Gun fight at the Justice Corral
Guns of all sorts provide steady fodder for the courts and this month has been no exception.
For instance, there’s the case of a guy who lost his job after his boss’s son decided to grab a shotgun and use him for target practice.
What are the chances that the erstwhile clay pigeon can recover his lost wages?
And how is it that a divorced father can be liable for injuries caused by his son’s wayward use of a paintball gun when the boy was under the supervision of his mother at the time of the accident?
Shotgun alley
You didn’t want to be in Michael Smithhisler’s shoes on Dec. 27, 2007.
Before that day, Smithhisler was a happy-go-lucky employee of Merrill Wolff at Wolff’s Insulation Service in Grant County, Indiana.
But on Dec. 27 the holiday stress apparently got the better of Doug Wolff — Merrill’s son. Yes, good old Doug grabbed a shotgun and opened fire.
We don’t know the particulars, but we do know it must have been a heck of a day at Wolff’s Insulation.
Fortunately, Doug didn’t hit anyone, but after the gunsmoke cleared Smithhisler called the county sheriff, who arrested Doug for criminal recklessness and disorderly conduct.
Smithhisler’s nerves were understandably shattered so he didn’t return to work for several days. When he did, Merrill told him, “I don’t need you any longer.”
While Smithhisler found another job at a lower wage, Doug pled guilty to criminal recklessness for firing a shotgun in the direction of Smithhisler.
And as part of his sentence, an Indiana judge ordered Doug to pay restitution in the amount of $12,789 to Smithhisler for his lost earnings.
The inherent justice of the restitution order seems clear enough, seeing that Smithhisler has a pretty good argument that he was fired because he had called the police on the boss’s son.
But the Indiana Court of Appeals saw things differently.
The court said that even though Doug’s “actions may have indirectly led to Smithhisler’s termination from Wolff’s Insulation and consequent loss of earnings when comparing his 2007 income to his 2008 income, [the state’s criminal restitution law] requires more than that. Because there is no direct and immediate link, it is simply too attenuated to hold Wolff responsible in a criminal proceeding for his father’s actions in firing Smithhisler.”
The court did offer Smithhisler with a glimmer of hope that he might one day be made whole, suggesting that he may have a civil claim against Merrill and Wolff Insulation. (Wolff v. State)
Paintball gun injury
As a father, how could Chris Braden not be open to the idea of getting his 14-year-old son Brian a paintball gun?
After all, kids seem to be spending more time stalking each other with paintball guns than on their bikes these days.
Brian seemed responsible enough. And how much trouble could he really get in with a gun that shoots paintballs?
Unfortunately, after getting the gun from Chris as a gift, Brian took it over to his mom’s house where he shot young Daniel Russell in the eye at close range. Daniel suffered permanent partial loss of sight and permanent disfigurement of his left eye.
Now there’s no way Chris could be liable for negligent supervision, right?
Chris and Brian’s mom are divorced, and Brian was in his mother’s custody at the time of the accident.
This seemed good enough for a Kansas judge who granted Chris a summary judgment on the negligence claims brought by Daniel Russell’s parents.
The problem was that the trial judge sidestepped the custody issue and granted summary judgment on the ground that the accident was not foreseeable, and the Kansas Court of Appeals earlier this month decided that there just wasn’t enough evidence to support that decision.
Chris argued that the trial judge had already found for him on the issue of foreseeability for purposes of a negligent entrustment claim, and that finding was not being challenged on appeal.
But Chris is not out of the woods just yet.
As the state court of appeals explained, “[f]oreseeability for negligent entrustment is not necessarily equivalent to the foreseeability required for negligent supervision. Even if [Chris] knew or believed that he could control Brian at the time that [Chris] entrusted the gun to him, this does not establish that he knew or should have known ‘of the necessity and opportunity for exercising such control’ on the date of the shooting.” (Russell v. Braden)
— Pat Murphy
patrick.murphy@lawyersusaonline.com
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