Hamline Law Review
Symposium on Firearms Legislation and Litigation
vol. 6, no. 2. 1983: 477.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

Product Defect Cases in Minnesota

Recently, individuals who have been killed or injured by firearms, and their families, have called for the civil accountability of those who use firearms and those who manufacture them. As is true of virtually every product, the availability of firearms carries with it a cost which has, up to this point, been born by society at large. If the victim of a shooting is not compensated by the user or manufacturer of the firearm, all of society bears the cost, either through increased insurance premiums or higher taxes which are needed to support social services. Firearm victims and their attorneys are now claiming that the time has arrived to shift the burden to those who profit from firearms and those who use them.[1] Lawsuits against firearm manufacturers and distributors have been filed in several states already. This article will examine the possibility of monetary recovery by a person injured by a firearm in Minnesota when the case is tried under strict liability theory¾specifically, liability arising from a design defect.

In design defect cases, the plaintiff may allege either a specific or general defect. A general defect is present in a product which is so dangerous that by its very nature it is defective. In the case of firearms, a general defect might be alleged because the firearm propels a bullet with deadly force and is so obviously dangerous that it is at least arguably defective. A specific defect is present in a product which is so inadequate in one or more particular features that it is defective. A plaintiff alleging a specific defect might contend that because the firearm was designed without a safety, or because the safety was designed in such a way as to be ineffective, the firearm is defective.

Recovery might also be available in cases where the product was designed properly, but became defective as the result of a mistake in the manufacturing process. Since such actions involving firearms are not substantially different from those involving pop [Page 478] bottles, hot water heaters, or any other defectively designed product, that aspect of strict liability in tort will not be addressed?[2]

I. STRICT LIABILITY IN TORT¾DESIGN DEFECT

The genesis of strict liability in tort can be traced to the demise of contract-based restrictions in negligence actions.[3] The first formal judicial enunciation of the theory came in Greenman v. Yuba Power Products, Inc.[4] In that case, a worker was injured when a lathe ejected an object which struck him in the head. The court ruled that because it was too great a burden for Greenman to prove that the manufacturer was negligent, he needed only to prove that the lathe was defective and that it caused his injury.

Two years later the Second Restatement of Torts was published. The logic of Greenman was reflected in § 402A, which allows recovery from the manufacturer if the ultimate consumer or user of the product was injured as the result of the product being in a defective condition that was unreasonably dangerous.[5] According to a comment in the Restatement, a product is defective when it is in "a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.[6] For the defective product to be unreasonably dangerous, it must be "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the commu- [Page 479] nity as to its characteristics."[7] The key difference is that the second definition considers general community knowledge, while the first considers only the knowledge of the actual consumer. One factor limiting whether a product will be considered defective, therefore, seems to be whether the consumer is subjectively aware of the condition which allegedly makes the product defective. Unreasonable danger, on the other hand, seems to entail the application of a more objective standard of consumer expectation. In summary, a defective condition unreasonably dangerous is a condition not contemplated by the actual consumer, which makes the product dangerous beyond the expectations of the ordinary consumer.

Using this interpretation, the successful application of strict liability to a firearm case would seem to depend on the kind of defect alleged. If the plaintiff showed that his or her injury was caused as the result of a safety mechanism which was designed so poorly that it did not function, there would be little problem. The plaintiff, presuming that he or she had not previously discovered the malfunction, would have no subjective knowledge of the defect, and the presence of the malfunctioning safety would most probably make the firearm more dangerous than would be contemplated by the ordinary consumer of firearms. If the plaintiff claimed that the defect was the absence of a safety, the suit would fail if the plaintiff knew about the absence of the safety, or if the jury determined that the absence of the safety did not make the firearm more dangerous than would be contemplated by the ordinary consumer of firearms. To support an allegation that a firearm is defective because it propels bullets with deadly force, the plaintiff would have to prove that he or she had no knowledge of that fact and that the ordinary consumer of firearms did not anticipate this danger.

The burden on the plaintiff would be even greater if the court was guided by other comments to the Restatement and determined that the plaintiff's knowledge of the condition could be proved objectively. There is no duty to warn a consumer of a danger that is generally known and recognized, because the consumer is presumed to already have the knowledge.[8] The application of this presump- [Page 480] tion would allow the court to impute knowledge of the product's condition to the consumer for the purpose of determining whether the product is defective.

