Connecticut Law Review
Vol. 32 (2000): 1189
Posted for Educational use only. The printed edition
remains canonical. For citational use please visit the local law library or obtain a back issue.
Armed and Dangerous: Tort Liability for the Negligent Storage of Firearms
Andrew J. McClurg*
Copyright (c) 2000 Connecticut Law Review
I. INTRODUCTION
Overwhelming evidence shows that high percentages of American gun owners negligently store their firearms, leaving them easily accessible to unauthorized, dangerous users. Ten different public health studies of firearm storage practices in U.S. households paint a bleak picture of the dismal level of responsibility we have accepted as a nation for safeguarding the most dangerous of all products.[1] The studies show that millions of guns are kept loaded and unlocked.[2] More than 50% of all handguns are stored unlocked.[3] Ammunition is stored unlocked in between 30 to 40% of gunowning households.[4] About the only good news in the studies is that gun owners with children store their guns safely more often than gun owners without children.[5] Even so, millions of children live in homes with loaded, unlocked firearms.[6]
Unsecured guns invite three types of firearms tragedy. Hundreds of children die in accidental shootings each year in this country.[7] Hundreds [*1190] more use their parents' guns to commit suicide.[8] More than a quarter million guns are stolen in burglaries annually, going directly to criminals who use them for criminal purposes.[9] The author has argued in two other articles for safe gun storage laws as a way to reduce accidental shootings, adolescent suicides and intentional third-party shootings tied to stolen guns.[10] This Article makes the case that unsafe firearms storage constitutes an "unreasonable risk" and is, therefore, negligent conduct under universally-accepted principles of tort law. As such, gun owners and gun sellers who fail to safely store their firearms should be held liable for money damages when unauthorized users gain access to those guns and use them to cause harm. As analyzed in this Article, the common law firmly supports a cause of action for "negligent storage" of a firearm.
Part II of the Article examines the public health evidence establishing that high percentages of American gun owners follow careless firearm storage practices. Part III seeks to prove that storing a firearm in a manner that leaves it accessible to unauthorized users constitutes negligent conduct under tort law. Part IV analyzes and comments upon the common law support for tort liability with respect to the three distinct risks of negligent firearm storage: accidental shootings, adolescent suicides and the criminal misuse of stolen guns. Part V, the Conclusion, offers brief closing remarks.
II. MILLIONS OF NEGLIGENTLY STORED GUNS--THE PUBLIC HEALTH STUDIES
Everyone on both sides of the gun control debate, even the National Rifle Association (NRA), agrees that guns owners must store firearms securely so that they are inaccessible to unauthorized users.[11] On its web site, the NRA admonishes gun owners to "store guns so that they are in- [*1191] accessible to children and other unauthorized users,"[12] acknowledging that "gun shops sell a wide variety of safes, cases, and other security devices" for accomplishing this goal.[13] A popular gun magazine states without equivocation that "all gun owners have the responsibility of keeping their firearms out of unauthorized hands."[14] A writer for the 1999 Colt Firearms Buyer's Guide "recommends storing . . . firearms in a locked cabinet or approved gun safe."[15] Groups as diverse as ammunition manufacturers and pediatric physicians recommend storing guns both locked and unloaded.[16]
Despite universal agreement that guns must be safely stored, large numbers of American gun owners fail to do so. This proposition is firmly established by ten different studies of firearm storage practices, which are reviewed below.[17] The pro-gun movement has been quick to attack the public health studies regarding guns,[18] which is not surprising given that virtually every study reaches conclusions supporting greater gun control or a reduction of guns in homes. As with all statistical studies, aspects of individual storage studies may be subject to critique. Here, reliance is placed not on any individual study, but on the consistent findings of the studies as a whole. The studies should be consulted first hand for detailed information concerning the research methodologies employed. Only the [*1192] highlights are presented below.[19]
A. The Weil & Hemenway Study
Douglas Weil and David Hemenway set out to identify factors associated with the household storage of loaded firearms.[20] In December 1989, a random national telephone survey questioned a sample of 605 U.S. citizens.[21] Key findings:
• 25% of gun owners kept guns loaded in the home all the time and 12% kept guns loaded some of the time.[22]
• 53% of gun owners did not keep firearms locked away.[23]
• Owning a handgun, purchasing a gun for protection, and having no children in the home correlated positively with keeping a gun loaded, meaning the presence of these variables increased the likelihood that guns would be stored loaded.[24]
• Gun owners who were careless in storing guns unlocked were also more likely to keep their guns loaded.[25]
• Firearms training had no apparent effect on whether persons kept guns loaded.[26]
B. The Senturia Study
This study by Yvonne Senturia and fellow researchers investigated [*1193] patterns of gun ownership and gun storage practices in households with children.[27] Parents of 5233 children who attended twenty-nine various pediatric practices located in Chicago, Houston, Georgia, Iowa, New Jersey, South Carolina and Utah were surveyed regarding firearm ownership and storage after the American Academy of Pediatrics released statements concluding that "the most important step to reducing firearm mortality and morbidity affecting children and adolescents is to reduce the availability of firearms in the environments of children and adolescents, particularly in private homes."[28] Key findings:
• Firearm ownership was reported in 37% of the households sampled.[29]
• 32% of gun owners reported storing ammunition unlocked.[30]
• 62% of rifles were stored unlocked.[31]
• 51% of handguns were stored unlocked.[32]
• 27% of handguns were stored loaded.[33]
• Families owning rifles reported safer storage practices (only 1% of households with rifles stored rifles unlocked and loaded) than handgun owning families (13% of handgun owning families stored handguns unlocked and loaded).[34]
C. The Wiktor Study
Stefan Wiktor and colleagues analyzed the results from a telephone survey of 274 randomly selected New Mexico households to investigate the prevalence of firearms in households and firearm storage practices.[35] Key findings:
• 40% of the households surveyed contained at least one firearm.[36] [*1194]
• 24% of participants reported unsafe firearm storage practices, while 65% reported safe storage practices.[37]
• Guns were stored loaded and unlocked in 5% (10 of the 200) of reporting households.[38]
• With respect to the type of gun owned, 40% of households containing handguns only engaged in unsafe storage, 13% of households containing rifles only followed unsafe storage practices, and 31% of households with both types of firearms followed unsafe storage practices.[39]
• Households with handguns only were three times more likely to store guns unsafely than households with rifles, which is consistent with the findings of other studies which have concluded that handguns are stored unsafely more often than rifles.[40]
D. The Chatterjee & Imm Study
Barbara Chatterjee and Pamela Imm analyzed the 1994 Wisconsin Department of Health's telephone survey data to determine the prevalence of firearm ownership and types of gun storage practices in Wisconsin homes.[41] The survey included a sample of 1562 households. Key findings:
• An estimated 48% of Wisconsin's 1,819,000 households contain at least one firearm.[42]
• 56% of gun-owning households store firearms with at least some degree of risk.[43] [*1195]
• 40% of homes stored guns unloaded but not locked.[44]
• 3% of all households fell in the greatest risk category, storing guns both loaded and unlocked.[45]
• In households with children, 58% of respondents reported storage practices in the least risk category (all guns locked and none loaded), a significantly higher percentage than in homes with no children (38%).[46] One percent of homes with children reported keeping at least one gun loaded and not locked (greatest risk).[47]
E. The Senturia Study II
Yvonne Senturia, Katherine Kaufer Christoffel and Mark Donovan designed this pediatric practice-based study to ascertain gun storage patterns in families with children.[48] Data from questionnaires completed by 5233 parents of children attending pediatric practices gathered for Senturia's 1994 study were reutilized, this time focusing on the 1682 families who reported owning at least one gun.[49] Among other topics, the questionnaires asked about gun ownership, types of guns owned, gun storage, and ammunition storage.[50] For the purposes of this study, safe firearm storage was defined as storing all guns unloaded and locked in an area separate from ammunition.[51] Key findings:
• 61% of gun-owning families with children reported keeping at least one unlocked gun in the house.[52]
• 15% reported having at least one loaded gun in the house.[53]
• 7% reported keeping at least one gun unlocked and loaded in the house.[54]
• Handguns were twelve times more likely to be stored unlocked [*1196] and loaded than rifles.[55]
• Only 30% of households reported storing all guns locked and unloaded.[56]
• Ammunition was stored locked by only 42% of families, while 32% of families stored ammunition unlocked.[57]
F. The Forjuoh Study
Samuel Forjuoh, Jeffrey Coben, and Stephen Dearwater investigated the household prevalence of guns and gun storage practices of Pennsylvania residents[58] using data from a statewide telephone survey[59] conducted by the state's health department in 1994. The survey gathered information on firearm ownership, firearm storage practices and household characteristics from 3620 randomly selected households.[60] The survey included questions addressing barriers to firearm use, which were used to categorize gun storage practices.[61] The six categories of barriers were: (1) whether the firearm was kept in a locked place; (2) whether the gun was stored disassembled; (3) if the gun was not disassembled, whether a trigger lock was used; (4) whether the gun was unloaded; (5) if the gun was unloaded, whether ammunition was available; and (6) if the gun was unloaded and ammunition was available, whether the ammunition was kept in a locked place.[62] Key findings:
• 37% of Pennsylvania households contained firearms.[63]
• With respect to safe storage, 70% of homes with one or more firearms had two or more barriers to firearm use, 22% of homes had only one barrier to firearm use (for example, this category would include homes that keep a gun unloaded but have ammunition available nearby), and 6% of homes contained a gun that was [*1197] loaded and unlocked with no barriers to its use.[64]
G. The Goldberg Study
Bruce Goldberg, Evelyn Whitlock and Merwyn Greenlick studied the firearm ownership and storage practices of 4999 health care workers belonging to an Oregon health maintenance organization.[65] A questionnaire was given to 6436 employees, and 78% responded.[66] The survey included two questions regarding firearms: (1) "In our community some people keep a gun in their home, others do not. Do you (or does someone else) keep a gun in your home?"; and (2) "If yes, is the gun kept loaded? (If there is more than one gun, answer 'yes' if any one of them is kept loaded.)."[67] Key findings:
• 42% of the health care workers surveyed owned guns.[68]
• 35% of the gun owners reported keeping a loaded firearm in their home.[69]
H. The Nelson Study
David Nelson led a group of researchers in an investigation of the exposure of adults and children to loaded and unlocked firearms in Oregon households,[70] using data gathered by the Oregon Health Division through random telephone surveys administered in 1992 and 1993.[71] Roughly 75% of those contacted agreed to participate, resulting in interviews with members of 6202 families.[72] Key findings:
• More than 51% of households surveyed owned firearms.[73]
• 10% of adults surveyed reported living in a household with [*1198] guns that were always or sometimes stored loaded and unlocked.[74]
• On the other end of the spectrum, 11.7% of adults reported living in homes where firearms were always locked away and never stored loaded and with ammunition always stored locked.[75]
• Although homes with children reported safer firearms storage, an estimated 40,180 Oregon children below age eighteen live in households where a firearm is always or sometimes stored loaded and unlocked.[76]
I. The Powell Study
Kenneth Powell and fellow researchers studied variations among states concerning household exposure to firearms, loaded firearms, and handguns.[77] Telephone surveys conducted by state health departments in twenty-two states from 1991 through 1995 provided data.[78] Key findings:
• The percentage of homes that kept loaded guns ranged from 1% in Rhode Island to 23% in Louisiana and Mississippi.[79]
• Men were more likely to live in households with guns in general, handguns, and loaded guns.[80]
• Adults in households with children[81] were less likely to have handguns and to keep guns loaded, but the study estimated that more than 1.5 million children in a group of 18 states live in homes where guns are kept loaded.[82]
• The percentage of households with children where firearms are kept loaded ranged from 2% in Connecticut and Delaware to 12% in Kansas and Mississippi.[83] [*1199]
J. The Stennies Study
Gail Stennies with the assistance of several other researchers conducted a random telephone survey of English and Spanish-speaking households from the fifty states and Washington, D.C.[84] The data gathered were weighted to better represent the national population.[85] Although 9342 individuals were contacted, 3630 refused to participate.[86] The researchers completed a total of 5238 interviews concerning gun ownership and storage practices.[87] Firearm storage practices were grouped in one of three categories: (a) all guns kept unloaded and locked; (b) at least one gun kept loaded and unlocked; or (c) any intermediate answer falling between categories (a) and (b).[88] If storage practices fell in category (c), further questions were administered to determine ammunition storage.[89] If storage practices were in category (a) or (b), no questions regarding ammunition storage were administered.[90] Key findings:
• 33.2% of households (1635) kept a gun in the home.[91]
• Among the 1598 households whose storage practices could be classified, 30% reported storing guns locked and unloaded, 48.5% reported intermediate storage practices, and 21.5% reported storing at least one gun loaded and unlocked.[92]
• An estimated 6.8 million American households contain at least one loaded, unlocked firearm.[93]
• Households with children reported better gun storage practices (41.5% stored guns unloaded and locked) than households with no children (20.9% stored guns unloaded and locked).[94]
• 41.5% of households with children reported storing all guns unloaded and locked.[95]
• 11.1% of households with children reported storing at least one [*1200] gun loaded and unlocked.[96]
• An estimated 1.6 million U.S. households with children store at least one firearm loaded and unlocked.[97]
* * *
The ten public health studies reviewed above, while varying in their specifics, are consistent in their findings that millions of guns, many of them already loaded, are easily accessible to unauthorized users of all kinds in millions of homes throughout the country. Because the storage studies use survey methods that depend on self-reporting, it is likely they under-report the true numbers of dangerously stored firearms. Such surveys require gun owners to, in effect, admit to strangers that they engage in reckless behavior endangering their children and communities. While it is almost impossible to think of a reason why gun owners who follow safe storage practices would misrepresent their practices and report unsafe storage, it is quite easy to imagine gun-owners who follow unsafe storage practices, especially in households where children are present, being untruthful to anonymous survey takers about the manner in which they store their firearms.
