Negligent Discharge

The Incident

We’ll call him “Mr. Doe.” That’s not his name, but I do not want to embarrass him further. What he did is something no gun owner should ever do, and as a result he was arrested for it. Fortunately for him, his attorney, who is very capable (and who is not me) worked out a diversion agreement for him such that he will not take a weapons charge to a conviction. But I will state again that he is very lucky, and not everyone could have gotten this deal.

Mr. Doe was very upset. He bought a house next to a model airplane club runway. Everyone who bought their house there knew that the field was there, and therefore, they bought their house with certain knowledge that they would hear model airplanes. But in spite of his knowledge Mr. Doe became convinced that his house was being “buzzed” by the model airplanes.

So what he did was go talk to the model airplane folks. They told him they were following club guidelines. They refused, on a bright sunny Saturday, to vacate the field. So Mr. Doe went and got his shotgun and fired off a couple of rounds at the model aircraft. He did not know what he had in the shotgun, or so he told the Deputy. He had to go get a box of the ammunition to show it to him.

Fortunately for the aircraft operators, he was not a very good shot (which is amazing with a shotgun). No aircraft were hit. But one of the pellets impacted a vehicle parked along the club’s parking area, and scared the daylights out of club members. Those club members called the sheriff. The sheriff made an arrest for unlawful use of a weapon.

No one was hurt. But the key thing here is that someone could have been. And more importantly, his actions, had they caused harm, could have resulted in the loss of his house as well as his freedom.

Negligence v. Intent

Surely he would have claimed negligence in a criminal trial, but imagine this cross examination:

You know that a shotgun is a deadly weapon.

Do you know the four rules of gun safety?

The Four Rules. Never point the gun at anything you are not willing to destroy. Keep your finger off the trigger until your sights are on target (and you have made the decision to shoot). Be sure of your target and what is beyond it.

The first rule says never point it at anything you are not willing to destroy.

You pointed the weapon in the direction of the park and shot at aircraft

You know that shot that goes up had to come down.

You don’t know where that shot came down, do you?

You pointed it in Mr. X’s direction.

You weren’t sure what you had loaded in it.

So even if you weren’t trying to hit him, you knew he was downrange.

You would agree you violated all the four rules of gun safety.

So at the very least you were negligent.

But the bottom line is, you were mad.

You told the deputy you were angry.

You told the deputy you didn’t know what else to do.

So is it safe to assume that when you get angry, and you don’t know what to do, you grab a gun to vent that anger?

Sir, you didn’t even know what size shot was in your shotgun did you?

You had to get the box for the deputy

You’re aware that the ammunition you were using has a velocity of 1210 feet per second.

Do you know anyone who can run faster than 1210 feet per second?

And if you didn’t know what you had in it, it surely could have been slugs and you wouldn’t have known.

Your weapon was an Ithaca Model 37, correct.

And that shotgun can be fired repeatedly by keeping the trigger pressed and racking the slide, right.

Sir, you understand that no matter how angry you are, you can’t shoot at people?

You understand that the only time you’re authorized by law to fire at another human being is if that human being represents a threat to you or someone else.

Mr. X did not represent a threat to you, did he.

And he did not represent a threat to anyone else, did he.

You understand you broke the law.

No further questions.

A criminal trial would not have ended well for Mr. Doe.

The Insurance Issue

Insurance covers a homeowner for negligence. Negligence is the failure to use ordinary care. If, in the course of putting the shotgun away, the gun had negligently discharged, that’s something that insurance would cover. It is an accident. It is not intentional. Shooting at something, however, is an intentional act. Case law confirms this. For example, these cases illustrate how courts look at intentional acts: Bohrer v. Church Mut. Ins. Co., 965 P.2d 1258, 1262 (Colo. 1998) (“[I]t is contrary to public policy to insure against liability arising directly against the insured from intentional or willful wrongs, including the results and penalties of the insured’s own criminal acts.”); Everglades Marina, Inc. v. Am. E. Dev. Corp., 374 So. 2d 517, 519 (Fla. 1979) (“[P]ublic policy precludes recovery under an insurance policy when the insured has committed a criminal act with known and necessary consequences.”); Goldsmith v. Green, 47 So. 3d 637, 641 (La. Ct. App. 2010) (“[N]o reasonable policyholder would expect for his own intentional criminal acts to be insured . . .”); Perreault v. Maine Bonding & Cas. Co., 568 A.2d 1100, 1102 (Me. 1990) (denial of coverage “in accord with the general rule that insurance to indemnify an insured against his or her own violation of criminal statutes is against public policy and, therefore, void.”).

Thus, suppose that errant pellet fired by Mr. Doe, instead of hitting that vehicle, had smacked into a club member’s eye and blinded him. Suppose he sued. If his attorney is smart, he claims it was a negligent discharge. But if the shooter is arrested, charged, and convicted then it will be hard to claim that the insurance company’s exclusion for intentional conduct does not apply. While the insurance company will mount a defense (because the duty to defend an insured is greater than the duty to indemnify an insured) it will not necessarily pay a claim for damages without contesting it in court. Thus if the insured gets hit with a large judgment, not only can he not pay damages out of his salary (because he’s in jail) his wife and family are apt to be out on the street if the house is seized and sold for damages.

So, we know that Mr. Doe managed to avoid a lot of problems by virtue of good luck and a good attorney, but you should never count on luck. The four rules of gun safety must always be followed.

And when you’re angry: DON’T GRAB A SHOTGUN!


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