University of Cincinnati Law Review
Spring, 1991, Page 1103
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
PISTOLS, POLITICS AND PRODUCTS LIABILITY
Carl T. Bogus*
TABLE OF CONTENTS
I. Handguns and Products Liability ................................ 1105
A. The Concept of Defect .................................. 1106
1. The Early Doctrine .............................. 1106
2. The Risk-Utility Test ........................... 1109
B. The Risk-Utility Test Applied to Handguns .....1113
1. Homicides .......................................... 1114
2. Other Crimes ..................................... 1116
3. Self-Defense ...................................... 1116
4. Suicide .............................................. 1118
5. Accidents .......................................... 1120
6. Injuries .............................................. 1121
7. Recreation ......................................... 1121
8. Weighing the Costs and Benefits ........ 1122
D. Unavoidably Unsafe Products ...................... 1126
II. State Analyses ....................................................... 1128
A. Louisiana .................................................... 1128
B. Illinois ......................................................... 1135
C. Massachusetts ............................................ 1139
D. Pennsylvania ............................................... 1141
E. Missouri ...................................................... 1143
F. Oregon ....................................................... 1144
G. Maryland ................................................... 1145
III. Searching for Explanations ................................... 1148
A. Political Issues ........................................... 1149
B. Issues of Politics ........................................ 1156
Conclusion .......................................................................... 1164
Every year more than 22,000 Americans are killed with handguns. Nearly half of these are murdered and the rest lose their lives through accidents or suicide. The magnitude of that number may be better appreciated by noting that during the Vietnam War, more Americans were murdered with handguns in the United States than were killed in combat in Vietnam. If one adds the accident and suicide victims to those murdered, the domestic handgun fatalities more than double the combat deaths in Vietnam.
Attempts to reduce this carnage by legislating controls over the possession or sale of handguns have resulted in bitter political struggles. Probably the nation's most famous¾or infamous¾lobby is the National Rifle Association (N.R.A.), which has effectively thwarted handgun control legislation. The N.R.A.'s ability to frustrate the will of the nearly three-quarters of Americans who favor more rigorous controls over handguns is a fascinating subject with both political and psychological dimensions. However, the struggle to reduce gun violence has not been waged exclusively in the legislative arena; it has also been fought in the courts. Handgun victims have brought product liability actions against handgun manufacturers, distributors and dealers, arguing for recoveries based on theories of strict liability.
The courts have nearly uniformly rejected those lawsuits. Court after court has held that a manufacturer or seller of a properly functioning handgun is not liable to a person who is shot with that gun. Taken at face value these cases appear to present a firm and consistent line of authority. However, there is more here than meets the eye. The handgun cases cannot be reconciled with general products liability doctrine. As a review of handgun decisions and other products liability decisions by the same courts reveals, courts are handing down handgun decisions that are in direct conflict with their [Page 1105] own case law. This article argues that a proper analysis of existing law would lead to a determination that strict liability should apply to handguns, but that, consciously or unconsciously, courts are misconstruing their own legal doctrines to avoid that result.
Part I discusses whether strict liability applies to handguns under the general law of products liability. Part II focuses on court decisions in seven states. Six of these states are selected as representative examples of the jurisdictions that have held that strict liability should not be applied to handguns. The rationale of those decisions is analyzed in the context of that state's particular law of products liability, demonstrating that courts are contorting controlling legal principles to avoid imposing strict liability on handguns. The sole exception¾Maryland¾will then be discussed. Part III examines why courts go to great lengths to shield handguns from products liability.
I. HANDGUNS AND PRODUCTS LIABILITY
The modern law of products liability is generally considered to have begun in 1960, with the New Jersey Supreme Court's decision in Henningsen v. Bloomfield Motors, Inc. In 1965, the RESTATEMENT (SECOND) OF TORTS set forth the modern principle of products liability law at Section 402A, and today that section or a comparable doctrine has been adopted by virtually every jurisdiction. Section 402A provides: [Page 1106]
(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.
Someone not familiar with the rich body of products liability law that has developed over the past few decades would almost certainly raise three questions about the application of Section 402A to handguns. Perhaps the most fundamental question would involve the concept of "defect." Why is a perfectly functioning handgun defective? A second conceptual problem may be characterized in terms of proximate or intervening cause: Who is responsible for a handgun injury, the handgun manufacturer or the person who pulls the trigger? Third, there is an apparent problem regarding the person afforded a cause of action. Section 402A protects "the ultimate user or consumer," and therefore, at least on its face, it does not apply to a person who is shot by a stranger.
Each of these issues will be discussed in turn.
A. The Concept of Defect
1. Early Doctrine
It is appropriate to begin with the question, "Why is a perfectly functioning handgun defective?," because the answer requires an examination of fundamental doctrine. Incorporated in every theory of products liability is the notion that something must be wrong with the product. Manufacturers or suppliers are not made insurers for all harm that may result from their products. Automobile manufacturers are not required to insure against automobile accidents; the seller of a knife is not liable to someone who is cut with the knife.
Section 402A imposes strict liability on a product that has a "defective condition unreasonably dangerous to the user." However, even before the American Law Institute adopted that section the [Page 1107] terms "defective" and "unreasonably dangerous" were controversial. In the original draft Dean William L. Prosser, the reporter for the second edition of the Restatement of Torts, did not use the term "defective." He used only the phrase "a condition dangerous to the consumer." However, the council was concerned that a jury might find, for example, that whiskey is unreasonably dangerous to consumers, and therefore it added to concept of defectiveness. When the council's recommendation was debated on the floor of the Institute, a number of scholars argued that "unreasonably dangerous" was sufficient and that the word "defective" should be deleted. Dean Prosser expressed indifference on that point but, according to Professor John W. Wade, "the Institute, tired after what had been a lengthy discussion of the section, decided by an uncounted voice vote not to make a change."
Nevertheless, it was clear that "defective" was a term of art. It was never given the standard English meaning of flawed or imperfect. Comment g to Section 402A defined defective as "not contemplated by the ultimate consumer." But it quickly became evident that this consumer expectation test, as it became known, was not adequate. While the test was useful for manufacturing defects¾broken glass in a bottle of soda, a bad weld between the wing and fuselage of an airplane, a bubble in an automobile tire¾it was not suitable for design defect cases, products which were made exactly as intended but were nevertheless unreasonably hazardous.
Scholars criticized the consumer expectation test because it did not provide an incentive for manufacturers to incorporate new safeguards into their products, and courts refused to apply it. One example is LaGorga v. Kroger Co., a case that arose two years after the Institute promulgated Section 402A. In LaGorga, a child was injured when his jacket caught fire. The consumer should not have expected differently; the jacket was "generic to all other jackets made for children by various sellers," all of which were made from [Page 1108] flammable fabrics. The law did not require otherwise, and all of the parties agreed that the jacket met the requirements of the Federal Flammable Fabrics Act. Nevertheless, for only a few cents, the manufacturer could have treated the jacket with a flame retardant. The court held that "the basic design of a product, perfectly manufactured, is defective if it results in an unreasonably dangerous product for then an unreasonably dangerous product is synonymous with a defective condition."
LaGorga illustrates that in many circumstances courts could not apply the consumer expectation test without turning their backs on established legal principles. The LaGorga court cited the famous case of The T. J. Hooper, which involved tugboats and barges that were caught in a storm they could have avoided if they had operating radio receivers. However, it was not then industry custom to equip those vessels with radios. Judge Learned Hand wrote:
Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It may never set its own tests, however persuasive be its usages, courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.
The principle that Judge Learned Hand enunciated in T.J. Hooper¾that the law may require innovation when the benefit society will derive clearly outweighs the cost of making the innovation¾is now ingrained in our jurisprudence. For more than half a century, T.J. Hooper has been studied by every American law student. Its holding is consistent with the needs of a technologically progressive society. In retrospect, it appears inevitable that emerging doctrine in the relatively new field of products liability would have to conform to so basic a principle.
The consumer expectation test was also disfavored because it would impose liability on reasonably dangerous products. What of a new drug that is necessary to save the lives of many but, for some, results in side effects not anticipated by either the pharmaceutical company or the consumer? In addition, the consumer expectation test was not relevant to situations where the reasonable consumer would never have contemplated the particular issue. Does the reasonable consumer expect the door window of his car to be made out [Page 1109] of tempered glass or laminated glass? Has she considered whether her perfume might be flammable or whether she may have an allergic reaction to it? Consumers generally do not consider such questions, and an attempt to analyze the issues in terms of what the reasonable consumer expects became an exercise in legal fiction. Therefore, where a product's design or its inherent characteristics were at issue, the consumer expectation test did not provide a sound method of analysis and it fell into disfavor.
2. The Risk-Utility Test
As the consumer expectation test began to wane, courts increasingly viewed "defective" to have the same meaning as "unreasonably dangerous." Today courts evaluate products in terms of the reasonableness of their hazards. Courts make that evaluation through a cost-benefit analysis in which they weigh the benefit that consumers derive from a product against the harm they suffer.
Few analyses are as simple as the risk-utility test. On one scale, the court weighs the risks of the product, the risks to both the consumer himself and to others who foreseeably may be harmed. One may think of this as the societal cost of the product. On the other scale, the utility of the product is weighed. Again, the court assesses the product's benefit to both the consumer and society-at-large. Commentators have attempted to draw up lists of factors to be weighed in each scale, but courts generally have not prescribed the use of specific criteria or formulate. By balancing risks and benefits the court decides whether the product is "unreasonably dangerous." If a product's risk outweigh its benefits, it is deemed to be unreasonably dangerous and strict liability attaches.