Strict liability in tort as defined by § 402A was adopted by the Minnesota Supreme Court in McCormack v. Hankscraft Co.[9] The case involved an action against the manufacturer of a vaporizer which overturned, scalding a three-year-old child. The defendant argued that recovery was barred because the plaintiff failed to give notice of breach of warranty within the time required by statute. Noting that such an outcome would offend its sense of justice, the court posited that it could rule that such notice was not necessary because the plaintiff was not a "buyer" within the meaning of the statute. Rather than adopting such a "transparent device to reach a desired result,"[10] the court chose to follow the lead of Greenman and the Restatement:

[E]nlarging a manufacturer's liability to those injured by its products more adequately meets public-policy demands to protect consumers from the inevitable risks of bodily harm created by mass production and complex marketing conditions. In a case such as this, subjecting a manufacturer to liability without proof of negligence or privity of contract, as the rule intends, imposes the cost of injury resulting from a defective product upon the maker, who can both most effectively reduce or eliminate the hazard to life and health, and absorb and pass on such costs, instead of upon the consumer, who possesses neither the skills nor the means necessary to protect himself adequately from either the risk of injury or its disastrous consequences.

Strict liability in tort was not pleaded in McCormack; thus, the case was decided under a negligence theory. Thereafter, however, the principles of strict liability in tort, as embodied in § 402A of the Second Restatement of Torts, would be applied where appropriate in Minnesota.[12]

The first actual application of this strict liability theory in Minnesota occurred in Kerr v. Corning Glassworks.[13] In Kerr the plaintiff was injured by a baking dish that exploded. The court placed [Page 481] upon the plaintiff a four-point burden of proof: First, plaintiff was injured; second, the injury was caused by defendant's product; third, the injury was caused by the fact that the product was defective; and fourth, the defect was present when the product was sold by the defendant.[14] The plaintiffs case failed in Kerr because of her inability to establish that the defect existed when the product left the defendant's control.[15]

It is the third of these requirements, that the product was defective, which would be the most difficult for plaintiffs to establish in suits against firearm manufacturers. To prevail on the claim, plaintiffs would be forced to prove that the firearm was in a "defective condition unreasonably dangerous" as that term is defined in the comments to § 402A.[16] In adopting the principles underlying the strict liability theory of the Restatement in McCormack,[17] it would appear that the Minnesota Supreme Court also embraced the Restatement definition of defect. Several factors support this conclusion.

In Magnuson v. Rupp Manufacturing, Inc. the court quoted those comments to the Restatement which define "defective condition unreasonably dangerous" and declared them to be applicable.[18] Stating that the consumer's awareness of a condition prohibits that condition from being a defect, the court stated that "perhaps the product is not regarded as defective if it is no different from what the consumer expected it to be."[12] In Farr v. Armstrong Rubber Co. the court reiterated its reliance on the definition found in the comments to the Restatement.[20]

Since the Minnesota Supreme Court has already held that a [Page 482] manufacturer is under no duty to warn of "dangers that are obvious to everyone,"[21] it is likely to apply an objective test to impute knowledge to the plaintiff of a firearm's obvious danger. The plaintiff already knows of such dangers and needs no warning. Likewise, it would seem that a plaintiff asserting strict liability in tort would be unable to deny knowledge of a condition which was obvious. Therefore, the success of a Minnesota plaintiff will depend on the type of defect alleged. If the plaintiff establishes that the injury resulted from an inadequately designed component or design defect, recovery may be allowed. But if a component such as a safety is absent, or if the plaintiff complains about the deadly potential of the firearm, recovery is far less likely.

The question of how the Minnesota Supreme Court defines "defective condition unreasonably dangerous" has been complicated by its opinion in Farr v. Armstrong Rubber Co.[22] That case involved injuries sustained by the plaintiff when his pickup veered off a highway as the result of the blowout of an allegedly defective tire. The Minnesota Supreme Court accepted the trial court's jury instruction that "a product is defective if it fails to perform reasonably, adequately and safely, the normal, anticipated or specified use to which the manufacturer intends that it be put."[23]

Michael K. Steenson, in a recent article,[24] argues that the Farr definition of defect is different from the Restatement definition in that Farr focuses on an objective standard of performance similar to the concept of defect under the Uniform Commercial Code.[25] The Uniform Commercial Code section dealing with implied warranty of merchantability requires a product to be "merchantable": it must [Page 483] be "fit for the ordinary purposes for which such goods are used."[26] Such a definition, Professor Steenson suggests, frees the plaintiff from the burden of consumer expectation.[27] It seems unlikely, however, that the Minnesota Supreme Court intended to stray from the Restatement definition. In Farr, the court said that the jury charge issued by the lower court incorporated the substance of § 402A as adopted in McCormack v. Hankscraft.[28] The Farr court also specifically cited to the comments to the Restatement which define "defective condition unreasonably dangerous."[29] While the court did note that the concept of defectiveness is also found in the Uniform Commercial Code's definition of "merchantability," it did so only to note the similarity of the definition to the definition in the comments to the Restatement.[30] In addition, the Minnesota cases which have cited Farr indicate that the Farr definition is nothing more than a paraphrase of the definition contained in the Restatement.[31]

