An air gun may also be referred to as an airsoft gun, which fires small plastic pellets at a high range of speed via compressed gas or air containers. Air guns are legal in most states, and are not generally classified as firearms.
Common injuries caused by air guns include, but may not be limited to:
- Injuries to the face and/or head;
- Puncture wounds;
- Injuries involving burns and/or small explosions;
- Fractures; and
- Serious eye injuries.
A person can sue for the injuries that are caused by an air gun, depending on the specific circumstances. An example of this would be when an individual may have used the gun negligently, or the gun may have been manufactured in a defective way. Both negligence and defective products will be discussed further later on.
What Is An Ultrahazardous Activity?
An ultrahazardous activity is defined as any act that is so inherently dangerous that the person performing it can be held liable for injuries to other persons. This remains true even if they took every reasonable step to prevent the injury.
Ultrahazardous activities may also be referred to as “abnormally dangerous” activities. It is classified as a strict liability tort, which means that the person performing the activity can be held liable even if they did not make any mistakes and took precautions in order to prevent harm.
The term “ultrahazardous activity” is sometimes used when describing high-risk, extreme recreational activities. An example of this would be sky-diving, or cliff diving. However, these activities are generally not included in a torts discussion, as they are generally accompanied by a liability waiver and consented to by the person who is engaging in the activity.
Some of the most common examples of ultrahazardous activities include, but may not be limited to:
- The use or storage of explosives;
- Blasting or demolitions operations;
- Using, transporting, storing, or handling hazardous chemicals;
- Disposing nuclear or chemical wastes;
- Controlled burning of buildings or fields;
- Activities involving radioactive materials; and
- Certain types of product defects.
If a person who engages in such abnormally dangerous activities injures another person while doing so, they will be held liable even if they exercised reasonable care.
In terms of air gun injuries and lawsuits, whether it could be determined an ultrahazardous activity depends largely on the circumstances of each individual injury. Participating in a sport using an air gun may be deemed as participating in an ultrahazardous activity; however, participants have generally already signed a waiver, which would release the organization or a person from being held liable for any injuries sustained.
Can I Sue For Negligence When Injured By An Air Gun?
Negligence is the legal theory which allows an injured person to recover damages for actions caused by the carelessness of another. Liability is generally determined by whether the defendant used the ordinary care that an individual in the same or similar situation would have used.
In order to recover for injuries caused by negligence, the injured party must prove the following four elements:
- Duty: This refers to the responsibility that one person owes to another. Generally speaking, people owe each other a duty of reasonable care. What this refers to is the level of care that an ordinary, reasonably prudent person would use in similar circumstances. The plaintiff will need to prove that the defendant owed them a duty of care, such as a duty to handle the air gun in a safe manner in order to reduce the likelihood of an accident;
- Breach Of Duty: A breach of duty occurs when a person’s level of care falls below the level determined by their duty. The plaintiff will need to show that the defendant’s actions or lack of action could be considered a violation or breach of the duty that they owed to the plaintiff. An obvious example of this would be failing to handle the air gun in a safe manner;
- Causation: It must be shown that the defendant’s actions were the direct cause of the injuries suffered by the plaintiff. The basic legal test for causation is that “but for” one party’s actions, the injury would not have occured. But for the defendant handling the air gun in an unsafe manner, the plaintiff would not have been injured; and
- Damages: The injuries that were sustained must be calculated into a damages award. The exact type of injury can vary, from property damage to lost wages.
Compensatory damages are generally awarded in such cases, and are intended to cover costs such as hospital bills, pain and suffering, and other out of pocket expenses.
Can I Sue If The Air Gun Was Defective?
Product liability refers to the manufacturer, retailer, or seller of a product being held liable for allowing a defective product to reach the consumer. A defective product is any product that is unreasonably dangerous when being used for its intended purpose, without any alterations or interference. A defective product causes injury to a person because of a design defect, a manufacturing defect, or a marketing defect.
In order to sue for product liability, an injured plaintiff must prove the following elements of their claim:
- The air gun was defective upon being manufactured;
- The air gun’s manufacturer, seller, or distributor intended for the product to reach the plaintiff without making any changes through the process; and
- The plaintiff was injured in some way by the air gun.
Design defects are present from even before the product is actually manufactured. A company may be liable for a design defect when a foreseeable risk was present during manufacturing, but the company chose to continue creating the unsafe product. An example of this would be a coffee cup designed so that the bottom of the cup melts whenever it contains hot fluid.
Many states require that the plaintiff show that the risk could have been reasonably reduced or avoided by an alternative design; meaning, the manufacturer could have made the changes at an economically feasible cost with the product being virtually the same as the unsafe product. Products that have design defects are inherently unsafe, and as such are only remedied by altering the original design.
Manufacturer defects occur over the course of the manufacturing or assembly process. The biggest difference between design defects and manufacturer defects is that design defects are intentional, while manufacturer defects are unintentional flaws that occur when the product is made. Manufacturer defects are generally more simple to repair, as the defect may be remedied by simply changing a material or the assembly process.
Marketing defects result from a lack of sufficient instructions or warnings about the product’s use. They are flaws in the way the product is marketed to the consumer, such as improper labeling and inadequate safety warnings. Marketing defects are most commonly associated with a company’s failure to warn consumers regarding the proper way to use a product. They are also associated with hazards involving the use of the product, and most commonly results from injuries sustained from a product.
To prove that the air gun was defective, a plaintiff must show that:
- The air gun had an unreasonable defect in it;
- The defect caused the injury while the air gun was being properly used; and
- The gun was not modified in any substantial way after being purchased.
An example of an air gun defect would be if the manufacturer uses poor materials to construct the item, making it more likely to explode when being used. In such cases, the plaintiff may also be able to sue under a product defect legal theory.
Do I Need An Attorney For Air Gun Lawsuits?
If you were unreasonably injured in an air gun accident, you should consult with an experienced and local personal injury attorney.
A local lawyer can provide you with legal advice relevant to your state’s specific laws regarding the matter, and determine who should be on the receiving end of the lawsuit that you file. Finally, an attorney will also be able to represent you in court, as needed.