In The Line Of Fire

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http://www.tiltingthescales.com/files/2013/11/turkey.jpgAmon Fire and B.A. Ware have been hunting buddies since high school and have hunted with each other many times.  The two men head out one crisp November day to go turkey hunting, as they are bound and determined that this year’s Thanksgiving bird will not come from the local grocery store.  Fire and Ware quickly spot a flock of toms in a draw and hatch a plan.  Ware will remain at his truck on the rise and will shoot at any birds that are flushed out of the woods, while Fire will circle around on foot and shoot at any birds spotted in the woods.  As was their custom, if the plan were to change, Ware was to honk the truck’s horn.  Fire begins his stalk through the woods and spots the flock 60 yards ahead.  Fire estimates that Ware’s truck, according to their plan, should be at least 400 yards to the right of the line of fire.  However, unbeknownst to Fire, Ware has changed position and is hiding in a tree, obscured by foliage, waiting for the turkeys to be flushed.  Fire squeezes the Beretta’s trigger and immediately hears a human cry for help.  Fire runs to investigate and finds that he has shot, and seriously injured, Ware.  Ware subsequently sues Fire claiming that he did not use ordinary care to ascertain that his hunting companion was positioned in the brush behind the turkey.  Does Ware have a claim?

Probably not.  A hunter found to negligently use a weapon, will be liable for injuries proximately caused by his negligence.  Fire must exercise reasonable care and must not only be sure he is shooting a turkey, but also that no one is in his line of fire.  If Fire can show that Ware deviated from their hunting plan – by not signaling that the plan had changed and by moving into the trees – it would not be foreseeable to Fire that Ware would be in the line of fire and therefore Fire would not be negligent.  Now compare a scenario where Fire shoots at the bird, misses, and his stray bullet hits a person in a house which was obscured through the trees.  In such a case, Fire could likely be civilly and criminally liable even though he was unaware that a residence was located behind the foliage.

Tilting the Scales in Your Favor.

Pay attention to the Rules Hunters Can Live By[1] . . . Ten Commandments of Shooting Safety offered by the Texas Parks & Wildlife Department

1. Always point the muzzle in a safe direction. Do not point a firearm or bow at anything you do not intend to shoot. Keep your finger out of the trigger guard until the instant you are ready to fire.

2. Treat every firearm or bow with the same respect you would show a loaded gun or nocked arrow. When picking up a firearm, the first thing is point the muzzle in a safe direction and check to see if it is loaded. Read your instruction manual carefully before you handle new firearms or bows.

3. Be sure of your target and what is in front of and beyond your target. Before pulling the trigger you must properly identify game animals. Since you do not know what is on the other side, never take a shot at any animals on top of ridges or hillsides. Know how far bullets, arrows and pellets can travel. Never shoot at flat, hard surfaces, such as water, rocks or steel because of ricochets.

4. Unload firearms and unstring conventional bows when not in use. Leave actions open, and store sporting arms in cases and under lock and key when traveling to and from shooting areas. Take bolts out or break down shotguns if necessary.

5. Handle firearms, arrows and ammunition carefully. Avoid horseplay. Never jump a ditch, climb a fence, a tree or a ladder with a loaded firearm or bow and arrows. Never face or look down the barrel from the muzzle end. Be sure the only ammunition you carry correctly matches the gauge or caliber you are shooting. If you fall, disassemble the gun and check the barrel for obstructions. Carry a field cleaning kit.

6. Know your safe zone-of-fire and stick to it.  Your safe zone-of-fire is that area or direction in which you can safely fire a shot. It is “down range” at a shooting facility. In the field it is that mental image you draw in your mind with every step you take. Be sure you know where your companions are at all times. Never swing your gun or bow out of your safe zone-of-fire. If in doubt, never take a shot.

7. Control your emotions. If you lose control of your emotions you may do something carelessly. If you just shot a target or animal, in your excitement you may turn with a loaded firearm back toward your friends or you might run with a loaded firearm toward a downed animal. You may, in anger, lose control of your emotions. Show discipline.

8. Wear hearing and eye protection. Firearms are loud and can create noises damaging to hearing. Wear glasses to protect your eyes from escaping gases, burnt powder and other debris.

9. Don’t drink alcohol or take drugs before or while handling firearms or bow and arrows.  Alcohol and drugs impair normal physical and mental body functions  and affect emotions, making it easier to lose control.

10. Use Common Sense to be aware of circumstances requiring added caution.

For additional analysis, Google the Texas case of Thompson vs. Gaar, upon which this fact pattern is loosely based.