Even if one assumes that the Farr definition is the same as the Uniform Commercial Code's definition of non-merchantability, it is difficult to see how the plaintiff in a firearm-related case is benefited. White and Summers contend that the definitions are virtually identical:

A concluding question of burning interest, at least to many plaintiff's lawyers, is how the merchantability standard differs from the comparable strict tort standard "defective condition unreasonably dangerous. . . ." The most obvious difference between the two standards is that the strict tort standard is considerably narrower in scope. It does not purport to reach all defective goods, but only those that are not only defective but also "unreasonably dangerous," that is those that have the capacity to cause personal injury or property damage as opposed to those which cause only economic loss. Apart from that difference, we would [Page 484] find the terms nearly synonymous. . . .[32]

Under the Uniform Commercial Code merchantability definition, as under the Restatement definition, the probability of a plaintiff winning a suit against a firearms manufacturer or distributor would depend on the defect alleged. An inadequately designed component, like a malfunctioning safety, might well make the firearm unfit for the purposes for which it was intended. If the alleged defect was the deadly nature of the firearm or the absence of a safety, success would depend on what the jury determined was the ordinary purpose for which a firearm is intended. Again, consumer expectation is a key factor. Certainly one of the purposes of handguns is to propel a bullet at sufficiently high velocity so as to ward off a homicidal attacker. Since there may be occasions when this must be done quickly, the absence of a safety¾which would impede the celerity of self-protection¾would not seem to render the product unfit.

Professor Steenson has also suggested that the Minnesota Supreme Court has sanctioned a utility/risk test of the sort made famous by the California court in Barker v. Lull Engineering Corp.[33] as a means of defining "defective condition unreasonably dangerous.[34] Barker involved an operator of a high-lift loader who was injured by falling timber when a load tipped. The court found the Restatement definition too confining and developed its own.

The California definition has two levels: A product may be found defective either if it fails to meet ordinary consumer expectations, or, if the utility of the challenged design does not outweigh its danger. Using the balancing test, the plaintiff merely needs to prove that the defect caused his injury, then the burden of proving that the utility outweighs the danger shifts to the defendant.

The case in which Professor Steenson suggests the Minnesota Supreme Court sanctioned this formulation, Halvorson v. American Hoist and Derrick Co.[35] was actually decided two years before Barker. Halvorson, which involved an action against a crane manufacturer to recover for injuries sustained when a crane came into contact with a 7,000-volt power line, was tried under theories of negligence and strict liability in tort. By a special- verdict, the jury [Page 485] found that there was no defect which could justify the imposition of strict liability in tort, but that the defendant was negligent. In holding the two findings to be irreconcilable, the Minnesota Supreme Court stated that the common element of both negligence and strict liability in tort "is some kind of dangerous defect rendering the product unreasonably dangerous for its intended use."[36] Quoting a student comment,[37] the court stated that both traditional negligence analysis "and the 'unreasonable danger' analysis make liability depend on whether the utility of the product or conduct in question outweighs, in light of all of the circumstances, the risk of injury and the burden of taking precautions to prevent it."[38]

The suggestion that by those remarks the court intended to be the first court in the nation to sanction a utility/risk analysis for defining "defective condition unreasonably dangerous" is not completely without merit, but is unlikely. For the court to formally recognize that strict liability in tort and negligence share a common heritage is far different from suggesting that the utility/risk analysis is the procedure which a jury should use in determining whether a product is in a "defective condition unreasonably dangerous." That the Minnesota Supreme Court intended to implement a new definition is made even more improbable by the fact that the lower court definition that was approved in Halvorson was exactly that which was used six years earlier in Farr. [39] Moreover, no cases subsequent to Halvorson have applied a utility/risk analysis in determining whether a product is in a "defective condition unreasonably dangerous."[40]

If the Halvorson court did intend to create a new definition, it is difficult to anticipate how it would be applied. Would the burden of proving that the utility of a firearm's design outweighs the risk shift to the defendant after the plaintiff proved causation? Barker is not a guide since it was decided subsequent to Halvorson. Whatever the formulation, a plaintiff would seem to have a greater chance of [Page 486] success with this definition than with either of the other two. The plaintiff alleging a malfunction caused by an inadequate design would surely win: there is little function in a design which does not serve its intended purpose. The plaintiff alleging that a firearm was defective because it was deadly or because of the absence of a safety device, however, would have an opportunity that would be denied under the other two definitions. He or she could argue that a firearm would be just as useful if it only had the power to stun or if a split second had to be taken to release a safety, and that the risk implicit in the deadly firearm designed without a safety is so great as to be overwhelming. However unlikely it is that a jury would agree with such a contention, the possibility would at least exist.

