## Facts

- William M. Sutor was duck hunting in a slough in Brown County, Minnesota.
- Daniel Dean Rogotzke, age 17, was hunting in the same general area.
- Rogotzke received a .22-caliber rifle from a friend and examined it.
- While handling the rifle, Rogotzke raised it toward the horizon, moved it along the horizon briefly, and began lowering it.
- The rifle discharged while in Rogotzke’s hands; Rogotzke testified he did not know how it fired and suggested his hand may have slipped or he may have jerked the trigger.
- The bullet struck Sutor in the heart from approximately 150–175 yards away, killing him.
- Sutor’s trustee for next of kin filed a wrongful death action against Rogotzke.

## Issues

1. Whether the trial court erred by refusing to instruct the jury on res ipsa loquitur where a firearm discharged unexplainedly while in the defendant’s control.
2. Whether instructing only on ordinary negligence, including that an accident alone is not evidence of negligence, was misleading in a firearm-discharge case.

## Decision

- The Minnesota Supreme Court affirmed the order granting a new trial.
- The court held it was error to deny a res ipsa loquitur instruction under these circumstances.
- The court concluded the “accident alone is not evidence of negligence” charge, without explaining the firearm rule/res ipsa inference, improperly removed the jury’s ability to infer negligence from the discharge itself.
- The trial court did not abuse its discretion in granting a new trial based on erroneous instructions.

## Legal Principles

- Firearms are treated as dangerous instrumentalities; when a gun discharges while in a defendant’s hands and causes injury, liability follows unless the defendant shows reasonable precautions and that the discharge did not result from the defendant’s carelessness.
- Res ipsa loquitur applies when the instrumentality is under the defendant’s control and the event is of a type that ordinarily does not occur absent negligence; the occurrence permits an inference of negligence unless adequately rebutted.
- In firearm-discharge cases, a general instruction that the mere happening of an accident is not evidence of negligence may be misleading if it omits the permissible inference of negligence arising from the unexplained discharge.

## Conclusion

Because the rifle discharged while under the defendant’s control in circumstances supporting an inference of negligence, the jury should have been instructed on res ipsa loquitur and the special evidentiary rule applicable to firearms; the grant of a new trial was therefore affirmed.


Sutor v. Rogotzke, 194 N.W.2d 283 (Minn. 1972)