Let’s get this straight. Any firearm in a residence should be in a gun safe or protected with a gun lock. That did not happen in Hernandez v. Jensen.

CARING FOR PARENTS

Maria Jensen’s parents were 87 years old and required home care. Jensen hired two healthcare aids through an agency to care for her parents Josefina and Fernando.

---

---

Fernando was “somewhat of a gun nut” as it turns out and had several guns throughout the house, including a loaded rifle in a closet.

When one of the healthcare aids went to retrieve an oxygen tank from the closet, the rifle fell and discharged, seriously injuring the other healthcare worker. That healthcare worker sued Jensen and her family for negligence. Jensen, by the way, knew her dad kept weapons in the house and did not inform the healthcare workers.

---

---

SUBSTANTIAL JURY VERDICT

A jury found Jensen and her father liable for negligence and awarded $3.61 million. The jury found Jensen 65% at fault, her brother 20% and her dad, Fernando, 15%. The Jensen family appealed.

THE DUTY OF CARE

California law establishes “the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.” That involves the consideration of the foreseeability of the event causing the injuries. As the Court of Appeal wrote, “… the intervening conduct of removing the oxygen tank from the closet did not create a risk that [the healthcare worker] would be shot; the presence of an unsecured loaded firearm in the home created that risk.”

There is a duty to exercise reasonable care for the safety of others when one knows firearms are present. As the court wrote “public policy supports the safe handling and storage of guns.”

NOT A PREMISES LIABILITY CASE

Jensen’s lawyers argued she was not responsible because she did not have possession, and control and did not even own the home. The court explained that proof would be necessary for a claim of premises liability. The Jensen family’s liability was not based on premises liability but was based on pure negligence, failing to protect or warn against the known danger and foreseeable risk of harm for leaving a loaded firearm in a home accessible to others such as healthcare workers.

THE OBVIOUS LESSON

Again, this was a completely preventable injury. There is no excuse for leaving a loaded firearm in a home accessible to others without a gun safety lock or gun safe.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com.