A 1979 Texas case provides a good example of how courts abandoned the consumer expectation test in favor of the risk-utility doctrine. Plaintiff's car collided with a truck, and plaintiff was injured when the car rolled over and the roof caved in. The trial court charged the jury on the basis of the consumer expectation standard and asked it to determine whether the roof was defectively designed. It defined defective design as "a design that is unreasonably dangerous," and in turn it defined unreasonably dangerous as "dangerous to an extent beyond that which would be contemplated by the ordinary consumer . . . . The jury returned a verdict in plaintiff's favor but the appellate court reversed. The appellate court held that the [Page 1110] jury should have been instructed to consider both the risk-utility test and the consumer expectation test, as well as the availability of substitute products and the manufacturer's ability to eliminate the unsafe feature of the product. However, the Texas Supreme Court reversed, rightfully recognizing that the consumer expectation test could not be applied in a meaningful way. How can a judge or jury sensibly determine whether the ordinary consumer expects that an automobile roof will be crushed in a particular accident when, until such an accident occurs, the ordinary consumer never considers such a question? The Texas Supreme Court rejected the consumer expectation test and held that the juries should be "instructed in general terms to consider the utility of the product and the risks involved in its use."
The Texas case typifies the trend of courts throughout the country. Commentators surveying products liability law across the United States report that the "overwhelming consensus among courts deciding design defect cases today is the use of some form of risk-analysis, either as an exclusive or alternate ground of liability."
Today it is routine for courts to apply the risk-utility test to a host of products that are not in any sense broken. One example is asbestos. Asbestos is a natural mineral that is both an extremely useful and dangerous substance. The very properties that make asbestos useful also make it dangerous; its hazard cannot be separated from its utility. It is an excellent insulator because its fibers are so stable¾in lay terms, nearly indestructible¾and therefore can withstand extreme heat, but these fibers are readily carried in the air and, when inhaled, can cause lung cancer, asbestosis and other diseases.
In a leading asbestos products liability case, Judge John Minor Wisdom began his analysis by noting that, "As used in the Restatement, 'defective' means 'unreasonably dangerous'; it has not independent significance." He then continued as follows:
The determination that a product is unreasonably dangerous, or not reasonably safe, means that, on balance, the utility of the product does not outweigh the magnitude of the danger. [Page 1111]
* * *
The utility of an insulation product containing asbestos may outweigh the known or foreseeable risk to the insulation workers and thus justify its marketing.
Similar analyses have been made for many products that are both useful and inherently dangerous, including blood, which may be contaminated with hepatitis or AIDS viruses; menstrual tampons, which were associated with toxic shock syndrome; intrauterine contraceptive devices such as the Dalkon Shield, which were associated with infections and spontaneous abortions; and pesticides and preservatives, which have the potential to make our food safer and more abundant, but more dangerous too.
There is however an obvious difference between handguns and these other products. With asbestos, blood, pesticides and the like, injuries are the result of some byproduct or side effect; the manufacturer does not intend to incorporate the harmful characteristic into the product. But for the most part handguns cause injuries because they function just as intended. It seems unfair to penalize someone for providing the consumer with exactly what he wanted.
The question of fairness arises constantly in product liability cases. It is often expressed in terms of the issues of misuse, superseding cause, unavoidably unsafe product and scope of liability, all of which are discussed infra. These are but a variety of masks worn by the same rough notion of equity. However, the question¾Why should someone be liable for providing the consumer with exactly what he wanted?¾has answers. Imposing liability may or may not be fair depending on the particular product and the person to whom it is provided. It has long been accepted that a bartender may be liable for selling drinks to an already intoxicated patron, and few [Page 1112] people are troubled by imposing liability on someone who sells a firearm to a minor, a mental incompetent or a known felon.
Those cases focus principally on the person to whom the product is supplied; we consider the seller to be culpable for furnishing a potentially dangerous product to someone who he knows, or should know, to be an irresponsible consumer. Of course, these are not product liability cases and they embrace notions foreign to a products liability analysis. It has been said that, "Strict products liability in its purest form focuses exclusively on the product rather than the manufacturer's conduct." Nevertheless, these cases illustrate that it is not necessarily unfair to hold a seller liable for furnishing the consumer with exactly what he wants.
The same principle applies in instances where the focus is principally on the product. Consider for a moment an outlandish hypothetical: A seller markets a new home protection system. The system includes decals for doors and windows that read, "Warning: Anyone entering this home will be exposed to a lethal and contagious virus," and a device releases a virulent virus if, while it is left unoccupied, the home is penetrated by unauthorized persons. The virus lives only for a few seconds after being released and the home will be safe when the owner returns; only the burglar will be exposed. The seller promotes the system by contending that home burglaries are increasing and traditional burglar alarms no longer deter burglars because the police are overburdened and cannot respond promptly. Would it be unfair to hold this seller liable to innocent third persons who caught the virus from infected burglars?
For most, the answer is a clear no; there is nothing unfair in such a result. There is a social utility in preventing burglaries, but it is patently absurd to risk a deadly epidemic in order to reduce burglaries. Indeed, the example is preposterous because the tip of the scales is so pronounced; the idea of selling a product that can result in so much more harm than good is nearly unthinkable.
The hypothetical reveals that the concept of fundamental fairness is inherent in the risk-utility principle. It is not unfair to hold some- [Page 1113] one liable for selling a product that can cause far more harm than good, even if the product is exactly what the consumer wanted.
B. The Risk-Utility Test Applied to Handguns
As the prior discussion has demonstrated, in determining whether handguns are unreasonably dangerous and therefore subject to strict liability, courts must weigh their relative risks and benefits to society. Despite the heat and emotion this topic generates in the political arena, a sound and dispassionate analysis is possible.
The costs that handguns impose on society can be easily listed. First there are the deaths ¾ people who are killed by handguns through murder, suicide, and accident. It cannot be assumed that every handgun death would be avoided if a handgun were not available. If one is intent on murder, one may prefer to use a handgun, but if a handgun is not available, one may use a knife or poison instead. Similarly, if one wishes to commit suicide, handguns are not the only means of doing so. Second, there are people who are non-fatally wounded by handguns, again through assault, suicide attempt, or accident. Third, there is the economic impact of the first two, that is, the resources devoted to treating victims and supporting those who are left disabled, as well as their dependents. A fourth cost is the emotional impact of handgun deaths on survivors. When a six-year-old boy finds his father's handgun in the nightstand drawer and accidentally kills his sister with it, the psychological impact on the boy, his parents and other siblings are obviously enormous and cannot be ignored.
Similarly, the societal benefits of handguns are easily listed. Handguns have only two legitimate uses for civilians¾self-protection and sport. The value of handguns for protection must be evaluated in terms of the crimes prevented or deterred. The benefit side of the ledger should reflect: (1) the lives saved by possession of handguns; (2) the physical injuries prevented; (3) the economic value of preventing injuries and; (4) the value of property protected; (5) the psychological impact of crime deterred, such as the emotional devastation avoided by women who have used handguns to [Page 1114] escape rape; and (6) the pleasure derived from the use of handguns for sport.
Of course, it is easier to list the costs and benefits than it is to weigh them. Nevertheless, it is often possible to compare a cost to a parallel benefit, and it is therefore useful to compare costs and benefits on a line-item by line-item basis, so to speak, rather than reviewing the entire side of one ledger before the other.
About 9,200 murders are committed with handguns in the United States each year. That figure represents 45% of all homicides in the United States. No other type of weapon is used nearly as often. By contrast, rifles are used in only 4% of all murders. Knives are used about 19% of the time. Shotguns, blunt objects such as clubs and hammers, and "personal" weapons such as hands and feet are each 6% of all murders. The balance of 13% consists of a miscellanea of other weapons and instances in which the weapons are unknown.
In a sense, the figure of more than 9,000 handgun deaths represents a gross societal cost; the net cost is determined by figuring how many of those murders would not be committed if handguns [Page 1115] were not available. Needless to say, there is no precise way of making that calculation. No one has surveyed murderers to ask whether they would have killed their victims by some other means, and it is doubtful that most would themselves know the answer. Nevertheless, there is data that illuminates the issue.
Seventy-one percent of handgun murders are by acquaintances, including lovers and family members, and about 80% result from altercations. Based on this data, criminologists Franklin E. Zimring and Gordon Hawkins note that "the circumstances in which most homicides were committed suggested that they were committed in a moment of rage and were not the result of a single-minded intent to kill." During a moment of blind rage, people turn to whatever weapons are readily at hand. If a handgun were not available, some would reach for something else¾baseball bats, rocks, knives¾but such attacks result in far fewer fatalities since firearms are by far the most lethal weapons. The second most deadly weapon, knives, have a death rate that is less than one-fifth that of firearms. Thus, if every potential handgun assailant used a knife, more than 80% of those that would have died by gunshot would survive. In addition, many persons prepared to use handguns would not resort to other weapons since guns "permit attacks by persons physically or psychologically unable to overpower their victim through violent physical contact." [Page 1116]
2. Other Crimes
Handguns also figure prominently in the more than a half million robberies and nearly a million aggravated assaults that occur annually in the United States. Of those robberies involving strong arm tactics, firearms are used 77% of the time. Although there is no data providing a breakdown between handguns and long guns, the nature of robberies¾over half are street muggings and nearly a quarter are stick-ups of convenience stores, gas stations and retail shops¾generally require the portability and concealability that only handguns provide. The FBI reports that in recent years assaults with firearms have been increasing at a greater rate than assaults with other weapons.
On the benefit side of the ledger are the lives saved by using handguns for self-defense. This is an important subject because 71% of handgun owners say that they have handguns solely for purposes of self-defense or protection.