III. UNSAFE FIREARM STORAGE IS NEGLIGENT CONDUCT: A NEGLIGENCE FORMULA
This section seeks to prove that storing firearms in a manner that leaves them accessible to unauthorized users is negligent conduct under tort law. The test for determining negligence is not in dispute. Negligence is conduct that creates an "unreasonable risk" of harm. The Restatement (Second) of Torts defines negligence as "conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm."[98] The legendary Prosser & Keeton hornbook states similarly that "the essence of negligence" is "behavior which should be recognized as involving unreasonable danger to others."[99]
The test for evaluating what constitutes an unreasonable risk also is undisputed. Section 291 of the Restatement explains that "the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular [*1201] manner in which it is done."[100] The Prosser & Keeton hornbook offers an almost identical risk-utility definition of unreasonable risk, explaining that it "is fundamental that the standard of conduct which is the basis of the law of negligence is usually determined upon a risk-benefit form of analysis."[101]
The reason we use a risk-utility test to determine negligence is simple. Virtually all conduct presents some risk. However, we obviously do not want to brand all conduct as negligent. So negligence law distinguishes between reasonable risks and unreasonable risks, imposing liability only for the latter. How do we decide whether a risk is an "unreasonable" one? About the only way to do so is by balancing the degree of the risk against the usefulness or utility of the conduct to society.[102]
In his famous opinion in United States v. Carroll Towing Co.,[103] Judge Learned Hand cast risk-utility analysis into an algebraic formula for negligence.[104] Hand posited that an act or omission is negligent if the burden of avoiding a risk of injury presented by the act or omission (B) is less than the probability of the risk manifesting itself in injury (P) times the gravity of the injury if it does occur (L).[105] In algebraic terms, if B < P x L, an actor is negligent.[106] Hand's formula is purely a risk-utility analysis, but looked at from a slightly different angle. Rather than balance the risk of the conduct against the utility of the conduct that creates the risk (in this case, it would be the utility of unsafe gun storage), Hand's formula balances the risk against the burden of altering the conduct to eliminate the risk.
Unsafe gun storage fails the risk-utility test for negligence, which can be proved by applying Judge Hand's formula. [*1202]
A. The Risks of Unsafe Firearms Storage
Let us begin with the risk side of the equation. What is the probability of harm resulting from unsafe firearm storage, and what is the severity of that harm when it occurs? The basic risk created by unsafe firearm storage is that an unauthorized user will gain access to the gun and use it to cause harm. Unauthorized users pose three distinct risks of harm: the risk of accidental shootings, the risk of adolescent suicides, and the risk of criminal misuse of stolen guns. Each of these risks must be examined separately.
1. The Risk of Accidental Shootings
Accidental shootings kill hundreds of children each year. In 1995, the most recent year for which figures are available, 440 children and teens were killed in accidental shootings.[107] In 1994, firearms accidents were the fifth leading cause of accidental death for children under fourteen.[108] Ninety percent of all accidental shootings are tied to easy access to household firearms.[109]
The limited evidence available suggests that safely storing firearms works to reduce accidental shootings. In 1989, Florida became the first state to pass a Child Access Prevention or "CAP" law.[110] CAP laws impose criminal penalties for negligent firearm storage when a child gains access to the gun and uses it to cause harm.[111] The year after the Florida law was passed, accidental shootings plummeted 50%.[112] Such a dramatic decline suggests that the CAP law motivated more gun owners to follow safe storage practices and that these practices led to a reduction in unintentional shootings. A study published in the Journal of the American Medical Association[113] supports this proposition. Two physicians studied the [*1203] effects of CAP laws in twelve states and found that accidental firearm deaths of children in those states were 23% lower than expected.[114] The authors studied states in which a CAP law had been in effect for at least one year from 1990 to 1994. While one must be careful of post hoc reasoning, the authors offered several reasons for concluding that the reduced death rates were tied to the CAP laws, as opposed to being caused by other factors: (1) the effect was strongest among those specifically covered by the laws--children;[115] (2) the effect was strongest for the outcome the laws were designed to prevent--unintentional shootings;[116] (3) the states with CAP laws are from all regions of the country and do not appear to share a set of common features other than that they all have safe storage laws;[117] and (4) the estimated change in mortality was based on a comparison within each state before and after the law took effect, meaning that differences between the CAP law states and other states cannot account for the results.[118]
These findings are in accord with common sense. When guns are kept locked up, children are not able to use them as frequently to kill themselves or others accidentally.
2. The Risk of Adolescent Suicides
The second risk presented by unsecured firearms is the risk of adolescent suicides. Suicide is the forgotten statistic in the popular gun control debate,[119] even though forty-six people commit suicide with firearms in the United States every twenty-four hours.[120] Most people are surprised to learn that annual firearm suicides routinely outpace firearm homicides. In 1997, the most recent year for which figures are available, 17,566 Americans committed suicide with a firearm, substantially more than the 13,522 victims of homicide by firearm the same year.[121] Firearm suicides have [*1204] exceeded firearm homicides in forty of the sixty years between 1933 and 1992.[122] For all our fear of being victims of a violent criminal attack, "if a randomly chosen person adds up the probabilities that each of the 5 1/2 billion other people in the world will kill her, the sum . . . is still less than the probability she'll kill herself."[123]
The problem is more acute for youths. Suicide is the second leading cause of death among youths between the ages of fifteen and nineteen[124] and the third leading cause of death for youths aged fifteen to twenty-four.[125] In 1994, 2270 persons under age twenty committed suicide.[126] While the overall suicide rate in the United States has remained relatively stable since 1950, the rate of suicide for adolescents has more than tripled.[127]
Firearms account for 60% of all suicides in this country,[128] including youth suicides,[129] even though they are used in only a small percentage of suicide attempts. The dramatic escalation in adolescent suicide rates[130] is accounted for almost entirely by an increase in the use of firearms as the [*1205] method of suicide attempt, with little rise in suicides by other means.[131] Between 1980 and 1992, guns accounted for 81% of the increase in the suicide rate for persons aged fifteen to nineteen.[132]
Although the overall U.S. suicide rate falls about midway on the worldwide list of suicide rates in industrialized countries, we are number one in suicides by children and adolescents. A study of suicides in twenty-six industrialized countries during a one year period showed that 54% of the total worldwide suicides for children under age fifteen occurred in the United States.[133] The suicide rate for children under fifteen in the United States was two times higher than the rate for the other twenty-five countries combined.[134] The firearm suicide rate in the United States for children under age fifteen is eleven times higher than that of any industrialized nation in the world.[135]
Easily accessible guns in the home (where 90% of all adolescent suicide attempts occur[136]) present a particularly high risk of suicide to adolescents because of their impulsivity and shortsightedness. Adolescents often view suicide as a quick and easy way to escape from pain.[137] They lack the experience to understand that most pain is transitory or even that death is permanent.[138] Minor trials of life--a breakup, bad grade, an argument or the death of a pet--can be the triggering event for a suicide attempt.[139] Studies show that most adolescent suicide attempters do not really want to die,[140] but firearms, as the most lethal form of suicide, offer few second [*1206] chances.[141]
A large body of public health evidence establishes that easy access to firearms significantly increases the risk of suicide.[142] Several studies have found an association between higher rates of gun ownership and higher suicide rates.[143] Several other studies have found that guns in the home substantially increase the risk of suicide to adolescents.[144] The largest, [*1207] most thorough study of the nexus between suicide and guns in the home concluded that guns in the home increase the overall risk of suicide by almost fivefold.[145] Although the pro-gun movement has criticized these studies,[146] no evidence exists to refute them.[147]
3. The Risk of Criminal Misuse of Stolen Guns
The third risk presented by unsecured firearms is the risk that they will be stolen by criminals and used for criminal purposes. Gun thefts are very foreseeable events. From 1985 to 1994, an annual average of 274,000 firearms were reported stolen to the FBI.[148] As of March 1995, the FBI's National Crime Information Center contained more than two million reports of stolen guns.[149]
It is estimated that 80% of stolen guns are taken from private residences.[150] Burglaries occur in the U.S. at the rate of at least 2.5 million per year.[151] All gun owners know or should know that guns in their homes are prime targets for thieves.
Guns are also stolen in large numbers from automobiles. At least 7,000 guns are stolen from automobiles each year.[152] This figure will most likely increase now that thirty-one states have passed Right To Carry laws allowing citizens to carry concealed weapons. Larcenies from automobiles occur at the rate of approximately two million per year.[153] All gun owners know or should know that guns in their automobiles are prime targets for thieves.
Guns are also frequently stolen from gun dealers and interstate carriers, sometimes in large numbers. Data collected by the Bureau of Alcohol, Tobacco & Firearms (ATF) shows that during fiscal years 1996 and 1997, federal firearms licensees filed 5041 gun theft reports involving 24,697 guns.[154] During same two-year period, interstate carriers filed 1872 theft [*1208] reports with ATF involving 4842 guns.[155] Gun dealers and interstate carriers know or should know that guns in their possession are prime targets for thieves.
By definition, all stolen guns go directly into the wrong hands. Thus, not only is it foreseeable that guns will be stolen, it is readily foreseeable that stolen guns will be used for criminal purposes. The most comprehensive gun-tracing study ever undertaken provides strong support for this conclusion. In 1995, President Clinton initiated the Youth Crime Gun Interdiction Initiative (YOGI).[156] YOGI set up a national database to trace guns confiscated at crime scenes for the purpose of determining the original sources of guns used in crime.[157] The program began in 1995 with seventeen cities and was subsequently expanded to twenty-seven cities.[158] Under the program, ATF attempts to trace all confiscated guns back to the original buyer.[159] In February 1999, the ATF released a tracing analysis of 76,260 guns used in crimes in the twenty-seven cities by persons ages eighteen to twenty-four during the past three years. The study found that 35% of the guns--one out of every three guns used in crime--had been stolen from private residences or gun dealers.[160]
Other studies show that substantial percentages of criminals are armed with stolen guns. The United States Department of Justice has collected the following data:
• The 1991 Survey of State Prison inmates showed 9% of inmates who had possessed guns acquired them through theft; 10% had stolen at least one gun and 11% had sold or traded one stolen gun.[161]
• Studies of adult and juvenile offenders by the Virginia De- [*1209] partment of Criminal Justice Services in 1992-93 found 15% of adult offenders and 19% of juvenile offenders had stolen guns; 16% of adults and 24% of juveniles had kept a stolen gun; and 20% of adults and 30% of juveniles had sold or traded a stolen gun.[162]
• A sampling survey of juvenile inmates in four states found more than 50% had stolen at least one gun and 24% had stolen their most recently possessed handgun.[163]
Based on the above data, unsafely stored firearms create a substantial, foreseeable risk that such guns will be stolen and used for criminal purposes.
