to recover for injuries that are caused, at least in part, by their own intoxication. Utah's comparative fault rule bars recovery where the plaintiff is fifty percent or more at fault…. [S]ome states have concluded that the comparative fault rule completely bars first-party recovery as a matter of law because in their reasoning an intoxicated plaintiff will never be less than fifty percent at fault for injuries he or she causes. But we do not agree with this reasoning, since it is not our prerogative to carve out exceptions to the comparative negligence regime established by the Utah Legislature….

[A]lthough there are competing social policies that favor and disfavor first-party recovery by an intoxicated individual, nothing bars first-party recovery as a matter of law. As a result, Ms. Creager's estate may argue for recovery, but the estate must overcome the high hurdle of comparative negligence in order to prevail, as would any plaintiff whose injury occurs while he or she is voluntarily intoxicated.

Note that the duty is one of reasonable care: If a gun is reasonably secured, or there is no reason to think that a drunk person will get access to it, the gun owner won't be liable just because the drunk person does somehow get it (e.g., by breaking into an otherwise adequately locked case). At the same time, the question whether the owner acted reasonably in a particular case will usually be for the jury.

Finally, note that the logic of the decision would also apply when a gun is left accessible to a child who foreseeably misuses it.