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PostPosted: Tue Jul 04, 2006 8:43 pm 
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Joined: Wed Aug 24, 2005 12:31 pm
Posts: 280
Location: Townsend, MA
New case from the Mass SJC:

"JUPIN, et al. v. KASK

SJC-09538

JOANNE D. JUPIN, administratrix,[1] & another[2] vs. SHARON KASK.

Worcester. February 9, 2006. - June 30, 2006.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Negligence, Duty to prevent harm. Public Policy. Firearms. Strict Liability. Nuisance.

Civil action commenced in the Superior Court Department on May 6, 2002.

The case was heard by Francis R. Fecteau, J., on a motion for summary judgment.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Douglas L. Fox for Joanne D. Jupin.

June A. Harris for the defendant.

John Mizhii & C. Deborah Phillips, for the Town of Westminster, were present but did not argue.

Dennis A. Henigan, Elizabeth S. Haile & Daniel R. Vice of the District of Columbia, Daniel C. Swanson & Clifford J. Zatz, for The Brady Center to Prevent Gun Violence & others, amici curiae, submitted a brief.

CORDY, J. On May 10, 1999, Jason Rivers (Jason), a young adult with a history of violence and mental instability, shot and fatally wounded Officer Lawrence Jupin of the Westminster police department during a foot chase. Jason had obtained the handgun with which he killed Officer Jupin from the home of Sharon Kask (Kask), where his father, Willis Rivers (Rivers) and Kask resided. Kask owned the home. Rivers owned a sizeable gun collection, which he stored in the basement. Jason had been given a key to the home (by Kask or with her knowledge) and was permitted full access to the property, regardless of the presence or absence of Kask or Rivers. Jason had not been given permission to take a gun from the collection.

Joanne Jupin (Jupin), on behalf of her son Lawrence, brought a civil action against Kask, claiming that (1) she was negligent in failing properly to secure the handgun used in the shooting and that she should be liable for the harm caused by it; (2) even if not negligent, Kask should be held strictly liable for the harm caused by a gun stored in her home; and (3) Kask's failure to properly secure the guns stored in her basement constituted a public nuisance. A Superior Court judge granted summary judgment in favor of Kask on all claims, concluding that she owed no duty of care to Officer Jupin in the circumstances of the case, and that the law did not support extending theories of strict liability or public nuisance to the storing of lawfully obtained, unloaded firearms in one's home. We granted Jupin's application for direct appellate review.

We affirm summary judgment on the claims of strict liability and public nuisance. The storage of lawfully obtained, unloaded weapons on one's property is not an ultrahazardous activity of the type to which we would apply a theory of strict liability. Nor does such storage (at least on the facts presented here) create a public nuisance. Consequently, if the case can proceed at all, it must proceed on the claim that Kask was negligent in ensuring the proper storage of firearms kept on her property. The survival of that claim, in turn, depends on whether Kask had a duty of reasonable care.

"Whether there is a duty to be careful is a question of law," Andrade v. Baptiste, 411 Mass. 560, 565 (1992), which we determine "by reference to existing social values and customs and appropriate social policy." Cremins v. Clancy, 415 Mass. 289, 292 (1993). In the circumstances of this case, we conclude that a homeowner who permits guns to be stored on her property and allows unsupervised access to that property by a person known by her to have a history of violence and mental instability, has a duty of reasonable care to ensure that the guns are properly secured. This duty is owed to, inter alia, a law enforcement officer shot by the person granted unsupervised access, because the officer is a foreseeable victim of the alleged improper firearm storage. We therefore reverse summary judgment on the negligence claim and leave to the jury the determination whether Kask exercised reasonable care.[3]"

Full case at:
http://www.masslawyersweekly.com/signup ... 011506.htm

enjoy! and make sure your gun safes are secure!

John

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