Managing Liability at Your Range

By Edward F. George Jr., Esq.
Edward F. George and Associates

(This article is reprinted from the Third National Shooting Range Symposium, 1996 with permission from International Association of Fish and Wildlife Agencies, Wildlife Management Institute and U.S. Fish and Wildlife Service.)

When I was sitting in the audience at the symposium's opening session two days ago, a gentleman passed me a piece of paper. On it he had written down one of those attorney jokes. It basically said, "Question: What do you say about a bus load of lawyers that goes over a cliff with one empty seat?  Answer: A waste of a good seat."

The reality is that there are a lot of lawyers in society in America. That's because we resolve our differences with laws, not with guns as they do in some countries. We don't resolve them by shunning people or deciding that no one in the world is ever going to talk to them again if they did something wrong. That's the way it's done in Japan. They don't have any lawyers because if you make a mistake, nobody invites you over for dinner again for the next 25 years.

My own view is that while there are too many lawyers chasing too few clients, there are too many clients who don't have good legal advice. If you don't believe me, just go around and ask your friends in gun clubs how hard it is to find somebody to come in and look at their club's bylaws, articles of organization, release forms. It's hard to find somebody who actually knows what they're doing, who understands your club's activity and understands the law as well.

There are an awful lot of gun clubs out there-I can tell you from experience-that don't get good legal advice. In fact, most of them that I've seen don't get any legal advice. I've practiced law for 25 years in Massachusetts and in Connecticut.  I was in a large firm until I started my own firm about five years ago, and I did almost nothing but try cases. Some of these cases involved gun clubs; however, many more involved contractors, gas station owners, electricians and plumbers. In the last 10 years, I have represented probably 50 gun clubs. I have about 25 gun clubs as regular clients. But the most valuable experience that I have had that is applicable to the problems sportsmens' clubs face has been cases involving other recreational activities, such as ski resorts, go-cart tracks and golf ranges.

Many of the problems for which I have represented clubs involve nuisance. That is, claims by abutters, usually abutters who want to shut the clubs down, so that they can improve the quality of life for themselves. Often these abutters want to improve the resale value of their own residential properties. Some abutters complain about sound, some complain about safety, some complain about lead.

I have represented gun clubs who have had to deal with permitting problems and zoning problems because of various people who are anti-gun (there are a lot of those people in Massachusetts). They do not want to have gun clubs in their towns. Therefore, they use local zoning regulations and bylaws to try to eliminate those activities.

I have represented gun clubs in legitimate cases that involved rounds escaping the range. The rounds didn't kill anybody. So far no one has been hurt, but the instances involved complaints or cease and desist orders issued by local boards or injunctions issued by courts.

I have represented gun clubs in numerous actual environmental problems. I recently met with a group of environmental scientists and a committee from a gun club in Massachusetts. The club has been shooting trap and skeet on seven trap fields. They have 11 American Trap Association shoots a year. They've been shooting for 30 years, and they're shooting into a stagnant swamp. The local conservation commission has issued a cease and desist order and has given the club a period of time to come up with a plan to clean up the swamp.

They went out to do a soils test intending to do the usual 4-feet and 2-feet deep borings to determine whether or not the soil was in wetlands and to delineate the area of any wetland. The technicians went down four to five feet and were still grinding through broken targets and plastic wads and never did reach the soil, so that test boring exercise became problematical.

I've had one case involving a fatality at a gun club. It involved a lady who went into a club to take a firearms training and safety course. While she was standing at the firing line, she turned the revolver on herself. She pointed it at her chest and pulled the trigger. The woman had a psychiatric history. She had tried to jump to her death. She had tried to slash her wrists. She had tried to overdose on pills. She finally succeeded at the gun club. It's the one accident that happens at a gun club that may close it down.

I've tried cases involving pregnant women who got injured while they were driving go-carts. I've tried cases involving young people driving go-carts and crashing into tires that just flex and do nothing but increase the severity of the injury. I've tried cases involving climbing, skiing, swimming and golfing. I've tried cases involving all kinds of recreational activities. None of the operators of those facilities was in danger of being closed down, but any gun club will be if a serious accident happens.

Golf courses and ski slopes are the berthing grounds of recreational accidents. Lightning hits people on golf courses. Of course it's going to hit them. They're out there on 18 holes. When you go shooting, you go stand underneath the covered firing line. You're there 99 percent of the time, and when the lightning comes, you run to the bus or the car that is 15 yards away. When you're out on a golf course on the 17th hole and lightning strikes, what are you going to do? You go hide under a tree, and the tree falls on you.

