Getting a Recovery for Injuries from a Stray Gunshot

It is elementary that a gun is very dangerous.  It is also fundamental that if a gun were fired, the injured person can recover for his injuries.

This elementary lesson was reinforced this weekend by the somewhat comic episode where Giants footballer Plaxico Burress accidentally shot himself in the leg with his own gun.  Burress was at a Manhattan nightclub when he noticed that his gun was slipping down his trouser leg.  He tried to grab the gun, but he fumbled, and he shot himself clean through the thigh.    Burress probably grabbed the trigger by accident.

Burress inflicted his own injury.  Of course, he cannot “sue himself.”  However, where the injured victim did not cause the injury, he can sue the shootist.   

About 15 years ago we handled a case involving a “fumbled” gun.  We obtained an excellent recovery for the client.

Sam, a boy of about 4 years of age, was in a printing shop with his mother.  The mother was placing an order, and Sam was in front of the store looking out the window.  The store owner, a retired policeman, was coming to the store from his car.  He was carrying an underarm portfolio.  When the owner got within a few feet of the door, he claims that he stumbled but did not fall.  The next thing that happened was a gunshot.  Sam’s mother thought that there was a gunshot or car backfire outside.  However, to her horror, the front glass was shattered, and Sam had been shot through the neck.  The store owner had a gun which accidentally fired. 

Sam’s mother took charge.  EMS was called, and Sam was admitted to the hospital.  Fortunately, the bullet passed cleanly from the front of the neck to the side of the back without inflicting any permanent neurological or orthopedic injury.

At the deposition the store owner claimed that he was carrying his handgun in the portfolio.  He said that there was nothing wrong with his handgun which had been his service revolver in the NYPD.  He did not know why it fired.  

However, we were able to disprove this.  We hired as a gun expert a certified gun instructor form a local firing range and gun club.  Our gun expert testified that this type of handgun could not fire unless the trigger were pulled.  Our expert said this is a common feature of the owner’s gun (a Colt .45) and modern guns so that they cannot be accidentally fired even if the gun were dropped from a window.  In sum, the only way that the gun could fire was by pulling the trigger.  Therefore, the store owner must have negligently pulled the trigger.

In our case we obtained summary judgment on liability.  That means that the Court found that we showed on a motion that there was no issue of fact as to the store owner’s negligence, and the only issue for trial was damages.  The only logical explanation was that the owner had his finger on the trigger and accidentally pulled the trigger when he stumbled.

If you have been injured by a stray gunshot, please call me for a free consultation at 800-581-1434 or write to us at

Mark E.  Seitelman, 11/30/08,


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