Yet the evidence shows that handguns save relatively few lives. During a recent three year period there were about 69,000 handgun deaths, but only 583 of them¾not even 1%¾were justifiable homicides. In 1982, nineteen states failed to record a single incident of a citizen killing a criminal in self-defense. A study conducted in Detroit found that a burglary was prevented by shooting the intruder in no more than two out of 1,000 burglaries occurring over a four year span. Nevertheless, gun enthusiasts argue that many burglaries are foiled without shooting the burglar. There is anecdotal evidence of homeowners frightening away would-be burglars by calling out, "I have a gun," or the like, but no empirical data supports the contention that this is significant to crime prevention. [Page 1117] Moreover, about half of all households in the United States have a firearm; if they are an effective deterrent, it is hard to understand why there are more than three million burglaries annually.
A seven year study published in The New England Journal of Medicine deflates the arguments that handguns are valuable for self-defense and that if handguns were not available people would commit the same acts with other weapons. Researchers compared Seattle, Washington and Vancouver, British Columbia. Those cities have nearly identical population sizes, unemployment rates, median household incomes, percentages of households with incomes of less than $10,000 (in United States dollars) and percentages of white and non-white populations. They are only 140 miles apart and have similar climate, history and culture.
However, because of their very different systems of firearm regulation, Seattle and Vancouver differ widely in the prevalence of handguns. In Seattle, where one may purchase a handgun for self-defense or recreation and obtain a permit to carry a handgun as a concealed weapon after a thirty day waiting period, 41% of all households have handguns. In Vancouver one may not lawfully have a handgun for self-defense and recreational uses are rigorously regulated; consequently, handguns are present in only 12% of Vancouver's homes.
If handguns deter crime, Seattle should have less burglary than Vancouver, yet the rate of burglary is nearly identical in the two cities. The robbery rates are also similar. In addition, if handguns have utility for self-defense, there should be significant numbers of legally justifiable homicides. During the seven year study, there were 592 homicides in both cities, but only twenty-one of them were instances in which citizens acted in self-defense. The researchers [Page 1118] concluded that even the "exclusion of all 21 cases (which accounted for less than 4 percent of the homicides during the study interval) had little overall effect on the relative risk of homicide in the two communities."
However, the murder rates were markedly different in the two cities. Of the total number of homicides that occurred in both cities combined, more than 65% were in Seattle. As previously discussed, some have argued that if one has murder in his heart but no handgun in his house, he will use another weapon to kill. If that were so, Vancouver should have more homicides with knives and other weapons than does Seattle. However, the researchers found that, "Vancouver's rate of homicides with weapons other than guns was not significantly higher than that in Seattle, suggesting that few would-be assailants switched to homicide by other methods." The availability of handguns therefore resulted in a far higher murder rate. This cost was not balanced by a corresponding benefit in protection or self-defense.
The number of handgun suicides exceeds even the number of handgun murders, and it is growing at alarming rates. In 1960, there were about 20,000 suicides in the United States; currently about 30,000 Americans kill themselves each year. About one-half of all suicides are committed with firearms, and, of these, about 83% are committed with handguns. [Page 1119]
Studies show that the rising suicide rate is due exclusively to firearms; non-firearm suicide rates have remained stable. Researchers have also discovered a high correlation between increases in handgun ownership and increases in handgun suicide.
If handguns are not available, some people will end their lives by other means, but research demonstrates that many will not. For some, the moment of despair will pass; others will choose a less lethal means and survive. This is particularly true for the 2,000 to 3,000 handgun suicides by adolescents. One expert has observed that, because they are particularly impulsive, "adolescents who can't get a lethal weapon don't necessarily choose another. If they do, it's usually a less lethal method and you have a chance to intervene. Often if they can't get a weapon, the impulse passes." [Page 1120]
Thus, the societal cost of handguns must include an unknown but potentially substantial portion of the approximately 14,000 suicides that are committed each year with handguns.
Compared to murders and suicides, the number of fatal handgun accidents is relatively small. Although in years past the number of accidental deaths by all firearms was nearly 3,000 each year in the United States, the figure has declined to between 1,600 and 1,700 per year. It is estimated that about 1,000 of these result from handguns. Nevertheless, the societal cost is significant because of who the victims are.
Each year hundreds of children age fourteen and younger kill themselves, their siblings, and their playmates with handguns. In the typical case, the child finds the gun in his parents' nightstand drawer. Each of these incidents leaves behind it not only a dead child but a number of psychologically maimed victims. There are the parents and siblings of the dead child who suffer grief and loss. There is the owner of the gun who must carry the burden of guilt. When the owner of the gun is also the parent of the dead child, the feelings of guilt and loss are even more acute. When one child kills another, the child who pulled the trigger must also labor under a crushing burden of guilt¾a burden already heavy when a child kills a playmate and even worse when that playmate is a sibling. There are also intra-familial feelings of resentment, rejection, and fear of [Page 1121] rejection. One parent may harbor bitter feelings for the parent who brought the gun into the house. Both parents may be unable to forgive the child who pulled the trigger, and no matter how they feel, the child who pulled the trigger cannot help but fear parental rejection. The emotional pain is unimaginable.
Most of these accidents occur in homes where the handguns are presumably kept for self-defense. Yet the number of dead children equals or exceeds the number of dead criminals.
All of the data previously presented involves deaths, but for each fatality there are twice as many shootings¾more than 50,000 per year¾which are non-fatal but serious enough to require hospitalization. A study published by the Journal of American Medical Association indicates that the medical costs of handgun injuries exceed $800 million per year. More than 85% of the cost is paid directly by public sources such as Medicaid, Medicare and state aid to victim programs, and 13% is paid by insurance companies. The $800 million figure does not include indirect costs such as disability payments and lost time from work. Both direct and indirect costs may be estimated at $2.4 billion.
Finally, the benefit side of the cost-benefit ledger must reflect the pleasure that some derive from using handguns for hunting, target shooting and other forms of recreation. Those on both sides of the handgun control issue agree that handguns are not often used for hunting. They are more often used for target shooting and [Page 1122] "plinking," i.e., shooting at cans and other objects in the backyard. There are no reliable data as to how many people use handguns for these forms of recreation. However, as previously noted, 71% of those who own handguns say they have them only for self-defense.
8. Weighing the Costs and Benefits
A review of the data leads ineluctably to one conclusion¾the costs that handguns impose on society overwhelmingly outweigh their benefits. No other conclusion is possible. If there were no handguns, there would still be murders, suicides, robberies, assaults and accidents, and most certainly some who would have died by handguns would die by other means. But it is equally certain that many would not. The Seattle-Vancouver study published by The New England Journal of Medicine provides strong evidence that the total murder rate would be cut in half, saving more than 10,000 lives each year. There is also good reason to believe that a substantial number of the 14,000 people who commit suicide with handguns each year would be saved, as would the 1,000 per year who lose their lives in handgun accidents. In addition to this mountain of dead bodies, the scale weighing the societal handgun cost must also hold a portion of the 50,000 who are wounded and the two million who are robbed and assaulted with handguns each year, the $1 billion annual medical cost of treating handgun injuries, as well as the grief of the survivors and the suffering of the disabled.
The scale weighing the societal benefit is not empty. A liberal estimate of the number of lives saved by using handguns for self-defense may run as high as 620 per year, and handguns help prevent some burglaries and other crimes. To this one may add the pleasure derived from recreation. [Page 1123]
No one who evaluates this data can remain unmoved by it. But the cost-benefit analysis does not settle the liability issue. Questions still remain: Who is responsible for this carnage¾those who make handguns or those who misuse them? Are not handguns patently and unavoidably unsafe, and is not strict liability inappropriate for such products?
One of the most interesting issues concerning handguns and products liability is the issue of misuse, for here legal theory and political polemics blend. "Guns don't kill people; people kill people," proclaims the gun lobby. This slogan makes a point: Who causes the harm, the manufacturer or the person who pulled the trigger? Put in terms of tort doctrine: Does the act of the person who pulls the trigger constitute an independent intervening cause that relieves the manufacturer of liability? Or put slightly differently: is not the act of firing the gun¾rather than the manufacturing of it¾the proximate cause of the victim's injury?
Although the slogan and the questions raise legitimate issues, they do not do so fairly. In fact, they are mischievously phrased; they all engage in sleight of hand. Their trick is the subtle suggestion that one party or the other has caused the harm. But tort law has long recognized that harm may result from independent activity by a number of actors and that separate acts may combine to create one injury. In determining whether A is liable to an injured plaintiff, we analyze A's activity¾not B's¾because their liabilities are not mutually exclusive. Since A and B may both be liable, a finding that B is liable does not exclude the possibility that A may also be liable.
This principle is illustrated by many typical tort cases. For example, in a 1984 case plaintiff alleged she was injured when a physician negligently perforated her uterus while attempting to insert an intrauterine contraceptive device (IUD), which led to a harmful infection. She brought a claim against Dr. A, who negligently inserted the device, and Dr. B, who was responsible for caring for her after her uterus was perforated. Dr. B negligently failed to prescribe antibiotics to prevent the foreseeable risk of infection. It is not at all surprising that the court gave short shrift to Dr. A's argument that Dr. B's negligence relieved Dr. A of liability, dismissing it with [Page 1124] one paragraph and a single citation to a standard tort treatise. The court noted that since the separate acts of both physicians combined to cause plaintiff's injury, each defendant was independently liable.  After all, it is now hornbook law that while joint tortfeasors may apportion damages among themselves depending on their relative degrees of negligence, all of them are liable to the plaintiff.
The question therefore is not whether the seller or user of the handgun has caused the victim's injury. Although it will not by itself answer the question of whether he should be liable to the victim, the first question is whether the handgun seller has¾in combination with other forces¾contributed to the injury. In many cases, the answer must be yes. The person who pulls the trigger has supplied the intent, but the people who put the gun in his hand have supplied the capacity. It was an armed Sirhan Sirhan who killed Robert F. Kennedy, an armed Mark David Chapman who killed John Lennon, and an armed John Hinkley who shot President Reagan, and it is an armed robber who shoots the clerk at the convenience store.
