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Estate of Strever v. Cline6/27/1996
include a responsibility and a duty to store and use the weapon in a safe and prudent manner. In point of fact, organizations which teach safety and promote responsible firearms use and ownership uniformly stress the necessity to unload and store all guns in a secure location, inaccessible to children and unauthorized persons and separate from the ammunition. Our holding in this case says nothing different. If the owner of a firearm does not owe "a duty to the general public to use and to store the firearm in a safe and prudent manner taking into consideration the type of firearm, whether it is loaded or unloaded, whether the ammunition is in close proximity or easily attainable, and the location and circumstances of its use and storage," then that truly is a shocking revelation!
Moreover, the special concurrence strongly implies that under our decision here, the owner of a firearm is automatically or strictly liable for any firearms-related injury merely because of his ownership of the weapon. That absolutely is not the case; nothing could be further from the truth. Our holding simply sets forth the duty of care required in the use and storage of a firearm. If a member of the public is injured in a firearms-related accident, as in any negligence case, it is for the fact finder — typically a jury composed of Montana citizens, some of whom would likely be gun owners — to determine whether the owner of the firearm breached his duty of care. While the special concurrence apparently has little faith that such a jury could apply the law and come to a correct result on the basis of the particular facts at issue, we do not share that sentiment.
More to the point, the owner of a firearm who willfully or negligently causes injury in his use or storage of his weapon, has always been subject to suit. The special concurrence's inference that the floodgates of litigation will be opened notwithstanding, our decision here does not invent any new theories of liability. In truth, we have simply articulated a rule of law that has implicitly existed in Montana for decades.
The special concurrence describes Robert and his group as a "roving band of teenage thieves." Assuming, arguendo, that is true, it does not, however, follow that Susanj should thereby be relieved of his obligation to have done something as common sense and simple as removing his gun from his unlocked truck when he left it unattended on a public street or as easy as locking the truck or locking the gun in the glove box, in order to prevent a needless tragedy. Perhaps the next "roving band of thieves" will be a group of curious four-year-olds. Perhaps the next person to get shot while the thieves fight over the gun will not be the thief himself, but a mother strolling her baby in the vicinity of the truck. And, that is precisely the reason why, under the authorities we have cited, Montana law does not hinge duty of care on the status of the victim of the breach of that duty. While, the status of the victim is purely fortuitous, it is completely within the control of the owner of the firearm to safely and prudently use and store his weapon. The law imposes a duty of care, among other things, to encourage responsible conduct, not to set up a lottery that rewards or punishes negligent conduct on the basis of the status of who is injured when that duty of care is breached.
Furthermore, the special concurrence contends that citizens "are not required to foresee the acts of thieves and burglars" and that, therefore, as a matter of law, any intervening criminal act should, without more, automatically cut off liability where a duty of care is breached. First, the special concurrence's basic premise is wrong. Citi
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