Friend saw a psych - Legal obligations?

[Connman]

Did i fall into a soap opera?

[WithHonor]

Was the "Just in case" geared towards getting his gun taken away for the act of visiting a shrink or did he specify "just in case" due to his mental state?

[bluesmoke9]

[QUOTE=Tincon;13369946]That's a good way to look at it, however the term "obviously" here is somewhat subjective. Reasonably foreseeable is probably a better term.

I took "obvious" right out of the definition of criminal negligence you referred to earlier. So there's that.

[Tincon]

I took "obvious" right out of the definition of criminal negligence you referred to earlier. So there's that.

I'm not sure where you saw that, but this is the definition from the link I gave:

1. What is Negligence?

A person acting negligently could face civil or criminal liability.

Civil negligence (sometimes referred to as "ordinary" negligence) takes place when someone gets injured as a result of another person's carelessness. In order to be held civilly negligent, a person's conduct must fall short of how a "reasonable" and prudent person would act in the same or a similar situation.

Criminal negligence (sometimes referred to as "gross" negligence) takes place when an individual behaves in a way that is an extreme departure from the way that a "reasonable" person would act.

[SanDiegoMan]

Better $300 than a prison trip. Things could get very sticky if the friend gets the gun back and uses it to commit suicide (which is a crime btw). Unfortunately the OP is already in the bad situation, $300 now may be very cheap considering the potential risk.

That's dumb, why would suicide be a crime? The damn person is dead! What would they do, toss their remains in jail?

[Tincon]

That's dumb, why would suicide be a crime? The damn person is dead! What would they do, toss their remains in jail?

Attempted crimes are still crimes (though as I mentioned, attempted suicide is not likely to be criminally charged to today), as are actions of accomplices and criminal conspirators. I'd be much more worried about PC 401 though, which is much less of a stretch, and I'd be even more worried about civil negligence.

[Funtimes]

Challenge accepted. And I don't even have access to my legal library at the moment. I just did a quick Google search here and came up with Jacoves v. United Merchandise Corp., 11 Cal Rptr. 2d 468 (Cal. App. 1992). This is a civil wrongful death case where Big 5 sold a gun to a person who subsequently committed suicide. Based on the evidence in this specific case, the court decided that it was not foreseeable to Big 5 that the purchaser of the gun would use it in that manner (largely because no pre-existing relationship existed between the purchaser and seller). However, there is a detailed discussion by the court of other cases that DID find liability, and that additional facts as to foreseeability WOULD likely result in liability.

Back to the drunk driving hypothetical, you are right in that it is not all that different. The legal analysis regarding the entrustment of vehicles to drunk people is discussed by the court and applied to the Jacoves case.

I don't think we come even close to being in the "special relationship" or providing "chattel" to the person.

Then, we have a "duty of care not to provide a dangerous instrumentality to an individual whose use of the instrumentality the supplier knows, or has reason to know, will result in injury."

Well, I cannot really know, the guy didn't say "I'm going to kill myself." What reason would you have to know? Individual seeks treatment, learns techniques, is not required to be on medication, and is essentially given a clean bill of health with some advice to stop over thinking the situation. I don't think we have met any "knows or reason to know" elements.

Also, something to consider is that "just in case" could have been, he doesn't want his firearms taken if she flips out one night and files a TRO. I've done this for guys. He may also not want the gun in the house so she can't say that he pointed it at her or something similar (I've done this for friends as well).

Possibly giving it back to him if came back distressed and stuff I could see you getting hammered; it would be akin to their example of the drunk shooting his wife.

Also, for many of the sellers, I we are bound by law to not sell or transact to specific individuals (threat, harm, suicide). I don't know if that directly applies to property that the person already owns but was lent to us? After all, what legal justification do I have to keep the individuals property? I can't require him to do anything; I can't require him to disclose anything (HIPPA).

Further, I don't think the individuals actions show that he is acting reckless or irresponsible, which was a primary element for attempting to put liability on the defendant. Here, I would say that the gun owner's actions are actually contra.

Lastly, FN 17 of that decision has a bunch of cites, but they are not really on point here. I don't see how they apply or directly correlate to this situation with the facts currently given. I don't really think the Big 5 case is as on point as you may think. FFL's have different liabilities under State and Federal law in regards to sales, which is what I think they were going after here.

[Tincon]

You have way too much faith in the judicial system.

Take a look at this case: http://floridainnocence.org/content/?p=9982

The police arrested that guy. A prosecutor charged him. A judge decided there was enough evidence to try him. A jury of 12 people convicted him. He spent 17 years in prison. For a murder committed while he was in police custody, a fact which everyone involved, including the judge and jury, was well aware of.

You think you are going to get off because you say something like "well, I didn't REALLY KNOW he was suicidal?" Good luck with that.

[Funtimes]

You have way too much faith in the judicial system.

Take a look at this case: http://floridainnocence.org/content/?p=9982

The police arrested that guy. A prosecutor charged him. A judge decided there was enough evidence to try him. A jury of 12 people convicted him. He spent 17 years in prison. For a murder committed while he was in police custody, a fact which everyone involved, including the judge and jury, was well aware of.

You think you are going to get off because you say something like "well, I didn't REALLY KNOW he was suicidal?" Good luck with that.

I don't really see how any of that is relevant. Can you show me at least one instance where a seller has been criminally prosecuted for selling a firearm to someone who has committed suicide? I can't find any.