Dean William L. Prosser wrote that the problem of intervening causes "is not one of causation at all, since it does not arise until causation is established. It is rather one of the policy as to imposing legal responsibility." The policy is based on foreseeability. "If the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances," then, explained Prosser, the defendant may be liable. These risks include "the in- [Page 1125] tervention of the foreseeable negligence of others," as well as "those intervening intentional or criminal acts which the defendant might reasonably anticipate, and against which he would be required to take precautions."
Prosser offers many examples, but one is especially germane. "If a gun is entrusted to a child," he wrote, "it suggests at once to anyone with any imagination at all that someone, the child or another, is likely to be shot." How surprised would Prosser be to learn that today, on the average, every day in the United States a child under fourteen years of age finds his parents' handgun and kills himself or his playmate?
Handgun manufacturers and dealers know, or should know, about the hundreds of dead children. They may not be entrusting a particular handgun to a particular child, but they are putting into commerce millions of handguns knowing that, each year, hundreds will fall into the hands of children and tens of thousands into the hands of adults who will misuse them. They know that aside from recreation their products are misused far more than they are lawfully usedóby factors of hundreds to one. They know that over his lifetime, an American citizen has a one-in-five chance of being a handgun victim or having a relative victimized.
Courts have consistently made foreseeability the acid test for questions of misuse. This is vividly illustrated by cases where the consumer removed a safety device and was then injured. For example, a 1978 New Jersey case involved a situation where a worker lost four fingers when he inadvertently thrust his hand into a machine he was operating. Although the manufacturer had bolted a guard onto the machine that would have prevented the accident, someone removed the guard before the day of the accident. For a relatively small cost, the machine could have been equipped with an interlock mechanism to prevent it from operating without the guard. The New Jersey Supreme Court held that in design defect cases "manufacturers cannot escape liability on grounds of misuse [Page 1126] or abnormal use if the actual use proximate to the injury was objectively foreseeable."
If a plaintiff himself removes a handguard from a machine and as a result injures himself, he may be barred from recovery on the basis of his assumption of the risk. But if the plaintiff is an innocent victim¾and the manufacturer should have foreseen that his product would be misused¾then the manufacturer is liable to plaintiff. Indeed, some jurisdictions go even further, making a manufacturer liable for a user's negligent but foreseeable misuse.
The application of the foreseeability doctrine to handguns is straightforward. Handgun manufacturers and dealers surely know that their products are widely misused. They may argue that they intend their product only for legitimate uses, but they cannot avert their eyes from the frightening volume of misuse¾and neither should the courts.
D. Unavoidably Unsafe Product
The RESTATEMENT (SECOND) OF TORTS, Section 402A, comment k notes that, "There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use." As an example, it mentions the Pasteur rabies vaccine which, in the words of the comment, "not uncommonly leads to very serious and damaging consequences," but is justified since the disease "invariably leads to a dreadful death." The comment concludes that if such a product is accompanied by a proper warning it is not "unreasonably dangerous." (original emphasis).
Comment k essentially applies a risk-utility test. A product may be reasonably or unreasonably dangerous depending on two factors. The first is the relative weight of its costs and benefits. A drug with a high rate of serious side effects may be reasonably dangerous to treat rabies but unreasonably dangerous for athlete's foot. The second factor is the user's ability to knowingly select the risk he or [Page 1127] she is willing to take. If proper warnings are given, a patient can evaluate both the risks of taking and not taking a particular drug. Comment k interrelates with comment j, which states that directions or warnings may "prevent the product from being unreasonably dangerous," and with comment n, which states that assumption of the risk is a defense to a products liability action.
Any society that values freedom places a premium on a person's ability to choose his or her own risk. One may choose to go sky diving, or mountain climbing, or race car driving. But there are limits. Even a freedom-loving society may not condone Russian roulette. In a sense, society does a cost-benefit analysis and removes the clearly unreasonable (as society sees it) from individual choice. Our society does not permit a consumer to take drugs that have not been approved by the FDA, no matter how effective the accompanying warnings may be.
These principles are reflected in products liability doctrine. As the Fifth Circuit put it, "Strict liability . . . is founded on twin principles of social utility and the right of the individual to determine his own fate." The consumer "has a right to decide whether to expose himself to the risk." Thus, with three notable qualifications, handgun victims have valid product liability claims against the manufacturers and sellers of the guns that injured them. The first qualification is that liability exists in only those jurisdictions that use a risk-utility analysis. The second is that defendants have a defense to claims by victims who have assumed the risks that led to their injuries. This might apply generally to suicide victims and handgun owners who accidentally injure themselves with their own guns. However, defenses should not be confused with the risk-utility test; they are separate analyses and serve different purposes. All societal costs¾including suicides and accidents¾are considered in the risk-utility analysis. However, even if the test results in the conclusion that a product is unreasonably dangerous, a defense such as assumption of the risk or misuse might nevertheless relieve a defendant from liability. Each defense provides a mechanism for avoiding unfair results; that is, each recognizes that in a particular circumstance it would be unfair to hold a defendant liable even if he furnished an unreasonably dangerous product. [Page 1128]
A third qualification excludes handguns sold to particular users such as law enforcement agencies and the armed forces. Handguns are unreasonably dangerous in general circulation, but they are reasonably dangerous for selected groups. There is of course a risk that a police officer may shoot his or her spouse in a domestic dispute, or vice versa, but society's need to have armed police officers changes the balance in a risk-utility analysis. Handguns are not unique in this regard. Radioactive material and prescription drugs are examples of other products that are unreasonably dangerous in general circulation but reasonably dangerous when restricted to particular users.
II. STATE ANALYSES
As shown in the preceding section, handgun victims have valid product liability claims. In risk-utility jurisdictions plaintiffs should be prevailing in handgun cases because the societal costs of handguns so overwhelmingly exceed their benefits and, in most instances, defenses such as assumption of the risk do not apply. Nevertheless, with a single exception, courts have unanimously found the reverse. Court after court has dismissed claims by handgun victims.
This section focuses on this phenomenon. For six states, handgun decisions will be analyzed against the body of law then existing in the jurisdictions. These are not the only states in which handgun decisions have been handed down; they comprise half of the jurisdictions that have to date reached similar results. They include states from the east (Massachusetts, Pennsylvania), midwest (Illinois, Missouri), south (Louisiana) and west (Oregon), and they provide a representative sample of the cases to date.
Following these six states, the experience of Maryland is described. Maryland is unique; it is the only state that has imposed strict liability on handguns, albeit briefly.
In 1983, the United States District Court for the Eastern District of Louisiana was presented with a diversity jurisdiction case under [Page 1129] Louisiana law. Because it is revealing as to how the court approached the case, the court's own description of the facts and plaintiff's theory is quoted verbatim:
Early in the afternoon on April 4, 1981, Willie Watson obtained a handgun from an acquaintance. That evening, Watson used the gun, allegedly a 'snub nose .38,' to kidnap, rob, rape, and then murder Kathy Newman, a third-year medical student at Tulane University. Since committing these crimes, Watson has been tried, convicted and sentenced to death. Watson, however, is not a defendant in this case. The defendant here is the Charter Arms Corporation. The plaintiff is the victim's mother, Judie Richman. According to Ms. Richman, the defendant is liable to her because it designed, manufactured, and marketed the murder weapon. More specifically, Ms. Richman contends that, because the defendant made the murder weapon available for sale to the general public and because a reasonably foreseeable consequence of doing so was the loss of human life, the company is liable to her for the death of her daughter.
. . .
What the plaintiff is contending is that, if she chooses to sue for damages, the law does not require her to sue Willie Watson; instead, it allows her to sue and to recover from the defendant and then allows the defendant to try to recover from Willie Watson. The question before the Court, then, is who has the burden of trying to recover from Willie Watson and of bearing the loss in the event that he cannot pay.
This language suggests that the court was influenced by the view that the injury was caused by Willie Watson rather than Charter Arms Corporation. Although the court understood that as a matter of law both could be liable, nonetheless it fastened on the notion that one party or the other should ultimately be responsible. The factual description implies that the plaintiff has sued the wrong party, that she should have sued Willie Watson instead, and the description of plaintiff's claim suggests that the only tortfeasor is Willie Watson and that, in the event he cannot pay, the court is being asked to shift the loss from one innocent party to another. Although the court accurately describes plaintiff's theory of why the manufacturer should be independently liable¾"the defendant made the murder weapon available for sale to the general public [Page 1130] and . . . a reasonably foreseeable consequence of doing so was the loss of human life"¾its resistance to the theory is manifest.
As one would expect from its description of the case, the court rejected plaintiff's products liability claims. It articulated two principal bases for its decision. First, the court found that handguns satisfy the consumer expectation test: "Every reasonable consumer that purchases a handgun doubtless knows that the product can be used as a murder weapon." Second, based on "the prominence of the handgun issue in public debates" and the fact that the Louisiana legislature had not banned the sale of handguns, the court inferred that "a majority of the legislators do not think marketing handguns for sale to the general public is an 'unreasonably dangerous' activity."
The Fifth Circuit affirmed, with a two-pronged holding. The first prong concerned the risk-utility test. Unlike the district court, the Fifth Circuit did not ignore that test; Louisiana had, after all, plainly adopted the risk-utility test. The Fifth Circuit quoted the Louisiana Supreme Court's definition of the test¾"if the likelihood and gravity of harm outweigh the benefits and utility of the manufactured product, the product is unreasonably dangerous"¾yet it inexplicably concluded that the Louisiana Supreme Court did not mean what it said. "Although the Court spoke in terms of a risk/utility test," wrote the Fifth Circuit, "the analysis it actually applied was that of the consumer expectation test and its attendant duty-to-warn rule."
