Wednesday, December 3, 2008

Wednesday's Weird But True Legal Cases - Vol XXXIII

Tonight's Weird (but true) legal case involves someone a person who shot himself with a gun. No, this post does not involve Plaxico Burress. Instead, it looks at Kull v. City of New York, a case which asks the question, can a municipality be held responsible if someone shoots himself with a police officer's gun.

In Kull, a police officer employed by the City of New York was at home approximately two and one-half hours before his tour of duty was to begin. He had just finished shaving when the door bell rang. The officers went to get a shirt and, in so doing, put his service revolver on his TV set. A five year old child who was visiting the police officer's family picked up the gun, sat down in a chair and watched a television program. When he got up to leave, the gun went off and he was shot in the leg.

At the trial court level, the child's lawyer argued that the City was responsible for the actions of the police officer (although he was not on duty at the time) and that they should compensate the child for the injury sustained as a result of the officer's negligent failure to secure the gun. The trial court disagreed and dismissed the suit after the close of the Plaintiff's case. On appeal to the Appellate Division Second Department, the court affirmed by a vote of 4-1. In a tersely worded opinion, the majority explained that while the police officer was negligent, the City was not responsible for his actions since he was not on duty. However, the dissent took issue with this conclusion, stating:

In my opinion, it was error for the trial court to hold that any negligence on the part of the patrolman was not attributable to his employer, the sole defendant. Defendant's regulations require that patrolmen be available for duty at all times and that they carry a revolver at all times. Under the circumstances, it cannot be said that the patrolman's actions with regard to his revolver were not in furtherance of his employer's interests. The issue of whether the patrolman was negligent and whether his negligence was in the course of his employment should have been left to the jury.
The plaintiff subsequently appealed to New York's Court of Appeals (the highest court in the state) which reversed the decision of the Appellate Division and ordered a new trial based on the dissent in the court below.

It should be noted that twenty years later, the Court of Appeals revisited the issue in Joseph v. City of Buffalo. In Joseph, a police officer came home from work and placed his service pistol under the mattress of his three year old child. Sometime later, the officer heard a gunshot and discovered that his three year old had found the gun and shot himself. Although the child's mother sued the City (again based on its responsibility for the actions of its officer), the Court of Appeals ruled that the City was not responsible. In so doing, the Joseph court distinguished Kull, noting that the officer in Joseph was clearly off duty and was not preparing for work when he placed the gun under the child's mattress.

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