B. The Burden of Avoiding the Risk
We have seen that the failure to keep guns safely stored creates highly probable risks that they will fall into the hands of dangerous, unauthorized users who will use them to inflict death or grievous bodily injury. However, to arrive at a conclusion that unsafe gun storage is negligent conduct, we must complete the risk-utility analysis. It is now necessary to decide whether unsafe gun storage has sufficient utility in our society that it outweighs the risks of such conduct. In terms of Judge Hand's formula, we must consider whether the burden to gun possessors and to society of eliminating the risk outweighs the probability of the risk times the severity of the risk. If the burden of safe storage outweighs the risks of unsafe storage, unsafe storage is not negligent conduct. Unfortunately for those who wish to avoid the responsibility of safe gun storage, that is not the case. The risk of unsafe gun storage far outweighs the burden of eliminating the risk.
The burden of safely securing firearms is the sum of three components: (1) the financial investment required to achieve safe storage; (2) the inconvenience burden from having to unlock a gun when one desires to use it and lock it up again when not in use; and (3) the interference, if any, with the utility of a safely stored gun for self-defense purposes. It is necessary to examine each component.
1. Financial burden
The safe storage of a firearm will require a monetary investment by the owner in some form of safe storage device.[164] Safe storage devices cu- [*1210] rrently come in three forms: traditional trigger locks, more sophisticated individual gun-locking devices, and gun safes and lock boxes.
Simple trigger locks can be purchased for as little as three dollars.[165] However, they should not be considered an adequate form of safe storage. Traditional trigger locks would prevent accidental shootings by children and perhaps some adolescent suicides, but would not be an effective measure against theft. Effective safe storage requires either: (1) a non-portable gun safe or lock box; (2) a gun lock that cannot be removed by an unauthorized user without rendering the gun inoperable; or (3) a gun that incorporates personalized firearm technology.
A wide variety of gun safes and lock boxes are available to consumers. They range in price from about $150 for an anchorable lock box designed to hold one pistol[166] up to several hundred dollars for large capacity, heavy safes designed to hold multiple guns.[167]
The most efficient and economical means for keeping a gun away from all unauthorized users, including criminals, would be an individual gunlocking device similar to a trigger lock that could not be removed without disabling the firearm. Such a device is most likely technologically feasible. Already, Saf T Lok sells a locking device that fits on the grip or magazine of a gun which, according the manufacturer, "cannot be removed without special tools or damage to the gun, even if the grips are removed."[168] It sells for sixty dollars.[169] Another company sells a trigger lock attached to a security cable that is designed to prevent thefts as well as accidents by allowing the owner to attach the cable to a non-portable object in the household.[170] It costs only nineteen dollars.[171]
The future of safe storage may lie in personalized guns or so-called [*1211] "smart gun" technology, which prevent firearms from being discharged by anyone other than the authorized user. More than one hundred patents have been issued to develop smart gun technology.[172] In January 2000, at SHOT SHOW 2000, the gun industry's annual trade show, iGun Technology Corp. introduced the first personalized firearm, a shotgun that can be activated and fired only by an authorized user wearing a coded ring.[173] The company is accepting orders for the gun and plans to begin shipping them to customers in June 2000.[174] The shotgun is expected to cost approximately $1000.[175] A similar shotgun without personalized technology costs between $200 and $300.[176] However, as with other new technological developments, this cost can be expected to decline, particularly if government regulation or the tort system provides an incentive for the competitive development of smart gun technology.[177]
Some pro-gun advocates advance an economic discrimination argument with respect to the costs of gun safety, the gist of which is that gun safety requirements that increase the cost of gun ownership discriminate against poor people.[178] While the argument has emotional rhetorical appeal, it is substantively unsound. Many products cost more because of safety engineering. As with all other expenditures of life, these costs fall disproportionately on the less affluent. Automobiles, for example, cost more because of required investments in quality control and safety covering everything from crashworthy designs to airbags. However, no one is arguing that auto manufacturers should dispense with safety measures because poor people cannot afford them. This is true even though transportation has much more vital daily utility than firearms.
2. Inconvenience Burden
The physical and mental effort required to keep a gun secure is small. At worst, it is an annoying, minor inconvenience. The time required to lock and unlock a firearm is less than that required to stop at a red light--a similarly common sense safety restriction the law requires us to abide by numerous times each day. The average gun owner retrieves his or her fire- [*1212] arm only on rare occasions. This burden should be entitled to little or no weight in the risk-utility calculus.
3. Self-Defense Burden
Years of participating in the gun control debate have convinced the author that the largest obstacle to a meeting of the minds on most issues involving firearm regulation is differing perspectives on the utility of firearms for self-defense. Gun owners are convinced their firearms may one day save their lives.[179] Gun control proponents believe it is much more likely the same firearms will be used to kill family members or acquaintances.[180]
The self-defense argument creeps into the safe storage debate. Gun owners fear that laws requiring guns to be safely stored will decrease their usefulness for self-defense because they will not be as readily accessible when needed.[181] For example, in a Wall Street Journal op-ed piece, noted pro-gun author John Lott argued against requiring locks on guns: "Locked, unloaded guns offer far less protection from intruders," he asserted, "and so requiring locks would likely greatly increase deaths resulting from crimes."[182]
There are at least four reasons why the "interference with self-defense" argument in the context of safe storage lacks merit. First, most gun owners lack the ability to effectively use even their negligently stored guns in self-defense. As gun experts know, simply "having" a gun does not make it useful for self-defense.[183] Effective self-defense using a firearm requires, like every other skill in life, an organized plan and practice to implement it. In an article on the use of firearms for home defense, a leading expert summed up his advice as follows: "Train yourself or, better yet, get yourself trained."[184] However, too many gun owners simply buy a gun, load it, [*1213] and store it, without thinking about what to do with it if they need it.[185] "Somewhere in the closet," one friend said, when asked where the handgun she keeps for self-defense is stored. Rehearsing self-defense drills with a safely stored gun would result in much quicker response times than most gun owners could presently muster with their unsecured guns.[186]
Second, manufacturers are developing a variety of safe storage devices made with quick access in mind. These devices are designed to be opened or released in a matter of seconds, even in total darkness.[187]
Third, gun experts, including those writing for pro-gun audiences in pro-gun magazines, instruct that guns must be stored in a manner to prevent them from being accessed by unauthorized users.[188] These experts presumably know of what they speak.
Fourth, and perhaps most telling, despite John Lott's dramatic claim of a "greatly increased" death rate from crime resulting from safely stored guns,[189] there is not a single recorded incident of a person suffering injury from a criminal due to an inability to gain access to a secured firearm. This is true even though fourteen states[190] (including three of the nation's four most populous states in California, Florida and Texas[191]) have Child Access Prevention laws imposing criminal penalties for negligent storage if a child gains access to a gun and uses it to cause harm. As dismal as the overall results may be, the firearm storage studies show that approximately half of all handguns are stored locked.[192] If safe gun storage really inter- [*1214] fered with self-defense, is it not reasonable to expect there would be at least some evidence to support this claim?
The bottom line is that gun owners who believe guns offer them protection in the form of self-defense have nothing to fear from safe storage. They have much more to fear from their own lack of training and planning in self-defense tactics. The argument that safe storage would interfere with the utility of a firearm for self-defense is a hollow bogeyman.
C. Conclusion
We have seen that unsecured firearms create probable risks of death or grievous bodily harm in the form of accidental shootings, adolescent suicides, and criminal misuse of stolen guns. On the other side of the equation, the burden of eliminating the risk is minimal. It consists of a one-time financial investment of perhaps a few hundred dollars and some attention to careful handling of an extremely dangerous instrumentality. By any rational measure, the risk of unsafe storage exceeds the burden of eliminating the risk. Thus, the failure to safely store a firearm creates an unreasonable risk and, as such, constitutes negligent conduct under the undisputed test for negligence.
IV. COMMON LAW SUPPORT FOR IMPOSING LIABILITY FOR NEGLIGENT FIREARM STORAGE
Basic tort principles firmly support recognition of an independent claim for the negligent storage of a firearm.[193] Each of three areas of po- [*1215] tential liability is analyzed below: accidental shootings, adolescent suicide and harm from the criminal use of stolen guns. Several courts have approved liability for accidental shootings resulting from negligent storage. For reasons discussed, negligent storage cases involving suicide are and will continue to be rare. When suits are brought, they encounter a roadblock in the traditional rule that an act of suicide is an unforeseeable superseding cause. However, adolescent suicides by use of negligently stored guns in the household are reasonably foreseeable events for which liability is appropriate. With respect to liability for the criminal misuse of stolen guns, common law principles are sufficiently broad to support liability for negligent storage, although current case law is split. Because criminal misuse of stolen guns is the largest risk created by negligent storage and because the author predicts that this controversial area is ripe for an increase in litigation, it receives particular attention.
A. The Highest Degree of Care
Courts recognize that firearms present extraordinary risks and that those who possess them must exercise an extremely high degree of care.[194] [*1216] The Restatement (Second) of Torts states that "those who deal with firearms . . . are required to exercise the closest attention and the most careful precautions, not only in preparing for their use but in using them."[195] In the specific context of negligent storage, the New Jersey Supreme Court stated that "firearms are so inherently dangerous . . . that a person of ordinary prudence in the exercise of reasonable care will take cautious preventive measures commensurate with the great harm that may ensue from the use of the gun by someone unfit to be entrusted with it."[196] A California appellate court, in a negligent storage case involving a Mauser rifle, stated that "a person dealing with a weapon of this kind is held to the highest standard of due care, even a slight deviation from which may constitute negligence in the safeguarding of such a dangerous instrument."[197]
The reason courts demand a higher than normal degree of care in using and handling firearms is because of the magnitude of the risk. As in all negligence cases, the required standard of conduct with regard to firearms is reasonable care under the circumstances.[198] Although the standard of care remains the same, the amount of necessary care is variable according to the circumstances.[199] As the risk goes up, so does the amount of care that is demanded. In the context of dangerous instrumentalities, the Prosser & Keeton hornbook explains:
The amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it. Those who deal with instrumentalities that are known to be dangerous . . . must exercise a great amount of care because the risk is great. They may be required to take every reasonable [*1217] precaution suggested by experience or prudence.[200]
With respect to the storage of firearms, this should translate to a duty on gun owners to take all reasonable and feasible steps necessary to prevent unauthorized users from acquiring their guns.
B. Liability for Accidental Shootings
Numerous courts have held that gun owners may be liable for negligent storage where a child obtains a gun and uses it accidentally to cause harm.[201] The typical fact pattern in accidental shooting litigation involves a child gaining access to a parent's loaded firearm and accidentally using it to cause death or injury to a non-family member. When the child shoots herself or another family member, litigation is not likely to arise for both practical and legal reasons. As a practical matter, no motivated tort plaintiff exists in such situations. If the child is killed, it is not likely the parents will, on the child's behalf, sue themselves for wrongful death. Even if the child survives, she is not likely to be scanning the Yellow Pages for legal representation. Moreover, a substantial legal impediment exists in many states in the form of intra-family tort immunity.[202]
Most accidental shooting cases involve children gaining access to their parents' guns. A representative case is Cathey v. Bernard,[203] where a nine-year-old boy gained access to a loaded pistol stored by his parents on a high shelf in the closet and used it to accidentally shoot and kill a six-year-old who was living in the home as a foster child.[204] The children had been [*1218] instructed never to go near the firearm.[205] No evidence suggested they had ever violated these instructions.[206] The deceased child's mother sued the foster parents and the state agency responsible for placing foster children, alleging negligence on the part of the parents for failing to take reasonable precautions to keep the gun away from children.[207] The trial court ruled that the parents were not negligent and dismissed the suit.[208] On appeal, the judgment was reversed.[209] The appellate court stated the parents had a duty of extraordinary care with respect to controlling access to the firearm, which it determined was breached by leaving the pistol where it was accessible to children.[210]
Non-parent third parties who negligently store guns in places accessible to children can also be liable for accidental shootings. In Wroth v. McKinney,[211] a plumber, accompanied by his four-year-old son, went on a service call to the defendant's home.[212] The plumber was accustomed to bringing his son with him to the defendant's house.[213] While his father worked, the child discovered a loaded revolver on top of a dresser in the defendant's bedroom and fatally shot himself in the head.[214] In holding that the trial court properly overruled defendant's demurrer to the complaint, the Kansas Supreme Court stated "it is well settled that one who has in his possession, or under his control, an instrumentality exceptionally dangerous in character is bound to take exceptional precautions to prevent an injury being done thereby."[215] The court added that it has long adhered to the position that "the highest degree of care" is imposed on persons owning or possessing dangerous instrumentalities such as firearms.[216]
Some courts draw an unsound distinction between loaded guns and unloaded guns in negligent storage cases, holding that only the former constitute inherently dangerous instrumentalities. For example, in Hughes v. Brown,[217] a father stored an unloaded semiautomatic pistol on the top shelf of an unlocked closet adjacent to the master bedroom and stored a loaded magazine for the pistol in an unlocked dresser in the master bathroom.[218] The defendant's twelve-year-old son retrieved both the gun and the loaded magazine while his parents were away from home and two of his friends [*1219] were visiting.[219] While the precise sequence of events is unclear, an accidental shooting ensued, with the result that a bullet became lodged in the neck of one of the visiting friends.[220]
In a subsequent lawsuit against the father and son, the court entered judgment for the father on a negligent storage claim based on the determination that an unloaded pistol, as compared to a loaded pistol, is not a dangerous instrumentality.[221] This reasoning is plainly defective, at least in situations like Hughes involving unlocked guns stored in close proximity to unlocked ammunition. Extending the court's half-reasoned proclamation that "an unloaded gun cannot discharge under any circumstances,"[222] one might argue that an unlit stick of dynamite stored next to a pack of matches is similarly not inherently dangerous.[223] Other courts have more prudently recognized that negligence liability can be imposed for unloaded guns stored in close proximity to ammunition.[224]
Safe gun handling requires storing guns both locked and unloaded. Merely telling children not to play with guns in the house is insufficient care because children are naturally drawn to guns.[225] As the Pennsylvania Supreme Court observed: "It is contrary to every human experience to expect that children . . . would not want to touch and handle a pistol. There is something magnetic about highly engineered firearms with their harmonious lines and graceful proportions which attracts both young and old."[226] Leaving a gun in the household with instructions not to play with it is akin to leaving a bowl of cookies in the kitchen and telling children not to eat [*1220] them. In both situations, it is predictable that children will not follow the instructions.