The Fifth Circuit's statement is puzzling. Beyond its bold statement, no explanation is offered, and it is not apparent why the court reached its conclusion. The Louisiana courts were not confusing the risk-utility and consumer expectation tests. Under Louisiana law a product could be found to be unreasonably dangerous if it met either test; that is, plaintiff could proceed on both theories and would be entitled to judgment if the trier of fact found in plaintiff's [Page 1131] favor under either test. The courts defined each test properly and did not muddle them. In a previous case, the author of the Perkins opinion had himself written that, under Louisiana law, strict liability attached whenever either test was met. And in a subsequent opinion, another member of the Perkins panel  noted that, under Louisiana law, the risk-utility test is used to determine whether a product is unreasonably dangerous per se, stating that "the sole issue is whether the benefits of the product as perceived at the time it was designed or marketed outweigh the dangers inherent in its use." Indeed, Louisiana even uses a risk-utility analysis in areas beyond products liability. For example, it has used the test to determine whether strict liability should apply to real estate.
In a case decided two years before Perkins, a Louisiana appellate court used the risk-utility analysis in a gun dealer case. A man with a long history of mental illness, including five periods of confinement to the state hospital, purchased a pistol from a gun dealer and killed someone. A wrongful death action was brought against the gun dealer on the basis that the customer was obviously deranged; plaintiff alleged the salesperson filled out the federal form that the purchaser of a gun is required to complete because the customer couldn't do so himself. The Louisiana court of appeals used a "duty/risk analysis" to determine whether a gun sale is unreasonably dangerous to the public if the salesperson does not make a reasonable effort to observe whether the customer appears mentally disturbed.
The risk-utility test was also confirmed in subsequent cases. Less than a year after Perkins the Louisiana Supreme Court handed down a decision in which it reviewed and reaffirmed its prior product lia- [Page 1132] bility holdings. This case should have dispelled any possible doubt regarding whether Louisiana was confusing the risk-utility and consumer expectation tests. The court described a number of different product liability theories and stated that under Louisiana law strict liability could be based on any one of the theories. Of the risk-utility test, it wrote: "Other tests may have their own merits in different contexts. We are convinced, however, that the risk-utility test is best for determining whether a product is unreasonably dangerous per se." The court defined the risk-utility test clearly: "A product is unreasonably dangerous per se if a reasonable person would conclude that the danger-in-fact of the product, whether foreseeable or not, outweighs the utility of the product." The court wrote that under the risk-utility analysis, liability attaches irrespective of the manufacturer's intent or whether it was scientifically possible to reduce the risk. It also noted that liability might be established under other tests as well, including the consumer expectation test, and that the court was not to select a single test for a particular case, stating that the "plaintiff may elect to try his case upon any or all of the theories of recovery."
Ten months after the Louisiana Supreme Court handed down that decision, two handgun cases reached the Court of Appeals of Louisiana, Second Circuit. In one case plaintiff was shot deliberately and rendered a paraplegic; in the other plaintiff was the innocent victim of someone else's grossly negligent horseplay. Plaintiffs sought recoveries based on products liability under the risk-utility test. Based exclusively on the Fifth Circuit's decision in Perkins, the Louisiana Court of Appeals held that plaintiffs had no cause of action. "In so determining, we are mindful of the Louisiana Supreme Court's recent exposition on per se unreasonably dangerous products," wrote the court. But it added without explanation: "We find nothing in that opinion which assists the position of plaintiffs here." [Page 1133]
The second prong of the Fifth Circuit's opinion in Perkins was the court's inference that, because handguns had not been banned, the legislature did not consider them to be unreasonably dangerous. Although not right or wrong in any absolute sense, this rationale is questionable in view of the fact that the courts¾in Louisiana as well as in common law jurisdictions¾have maintained the primary responsibility for the development and evolution of tort law. The Louisiana courts have been particularly explicit on their responsibilities in this area. In a case dealing with strict liability issues, the Louisiana Supreme Court wrote that "the judge is called upon to decide questions of social utility that require him to consider the particular case in terms of moral, social and economic considerations, in the same way that the legislator finds the standards or patterns of utility and morals in the life of the community."
Indeed, the entire field of products liability law was developed by the courts¾from MacPherson v. Buick Motor Co., to Henningsen v. Bloomfield Motors, to Greenman v. Yuba Power Products, to decisions of the present day. Of the thirty-eight American jurisdictions that have explicitly adopted Section 402A, thirty-three have done so by case law, Louisiana among them.
The Fifth Circuit's reasoning contrasts sharply with a 1977 decision by the Supreme Court of Michigan. In the Michigan case, a young boy lost an eye when he was struck by a pellet fired from a playmate's slingshot. The boy's representative sued the manufacturer, wholesaler and retailer of the slingshot. Defendants argued that the court could not find for plaintiff without performing a "legislative task" and "making a value judgment" that slingshots should not be sold to children. The court observed that the argument "does not take into account that however the Court decides the case it in effect makes a value judgment." If the court were to affirm a directed verdict for defendants, it would in effect decide that the societal importance of ready-market access to slingshots transcends the interest of protecting persons from the risks of [Page 1134] harm. If the court were to allow the issue to be decided by a jury, it would decide that ready market-access is not so important as to be entitled to absolute protection. "However the Court decides the case," it wrote, "it necessarily makes a choice, even if the Legislature may later make a different choice." The court concluded:
Since reasonable persons can differ regarding the balance of risk and utility (the reasonableness of the risk of harm) and since there is no overriding policy based on social utility of maintaining absolute access to slingshots by children, we reverse [the directed verdict for defendants] and remand for a new trial.
The Louisiana handgun cases are troubling. Despite a body of law that clearly and explicitly adopts the risk-utility test, the Fifth Circuit unaccountably maintained that the state courts did not in fact use it. Subsequently, the Louisiana Supreme Court handed down a major decision that reaffirmed Louisiana's use of the risk-utility test and left no room for arguing that the risk-utility and consumer expectation tests were being confused. Nevertheless, a Louisiana appellate court later dismissed two cases solely on the basis of the Fifth Circuit's previous ruling.
As a second basis for its decision, the Fifth Circuit attempted to deduce what a majority of state legislators believed. It is, at best, a dubious practice to speak for a legislature that has not itself spoken. It is one thing to discern legislative intent from legislative materials¾if not statutes, at least resolutions, committee reports or remarks made during legislative sessions. It is quite another to infer legislative intent from nothing at all. Moreover, declining to decide issues that are traditionally within the purview of the courts is an abdication of judicial responsibility.
The Louisiana cases are perplexing¾but they are not alone.[Page 1135]
To date there have been three product liability handgun cases under Illinois law, all of which occurred in a span of six months in 1984 and 1985.
The first was decided by an Illinois appellate court. Plaintiff was shot in a Chicago tavern by an intoxicated patron. He argued that Smith & Wesson had a duty to "prevent the sale of its handguns to persons who are likely to cause harm to the public." In a short opinion, the court held that no Illinois case law imposed "a duty upon the manufacturer of a non-defective firearm to control the distribution of that product to the general public."
Less than a month later, the Seventh Circuit handed down a decision in a case in which one plaintiff had been killed and another wounded in a handgun shooting. The court held that the plaintiffs could not maintain a products liability action against the manufacturer under Illinois law for three reasons. First, said the court, products liability requires some sort of defect. "A nondefective product that presents a danger that the average consumer would recognize does not give rise to strict liability," it wrote. Second, citing the decision of the United States District Court for the Eastern District of Louisiana described above, the court concluded that the right to bear arms provision of the Illinois constitution and the absence of legislation banning handguns provide "a strong indication that handguns should not be considered unreasonably dangerous." Third, the court held that criminal misuse of a handgun constitutes an unforeseeable, intervening cause that relieves a manufacturer of liability.
A few months later, another state appellate court handed down a decision in two consolidated cases. In each, the plaintiff had been shot and killed with a handgun. The court held that there was no products liability cause of action because Illinois used the consumer [Page 1136] expectation test, not the risk-benefit test. Moreover, wrote the court, a risk-benefit analysis would reach the same conclusion because "in light of such factors as the gravity and likelihood of danger, the feasibility of safer alternative designs, the financial cost of improved design, and the adverse consequences of an alternative design . . . the benefits of the challenged design outweigh the risk of danger inherent in such design." This rationale is similar, if not identical, to the first of the three bases stated by the Seventh Circuit.
It is, at best, misleading to say that Illinois had not adopted the risk-utility test. Although it had not done so expressly, the Illinois Supreme Court had used risk-benefit type analyses often enough to lead authorities to conclude that it had adopted the test implicitly. Writing in the Illinois Bar Journal in 1982, one commentator addressed this question at length and concluded that Illinois had in fact adopted both the risk-utility and the consumer expectation tests. He pointed to a string of four cases in which the Supreme Court of Illinois employed a risk-utility type of analysis. Based on the same cases, an Illinois court of appeals has concluded, "that at least some aspects of the danger-utility test are in operation in Illinois."
It may not be possible to state unequivocally whether or not Illinois adopted the risk-utility test, but it can be said with some degree of certainty that it had not rejected that test. In light of this, the appellate court's dismissal of two consolidated handgun cases with the statement that Illinois has adopted the consumer expectation test, and not the risk-utility test, at best brushes away serious questions with the back of the hand.
Besides the line of cases in which the Illinois Supreme Court employed a risk-utility type analysis, general principles of Illinois products liability law supported the use of the risk-utility test in handgun cases. Eschewing application of rote definitions and formulations, Illinois has applied products liability flexibly to serve the policies of [Page 1137] the doctrine. When deciding products liability cases, Illinois courts often analyze a particular case in light of the purposes of the law. The Illinois courts have declared that a fundamental purpose of products liability is to place the loss "on those who create the risk and reap the profits by placing a defective product in the stream of commerce," regardless of negligence. Another underlying policy is that "the public interest in human life and health requires protection of the law."
