Failure of gun owners to safely store firearms may have deadly consequences for children

by Jim Orr

Children and Guns: The Hidden Toll, a recent report in the New York Times, suggests that accidental shootings probably occur about twice as often as records indicate. The Times report begins by summarizing just a few of last year’s tragedies.

For example, in Ohio, Lucas Heagren, 3, was killed when he found a pistol that had been temporarily hidden under the couch by his father. Lucas accidentally shot himself through the right eye. Cassie Culpepper, 11, was accidentally killed in Georgia by her 12-year-old brother, who was playing with a pistol his father had lent him to scare coyotes. Believing the gun was unloaded, he pointed the pistol at his sister and squeezed the trigger. In Houston, a group of youths found a pistol in an apartment closet while searching for snack money. A 15-year-old boy was handling the gun when it went off, killing Alex Whitfield who had just turned 11.

Sometimes a gun owner (or even a homeowner who knows there is a gun in the home) fails to take reasonable measures to safely store their gun. If a shooting occurs, the gun owner or homeowner could potentially be held responsible and made to pay damages to the victim or his or her family. The key will be showing that the person in control of the gun or premises was negligent.

Negligent storage of a gun or firearm involves storing the weapon in such a way that it is likely to be misused. For example, consider a situation in which guns are left accessible to children, particularly small children who do not and cannot be expected to appreciate the dangers posed by the weapon.

A Texas court of appeals recently affirmed a judgment in favor of a father whose 2–year-old son was killed by playing with a loaded rifle that had been left within the boy’s reach. John Burton, the father, had gone to a scrap yard to haul scrap metal away. The owner of the scrap yard took Burton’s children—John Edward, who was two years old, and Nicole, who was four—to one of the offices on the premises and left them there to play while the owner and Burton loaded scrap metal onto a trailer. Later, Burton heard a loud noise, jumped off the trailer and ran to the room where his children were playing. He arrived to find John Edward lying dead on the floor next to a shotgun. The owner had failed to inform Burton that he kept a loaded shotgun in the office.

Burton sued the owner of the scrap yard for the wrongful death of John Edward. The trial court entered judgment in a favor the father and the Houston court of appeals in Plasencia v. Burton (Tex.App.–-Houston [14 Dist.] August 29, 2013) affirmed, finding that placing a two-year-old and a four-year-old in a room with an unsecured, loaded shotgun within their reach creates “an unreasonable risk of danger.” Thus, the court found that the owner had breached the duty he owed the Burtons by failing to warn them about the presence of the gun.

Numerous courts around the country have similarly found that a legal claim for damages can be based on negligent storage of a firearm. See Irons v. Cole, 46 Conn. Supp. 1, 8–9, 734 A.2d 1052, 1056 (Conn. Ct. App. 1998) (upholding verdict against parents for negligent storage and maintenance of gun in connection with use of gun by adult child who abused alcohol and was violent towards domestic partners); Foster v. Arthur, 519 So.2d 1092, 1095 (Fla.Dist.Ct.App.1988) (upholding judgment in favor of plaintiff when defendant knew that housemate was not legally allowed to possess or use firearm and that he had previously murdered one man and been involved in another shooting, but still stored her firearm under her mattress); Edmunds v. Cowan, 192 Ga.App. 616, 618, 386 S.E.2d 39, 41 (Ga. Ct. App. 1989) (reversing summary judgment on claim for negligent storage of firearm claim against parent for adult child’s use of parent’s firearm).

In Estate of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265, 266–67 (Ind. 2003), Indiana’s highest court noted that: “Guns are dangerous instrumentalities that in the wrong hands have the potential to cause serious injuries. It is a responsible gun owner’s duty to exercise reasonable care in the safe storage of a firearm.” The court reversed the trial court’s summary dismissal of a lawsuit brought by the estate of a police officer shot by a fleeing fugitive against the fugitive’s parents based on their negligent storage of the handgun used by the fugitive and stated:

Accepting the acts set forth in the affidavits submitted, we conclude that summary judgment is improper. It is alleged that the Stoffers’ stored their handgun between the cushions of a chair in their bedroom. It remains to be seen whether this constituted reasonable and ordinary care in this situation. The Stoffers argue that they did not show Timothy where the gun was hidden, but this is not dispositive. The question is whether leaving a loaded handgun in a hidden but accessible location was reasonable under these facts. This determination is a question for the jury.

Id.; see also Jupin v. Kask, 447 Mass. 141, 143, 849 N.E.2d 829, 832–33 (2006) (reversing summary judgment granted to homeowner on claim for negligent firearm storage when she allowed unsupervised access to property by person with known history of violence and mental instability).

In Gallera v. Koskovich, 364 N.J.Super. 418, 836 A.2d 840, 851 (N.J.2003), the families of two murder victims brought wrongful death claims against a sporting goods store after perpetrators killed victims with handguns the perpetrators had stolen from store. The store filed a motion for summary judgment. The court held that: (1) a commercial seller of firearms has a duty of care to take measures reasonably necessary to protect and safeguard its firearms from theft and subsequent criminal misuse; (2) the store had a duty to victims to prevent the theft and subsequent criminal misuse of its handguns; and (3) the issue of whether any negligence on part of store in failing to prevent theft and subsequent criminal use of its handguns was proximate cause of murder victims’ death was for jury.

Ultimately, the level of care or duty owed by one in control of a gun varies from state to state. Some states impose a duty to exercise a high degree of care in dealing with firearms. Other states impose a duty of ordinary care. There are also federal, state, and local laws that may impose a specific duty on the owner, seller or distributor of guns.

Lawsuits Filed Over Accidental Shooting Deaths

To successfully bring about a claim involving an accidental shooting, negligent storage of a gun or negligent entrustment of a gun, clients need an experienced, educated attorney on their side. They also need an attorney with the financial resources to take the case to trial. At Heygood, Orr & Pearson, we have tried hundreds of cases to verdict and have settled hundreds more. In 2010 alone, we negotiated settlements of personal injury and wrongful death claims totaling more than $50 million.

Heygood, Orr & Pearson also has the financial resources to handle personal injury cases from start to finish. In fact, there are many instances in which we invested hundreds of thousands of dollars in a case in order to take it to trial. At Heygood, Orr & Pearson, we are committed to achieving justice for our clients, whatever the cost.

Our firm is AV-rated, the highest legal and ethical rating available from the leading law firm rating service. Our partners Michael Heygood, Jim Orr, and Eric Pearson are all Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. Mr. Heygood and Mr. Orr are additionally Board Certified in Civil Trial Advocacy Law by the National Board of Trial Advocacy. Our partners been voted by their peers as “Super Lawyers” in the state of Texas for several years in a row.*

Contact the lawyers at Heygood, Orr & Pearson for your free case evaluation and to learn more about your legal right to compensation. You can reach us by calling toll-free at 1-877-446-9001 or by filling out our free legal consultation form.


Michael Heygood, James Craig Orr, Jr. and Eric Pearson were selected to the Super Lawyers List, a Thomson Reuters publication, for the years 2003 through 2013.

by Jim Orr

Jim Orr is a licensed attorney and a partner at HO&P focusing on business and personal injury litigation. Jim was selected multiple times to the Super Lawyers List and has tried 70+ cases to verdict.