People hit each other with golf balls. Let me tell you, if shooting ranges had people getting whacked with bullets one-thousandth of the number of times that people whack each other with golf balls, none of us would be here today. Shooting is a stationary activity; it's a well-regulated activity. Shooting is an activity of whose accident history you can be proud. If you're running a range, you know that injuries can be avoided because you can control the situation. You can stand there with a range officer, and that range officer can watch a whole line of people standing in one place. He doesn't have to run around in a golf cart trying to figure out whether people on the third fairway are driving balls in the reverse direction at people on the second fairway. He's not watching an entire ski slope of people hitting bare patches or ice patches or mowing down trees with their bodies.

So don't be scared of your range. Watch it carefully instead. The one thing you do have to worry about is that one fatality or serious injury occurring. If a member shoots a member or a member shoots somebody else by a round that goes out of the range or by an accident on the range, then the whole world is going to jump down your throat. By the whole world, I mean the news media will be out there, and they'll be all over you because it's politically incorrect to shoot. If they can prove that you shouldn't be shooting or running a range, they're going to jump on the chance. Guns are bad. Ranges are bad. That's the media's credo.

Of course, if your range experiences a shooting injury, you generally have much larger damage. I don't know how many here have been hit by a golf ball or have slipped and fallen. Generally, a slip and fall is a broken arm, a broken leg. Older people are generally the most severely injured. But most of the time injuries aren't fatal, and most of the time they're not debilitating forever. But getting shot is something that usually results in a permanent and severe injury. This may seem pretty cold, but that kind of injury is very expensive because damages are calculated by juries in terms of how much people have lost their ability to enjoy life, how much they've lost their bodily function, how much pain and suffering they have endured. Damages from shooting accidents are far more severe than they are out on the golf course or the ski slope. In my view-and this is not from statistics-shooting accidents are like swimming accidents, rare but usually somebody is dead.

Protecting your range

To understand how to protect yourselves, I would suggest that we need to focus on the law of negligence and the science of accident prevention.  Be practical. Hire a plaintiff's negligence lawyer or an insurance defense lawyer who knows shooting to advise you. Talk with insurance loss prevention people.

Negligence is the breach of a duty. I'm not going to speak in legal terms. It's a duty to do something in accordance with the accepted standard of care. That standard of care is usually established on a range, not with the finest and most perfect thing available. You saw the range at Lakeland Rifle and Pistol Club on yesterday's field trip. It doesn't have as many baffles as the Tenoroc Shooting Range does. It doesn't have all of the safety features that Tenoroc Range has, but it has more than the standard safety features. It is not just a sand lot full of rocks. It is supervised, bermed and clearly marked. It has clearly defined firing lines and a well maintained backstop. It has rules and range officers who enforce the rules.

The duty to do the right thing is established by the standard of care prevailing in the industry, and it doesn't always require that you spend the money and do the perfect thing. You don't have to have the newest facility. You do what's feasible, and you do what's economical. A group of volunteers who are collecting $200 in initiation fees and $75 a year in dues aren't going to be able to put $100,000 into their range. So I hope I got the point across. Fancy and new does not necessarily mean safe and sound.

Duties to do the right thing are different for range officers or range owners versus invitees or guests. You have a higher standard of duty as an operator or owner of a range than you do as a shooter. The duty to do something correctly, or not to do something that's foolish, is dependent upon foreseeability. That's a very important concept in the law. It's not foreseeable that a AAA trap shooter will shoot himself in the foot. It is foreseeable that a novice might. Knowing your customer and supervising him/her is the number one priority.

Acts of God are out: You're not responsible for an Act of God. I don't agree that a range officer is responsible if an adult shooter doesn't get off the range when he sees lightning coming. Some lawyer may say that you did have that duty, so you're better off to warn people of the lightning. I agree with that, but as a defense lawyer, I wouldn't agree that my client should be liable because he didn't tell an adult to get off the range because lightning was coming. That case won't fly in my state, but maybe it does in Florida.

Acts of novices are included. Novices are neophytes, those are people who don't know what they're doing. You have a very high standard of duty to those people. They don't know about the sport of shooting. They may not know that when they squeeze the trigger on a semi-automatic pistol, it reloads again, and it's ready to fire. In that case, you'd better watch them and make sure they understand before they shoot their daughter or son or wife or somebody standing next to them. Start with one round at a time and supervise them closely.

