Claims and Defenses:
Scott Walker is suing Tanya Brewster for negligence in storing a firearm and for negligence in supervising her minor child, T.J. Negligence is a well-established cause of action in Utah.
Scott claims that T.J.'s acquisition and use of the pistol were the result of Tanya's negligent actions. Scott has incurred, and will continue to incur, substantial medical expenses due to Jesse's injuries. Scott claims that his enjoyment of the companionship and services of his son has been significantly limited by Jesse's permanent paralysis.
Tanya claims it is not her fault that Jesse was injured. She believes she acted as a responsible parent at all times. She claims it was Scott's negligence in supervising his children that allowed the accident to happen. She also argues negligence in storing a firearm should not be recognized as a cause of action by this court. Even if the court does recognize this cause of action, Tanya argues that the facts of this case do not support a finding of negligence in storing a firearm on her part.

Relief requested:
Scott is asking the court to make a finding of negligence in storing a firearm and negligence in supervision of a minor child against Tanya Brewster. Scott is requesting the following damage awards: $42,000 for actual medical expenses (including costs for emergency and intensive care services, surgical procedures, inpatient hospital services, prescription medications, specialized equipment, physician office visits, and other services); $975,000 for future medical expenses (representing $15,000 per year of estimated expenses for 65 years of remaining estimated life expectancy); and $500,000 for the loss of Jesse's companionship and services.
Tanya is asking the court to find that there was not negligence on her part and to deny any damages sought by Scott. In the event that the court finds any liability on Tanya's part, Tanya is asking the court to find that Scott is also liable for negligent acts on his part and to reduce his damages in accordance with the extent of his liability.

Additional Stipulations:
The parties have stipulated to the authenticity of the following:
∙ Bill from Canyon City Hospital to Scott Walker containing current medical expenses for Jesse Walker along with an estimate of future medical expenses
∙ Official transcript of recorded 911 emergency telephone call placed by T.J. Walker on December 3, 1994
∙ Gun safety information sheet entitled "Safe Storage of Handguns" used in course taken by Carl Newhouse. The information sheet was written by Dr. Sandy Turner
∙ Letter from Terry Bottner to Scott Walker, dated April 6, 1994, which was returned to Bottner with a handwritten reply by Walker on the bottom of the page
∙ Beretta 9-millimeter semiautomatic pistol registered to Carl Newhouse

Witnesses for the Plaintiff:
Scott Walker Plaintiff
T.J. Walker Child of Plaintiff and Defendant
Dr. Sandy Turner Professor of Emergency Medicine and Public Health, author of "Safe Storage of Handguns"

Witnesses for the Defendant:
Tanya Brewster Defendant
Carl Newhouse Friend of Defendant, owner of the Beretta
Terry Bottner Juvenile Diversion Counselor

 APPLICABLE LAW
Utah Case Law:
Mitchell v. Pearson Enterprises, 697 P.2d 240 (Utah 1985)
A person has a duty to use reasonable care to avoid injuring other people or property. "Negligence" simply means the failure to use reasonable care. Reasonable care does not require extraordinary caution or exceptional skill. Reasonable care is what an ordinary, prudent person uses in similar situations.
The amount of care that is considered "reasonable" depends on the situation. The trier of fact must decide what a prudent person with similar knowledge would do in a similar situation. Negligence may arise in acting or in failing to act.
A party whose injuries or damages are caused by another party's negligent conduct may recover compensation from the negligent party for those injuries or damages.

Kilpack v. Wignall, 604 P.2d 452 (Utah 1979)
A person must exercise greater care for the protection of young children than for adults. To satisfy this higher standard of care, a person is expected to foresee and guard against the ordinary, impulsive behavior of children.

Case Law from Other States:
Ransom v. City of Garden City, 743 P.2d 70 (Idaho 1987)
In cases involving firearms, a plaintiff need not show that the defendant physically placed a firearm in the hands of a child. It is enough if the facts show that the defendant, in exercising control over a firearm, acted in such a manner that it became likely a child would come into possession of it and use it in such a manner as to create an unreasonable risk of harm to others.

Butcher v. Cordova, 728 P.2d 388 (Colorado App. 1986)
The affirmative act of giving permission to a child to use an instrument "potent for mischief" imposes a duty upon the person giving permission to recognize that, in so doing, he creates an unreasonable risk of harm.

Existing Utah Statues:
Section 78-27-38, Utah Code Annotated (1986)
(1) The fault of a person seeking recovery shall not alone bar recovery by that person
(2) A person seeking recovery may recover from any defendant...whose fault...exceeds the fault of the person seeking recovery.

Section 78-27-40, Utah Code Annotated (1986)
(1) Subject to Section 78-27-38, the maximum amount for which defendant may be liable to any person seeking recovery is that percentage or proportion of the damages equivalent to the percentage or proportion of fault attributed to that defendant.

[In simple language, this means a plaintiff whose negligence is less than 50% of the total negligence causing the plaintiff's injuries may still recover compensation, but the amount will be reduced by the percentage of the plaintiff's negligence. If the plaintiff's negligence is equal to or greater than the negligence of the defendant, then the plaintiff may recover nothing.