The second basis of the Seventh Circuit's decision is that, taken together, the right to bear arms provision in the Illinois constitution and the absence of a legislated handgun ban indicate that handguns are not unreasonably dangerous as a matter of public policy. This reasoning is similar to one of the rationales of the Fifth Circuit, discussed above in the Louisiana section. With respect to the right to bear arms provision, the Seventh Circuit has held that even an absolute ban on handguns does not violate the Illinois Constitution. In addition, Circuit Judge Richard D. Cudahy wrote in a concurring opinion in the Seventh Circuit handgun case:
The imposition of strict liability on the manufacturer or seller of handguns should not be viewed as an attempt to drive handguns from the market¾for the courts, an improper goal. Rather, it is an effort to place the costs inherent in handguns on the users rather than on the victims.
The Seventh Circuit's last rationale¾that a defendant is relieved of liability by an unforeseen, intervening cause¾is the most perplexing of all. It is generally a plaintiff's own unforeseeable misuse that bars his recovery under Illinois law, not someone else's. Moreover, in Illinois, even a plaintiff's own misuse is not an absolute bar [Page 1138] to recovery; the trier of fact must make a comparative apportionment between plaintiff's misconduct and the defectiveness of the product.
Even more startling is the court's holding that, as a matter of law, criminal misuse of firearms is not foreseeable. This statement is indefensible. The thousands of murders, tens of thousands of injuries and millions of robberies and aggravated assaults that are committed with handguns every year make criminal use not only foreseeable¾but absent a change of major proportions¾inevitable. Although it is not foreseeable that a particular person will shoot another with a specific handgun, the legal concept of foreseeability has never required that kind of omniscience. Foreseeability refers to the ability to anticipate that certain types of events may occur; it does not mean the ability to predict a specific event. In the same month it handed down its handgun decision, the Seventh Circuit wrote:
In Illinois, product liability is predicated on injuries caused by products which are unreasonably dangerous when used in a foreseeable manner; the manner of use intended by the manufacturer is irrelevant. Where a particular use should be known to the reasonably prudent manufacturer such use cannot be labeled unforeseeable. Whenever there is a doubt as to the foreseeability of a particular use, whether the maker should have anticipated such use is an issue of fact.
The Seventh Circuit has also cautioned that misuse is not to be confused with abnormal or negligent use, and that misuse is only "a use that is not reasonably foreseeable to a reasonably prudent manufacturer."
Collectively the courts offered three rationales for the Illinois handgun decisions. The first consists of applying the consumer expectation test, rather than the risk-utility test, notwithstanding the fact that the Illinois Supreme Court did not reject the risk-utility test, and, in fact, leaned so heavily towards risk-utility that authorities concluded that it had adopted that test.[Page 1139]
The second rationale is based on an attempt to interpret public policy from the absence of a legislated handgun ban and a constitutional right to bear arms provision. It is hard to understand how a court can discern public policy from the absence of legislation, and it is harder still to understand how a constitutional provision that does not prohibit an absolute ban on handguns could reflect a policy against shifting losses from handgun victims to handgun suppliers. The third rationale is, at bottom, based on the view that the misuse of handguns is not foreseeable.
The Illinois courts have strained the law to reach a result. It is an unusual practice¾but not when the issue is handguns.
In 1983, the United States District Court for the District of Massachusetts was presented with a case involving an innocent bystander who was killed by a bullet from an automatic pistol. In language reminiscent of the Louisiana federal district court, the court wrote that the decedent's wife and children "have brought this suit not against the individual who shot the decedent but rather against the manufacturer" and distributor of the gun. The court dismissed plaintiff's claim for two reasons. First, the court essentially applied the consumer expectation test, observing "that death may result from careless handling of firearms is known by all Americans from an early age." Second, the court cited and adopted the Louisiana federal district court's inference that since handguns had not been banned, the state legislature did not consider them to be unreasonably dangerous.
Like Illinois, Massachusetts has not expressly adopted or rejected the risk-utility test. Massachusetts products liability law was originally based upon the law of implied warranties; its nomenclature and analysis is rooted in contract law. Despite this different evolution, the state supreme court has written that Massachusetts products liability law is now "congruent in nearly all respects with the principles expressed in the Restatement (Second) of Torts § 402A (1965)." There is nothing in the state's own case law to suggest that the risk-utility test would not be applied in an appropriate case, and Massachusetts considers products liability case law from other [Page 1140] states "to be a useful supplement to" its own body of law. In addition, a number of principles articulated by Massachusetts courts are consistent with a risk-utility approach. Under Massachusetts law, a "manufacturer must anticipate the environment in which its product will be used" and guard against reasonably foreseeable risks. The question of whether a defendant has "taken reasonable and appropriate steps to prevent injury lies within the province of the jury." Massachusetts has a strong policy of not interfering with the jury's prerogative to consider questions concerning the gravity of danger presented by a product and the social acceptability of its design.
The second basis of the court's decision¾the inference that the legislature does not consider handguns to be unreasonably dangerous¾is especially questionable in Massachusetts. In 1975, the legislature enacted legislation that subjected anyone convicted of carrying a handgun without a license to a mandatory one-year jail sentence, without the possibility of either parole or a suspended sentence. The state advertised this law with a vigorous public relations campaign in which the slogan, "Nobody can get you out," was used in television spots and on billboards. Licenses to carry handguns are issued restrictively; generally, no one can obtain a license unless he demonstrates a "good reason to fear injury." In light of this, the court might just as easily have inferred that the legislature determined that handguns are unreasonably dangerous. Or it may have let the jury determine the issue of whether handguns are unreasonably dangerous, particularly since Massachusetts has a policy of letting juries decide such issues. In Massachusetts, an inference that the legislature believes handguns not to be unreasonably dangerous is unjustified. It appears that Massachusetts borrowed this rationale from Louisiana despite its nearly blatant inapplicability. But then, courts are often in a hurry to dismiss handgun cases.[Page 1141]
Although this article deals with handguns, it is nevertheless useful to include a Pennsylvania case involving an AR-15¾a semi-automatic rifle manufactured by Colt Industries. The AR-15 is an "assault weapon" that can accommodate a magazine holding thirty rounds of ammunition and fire them in rapid succession. It is a variation of the M-16, which Colt manufactures for the armed forces.
In 1981, a woman purchased an AR-15 in Pennsylvania. The following year her common-law husband went on a shooting spree and killed thirteen people with the gun. Representatives of the victims asserted products liability claims against the retailer and manufacturer. The trial court dismissed those claims. "Although there are cases which recognize a design defect in a product because the risks of the product outweigh its benefits," wrote the court, "those cases are limited to products with an identifiable problem with design that would have made the product safer." The Superior Court of Pennsylvania affirmed, holding that the weapon was not defective and adding, "it is the province of the legislature to determine whether policy reasons support allowing a cause of action against the manufacturer, distributor and/or vendor of a firearm because of its dangerous propensities." The Pennsylvania Supreme Court denied a petition for allowance of appeal.
The trial and superior courts' rationales conflict with established principles of Pennsylvania law. The Supreme Court of Pennsylvania has held that the concept of defect "is not limited to its usual meaning, i.e., a fault, flaw or blemish in its manufacture or fabrication," and that a product that is unreasonably dangerous is also defective. That court has explicitly mandated that it is a judicial function to answer the question, "When does the utility of a product outweigh the unavoidable danger it may pose?," despite the fact [Page 1142] that a resolution involves social policy. The Pennsylvania courts have held that strict liability may be imposed on a number of products that cannot be made safer, such as asbestos, drugs and blood. [Page 1143]
Once again, applicable law is ignored when the product at issue is guns.
In a 1987 case, after the plaintiff was shot with a "Saturday Night Special"¾a cheap, short-barrelled handgun¾a Missouri trial court dismissed a products liability action against the manufacturer. The court of appeals affirmed, holding that the opposite result would constitute a court determination "that the misuse of such a product outweighs its social value."
While Missouri has not expressly adopted or rejected either the consumer expectation or the risk-utility test, it leans toward a risk-utility approach. In a decision reviewing both doctrines, the Supreme Court of Missouri noted that the consumer expectation test was disfavored by scholars and was increasingly being rejected by other jurisdictions, and it described that test as "a virtual stranger to Missouri's law of strict tort liability." The court noted that it had not yet "decided to travel or require plaintiffs to travel the path of risks and utilities," but nonetheless it made it clear that in design cases a product is deemed to be defective if it is unreasonably dangerous.  Indeed, it has described the concepts of unreasonable danger and causation as the "heart and soul of a strict tort liability design defect case."
The Supreme Court of Missouri has found, for instance, that an asbestos product was to be considered defective if a plaintiff established that it was unreasonably dangerous. In another Missouri case, a court held that a plaintiff, who was injured by a man who was taking a drug that induced violent behavior, had a cause of action against a pharmaceutical company that manufactured the drug. [Page 1144] The plaintiff was injured by a man who was taking the drug. Thus, a defendant who introduces an unreasonably dangerous product into the stream of commerce may be liable to innocent bystanders who are injured as a result. Under Missouri law, the concept of unreasonable danger must be "presented to jury as an ultimate issue without further definition." The court's role is limited to determining whether plaintiff has made a submissible case.
There was no doctrinal basis under Missouri law for taking the issue of whether handguns are unreasonably dangerous away from the jury. Two responses can be made to the court's observation that finding for plaintiff would constitute a determination that the misuse of handguns outweighs their social value. The first is that their misuse does in fact exceed their value. The second is that finding for the defendant is tantamount to determining that the value of handguns outweighs their cost.