Even locking guns up is not sufficient care to protect against accidental shootings if the guns remain easily accessible to children. In Spivey v. Sheeler,[227] the court reversed a directed verdict in favor of the parents of an eleven-year-old boy who gained access to a .25 caliber pistol from a locked gun cabinet and accidentally shot a playmate with it.[228] The son, Robert, was in the family home with several friends after school.[229] On their way out to play kickball, they stopped to examine a gun cabinet with a glass front, containing several guns.[230] The cabinet was locked, but Robert climbed on something and obtained a key from the top of the cabinet.[231] He unlocked the cabinet and the boys passed around several of the guns.[232] Robert removed the .25 caliber pistol and, waving it around, pulled the trigger.[233] It discharged and wounded his friend.[234] Stating that loaded guns are highly dangerous instrumentalities and that the propensity of young boys to be attracted to guns is a matter of common knowledge,[235] the court held that reasonable persons would not be precluded from finding negligence on the part of the parents.[236]
Several courts have rejected liability in accidental shooting cases. Generally, these cases are based on a determination that no duty of care was breached, rather than a determination that no duty was owed. However, the degree of care demanded by some courts is so lax as to amount to [*1221] no duty at all. In Hall v. McBryde,[237] the court ruled that the defendant father had a duty of care to protect plaintiff, who was shot by defendant's son, from a firearm the father kept stored under a mattress in his bedroom. However, the court upheld a factual determination by the trial court that the duty was not breached because the father had no knowledge that his son knew of the presence of the gun.[238] In Ozols v. Irving,[239] the court found no breach of duty where a homeowner kept a loaded gun in an unlocked nightstand, which her nephew used to accidentally shoot the neighbor.[240]
A Louisiana court went so far as to suggest that no duty at all exists to safeguard firearms from adult children, even where it is alleged the parents had reason to know the child was dangerous. In Brisco v. Fuller,[241] a child over the age of majority took his father's shotgun and fired it at plaintiff with the intention of frightening, but not striking, him. The plaintiff was injured in the blast. He sued the assailant's parents, alleging negligence in leaving the shotgun and ammunition in a place accessible to their son, who they allegedly had reason to know was dangerous.[242] In rejecting liability, the Louisiana appellate court stated: "We do not believe that, under the facts alleged in this case, the law of Louisiana currently places a duty on gun owners to conceal or hide their guns from a 'dangerous' person who might take them without the owner's permission."[243] The court reached this conclusion despite recognizing that loaded guns are dangerous instrumentalities that impose a duty of extraordinary care on those in control of them.[244] The court avoided this rule by stating that it applies only with regard to minor children.[245] The court did not attempt to explain how an inherently dangerous instrumentality alters its status and become less dangerous depending on the age of the misuser.
Courts which give their imprimatur to leaving unlocked guns, either loaded or stored with ammunition nearby, in households with children present must be viewed, at best, as misguided. The rule is well-established that firearms are dangerous instrumentalities[246] imposing on their users the highest degree of care, even a slight deviation from which constitutes neg- [*1222] ligence.[247] It is impossible to reconcile these standards with the failure to store guns locked and unloaded in homes where they are accessible to children. Unsecured firearms present grave risks of accidental shootings by children; a risk which prudent courts have recognized gun owners have a duty to eliminate under negligence law.
C. Liability for Adolescent Suicides
Not surprisingly, there is a dearth of reported cases involving the issue of tort liability for unsafe storage of a firearm that leads to an adolescent suicide, despite the fact that this is an all-too-common occurrence.[248] Suicide is highly stigmatized in our culture.[249] Because of this stigma, suicides are often hushed up or reported as accidents. This stigma makes it even less likely than in cases of accidental shootings involving family members that a motivated tort plaintiff will exist to bring suit.
Negligent storage lawsuits involving suicide face a stiff legal obstacle in the form of the amorphous, policy-rooted negligence element known as "proximate cause."[250] Traditionally, courts have viewed suicide as an unforeseeable intervening cause that supersedes an original act of negligence as the sole proximate cause of an injury.[251] Several courts have taken this [*1223] position in firearms cases.[252] However, adolescent suicides by means of negligently stored firearms kept in the household are reasonably foreseeable events based on the coalescence of seven factors:
1. Suicides are the leading type of firearm fatality, occurring at the rate of 17,000 per year.[253]
2. Firearms account for 60% of all suicides.[254]
3. Firearms are present in 40% of American households.[255]
4. Ninety percent of adolescent suicide attempts occur in the home.[256]
5. Significant percentages of adolescents experience suicidal ideation.[257] Between 6 and 13% of adolescents actually attempt suicide at least once in their lives.[258]
6. The largest study of its kind showed that guns in the home increase the risk of suicide by almost fivefold.[259] Directly relevant, several studies have found an association between [*1224] household gun prevalence and higher adolescent suicide rates.[260]
7. Firearms are the most lethal method of suicide, succeeding in eight or nine of every ten attempts.[261]
An analogy between liability for accidental shootings by children and firearm suicides by adolescents is apt. Just as children lack the mental and mechanical experience and matruity to handle guns safely in a way to prevent accidents, adolescents lack the mental and emotional experience and maturity to handle despair in a household with an easily accessible firearm. Adolescents ofter attempt suicide impulsively, not understanding the ramifications of their actions.[262] Unsecured guns in homes with teenagers create a reasonably foreseeable risk of suicide, at least in situations where the gun owner knows or should know that the adolescnt suffers from other risk factors associated with suicide, such as substance abuse, depression or mental illness. In such cases, the suicide becomes more readily foreseeable and an easier case exists for finding proximate cause.
Some courts have been willing to depart from the general "no proximate cause" rule where facts exist that would put a reasonable person on notice that a person with access to a firearm may be suicidal. In Davis v. Cax,[263] a mother sued her adult daughter for leaving a loaded pistol in the drawer of a chest in the room where her senile father stayed.[264] The father was known to be mentally incompetent and allegedly suffered from bouts of "wildness."[265] He obtained te gun from the drawer and used it to kill himself. The Georgia court saw no distinction between this case and those imposing liability for negligent storage in accidental shooting cases involving children. Framing the "true issue" in the case as one of foreseeability,[266] the court reversed a summary judgment in favor of the defendant daughter, stating it was not unforeseeable that a senile patient would retrieve a loaded gun fron a nearby drawer and use it to harm himself or another.[267] [*1225]
Adolescent firearm suicides are one of the most horrific of all gunrelated statistics. The threat of tort liability for negligent storage resulting in suicide would bolster the motivation of gun owners to safely secure their guns.
D. Liability for Criminal Misuse of Stolen Guns
The imposition of tort liability upon a negligent actor when the direct harm-causing agent is the intervening criminal act of a third party has long been controversial.[268] No doubt, the most contentious proposal in this Article is that gun owners and gun sellers should be liable for damages when a thief gains access to a negligently stored gun and uses the stolen gun to intentionally cause harm. However, it should not be controversial for the following five reasons: (1) the risk of guns being stolen and used in crime is readily foreseeable;[269] (2) the burden required to eliminate the risk is relatively modest;[270] (3) firearms are inherently dangerous instrumentalities subjecting their possessors to the highest degree of care under tort law;[271] (4) there is unanimous agreement among experts, including the NRA, that gun owners bear a responsibility to safely store their firearms to prevent access to them by unauthorized users;[272] and (5) flowing in part from number four, no sound policy argument exists against imposing a duty to safely store a gun. As discussed below, basic tort principles and public policy both support the proposition that possessors of firearms owe a duty to prevent theft of their firearms to avoid the criminal misuse of such guns.
1. The Policy-Based Nature of the Duty/Proximate Cause Puzzle.
Traditionally, courts refused to impose liability for negligent acts where a criminal intervened to directly inflict the harm. Today, the trend is to recognize, at least in some contexts, that one may owe a duty to take [*1226] reasonable precautions to prevent foreseeable criminal attacks.[273] The law in this area is in a state of disarray. Attempting to compare and distinguish these cases based on their legal reasoning is an exercise in frustration because support can be found for any position.[274] The reason for the chaos is that, although judicial opinions in the field of negligence liability for criminal attack are dressed up in the language of legal analysis, they are, in truth, purely policy-based evaluative judgments.
Virtually all cases involving negligence liability for criminal attacks, including those involving negligent firearm storage, purport to turn on the elements of "duty" and "proximate cause"[275] along with their damnable, murky companion, "foreseeability." Duty and proximate cause have long been sources of confusion for law students and lawyers alike, who search in vein for concrete rules on which to base such determinations. The confusion stems from the fact that no such concrete rules exist. Both duty and proximate cause determinations are rooted in notions of public policy, not positive law.[276] The intertwining of the two elements is so complete that the Prosser & Keeton hornbook observes that it is possible to restate every question involving proximate cause in terms of whether the defendant owed a duty to protect the plaintiff from the harm that occurred.[277] Stripped of the "foreseeability" cloak in which they are usually attired, duty and proximate cause are simply two ways of looking at the identical question: as a matter of fairness and public policy, do we want to extend liability under a particular set of circumstances in which the defendant's [*1227] conduct contributed to a risk that injured the plaintiff?[278]
It is submitted that, in the context of the criminal misuse of stolen guns, an affirmative answer is justified by the five reasons listed at the beginning of this section.[279] To the extent tort liability for criminal misuse of stolen guns is viewed as extreme, it is only because our national mind-set towards legal responsibility for maintaining such a dangerous instrumentality has been unconscionably lax.[280] The imposition of tort duties responds, as it must, to changing social conditions.[281] Just as the increasing foreseeability of violent crime against patrons on business premises has spurred courts to impose duties on business invitors to protect against criminal attack, the data establishing that more than a quarter million guns are stolen each year[282] and that 35% of guns used in crime are stolen[283] should prompt courts to impose a tort duty of safe storage to prevent gun theft.