Proposed Utah Statute:

Dr. Sandy Turner has asked his/her representative in the Utah Legislature to introduce the following bill concerning the negligent storage of a firearm:

(a) A person commits the offense of criminal storage of a firearm if he or she keeps, or allows to be kept for any length of time, any firearm within his or her dwelling, and a child of sixteen years of age or younger obtains access to the firearm and thereby causes death or great bodily injury to himself, herself, or any other person.
(b) A person will not be found guilty under this section if he or she:
(1) Stores the firearm using a trigger-lock or other locking device on the firearm that prevents the firearm from functioning, or
(2) Stores the firearm in a secure, locked container, or
(3) Takes other means reasonably designed to insure that a child of sixteen years of age or younger will not come into possession of the firearm.
(c) The fact that a person who allegedly violated this section attended a firearm safety training course prior to the purchase of the firearm that is obtained by a child of sixteen years of age or younger in violation of this section shall be considered a mitigating factor by a district attorney when he or she is deciding whether to prosecute an alleged violation.

This is not yet a Utah law; it has merely been proposed. Similar laws do exist in other states. Since this is not an official law, no criminal charges can be made in this case.

AFFIDAVIT OF SCOTT WALKER
My name is Scott Walker. I am 32 years old, and my address is 2633 Grant Avenue, Canyon City, Utah. I am a construction foreman for Bronston Construction, Inc., and have worked there for the past seven years.
I met my first wife, Tanya Brewster, in high school during our sophomore year. We dated seriously for over two years. When Tanya became pregnant during our senior year, we decided to get married right after graduation. If Tanya had not been pregnant, we probably would not have gotten married.
I started working construction right after graduation, and T.J. was born five months later, on November 3, 1980. For the first two years of our marriage, Tanya stayed at home and took care of T.J. Then Tanya got a job as a receptionist at a temporary employment agency.
It was about this time that our marriage started to go bad. After Tanya started working, she kept telling me I had to start helping with T.J. and with the housework. Tanya and I started fighting often about the house, money, and T.J.
After fighting for about two years, Tanya and I decided to get a divorce. The only condition Tanya insisted on was that she get custody of T.J. That was fine with me. I did not feel ready to raise a kid, so agreed to let Tanya have custody. We agreed that I would have visitation rights every other weekend and six weeks during the summer. I was also required to pay child support. The judge approved our agreement, and we were divorced on May 17, 1984.
After the divorce, things really fell apart. I was fired from my job for being late too many times. My parents yelled at me constantly for "abandoning my child." I knew that my main problem was immaturity. I decided to join the Army. I think it was one of the best decisions I ever made. Because of my construction background, I worked with the Army Corps of Engineers. We were involved in building things like bridges, dams, and roads. I never went overseas or saw any combat in the army.
When I left the army I moved back to Canyon City. I felt like I could start my life all over. I got a job at a construction company in only a few weeks. In five months I was promoted to foreman because I had more experience than the rest of the guys on the crew. Around that same time I met Claudia. She was a fabulous blues singer with a local band. I met her when the band was playing at a club called MI Blue. We started dating and fell in love. After dating for six months, we got married. It was the happiest day of my life. I finally felt that the pieces of my life fit together.
About one year later, on July 3, 1988, Claudia gave birth to our son, Jesse. Then on May 28, 1991, we had a daughter, Kym. From the moment Jesse was born, I felt a strong responsibility to be a good father. I wanted to get closer to T.J. too, but I did not know how to change the patterns Tanya, T.J., and I had established. I had essentially given up control of T.J. to Tanya since she was the person actually raising him/her.
T.J. did not want to be around me. During the two years I was in the army, I only saw T.J. once. When I came back home, I worked so much overtime that I only saw T.J. about once a month. It's like T.J. forgot that I was her/his father.
The only thing T.J. seemed to like about me was the fact that I had been in the army. I tried to tell T.J. that what I did in the army was build things, but all s/he wanted to hear about was guns and fighting. When we talked about guns, it seemed more like T.J. was proud of me. I told T.J. again and again about my infantry training and the rifle range as well as battle stories that the Vietnam vets used to tell us. I even bought a few books about guns which we read together. I remember T.J. doing a book report about the history of army artillery that s/he got an A on. The funny thing is that I was never interested in guns, even when I was in the army. Our gun hobby was just something I thought I could use to get T.J. to like me.
