On a recent trip up to Alaska to teach the NRA Certified Pistol and Rifle courses, I had the opportunity to talk with the class about liability as an NRA instructor. Oftentimes, as instructors, we get into some discussions about liability that we don’t feel all that comfortable talking about and simply say, “you should talk to an attorney about that.” Well, I couldn’t just say, go talk to an attorney about your liability concerns as I am the attorney that I would recommend people go talk with – someone familiar with liability and firearm issues. As with all other posts on this blog, this is not intended to be legal advice, but should be used as general information. Also in full disclosure, I make my living helping businesses with their legal needs and I reference services that I provide here in this article.
Negligence as a firearm instructor.
Just for a point of reference, here are some basics about liability as it applies to firearm instructors. The most likely cause of action someone would have against you is a cause of action for negligence. While the term “negligence” is a term that gets thrown around a lot, there are four parts to negligee: (1) duty, (2) breach, (3) causation, and (4) damages.
- In terms of duty, you have a duty not to hurt other people – I know it’s simplistic, but that’s the point of this article.
- With breach, the plaintiff lawyer is going to focus on what’s oftentimes referred to as “the standard of care.” A standard of care for a firearm instructor is what a firearm instructor of similar training and knowledge would do. This is where the NRA guidelines are so critical for you. You no doubt put on your credentials that you are NRA certified or some other form of certification. The plaintiff’s lawyer, who may be assessing whether to bring a lawsuit against you, is going to look at what the standard of care is for NRA instructors as that’s what you hold yourself out to be. Every single thing that is in your training manual may be used against you.
- As for causation, the lawyer must establish that what you did was the direct cause of the injury the plaintiff suffered.
- Lastly, there must be some form of damages – like the person was injured and/or had expenses because of their injury.
5 things you can do to protect yourself.
Well, with that out of the way, here is my list of 5 things that I would recommend people consider as an NRA instructor.
- Get your business set up to protect you and your family. I’m happy to talk with you about your business needs and set up your business in a way to maximize your protections. When we talk, here’s the first part of the discussion on entity types:
- Sole Proprietorship: This is probably the easiest means of setting up a business. It is also provides the least amount of protection for you, your family and your property. This business entity basically just says that you, as an individual are conducting business all by yourself.
- Corporation. Traditional corporations may have some tax advantages based upon how many employees you have and other growth factors. However, most people steer clear of the traditional corporation because they are taxed twice, first when the money comes into the business and second when that money is paid out to the individual.
- Limited Liability Company. The LLC, as it is commonly referred to, is by far the most popular means of setting up a business. An LLC can, if certain steps are adhered to, provide protection to a firearm instructor who is seeking to separate himself or herself from any negligence that may occur in the course of instructing. The important thing to realize about an LLC is that it is not impenetrable. An instructor who teaches courses at his or her house, uses their own personal firearms, laptop, projector and other items, may have a hard time establishing that they were actually acting in their capacity as a limited liability company. Plaintiff lawyers know how to pierce the corporate veil when an individual is simply using their business to shield what the individual is doing. Basically, have your business acquire your business assets and run your business like a business – not your personal playground.
- Who is your registered agent? Another means to separate your business from yourself is to make sure that your registered agent is someone other than yourself, like an attorney. The registered agent acts as a representative of the company should someone decide to bring a suit against the company. This adds one more level of protection to you as a separated party from your business. It also helps prevent that disastrous situation where you get served with some crazy legal documents, have no clue what they mean, put them in the round filing cabinet and find out a few weeks later that you have a default judgment for not responding to the lawsuit. I’m happy to help you get your registered agent status squared away.
- Follow all NRA rules. Every training counselor and certified instructor knows that live ammunition is not allowed in the classroom. This rule, as well as all other safety rules, serves two purposes. The first purpose is obvious: safety. As an instructor, you have a huge responsibility to ensure that you do everything within your power to make the classroom a safe place for learning. The second purpose is to protect you! Have you considered that all of the safety rules, when correctly followed not only provide for the safety of your students but also protect you from liability? So, follow all of the safety rules.
- Use a small, portable video camera. This $100 option may be worth its weight in gold. Having some video playback of your time at the range will do wonders to deter the potential lawsuit. Having some video footage of your class not only allows you the chance to improve your training, but will also provide great protection should an individual try to bring a lawsuit. All your attorney would have to do is simply show the video of how your student didn’t follow the rules and was negligent, not you. Another consideration here is to get parental/shooter consent before putting up the camera to record your course. If you are following the safety rules and do not have any ammunition in the classroom, you might only need to have your camera up during the range portion of the course.
- NRA endorsed insurance. As training counselors, we oftentimes talk about and recommend to our instructor candidates to pick up the well-priced NRA endorsed insurance for instructors. First of all, NRA endorsed insurance, for the price, is pretty amazing. From my own experience, when I was insurance shopping, I happened to price compare and found other policies to be $500 – $1000/mo for a policy that didn’t touch the NRA endorsed insurance coverage. Here are a few things to consider about instructor liability and insurance coverage:
- If you get insurance coverage, don’t tell a soul. Having an insurance policy may very well be the thing that makes a personal injury lawyer decide to take a case – deep pockets make great lawsuits for hungry lawyers. Let’s face it, people who don’t have any money and have nothing to lose are the people least likely to be sued. I laughed the first time that I heard a defendant was so poor that they were “judgment proof”. Nothing in the rulebook states that you have to disclose that you are covered. If a student came to me before a class asking me if I were insured, I may not want them in my course in the first place…just something to consider.
- If you don’t have insurance, don’t tell a soul. Same logic goes…you don’t want to go around advertising this fact either. This may well be the thing that makes the personal injury come drive by your house and see if he wants to take on the case (I’ll talk about your personal property a little bit later).
- Follow all NRA rules, if you want your coverage to apply. The fact of the matter is that when it comes down to it, an insurance company is in the business of making money. I don’t care how committed to a particular cause a company may appear, at the end of the day, an insurance company’s number one function is to bring in more money than they put out. Insurance companies don’t make money by defending lawsuits. This is where an insurance policy is going to very carefully define what they do and what they do not cover. Also, be aware that insurance companies are sticklers when it comes to your application form. I have seen cases where someone with a great insurance policy gets stuck with a judgment simply because they were untruthful in their application – or so the insurance company said. This is where many attorneys spend their time making their living – in going after insurance companies that suddenly decide to drop an insured because they claim that the insured did something outside the scope of the policy. This is called a bad faith suit. The point of all this is to say that an insurance company is going to do all that they can to make sure that they actually have to cover a lawsuit. The moral of the story is to follow all NRA rules and insurance policy guidelines.
- Get an attorney prepared liability waiver. Liability waivers are great. They make people think twice about going to an attorney in the first place. If they do, and the attorney finds out there was a liability waiver in place, it may completely kill the case before it even gets going. An ounce of prevention really does equal a whole boatload of fix-it later on. Now, having said that, liability waivers are not bomb proof. If you, the instructor, are egregiously negligent, there is no amount of waiver that can protect you. What you are trying to do here is to put up as many protections as you can without breaking the bank. I have simple and easy to use liability waivers designed and ready to go for your firearm instruction. Please contact us about this option.