Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, February 5, 1992 TAG: 9202050344
SECTION: VIRGINIA PAGE: B-1 EDITION: NEW RIVER VALLEY
SOURCE: LAURENCE HAMMACK STAFF WRITER
DATELINE: LENGTH: Long
GUN LAWSUIT WIN CREATES NEW TARGETS
Enticed by a thick blanket of snow that covered Craig County, Steven Hill and his wife were out four-wheeling the night of Jan. 8, 1988.When they came across a mobile home in the remote Broad Run section of the county, Hill realized he had been following a long private driveway instead of a Forest Service road.
As he turned his Bronco around to leave, a man stepped out of a trailer and fired a hunting rifle. The bullet ripped through the truck and grazed Hill's head.
Four years later, legal action that followed has finally ended on an unusual note: Not only is convicted felon Frank Kingery to blame for the shooting, but so is his wife - for leaving him home in the trailer with a gun she knew he was prone to use.
Taking advantage of a seldom-used Virginia law, Hill filed a civil claim that accused Betty Kingery of "negligent entrustment" of the gun to her husband.
A judge in Craig County Circuit Court now has upheld a ruling from a jury that heard evidence during a daylong trial and returned a $25,000 verdict against Betty Kingery.
The verdict - thought to be the first of its kind in Virginia since the state Supreme Court reversed a negligent-entrustment lawsuit - may inspire increased use of the claim, according to the Roanoke lawyer who represented Hill.
"Although it's always been a difficult tort to win, this proves that it can be done," said lawyer Jonathan Kurtin.
Under the law, someone is guilty of negligent entrustment when he or she allows the use of a dangerous instrument, knowing that a third party possibly could be harmed. In the past, it typically has been used in cases of automobiles entrusted to children or to people with poor driving records. But now, Kurtin said, it could be expanded to apply not only to guns, but possibly to items such as chain saws or lawn mowers.
Betty Kingery testified during the trial that she was not at home at the time of the shooting, maintaining that she should not be held responsible for her husband's actions.
Because he was a convicted felon, Kingery was not allowed to own the 7mm Mauser rifle that was kept in the trailer. Betty Kingery claimed ownership of the gun, but said she kept it only as a family gift and never fired the weapon.
But Kurtin, representing Hill, argued that by keeping the gun around her husband - who had been convicted earlier of shooting at trespassers on his land - Betty Kingery not only implicitly allowed her husband to use the gun, but she also encouraged it.
"They were using the fiction of it being her rifle to get around the fact that he could not own or possess a gun," Kurtin said.
Robert Rider, a Roanoke attorney who represented Betty Kingery, said he believes the jury went too far in assessing blame. Frank Kingery's prior conviction, which Kurtin argued should have forewarned his wife of his dangerousness, happened nearly 10 years ago, Rider said.
Rider said he plans to appeal the verdict.
"It's really stretching it to say that you're going to hold her accountable for her knowledge of something that happened with this guy and a gun 10 years ago," Rider said.
Since then, however, there had been another incident - also involving an attack on unknowing trespassers - that Kurtin argued should have put Betty Kingery on notice.
Instead of trying to keep the gun out of her husband's hands, Betty Kingery made statements "that she believed that Frank Kingery acted properly in his use of a firearm when he shot at those who came upon his lands," Kurtin claimed in court documents.
The negligent entrustment claim against Betty Kingery was the last in a series of criminal and civil proceedings stemming from the shooting. Frank Kingery was convicted of unlawful wounding and sentenced to 12 months in jail, and he later was ordered to pay Hill $50,000 in punitive damages in a separate civil suit.
Given the prior legal action, Rider said, he was surprised that the jury also would blame Betty Kingery.
"It just shows the unpredictability of a jury when you get a sympathetic case," he said. "There were tears at the trial and things of that nature. I guess [the jurors] felt they weren't going to stand for it, so they took it out on his wife instead of him."
But Kurtin said the Hills were so traumatized by the incident that they have yet to recover.
Steven Hill still does not talk about the incident unless he must, and testifying even for the third time about the case in the most recent lawsuit was difficult for him, Kurtin said.
Hill didn't return a reporter's telephone calls, and the Kingerys could not be reached for comment.
Although the bullet fragments that grazed Hill's head did not cause life-threatening injuries, the couple did not know that at the time, as Hill, bleeding heavily, tried to find his way out of the secluded countryside and drive for help.
At the time, Kurtin said, "They thought he was going to die."
NOTE: Shorter version ran in Metro edition.