WASHINGTON, September 10, 2017 – Those who cause injuries to others should be responsible. The law says “wait,” however, because an analysis of “cause” is in order.
- Gun advocates tell you the cause of a gunshot injury is the person handling the gun.
- Bar owners tell you the cause of a drunk driver auto collision is the drunk driver.
- Dog owners try to divert responsibility when Fido bites someone.
Likewise, Apple says its failure to place the soon-to-be available “Safe Driving Mode” into their earlier model iPhones to prevent texting while driving does not make them responsible for a teen fatality.
Cause in the law follows one of two paths:
- The simple negligence path states that someone who has a duty to others, but then breaches that duty, is responsible for the result or damage done by the breach. As an example, a driver has the duty not to strike a car stopped at a red light. The failure of that duty – striking the rear of the stopped car – renders the driver of the striking vehicle responsible for the damages done to the struck car and the occupants of the struck car.
- The second path is not quite as simple. Legal theories such as foreseeability, and the labeling of certain products as inherently dangerous muddy the discussion of responsibility when an injury occurs.
Guns, other weapons, wild animals, blasting caps, explosives, certain chemicals, certain modified vehicles, and other products and things related to these areas have been uniformly or mostly labeled as inherently dangerous. The owners, manufacturers, dealers, handlers and others in a position to control these products or things are by law “responsible” if an injury results. Things that are inherently dangerous by nature fall into an “absolute, or strict liability” category.
Strict liability laws make owners responsible – period, no defense – for damages or injuries, even if the individual or company found strictly liable was not at fault or negligent.
Guns and other weapons can cause catastrophic damage. The criminal justice system can punish an individual for purposely or recklessly shooting someone, but it does not address civil responsibility or compensation for accidental shootings.
Inadvertent shootings, such as those suffered by children where there was a gun in the home; hunting accidents, regardless of an individual owner’s intent; or even recklessness, can result in the owner being responsible for civil damages. The gun manufacturer however, will rarely be found to be responsible if the gun was not defective in any manner. In other words, if the gun did not malfunction, gun manufacturers have mostly been found not responsible to victims. The same is true – that is, the manufacturer is not responsible – when the gun operator did something illegally.
Gun manufacturers and dealers who negligently or purposely allow guns to get into the wrong hands by filing false paperwork, by negligently letting falsified paperwork to be filed, or knowingly selling weapons to felons or others who should not have them, can find that this is a basis for resulting injuries caused by those guns.
It is foreseeable that a wild animal might harm someone. Thus, if someone chooses to keep such an animal, they will most often be held responsible, regardless of the circumstances of how the injury occurred.
An owner of a dog, however, might not be responsible if the dog bites someone. Many states follow the one bite rule, which basically provides that if the owner had no way of knowing the dog would bite someone, and if the dog’s history did not involve actually seeing vicious behavior such as growling or the like, then the dog gets “one free bite.” This means its owner is not responsible the first time the dog bites someone.
Some states require dog owners, regardless of the dog’s bite history or knowledge of the dog’s propensities or demeanor, to always have their dogs leashed and restrained. In such states, if the dog was not restrained, the owner is responsible regardless of the dog’s history.
Bars, Bouncers and Alcohol
A bar or restaurant owner whose “bouncer” injuries someone can be found responsible for the bouncer’s excessive actions, despite the fact that the owner had no knowledge of what the bouncer would do and despite explicit his or instructions that the bouncer handle situations without causing injury.
Conversely, if a patron comes into the bar and injures another patron, the bar owner likely will not be responsible unless it can be established that the violent behavior was foreseeable.
An example might contrast a five star restaurant incident where police had never been called for any trouble to an inner-city dive bar where police are called every night to make arrests for fights. In the latter, the bar owner would have added responsibility to assure the safety of his patrons, knowing that violence was likely.
Dram Shop laws exist in every state, making bar owners responsible for the injuries caused by people who bought alcoholic drinks in the bar.
There are actually two types of situations governing bar patrons and injuries caused by their intoxication. First party dram shop cases involve the patron becoming injured. Third party cases involve the intoxicated person injuring others.
Some states explicitly prohibit first party cases. That is, if you drink and hurt yourself, the bar that served you the alcohol is not responsible. Even if a state’s law allows a potential claim by the patron, these cases are often very hard to win, because juries tend to think that people should be responsible for their own actions.
A notable exception to this first party rule is when a minor is served alcohol.
Third party dram shop law cases exist in every state. If someone is hit by a drunk driver, and the driver got drunk at a bar, there is a potential good case against the bar owner for damages resulting from the auto collision.
Evidence for dram shop cases often includes whether the bar served someone without requesting proof of age; served someone who appeared intoxicated; or served someone after closing time.
Texting While Driving
An interesting and good court ruling recently made in California involved a driver who was texting on his iPhone. The texting driver struck another vehicle and killed a 20-year old.
Apple could have installed its “Safe Driving Mode” on the iPhone of the driver who killed the teen. The technology is said to prevent texting while a car is in motion. Of note, Apple has announced that this technology will be included in its newest iPhone operating system, IOS 11, set to debut on the tenth anniversary of the iPhone.
The parents of the young man who died sued Apple, claiming that had Apple installed the anti-texting technology sooner, the texting driver’s texting would have been prevented, and, by logical analysis, the death of their son could have been prevented as well.
The court ruled that personal device manufacturers are not liable when individuals use their products in an unsafe manner.
The Apple ruling is the same in legal theory for the line of gun cases that seek to hold gun makers responsible for the shooting deaths of individuals. While such cases are emotionally compelling, the law is mostly reluctant to impose responsibility against manufacturers for the misuse of their products.
As noted above, if a product such as a gun malfunctions and causes injury, or if a mobile phone that catches fire while someone is driving, these occurrences might lead to finding the manufacturer responsible.
Most laws make sense. Will there ever be enough gun violence that, despite the very well funded gun lobbyist efforts, legislators will hold gun manufacturers responsible for the harm that guns do? Hopefully we won’t have to find out.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments. www.thebusinessanswer.com.
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