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Legal Speak

What Were They Thinking?

Published May 15, 2008 10:30 AM by Tony DeWitt

Have you ever looked at a product and thought, "What on earth were they thinking?" While some gadgets like the Pocket Fisherman are just a little nutty, there are others that make me wonder what the inventor's world view is.

There is a device that can be ordered off the internet that is, in effect, a booby trap designed to protect personal property from theft. The device unleashes a fog of aerosolized pepper spray when it is tripped. See  The manufacturer recommends it to force intruders out of an area quickly and suggests that it is ideal to defend rural and unoccupied premises.

Any health care worker must understand the danger inherent in such a device. Persons with lung disease or asthma who encountered such a device might well be killed. Because the manufacturer suggests that it could be used to protect cars, boats, and other items of personal property, it is possible that small children might very well be exposed to it. And while police officers are trained to use pepper spray to neutralize violence, they would never use such a device on a small child or an elderly person. Yet, a confused nursing home patient might well wander into a situation where they would be exposed to pepper spray device.

Where a person uses lethal force to protect property, it can never be simply to deter a trespasser or burglar. The law requires that the only time lethal force may be used to stop a trespasser is when the trespasser is threatening lethal force against the property owner.

In this regard a case from Iowa is interesting. In 1957 the defendant, Bertha L. Briney, inherited her parents' 80-acre farm in southwest Iowa. Her husband, Edward, attempted to care for the land. He kept no farm machinery thereon. The outbuildings became dilapidated.

For about 10 years, from 1957 to 1967, there occurred a series of trespassing and housebreaking events with loss of some household items, the breaking of windows and ‘messing up of the property in general'. The latest occurred June 8, 1967, prior to the event on July 16, 1967 herein involved. On June 11, 1967 defendants set ‘a shotgun trap' in the north bedroom. After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun's trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs Briney's suggestion it was lowered to hit the legs. He admitted he did so ‘because I was mad and tired of being tormented' but ‘he did not intend to injure anyone'.  The spring gun could not be seen from the outside. No warning of its presence was posted.

Plaintiff lived with his wife and worked regularly as a gasoline station attendant. While hunting in the area he found the uninhabited house covered with high weeds. Prior to July 16, 1967 plaintiff had been to the premises and found several old bottles and fruit jars which they took and added to their collection of antiques. On the day in question they entered the old house by removing a board from a porch window which was without glass. While McDonough was looking around the kitchen area plaintiff went to another part of the house. As he started to open the north bedroom door the shotgun went off striking him in the right leg above the ankle bone. Much of his leg, including part of the tibia, was blown away. Only by McDonough's assistance was plaintiff able to get out of the house and after crawling some distance was put in his vehicle and rushed to a doctor and then to a hospital. He remained in the hospital 40 days.

The defendant believed it should not be liable since the plaintiff was a trespasser.  The court held otherwise saying:

"The value of human life and limb, not only to the individual concerned but also to society, so outweights the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in [Section 79], no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. A possessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present."

Using a device like a pepper fog generator not only creates liability for the person that buys it and uses it on their property, but likely for the manufacturer too since it is designed to inflict injury on trespassers. 

So what does all this have to do with nursing and nursing homes? It is a normal tendency to take the path of the least resistance when dealing with problems that tend to repeat themselves. The best products aimed at making residents safer (like anti-elopement devices and bed alarms) do not do any good if they are bypassed or not properly used.  In an article called Crying Wolf, Dr. Stephen Lawless wrote that alarms in an ICU that continually sounded defeated the purpose they were intended for because they trained nurses to disregard alarms. 

At a recent inspection a nursing home was found to have padlocked the emergency exit (protected by an anti-elopement alarm) because residents were continually setting off the alarm. The idea behind the staff's quick and simple solution of a padlock was that they wouldn't have to go answer the alarm if the residents couldn't open the doors.

Like the spring gun and the pepper spray fogger, however, this simple fix carried with it a risk that anyone should have foreseen: in the event of fire the padlocked exit would be worthless for evacuation purposes.

Fortunately for the home, they were only cited and paid a fine. No one died in a fire, and no lawsuits were filed. The problem was remedied with a more sophisticated anti-elopement alarm. Nursing homes must always be on the lookout for problems that are created by essentially solving one problem by creating another.

* Katko v. Briney 183 N.W.2d 657, 47 A.L.R.3d 624 (Iowa 1971).

posted by Tony DeWitt


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About this Blog

    A.L. "Tony" DeWitt, RRT, CRT, JD, FAARC
    Occupation: Attorney
    Setting: Jefferson City, Mo.
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