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From the Jan/Feb 2001 Issue
ACCIDENTAL SHOOTINGS AND THE LAW OF RESPONDEAT SUPERIOR
by Thomas C. Bradley, Esq.
Unfortunately, our society is becoming increasingly violent. It is common place to open the newspaper and read about persons who accidentally shoot and either kill or maim innocent victims. Although the victims and their families deserve to be compensated for their injuries caused by the reckless conduct of persons who misuse firearms, many of the persons who misuse firearms lack the financial resources to pay for their wrongful conduct. Accordingly, we must carefully examine whether other persons or entities may be legally responsible for the accidental shooting. At first glance, it may not appear that others are responsible; however, I urge you to conduct a thorough investigation of the facts and applicable law.
I recently represented the parents of a nine-year-old boy who was shot to death while riding his bicycle on the grounds of the Fallon Naval Air Station. A Petty Officer was in his private residence at the Fallon Naval Air Station and was off-duty. He was practicing aiming his gun, first at a dog, and then aiming and "dry firing" at a bicycle rider, when he shot and killed the boy. The Naval employee had virtually no assets and no insurance coverage for his conduct.
At first, it appeared unlikely that we could establish that this off-duty employee was acting within the course and scope of his employment with the United States Government. In discovery, however, we were able to piece together a number of favorable facts to support our position. We learned that during the six weeks of training at Lackland Air Force Base, the Naval employee was taught to dry-fire with a Beretta nine-millimeter the same weapon that was used by the Navy Security Detachment at the Fallon Naval Air Station.
According to the Navy Director of Law Enforcement Training at Lackland, students were taught that "firing a weapon and learning how to use a weapon is like any psycho-motor skill," and before you can "begin to become even minimally proficient with it, you have to have an opportunity to practice. And that practice with the weapon and learning how to use the weapon is what we refer to as dry-fire." When asked to define "dry-firing," the director explained that "[d]ry-firing is simply practice. It's manipulative skills. It's development of the skills to be able to put the shooting fundamentals together so that you can safely and accurately employ a weapon." The Naval employee's weapons training at Lackland also included the utilization of "cover and concealment" from buildings and houses. He was also taught how to shoot out of a window. The director testified that it is very important, in fact "it is critical" to be familiar with the type of weapon that one is going to carry on duty, and that by practicing dry-firing, you gain familiarity with the weapon. He also made clear that "t]he more you practice [dry-firing] correctly, the better marksman you become."
Plaintiffs' expert, an expert in the practice and use of weapons, testified that "dry-firing is critical to learning, maintaining and improving marksmanship," and because "[it] cannot be done too much ," he regularly encourages students in weapons training courses "to practice by dry-fire." The expert also testified that, "Such practice is rarely conducted on a firing range," and is, instead, "encouraged in places where you can't use live ammunition, including, for example, your own home."
The Naval Director admitted that marksmanship, "the ability to hit an intended target," is of great importance to the Navy, and "it benefits the Navy to have its officers be able to hit the intended target." Proficient marksmanship is such a clear benefit to the Navy that it rewards marksmanship skills by awarding ribbons to its expert marksman, and requires annual marksmanship proficiency tests.
After a person has become familiar with a weapon and weapon safety as a result of practicing dry- firing, he can maintain his proficiency or become even more proficient, by continuing to practice dry- firing. The Naval employee agreed, and believed that if someone wishes to become a good marksman, that he or she should practice dry-firing . . .". He also testified that, "[dry-firing is] something that a person can do if he wants to become a better marksman. . .".
After attending Lackland and becoming certified as a Law Enforcement Specialist, the Naval employee was transferred to Fallon. At Fallon, his duties were "[t]o study the qualification manual and become qualified as a patrolman." While pursuing his training as a patrolman, the Naval employee purchased a 9 mm Taurus pistol in Fallon. The Taurus pistol is a less expensive "knockoff" of the Beretta, and the Naval employee explained that he purchased it "because of the similarities to the 9 mm Beretta" with which he wanted to become certified to become a patrolman. ("The 9 mm Beretta is for all practical purposes, virtually identical to the 9 mm Taurus," and "[t]he differences are the price and general quality of workmanship, which are both lower in the case of the Taurus.").
