(dissenting).
The jury in reviewing this tragic accident quite properly found that defendant Erwin Hoffman was negligent in leaving a fully-loaded gun in an unlocked closet located where defendant knew, or should have known, that small children might be playing.
Clearly, in my opinion, where the defendant has been found negligent under such circumstances, his negligence had to be a direct cause of the decedent’s death. What may have confused the jury is the fact that it was defendant’s 15-year-old daughter who actually took the gun out of the closet and left it where the younger children had access to it. But this is precisely the chain of causation which could be expected to flow from a father’s leaving a gun where a teen-age daughter, acting as a babysitter, would be tempted to pull it out for the entertainment of small children, or for playfully threatening them with it, unaware of the fact it was loaded.
It is hard to imagine a more volatile or potentially disastrous situation than that created by this defendant.
If, as seems possible, the jury was of the view that the babysitter’s role was a break in the chain of causation, in my opinion the jury’s understanding of that concept was faulty as a matter of law. By leaving a gun where it could readily be discovered by a 15-year-old member of the household who had no reason to believe it was loaded, the owner could have anticipated the very tragedy which here occurred.
I would hold defendant’s negligence to be a direct cause of Chad’s death, or at the very least grant the trustee a new trial.