Acts of children are included. Children are novices by definition. Children do not have the maturity to know what they're doing; you'd better watch them like a hawk. Never send a kid out on a range without a coach there all the time. Make sure the coach knows what children can and will or might do!

There has to be damage in order for a breach of duty to result in a liability. If there's no damage, there's no problem. There also must be a causal connection between the breach of the duty and the injury.

Let me just breeze by some examples here and get into some recommendations. Public agency and governmental immunity is only available to publicly owned state, federal and county ranges.

You should all check your state statutes, but basically you can't sue the state, and you can't sue the federal government unless a statute is passed that says you can. That holds true for just about every state, and it's certainly true for the federal government. In other words, if you're on a federal range run by the federal government and get injured, you can't just trot off and file a lawsuit against the range as if it was a corporate defendant. You can't file a lawsuit against Broward County, Florida, unless there is a statute.

In federal law this is called the Federal Tort Claims Act. In Massachusetts it's called the Tort Claims Act and enables you to file a lawsuit. It comes from a concept from England called "You Can't Sue the King." The King is the sovereign, and he has sovereign immunity. We got rid of the King but we kept the immunity. The United States is the sovereign; the states are the sovereigns. Also, the municipalities underneath the states take their authority from the states.

If you run a county, state or federal range, you have a certain degree of immunity from lawsuits. That immunity is not possessed by people who run private ranges, nor is it possessed by private gun clubs that run not-for-profit ranges. Check with your local attorney or just go the library and look up the law of your state.

The statutes and the Tort Claims Acts generally require that claims be brought within a short period. In Massachusetts, you ordinarily can file a suit for injury anytime during the three years following the injury. However, if you're going to sue the state, municipality, city or town, you have to file your claim within one year. You have to document your claim thoroughly, and if what caused your injury was a "discretionary act", then you have no case at all.

The limitation of liability is $100,000. If I get shot in the foot at a private gun club or a not-for-profit gun club, I can sue them for $5 million. However, if I got shot at a county range in Massachusetts, there is a $100,000 limitation. That's something for you to keep in mind.

The liability only exists also on an operational level. State and federal officers, including fish and wildlife officers, are not personally liable for lawsuits generally, but check with your local counsel and your own state laws. Generally, they're not liable for policy making decisions.

Let me give you an example. Let's assume I belong to a gun club. I decide that I'm going to shoot 365 days a year, and I develop some sort of lung disease and I file a lawsuit. I say, "They should have had a Ôwet snail' bullet trap because I kept shooting into that metallic backstop which produced lead dust, and that's what caused my lung injury." Well, the private range owner or sportsmen's club made a policy decision not to invest the money to buy a "wet snail." They decided to keep their metallic bullet spinning backstop which leads to all that dust that they can't clean up. Even with regular vacuuming, they don't get all the lead dust out of the air or off of the floor.

A lawyer can put together a lawsuit against a private or not-for-profit club. A lawyer can't bring that lawsuit against a range that is operated by a federal, state, county or municipal agency. That agency made a policy decision. They decided they didn't want to spend the money on an air filtration system. You can't attack them for that. The law protects them for that. It was within their discretion to save money. The idea is not to have policy makers subjected to the same kinds of lawsuits that private owners are subjected to.

Operationally, the agency can be sued. For instance, a shooter experiences a squib load, but the range officer doesn't stop the shooter before pulling the trigger again. The shooter is a novice. He pulls the trigger on the Remington 1100, and kaboom! Congratulations, you and Remington are a member of the litigation club of America and it's going to be two or three years before it's settled.

Not-for-profit clubs typically have statutes that provide a certain level of protection for officers and directors. In Massachusetts that statute is Chapter 180, the Not-For-Profit Corporation Statute. Most states have not-for-profit corporation statutes. If you are a private gun club, you should incorporate the club under a not-for-profit statute because as an officer and director of the club, it gives you the right to act in accordance with a much less stringent standard of care than is applied to an officer or director of a for-profit range.

The law gives you some leniency to determine what should be foreseeable to you with regard to injuries. Make sure you check with your own lawyer in your own state. States are all different. You can also go down to the library and look up information on statutes. Just look under the index for a not-for-profit corporation listing.