Two years ago, our gun hobby got me in trouble with Tanya. I bought T.J. a BB gun for her/his twelfth birthday. T.J. had asked me for one and I knew it would make her/him very happy. The box said the BB gun was for ages 12 and up. Before I agreed to give T.J. the gun, we set the ground rules. The gun was to be kept at my house and was not to be used unless I was there. The week before T.J.'s birthday, I got a call from Tanya. She was furious. She said that she would not allow T.J. to own a gun. I explained that it was only a BB gun, but she didn't care. I tried to argue that what I did with my child in my own home was my business, but she would have none of that. She started telling me how kids as young as T.J. were getting arrested with handguns in her neighborhood. According to Tanya, guns, drugs, and gangs were all tied up together, and she did not want to encourage the use of guns in any way. When I realized how serious she was about this, I returned the BB gun.
When T.J. did not get the gun, s/he was very mad. T.J. told me that I was afraid of her/his mother and said, "If you won't buy me a gun, I'll get one on my own." I wasn't worried about this. T.J. was just an 11-year-old kid blowing off steam.
One day in the fall of 1994, I saw T.J. with a gun magazine. T.J. asked, "Hey Dad, can you buy guns through the mail?" I said, "I don't think so. But you shouldn't be thinking about that anyway."
I will never forget December 3, 1994, the day the shooting occurred. T.J. was over at my house for the weekend. I was in the basement with T.J., Jesse, and Kym. Claudia was out with friends and had left me in charge of the kids. T.J. and Jesse were playing checkers, and we were all watching a football game on T.V.
At halftime I remembered that I had borrowed a drill from my neighbor, Louis. I told T.J. to watch the kids while I brought it back. There were some guys at Louis's house watching the game. I started talking to them, and Louis asked me if I wanted a beer. I decided to hang around and have one beer. I wasn't worried about the kids. T.J. was 13 years old and should have been responsible enough to look after younger children. S/he had never watched the kids alone before, but I trusted her/him. I only planned to be gone for 15 or 20 minutes.
After I finished the beer, there were only five minutes left in the game with the score tied. I decided to stay until the end. Around that time, there was a loud banging on the door. Louis got up to answer it, and T.J. ran in. T.J. was covered in blood and crying. S/he told me that Jesse "got shot." I tried to ask T.J. what happened, but s/he ran out of Louis's house and down the street to my house. We all followed T.J. into my basement. Jesse was lying on the floor, and there was blood everywhere. Louis used to be a paramedic, so he took over.
I asked T.J. what had happened. T.J. said that s/he was showing Jesse a gun, and Jesse tried to grab it. When T.J. tried to take it back from Jesse, the gun went off, hitting Jesse.
An ambulance and police car arrived. Before I let the police talk to T.J., I made sure to tell her/him that I wasn't mad at her/him. I don't remember exactly what I said; I just wanted T.J. to know that I didn't blame her/him. The paramedics took Jesse to the hospital. I rode in the ambulance with them.
At the hospital the doctor said Jesse had been shot in the lower chest. The bullet hit his spinal cored and exited out his back. The doctor said Jesse would live, but he would be permanently paralyzed from the waist down.
I called Tanya from the hospital to tell her about the shooting. I was very upset at the time, and I told her that I blamed the whole thing on her. She said, "Oh my, I wish I had kept that gun out of my house."
Later that night, I asked T.J. to explain what had happened more carefully. S/he said that the gun belonged to Tanya's boyfriend Carl. T.J. found the gun in Carl's toolbox and brought it to my house for the weekend because s/he "wanted to." T.J. showed it to Jesse and Jesse asked if he could play with it. T.J. said no, but then Jesse tried to grab it out of T.J.'s hands. While the two of them were wrestling for the gun, it accidentally went off.
I don't blame T.J. for what happened; I blame Tanya. She went nuts when I tried to give T.J. a BB gun, but then she let some guy bring a real gun into her house. Maybe she thought Carl was more responsible than me, but this sure proves her wrong. She has always told me that she is worried about T.J. getting involved with gangs and guns, especially after T.J. was arrested last year.
She said the arrest was my fault because I never got involved with T.J. She even got that counselor, Bottner, to start bothering me. Bottner called me twice, and I told her/him quite clearly not to tell me how to raise my child. I thought I was done with it, but then I got a rude letter from Bottner in April of 1994. I sent the letter right back to Bottner with a note on the bottom that finally got her/him to stop bothering me.
I know I have missed some weekends and a birthday or two, but I was busy, and every time I tried to get involved I felt that Tanya put hurdles in my way. I also didn't pay child support some months when I was really strapped for cash. I knew Tanya was making much more money than I was anyway. I really love T.J., and I have always wanted what is best for her/him. Since the shooting accident, I have realized that I should have been more involved in what was going on in T.J.'s life and how Tanya was raising her/him.
My son is paralyzed because Tanya allowed a gun to be kept unsafely in her house. She should have to pay for Jesse's injuries and for my loss.