Additionally, Nevada Courts interpret "course and scope of employment" quite broadly compared to many states. Moreover, there are a number of favorable federal cases which support a finding that the reckless shooter may be acting within the course and scope of his employment. The following represents a summary of Nevada cases governing respondeat superior and more specific federal cases governing the application of respondeat superior principles in accidental shooting cases.
Under Nevada law, "[a]n employer may be held vicariously liable for the actions of an employee who is under the control of the employer and acting within the scope of employment." Evans v. Southwest Gas Corp, 108 Nev. 1002, 1005-06, 842 P.2d 719 (1992). As shown below, the terms "under the control of" and "scope of employment" have consistently been broadly construed by the Nevada Supreme Court.
For example, while an employee who is traveling to or from work is generally not acting within his scope of employment, if, during the course of his commute the employee runs an errand for the employer or "otherwise confer[s] a benefit upon the employer," the Nevada Supreme Court has determined that the employee was acting within the scope of his employment. Evans, 108 Nev. at 1006. Thus, in Evans, the Nevada Supreme Court found that Southwest Gas was vicariously liable when its employee, while driving home after work, struck and injured another driver. The Court reasoned that although the employee was not working or performing an errand for his employer at the time of the accident, he was still conferring a benefit upon his employer because the employee was "on call" and was required to remain within radio distance and to be available for emergencies at the time of the accident.
Similarly, in Nat'l Convenience Stores, Inc. v. Fantauzzi, 94 Nev. 655, 684 P.2d 689 (1978), the Court found that an employer could be vicariously liable when its employee who, on his day off, participated in a "drag race" resulting in the death of two persons. In so finding, the Court explained that before the accident, the employee had been planning to drive to meet with his supervisor to discuss taking a future day off an activity not within the scope of employment. While en route, the employee suddenly decided to first attend to some work-related business. It was while driving to perform the employer-related work that he became involved in the drag race. As the Court described it, the employee "temporarily abandoned his personal objective and turned to accomplish a task reasonably within the scope of his employment and of benefit to his master." Id. at 659.
Using similar reasoning, the Nevada Supreme Court affirmed the district court's grant of industrial benefits to an employee who had been injured in a motorcycle accident. D & C Builders v. Cullinane, 98 Nev. 67, 639 P.2d 544 (1982). In D & C Builders, an employee of D & C left his employer's construction site for a long lunch break. During the break, he intended to visit a friend and to purchase some materials for the construction project. After leaving the construction site, the employee first went to his home to get his motorcycle, and then began driving to the store to purchase the materials. Before reaching the store, he was involved in a serious collision. The Nevada Industrial Commission denied the employee's claim, stating that the injuries did not occur within the course and scope of employment as the employee's primary purpose in taking the motorcycle trip was to visit his friend. In its decision, the Nevada Court rejected the "dual purpose doctrine," whereby a determination must be made which motivation, the personal or the business reason, was the primary purpose of the employee's excursion. Finding that the "dual purpose" approach to be too rigid, the Court stated that the proper test was the "bona fide business purpose" test, which required only that "the employee was on a bona fide business errand when the incident giving rise to the claim occurred." Id. at 71. The Court went on to make clear that "[t]his is so, even though the record is clear that [employee] was simultaneously pursuing his own interest." Id. at 72. See also Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996)(grant of summary judgment to employer reversed where off duty employee who worked as a security guard, shot and killed his former girlfriend. In overturning the lower court, the Supreme Court stated because off duty security guards carried radios and responded to emergency situations, evidence existed to support appellants' argument that the shooting occurred within the scope of the guard's employment. Id. at 1226)
In Prell Hotel Corp. v. Antonacci, a "21" dealer punched a hotel guest during a "21" game for calling him a name. The Court found that the dealer's "willful tort occurred within the scope of the very task assigned to him, that of dealing '21'." In these circumstances the employer is responsible;" 86 Nev. 390, 392, 469 P.2d 399 (1970). See also Doe v. B.P.S Guard Services, Inc. 945 F.2d at 1425-26 (finding employer liable where security guards "were engaged in exactly the type of activity their employer had bade them to do" while at the same time pursuing their own gratification).
