Decision to “Light Up Some Boom Booms” Precludes Recovery in Negligence

As summer approaches, one’s thoughts naturally turn to summer-y things, like picnics, pools, barbecues, and, maybe, fireworks.  But, as we all know, fireworks (and similar devices) can be dangerous, and their use may result in serious injuries.  Worse, anyone suffering such injuries may be deprived of a legal remedy under a rule recently applied by an upstate appellate court in Wolfe v. Hatch, 95 AD3d 1394 (App. Div. 3d Dept. May 3, 2012).

There, the court held that Branden Wolfe’s participation in a dangerous activity – detonating a makeshift explosive device fashioned from discarded CO2 cartridges and powder from leftover fireworks – precluded his ability to recover damages for the serious personal injuries he sustained (finger, and ultimately hand, amputation) when the device exploded in his hand.

In denying recovery, the court applied the “Barker/Manning” rule.  That rule, which is based on the public policy that one may not profit from one’s own wrongdoing, holds that “where a plaintiff has engaged in unlawful conduct, the courts will not entertain suit if the plaintiff’s conduct constitutes a serious violation of the law and the injuries for which the plaintiff seeks recovery are the direct result of that violation”.  Those elements existed in Wolfe.

It was undisputed that the “injuries were the direct result of an admittedly illegal activity”, namely, either unlawfully dealing with fireworks and dangerous fireworks (per NY Penal Law § 270.00) or criminal possession of a weapon in the third degree (per NY Penal Law § 265.02[2]).

It didn’t matter that Branden “did not construct the explosive device, since an individual’s ‘knowing participation’ in a serious criminal violation may be sufficient to preclude recovery”.

The court also rejected Branden’s argument that he “did not appreciate what he was getting into when he agreed to go to … ‘light up some boom booms'”, since the injury-causing explosion was actually the second explosion to occur after he witnessed the first:

Whatever doubts Branden may have had in this regard — and any corresponding failure to appreciate the power and/or hazardous nature of the device in question — were laid to rest after he personally witnessed the magnitude of the first explosion.  Notably, even after witnessing the impact of the first explosion, Branden elected to handle and ignite the second device.

Nor did it matter that the detonation site was “remote”, since the issue was not whether the “public at large” was actually threatened, but rather merely “whether the potential for such harm existed.”

The court concluded:  “Having viewed the video of the incident, which all too clearly conveys the dangerous nature and power of the devices at issue, we are persuaded that Branden’s decision to participate in the detonation of such devices cannot be written off as ‘a minor dereliction’ [], an ‘inherently innocuous activity’ [] or typical adolescent behavior but, rather, constitutes a sufficiently serious violation of the law as to preclude recovery for the unfortunate injuries sustained”.

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