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The Foreseeability of Accidental Shootings

Posted by Andrew J. Barovick | Jan 13, 2015 | 0 Comments

A couple of weeks ago, a 2-year-old boy accidentally shot and killed his own mother while she shopped in an Idaho Walmart.

By all accounts, the mother was a smart, professional and otherwise responsible woman. The infant had managed to unzip a specially-designed gun compartment in his mother's purse, from which he withdrew the gun before firing it. How could this have happened , wondered people across the country?  But the more important question is, how can we make it stop?

That got me thinking about tort law, and my first year of law school, when the case of  Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928) would become etched into my brain forever. It is a classic, and addresses the concept of foreseeability, which is a key ingredient in negligence actions.

Even though a female passenger at a train station was injured due to carelessness, the railroad was not responsible. Its employees could not have foreseen that a man who was carrying a wrapped package that turned out to contain fireworks would drop it as he tried to board his train, causing an explosion, which in turn caused a shock that dislodged heavy scales at the opposite end of the platform, which fell on the passenger and hurt her.

But the tragedy in the Idaho Walmart was not so hard to foresee.

  • Was it likely that the manufacturer of the purse knew that buyers might include mothers of young children, who might find a closed zipper compartment tantalizing enough to open it, and find out what was inside?
  • Was it likely that the manufacturer knew that such a mother, possibly harried in trying to manage such young children, might not engage the gun's safety before placing it inside the specially-designed compartment? Or that if she remembered to engage the safety, a toddler might figure out how to disengage it?
  • Was it likely that a young mother carrying her weapon would have it loaded with live ammunition?

Of course it was, in answer to all such inquiries. So if negligence, according to  Black's Law Dictionary , is “the failure to use such care as a reasonably prudent and careful person would use under similar circumstances,” isn't the maker of this special purse negligent? Here, a lack of care and foresight certainly caused, or contributed to, the shooting death of a young, professional woman, mother and wife, in the prime of her life.

If you think the manufacturer has had a sudden epiphany as a result, and will stop selling this product, you haven't been following the recent news about auto manufacturers who buried information showing that defects in their cars were killing people, while continuing to market them to the public aggressively. As the Ford Pinto debacle proved, sometimes it takes a lawsuit.

Why hasn't the recently widowed husband sued the maker of this problematic purse?

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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