Thus, under Nevada law, an employer may be vicariously liable for the negligent or wrongful acts of its employee who, although off work, engaged in an activity which, at least in part, served some purpose of the employer.
In interpreting the respondeat superior doctrine under the laws of other states, federal courts have likewise found that an employee's actions, while superficially appearing to fall outside the scope of his employment, were, on closer inspection, within the employee's scope of employment, leading to vicariously liability for the employer.
In Thompson v. United States, 504 F. Supp. 1087 (D. S. Dak. 1980), a case remarkably similar to the instant case, a CETA police officer trainee shot and killed an individual while practicing his "fast draw" technique while standing in the BIA police station. The district court held that the United States was liable under the FTCA as the trainee was a government employee who was acting within the course and scope of his employment at the time of his employment as follows:
As part of his training as a policeman, he was given firearms training by a Special Agent of the FBI, David Powers. This training includes, as Powers testified, extensive instruction of 'quick draw'. . . .[T]he Court must draw the inference that, though tragically misguided, [trainee's] motive in pulling his gun up and pointing it at [the deceased] was to practice and perfect his police firearms techniques. In this unfortunate way, [trainee] evidently intended to improve himself as a policeman, and to thereby carry out his employer's business. It could not be contended that if a similar accident had occurred on a firearms range, in the course of firearms practice by a government employee, the United States would not be liable. Simply because the situs of the practice is moved from a range to the interior of a BIA police station, the result is not changed.
Id. at 1091.
In Craft v. United States, 542 F.2d 1250 (5th Cir. 1977), for example, the Fifth Circuit found that an off-duty soldier, who was mowing the lawn in front of his home when he ran into and injured a child, was acting within the scope of his employment at the time of the accident. The court based this determination on the fact that base regulations concerning lawn maintenance existed and that the soldier had received verbal and written instructions regarding grounds care. Id. at 1253.
The Eighth Circuit, in Doe v. B.P.S. Guard Services, Inc., 945 F.2d 1422 (8th Cir. 1991), upheld a jury verdict against an employer of security guards who had surreptitiously videotaped models in a dressing area. The employer had argued that it could not be liable as the guards "were motivated solely by their own gratification in making the tape and that therefore they acted outside the scope of their employment as a matter of law." Id. at 1424-25. The court found that prior to the incident the guards had been "told to practice taping on the VCR," and that while the security guards' predominant motive may have been to benefit themselves, they were still doing the very act directed by the employer Id. at 1424- 25.
The Third Circuit agreed with the district court's determination that a police officer, who shot and killed a store owner while engaged in a mock 'quick draw' contest with the store owner, had been acting within the scope of his employment at the time. Frankel v. Moody, 393 F.2d 279 (3rd Cir. 1968). In Frankel, the police officer had stopped at the store, at least in part, to discover if the business owner could provide any information that would be of use in his police work. During prior visits with the business owner, the police officer had routinely engaged in mock 'quick draw' contests with the store owner. On this occasion, when the officer entered the store's office, he made a complete turn to face the decedent while at the same time withdrawing his gun. This time, however, the gun went off, killing the store owner instantly. From the evidence, the trial judge found that either (1) the officer had been engaged in the horseplay in an attempt to continue the rapport he had built with the store owner or (2) the officer had reflexively drawn his gun and fired. In either case, the Court of Appeals determined that the officer's employer would be liable. In the first case, the court explained, the shooting would be within the officer's scope of employment as the cultivation of an informant, "albeit in a most misguided manner," in the second, because "[c]arrying a weapon and being prepared to react quickly to use the weapon is an essential part of a policeman's training and duties." Id. at 281.
In conclusion, we were able to defeat the Government's Motion for Summary Judgment on the issue of respondeat superior. The case settled, shortly thereafter, for an undisclosed amount.