In 1985, the United District Court for the District of Oregon dismissed a products liability claim by a man who was shot in the head by a prisoner during a jail break. The prisoner used a very small .22 caliber pistol that was disguised as a decorative belt buckle. Following the dismissal of his products liability claim, the plaintiff amended his complaint and proceeded instead under the abnormally dangerous activity theory. The federal district court certified a question to the Supreme Court of Oregon as to whether plaintiff had a cause of action under Oregon law. The state court answered in the negative. Although the Supreme Court of Oregon formally considered only the abnormally dangerous activity theory, the heart of its opinion appears equally applicable to the original products liability claim. The court wrote: " [T]o hold one [Page 1145] who designs, manufacturers and sells a nondefective product strictly liable for the sole reason that the subsequent use or misuse of the nondefective product carries a grave risk of harm which cannot be avoided by due care would amount essentially to the imposition of enterprise liability."
The court's statement contains two assumptions: that the product was not defective and that the manufacturer could not exercise due care and thereby avoid the harm. But each assumption is questionable.
The gun was not defective in the sense that it was broken, but Oregon law does not restrict the concept of defect in that fashion. Oregon has adopted the risk-utility test, and the Supreme Court of Oregon defines the concept of a design defect as follows: "A dangerously defective article would be one which a reasonable person would not put into the stream of commerce if he had knowledge of its harmful character. The test, therefore, is whether the seller would be negligent if he sold the article knowing of the risk involved." (original emphasis) Indeed, it is reversible error for a trial court to give a consumer oriented jury instruction under Oregon law; the trier of fact must weigh the social risks and utilities from the perspective of the reasonable seller.
The court's second assumption is that the seller could not have avoided the injury by using due care. But of course the seller has deliberately chosen to put the product into general circulation. The fundamental concept of the risk-utility approach is that a seller is responsible for selling a product that imposes disproportionate risks on society. Under Oregon law, therefore, the jury¾not the judge¾should have decided whether the reasonable seller would put into the stream of commerce this particular product: a small gun disguised as a decorative belt buckle.
To date the only state to impose strict liability on handguns ¾ temporarily, as it turned out ¾ was Maryland.
On March 30, 1981, John W. Hinckley, Jr. shot President Ronald Reagan, Press Secretary James Brady, Secret Service Agent Timothy J. McCarthy, and Police Officer Thomas Delahanty in Washington, [Page 1146] D.C. That same week, a few miles away in Maryland, a robber shot Olen Kelley, an assistant manager of a grocery store, in the chest. Unlike the assassination attempt on President Reagan, the Kelley shooting was a common crime; indeed, Kelley himself had been held up at gunpoint four times before. But the Kelley and Reagan shootings were similar in that they were each committed with a small, cheap¾in one case $40 and in the other $25¾handgun manufactured by Rohm Gesellschaft, a West German company, and assembled by its American subsidiary, R.G. Industries, Inc. (R.G.). It was estimated that R.G. sold about 350,000 "Saturday Night Specials"¾as inexpensive, small and easily concealable handguns are colloquially known¾in the United States each year.
Kelley sued R.G., and the case ultimately made its way to the Court of Appeals of Maryland, the state's highest court. It held that Kelley had no cause of action under either the theories of abnormally dangerous activity or products liability. With respect to the latter, the court decided that the risk-utility test was inapposite. "[T]his standard is only applied when something goes wrong with a product," it wrote. Nevertheless, the court held that sellers of Saturday Night Specials are strictly liable to their victims if the court determines the handgun was a Saturday Night Special, the shooting was a criminal act and plaintiff was not a participant in the criminal activity.
In reaching its decision, the court first cited its prior decisions to the effect that "the common law is not static" and that it is "subject to judicial modification in light of modern circumstances or increased knowledge." Next, it reviewed available literature and concluded that there is an identifiable category of handgun, the Saturday Night Special, that is particularly attractive for criminal activ- [Page 1147] ity and generally unfit for legitimate uses. "[T]he manufacturer or marketer of a Saturday Night Special knows or ought to know that he is making or selling a product principally to be used in criminal activity," wrote the court.
By imposing strict liability on Saturday Night Specials and not on all handguns, the court may have hoped to chart a moderate course. However, there are two problems with its approach. The first is a factual one: most handguns used in crime are not Saturday Night Specials. This problem might be rectified by instead categorizing handguns only by size, i.e., focusing on "Snub Nosed Specials" rather than "Saturday Night Specials," since, although many crime guns retail from $117 to $300, the vast majority of guns used in crime have barrels no longer than 2.5 inches. But there is a doctrinal problem as well: as previously demonstrated in this article, manufacturers and marketers of all handguns ought to know that their products will impose a far greater cost than a benefit on society.
In any event, the Kelley decision was short lived. Under pressure from both the gun lobby and gun control advocates, the state legislature enacted compromise legislation that overturned Kelley and prohibited the sale of Saturday Night Specials in Maryland. With N.R.A. support, this law was petitioned to a state-wide referendum. In an effort to defeat the law, the N.R.A. and an ad hoc committee, the Maryland Committee Against the Gun Ban, launched the most intensive political campaign in state history. Previously, the most money spent in any political campaign in Maryland was $3.3 million, which had been spent in the 1986 gubernatorial campaign. The N.R.A. and the ad hoc committee spent $6.6 million on media advertising, direct-mail, signs, brochures, campaign staff and the like. A group supporting the law spent three-quarters of a million dollars. Despite the N.R.A.'s extensive lobbying, voters approved the law by a 58% to 42% margin on November 8, 1988. [Page 1148]
The Kelley decision stands in stark contrast to virtually all other handgun cases. Most recently, the District of Columbia Court of Appeals rejected a similar claim against R.G. brought by Thomas Delahanty, the police officer who was wounded when John Hinckley tried to assassinate President Reagan.
Nevertheless, Kelley is significant because it presents a different model. In Kelley, the Maryland Court of Appeals recognized that the case raised common law issues that the court had the responsibility to decide. Its decision did not deprive the legislature of its opportunity to act. The legislature overturned the court, and the voters had an opportunity to overturn the legislature. It was appropriate that the issue was finally decided in the political arena, but it was equally appropriate for the court to fulfill its judicial responsibility to determine the issue before it without regard to how the legislature or voters would react. That is the least political approach a court can take.
III. SEARCHING FOR EXPLANATIONS
Handgun product liability cases have resulted in a curious phenomenon. Court after court has twisted and winded its way out of imposing strict liability on handguns. The courts have not done this gracefully; they have misconstrued and distorted legal principles to reach those results. Perhaps they have not done so consciously, but they have done so nonetheless. The phenomenon is both fascinating and disturbing. What is it that is driving the courts to such lengths? It is not the law that accounts for the decisions in these cases. Therefore, other forces are at work.
Any attempt to analyze judicial decision-making in extra-legal terms is a tricky business. It is as if one leaves a brightly lighted [Page 1149] law library and sets off into a dark night. Social forces are amorphous and ill-defined; political and psychological motives are often veiled. In a sense, one can only search and never find, for there is no way to irrefutably establish whether a particular hypothesis is valid. Moreover, the world is complex and it is more likely that the phenomenon results from a confluence of forces than from one alone. The purpose of this section, therefore, is not to offer a single explanation but to consider several.
A. Political Issues
Any search must necessarily begin with what the courts themselves have to say. Judges may not be fully conscious of all the factors influencing them or they may misapprehend some of their own motives, but they may tell us much nevertheless. The rationale that the courts most often repeat is that only the legislature should decide whether or not to impose strict liability on handguns. [Page 1150] However, in the main, products liability has been a creature of the courts which (with the assistance of legal scholars) conceived it, gave it birth and nurtured its development. Courts decide whether to apply strict liability to the whole spectrum of products¾foods, medicines, blood, clothes, toys, tools, machines, and automobiles, to name only a few. Why are these products within the court's realm and guns within the legislature's?
The ready answer is that guns are a political issue, but what does that really mean? There are, of course, those who vigorously advocate more¾or less¾rigorous gun control laws. Political interest groups are aligned on both sides of the issue; political action committees contribute money to candidates favoring one or the other view; legislative battles are fought. But the same may be said for many other products that are not commonly thought of as political issues. This point is illustrated by the chemicals chlordane, heptachlor, aldrin and dieldrin, a group of organochlorine pesticides that are useful because they are relatively inexpensive and particularly effective against termites. However, according to some, they are also highly carcinogenic and mutagenic. Many argued that the risks that these chemicals imposed on society outweighed their benefits and that they should be banned. Others contended that the risks were exaggerated and the chemicals' benefits in [Page 1151] preventing billions of dollars of property damage by termites and other pests exceeded their risks.
Both sides waged a full-scale political war over the issue. Advocacy groups lobbied regulatory agencies and legislatures to ban use of the chemicals, and business groups opposed those efforts. The Environmental Defense Fund petitioned the EPA to ban aldrin and dieldrin, and for years administrative litigation within EPA was waged between environmental groups and business interests. An ad hoc political interest group called People Against Chlordane was formed and lobbied for bans on the chemicals. Manufacturers, pest control operators and trade groups lobbied against the proposed bans. Proponents of banning these pesticides were successful in some states, unsuccessful in others. An alliance of environmental and health groups formed the National Coalition Against the Misuse of Pesticides (NCAMP) to press more effectively for bans on these and other pesticides. Books dealing with the issue in distinctly ideological terms were published. Bills to ban the pesticides were introduced in Congress and sparks flew between sponsors and their opponents. Newspapers published editorials and op-ed articles on the subject. In a letter to pest control operators, Velsicol Chemical Corporation (the manufacturer of chlordane and heptachlor) wrote: "We are actively defending chlordane on every front. We have never had a stronger presence in the legislative, regulatory or legal arenas. . . . We have also produced a chlordane information kit for homeowners, the media and others. . . and we have already distributed more than 50,000 kits." Ultimately the EPA banned further sale or commercial use of the chemicals. [Page 1152]
Organochlorine pesticides are not generally thought of as products that generate political disputes; nevertheless, the battle over these chemicals was just as political as the battle over gun control. Gun control may be a bigger issue in terms of the number of political activists on both sides, the number of media stories about the issue, the extent to which political pollsters survey public opinion on the issue and the like, but it is qualitatively no more political than the pesticide issue. Yet no court has dismissed products liability claims against the manufacturers and distributors of these pesticides on the grounds that it is a legislative rather than a judicial question, and it is nearly inconceivable that any court would ever do so.