AFFIDAVIT OF T.J. WALKER
My name is T.J. Walker. I am 13 years old, and I live with my mother, Tanya Brewster, at 4952 Oaktree Lane, Canyon City, Utah. I am an eighth grader at James E. Carter Junior High School. My father, Scott Walker, left my mom and me when I was three. I guess my parents just did not get along, and my father wanted a new life.
I don't remember seeing much of my dad while I was growing up. He was in the army for a couple of years. When he came back, he would take me out for pizza and maybe a movie every once in a while. I was really raised by my mom.
It wasn't until my dad got married again and started a new family that he started showing any interest in me. I started seeing my dad a little more often on weekends, but we always had to spend time with his new wife and his new kids. I never felt like I really belonged with his new family.
Every once in a while, my dad and I went out alone. I liked that better than being with his whole family. A few times we went to the shooting range near his house and watched people shooting their guns. One day there was this old marine guy at the range shooting a machine gun. My dad said he had learned how to use one in the army. I told him to ask the guy if he could shoot it. He didn't really seem to want to, but he asked anyway. It was cool seeing my dad just blast away.
When I was in the sixth grade, my dad promised me a BB gun for my birthday. He made me promise that I would only use it when he was around. He wrote down a bunch of rules that I would have to follow. When my mom found out about it and got mad, my dad gave in. He didn't try to stand up for me or tell her about the rules. He just agreed with my mom. I guess it saved him the trouble of having to buy me the BB gun.
My dad never wanted to spend time with me when I was growing up. He just left my mom and me to survive on our own. My mom is okay as mothers go. She is the one who raised me. She works really hard to be successful and to provide for us. I guess it's cool how she put herself through college and started her own business and everything. I appreciate that she's mostly done it for me, although all her work means that I'm usually alone.
Between my dad leaving me and my mom working all the time, sometimes I feel as if I have grown up alone. They say I'm supposed to be responsible for myself because they can't be around to do everything for me. But then they try to put restrictions on me including who I can hang out with and how late I am allowed to stay out. That is messed up. It's also messed up the way that my mom's boyfriend, Carl, moved into our house. No one asked me if I minded him moving in. I don't really mind him living here -- my mom deserves a life -- but it would have been nice to be asked. Between my mom and dad, though, my mom is by far the better parent. I just wish she was around more.
Even though my mom isn't around much, sometimes she gets all worked up over things that happen to me. My mom started getting worried about me when I got into a fight at school two years ago. It wasn't my fault. This fifth grader, Chris Thompson, would not get out of my way in the hallway. Chris needed to learn some respect. When the principal called my mom, she blamed it on my friends. She thinks they are a "bad influence." My friends are all right. They are no different from any of the other kids at school. I can depend on them to back me up no matter what.
Last year there was a fight, and we all got hauled off to the police station. It was a fight for pride. Someone had insulted one of my friends, and we had to show them that they couldn't "dis" us. I knew guns were going to be involved. Someone always has a gun. People respect you when you carry a gun. You're nothing in their eyes if you don't carry. But I wasn't the one carrying the gun.
When I talked to the youth officer at the police station, he said he would probably just send me home because I wasn't carrying a weapon and had never been arrested before. Then my mom came in, and he talked to her. He said he was going to drop the case, but she started asking him questions. He talked about what could happen if they didn't drop the charges and mentioned stuff like counseling and diversion. When my mom heard about this diversion thing, her eyes lit up. She said she though it was the best thing for me. The officer said that I really didn't need it, but my mom insisted that he sign me up for the program.
So we ended up in diversion. I go every Saturday, and my mom and I talk to Terry Bottner once a month. Terry is okay. S/he always wants to know about drugs and guns in the school, so I say what s/he wants to hear. Sometimes I make stuff up to keep Terry happy, but most of the time what I say is true. There really is some scary stuff going on at school. For instance, I told them that some of my classmates sneak guns into the school. My mom, of course, gets real worried about all this. I wouldn't tell her what's really going on if she and I were talking on our own. But with Terry there, it's easier.
The one thing that bugs me about Terry, though, is that s/he really seems to hate my dad. S/he always talks about how my dad doesn't do anything for me and how it's his fault that I get into trouble. Terry doesn't know my dad or anything about him. So I don't see how s/he can have this opinion of him.
I found out that Carl had a gun because he and my mom had a huge fight over the gun when he moved in. Mom knew I was home. Later on that day, she was reading something about safe storage of handguns. I asked her about it because I wanted to know more about Carl's gun. But she just got really angry and wouldn't talk about it.
A couple of weeks later I was down in the basement with Carl in his workshop. He asked me to get him a screwdriver from his toolbox. That's when I found his gun. It was a Beretta 9-millimeter, and it was tough-looking. It was the kind of gun that makes people listen to you. I know Carl said it was off limits, but I couldn't help borrowing it. One day I took it to school, and my friends were real impressed. They've all got cheap guns. Nobody had a gun as tough as Carl's. They all called me "Beretta" that day.
Since no one caught me when I took the gun to school, I decided to take it again one weekend when I was visiting my dad. I was going out with my friends that night. I wanted to take the gun with me because, I thought, you never know when you're going to need one.
That day, we were all sitting around watching football at my dad's house. Jesse wanted to play checkers. I wanted to watch football and talk to my dad, but I played checkers with Jesse just to shut him up. Sometime that afternoon, my dad said he was going out for a while and that I was in charge.
Since my dad was gone, I decided to show Jesse the gun. I knew it would impress him. When he saw the gun, Jesse said he wanted to play with it. I told him no because it was my gun. That's when he tried to grab it out of my hands. We wrestled with it for a few seconds. Then the gun went off accidentally, and Jesse was hit.
After that everything seemed like it was in slow motion. There was a big red spot on Jesse's shirt that kept getting bigger. I think he passed out the second he got shot. I called 911 for an ambulance. The operator asked me if anyone else was there. I said my father was down the street. The operator said to stay on the phone and keep talking until the ambulance arrived. The operator kept asking me question, and I tried to answer them. I was so confused and upset that I don't even know what I said. The ambulance took so long that I thought Jesse was going to die before it got there. I dropped the phone and ran down the street to get my dad. He and his friends ran back to the house with me and then the ambulance finally showed up.
Jesse could have died, and I felt terrible. When the cops asked my father if they could take me to the other room to talk to me, he said he wanted to speak to me first. My dad was really angry and upset. He asked me where I got the gun. I told him I got it at Mom's house and that it was Carl's. He said, "You're old enough to know better. Nobody can watch you 24 hours a day." I was so upset already that after he said this, I started crying. I guess my dad felt bad because then he put his hand on my shoulder and said, "It's all right, T.J. You didn't mean it. It's just as much my fault as it is yours." That made me feel better.
I've thought about what happened a whole lot since then. I feel bad that Jesse is paralyzed. I never meant for him to get hurt. But it was not really my fault. Jesse should not have tried to grab the gun, especially when I told him he could not have it.
I would have gotten a gun eventually even if Carl didn't have one. I was planning to buy one from a guy at school. The fact that Carl had one in the basement just saved me money.


