M&S Wins $1.3MM Settlement For Potato Gun Injury

October 17, 2018

Houston and nationwide personal injury lawyers at Morrow & Sheppard LLP won a $1,305,000.00 settlement for a person injured by a potato gun, also known as a “spud gun.”  The settlement is believed to be one of the largest, if not the largest, reported settlement in a case of this type.  Our lawyers recovered every penny of the available insurance.

What Is A Potato Gun?

A potato gun also referred to as a “spud gun” or “potato cannon,” is a pipe-based cannon.  Potato cannons use either gas combustion or pneumatic air pressure to launch projectiles, usually potatoes, at high speed.  Occasionally dry ice is used as a propellant.

Combustion launchers utilize (1) a fuel system, often hairspray; (2) a combustion chamber; (3) an ignition source, often a lantern switch or barbecue lighter; and (4) a barrel, often a piece of polyvinyl chloride or “PVC” pipe.

Here is a video of a potato gun in action:

While potato guns may seem like innocent fun, they are very dangerous, causing scores of injuries and even deaths.

Potato Guns Are Very Dangerous

Potato guns are capable of firing projectiles 500 yards, or even farther.

A 2013 Colorado study found that acetylene propellant potato guns can achieve a muzzle velocity of 138.1 m/s, approximately 310 miles per hour.  Other propellants also achieved gun-level velocity, as follows:

Potato Gun Chart

Credit:  Courtney, E.D.S. and M.W., Studying the Internal Ballistics of a Combustion Driven Potato Cannon using High-speed Video (2013).

The study concluded, “Careless handling of a potato cannon could cause serious injury or death.  Potatoes launched with acetylene were also destructive to wooden boards and plastic objects initially employed as backstops before transitioning to 6mm thick steel plate.”

Another study found that a potato launched from a potato cannon has a 50 percent chance of cracking your skull.

In short, potato guns are very dangerous.

Common Potato Gun Injuries

Potato guns have injured many people across the country.

Potato guns can cause a variety of ocular (eye) and other bodily injuries.

In 2010, two youngsters in Kankakee County, Illinois were celebrating Christmas.  One of them had been given a potato gun as a Christmas present.  The potato gun misfired and struck one of the youths in the left eye, splitting his forehead.

In 2011, a Kentucky man hurt his arm and shoulder in a potato gun incident.

In 2007, a 21-year-old Iowa man died when a potato gun exploded.

Other Potato Gun Incidents

Numerous lawsuits have been filed arising from potato gun injuries.

In Hines v. Railserve, a Georgia court held a jury was entitled to find a company liable for negligent hiring and supervision in a work injury case in which the plaintiff’s co-workers constructed a potato gun on company premises.  The potato gun misfired on the work premises, causing a brain injury, and the worker filed a lawsuit.  757 S.E.2d 280 (Ga. App.  2014).  The court held that, under the Kansas law that applied, “an employer has the duty not to expose his employees to perils which the employer may guard against by the exercise of reasonable care . . . the are certainly genuine issues of material fact as to whether both [supervisors] breached that duty by failing to direct off-the-clock employees, including [plaintiff], to stop drinking beer, to stop attempting to detonate a dangerous explosive device, and to leave the premises.”

In 2018, a 13-year-old California student in Palo Alto was conducting a school study on potato gun distances.  When the pneumatic valve failed and the gun did not fire, the students investigated.  The gun went off and caused the student to sustain significant permanent eye injuries.  A lawsuit was filed against the school for inadequate supervision.

Our Texas Personal Injury Lawsuit

In our case, landowners held a crawfish boil at their house following a baseball game.  Adults present were drinking alcohol.  Young people were allowed to use two potato guns.  There was a dispute about whether adults were supervising.  At one point, children began firing the potato guns in the general direction of other children.  This situation was supposed to be a “game” that entailed catching the potatoes in baseball mitts.

In any event, following an alleged misfire, our client was struck in the eye by a potato, suffering severe injuries.

