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St. Mary's Law Journal

First Page

479

Date Created

4-2020

Publisher

St. Mary's University School of Law

Editor

William Todd Keller, Jr.

Last Page

516

Abstract

Careless or apathetic gunowners, whose lost or stolen firearms are used in the commission of a violent crime, should be held strictly liable. Current tort law leaves victims of gun violence and their families without a mode of redress against an irresponsible gun owner whose actions played a pivotal role in the victim’s ultimate injury. Without effective liability principles to regulate gun ownership, gunowners are provided de facto immunity regardless of whether the harm suffered by the victim is intertwined with the gunowners careless behavior. This comment examines the efficacy of existing tort liability principles as provided in the Restatement (Second) of Tort as they may apply to gun ownership.

Thousands of firearms are lost and stolen each year in the United States, many of which are subsequently used to commit violent crimes. In the case of irresponsible gunowner liability, a negligence standard leaves victims of gun violence without meaningful opportunity for redress, placing often insurmountable evidentiary burdens on the victim. Application of strict liability principles, however, provides victims and their families access to legal redress. A strict liability approach would also transmit a normative message of what society expects from its gun owners, likely curbing the carelessness at issue. As a society, we have already found strict liability to be appropriate for citizens who own dangerous exotic animals despite it being more than 5,000 more likely to die by firearm than animal in the United States.

Extension of existing strict liability principles to irresponsible gun ownership would incentivize responsible gun ownership, provide victims of crimes committed with lost or stolen firearms with legal remedies currently unavailable, and bring our society closer to resolution of one of the most pressing issues of our time.

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