AFFIDAVIT OF DR. SANDY TURNER
My name is Dr. Sandy Turner. I am a professor of emergency medicine and public health at Utah University. I received a B.S. in biochemistry from Brookstone College. I received an M.D. from Utah University Medical School and did a residency in emergency medicine at Utah General Hospital. After my residency, I was a staff emergency room physician at Utah General Hospital for four years. I then went on to receive a Ph.D. in public health from Utah University. I have been a professor of emergency medicine and public health for the past six years.
Most of my research and teaching has been in the area of domestic violence. During the past two years I have conducted studies of the relationship between gun ownership and shooting deaths in the home.
I am also a special consultant to the Utah Senate Committee on Health and Public Safety regarding the passage of Utah Criminal Code Section 76-: Criminal Storage of a Firearm. I have also prepared materials for gun safety courses in Utah. These materials include an information sheet entitled "Safe Storage of Handguns."
I have testified about the causes and results of gun violence at 24 trials in the last two years. At 18 of those trials I testified on behalf of the plaintiffs. I am being paid my regular rate of $200.00 per hour for research and testimony at this trial.
I met with Scott Walker and his attorneys a few days ago. I also spent 15 minutes talking on the phone with T.J. Walker. These individuals described to me all of the important facts of this case. I have also examined the medical records of Jesse Walker. I have never met with Tanya Brewster or Carl Newhouse, but I have gathered all the information I need to know.
Firearms kill more teenagers than cancer, heart disease, AIDs, and all other "biological" diseases combined. In addition to deliberate shootings, the United States has witnessed an increase in the number of accidental shootings occurring among family members. With all the media publicity focused on violence resulting from gang or drug wars, not enough attention is focused on the accidental shootings which occur every day. Every day in America, a child is accidentally killed by a firearm, and 10 others are injured.
The most effective way to control these accidental shootings is not to have a gun in the home. If parents are going to continue to keep guns in their home, they must make sure that they are safely stored. The Utah statute will impose criminal liability for unsafe storage of a firearm that is used by a child. This law is designed to get parents to store their guns safely.
A number of other states have passed similar parental responsibility statutes. Although no formal studies have been done on the effectiveness of these laws, I think they will be successful in reducing the number of accidental shootings in the home. For example, in 1990, a Connecticut law similar to the proposed Utah statute became effective, and the state widely publicized the new parental liability. During the next year, there were no accidental shootings involving children in Connecticut. This, I believe, was a direct result of the statute.
Many gun-owning parents claim they do not need to be told how to store their guns because they believe that their children will not take the gun without the parents' permission. Parents expect their children to obey their instructions not to take or use the gun. These parents are out of touch with the facts. The most recent study published in the New England Journal of Medicine showed that keeping a gun in the house nearly triples the chance that someone will be killed in unintentional shootings or shot in their own homes or in the homes of relatives or friends. Parents should assume that all children will become curious or will disobey their parents' instructions and will examine or play with the gun. An accidental shooting is the likely result.
Parents should also be aware of whether their children may be prone to violent behavior. When a child has been involved in violent behavior, the parents should be on red alert. Violent behaviors include any fights, gang involvement, incidents involving weapons of any kind, or any criminal activity. If a child has been involved in these types of incidents, the parents are on notice that their child has violent tendencies. If this is true, the parents should take precautions to reduce the possibility of violent behavior by that child in the future.
However, even if there are not specific incidents of violent behavior by a child, I think all parents who have guns in the house should know that their children are more than likely to take and to examine a gun. Guns have become an integral part of our culture and, in fact, have become a rite of passage for many of our children. This epidemic of teenagers and younger children with guns is happening everywhere in our country, including cities, suburbs, and rural areas. Research has shown that teenagers know how violent other teenagers are and adapt their own behavior to protect themselves. Teenagers know that they can become targets of spontaneous violence over real or imagined slights, such as looking at someone the wrong way or bumping into someone and scuffing his sneakers.
One out of 25 high school students in the United States carried a gun in 1990. Teenagers obtain guns for a number of reasons. Often they do so for protection or revenge. But they also carry guns for status and glamour. They carry guns to school, to parties, on subways, anywhere they go. Young people often say, "Everyone else has one, so I need to have one too."
Based on all of the facts of this case, I believe that Tanya Brewster acted irresponsibly. Ms. Brewster should have been much more careful in her supervision of T.J. Also, she should not have allowed a gun to be stored unsafely in her home.
At least $1 billion is spent annually for hospital costs associated with the treatment of individuals with firearm injuries. Unfortunately, Jesse Walker is now one of these individuals. My review of Jesse's medical records indicates that he will need a lifetime of intensive medical treatment, including physical therapy, medication, specialized equipment, and outpatient nursing care. I estimate that Jesse's future medical expenses will amount to approximately $10,000 per year. Projected over Jesse's estimated remaining life span of 65 years, this amounts to approximately $650,000.

