When I saw this headline, “Owner of stolen handgun not liable for child’s death even when weapon is kept loaded and visible on car seat,” I couldn’t believe a court would rule this way on so obvious a case of negligence.
When I read the article, I understood.
Matthew Kendall, 16, of Huntingburg, died July 22, 2016, after he was shot in the head with a Glock 9 mm handgun that was taken earlier that day by a 15-year-old boy who was showing the weapon to Kendall when it discharged, according to court records.
Kendall’s mother, Shelley Nicholson, sued Christopher Lee, of Huntingburg, seeking damages for negligence in connection with Lee leaving his loaded handgun visible through the windows of Lee’s unlocked and unattended truck.
However, both the Dubois Circuit Court and a unanimous three-judge Court of Appeals panel said Nicholson’s case cannot proceed because Indiana law immunizes gun owners from civil liability for any subsequent use of their stolen firearms.
The court quoted the law as providing immunity from civil liability based on “an act or omission” of the owner, if the weapon was stolen and later used to commit a crime or harm someone.
Judge John Baker, writing for the Court of Appeals, said the plain language of House Enrolled Act 1349 required the court rule in favor of Lee, because regardless of how Lee stores his handgun, if the handgun is stolen, he is statutorily immune from liability for any resulting harm.
The Judge considered himself bound by what he called “the clear intent of the General Assembly,” which was to shield gun owners from liability even in situations like this, when an owner failed to take even the most minimal precautions to safely store his gun.
It’s hard to imagine anything more negligent than leaving a loaded gun on the passenger seat of an unlocked car. Absent the statute enacted by the Indiana legislature–undoubtedly under the influence of the NRA–the owner would be liable for his own careless behavior, as he should be.
Americans who own homes or other properties are routinely sued by folks who fall on steps or sidewalks that have been negligently maintained, or who are harmed by other obvious hazards that a normal person knows or should know are capable of causing harm to a visitor. Laws that punish us for our own neglect or irresponsibility are there for a reason: to remind us that we have a duty of care, and should avoid negligent behaviors that can cause harm to innocent others.
It is absolutely scandalous that lawmakers (presumably in thrall to the clout of the NRA’s gun nut lobby) decided that a standard of behavior that has informed tort law pretty much forever just needn’t apply to people who might be careless with an inherently dangerous possession–a weapon that has one use and one use only–to injure or kill.
If you have a tree with a loose limb in your yard, you need to take care that it doesn’t fall and hurt someone who might sue you. But if you have a loaded gun available to whoever walks by, no worries.
The Indiana General Assembly has protected you. And gerrymandering protects them.
In Indiana, before you answer: “Have you been saved”? You might as well pull your laminated gun permit and show proof.
So what’s next for legislative invasion of settled tort law? Stolen knife immunity by statute engineered by the knife lobby? Drugs? How about cars left unlocked? Where does this end, or does it? This case is disgusting in its outcome, but I have to wonder how it was tried, i.e., did plaintiff allege that the law was unconstitutional? Or constitutional but inapplicable due to the plaintiff’s obvious negligence which overrode legislative intent? If I were investigating this case I would want to know more about applicable case law in the state, but on its face and as described by Sheila, it amounts to injustice by legislative fiat at the instance of the NRA, which I am now persuaded is a criminal enterprise.
The “general assembly” of what?
They sure are not an assemblage of representatives serving the interests of the people.
This abuse of power is another example of whose interests they serve and granting a waiver to negligence should of itself be unconstitutional.
But Indiana has so many examples of this abuse of power. It’s what comes when you give power to political hacks who sell their souls to Donors and then use gimmicks and tricks like gerrymandering to stay in office, so the checks keep coming in.
It’s not a democracy, and it’s not a republic. It’s a sham and needs to be replaced.
Indiana’s lax gun laws – or the absence of laws – have long been a problem in this state and, per President Obama in a newscast from Chicago, carries over to other states. While in Chicago President Obama was asked about the soaring murder rate in that city; he reported that more than half of the confiscated guns from the murders had been purchased in Indiana due to our lax gun laws.
My Uncle Don, well known by locals for his ads for Don’s Guns stores, was often targeted by police for legally SELLING guns used in murders and traced back to one of his stores. He lobbied for years for Indiana to enact the same background checks on all long gun purchasers as it had on those buying hand guns. Instead, the state of Indiana lowered the requirement on background checks for hand gun customers. He and I often talked about the situation; as long as customers were within the Indiana laws, he was required to sell to them. That was before Pence’s RFRA could have been used with the excuse of being against his religious beliefs in some way.
“It is absolutely scandalous that lawmakers (presumably in thrall to the clout of the NRA’s gun nut lobby) decided that a standard of behavior that has informed tort law pretty much forever just needn’t apply to people who might be careless with an inherently dangerous possession–a weapon that has one use and one use only–to injure or kill.”
My ex-son-in-law was breeding and selling pit bulls; he considered the fact that they were expensive animals and if stolen he would be out a lot of cash. Contacting his homeowner’s insurance resulted in a surprise and an added expense for him; his policy rate was raised to cover the possibility of one of his pit bulls biting someone and him being sued. Maybe the same should apply to gun owner’s insurance coverage?
The fifteen year old boy who shot his friend will no doubt suffer emotionally for the rest of his life for killing his friend.
It is my hope that the community chose to take over where the court system failed and has and will forever hold the gun owner responsible for his irresponsible behavior of leaving a loaded gun on the seat of an unlocked vehicle. Maybe the members of his community have ostracized him and held in contempt for his reckless behavior that resulted in the death of a boy.
I wonder if anyone aware of this case has made an attempt to file a bill within the state legislature to make sure that something like this could never happen again. Maybe something frivolous like “owners must store all firearms under lock and key when they are not personally using them or personally guarding them”? Or something similar that would ensure gun owners must be responsible with the storage of their firearms?
