Bad Aim – Checking Out a Friend’s Firearm in Your Garage is Not a Recreational Activity (OH)

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Lovegrove v. Stapleton (Ohio)

The plaintiff and the defendant were both experienced gunman who shared a common interest in competitive shooting.  Plaintiff and defendant participated together in a Tuesday night shooting league, and they would sometimes go to shooting ranges together on weekends.  In the summer of 2012, plaintiff drove to the defendant’s home to have the defendant notarize some paperwork for him.  Plaintiff brought his new gun with him, knowing that defendant would likely want to check out it out, which, as the evidence established, is something that happens often in the culture of the competitive shooting community.

Before entering defendant’s garage, plaintiff removed the magazine from the gun.  In the garage, he removed the gun from the holster on his waistband, checked the chamber, and set the gun on a workbench.  Defendant notarized plaintiff’s paperwork and then checked out the gun “dry-firing” it multiple times.  Defendant’s children came into the garage a couple of time, but were sent back into the house for their own safety.

Defendant stepped into the house to check on his wife, who was in the backyard.  Plaintiff picked up his paperwork and his gun, and he put the magazine back in the gun.  Since no round was chambered, he could not put on the gun’s safety.  Plaintiff turned around and saw defendant’s children standing in front of him wanting to show him a trophy.  Defendant placed the gun back on the workbench and told the children he would put his things back in his truck and then come inside.  Plaintiff ushered the children back into the house and closed the door.  As plaintiff was turning around he heard the gun go off.  The defendant had returned, picked up the gun from the workbench, and fired the gun.  The bullet hit the workbench and ricocheted, hitting plaintiff in the abdomen.

A year later, plaintiff filed a lawsuit against the defendant alleging that the defendant acted negligently and recklessly in shooting the gun.  The defendant filed a motion for summary judgment, claiming that plaintiff was engaged in a recreational activity and that primary assumption of risk precluded plaintiff’s negligence claim.  Defendant also contended that he had not acted recklessly.  The trial court granted defendant’s motion, and plaintiff appealed.

On appeal, the Court of Appeals of Ohio first addressed the issue of recreational activities and assumption of risk, noting that the “exact boundaries of ‘recreational activity’ have not been defined, and whether a particular activity falls within the meaning of ‘recreational activity’ has been addressed on a case-by-case basis.”  The defendant argued that “practicing a recreational activity and testing equipment used during a recreational activity constitute[d] engaging in the recreational activity.”  However, the Court concluded that dry-firing the plaintiff’s gun did not fall within the definition of a “recreational activity.”  The Court explained:

“[Plaintiff] and [defendant] were not engaged in target shooting in [defendant’s] garage; they were not firing weapons at targets or actively preparing to do so.  [Plaintiff] was simply showing his modified weapon to his friend and fellow shooter, as is often done by people who engaged in competitive target shooting. Accordingly, we conclude that [defendant’s] conduct of dry firing [plaintiff’s] gun was peripheral to the recreational activity of target shooting and did not constitute engaging in the recreational activity itself.”

The Court ultimately concluded that the trial court erred in concluding that plaintiff was engaged in a recreational activity and that the defendant’s negligence claim was precluded by the primary assumption of risk doctrine.  As to plaintiff’s claim based on reckless conduct, the Court agreed with the trial court that the defendant’s conduct did not constitute recklessness, which is a “high standard” requiring a “conscious disregard of or indifference to a known or obvious risk of harm to another.”  Therefore, the trial court judgment was affirmed in part, reversed in part, and remanded for further proceedings.

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