AFFIDAVIT OF TANYA BREWSTER
My name is Tanya Brewster and I am 32 years old. I live at 4952 Oaktree Lane, Canyon City, Utah. I own and manage a temporary employment agency and have done so for the last three years.
I bought my house after Scott Walker and I were divorced. This used to be a safe neighborhood, but over the past several years, there has been more crime and violence, mostly from street gangs. I have never been robbed, but almost everyone I know has.
I met Scott when we were both sophomores in high school, and we fell in love. When I found out I was pregnant during my senior year, I was very upset. I did not know what to do, but my parents said we should get married and Scott agreed. I did not think I could raise a child on my own, even though I did end up raising T.J. all by myself.
Our marriage started off pretty well. We were young and in love. But after T.J. was born, Scott seemed to lose interest. He was hardly ever around the house, took very little interest in helping with T.J., and didn't seem to want to be with me. He was always out with his friends, hanging out in bars or playing cards. When T.J. turned two, I started working part-time at a temporary employment agency, and things got worse between Scott and me. I decided to get a job because I needed to feel that I was doing something meaningful, plus we needed the money. Scott was spending the money he earned as fast as he was bringing it in.
Our marriage had gotten so bad that when Scott asked me for a divorce, I agreed. The only condition that I put on the divorce was that I wanted full custody of T.J. Scott never seemed interested in raising T.J., and I did not want some judge giving Scott partial custody. Scott readily agreed to give me sole custody.
The divorce agreement required Scott to pay $250 per month in child support. He promised me that he would pay the child support and visit T.J. regularly. But then he went off and joined the army. He only saw T.J. once while he was in the army, and that was for about three hours one Christmas.
When he returned from the army, he only saw T.J. about every four or five weeks. He even missed a few of T.J.'s birthdays and one or two Christmases. Scott also started missing child support payments. While he was in the army, the payments came every month. But when he got out, he began missing more and more payments. I did not pursue these payments in court because by that time my business was becoming more successful, and I did not have the time or energy to go to court to chase down Scott.
As I stated, I had begun working for a temporary employment agency. At first I was a receptionist, but I was promoted several times until I became the office manager. I saw how the business was run from the inside, and I thought I could run a better agency, so I decided to put myself through college at night while I was working during the day. After I graduated in December 1990, I quit my job and opened up my own temporary employment agency. I worked many long, hard hours to get my business off the ground and it is now quite successful. The work takes a lot of my time, most if it in fact, but I love it. One drawback is that in the past few years I have not had as much time with T.J. as I would like.
T.J. is a great kid and works pretty hard in school. S/he has had a few problems in the past, but we have dealt with them. T.J. got into trouble at school twice during the sixth grade, once for fighting and once for vandalizing school property. I have never really blamed T.J. It is the kids s/he hands out with who cause the trouble. They are a bad influence.
The only other problem I have ever had with T.J. was in January of 1994 when s/he was involved in a fight between two groups of kids in our neighborhood. The police broke it up and took everyone to the station house. There were weapons involved, including one or two handguns and some switchblades.
As soon as I found out about the arrest, I went down to the police station and spoke to the youth officer. He told me about the juvenile justice system and what could happen if T.J. were arrested again. He said many first-time offenders enter a diversion program which includes counseling about violence, drugs, and guns. I immediately told him that I wanted T.J. in this program. He explained that he had planned to just release T.J. because he did not feel that diversion was necessary. But I told him that we would do the program voluntarily. I didn't want T.J. to think that s/he could get away with just a slap on the wrist, and I thought the counseling would help.
The diversion program has worked very well. T.J. and I go for counseling sessions once a month with Terry Bottner who is a very nice person and seems very concerned about both T.J. and me. In the sessions, we talk about the crime situation in our neighborhood and how to avoid it. T.J. says a lot of things in the sessions that s/he would never tell me if just the two of us were talking. For instance, s/he told us that some students sneak guns into school. From these sessions, I've leaned how hard it is for a teenager to stay away from all the drugs and guns that they see or hear about every day.
I think one of our main problems is Scott's attitude towards T.J. When Terry Bottner asked Scott to participate in the counseling, Scott refused to come. He treated the arrest and diversion program as if they were nothing.
I think T.J. became interested in guns because of Scott. I didn't know about it when we were married, but Scott is into guns. That's probably why he joined the Army. When T.J. was younger, s/he would come home from visits with Scott talking about different guns that Scott had shot in the army.
The last straw came when Scott bought T.J. a BB gun. Scott acted like it was a toy, but I knew that someone could get seriously hurt with one of those things. I put my foot down and said that under no circumstances would I allow T.J. to own a gun of any kind. Scott agreed to return the BB gun, but who knows what he said to T.J. about the whole thing.
When T.J. gets these kinds of messages form Scott, it is very hard for me to keep her/him on the straight and narrow. For example, T.J. and I once watched a television documentary about handgun violence. T.J. missed the point of it completely. S/he said s/he though it would be cool to have a gun in the house. Another time, I found a gun magazine in T.J.'s room. It was open to a page where T.J. had circled several gun prices and descriptions. I took the magazine and threw it away. All of this is Scott's influence.
I have tried to do my best for T.J. I try to provide a good home and to be there whenever T.J. needs me. I know I spend a lot of time at work, but I am trying to make a better life for both myself and T.J. It is not easy being a single mother, especially when Scott has never done his part.
After my divorce, I did not date anyone for a long time. I was extremely busy and did not want to get involved in a relationship. About two years ago, though, I met Carl Newhouse when I was buying a new car. He gave me a great deal on a car. We dated for a year and a half, and then he moved into my house with T.J. and me last August. We are not even considering marriage at this point. Since my last marriage was such a disaster, I am not anxious to try again.
When Carl moved in, he told me he owned a handgun that he wanted to keep in the house. This led to a huge argument. My immediate reaction was to tell him no. I said that I did not like guns, that I did not want one in the house, and that keeping a gun could only lead to trouble. Carl insisted that we needed a gun for protection. He said our neighborhood was so dangerous that having a gun was a necessity. He also told me that he had taken a gun safety course and would be happy to show me the materials used in the course. Carl finally wore me down, and I agreed he could keep the gun.
I looked over the materials, including an information sheet entitled "Safe Storage of Handguns." I remember T.J. interrupting me while I was doing this. I tried to hide what I was reading, but s/he saw it. It don't remember the explanation I gave T.J. for it, but I don't think s/he figured out that we had a gun in the house.
After the fight, I never thought or asked about the gun again, and Carl never mentioned it. In the sessions with Terry Bottner, we talked about how a lot of people in our neighborhood had guns. But somehow I never remembered Carl's gun. In fact I never really thought about it until I got the phone call from Scott.
It was Saturday, and T.J. was at Scott's house for a rare visit. Around six o'clock that afternoon, I received a phone call form Scott telling me that T.J. was at the police station being questioned about a shooting accident involving Jesse, one of Scott's kids. I was shocked. Scott was screaming and tried to blame the whole incident on me. I knew it wasn't my fault, but I remember wishing that I had never let Carl bring that gun into my house. I might have even said something like that to Scott.
I rushed to the police station. The police told me that T.J. had found, and used, Carl's gun. I became angry with both T.J. and Carl. Carl should have kept the gun in a secure place, and T.J. should have known better.
I really feel bad for Scott and his family. Jesse is a nice kid, and it is horrible that he is paralyzed, but I don't thing that I should be made the scapegoat. It is not my fault that Jesse was shot. The shooting happened at Scott's house and, from what I hear, he was down the street drinking beer. This is typical of Scott. He was the same way when we were married.