A further problem for firearm plaintiffs may result from the court's construction of the term "consumer." Neither in the Kerr case nor in subsequent cases has the court directly addressed the question of exactly who is a consumer. In a firearms-related case, this definition may be crucial: A person who injures himself with a firearm is certainly the final user and consumer of the firearm, but may the same be said if the person injured is not the one wielding the firearm?

The Second Restatement of Torts extends the definition of consumer to those who prepare a product for consumption by others, to persons to whom a product is applied by others and to persons who utilize a product for the purpose of doing work on it.[41] However, the following caveat is issued:

Thus far the courts, in applying the rule stated in this Section, have not gone beyond allowing recovery to users and consumers, as those terms are defined in Comment l. Casual bystanders, and others who may come in contact with the product, as in the case of employees of the retailer, or a passerby injured by an exploding bottle, or a pedestrian hit by an automobile, have been denied recovery. There may be no essential reason why such plaintiffs should not be brought within the scope of the protection afforded, other than that they do not have the same reasons for expecting such protections as the consumer who buys a marketed product . . . .[42]

CONCLUSION

The chance of a shooting victim in Minnesota successfully ad- [Page 487] vancing the theory of strict liability in tort depends on exactly how the current court chooses to define "defective condition unreasonably dangerous." If the court follows the definition in the comment to § 402A, recovery seems remote because consumer expectation limits the term; it would be difficult to sustain a contention that a consumer expected a correctly functioning gun to work any differently than it actually did. The definition in Farr offers the plaintiff no great benefit. Only if the court adopts the utility/risk analysis of Barker v. Lull could strict liability in tort successfully be applied against firearms manufacturers in Minnesota. Halvorson offers a slender thread of hope for this test, but little more. Plaintiff's counsel would have to convince the court that in 1976, even before the Supreme Court of California, the Minnesota court intended to greatly expand plaintiff's rights in the area of products liability and that for the last several years those rights have simply been overlooked. Given the consistency with which the court has reiterated its intention to abide by the definition used in the Restatement, such a turnaround seems unlikely.

J. Randall Benham

1. Such a shift in burden would have an impact beyond the obvious. The price of firearms might well grow to exceed the means of the poor, particularly the elderly or residents of the inner city ghettos. Some would argue that those persons, either because of their residence in high crime areas or because of their relative defenselessness, have the greatest need for the protection that firearms provide If, however, one accepts the argument that firearms prevent injuries far less often than they are the source of accidental injuries, it is just as wise to keep them out of the hands of the poor as the wealthy. Moreover, even if this argument is rejected, it is still difficult to support the suggestion that society as a whole should bear the cost of armaments for the poor.

2. Likewise, traditional negligence actions will not be considered although they may certainly be applicable.

3. Traditionally, consumers were often denied recovery from manufacturers because of lack of privity and because of the burden of proving negligence. The argument that it was in the public good to begin removing these impediments was articulated in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) and Henningsen v. Bloomfield Motors, 32 NJ. 358, 161 A.2d 69 (1960).

4. 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963).

5. The section provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

RESTATEMENT (SECOND) OF TORTS § 402A (1965).

6. Id. at comment g

7. Id. at comment i.

8. The comments also make the point that some products cannot be made entirely safe. Sugar, for example, is a deadly poison to diabetics, and castor oil has been misused as an instrument of torture. Tobacco is not defective merely because the effects of smoking can be harmful. Also, some products are unavoidably unsafe even in their intended and ordinary uses. The vaccine for rabies, for example, has the possibility of causing serious and damaging consequences, but as long as it is properly prepared and sold with proper warning and directions, it will not be considered defective. Id at comments i, j, k.

9. 278 Minn. 322,154 N.W.2d 488 (1967).

10. Id. at 333, 154 N.W.2d at 499.

11. Id. at 334, 154 N.W.2d at 500.

12. Id. at 335, 154 N.W.2d at 501.

13. 284 Minn. 115, 169 N.W.2d 587 (1969).