The insurance companies initially denied responsibility.  We were forced to file suit, alleging negligence, negligence per se, and gross negligence, including:

  1. Providing children with improvised guns
  2. Failure to provide adequate supervision
  3. Defective manufacture, warning, and/or design of the gun
  4. Failure to provide adequate warnings and instructions
  5. Failure to obtain required licenses and/or permissions for the gun
  6. Failure to secure the gun
  7. Failure to maintain the gun
  8. Failure to safely operate the gun
  9. Giving children a dangerous instrumentality
  10. Exercising express or implied direction in an unreasonable and/or unsafe way
  11. Our attorneys researched the applicable law, secured all available documents and investigatory materials, and took sworn testimony from the people responsible
  12. Ultimately, the insurance company for the responsible parties agreed to pay full policy limits

Are Potato Guns Legal?

In our case, one of the first questions we asked was “are potato guns even legal?”  The answer is uncertain.

Certain jurisdictions and municipalities allow potato guns.  Others don’t.

In California, it has been argued that state laws prohibited potato guns, either the laws regulating firearms, or laws making it a crime for anyone who “manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any . . .  zip gun” where a zip gun is defined as a “weapon or device” which “is made or altered to expel a projectile by the force of an explosion or other forms of combustion.”  Ca. Penal Code Sec. 12020.

New York law prohibits any person under the age of sixteen from possessing any air-gun, spring-gun or other instrument or weapon in which the propelling force is a spring or air.  NY Penal Code Sec. 265.05.

In 2002, East Grand Rapids Michigan launched a campaign to deter potato gun usage.  Offenders were issued misdemeanor citations.   “SPUDS AWAY! Michigan Police Crack Down on Use of Potato Launchers”, 1 No. 17 ABAJEREP 11 (ABA Journal, May 3, 2002).

ATF Classification of Potato Guns

The federal Bureau of Alcohol, Tobacco, and Firearms, or “ATF,” indicates a person may seek classification for his or her potato gun:

“Q: How do I obtain a classification from ATF for my “potato gun?”

Any person desiring a classification of a “potato gun,” “spud gun” or similar device must submit a written request (not e-mail) to the Director and include a complete and accurate description of the device, the name and address of the manufacturer or importer, the purpose for which it is intended, and such photographs, diagrams, or drawings as may be necessary to make a classification. A final determination may require a physical examination of the device. Such requests for classification should be submitted to Bureau of ATF, Firearms Technology Branch.”

Texas Law Regarding Firearms And “Zip Guns”

In Texas, Chapter 46 of the Texas Penal Code governs “Offenses Against Public Health, Safety, and Morals,” specifically “Weapons.”

These Texas laws define “firearm” as “any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.”  A “zip gun” is “a device or combination of devices that were not originally a firearm and is adapted to expel a projectile through a smooth-bore or rifled-bore barrel by using the energy generated by an explosion or burning substance.”

Texas law states that a person “commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells” a zip gun.  Tex. Pen. Code Sec. 46.05(a)(5).

Texas law also provides that, subject to certain exceptions including supervised hunting, a person commits an offense if a person younger than 17 readily gains access to a firearm and the person (1) failed to secure the firearm; or (2) left the firearm in a place to which the person knew or should have known the child would gain access.  Tex. Pen. Code Sec. 46.13.

Other Texas laws permit local governments to regulate firearms.  For example, a municipality may regulate the discharge of firearms or other weapons, except at gun ranges.  Texas Loc. Gov’t Code Sec. 43.002(d), 229.001(b)(2), 229.002-004.; Tex. Ag. Code Sec. 251.005(c)(2).

Can Parents Be Held Liable For Injuries Caused By Their Children?

One issue that may come up in a potato gun case is, may parents be held responsible when their child shoots someone with a potato gun?  In other words, do parents have to pay for personal injuries caused by their children?  As we have written in another personal injury lawsuit article, the answer may depend on the circumstances.

Houston Personal Injury Lawyers Handle Cases Nationwide

Our work injury lawyers and personal injury lawyers handle cases throughout the United States, with an emphasis in Texas and Louisiana.

In most cases, if somebody does something wrong and injures someone else, they are responsible for the damage.  If you are wondering whether to bring a personal injury or wrongful death lawsuit, please contact us for a free consultation to discuss what rights you may have.

Get a Free Case Review by Calling Morrow & Sheppard Now.

We’re available 24/7.

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