AFFIDAVIT OF CARL NEWHOUSE
My name is Carl Newhouse. I am a 36-year-old car salesman. I met Tanya Brewster about two years ago when she needed to buy a car. We started dating about a week after we first met, and we began living together in Tanya's house in August of 1994. T.J. never seemed to mind having me move into the house.
T.J. is a great kid--smart, funny, and outgoing. But T.J. is a teenager and can easily be influenced by friends and by TV or movie images. T.J. can also be influenced by adult authority figures like her/his father. I think T.J. had a tough childhood since Scott was never really around. Scott was always too busy with his own interests and is now too busy with his second wife and his other kids. In the two years or so that I have known Tanya and T.J., Scott has missed a number of child support payments and has avoided seeing T.J., often for weeks or even months at a time. I think T.J. sometimes does bad things just to try and get Scott's attention.
On the other hand, I know T.J. loves Scott very much and would like to have a closer relationship with him. T.J. has told me so. About six to eight months before the shooting incident, it appeared to me that Scott was trying a little harder to get close to T.J. and to make T.J. feel like a part of Scott's new family.
Tanya is a great mother. T.J. is really the most important person in her life. She has been working so hard all these years to make a better life for T.J. and herself. Tanya is not around the house much because she is so busy with work. It takes a lot of dedication to make a business successful. I often get the feeling that Tanya does not really understand what today's teenagers are faced with, but she would do anything for T.J.
When I moved into Tanya's house, I wanted to bring my gun with me. I bought a gun a number of years ago because my apartment had been broken into while I was sleeping. One of the burglars held a gun to my head while the other one took all my valuables. I was never going to let that happen again, so I bought a gun, a Beretta 9-millimeter semiautomatic pistol. I keep it loaded so that I'm always ready in case of trouble. I have a license for the gun. I had to take a gun safety course in order to receive the license.
When I told Tanya about the gun, she got very upset and said she did not want it in the house because it was too dangerous. She told me T.J. had been in trouble in the past and that she was afraid of her/him being around guns. I insisted that we needed a gun to protect ourselves since we were living in a dangerous neighborhood. It seems like everybody on the streets has a gun, even the kids, who will shoot you if you look at them the wrong way. I told Tanya that I knew how to handle and store the gun safely since I had taken the gun safety course. She made me give her the materials from the course, including an information sheet called "Safe Storage of Handguns," so she could read them for herself.
Tanya finally agreed to let me keep the gun. I guess she trusted me. She never asked me where I kept the gun, and I never told her. We never talked about it again until the shooting.
My hobby is working on cars and fixing them up, so I had set up a workshop in the basement, near the garage. I put the gun in a toolbox I kept in the basement. The toolbox has a lock on it and I usually keep it locked. Sometimes when I am working on a long-term project, I forget to lock it. I told T.J. that all my stuff was off limits and not to mess with any of it. There were a lot of delicate parts and tools that I did not want broken. Since T.J. was not allowed to go through my belongings, I felt that the toolbox was a safe place to put my gun.
A few weeks after I moved in, T.J. and I were working in my workshop. I needed a screwdriver from my toolbox. Forgetting that I had put the gun in the toolbox, I asked T.J. to get the screwdriver for me. T.J. found the gun and asked me about it. I told her/him to put the gun back and to never touch it again. I did not tell Tanya about this because I knew she would be really angry. Besides, I thought that T.J. would listen to my instructions. I remember the week before the accident because I was rebuilding a transmission that whole week. I am fairly sure the toolbox was locked that week.
I could not believe it when Tanya told me that T.J. had found my gun and that Jesse had been accidentally shot. I specifically told T.J. not to take or use the gun. There is no way that Tanya is responsible for the shooting. She did what she could. She also does everything she can to support T.J. so that s/he does not feel a need to get involved with all the crime and violence that is going on in our neighborhood. If I did something wrong, Tanya shouldn't have to pay for it.