In a cursory search I see that there are lots of duty as a seller of firearms, specifically licensed dealers, but nothing that really applies to the average joe.

[Funtimes]

To add, I'm not just trying to egg you on. I'm actually in the near future *crosses fingers* going to be selling firearms myself. So some of this is for me as well; I've been looking at my insurance requirements and liability recently.

What I understand is that I need:

1.) An obligation or relationship that requires me to exercise reasonable care.

I can see that as a licensed dealer; We have state requirements, Federal requirements, and a duty as a salesperson / business. I can see it in some relationship statutes (mom/dad/caretaker etc.), medical, teachers, etc. Basically all of the same ones that require me to report a rape or what not.

2.) A breach of said duty.

Meaning that I didn't live up to my standard of care or exercise reasonableness. I just can't see how this gentleman here was unreasonable.

3.) Causation - This one is obviously tied in. If I give them the gun, the gun causes it, we have pretty clear idea what happened here. So there is nothing to really say on this.

4.) Damage; again, this is clear - home boy is dead. That would be our damage.

Aside from that, I think we have demonstrated here that a reasonable person wouldn't have an issue with giving the gun back. This is shown by the mix of opinions; the only opinions contrary, seem to have a heightened knowledge of law and legal proceedings, which may not really be known to the lay person or conspiracy theorist.

Risk observed: Part of me has to have seen or should of seen the risks associated. Initially, I can understand if the friend asked for the gun back after showing 'signs' of harm that would be rather reckless. I can see you getting hemmed up on that pretty easy by a spouse or other family member.

Also, I understand that if the person is of a diminished capacity - my duty of care rises. I would link that back to the initial incident, and say at that time I would be required to help this individual or take steps to see he doesn't get the gun. But, as he gets better, my duty to care for him diminishes / goes away.

Next few question would be:
Don't we need adequate notice of the potential harm?

Generally speaking, since we are not a business, we didn't have a duty to act. However, since we did help him initially, does that change the relationship and put us in a position where we have assumed that duty?

[BumBum]

Generally speaking, since we are not a business, we didn't have a duty to act. However, since we did help him initially, does that change the relationship and put us in a position where we have assumed that duty?

Bingo. You hit the nail on the head here. In Jacoves, while there was some evidence that the purchaser may have been acting a little unusual, there wasn't enough to make the risk of suicide foreseeable to Big 5. As an FFL, you will generally have some discretion regarding refusal to allow purchases. But unless someone explicitly states that he is going to use the use the gun to commit suicide, you are probably in the clear as long as you follow all of the proper procedures. The fact is that you don't know your customers all that well. (This is also one benefit of the 10-day waiting period from the FFL standpoint as to causation. When the Jacoves case happened, there was no waiting period for long guns, so there was no "cooling off" between the comments and suicide.)

But in OP's situation, he does have additional facts known to him that increase the foreseeability factor. I mean, the friend gave it to him "just in case". By acquiescing to the request, he implicitly recognized the risk associated with his friend possessing a firearm. He assumed a certain duty at that point in relation to his friend.

The existence or absence of a "special relationship" is really immaterial here. A special relationship is a separate legal concept where certain specific situations dictate a heightened duty with regard to others. The absence of a special relationship doesn't necessarily work to absolve one of liability in a situation like this.

I will admit that this case is potentially complicated by the fact that the chattel here isn't actually owned by OP. The loan is only supposed to last for a duration of 30 days. The question is, which public policy trumps? Possibly the one that is related to safety? I don't know the answer. Perhaps some other type of disposition is in order? This is an area where the law gets particularly messy.

Also don't forget what I said earlier -- maybe you will ultimately win, but that's not before you have spent tens of thousands in attorney fees defending yourself (unless you are lucky enough to have a good insurance policy that will pick it up). Regardless of who wins, each side is responsible for their own attorney fees. That is a huge consideration separate and apart from the risk of the eventual judgment. I honestly don't think it would be all that difficult to find a plaintiff's attorney who would accept this case.

[Hoooper]

So, let's not worry about the legalities, because maybe no one will find out?

"legalities"? You arent really discussing legalities here, you are more discussing how he could get hosed by an overzealous prosecutor or entitled feeling friend/family. If he has no reason to believe the friend is going to use it to kill himself, it cant be criminal negligence except by some massive stretch of the law. If he does have reason to believe the friend will do that, then he ought not give it back.

[Tincon]

"legalities"? You arent really discussing legalities here, you are more discussing how he could get hosed by an overzealous prosecutor or entitled feeling friend/family.

That's pretty much the definition of legalities.

If he has no reason to believe the friend is going to use it to kill himself, it cant be criminal negligence except by some massive stretch of the law. If he does have reason to believe the friend will do that, then he ought not give it back.

Yes, but either way there are some legal issues that should be dealt with.

[sarabellum]

The man acted responsibly by asking you to hold his rifle. He asked for his rifle politely. Return his property to him.

That a woman messed with his mind as some, ahem, tend to do is irrelevant.

[bluesmoke9]

Better $300 than a prison trip. Things could get very sticky if the friend gets the gun back and uses it to commit suicide (which is a crime btw). Unfortunately the OP is already in the bad situation, $300 now may be very cheap considering the potential risk.

Theoretically, you have a point. Realistically, you are grasping at straws and "what if's". Find one case, just one, where someone got a "prison trip" for circumstances closely similar to what the OP originally asked about. I seriously doubt you can find one let alone a handful. With all due respect, it would appear you're more concerned with just ginning up work for lawyers.