00:00
Speaker 1
Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda, and I'll be your host. Welcome to another episode of the Effective Lawyer podcast, the shortest podcast with the most advice. I'm your host, Jack Zinda, and today I want to talk to you about accidental shooting cases. These are cases that I got into about eight, nine years ago. I had done some 1983 cases, and some of my clients in those situations also contacted me about an accidental shooting. And it was an area that was really foreign to me. You know, I'm from a very conservative state, Texas, that has a strong gun culture history. And so I expected these cases would be nearly impossible to bring. But to surprise, were able to bring these cases successfully. 

01:00
Speaker 1
And I think at this point, we've probably done probably 25 or 30 of these over the years. We usually probably handle three or four a year. And I want to try to give you some tips and tactics to avoid some of the growing pains we had and avoid some of the pitfalls that we've seen. So first, let's zoom out and let's talk about what these cases are and what they are not. Okay, someone robs a convenience store and shoots someone. That is a shooting, but it is not an accidental shooting. It is an intentional action. And typically you're not going to have any coverage for intentional acts. The only angle in that type of case might be a negligent security or for some reason someone gave the person the gun. If you could prove it. We typically don't take intentional shooting cases. 

01:45
Speaker 1
Let's talk about a few other types of cases. We had a situation where our client was a veteran. He was in his early 60s. He was at home minding his own business in his condo, watching tv, and a bullet comes through the wall and hits him in the stomach. Turns out the guy next door was having a party and was showing off his gun to some of the guests and showing how cool it was, and it went off and hit our client. So in that situation, let's break that down and figure out, okay, how do you pursue it, who's going to pay and how does it turn out? So first, it has got to be a negligence cause of action in most situations. So if you have an intentional act, you're out of luck. 

02:30
Speaker 1
In this situation, the owner of the gun was mishandling it and the gun went off. So it's negligence. What would have a gun over done, gun owner done in same or similar circumstances, and then they're responsible for the harm that was caused in this case, pretty catastrophic injuries. And who's going to pay. In this situation, you're going to look toward either renters insurance, homeowners insurance of either the person that was handling the gun. And more importantly, it could also be the person that gave them a gun or gave them access to the gun. We've had a lot of cases where children are somewhere they find a gun, say they're at a sleepover. And these are very terrible cases and really tragic and sad and one of the kids shoots the other child and injures them or in some just terrible cases kills them. 

03:20
Speaker 1
So the question in that instance is was the gun owner negligent in how they handled their firearm? And in that situation, you're going to, one have to track down throughout exactly what occurred. That's going to involve talking to the police, talking to witnesses. Most of these cases we have to get into litigation to actually figure out what happened and really nailing down what occurred. Now let's talk about how you want to approach these cases. Now, I practice in a very conservative venue. That gun culture is very strong. And in most of my cases I've ended up being in very rural venues. So the first thing to know, you don't want to make the cases about whether it's good or not to have a gun and whether it's good or not to have a type of gun that can really kill your case. 

04:06
Speaker 1
You want to make this case about responsible gun ownership. Okay, that's different. Everybody can have their own beliefs on what guns people should have or should not have. But in this case, remember, you have to appeal to a jury that might like guns. It may be part of their hobby or their culture, or they hunt or they're really into guns. But almost every gun owner believes in responsible gun ownership, believes a gun should be put away safely, believes you shouldn't let small children handle them. And in our cases, we have used expert witnesses that have been very high ranking in the nra, are very pro second amendment gun advocates and they're able to come in and be really strong witnesses and talk about, okay, here's how someone should handle a gun. 

04:48
Speaker 1
And we've even used NRA policies and procedures to show that even, you know, the NRI believes that these are how guns should be handled. And that's really critical. If you'd like a copy of any of the things you heard about here today, or to set up a time to talk one of our team members about a case, please go to Zendalaw IO and we have amazing resources, downloads, guides and you can set up a time to talk to us if you want to talk about how we handle things or any case in particular. So once you establish liability, you want to figure out, okay, who owned the gun. And then we talked about who's going to pay it. That's typically going to be the homeowners or renters insurance. Let's talk about a couple different types of cases that we've seen. 