The Massachusetts not-for-profit statute says: "An officer or a director who acts in good faith with such care as an ordinarily prudent person in a like position with respect to a similar corporation would use in similar circumstances shall be entitled to rely on information supplied by others and shall not be liable for the performance of his duties otherwise."

Now you say to yourself, "Gee, what's that do for me?" Well, if you're acting with a standard of care as an ordinarily prudent person in a like position in a comparable or similar corporation, you're not going to be held to that standard of care that would be applied to a for-profit professional. You may be a gun club officer or volunteer in a not-for-profit club. It's not a full-time job, and you're not going to be held to the same standard of care as a vice president at General Motors or Coca-Cola. You're just not going to be held to that standard of care.

Courts recognize these not-for-profit statutes, and the courts recognize that people are volunteers. So my advice to you is to incorporate as a not-for-profit club. Again, incorporate the range operations and separate the land ownership from the operational corporation or make sure your club has plenty of general liability insurance.

A lot of people ask: "Is that the wrong thing for us to do? Shouldn't we be ethical?" Look, the courts said a long time ago that it's not illegal, unethical or immoral for a man to arrange his affairs to minimize his income tax. Don't cheat on your income taxes, but you don't have to go out of your way to pay the government more than is due. There are lots of problems with putting land in a trust, but look into it.

The same thing is true of liability. There is nothing unethical, unreasonable, illegal or immoral about arranging your affairs to minimize liability. If you're a for-profit organization, make sure that a trust or different entity owns the land from the corporation which runs the range.

Insurance to cover your range

Buy insurance to cover activities of the corporation that runs the range, and don't put up the land as a deep pocket for a personal injury lawyer to go after in the event somebody is injured there.

For private and non-profit clubs, make sure you buy general liability insurance from a company that writes general liability insurance for ranges. At least five times in the past two years gun clubs have had scares, and they've come to me with packages of insurance. Some of them are very good; some of them are just awful. Some provided no protection whatsoever.

The last one that I reviewed had a general liability policy. You ought to have a limit, depending on the size of your club, of at least $500,000. Give the lawyer something to go after. It's like feeding the lions. Don't have a $10,000 liability policy. However, don't be like a doctor; doctors are always asking to get sued. I have had a dozen different clients who are doctors ask, "How come I always get sued?" I answer, "Because you've got $10 million in insurance; that's why you get sued." "Why do I need so much insurance?" the doctor asks. The answer is: "Because you've got a lot of assets." The same is true for your range.

A kid gets into an automobile accident; he's got a $20,000 policy. The plaintiff can't walk; he settles for the policy and goes home in a wheelchair because the defendant has no cash. The defendant's house is mortgaged, or he doesn't have a house. Gun clubs always have land. They rarely have mortgages. Buy enough insurance-at least $500,000 worth. Make sure you get it. The National Rifle Association's Kirk Van Orsdel policy is the type of insurance you need. If you have a shooting range committee, you need three types of people involved: a very experienced lawyer, a very experienced insurance man and a very experienced businessman. Lots of gun clubs have officers and directors who don't know anything about business. Don't put them on a committee. Don't send them out to buy a less expensive insurance package from a general agent that doesn't know shooting. Call the NRA at 703-267-1411.

Buy the Kirk Van Orsdel policy because otherwise you're going to wind up with a policy like the one that I saw last month. It featured the following: member to member exclusion, which means that when one member shoots another, the club is not covered. Officers and directors aren't covered. What kind of a policy is that? It's useless.

Some policies have all kinds of assault and battery exclusions, defined very broadly to include something like somebody hitting somebody else with a bullet. Well, what good is that? You'll pay thousands of dollars for a liability policy, but it may not cover your risk! Liability policies are not standard. Liability policies are not like automobile policies which are formatted by your state insurance commissioner. A liability policy says whatever the underwriter wants it to say. Most liability policies have holes and gaps that you can drive a truck through.

Go to somebody who writes insurance on shooting ranges. I am a life member of the NRA, but I'm not a promoter for the NRA. Buy their insurance if you're unfamiliar with insurance policies; it's dependable insurance.

For-profit and not-for-profit corporations running gun clubs must have Worker's Compensation insurance if they have employees; otherwise, they can get sued, and the sky's the limit. Lots of gun clubs have a situation where someone comes to the range and works 20 hours. I knew one situation where an employee wasn't paid at all. The club gave him a house and all he could eat. He lived there for free, and he ate three meals a day. They didn't have Worker's Compensation. One of the man's duties was to sweep the floor twice a week in the downstairs range. He got a lung disease and he filed a claim against the club. The club should have had Worker's Compensation insurance. The fact that the man wasn't paid in cash didn't mean that he wasn't getting paid. You're paying him in kind; that's federal law. Your club needs Workman's Compensation insurance.

