A few of my neighbors and I are throwing a July Fourth barbeque in our shared backyards. We plan to set off some fireworks in a space we’ve cleared in the middle. Several of us have experience with fireworks and we plan to be careful, but what if something goes wrong? Could an injured guest at our party sue one or more of us? We did include a “warning” in our invitation that notifies guests that we will have a fireworks display.
Your insurers would like you to reconsider the entertainment portion of your party—and to opt for something less, shall we say, volatile. Yes, an injured guest could sue you, although your liability depends on several factors.
This article discusses host liability for fireworks-related injuries in general. For more information about city and county fireworks laws, see Can fireworks that were legally purchased in one county be used in another county where they can't be bought?
When someone is accidentally injured by the careless acts of others, the situation is governed by negligence laws. Some of these laws are contained in statutes and others are found in “common law” doctrines expressed in court decisions. In every state, there is a body of statutory and/or common law negligence law that will be invoked when injured people sue others for accidentally causing their injuries.
Negligence is failure to exercise ordinary care in a given situation. For example, a person who tosses a glass bottle out of a third-story window has acted negligently because ordinary care would require the person not to dispose of the bottle in a way that could injure a pedestrian on the sidewalk below.
Where hosts are negligent, they can be held liable to their guests for injuries caused by that negligence. So, a host who fails to safely maintain the stairs leading to her door may be liable to a guest injured by a fall from the faulty steps.
Under a doctrine known as “negligence per se,” when a person’s conduct violates a law and results in an injury to another, negligence of the law-breaker is presumed and the injured party will have an advantage in a personal injury lawsuit against the law-breaker. For example, nightclub patrons who suffered injuries when the club’s faulty sprinkler system failed during a fire will not have to prove that the club owner was negligent if the club owner was previously cited for violating a city fire ordinance requiring sprinkler maintenance. Instead, the violation operates to create a legal presumption of that negligence, or negligence per se.
In such a case, the judge instructs the jury that, if it finds that a defendant has violated a law and the violation was a substantial factor in causing the injury to the plaintiff, the jury must presume negligence by the defendant. This instruction makes it easier for an injured plaintiff to win a personal injury action.
States have the authority to regulate the sale, possession, and discharge of fireworks within their boundaries. Cities and counties may also have their own ordinances restricting private fireworks displays. You and your neighbors must be certain that your possession and discharge of fireworks is legal, because running afoul of state or local fireworks laws can have profound consequences in a personal injury lawsuit.
If you and your co-hosts violate city or state fireworks laws and someone gets hurt from a stray roman candle or poked in the eye with a sparkler, you may face a negligence lawsuit in which a negligence per se instruction will be given. The likelihood that you (or your insurers) will have to pony up damages is higher than if you hadn’t violated the law.
Violation Of Ordinance Protecting Against Hazard Was Negligence Per Se
A Texas appeals court ruled that San Antonio’s ordinance barring the discharge of fireworks without a permit inside city limits was intended to “afford protection” against the hazard of unregulated fireworks. The defendant blew off fireworks without a permit, injuring a bystander. The court found that the unpermitted fireworks display was per senegligent.
And, if you violate a state or local law regulating fireworks, you will also face criminal prosecution.
Some states even require that people handling fireworks exercise a greater degree of care than ordinary care. (Genzer v. Mission, 666 S.W.2d 116 (1983) (Texas); Klein v. Pyrodyne Corp., 810 P.2d 917 (1991) (Washington).) This is because these states treat fireworks as inherently dangerous. This may mean that extreme caution is required when storing or discharging fireworks.
It also means that the person in possession of the fireworks may be liable even to a person who inadvertently encounters the explosives, such as a trespasser. Typically, a property owner owes a lesser degree of care to one who trespasses upon his or her property and is injured. But, where an inherently dangerous condition exists on the property, even someone entering the property illegally may sue the owner for injuries caused by the dangerous condition (such as carelessly stored fireworks). (Kingsland v. Erie County Agr. Soc., 84 N.E.2d 38 (1949).)
The risk of liability to you and your co-hosts is quite high if one of your guests is injured during your fireworks display. And, it will certainly make your party memorable in ways that none of you would desire. You and your co-hosts should definitely talk to a local lawyer with experience in personal injury and property owner liability law if you are determined to include explosives of any kind in your Independence Day celebration.