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From Drunks with Guns to Just Guns

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So we have covered a landlord’s liability for criminals, animals, and drunks. What about for tenants

with guns? Does a landlord have any duty to third parties if he knows his tenant has guns? What about if he knows the tenant has guns but never uses them? What if the opposite is true? The landlord knows the tenant has guns and likes to use them. In the back yard of the rented premises. In the direction of occupied houses. Is there a duty? (What you think people?! You’ve read enough to know which way the Honorable Judge McCarthy would rule! Or have you?) If there is a duty, what does that duty entail?

Guns

In one case on these facts, the parents of a 10-year-old girl who was accidentally shot and killed sued the landlord of the person who shot the girl. The tenant was in the back yard of the rented premises when he discharged the weapon. He did so in a direction facing the occupied premises of the decedent 10-year-old. The tenant had done this in the preceding month and the landlord knew it, or so it had been alleged. The issue was whether the landlord owed a duty to the 10-year-old girl.

Whether there was a duty turned on the notice of the condition, and the opportunity to fix it. To impose the duty “the landlord must also have the opportunity and the ability to eliminate the dangerous condition being created by the tenant.” Rosales v. Stewart, 113 Cal. App. 3d 130, 134 (1980). In other words, the landlord must have not only a means to stop the tenant from firing his gun in this manner, but the landlord must have also had the chance to do so. So the means to prevent it here could have been eviction. But whether the eviction could have been effectuated from notice of the condition to the time of the gun discharge causing the death would determine whether there was an opportunity to correct the condition.

So if the landlord only learned about the prior gun shooting incident a day or two before the death, he may have had a notice and means to prevent the death. But he would not have had the “opportunity” because one cannot usually evict his tenant in two days. There was no duty in that case as alleged, because “there was no allegation that the knowledge by the landlord preceded a renewal of the tenancy … or that the rental agreement could otherwise have been terminated prior to the injury.” Rosales v. Stewart, 113 Cal. App. 3d 130, 135 (1980).

That was not the end of the story, however. The appellate justices allowed the plaintiffs an opportunity to re-draft their allegations to include opportunity for the landlord to correct by eviction or some other means. We do not know the outcome after the case was remanded, but it is likely that the plaintiffs would have to have the lease agreement in hand or a good working knowledge of local eviction laws. The opportunity allegations would hinge on whether they could colorably state that there was an opportunity to evict in the short time between notice of condition and the death.

This blog submission is only for purposes of disseminating information. It does not constitute legal advice. The statements in this blog submissions do not necessarily reflect the opinions of Robinson & Wood, Inc. or its clients. No attorney-client relationship is formed by virtue of reading this blog entry or submitting a comment thereto. If you need legal advice, please hire a licensed attorney in your state.

 

Colin McCarthy
Colin McCarthy

Colin G. McCarthy is a partner in the business litigation, products liability, and insurance practice groups at Robinson & Wood in San Jose, California.

  • LandlordLady

    So the article makes it clear that the landlord could have a liability based on whether he had knowledge and an opportunity to remedy the issue with enough warning in the case of a reckless use of a firearm.

    The article hints at the landlord having some sort of duty if he knows the existence of and use pattern of the firearm, but doesn’t clarify. Can you clarify?

    Does knowing whether your tenant houses a weapon on your property make a difference? Can you protect yourself with verbiage in a lease regarding the storage and/or use of firearms on the property or is it better to leave it unspecified. I can’t imagine that mere possession of a legally owned firearm could be grounds for an eviction (or should be).

    Obviously the jurisdiction and type of property will determine what sort of verbiage, but I’ve never seen a lease directly cover weapons. (I am an individual landlord leasing a couple SFHs if it matters for your response) I would not be surprised if two of my tenants had firearm(s) but until Newtown I never wondered if I should care.

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