Today, July 4th, is a federal holiday – also known (here, anyway) as Independence Day – commemorating the adoption of the Declaration of Independence on July 4, 1776 by the Continental Congress declaring that the 13 original American colonies considered themselves a new nation (the United States of America) and no longer part of the British Empire. We celebrate the holiday with barbecues, parades, friends/family, alcohol, and, of course, fireworks. Lots and lots of fireworks.
It turns out that there are many ways to get hurt in connection with July 4th. These range from fights (e.g., Crowningshield v. Proctor, 31 AD3d 1001 (App. Div. 3d Dept. 2006)) to fireworks-related injuries (which I’ll focus on here).
A recent New York Times article reports that “[i]n the month around July 4th, an average of 230 people end up in emergency rooms each day with fireworks-related injuries”, according to the Consumer Product Safety Commission.
The most obvious type of fireworks-related injury arises from being burned or otherwise maimed by the heat/explosive blast generated by the device itself. Just yesterday, July 3, 2016, 18 year-old visiting college student Connor Golden apparently had his foot blown off after stepping on a homemade firecracker in Central Park. Another example is New York Giants defensive end Jason Pierre-Paul’s fireworks-related injury to his right hand.
What about liability? Can anyone be held responsible? Below are some examples of how courts have addressed fireworks-related personal injury claims.
In one case, Vasquez v. RVA Garage, Inc., 238 A.D.2d 407, 407, 656 N.Y.S.2d 334, 334 (1997), the plaintiff was injured on July 4, 1994, when unknown persons congregating on property owned by the defendant exploded a “cherry bomb”. Plaintiff sued the property owner. The lower court held against plaintiff, but the appellate court reversed. In addition to finding that “the owner failed to establish that it relinquished control over the premises,” it explained:
[T]he evidence submitted by the plaintiff in opposition [to defendant’s motion for summary judgment] established that there are issues of fact as to whether the owner breached its duty of care in failing to take steps to prevent the detonation of fireworks on its property. Campagna had ample opportunity to learn of the dangerous and illegal practice in his 15 years of operating a business on the site which, until 1991, also included operating the gasoline station. Although Campagna claimed the repair shop was closed on weekends and holidays, there is no evidence in the record that the same was true for the gasoline station. As president of the owner corporation, he could not close his eyes to what he learned while conducting business on the premises in his capacity as president of VRC. The plaintiff submitted evidence of a history of persons exploding fireworks on the site every July 4th for over 20 years, from which a jury could conclude that a repetition of that conduct on July 4, 1994, was a significant foreseeable possibility.
In another, more recent case, Plumitallo v. Cty. of Nassau, 109 A.D.3d 652, 653, 970 N.Y.S.2d 810, 811 (App. Div. 2d Dept. Aug. 28, 2013), the infant plaintiff alleged that she was burned when a “ball of fire” struck her thighs while she was sitting on her father’s lap during a fireworks display. Plaintiff sought to hold the Village of Bayville liable on the theory that it was “negligent by failing to enforce the permit requirements of Penal Law § 405.00.” The court rejected the argument and held that the case was properly dismissed, where the Village demonstrated that no one applied for a fireworks display permit for the date of the plaintiff’s injury.
Not all fireworks-related injuries arise directly from those devices incendiary properties.
For example, Pellegrino v. Trapasso, 114 A.D.3d 917, 980 N.Y.S.2d 813 (App. Div. 2d Dept. 2014) arose from the following facts:
On July 5, 2003, the plaintiff, who was 15 years old at the time, was attending a party at the defendant’s house, where fireworks were being set off. The plaintiff allegedly stepped backward to distance himself from the fireworks, and tripped over Belgian blocks that formed a border around one of the trees on the defendant’s front lawn, becoming impaled on a wooden stake that was within the border.
The Appellate Division held that the Supreme Court properly denied the defendant’s motion for summary judgment, holding that there were “triable issues of fact as to whether the defendant owed a duty to the plaintiff … to prevent harm to him from third parties who were setting off fireworks while on his property.”
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In sum, the Fourth of July is a fun holiday – that should be celebrated responsibly. In particular, if you’re going to be near fireworks, be safe.