Liability for injury by celebratory gunfire on New Year’s Eve

by Atty. Emmanuel Samonte Tipon 

In the good old days in the Philippines, I was in front of our home in Laoag on New Year's Eve lighting firecrackers when an Ilocano congressman with his convoy stopped by and handed me an AK47 rifle saying that I will make more noise using it. I demurred, saying I might hit somebody with a stray bullet. He took back the rifle and fired several shots into the air. Fortunately, no one was reported killed or injured in our neighborhood the next day.

This New Year's Eve, scores were killed or injured by stray bullets during New Year's Eve not only in the U.S. but in the Philippines. Who is liable for such death or injuries?

Years ago, a woman was hit by a stray bullet at midnight on New Year's Eve in downtown Del Ray Beach, Florida.  At the time she was hit by the bullet, the woman was having a glass of champagne in the outdoor section of a restaurant during "First Night Del Ray Beach 2006," a family-friendly event organized and run by the city.

The bullet was most likely fired into the air by a reveler from outside of the event. The woman sued Del Ray Beach alleging negligence in failing to warn her about stray bullets. The jury returned a verdict favorable to the woman, but the trial court granted the city's motion for a directed verdict on the issue of duty. The woman appealed.

The appellate court concluded that, regardless of sovereign immunity, the evidence failed as a matter of law to establish that a stray bullet at First Night Del Ray Beach 2006 was reasonably foreseeable, and therefore the trial court did not err in finding that the city did not owe a duty to warn the woman of this possibility. Thus, the court affirmed the trial court.

PROPERTY OWNER HAS NO DUTY TO WARN AGAINST UNFORSEEABLE HARM

The court explained that the existence of a duty is a question of law. "The duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader `zone of risk' that poses a general threat of harm to others."  Since the possessor of property is not an insurer of a visitor's safety, the possessor is ordinarily under no duty to exercise any care to warn or guard against the harmful acts of a third party unless that third party's harmful behavior is reasonably foreseeable. Although there was testimony at trial that, in 1998 and 2003, stray bullets had struck individuals in downtown Del Ray Beach on New Year's Eve, these prior accidental shootings were too remote in time and too infrequent to render the instant event reasonably foreseeable. See, e.g., Graham v. Langley, 683 So.2d 1147, 1148 (Fla. 5th DCA 1996) (holding that car crashing through restaurant window and injuring patron was not foreseeable, explaining that something is foreseeable when "a specific incident occurs with such frequency that it may be expected to happen again"); Ameijeiras v. Metro. Dade County, 534 So.2d 812, 813 (Fla. 3d DCA 1988) (holding that attack in a county-owned park was unforeseeable because no similar violent crimes were reported to have occurred there in the preceding two years).  Leitch v. City of Delray Beach, 41 So. 3d 411 (Fla. Dist. Ct. App. 2010) .

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com; www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)