Indeed, liability for the criminal misuse of a negligently-stored stolen gun is much easier to justify under negligence law than liability for defendants in premises liability cases--the principal area of tort litigation involving criminal attacks. A primary policy reason for the judicial reluctance to impose duties to protect against criminal attack (or, alternatively, to find proximate cause satisfied) is the potentially enormous burden such a duty may entail for defendants. Critics of premises liability argue, with some justification, that violent crime is random. It involves unpredictable assailants attacking unpredictable victims in unpredictable places at unpredictable times. There is only so much a business landowner can do to protect patrons from a person hell-bent on committing a criminal act. [*1228]
These concerns formed the basis for the California Supreme Court's noteworthy decision in Ann M. v. Pacific Plaza Shopping Center,[284] which restricted the duty on business owners to protect against criminal attacks on their premises. In an earlier case, the court had imposed an expansive duty on business landowners to protect tenants and patrons from third party crime in the form of a general foreseeability test, without regard to whether prior similar incidents had occurred on the premises.[285] In backing away from this broad standard in Ann M., the court stated: "Unfortunately, random, violent crime is endemic in society. It is difficult, if not impossible, to envision any locale open to the public where the occurrence of violent crime seems improbable."[286]
To ease the burden on business owners, the court replaced its general foreseeability test with a test that requires balancing the foreseeability of the criminal attack against the burden of preventing the attack, stating:
In cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. Or, as one appellate court has accurately explained, duty in such circumstances is determined by a balancing of "foreseeability" of the criminal acts against the "burdensomeness, vagueness, and efficacy" of the proposed security measures.[287]
The specific question faced in Ann M. was whether the defendant shopping plaza was negligent for failing to hire security guards to patrol the premises as a means of preventing the sexual assault that occurred against plaintiff.[288] Requiring businesses to hire security guards to patrol business establishments to protect against criminal attacks, though justified in many circumstances, imposes a considerable financial burden. Moreover, it carries little guarantee of success. The plaintiff in Ann M. may have been attacked even if security guards were patrolling the premises.
Contrarily, safe firearm storage is neither unduly burdensome nor vague. Unlike the burden of protecting unknown persons from unknown criminals, the burden of safely storing guns is narrowly defined and self-contained. It is not a general duty to protect the public. It is a narrow duty to safeguard an inherently dangerous instrumentality.
Additionally, safe gun storage, if performed correctly, is an extremely efficacious way of eliminating the risk that a dangerous, unauthorized user [*1229] will acquire an unsafely stored gun. Unlike the situation in premises liability cases, the connection between assuming the burden and eliminating the risk is direct rather than tenuous. If a gun is safely stored in a nonportable locked container or equipped with a locking device or personalized technology that disables the weapon to unauthorized users, it cannot be stolen and used for criminal purposes.
Most cases imposing a duty to protect one against third party crime require a special relationship between the defendant and the victim, such as that of business invitor-invitee, innkeeper-guest or, less frequently, landlord-tenant.[289] The special relationship requirement serves as a means of restricting the burden of the duty within manageable bounds. A duty also arises where a special relationship exists between the defendant and the source of harm if the defendant knows or should know that the source of harm poses a risk and defendant has the ability to control the source of harm.[290] In these cases, the nature of the duty is not that of protecting the victim, but of controlling the source of harm.[291] Relationships giving rise to such a duty include parent-child, master-servant, and jailor-prisoner.[292]
By analogy to the special relationship model, one could characterize the proposal in this Article as also grounded in a special relationship--between the defendant and the physical source of harm. In comparison to the vague, weighty burden of trying to control dangerous human beings, the burden of controlling a firearm is de minimus. Gun owners have complete physical and legal control over their guns, giving them a nearperfect ability to control the source of harm. In contrast to dangerous human beings, guns do not have minds of their own and are not capable of independent movement or action. They are small, inanimate, easily securable items that can be controlled efficiently and effectively.
Given the relative risks and burden, public policy strongly supports both the encouragement of safe storage and the condemnation, legally and otherwise, of unsafe storage as a way to prevent the criminal misuse of stolen guns. Courts should interpret the policy-based elements of duty and proximate cause with a view towards furthering both goals. [*1230]
2. The Foreseeability Test
To the extent that a legal standard does exist for determining the existence of a tort duty or proximate cause, it is a test of the "reasonable foreseeability" of the harm.[293] As malleable and imperfect as it is, foreseeability is well-established as the predominant test for evaluating both duty and proximate cause in tort cases, including firearms litigation involving intervening criminal attacks. Thus, as to proximate cause, a Florida appellate court, in a case involving an illegal gun sale to a minor who used it to shoot a third person, stated that "the test for determining proximate cause is foreseeability."[294] Similarly, as to duty, in a negligent storage case involving a person who stole a gun from his grandmother and used it to shoot plaintiff, the New Jersey Supreme Court stated that "foreseeability of harm is the crucial factor in determining whether a duty exists to take reasonable measures to guard against the criminal activity of others."[295]
The test set forth in the Restatement (Second) of Torts for negligence liability based on the criminal acts of a third party is also grounded in foreseeability. Section 302B states: [*1231]
An act or omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.[296]
A comment to this section states that "normally the actor has much less reason to anticipate intentional misconduct" than merely negligent conduct.[297] It adds that one may generally assume that third parties will not violate the law.[298] However, another comment makes it clear that a reasonable person is required to anticipate and guard against even criminal misconduct where the actor is under a special responsibility to the victim or "where the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account."[299]
Section 448 of the Restatement is also relevant. It provides that criminal acts by third persons are generally considered superseding causes, "unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime."[300] A comment to this section states that, generally, an actor is not responsible for creating a situation that affords an opportunity for or temptation to a third person to commit a crime.[301] However, a subsequent comment adds that "there are certain situations which are commonly recognized as affording temptations to which a recognizable percentage of humanity is likely to yield."[302] If an actor should realize that his negligent conduct might create such a situation, a criminal act of a third person is not a superseding cause that relieves an actor from liability.[303] Taken together sections 302B and 448 of the Restatement make it clear that one may be liable for conduct that creates a foreseeable risk of an intervening criminal attack.
Physical harm caused by the criminal misuse of stolen guns is a reasonably foreseeable risk of unsafe storage. As already established, data shows that more than a quarter million guns are stolen each year in the United States.[304] Moreover, the most comprehensive tracing study of guns used in crime recently showed that one in three of all crime guns are stolen [*1232] from private residences or gun dealers.[305] Thus, both the likelihood that guns will be stolen and that stolen guns will be used in crime are highly foreseeable. As one court said (rejecting a claim that a gun manufacturer had a duty to warn purchasers of the risk of theft), the theft of guns and their subsequent criminal misuse are "widely known, commonly recognized" realities.[306] To the extent courts disagree and say that gun thefts and the use of stolen guns in crime are unforeseeable,[307] they are simply masking their own value-laden policy decisions in the black box of foreseeability.
"Reasonable foreseeability" under tort law does not require that the precise sequence of events or manner of injury be foreseeable.[308] It is sufficient that the same general kind of harm was a foreseeable consequence of the defendant's risk-creating conduct.[309] Numerous courts have held in firearms-injury cases that an intervening criminal act does not necessarily cut of liability.[310] Indeed, several courts have specifically recognized that gun thefts and subsequent misuse are foreseeable consequences of negligent storage.[311] As seen below, when courts reject liability in negligent storage cases involving stolen guns, they frequently base their analysis on a [*1233] perceived lack of foreseeability. However, they do so by erroneously focusing on whether the defendant could have foreseen the specific twists and turns of the events leading to the shooting, rather than on the forseeability of the general risk.[312] Such a picayune approach to foreseeability is not justified in this context in light of the relatively small burden of eliminating the risk. Courts should follow the approach adopted by the California Supreme Court in Ann M. that "in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required."[313] While a gun owner may not know the identity of the particular person who will steal his unsecured gun or precisely what he will do with it, the risk that someone will steal an unsecured gun and use it to cause mayhem is very foreseeable.
3. Deterrence
Tort liability for harm caused by stolen guns would deter unsafe storage practices by giving all gun owners a powerful legal incentive to exercise care in the storage of their dangerous instrumentalities. Currently, nearly half of all gun owners lack any legal motivation to store their firearms safely. Child Access Prevention laws, in effect in fourteen states, help motivate gun owners with children to safely store their guns by imposing criminal penalties for negligent storage where a child acquires a gun and uses it to cause harm.[314] Moreover, as discussed above, several courts have demonstrated a willingness to hold gun owners tortiously accountable for allowing children to gain access to guns.[315] However, approximately 40% of gun owners live in households without children and, hence, are unaffected by existing legal incentives to engage in safe storage practices.[316]
With the imposition of liability for harm inflicted by stolen guns, one can predict insurance companies would step into the picture with restrictions that would enhance the deterrent impact of liability on unsafe storage practices. Insurance companies might offer lower premiums for gun owners who follow safe storage procedures, much like the discounts that are given to homeowners who act to reduce the risk of fire damage by maintaining smoke alarms and fire extinguishers.[317] Some companies might refuse to issue liability coverage for household firearms, with the likely [*1234] effect of reducing the number of guns kept in homes. Insurers would also be likely to help educate insureds as to the risks of unsafe gun storage through mailings or advertisements.
Lawful, rational gun owners, faced with the threat of liability for the foreseeable risks of unsafe gun storage, could be expected to invest in safer behavior to avoid not only the monetary exposure of tort liability but the social stigma that would attach to it. By failing to demand safe firearm storage, we have fostered a culture of accepted irresponsibility among our nation's gun owners. Tort liability would send a loud message to gun owners that the careless safeguarding of such a dangerous instrumentality is no longer socially acceptable.
4. Case Law
Existing case law on liability for the criminal misuse of stolen guns is split. Several cases have approved liability in stolen gun cases, but almost all of them involve situations where the assailant who "stole" the gun was a member of the household where the gun was stored.[318] A representative case is Reida v. Lund.[319] In Reida, Michael Clark, age 16, took his father's Swedish Mauser military rifle from a locked cabinet in the garage, stationed himself on a hill overlooking a highway and, inexplicably, used the rifle to kill three motorists and injure others before committing suicide with the rifle. According to his parents' testimony, Michael never displayed any signs of emotional instability and had never been in trouble at school or with the police.[320] The key to the gun cabinet was kept in his father's dresser drawer, a location known to Michael.[321] In a subsequent lawsuit against his parents for "failure to keep the rifle out of Michael's hands,"[322] the trial court granted summary judgment for the parents. A California appellate court reversed, stating that "a person dealing with a weapon of this kind is held to the highest standard of due care, even a slight deviation [*1235] from which may constitute negligence in the safeguarding of such a dangerous instrument."[323] Analogizing firearms to other dangerous instrumentalities such as blasting caps,[324] the court said that the question of whether adequate safeguards have been taken is usually a question of fact for the jury.[325]
Other courts have taken a similar position. In Seabrook v. Taylor,[326] a fourteen-year-old boy got into a dispute with two playmates. He went into his house, retrieved his mother's loaded, unlocked .22 caliber pistol from a bedroom closet, came back out and began shooting, injuring the two playmates.[327] In affirming a verdict against the boy's parents for negligent storage, the court stated that possession of a loaded firearm imposes "'a very serious and grave responsibility'"[328] on the owner, giving rise to "'a duty of exercising not simply ordinary, but extraordinary care.'"[329]
In Gaffney v. City of Chicago,[330] a jury returned a verdict for $1.575 million against a Chicago police officer and the City of Chicago for a fatal shooting inflicted by the defendant officer's son using his service revolver. The defendant stored the gun unloaded, but with ammunition next to it, in an unlocked cabinet.[331] The son took the revolver and ammunition and used it to kill plaintiff's decedent at a party.[332] A jury found the storage to be negligent and a proximate cause of the shooting.[333] The verdict was reversed, but only on the issue of whether there was sufficient evidence to show the police officer was acting within the scope of his employment in [*1236] storing the revolver at his home.[334] The court took "it as a given that the gun was negligently stored and that this negligence was a proximate cause" of decedent's death.[335]
More problematic for plaintiffs are cases where an unknown third party steals a gun and uses it to kill or injure. These cases involve strangers who steal guns from dwellings, automobiles, gun shops, gun manufacturers or interstate carriers and use them in crime. Only a handful of courts have addressed this issue, which is perhaps surprising. The results are split, although the "no liability" cases outnumber the "pro liability" cases.
Shifting public opinion towards firearms responsibility, combined with the substantial recent increase of ATF gun-tracing efforts, may portend an increase in lawsuits for the criminal misuse of stolen guns that were negligently stored. Given the growing data showing the high risk that guns will be stolen and used in crime and the comparatively low burden of reducing that risk by investing in theft-proof gun storage devices (or, in the near future, personalized gun technology), such lawsuits have substantial merit. This is a critical area where the law may, and should, be poised for a leap forward. However, judges must first be persuaded that the public policies supporting safe storage outweigh the antiquated view that it is permissible for persons who own a lethal instrumentality to neglect their responsibility to safeguard it from foreseeable thieves.