Since the transformation of the Republican Party I have wondered what the draw was for its followers. Its appeal is not just to those upper class whites with their conservative bona fides, but now to any and all who are tired of carrying the load and wanting what their uppers have. And what their uppers have is freedom without responsibility.
The central reason for laws passed by Republican assemblies across the country has been and remains to be to do away with responsibility. They seek a society of unfettered freedom. A freedom to amass wealth and enjoy that wealth without the hindrance of any legal responsibility for how they got it or how they use it.
It started with the financial institutions of the country. Next in line big, dirty industry paid off any legislator they could to get in order to have their very own “not responsible” laws. Retailers and small businesses have also achieved their own get out of jail free cards too. And for the working class there is gun ownership. Ah, gun ownership, that perverted human activity that allows the killing of others in all kinds of circumstances…. and without responsibility.
It has been and remains to be, whether we like it or not, all about responsibility… responsibility FOR ourselves and responsibility TO others. Sadly, we have lost that here in Indiana where by enacting laws we have become a lawless state.
Irvin,
Please read my response this morning to your comment last evening on yesterday’s blog post. Thanks.
Is there any possibility that this case can be used to promote action by the good citizens of Indiana that might move their legislators to change the law? If not, then the case could be made that the people have spoken. Remember that we speak by our inaction as well as by our action.
I have two shotguns I inherited from my dad. I have no ammo and they are stored out of sight in my house. If they were stolen and used in a crime hopefully, I would not be prosecuted.
The incident discussed today is IMHO a case of profound, reckless negligence on the part of the gun owner which our bought and paid for Elected Officials have immunized. I am sure that the Elected Officials who voted in favor of this immunization of reckless behavior will not have a second thought about it.
You would hope that some legislator might try to reverse this law. I will not hold my breath on that. Here in Indiana the bible thumper’s, polluters and the gun lobby rule supreme in our stinking General Assembly.
It’s not just Indiana, folks. The gun insanity lives anywhere the NRA has stimulated testosterone poisoning and stoked the fears of the “other”, home invasion and well, just about anything else. Who knows, as Betsy DeVos says, a grizzly bear could invade a classroom.
If the person was in possession of a permit – it should be revoked for life. I have a CCP from Itasca Co. here in MN. CONCEALED carry permit. And personally: The man should be given life in prison; he in my estimation invited the situation in the first place. but that is just me… humanity should be very glad I am not God!… ~8)
Thank you for writing about this!
Aimie, please read my reply to Irvin this morning on yesterday’s blog post.
The gun only did what it was designed to do- kill people. Careless owner’s backside was well protected by mow rawns in the Lege who knew sooner or later this stuff would occur.
So, just how goofy are Indiana’s laws? Can the perpetrator sue the victim for dying by a lethal, legal instrument? The gun owner should bear responsibility and the perp secondary liability in any sane court in the land.
That case is absolutely disgraceful. The Indiana Legislature is absolutely disgraceful. Tort law considers foreseeability: it is foreseeable that a curious child (or, in this case, teenager) would pick up a handgun left in plain view. It is similarly foreseeable that the child (or teenager) might accidentally shoot himself or someone else in the process of examining the gun and satisfying his curiosity. * Therefore, in view of the foreseeability of death or serious injury by a handgun left where an inexperienced person might access it, tort law says that a gun owner should use reasonable care to secure a handgun–lock it up or put it away in some secure place. It would be left to the discretion of a jury to decide whether a gun owner used the care of a reasonably-prudent person in securing the weapon if a child gets hold of it. At minimum, an unsecured gun that a child might gain access to should never be left loaded.
Apparently, the Indiana Legislature feels that the risk of an adverse jury verdict against a handgun owner whose weapon was obtained without his permission and which was used to hurt someone is a greater harm to society than awarding damages to the family of a child killed by an unsecured handgun. Bear in mind that in Indiana, damages for the death of a child are already capped, and even if we didn’t have a statute to protect gun owners, jury verdicts in Indiana overwhelmingly favor the Defendant in civil cases. Nevertheless, the view of the Indiana Legislature was that the risk of any jury award to the family of a child killed by an unsecured handgun was just too unfair. That is shameful and disgraceful, but just one more example of the ignoramuses that run this State and their misplaced priorities. The case mentions that the handgun statute as a response to a case in which a gun owner was charged with liability for not securing his weapon.
*George Reeves, the original Superman, tells of a personal appearance he made while the Superman series was on the air, at which a young child brought a loaded handgun which he pointed at Reeves. He was intending to pull the trigger in order to watch the bullets bounce off of Reeves’ chest. Reeves, luckily, was able to talk the child out of pulling the trigger, but this story shows that children do not appreciate the danger of handguns.
Norris, I had to chuckle at your response. Then I thought how perfect that would be–pull out my laminated gun permit as proof of my salvation OR as a means to tell the questioner that I did not want to answer their question.
And to Peggy who asks, “Is there any possibility that this case can be used to promote action by the good citizens of Indiana that might move their legislators to change the law?” As Ms Kennedy says, gerrymandering protects our legislators. There has been a very organized effort to get changes to the way our legislative districts are drawn for years and we cannot get anywhere with that. So the thought or hope of mounting an action against the wishes of the NRA by the good citizens of Indiana feels hopeless–at least to me.
I was criminal defense for a guy who had been busted by officers who had a report that he had a rifle in his own yard, no law against it. Indiana had passed a law making officers liable for legal fees if they unlawfully busted someone for gun violations. NRA got the proceeds not the defendant though.
I saw this on a protest poster; “Guns don’t die, Kids do”.
Seems appropriate here.