Let's take a look at directors' and officers' insurance. Insurance agents love to sell it. D&O insurance has high premiums. D&O policies are useless for most private sportsmens' clubs and gun clubs. They're meaningless; they don't do anything for anybody at all unless you are running a corporation, or you are an officer or director of a corporation that has a lot of money or has employees. A NRA director or officer should have a D&O policy. They have a $5 million budget; they have employees.

A D&O policy will cover the following types of claims: Americans with Disabilities Act claims, Occupational Safety and Health Administration claims, wrongful termination and discrimination claims. However, unless you have that exposure, don't buy a D&O policy.

D&O policies don't cover the following worries: Who is going to defend you if somebody gets shot on the range or if somebody slips and falls on the range or if somebody hits their head on a baffle? D&O policies don't cover that-general liability policies should. D&O policies cover those politically correct, sexy claims, such as wrongful termination, Americans with Disabilities Act and so forth.

Do buy yourself, if you're an officer or director of a gun club or you're a person who owns a range, a a personal injury rider added to your homeowner's insurance policy and buy a person umbrella policy. Do that instead of spending $10,000 on a D&O policy. You'll do yourself a favor. The personal injury rider to your homeowner's policy and an umbrella policy will cost you $200 each or less.

Homeowner's policies not only cover your roof blowing off, they cover you if you hit somebody with a golf ball. They all have bodily injury provisions, but they don't have personal injury riders. You've got pay for a personal injury rider. It's less than $200, in most cases, to get a personal injury rider.

What's the value of it? Guess what is defending Bill Clinton against Paula Jones's claim? The answer is his homeowner's policy because he had a personal injury rider. If he didn't have the personal injury rider, they wouldn't be defending him. The insurance company has paid more that $180,000 in legal costs so far to defend him. If Bill Clinton walked up and kicked Paula Jones in the head, then the bodily injury provision of his homeowner's policy would cover him instead. However, he didn't kick Paula Jones in the head. Allegedly he propositioned her in a hotel room. That's false imprisonment; that's covered by the personal injury rider, as are libel, slander, etc., in some cases.

The umbrella policy provides insurance on top of your automobile insurance and homeowner's insurance. It cover you for personal injury as well as bodily injury.

Make sure you buy all three of your personal policies-automobile, homeowner's and umbrella-from the same agent so you don't have a gap. You don't want to have an automobile policy that drops off at $10,000 and a personal injury rider that picks up at $500,000, because you're going to pay the $490,000 in the middle; they're going to take your house.

Hands-on management

Let me just say that hands-on management is critical. Don't be a big shot; don't try to distance yourself as management from the people who are out in the field. Be out there and be watching and be careful and set an example in that way. The best example of that is Holden Kriss, range manager at Markham Park Regional Shooting Range (a previous symposium speaker). He told you that he believes in hands-on management. He likes to "get out there" on the range.

We have a million examples of what happens when the management becomes distant. I'll mention just one of them. Herman's, a chain stores, recently went out of business. They sold all kinds of sporting goods. They went out of business because after shopping for 20 years at the store, folks realized that they never could find anybody to help them. Nobody on the floor had, what I call, consistent knowledge of what to do. Those same customers walked into a similar store called Sports Authority. People ask, "Why is Sports Authority putting up stores left, right and center? How come they're all over the place?" The answer is because Sports Authority trains its employees properly. They're right down with the customer doing hands-on management. They're within five minutes of solving any problem a customer has. They're customer oriented, service oriented.

If you run a range, do it that way. Train people. Put supervisors on the range. Make rangemasters, supervisors, parents, members accountable. Never take the attitude that a novice or a child is accountable. The other day I said to a youngster I was supervising on the skeet range at my club, "Remember the rules you learned on the rifle team-keep the gun open and unloaded until ready to fire and don't point it at anyone." He's a nice kid. He's a smart kid. He's only 13 years old. He's new to skeet shooting. "Why?" he said. "In riflery they told us shotguns only shoot a little cloud of tiny pellets." He meant what he said. He wasn't kidding. He had interpreted literally what he had heard. He's typical. Make that assumption, every time with every kid.

Good bye and good luck!