Because this area is ripe for litigation, close scrutiny of the relevant case law is warranted. However, as cautioned in the earlier section regarding the policy-based nature of duty and proximate cause determinations,[336] judges and lawyers should avoid reading too much into the reasoning offered in individual cases. All of the cases denying liability for criminal misuse of stolen guns purport to be grounded in a legal analysis of duty and/or proximate cause. In the cases rejecting liability, the reasoning usually assumes the form of a conclusory analysis that the theft of the gun and subsequent criminal act were not foreseeable. However, these analyses are merely vehicles for the judges' evaluative, policy-based decisions that it is undesirable to impose liability in such cases.[337]
Chronologically and symbolically, an appropriate point of departure is the 1983 decision of the District of Columbia Circuit Court of Appeals in [*1237] Romero v. National Rifle Association.[338] The widow of a man killed in a robbery sued the NRA and an employee of the organization, asserting negligence in the fact that the gun used to kill her husband was stolen in a burglary from the organization's national headquarters.[339] A jury exonerated the individual defendant, but returned a verdict against the NRA.[340] However, the trial court granted the NRA's motion for judgment notwithstanding the verdict, which was affirmed on appeal.
The appellate court's opinion affirming the j.n.o.v. commits an error oft-repeated in negligent storage cases involving the criminal misuse of firearms: analyzing foreseeability at a far-too-narrow level of abstraction. Purporting to apply a duty and proximate cause analysis based on "fairness,"[341] the court concluded that the chain of events was too "extraordinary and unforeseeable" to hold the organization responsible for the murder of plaintiff's decedent.[342] In so holding, the court focused narrowly on the foreseeability of the precise sequence of events, stating:
The chain of events in this case is . . . extraordinary and unforeseeable, encompassing Lowe's [the NRA employee] storage of the weapon, a burglary of the annex, a search of Lowe's desk, discovery of his hidden closet key, a search of the closet, discovery of the gun and ammunition, use of the gun in a robbery, Gonzalez' [the victim] resistance to the robbery, and the ultimate murder of Gonzalez by someone not a party to the original burglary. . . . "To foresee the convergence of all these events . . . would constitute an act of prophecy, one based not on reasonable likelihood, but on sheer conjecture."[343]
Of course, the court is correct that this exact chain of events was not reasonably foreseeable. But why should the question of foreseeability be framed so narrowly? The logically relevant question is: "Does the failure to store a firearm in a gun safe or with some other type of theft-proof gunlocking technology create a foreseeable risk that the gun will be stolen by a criminal and used for criminal purposes?" The answer to this question, it is submitted, is affirmative. One need not be able to anticipate the precise manner in which a harm occurs if the same general kind of harm was fore- [*1238] seeable.[344]
The Montana Supreme Court committed the same error in Strever v. Cline,[345] a schizoid decision in which the court found a duty to store firearms safely to keep them out of the hands of criminals, but then went on to relieve a grossly negligent gun owner of liability based on a "no proximate cause" determination.[346] Eleven-year-old Robert Strever died from a gunshot wound to the head accidentally inflicted by his friend.[347] The gun used in the incident was stolen by Robert and his companions from the defendant's pickup truck that was parked unlocked on a public street.[348] Located in plain view in the unlocked vehicle were several items likely to attract the attention of thieves or curious children, including a radar detector, binoculars, fishing rod, and case of cassette tapes.[349] The boys entered the pickup truck and stole several of the items, then returned to the vehicle looking for more items to steal.[350] Under the driver's seat they found a white bag containing a Ruger .22 caliber semiautomatic pistol and ammunition.[351] While one of the boys attempted to remove the loaded magazine from the gun, it discharged, killing Robert.[352]
The court had no problem holding that "as a matter of law, the owner of a firearm has a duty to the general public to use and to store the firearm in a safe and prudent manner."[353] However, after finding a duty based on an analysis that was at least partially grounded in the foreseeability of the risk,[354] the court turned around and found that the sequence of events leading to Robert's death was not sufficiently foreseeable to satisfy the element of proximate cause.[355] As in Romero, the court erred in this analysis by concentrating too narrowly on the foreseeability of the precise trail of events, rather than the general foreseeable risk created by leaving a loaded [*1239] gun in an unlocked vehicle parked on a public street.[356] Although the court is to be commended for finding a duty to safeguard firearms and ammunition, its misguided proximate cause analysis exonerated a reckless actor whose conduct arguably rose to the level of demonstrating a conscious indifference for human life.
Exemplifying the shifting sands of duty analysis, one court declined to find a duty to store firearms safely to prevent against theft despite conceding that gun thefts are readily foreseeable. In McGrane v. Cline,[357] plaintiff's decedent was fatally shot in a robbery. The gun used to commit the murder was stolen by the assailant from the home of the defendants while the assailant was visiting the defendants' sixteen-year-old daughter.[358] The court refused to impose "a duty on the part of a firearm owner to prevent the theft of that firearm from his or her residence."[359] The court reached this decision even though it "acknowledged that burglary is an all too common occurrence today, particularly in urban and suburban settings, and that firearms are frequently stolen during a burglary."[360] The reasoning offered by the court for refusing to recognize a duty was that "there are too many issues of legitimate public debate concerning the private ownership and storage of firearms."[361] With respect to storage, the court is flatly wrong. There is no legitimate debate--indeed, there is no debate at all--concerning the responsibility of gun owners to safely store their guns to keep them out of the hands of unauthorized users.[362]
The two remaining cases rejecting liability for harm inflicted with stolen guns involve guns stolen from commercial gun sellers. These cases set [*1240] particularly imprudent precedent. Commercial gun sellers are in the business of selling dangerous instrumentalities for profit. As such, there is a stronger fairness argument for imposing responsibility on them for the risk of theft created by their business activities. Moreover, the magnitude of the risk is greater with regard to commercial sellers of firearms. They are natural targets for criminals seeking guns because it is public knowledge that firearms are kept on the premises. Commercial gun sellers also maintain much larger stockpiles of weapons than most private owners.
In Louria v. Brummett,[363] two minors stole two shotguns from a K-Mart store. They used the guns to shoot a deputy sheriff who was responding to a complaint about gunshots being fired at an abandoned school.[364] The shooting victim and his wife sued K-Mart alleging a failure to take proper measures to secure the guns from theft.[365] In holding that the alleged negligent storage was not a proximate cause of the shooting because the resulting crime was unforeseeable,[366] the court analogized the case to premises liability cases in which the plaintiff asserts negligence on the part of a business invitor for failing to protect him or her from a criminal attack on the premises.[367] However, the analogy is not apt because of the relative burdens involved. As discussed earlier, the burden of protecting unknown persons from unknown assailants is potentially a heavy one, with no guarantee of success.[368] To the contrary, the burden of safeguarding a dangerous instrumentality to prevent its theft by unauthorized users is a modest, narrowly-defined burden.
In rejecting liability, the court followed the common avoidance technique of focusing on foreseeability far too narrowly. The court stated:
The minors committed their first crime by breaking into and stealing guns from K-Mart. . . . Secondly, the minors the following day broke into the Shinlever School. Finally, after resisting arrest, the minors shot and wounded officer Louria. For K-Mart to be liable, they would have had to foreseen a crime upon a crime. . . .[369]
Again, the logically relevant foreseeability question is not whether the defendant could or should have foreseen the precise chain of events but whether it could foresee that negligently stored firearms would be stolen and put to criminal use. Judge Franks concurred because he felt bound by precedent of the state supreme court.[370] However, he expressed his belief [*1241] that the court's view of foreseeability was too restrictive.[371] In determining the scope of liability, he advocated weighing the risk to society of unsafe storage against the burden to society of requiring safeguards.[372] As has been argued throughout this Article, risk-utility analysis of this type cries out for liability for negligent storage.
A Maryland case rejecting liability for a gun seller in a negligent storage case demonstrates how the failure to properly identify the nature and scope of the burden and duty in negligent storage cases can be fatal to the plaintiff's cause. In Valentine v. On Target, Inc.,[373] two men stole several handguns from a retail gun dealer. Two months later, an unknown assailant used one of the guns to murder Joanne Valentine.[374] Valentine's husband and minor children filed a wrongful death action against the gun dealer alleging it owed a duty "to exercise reasonable care in the display of handguns held out to the public for sale to prevent theft and illegal use of the handguns."[375] However, the complaint failed to describe the manner in which the guns were negligently displayed,[376] a fact the majority opinion found significant[377] and the concurring opinion found dispositive.[378]
The majority analyzed the issue in terms of duty (while noting there is no real difference between a duty analysis and a proximate cause analysis).[379] However, the court misapprehended the nature and scope of the duty and correlative burden. The court characterized the duty as one to protect the "world at large" from criminals and concluded that such a broad duty would impose a "tremendous burden" on gun sellers while providing only a "hypothetical benefit to the public."[380] Framed in this manner, the purported duty became a straw man easily knocked down. Certainly, a duty to protect the world at large from criminal elements would be a tremendous burden with only a small chance of successfully being borne.
However, that is not the duty at issue in negligent storage cases. The duty is not one to protect the public. It is a very narrow duty to safeguard a dangerous instrumentality. The corresponding burden of assuming this duty is modest.[381] Judge Raker concurred, but only on the ground that the complaint failed to allege any facts as to how defendant stored or displayed the guns.[382] He recognized the flaw in the majority's burden analysis, [*1242] stating the imposition of liability would not entail an indefinite duty of protecting society from harm, but "would merely impose upon a store owner a duty to exercise ordinary care in the storage and display of handguns held out for sale to the public."[383]
When the duty and burden are viewed at their proper levels of abstraction, a different result is commanded, as shown by Kimbler v. Stillwell.[384] Stillwell broke into defendant's retail store and stole a shotgun and shells. Later the same night, Stillwell used the shotgun and shells to murder plaintiff's son.[385] Plaintiff sued the gun retailer alleging negligence in: displaying the shotguns and ammunition in plain view both during business hours and at night when the store was closed; failing to secure the guns by cables or trigger locks or some type of protective enclosure; failing to keep the ammunition locked in a separate location; and failing to secure the stores' external doors with proper locks and alarms.[386] In response to the defendant's argument that plaintiff was seeking to impose a duty on the defendant to prevent the criminal acts of third parties, the Oregon Court of Appeals stated: "That is not the duty plaintiff has alleged that the defendant owes. Defendant's duty here is that of a merchant to display merchandise in a safe manner."[387] The court reversed the trial court's dismissal of the complaint.[388] This decision was subsequently affirmed by the Oregon Supreme Court;[389] however, Kimbler has been called into question by a later case.[390]
One clearcut victory for the plaintiff came in Pavlides v. Niles Gun Show, Inc.[391] The victim of a shooting sued the operator of a gun show from which the crime gun was stolen by a group of minors.[392] Four minors, ages thirteen to seventeen, paid admission and twice entered the defen- [*1243] dant's gun show despite a policy prohibiting entry by unsupervised minors.[393] The boys stole several handguns, which according to one of the boys, was "easy" because they were "just laying around" on tables.[394] Among the stolen weapons was a .38 caliber pistol for which the thirteen-year-old was able to purchase ammunition at the gun show.[395] One of the boys used the .38 caliber pistol to attack two men, including plaintiff, who was shot in the chest and left paralyzed.[396]
The lawsuit alleged negligence in allowing access to the gun show by unsupervised minors, failing to require that guns be displayed in a manner that kept them secure from theft and in allowing vendors to sell ammunition to minors.[397] The court found defendant owed a duty to prevent unsupervised minors from entering a gun show where unsecured firearms are displayed[398] and that the chain of proximate causation was not severed by the intervening criminals acts.[399] In contrast to the decisions criticized above, the Pavlides court took a more generalized and reasonable approach to foreseeability. Rather than concentrating on the foreseeability of each and every act in the chain of events, the court stated the relevant question to be: "Should the defendants have foreseen that children who successfully steal a firearm and purchase suitable ammunition at its gun show would use the loaded firearm in the pursuit of criminal activity?"[400] Reasonable minds, the court opined, could answer this question affirmatively.[401] Much of the court's reasoning focused on the fact that the criminals were minors. However, it is just as foreseeable that the guns left lying around unsecured on tables in a place open to the public will be stolen by adults and used in crime.