AFFIDAVIT OF TERRY BOTTNER
My name is Terry Bottner. I am a counselor for the Juvenile Pre-trial Diversion Program in Canyon City, Utah. I have worked there for four years. Before that I was a high school teacher in the city school system for four years. I received a B.A. in physical education from Canyon City College and a master's degree in social work from Utah University. I am currently working on my Ph.D. in social work at Utah University and have completed preliminary research for my thesis on gang violence among teens.
After finishing college I was hired by Ford High School as a physical and health teacher. I also coached the junior varsity basketball and track teams. I enjoyed the work at first but I started becoming very concerned about the culture of drugs and violence prevalent among the students. I can still remember the day I called out a boy's name in gym class and heard another student answer, "He got shot yesterday." In my health classes we had frank discussions about subjects like sex, drugs, guns, and violence. The attitudes and behavior of the kids scared me. I frequently saw kids stashing guns and drugs in their gym lockers.
After two years of teaching and coaching, I decided that I should become more actively involved in keeping kids out of trouble. I decided I should try to help the kids who really were at risk. I quit my coaching positions and started an "after hours" club. I asked a group of kids I knew were really "in danger" if they wanted to hang out in the gym after school and play basketball. Everyday we played some basketball, worked on homework, and then finished off with a "rap session." No subject was off-limits in the rap session. We also had weekly speakers from the community who were positive role models for the kids.
I ran the "after hours" club for two years. During the second year, Dr. Phyllis Gannon came to speak to the kids about the juvenile justice system. Dr. Gannon had just started the Pre-trial Diversion Program in Canyon City. She explained that diversion was for first-time juvenile offenders who did not seem to pose a threat to the community. These young offenders were enrolled in a program where they participated in group and family counseling. Similar programs had enjoyed a great success in other areas, and Dr. Gannon was confident that diversion would succeed here as well. That summer she offered me a position as a counselor with the Pre-trial Diversion Program, and I accepted. I have been working for the diversion program for four years.
Over the past four years, I have been involved in all aspects of the diversion process, including screening, group counseling, and individual and family counseling. In screening, I examined offenders' records and spoke to their teachers, parents, and lawyers to determine their eligibility for the program. In group counseling, I led groups of about fifteen kids in weekly discussions about things like alternatives to crime, problems in school, and life planning. For the past two years, I have been involved in individual and family counseling. I meet with program participants individually every week and also meet with participants and their families for two hours every month. I also call the parents once a week to see how things are going.
During the counseling sessions and phone calls, we discuss any problems among the family members and try to work out solutions. Through this work I have come to realize that the most important factor in determining whether children will become or remain involved in violent crime is the level of parental support. I think our program works so well because we involve the parents.
I met Tanya and T.J. in February of 1994. When I read T.J.'s file, I was surprised that the case had even come to us. T.J. was a decent student who attended school regularly and had a very supportive mother. It was also T.J.'s first offense. Usually these cases are dropped. The person in charge of screening told me that T.J.'s mother wanted her child to be in the program even if s/he hadn't actually done anything. I called up Tanya and she told me the same thing. She wanted to be in the diversion program because she didn't want to "take any chances" where T.J. was concerned.
Counseling sessions with T.J. and Tanya have always gone extremely well. Tanya is a very involved parent. Even though she has raised T.J. on her own, she has provided the type of home atmosphere that few children experience in this city. There is some lack of communication between T.J. and Tanya, but that is hardly unusual between parents and teenagers. That's where I come in.
In our session, T.J. actually tells Tanya about the weapons and drugs s/he sees in school and the fact that s/he has actually witnessed a great deal of violence. Although she seems shocked, this gives Tanya a more realistic view of what T.J. goes through every day. We have discussed guns quite a few times. In fact, I think that they probably have come up at least once at every session. Tanya has always made it very clear that she does not want T.J. to be involved with, or even to touch, guns.
In my opinion, young people carry guns mostly to get attention and respect. Tanya has always given T.J. the attention that s/he needs and shown respect for her/his independence. She has done all that any parent can do to prevent her child from picking up a gun.
I have not had much contact with Scott Walker. Our program tries to involved the whole family in counseling, even if the parents are divorced or separated. But if a noncustodial parent doesn't want to participate, there is nothing we can do. When I first called Mr. Walker to talk about T.J., he asked if I was a police officer. I explained that T.J.'s case had been diverted from the juvenile justice system, and I described our program to him. He said he did not want to participate in T.J.'s family counseling sessions. I think his exact words were, "If T.J.'s mother is going, what do you need me for?" He then hung up.
After two sessions with T.J. and Tanya, I realized that T.J.'s mother and father were giving him conflicting signals about guns, violence, and our counseling sessions. I got the impression that Mr. Walker was downplaying the importance of our counseling and not taking T.J.'s arrest seriously enough. I don't know exactly what he said to T.J., but I'm sure that it was part of the problem. I called Mr. Walker again to try to explain this problem. Again he did not want to talk. He said, "Nobody is going to tell me what to say to my child. I don't let T.J.'s mother do that and I won't let you." Again he hung up.
I decided to give Mr. Walker one last chance. On April 6, 1994, I wrote him a polite letter asking if he would reconsider his participation in the counseling. His handwritten reply clearly showed that he did not care about T.J.'s problems.
I think Mr. Walker's refusal to participate in the program has hurt T.J.'s progress. T.J. receives support from her/his mother for trying to stay out of trouble. But T.J.'s father refuses to get involved. Criminal behavior is often a way to get the attention of one's parents. T.J. obviously did not get the attention of Scott Walker the first time s/he was arrested. Maybe T.J. thought that bringing a gun right into her/his father's house would be enough to get his attention.
Scott Walker's behavior towards T.J. is typical of divorced men. They think that the second the ink is dry on their divorce papers they no longer have any responsibility towards their children. My father was like that, too. In my opinion, divorce, and its effect on children, is one of society's biggest problems, and it is absentee fathers who are to blame. I have no respect for men like Scott Walker. I have never met Carl Newhouse. Until the accident, I was not aware that he was living with Tanya and T.J. If I had known, I would have asked him to participate in or counseling sessions. I certainly didn't know anything about the gun that Carl owned. If I had, I would have told Tanya that she should make Carl get rid of it. A gun is too much of a temptation for a young person, too great a status symbol and attention-getter to resist, even under lock and key, even in a safe. I would have insisted that there be no guns in the house.
I have found Tanya Brewster to be more involved with, and more concerned about, her child than at least 90 percent of the parents I come into contact with. In my opinion, based on my professional experience, there is nothing more she could have done to keep T.J. from getting into this type of trouble.