• If this lawsuit motivates the Federal government to seal off a de-facto park that many had enjoyed, I suspect some neighbors will not appreciate this family. If I were sitting on the jury, I would give them nothing.

    (My view would be different, of course, if the kid was blown up by an unexploded round or poisoned by toxic waste.)

    • Did you bother to read the linked article?

      The family’s allegation is a bit more involved than just the “A & B went to de-facto park where B shot A” that you seem to be assuming.

      The family is claiming that the shooter found the gun in the bushes inside the de-facto park.

      Now the source of the gun is disputed.

      The shooter claims he found it in the bushes on the military base.

      His girlfriend says he got the gun from his uncle.

      The uncle is being prosecuted for giving the gun to to the shooter.

      If in fact the shooter found a loaded gun lying around on a military base and accidentally shot his friend, that seems awful close in my mind you your unexploded ordinance scenario. Close enough that the case is not frivolous on it’s face.

  • So if there had been NO fence, would they have been liable? How about a Post and Rail fence?

    Does this mean that if I leave my gate unlocked and a couple of clowns walk in and shoot each other in my backyard, I am responsible?

    “Mr.Bumble. Paging Mr Bumble.”

    • First, it isn’t just any fence sitting anywhere. It’s a six foot high chain link fence topped with three rows of barbed wire surrounding a restricted access military base.with a an entire section of chain link knocked down.

      Second, it’s not just the hole in the fence. The teen who shot his friend claims to have found the gun in the bushes on the military base.

      So the facts as alleged by plaintiff are:

      1. Large hole in high security fence surrounding a military base.

      2. Loaded firearm lying around on the ground.

  • I lived on several military bases over the years and never came across a forgotten and unattended loaded firearm.

    • Try to follow:

      You have a military base with a large wooded area.

      At some point someone in the military thought the wooded area was important enough to keep people out of and they built a 6 foot high chain link fence topped with barbed wire around it.

      An entire section of the chain line came loose and fell over creating a large opening in the fence.

      The military left the fence unrepaired for so long that the general public started using the area.

      The general public has been using the area for so long that foot traffic has created clearly visible trails.

      The fence still hasn’t been fixed.

      A loaded gun is dumped in this de-facto park owned by the military. Probably by criminals of some sort.

      If the military is going to leave this area open to the public then they have an obligation to provide some level of security.

      Had the military provided such security the gun would not have been dumped there.

      Can/should the family win on the merits? I don’t know.

      Is the case put forward by the family patently frivolous? No.

      • A loaded gun is dumped in this de-facto park owned by the military. Probably by criminals of some sort.

        If the military is going to leave this area open to the public then they have an obligation to provide some level of security.

        No, they really don’t. Let’s assume this IS a de facto park, and that the gun WAS left there by criminals (and not given to the boy by his uncle.) Fine. But there’s a city park near me that has a wooded area. It’s open to the public. And there’s no security provided. If a criminal dropped a loaded gun in those woods, I would be surprised if the police found it before a kid did.

        Do you think resources should be spent on patrolling wooded areas, just in case someone dropped a gun? (By the way, patrolling a single square mile of woods, assuming the person can see everything in a 100 foot radius around him and he never has to take a detour due to terrain or vegetation, would take about 25 miles of walking.) Do you think all woods should have impenetrable fences so nobody can enter them?

        • I was just restating the case that the family laid out, not stating my own opinion.

  • Re MattS

    “Try to follow:”

    Not a good opening, Mr. S. …Reply comments that begin with an insult are rarely effective.
    Kind of like sticking your middle finger out at a driver who has cut you off in traffic rarely causes that person to reflect on his poor driving.

  • “Can/should the family win on the merits?” No.

    “Is the case put forward by the family patently frivolous?” Yes.

    There, corrected it for you.

    The Federal Tort Claims Act (FTCA) is a limited waiver of sovereign immunity. Generally, the law applicable to negligence actions between private parties is the standard applied. Under your analysis, if someone trespassed onto your property, and, without your knowledge, left a dangerous object — say a bomb or loaded pistol, or infectious agent — and, someone was injured by that object, you would be liable for negligently failing to detect the criminal act. I’d like to see some Washington state law backing that contention.

    Since bringing an unregistered firearm onto a military installation has been a criminal offense since the Clinton Administration, assuming that the Uncle didn’t supply the gun to the perp who killed his friend, the act of bringing it on the military base was a criminal offense. Further, possession of an unregistered firearm on a military installation is a criminal offense — so even if the perp found the firearm, when he took possession of it, that was a criminal offense. Generally, a person is not negligent in failing to protect a third party from the criminal acts of others. There are some exceptions to this when there is a special relationship between the defendant and the victim. Most states recognize a special relationship between possessors of land and invitees. But, that does not extend to licensees or trespassers. The perp and the victim were both trespassers, and the perp is old enough that the tender years doctrine shouldn’t apply. He was old enough to know that he was going on the land of someone else, without the owner’s permission. And, he knew or should have known that a firearm is a dangerous instrumentality.

    Further, there are some exceptions to the waiver of sovereign immunity. One that may be applicable is the discretionary function exception (DFE). Allocation of maintenance funds is a matter of the facility commander’s discretion. A FTCA suit alleging that he deferred fence repair is barred by DFE.

    And, please don’t argue an analogy to unexploded ordnance left on a military base from training. The military knows the locations of the ranges/impact areas where it has fired ordnance, and knows that not all of it goes off. There is, accordingly, a duty to place warnings and barriers since there is a reasonably foreseeable danger in impact areas. In contrast, any fence around a housing area is to keep out persons who would enter the housing area to commit crimes, such as robberies, and so the fence exists to protect the residents. Assuming that the minors found a firearm in the area, it isn’t reasonably foreseeable that would happen, and the fence wasn’t there to prevent that from happening, or to protect trespassers.

    And, note that the Uncle is being prosecuted for the crime of giving a minor a firearm. That means that there is probable cause (e.g., facts showing more likely than not that all of the elements of the charged offense exist) that the Uncle did that. So, even if the Uncle is acquitted under the more stringent beyond a reasonable doubt standard, the US will still be in a position to litigate the issue of where the firearm came from. Since firearms in the US almost always have serial numbers, tracing it should be possible.

    Moreover, even if all of the other allegations of the suit are true, how is a hole in a fence a proximate cause of the death of a minor caused by another minor shooting him in the face? The alleged causal chain is much too attenuated, which is why Judge Cardozo developed the proximate cause test about a century ago.

    Then, there are some special requirements of the FTCA. Two essential elements of a FTCA action are that (1) an “employee of the government” (2) acting within scope of employment, committed the negligent act or omission. That would require plaintiff proving that the person who put the firearm there was a federal employee, and that it was part of that employee’s job or mission to put the firearm there (rather than properly registering it on-post with the Provost Marshal and securing it in an arms room).

    A snowball in Death Valley at High Noon in July has a better chance than this suit.