As in other areas of negligence liability for criminal attacks, decisions involving negligent storage liability for the criminal misuse of stolen guns run the gamut. Although duty and proximate cause principles are sufficiently broad to support liability, several courts have wielded them to deny liability. Plaintiffs pursuing cases in this field should take care to educate courts about the risks of unsecured guns and the comparatively small burden of eliminating the risk. In particular, plaintiffs must make sure courts understand that the duty they are seeking to impose is not a broad, indefinite duty to protect the world at large from criminals, but a narrow duty to [*1244] safeguard a dangerous instrumentality. To satisfy courts regarding the foreseeability requirement, plaintiffs should collect and present as evidence specific data regarding the prevalence of gun thefts and the likelihood that stolen guns will be used in crime. The substantially increased efforts by the ATF to trace guns used in crime has already provided and will continue to provide valuable evidence to plaintiffs in this regard. Finally, plaintiffs have on their side the unanimous agreement among experts that gun owners owe a responsibility to safeguard their firearms to keep them out of the hands of unauthorized users.
V. CONCLUSION
As established in this Article, the failure to store firearms in a manner that renders them inaccessible to unauthorized users is negligent conduct on the basis that the risks of unsafe storage far outweigh the burden of safe storage. These risks include large numbers of accidental shootings by children, adolescent suicides and an untold inventory of harm inflicted by criminal misuse of stolen guns. The burden of eliminating these risks is modest: a one-time financial investment in a safe storage device or technology and the time and attention required to use it. No evidence supports the claim that safe firearm storage interferes with the utility of guns for self-defense purposes. Despite the substantial risks of unsecured firearms and the relatively small burden of eliminating the risk, tens of millions of firearms are stored unlocked, often loaded, in households throughout America. Millions of guns are negligently stored in homes with children.
It seems odd that the tort system has not assumed a more active role with regard to the unsafe storage of firearms. Firearms are classified as "inherently dangerous instrumentalities" by courts, subjecting those who possess them to the "highest degree of care," even a slight deviation from which constitutes negligence. All experts, including the NRA, agree that gun owners have a responsibility to safeguard firearms from unauthorized users. It appears the appropriate question regarding liability for unsafe gun storage should not be "why" but "why not?"
The public reacted with shock and outrage earlier this year when six-year-old Kayla Rolland was shot to death by a first-grade classmate with a .32 caliber semiautomatic pistol that was stored loaded and unlocked in the assailant's residence.[402] Authorities responded forcefully. State officials charged the man who negligently stored the gun with involuntary manslaughter and a federal grand jury indicted him for possession of a stolen firearm.[403] However, this incident, while tragic, is unique only in the fact [*1245] that it involved an extremely young killer. Day in and day out, around the clock, negligently stored guns are being used to kill and wound other innocent people. Their losses are just as tragic. While the nineteen-year-old African-American drug user charged in the Kayla Rolland case may make an attractive villain, it is hypocritical to focus all our ire on him and to marshal the vast resources of the state and federal governments against him, while ignoring irresponsible gun safety practices being carried on by millions of "legitimate" gun owners.
Negligent gun storage is pervasive and unreasonably dangerous. Public policy cries out for the imposition of tort liability for negligent storage. Tort principles solidly support such liability. Courts should respond accordingly.
* Nadine H. Baum Distinguished Professor of Law, University of Arkansas at Little Rock School of Law; Visiting Professor, Wake Forest University School of Law, Spring 2000. E-mail: ajmcclurg@ualr.edu. I am once again indebted to Debby Vickers, a second year student at the UALR School of Law, for her excellent long distance research. Thanks to Jim Gwinn, Jason Pratt, and the rest of the Connecticut Law Review staff for their gracious hospitality and hard work in organizing and assembling an excellent symposium. This Article is the third in a trilogy of articles I have written regarding unsafe firearms storage. The first two articles argued for safe firearms storage laws. This Article, which draws from the earlier articles, addresses tort liability for negligent storage.
1. See infra notes 20-97 and accompanying text for a review of these studies.
2. See infra note 93 and accompanying text.
3. See infra note 32 and accompanying text.
4. See infra notes 30, 57 and accompanying text.
5. See infra notes 24, 46, 76, 82, 94 and accompanying text.
6. See infra note 97 and accompanying text.
7. In 1995, the most recent year for which figures are available, 440 children and teens were killed in accidental shootings. See Dianne R. Stepp, School Watch; Students Signing 'No-Guns' Pledge; Safety Issue: Parents of Many Middle School Pupils Will Get Copies of the Promise About Gun Safety During Their Next Teacher Conference, ATLANTA J. & CONST., Oct. 15, 1998, at 4JG, available in LEXIS, News Library, Atljml File. In 1994, firearms accidents were the fifth leading cause of accidental death for children under 14. See Corttney McClelland et al., Assessing Firearm Safety in Inner-City Homes, 17 N & HC: PERSPECTIVES ON COMMUNITY 174, 175 (1996).
8. See infra notes 119-47 and accompanying text for data regarding adolescent firearms suicides.
9. From 1985 to 1994, an annual average of 274,000 firearms were reported stolen to the FBI. See MARIANNE W. ZAWITZ, U.S. DEP'T OF JUSTICE, GUNS USED IN CRIME 3 (1995).
10. See Andrew J. McClurg, Child Access Prevention Laws: A Common Sense Approach To Gun Control, 18 ST. LOUIS U. PUB. L. REV. 47 (1999) [hereinafter McClurg, Child Access Prevention Laws]; Andrew J. McClurg, The Public Health Case for the Safe Storage of Firearms: Adolescent Suicides Add One More 'Smoking Gun', 51 HASTINGS L.J. (2000) [hereinafter McClurg, The Public Health Case] (final page numbers not yet available; copy on file with author and available by request).
11. Indeed, this is one of the only gun-related issues on which the pro-gun and pro-control forces agree. See Andrew J. McClurg, The Rhetoric of Gun Control, 42 AM. U. L. REV. 53, 110-12 (1992) (offering opinion that there appears to be little room for middle ground in the gun control debate and explanation for same).
12. NRA HQ, A Parent's Guide to Gun Safety (visited April 15, 2000) <http://www.nrahq.org/safety/education/guide.shtml>.
13. Id.
14. Bill O'Brien, Securing Your Handgun, GUNS & AMMO: HANDGUNS FOR HOME DEFENSE, 1994, at 40.
15. Frank James, All About Gun Safety, in 1999 COLT FIREARMS BUYER'S GUIDE 72, 72 (1999).
16. See Mark D. Polston & Douglas S. Weil, Unsafe by Design: Using Tort Actions to Reduce Firearm-Related Injuries, 8 STAN. L. & POL'Y REV. 13, 14 (1997) (citing recommendations by Sporting Arms and Ammunition Manufacturers' Institute and American Academy of Pediatrics that guns should be stored unloaded and locked).
17. A more complete summary of the same studies is contained in McClurg, The Public Health Case, supra note 10.
18. Many of the public health studies in the field of firearms are funded by the U.S. Center for Disease Control (CDC). See generally Gary Taubs, Violence Epidemiologists Test the Hazards of Gun Ownership, 258 SCI. 213 (1992) (discussing several such studies). The CDC decided to study violence as a public health problem in 1983, and created a violence epidemiology branch to carry out the studies. See id. at 214. The CDC-funded studies have generated vigorous attacks by pro-gun forces. See, e.g., Les Fisher, Traditional Public Health Injury Control Does Not Apply to Violence, 5 J. INT'L SOC. CHILD & ADOLESCENT INJ. PREVENTION 13, 14 (1999) (stating NRA has succeeded politically in limiting government's public health response to firearms injury reduction by blocking appropriation bills for CDC); Edgar A. Suter, Guns in the Medical Literature--A Failure of Peer Review, 83 J. MED. ASS'N GEORGIA 133, 133 (1994) (criticizing alleged "errors of fact, design and interpretation" in CDC-funded studies); Taubs, supra at 215 (discussing efforts of NRA to shut down CDC's firearms research); Don B. Kates et al., Public Health Pot Shots: How the CDC Succumbed to the Gun "Epidemic," REASON, Apr. 1997, at 24 (criticizing CDC-funded studies as being based on advocacy and political beliefs rather than scientific fact). Pro-gun forces refuse to concede even that firearm violence in the United States constitutes a public health issue worthy of study by the CDC. See Daniel D. Polsby, From the Hip, NAT'L REV., Mar. 24, 1997, at 33, 34 (commenting derisively on CDC studies that gunshot wounds have "now been deconstructed into a 'disease'").
19. The studies are reviewed chronologically by date of publication.
20. See Douglas S. Weil & David Hemenway, Loaded Guns in the Home: Analysis of a National Random Survey of Gun Owners, 267 JAMA 3033 (1992).
21. See id. Questions were asked to develop a statistical base to analyze four key variables regarding gun ownership: (1) type of gun or guns owned; (2) reason for owning a gun; (3) presence of children in the home; and (4) type of firearm training received, if any. Persons owning handguns were categorized separately from persons owning no handguns. Those who purchased a gun for protection were grouped apart from persons who owned guns for all other reasons. People who lived with children were distinguished from those who had no children in the home. Finally, respondents who had formal firearms training were contrasted with persons who lacked training. Additionally, gun owners were asked, "Do you sometimes keep your gun loaded, always keep it loaded, or never keep it loaded?" Id. at 3034. Persons who never kept guns loaded were distinguished from those who always or sometimes kept guns loaded. See id.
22. See id. at 3035
23. See id.
24. See id.
25. See id.
26. See id. This finding is interesting because the NRA promotes education as the primary means of achieving firearms safety. See NRA Institute for Legislative Action, FACT SHEET: "Child Access Prevention" Laws, Are They Responsible for the Decrease in Fatal Firearms Accidents Among Children? (visited Mar. 30, 2000) <http://www.nraila.org/research/19990728-TirggerLockMandatoryStorage-001.html> (making case against Child Access Prevention laws; promoting NRA's "Eddie Eagle" firearms education program for children).
27. See Yvonne D. Senturia et al., Children's Household Exposure to Guns: A Pediatric Practice-Based Survey, 93 PEDIATRICS 469 (1994).
28. Id. at 469.
29. See id. at 471.
30. See id.
31. See id.
32. See id.
33. See id.
34. See id.
35. See Stefan Z. Wiktor et al., Firearms in New Mexico, 161 W.J. MED. 137, 138 (1994).
36. See id. at 138. This percentage comprised 79 households. Twenty-seven percent of the house-holds contacted (74) refused to participate. See id.
37. See id. Firearm storage practices were classified in four categories: (a) all firearms stored locked; (b) at least one firearm stored unloaded and unlocked with no ammunition nearby and no other firearm stored in a less safe manner; (c) at least one firearm stored unloaded and unlocked with ammunition stored nearby; and (d) at least one loaded firearm stored unlocked. See id. at 137-38. The authors considered the first two categories to constitute safe storage and the last two categories to be unsafe storage. See id. at 138. Eleven percent of firearm owners' storage practices were unknown because of an unwillingness or inability to indicate storage practices. See id.
38. See id. Although the difference was not statistically significant, households with young children were less likely to follow unsafe storage practices than households with no young children. See id. at 137.
39. See id.
40. See id. at 139.
41. See Barbara F. Chatterjee & Pamela Imm, Firearms Prevalence and Storage Practices in Wisonsin Households, 95 WISC. MED. J. 286, 286-87 (1996).
42. See id. at 287.
43. See id. at 287, 290. Firearm storage practices were categorized as follows: (1) "least risk," meaning all firearms were kept locked and unloaded; (2) "some risk," meaning each firearm was stored with partial precautions (for example, firearms stored locked but loaded, or stored unloaded but unlocked; and (3) "greatest risk," meaning any or all guns were stored loaded and unlocked. See id. at 287.
44. See id.
45. See id.
46. See id. at 289.
47. See id.
48. See Yvonne D. Senturia et al., Gun Storage Patterns in US Homes with Children: A Pediatric Practice-Based Survey, 150 ARCHIVES OF PEDIATRICS & ADOLESCENT MED. 265 (1996).
49. See id. at 266.
50. See id.
51. See id. at 267.
52. See id. at 266.
53. See id.
54. See id.
55. See id.
56. See id.
57. See id. at 267. Nineteen percent of the families reported keeping no ammunition. See id. The study does not account for the missing 7% necessary to make the percentages add up to 100%.
58. See Samuel N. Forjuoh et al., Firearm Ownership and Storage Practices in Pennsylvania Homes, 2 INJ. PREVENTION 278 (1996).
