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Guest Accidentally Shot at Texas Barbecue

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A recent Texas injury case arose when a woman was inadvertently shot by a guest hosted by the defendant. She sued the defendant under theories of negligent activity and premises liability. He moved for summary judgment, and the court granted the motion.

She appealed. First, she argued it was a mistake for the lower court to grant summary judgment on her premises liability theory, since a gun was brought to a place where guests were imbibing alcohol. She believed this was gross negligence. Second, she argued it was a mistake for the lower court to issue a summary judgment on her claim of negligent activity.

The defendant had hosted an evening barbecue, and he’d invited his cousins, among others. The plaintiff was dating one of the cousins, who invited her to the barbecue. One cousin came with a small child, who played with the host’s son inside. The guests were outside drinking beer, but none of them appeared to be drunk.

One cousin brought a pistol to the party. Many people, including the plaintiff and the defendant, used the gun to shoot at soda cans out back. The gun was put on a picnic table, and at sometime around 11 pm, the cousin seized the gun, and it went off, shooting the plaintiff. The defendant was somewhere else and didn’t see what happened.

The plaintiff sued both the host of the party and the cousin who shot her for negligence, arguing the host was liable under premises liability and negligent activity theories. The defendant moved for summary judgment. He argued she hadn’t proved that he failed to act as a reasonable property owner would, he didn’t owe a duty as a social host regarding the negligent activity claim, and there was no proof he’d generated a hazard that would result in his owing a duty to her. The motion was granted.

The appellate court explained that both premises liability and negligent activity are types of negligence but are different recovery theories. Negligent activity is based on the idea that the owner acted affirmatively to cause an injury. Premises liability requires the plaintiff to establish that a property owner didn’t take necessary steps to keep the property safe.

The defendant argued that knowing guests were drinking while a gun was in his house wasn’t proof of gross negligence. The appellate court agreed. It explained an owner’s duty is determined by a visitor’s status on the property. In this case, the plaintiff was visiting the property for social reasons, so the property owner had an obligation not to injure her through wanton, willful, or gross negligence. The appellate court explained there’s an objective and a subjective element to gross negligence. In this case, the appellate court found that the evidence didn’t raise an issue of whether the defendant was subjectively aware of an acute degree of risk. The appellate court also concluded that leaving a gun on a table during a party was not an ongoing activity. The trial court’s judgment was affirmed.

If you are injured by someone else, the experienced San Antonio personal injury attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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