Gunfire Leaving Your Property? You Might be a Nuisance

Ohio’s Twelfth District Court of Appeals issued an interesting opinion earlier this year that wove together issues of statutory interpretation, expert testimony, property rights and nuisance. The end result? If you have bullets flying off your property, you might be strictly liable for nuisance.

 

Before the court in Batelle Memorial Inst. v. Big Darby Creek was a landowner – Batelle Memorial Institute – that claimed gunfire from an adjacent shooting range was flying onto its property endangering employees and visitors. Batelle sought, and was granted, a preliminary injunction in the trial court. 

 

One interesting issue on appeal was whether a Batelle employee could not only testify as to his first-hand knowledge of the gunfire, but also offer his opinion as to where the gunfire originated from based on bullets found on Batelle’s property. Normally such opinion is reserved for expert testimony – but Batelle was in luck. Batelle is a research facility that, in part, researches national security and “ordnances.”  The employee’s testimony was admitted by the trial court, and upheld on this appeal, as being “helpful in determining the point of origin of that particular bullet.”

 

On the fundamental issue -- whether the trial court properly granted an injunction against the shooting range’s alleged nuisance (bullets flying onto the neighbor’s property) – the Court again ruled in Batelle’s favor. The nuisance finding required that the shooting range failed to exercise “due care” in preventing gunfire from leaving its property. The trial court referred to an Ohio Administrative Code section governing shooting ranges, that states shooting ranges should substantially comply with NRA safety guidelines. Those NRA safety guidelines, in turn, state that all projectiles must be confined to the shooting range property. Thus, the shooting range was “negligent” for the bullets leaving its property, regardless of how or why they left, and regardless of any precautions taken by the shooting range. The court’s incorporation of the NRA manual essentially converted nuisance to a strict liability offense, more along the lines of trespass. 

 

A very apropos case if you happen to own a shooting range: Make sure bullets don’t leave your property, because you can be negligent regardless of how extensive your precautions. Outside the shooting range world, it’s simply an interesting example of how common law and statutes can interplay to create an unexpected result.

Sixth Circuit Finds Water Damage Excluded From "All Risk" Coverage

Insurance Coverage Update

In TMW Enterprises, Inc. v. Federal Insurance Company, the United States Court of Appeals for the Sixth Circuit held that a “construction defects” exclusion in an “all risk” insurance policy barred coverage for water damage caused by faulty construction, even though the policy covered water damage and the exclusion did not apply to “ensuing losses.” 

The insured in TMW Enterprises, Inc. argued that water infiltration, and not faulty construction, was the true culprit for approximately $3.9 Million in damages to a recently constructed condominium and retail complex. Thus, according to the insured, water damage was an “ensuing loss” of defective construction and, therefore, coverage was in order. 

The insurer, however, convinced the Court that, since water damage naturally flows from faulty construction, to allow coverage for water damage proximately caused by faulty construction, would illogically “undo the exclusion [for construction defects].” The Court consoled the insured, noting that there is a purpose for “ensuing loss” provisions: “[t]he clause means simply that what is not excluded is covered.” “[T]he caveat at the end reminds us that if an exclusion does not apply, then coverage exists.” In other words, “[a]n ensuing loss clause does not cover loss caused by the excluded peril, but rather covers loss caused to other property wholly separate from the defective property, such as a fire started by water leaking into an electric socket when such water is from faulty construction work.”