59. The Behavior Risk Factor Survey (BRFS) is a health survey conducted by the Centers for Disease Control to collect population-based data on behavioral health risks that contribute to the leading causes of death. When states participate in BRFS, the state's health department typically conducts the actual phone survey. See id. at 278-79. The BRFS is a source of data for many of the gun storage studies discussed in this section.
60. See id. at 279.
61. See id.
62. See id. Households with multiple firearms were categorized by the least secured firearm. See id.
63. See id. at 279, 281.
64. See id. at 280. The storage practices of 23% of survey participants could not be categorized because they refused to answer some questions regarding storage practices, did not know, or were uncertain how to respond. See id.
65. See Bruce W. Goldberg et al., Firearm Ownership and Health Care Workers, 111 PUB. HEALTH REP. 256 (1996).
66. See id.
67. Id.
68. See id.
69. See id.
70. See David E. Nelson et al., Population Estimates of Household Firearm Storage Practices and Firearm Carrying in Oregon, 275 JAMA 1744 (1996).
71. See id.
72. See id. The surveys asked questions regarding firearm ownership and storage practices, with the storage practices being sorted into the following groups: "(1) no household firearms; (2) firearms always or sometimes stored loaded and unlocked (least safe storage); (3) firearms stored never loaded, always locked, and ammunition always stored locked (safest storage); and (4) all other practices." Id.
73. See id. at 1745.
74. See id.
75. See id.
76. See id. at 1745-46.
77. See Kenneth Powell et al., State Estimates of Household Exposure to Firearms, Loaded Firearms, and Handguns, 1991 through 1995, 88 AM. J. PUB. HEALTH 969 (1998).
78. See id. Though questions varied somewhat from state to state, participants in the surveys were generally asked if there was a firearm in the household, if there was a loaded firearm in the household, or if there was a handgun in the household. As with all studies based on self-reporting, the methodology limits the reliability of the results. See id.
79. See id. at 970.
80. See id.
81. Census data from 1990 was used to estimate the number of children living in homes where guns were kept loaded. See id. at 969.
82. See id. at 970.
83. See id.
84. See Gail Stennies et al., Firearm Storage Practices and Children in the Home, United States, 1994, 153 ARCHIVES OF PEDIATIATRICS & ADOLESCENT MED. 587 (1999).
85. See id. at 587.
86. See id. at 588.
87. See id.
88. See id. at 587.
89. See id.
90. See id.
91. See id. at 588.
92. See id.
93. See id. Southern households were more likely to store at least one firearm loaded and unlocked (17.6%) than the rest of the country (7%). See id.
94. See id.
95. See id.
96. See id.
97. See id.
98. RESTATEMENT (SECOND) OF TORTS § 282 (1965) (1965).
99. W. PAGE KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 31 (5th ed. 1984).
100. RESTATEMENT (SECOND) OF TORTS § 291.
101. KEETON ET AL., supra note 99, § 31. A WESTLAW search offers some indication of the extent to which risk-utility analysis pervades negligence law. Nearly 8000 judicial opinions contain the words "negligence," "risk," and "utility." Search of WESTLAW, ALLCASES Library (Feb. 11, 2000) (search terms: "negligence & risk & utility").
102. In economic terms, risk-utility analysis under negligence law reflects the general deterrence model of tort law, which is grounded on the notion that tort law should be constructed to promote the efficient allocation of resources. Under this view, the policy of tort law is not to eliminate accidents, but to optimize the number of accidents. To accomplish this, the deterrent model holds that tort liability rules are (or should be) designed to induce actors to expend resources on safer behavior up to the point where the marginal cost of increased safety exceeds the marginal reduction in accident costs. See William M. Landes & Richard A. Posner, The Positive Economic Theory of Tort Law, 15 GA. L. REV. 851, 865-72 (1981). If liability rules are fashioned in this way, people will invest in safety at the optimal level because they know it will cost them more if they fail to do so. See WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 16-17 (1987). Put more simply, economically efficient tort rules deter risky behavior that is not cost-justified.
103. 159 F.2d 169 (2d Cir. 1947).
104. See KEETON ET AL, supra note 99, § 31 n.46 (equating Judge Hand's formula for negligence with risk-utility analysis).
105. See id. To the author's knowledge, no one has ever explained why Judge Hand used "L" rather than "I" to represent what he called "the injury." See id. Perhaps he was thinking in terms of "loss."
106. See id.
107. See Stepp, supra note 7, at 4JG.
108. See McClelland et al., supra note 7, at 175.
109. See Adrienne T. Washington, Unlocked Guns Are an Open Door to Tragedy, WASH. TIMES, Dec. 1, 1998, at C2.
110. See FLA. STAT. ANN. § 784.05 (West 1992 & Supp. 2000).
111. Fourteen states have passed CAP laws. See CAL. PENAL CODE § 12035 (West 1992 & Supp. 2000); CONN. GEN. STAT. § 29-37i (1999); DEL. CODE ANN. tit. 11, § 1456 (1995); FLA. STAT. ANN. § 784.05 (West 1992 & Supp. 2000); HAW. REV. STAT. § 134-10.5 (1993); IOWA CODE ANN. § 724.22 (West 1993); MD. CODE ANN. art. 27, § 36K (Michie 1997); MINN. STAT. ANN. § 609.66 (West 1987 & Supp. 2000); N.J. STAT. ANN. § 2C:58-15 (West 1995); N.C. GEN. STAT. ANN. § 14-315.1 (1999); R.I. GEN. LAWS § 11-47-60.1 (1994 & Supp. 1997); TEX. PENAL CODE ANN. § 46.13 (West 1994 & Supp. 2000); VA. CODE ANN. § 18.2-56.2 (Michie 1996); WIS. STAT. ANN. § 948.55 (West 1996 & Supp. 1999). Although Nevada is frequently included on lists of states with CAP laws, the Nevada statute is not a criminal safe storage statute, but a civil liability statute concerned with the negligent entrustment of firearms to minors. See NEV. REV. STAT. ANN. § 41.472 (Michie 1996). For a detailed analysis of the different state CAP laws and a proposed federal CAP law, see McClurg, Child Access Prevention Laws, supra note 10, at 61-69.
112. See Bill Duryea, Fully Responsible, Nearly Destroyed, ST. PETERSBURG TIMES, June 28, 1998, at 1F, available in LEXIS, News Library, Stpete file.
113. Peter Cummings & Frederick P. Rivara, State Gun Safe Storage Laws and Child Mortality Due to Firearms, 278 JAMA 1084 (1997).
114. See id. at 1085.
115. See id.
116. See id.
117. See id.
118. See id. at 1085-86.
119. See Unanswered Questions About Suicide, 4 CQ RESEARCHER 515 (1994) (stating "media cover gun related violence with almost morbid fascination but studiously avoid topic of suicide").
120. At least 17,000 people in the United States commit suicide by firearm each year. See The Unspoken Tragedy: Firearm Suicide in the United States, in A REPORT BY THE EDUCATIONAL FUND TO END HANDGUN VIOLENCE AND THE COALITION TO STOP GUN VIOLENCE 1 (1995) (on file with author). The figure quoted in text was arrived at by dividing 17,000 by the 365 days in a year.
121. See Donna L. Hoyert et al., Deaths: Final Data for 1997, in 47 NATIONAL VITAL STAT. REP. 68 (1999). Most suicide completers are white males. In 1994, white males accounted for 73% of all suicides. See Arlene Metha et al., Youth Suicide Prevention: A Survey and Analysis of Policies and Efforts in the 50 States, 28 SUICIDE & LIFE-THREATENING BEHAVIOR 150 (1998). White females accounted for 18% of all suicides in the same year. See id. Thus, whites accounted for more than 90% of all suicide completers. See id. However, between 1980 and 1994, the largest increase in suicide rates was for black males. See id. In 1980, the suicide rate for whites aged 10-19 was 157% greater than the rate for blacks, but by 1995, the rate for whites was only 42% greater than the rate for blacks. See Suicide Among Black Youths--United States, 1980-1995, 279 JAMA 1431 (1998). In the same period, the suicide rate for blacks aged 10-14 increased by 233%, compared to a 120% increase for whites. See id. As is true for all suicides, firearms is the predominant method of suicide for blacks, accounting for 66% of suicides for those aged 10-19. See id.
122. See Garen J. Wintemute et al., The Choice of Weapons in Firearms Suicides, 78 AM. J. PUB. HEALTH 824 (1988).
123. John Allen Paulos, A Better Chance You'll Shoot Yourself Than Be Shot by Another, 6 PUB. PERSP. 17 (1995).
124. See Keith A. King et al., High School Health Teachers' Perceived Self-Efficacy in Identifying Students at Risk for Suicide, 69 J. SCH. HEALTH 202 (1999).
125. See id.
126. See id.
127. See id. Between 1950 and 1993, the U.S. suicide rate for children aged 15 and younger quadrupled. See Rates of Homicide, Suicide, and Firearm-Related Deaths Among Children--26 Industrialized Countries, 46 MORBIDITY & MORTALITY WKLY. REP. 101 (1997). Between 1980 and 1992, the suicide rate for youths aged 10-14 increased by 120% (from 0.8 to 1.7 per 100,000 persons). See Suicide Among Children, Adolescents, and Young Adults--United States, 1980-92, 274 JAMA 451 (1995). For youths aged 15-19, the suicide rate increased by 28.3% during the same period (from 8.5 to 10.9 per 100,000 persons). See id.
128. See Butch M. Huston et al., Three Cases of Fatal Firearm Use Following External Hinge Removal From Locked Gun Cabinets, 42 J. FORENSIC SCI. 956 (1997). See also John Fox et al., Increasing Use of Firearms in Completed Suicides in Wisconsin, 1979-1994, 95 WIS. MED. J. 283 (1996) (firearm suicide rate in Wisconsin increased 20% during 16-year study period; percentage of suicides involving firearms increased from 48% during 1979-83 to 57% during 1990-94).
Firearms predominate as the method of successful suicide for both men and women. See Frederic Seltzer, Trend in Mortality from Violent Deaths: Suicide and Homicide, United States, 1960-1991, 75 STAT. BULL. 10, 14 (1994). In 1991, firearms and explosives accounted for 65% of male suicide deaths and 40% of female suicide deaths. See id. Poisonings were the second most common method of completed suicide for women (37%), while hanging ranked second for men (15.1%). See id. Hanging ranked third for women (13.4%) and poisonings ranked third for men (13%). See id. Jumping ranked fourth for both genders (2% for men and 3.5% for women). See id.
129. See David A. Brent et al., Firearms and Adolescent Suicide: A Community Case-Control Study, 147 AM. J. DISEASES OF CHILDREN 1066 (1993).
130. See supra note 127 and accompanying text.
131. See Brent et al., supra note 129, at 1066.
132. See Suicide Among Children, Adolescents, and Young Adults--United States, 1980-92, supra note 127, at 451.
133. See Rates of Homicide, Suicide, and Firearm-Related Deaths Among Children--26 Industrialized Countries, supra note 127, at 102.
134. See id.
135. See Etienne G. Krug et al., Childhood Homicide, Suicide, and Firearm Deaths: An International Comparison, 49 WORLD HEALTH STAT. Q. 230, 232 (1996) (summarizing a study of 27 countries and areas).
136. See GEO STONE, SUICIDE AND ATTEMPTED SUICIDE: METHODS AND CONSEQUENCES 42 (1999).
137. See GEORGE HOWE COLT, THE ENIGMA OF SUICIDE 47 (1991); see also Ann F. Garland & Edward Zigler, Adolescent Suicide Prevention: Current Research and Social Policy Implications, 48 AM. PSYCHOLOGIST 169, 171 (1993) (discussing study finding most adolescent suicides are the result of "marked impulsivity"); Guns and Adolescent Suicides, 266 JAMA 3030 (1991) (stating young people are impulsive and that suicide attempt may be intended to communicate that they are pain); Unanswered Questions About Suicide, supra note 119, at 514 (stating that adolescents are more prone to impulsive acts than older people).
138. See COLT, supra note 137, at 47. Colt quotes a suicidal 15 year old girl who said: "I want to kill myself, but I don't want to be dead. I mean, I want to be dead, but I don't want to be dead forever. I only want to be dead until my eighteenth birthday." Id.
139. See id. at 46-47 (listing each of these events as possible precipitating events to a suicide attempt).
140. See DAVID K. CURRAN, ADOLESCENT SUICIDAL BEHAVIOR 39 (1987) (stating that "a good deal of research and clinical experience" supports the proposition that most adolescent