A man keeps multiple loaded guns unsecured throughout his house which he shares with a girlfriend, who has periodic visits from her nine year old son. For two days the man does not notice that one of the loaded guns is missing. The nine year old boy has put one of the loaded guns into his backpack, and taken it to school. The gun discharges from the backpack and critically injures a classmate. Should the man be held to have “caused” the personal injury to the classmate?
The breakdown of judicial opinions throughout the case history demonstrates this is a divisive issue.
Six judges who faced this question in State v Bauer said “Yes”: the trial court judge, two judges from the Court of Appeals, and three from the Supreme Court.
Seven judges said “No”: One from the Court of Appeals, and six from the Supreme Court.
In State v Bauer, decided July 17, 2014, the Washington State Supreme Court held 6-3 that, based on “…mixed consideration of logic, common sense, justice, policy, and precedent…” there is no causation in the criminal context here because causation in the civil negligence context is broader than in the criminal, and civil causation would not be found here under existing civil precedent. The court’s reliance on civil precedent to reach a decision in a criminal case may make this case problematic for lawyers representing plaintiffs on causation issues in personal injury cases.
The following precedents were considered in the ruling:
Sailor v. Ohlde, 71 Wn. 2d 646, 430 P.2d 579 (1967) - The court answered “No” to the question of whether “…the owner of an automobile who leaves the key in the ignition switch (can be civilly) liable for injury or damage caused by a stranger who enters upon private property and steals the automobile.”
Pratt v. Thomas 80 Wn. 2d 117, 491 P.2d 1285 (1971) - The court reached the same conclusion regarding an accident involving a car stolen from a public parking lot.
Kim v. Budget Rent-A-Car Systems, Inc., 143 Wn. 2d 190, 15 P.3d 1283 (2001) - The court found no causation when a rental car company left an unlocked car in its parking lot with the keys in the ignition, the car was stolen and involved in an accident.
The majority accepted the analogy that an unsecured loaded handgun should be treated like a car with the keys left in the ignition.
On the other hand, the six judges who would have allowed the issue to go to the jury undoubtedly would have found causation in the civil context as well. Indeed, even the majority cites civil cases which seem to imply causation.
A vendor who sells alcohol to a minor may be the legal cause of injuries to a second minor who obtained the alcohol purchased by the first minor. Schooley v. Pinch’s Deli Market, Inc., 134 Wn. 2d 468, 951 P.2d 749 (1998).
A defendant is liable when he leaves an operational tractor unguarded on his property, which is then stolen by children and used to injure plaintiff’s property. Bronk v. Davenny, 25 Wn. 2d 443, 171 P.2d 237 (1946).
According to the Supreme Court, a loaded handgun is more like a car with the keys left in it than a bottle of booze illegally sold to a minor or an operational tractor left accessible to children. Close question.
Plaintiff lawyers, who regularly represent victims of negligence, can take some solace in the court’s distinction between “causation” in the civil and criminal contexts. The court repeatedly emphasizes (even dedicating a section of the opinion to the proposition) that “Causation in Criminal Law is Different from Causation in Tort.” The majority repeatedly points to the lesser causation standard in the civil negligence context:
“…criminal law and tort law serve different purposes and therefore have different principles of legal causation…”
“… causation in tort may be much broader than causation in criminal law…”
“… legal causation is defined more narrowly in criminal law than it is in tort law…”
“… the tort liability concept of proximate cause is generally too broad and comprehensive to be appropriate in a criminal proceeding…”
“… liability tends to extend further in tort cases…”
Although the court took pains to distinguish causation in the criminal and civil contexts, the court ends the opinion with the comment:”…even our civil cases do not extend liability as far as the State seeks to do in this case… ” This comment will undoubtedly be cited by insurance defense attorneys in civil cases in support of using State v Bauer to limit causation in civil situations as well as in criminal.
In the criminal context, a conviction for assault in the third degree requires criminal negligence which “… causes bodily harm to another person…” Noting that keeping loaded weapons around the house is not in itself a crime, and that the nine year old boy’s theft of the loaded weapon was an “intervening cause”, the majority held legal causation (i.e. considerations of “…logic, common sense, justice, policy and precedent…”) meant that the causation requirement had not been met and therefore that a criminal charge of assault in the 3rd degree had to be dismissed.