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California Homeowner Liable for Injuries Caused by Loaded Firearm

accidental-shooting-accident-attorneys-Los-AngelesAccidental shootings because of improperly stored guns are a major problem in California and the U.S. When another person is visiting a home with guns that are not properly stored, a person who suffers a gun injury because of the negligence of the homeowner in failing to secure the guns may have grounds to recover compensation for his or her resulting losses. While homeowners have a duty of care to take reasonable steps to prevent visitors from being injured, there is a question of whether a third party who has some degree of control over the premises might also be liable for injuries resulting from the third party’s negligence. In Hernandez v. Jensen, Cal. Ct. App. Case No. 294449, the California Court of Appeals considered a case in which an adult daughter failed to make sure her father’s guns were properly stored and secured to determine whether she could be held liable when a home health aide was accidentally shot by a falling, loaded rifle in a closet.[1]

Factual and procedural background

Maria Jensen hired two health care aides to care for her 87-year-old parents in their home in Commerce, California from Gerinet, Inc. Ms. Jensen’s elderly mother had dementia, and her father was no longer able to care for her. When Jensen signed a contract for home health aides with Gerinet, the contract stated that she agreed to provide a safe home for the aides to work in. While the first aide was hired to provide direct health care assistance to her mother, the second aide was hired to provide basic health care assistance, prepare meals for Jensen’s parents, and perform light housekeeping work. Jensen also paid to install surveillance cameras in her parents’ home because of recent break-ins in the area. Jensen used the cameras to monitor the aides’ work and to check in on her parents.

On Feb. 16, 2015, Jensen’s father told the aides that he was short of breath. One aide, Tanya Duran, went to get his oxygen tank from a closet where it was stored. The second aide, Annet Hernandez, was assisting Jensen’s mother with bathing at the time. When Duran reached into the closet to retrieve the oxygen tank, a loaded shotgun fell, causing it to fire and shoot Hernandez in the bathroom.

Duran called 911. Hernandez sustained serious injuries, including a pelvic fracture and a perforated intestine. The police seized the shotgun, a loaded handgun, and a BB gun from the elder Jensens’ closet. Duran called Jensen to report what happened. Instead of asking how Hernandez was doing, Jensen instead cursed at Duran and demanded to know why she had gotten into the closet. The police found that the shooting was accidental. However, the guns had not been properly secured or stored.

Hernandez filed a lawsuit against Jensen, her father, her mother’s estate, her brother, and her other two siblings for negligence and premises liability. Jensen testified that she and her siblings knew that her father kept guns in his home. She said that she did not know that he stored a rifle in his closet. Her sister testified that she knew that her father kept a handgun in the nightstand but did not know about the rifle in the closet. Jensen’s brother testified that he knew the rifle was in the closet but had not told his sisters. Jensen’s father did not have a gun safe in the home to properly store and secure any of the guns.

After the shooting, Gerinet told the Jensens that they would need to remove all guns from the home before any home health work would be provided. While looking through her parents’ home to check for guns, Jensen found two more rifles in the same closet.

The case went to a jury trial. The jury issued a verdict in Hernandez’s favor in the amount of $3.61 million. The jury found that Jensen was 60% at fault, her brother was 20% at fault, and her father was 15% at fault. The economic damages award was reduced by the court from $610,000 to $406,644.44. The judge left the $3 million non-economic damages as awarded. Jensen filed an appeal.

Issue: Whether Jensen owed a duty of care to Hernandez?

On appeal, Jensen argued that she should not have been found liable for the injuries caused to Hernandez because she did not owe her a duty of care and was not responsible for the harm she suffered. Hernandez argued that Jensen did owe Hernandez a duty. When she signed the contract with Gerinet, she agreed that her parents’ home would be safe. By failing to ensure that her father’s guns were removed or stored safely in a locked gun cabinet, Hernandez argued that Jensen did owe her a duty of care, violated it, and was responsible for the injuries she suffered as a result of being shot.

Rule: To prove a negligence claim, a plaintiff must show that the defendant owed a legal duty, breached the duty that was owed, caused the plaintiff’s injuries, and the plaintiff suffered actual harm as a result.

Jensen argued that she could not have owed a legal duty of care to Hernandez under a premises liability negligence claim because she did not own her parents’ home.[2] She argued that the trial court erred by not instructing the jury that ownership, control, or maintenance of the property was a prerequisite to a finding of general liability.


The court began by analyzing the duty element. It began by noting that under Cal. Civ. Code § 1714, every person is responsible for both his or her willful actions as well as any injuries suffered by others because of a lack of ordinary care in managing his or her property.[3] The court also stated that every person has a general duty to exercise reasonable care to protect the safety of others. The court noted that when public policy dictates a reason for departing from the standard outlined in Cal. Civ. Code § 1714, the courts apply the factors outlined in Rowland v. Christian, 69 Cal. 2d. 108 (1968) to determine whether the departure is justified.[4]

One of the Rowland factors is the foreseeability of the harm. The injury that results from the negligent act must be reasonably foreseeable. The court found that was reasonably foreseeable that a home health aide working in a home with loaded, unsecured guns might be accidentally shot.[5] It also found that the harm caused to Hernandez was connected to Jensen’s failure to ensure the guns in her parents’ home were secured.

The court found that Jensen knew that her parents had guns in the home and that people with guns have a duty of care to keep them secured and store them safely. It also found that there was a causal connection between Jensen’s failure to check for guns and ensure that they were properly secured and Hernandez’s injury. Finally, the court found that the instructions provided by the judge to the jury were proper.


The court affirmed the verdict and the findings of the trial court. Hernandez was awarded her costs on appeal.

Talk to a Los Angeles attorney at the Steven M. Sweat Personal Injury Lawyers

If you have suffered injuries while working in someone else’s home because of the negligence of the homeowner or someone else who controlled the property, you may have legal rights to pursue damages. Contact an experienced Los Angeles personal injury attorney at the Steven M. Sweat Personal Injury Lawyers by calling us at 866.966.5240.







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