05:39
Speaker 1
So we talked about the one where it went through the wall and shot someone. Another case we had was where a child was going to a house to deliver something and the homeowner opened the door and thought he was being robbed and shot him. Another very sad case. But it was a little more challenging because the homeowner claimed that there was some sort of criminal intent there. So the first thing is we had to look into our client's background. He's a 16 year old teenager with a very clean criminal history. The next thing we did is we got the ring delt doorbell camera footage. We had to get in litigation on this one. And it showed that there was not a real threat there. So again, showing that they were negligent, how they approached the situation. 

06:26
Speaker 1
And third, we had to get a witness involved to establish an expert witness what the homeowner should have done in that circumstance. I think it's critical in almost every kind of one off or weird case or pretty much any case to get a liability expert. If you use the rules of the road method or reptile, you really want to make sure you have someone who can come in and explain it that's not you. And I think an expert is really helpful in that. Even if you think it's a clear cut liability case. In that case as well, were able to establish the homeowner lied about some really key facts that drove up, that would drive up the anger of the jury in that situation. So that situation too where someone is using self defense in that scenario. Okay, let's talk about another situation. 

07:07
Speaker 1
We had a case where the person was playing around with a gun and pointed it at someone and it went off and killed them. Okay. If those who are familiar with the Alec Baldwin case, something similar to that, there was not an intent to shoot and kill, but that actually it occurred and that happened and the person was criminally charged with negligent homicide or manslaughter. So that case sounds a little more difficult. Right, because you have someone pointing a gun and shooting and killing someone, which could be argued as an Intentional act. I took that case and were able to get all of the insurance money. I think what you want to remember is the insurance companies are very afraid of the. How big of a damage they could get by the jury. 

07:49
Speaker 1
Because when people hear someone was shot, they immediately say, that is a terrible thing to happen. It shouldn't happen to someone. It's going to be very traumatic to whoever that occurred to. In this case, the person wasn't killed. They were injured, and the injuries were, you know, they got shot in the shoulder. They made a. A pretty good recovery. And there wasn't like a catastrophic angle in that particular case. But there's PTSD and all those sorts of things. But that client had gone to three or four different lawyers before they found us, and we took the case. Let's talk about another case type that we handled. This is one of the most sad cases I've ever handled. 

08:24
Speaker 1
It was in a small town in East Texas, and this pretty wealthy guy, he owned a construction company, took his F250 to a football team car wash and left the car to get washed. Now, he had left a loaded handgun out in like the middle between the seats, and one of the kids picked it up and shot the other kid and killed him. Now, this was a very tough case because obviously the children should not have grabbed the gun. And the question was the gun owner negligent in how they handled it? We got pretty close to a jury trial on this one because it was a pretty large policy and they weren't committing anything in liability. But in that case, we used our expert, who was an expert in our explained how you shouldn't. You should put away guns, you should unload them. 

09:17
Speaker 1
And then fortunately, the defendant in that case really did us some favors because he said he would not change how he did things. If he did it again, he would leave the gun in the exact same place and had not learned anything from the situation after that. They ended up tendering the money about two weeks from trial. But that was a very tricky case, and we had to go pretty deep into litigation. So those are the types of cases we've seen. We've also had situations where a commercial policy has paid the case. We had a case where a gun was kept by commercial entity and one of the employees mishandled it. We've had success in that situation as well. 

09:52
Speaker 1
And so, just to recap some of the things you want to keep in mind, number one, make sure you identify the type of case and try to stay away from intentional act cases. Number two, you want to look at both the gun owner and the person that was handling the gun. And number three, you want to look at the source, recovery and something I forgot to mention, make sure you don't just look at, you know, the home where the person was at. Look at the person that was handling the gun, whatever is their home, as well as the owner of the gun, where is that kept? 

10:18
Speaker 1
And if the person who shot them is maybe a child and they're divorced, have two homes, you want to check that source of recovery as well, because that's really going to be critical to the recovery you can make. Now these are weird cases. If you'd ever like to work together, have more questions, or need an expert witness, please reach out. We're always happy to work together with other firms. You can call us, email us, or text thanks for listening today's episode of the Effective Lawyer. You can learn more about our team and find other episodes of our podcast@zendalaw.com as always, we'd appreciate that you subscribe, rate and review the pod. Thanks.