14. Id. at 116, 169 N.W.2d at 588.

15. Id. at 117, 169 N.W.2d at 587. In Magnuson v. Rupp Mfg., Inc., 285 Minn. 32, 40, 171 N.W.2d 201, 206 (1969), the court required that the plaintiff prove that the injury was unrelated to any voluntary, unusual or abnormal handling by the plaintiff. That requirement was restated in Halvorson v. American Hoist & Derrick Co., 307 Minn. 48, 240 N.W.2d 303 (1976), but was not included as part of the plaintiffs burden in O'Laughlin v. Minnesota Natural Gas Co., 253 N.W.2d 826 (Minn. 1977). Thus it would seem that proof of an absence of voluntary, unusual or abnormal handling is no longer a part of the plaintiffs burden. In Allied Aviation Fueling Co. v. Dover Co., 287 N.W.2d 657 (Minn. 1980), however, the court upheld a directed verdict where the facts undisputedly indicated voluntary and abnormal handling of a valve which led to a fuel spillage. Thus it may be logical to assume that while such proof is no longer an independent part of plaintiffs burden, it has been incorporated in the causation requirement.

16. See supra notes 5-7 and accompanying text.

17. Supra notes 9-12.

18. 285 Minn. 32, 38, 171 N.W.2d 201, 206 (1969).

19. Id. at 45, 171 N.W.2d at 210.

20. 288 Minn 83, 89, 179 N.W.2d 64, 69 (1970).

21. 1 Westerberg v. School Dist. No. 792, 276 Minn. 1, 8, 148 N.W.2d 312, 317 (1967).

22. 288 Minn. 83, 179 N.W.2d 64 (1970).

23. Id. at 89, 179 N.W.2d at 68.

24. Steenson, The Anatomy of Products Liability in Minnesota: The Theories of Recovery, 6 Wm. MITCHELL L. REv. 1 (1980).

25. Id. at 37. MINN. STAT. § 336.2-314(2) (1982) states that for goods to be merchantable they must at least

(a) pass without objection in the trade under the contract description; and

(b) in the case of fungible goods, are of fair average quality within the description; and

(c) are fit for the ordinary purposes for which such goods are used; and

(d) run, with the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved, and

(e) are adequately contained, packaged, and labeled as the agreement may require; and

(f) conform to any promises or affirmations of fact made on the container or label if any.

26. MINN. STAT. § 336.2-314(2)(c) (1982).

27. Steenson, supra note 24, at 37.

28. Farr, 288 Minn. at 89, 179 N.W.2d at 68.

29. Id. at 90, 179 N.W.2d at 69.

30. Id.

31. The case is most often cited merely for support of the fact that strict liability in tort does exist in Minnesota. Frey v. Montgomery Ward & Co., 258 N.W.2d 782,791 n.4 (Minn. 1977); Busch v. Busch Const. Co., 262 N.W.2d 377, 393 (Minn. 1977); OLaughlin v. Minnesota Natural Gas, 253 N.W.2d 826, 829 (Minn. 1977). The case is also cited for support of the proposition that strict liability in tort and implied warranty of merchantability are very similar. Goblirsch v. W. Land Roller Co., 310 Minn. 471, 475-76, 246 N.W.2d 687, 690 (1976); Superwood Corp. v. Siempelkamp Corp., 311 N.W.2d 159, 161-62 (Minn. 1981).

32. J. WHITE & R. SUMMERS, HANDBOOK OF THE LAW UNDER THE UNIFORM COMMERCIAL CODE 355 (2d ed. 1980) (footnote omitted).

33. 20 Cal. 3d 413, 573 P.2d 443, 143 Cal. Rptr. 225 (1978).

34. Steenson, supra note 24, at 38.

35. 307 Minn. 48, 240 N.W.2d 303 (1976).

36. Id. at 52, 240 N.W.2d at 307.

37. Case Comment, Products Liability: The Victim's Conduct as a Bar to Recovery¾The Minnesota Supreme Court Reaffirms the Magnuson "Limiting Factors": Waite v. American Creosote Works, 1 Wm. MITCHELL L. REv. 207, 217 (1974).

38. Halvorson, 307 Minn. at 56, 240 N.W.2d at 307.

39 Id. at 53-54, 240 N.W.2d at 306.

40. Lambertson v. Cincinatti Corp., 312 Minn. 114,257 N.W.2d 679 (1977), citing Halvorson regarding indemnity/contribution in third-party cases. Bigham v. J.C. Penney, 268 N.W.2d 892, 896 (Minn. 1978), citing the case as it concerned failure to warn. Allied Aviation Fueling Co. v. Dover Co., 287 N.W.2d 657, 660 (Minn. 1980), citing the case in connection with abnormal handling.

41. RESTATEMENT (SECOND) OF TORTS § 402A Comment l (1965).

42. Id. at comment o.