There is no way to categorize some products as raising political issues and others as not doing so. Whenever some people advocate banning a particular product they raise a political issue. The organochlorine pesticides are but one example of products that have raised political issues, but been the subject of product liability actions nonetheless. Some others¾asbestos, the Dalkon Shield, [Page 1153] tampons,  DES,¾would be candidates for a Products Liability Hall of Fame. The courts have not tried to avoid deciding these cases on the grounds that they raised political issues. Nor could they, for if they did they would have in effect created a rule exempting controversial products from products liability law. Such a rule would be an extreme paradox; it would mean that strict liability would not apply to the very worst products, that is, products that are so socially injurious as to have provoked public outcries.
Nevertheless, one can understand the reluctance of the courts to hear cases involving controversial products. At first blush, such cases threaten to dissolve the difference between the courtroom and the legislative committee hearing room. The dispute between the private litigants seems submerged below the larger public issue of whether a particular product's social utility outweighs its costs. The judge facing such a case foresees a parade of expert witnesses who represent essentially political points of view. In a handgun case, she may expect criminologists and sociologists testifying about how handguns contribute to crime, injury, suicide and inflated medical costs. She may anticipate that other expert witnesses will be called to testify about how useful handguns are for self-defense or how many people enjoy them recreationally. She cannot forbid such testimony because it is directly relevant to the issue of whether the product's social cost outweighs its utility. She fears a dam bursting and the individual case being swept away in a political debate.
On closer examination, this fear largely evaporates. A private dispute is no less genuine because it intersects with a public issue. Handgun cases are not sham cases designed merely to bring a political issue to the courts; they are genuine disputes between private parties. In a typical case, for example, a plaintiff who was shot with a handgun during the holdup of a convenience store might sue the handgun manufacturer. He argues that the manufacturer knew, or should have known, that its guns would be used principally to assault and shoot people like him. He maintains that the defendant is making a profit at his expense, and he asks the court to shift the cost [Page 1154] of his injury from himself to the defendant. He may also contend that the defendant's conduct is outrageous and request punitive damages. The defendant replies that it had no reason to know that its products would be used principally to harm innocent people. The issue revolves around how handguns are principally used, that is, whether their social cost outweighs their utility. This is not an abstract public issue drawn into a private dispute; it is the core of the private dispute. Plaintiff's grievance stems from the very notion of how handguns are principally used. He believes that the defendant is responsible because it has put into commerce a product that it knows will cause more harm than good. That is, a plaintiff is likely to believe defendant's conduct to be culpable in a moral sense, not merely liable in a technical sense. And so, before the court stands two private litigants: an injured plaintiff who asserts that a defendant has caused his injury, and the defendant who refutes that assertion.
A court may take some solace from the fact that the issue is not whether handguns should be banned. That indeed would be a question for the legislature. The risk-utility test may seem like that issue, but there is an important, if subtle, distinction. For example, in determining whether to ban handguns, a legislature might hear testimony about how many people are employed by handgun manufacturers and distributors and how that industry contributes to the gross national product. A court would not hear such testimony.
Expert witnesses will of course testify in handgun product liability actions, but that does not convert the courtroom into the legislative hearing room. It is now routine for expert witnesses to testify in all types of cases. The fact that a sociologist may testify about how handguns are used in society should, after reflection, trouble judges [Page 1155] no more than than having engineers testify as to why a particular product failed. Moreover, judges have tools to limit testimony and to bring before the court a great deal of relevant information without unnecessarily long oral testimony.
Courts may fear the "political thicket" but there is no doctrine that permits them to abstain from deciding cases merely because they involve issues that are debated in the political realm. While judges may be reluctant to involve the courts in what, at first blush, appear to be political issues, it is unlikely that this reluctance alone explains the handgun decisions. After all, the courts have not avoided the issue. They have not abstained in handgun cases; they have decided them. The rhetoric of avoiding a legislative issue notwithstanding, the courts have in effect granted handgun manufacturers immunity from the product liability laws. Indeed, the courts cannot avoid the issue because they are being asked to decide common law claims. Handgun plaintiffs have not been asking the courts to make new law; they merely have been asking to have their cases decided under existing law.
A reluctance to enter the political thicket does not explain why¾when forced into the thicket¾the courts have chosen to decide [Page 1156] cases in ways inconsistent with applicable law. But perhaps the courts are saying something slightly different from what they really mean: handguns do not raise a political issue; they raise issues of politics. Although the courts have no legal reason to reach their decisions, they may have strong political reasons to do so.
B. Issues of Politics
Although handguns are not qualitatively more political than other products, they are a hotter political issue. More people are engaged in the debate. Generally, products such as organochlorine pesticides, asbestos, and DES involve battles between manufacturers and environmental or health groups; few of these products have large consumer constituencies. But handguns do; it is estimated that one out of every four households in the United States owns a handgun.
Moreover, an organized gun lobby is led by the National Rifle Association (N.R.A.), which has long been considered one of the nation's most powerful lobbies. The N.R.A. has 2.8 million members and collects $77.6 million in annual revenue. Its power, however, does not come so much from the number of its members as it does from their zealousness. When gun control legislation is proposed, N.R.A. supporters bombard legislators with letters, phone calls and personal visits, and they contribute millions to the N.R.A.'s political action committee. The intensity of their passion is unquestioned, but the reason for it is something of an enigma. An N.R.A. official recently told a reporter, "You would get a far better understanding if you approached us as if you were approaching one of the great religions of the world." Others have speculated that this passion is more sexual than religious. Arthur M. Schlesinger, Jr. has written that the hysteria of gun enthusiasts "only strengthens the psychiatric suspicion that men doubtful of their virility cling to the gun . . . as a symbolic phallus and unconsciously fear gun control as the equivalent of castration." But [Page 1157] whatever the underlying motivational factors might be, the fact remains that the zeal and commitment of the gun lobby is extraordinary.
Judges know that a decision applying strict liability to handguns is not going to go unnoticed by the gun lobby. There are at least two reasons why judges may find that serious cause for concern. The first is a personal one. Most state judges are elected, and the potential consequences to a judge who must retain her seat through reelection are obvious. Even judges who serve in an appointive system may be affected. Some state judges must periodically be reappointed. Many judges aspire to a seat on a higher court, and they must be concerned about pressure that might be brought to bear on those who select judges for those benches. On more than one occasion the N.R.A. has lobbied against nominees to the federal bench. During the confirmation process some conservative senators tried to ascertain how judicial nominees felt about gun control issues. In 1983, President Reagan withdrew his nomination of a candidate to a court of appeals because the nominee made small contributions to pro-gun control and pro-choice groups.
An angry gun lobby might stigmatize a judge by calling him a "judicial activist." Lawyers and legal scholars may recognize a decision that imposed strict liability on handguns as being consistent with existing product liability law, but laymen are more likely to perceive it as a new legal rule. It has become increasingly popular for politicians to decry the evils of judicial activism, and judicial candidates often feel that they must portray themselves as practicioners of "judicial restraint" who are sensitive to the evils of "legislating from the bench." This type of posturing became high art during Supreme Court confirmation hearings, practiced by both the nominees and the senators themselves. [Page 1158]
Second, judges may be at least equally worried about institutional ramifications. The courts may be concerned that handgun liability will fuel what is already a powerful attack on judicial control over tort law. The attack began in the 1970s with a number of insurance "crises." First, automobile insurance premiums began to rise dramatically. The insurance industry blamed rising premiums on a litigation explosion and urged states to adopt no-fault insurance. Next, medical malpractice insurance premiums skyrocketed. In some instances carriers stopped writing malpractice policies, and some physicians even left practice. During the same period businesses began to complain that a litigation explosion was driving up the cost of products liability insurance, which in turn was driving up the cost of consumer goods. They pointed particularly to the growth of mass tort litigation (e.g., Dalkon Shield, DES, asbestos and Agent Orange cases) as a source of the problem. There was, and still is, much debate about whether the crises were genuine, manufactured by the insurance industry, or some combination of the two. [Page 1159] In any event, an alliance of insurance, medical and business groups used the perceived crises to launch an attack on tort law.
This coalition cleverly styled itself as a "tort reform movement." In this way, its supporters sought to imply both a progressive and public interest spirit and conceal their own economic self-interest. In 1986, the coalition formed the American Tort Reform Association (ATRA) to lobby more effectively for pro-defendant changes to state tort law generally and to product liability laws specifically.  One of ATRA's principal targets is state product liability laws. Today ATRA is a formidable alliance. Its more than 400 members include stalwarts of the medical establishment, the insurance industry, petrochemical companies, manufacturers, pharmaceutical firms, and others, including the Sporting Arms & Ammunition Manufacturers Association, but not yet the N.R.A. [Page 1160]
ATRA and the tort reform alliance have tried to paint a picture of a crackbrained, runaway judiciary by telling stories of bizarre lawsuits. A favorite story concerns a case in which a woman received an award of $986,000 to compensate her for the loss of her psychic powers. The story generally leaves out the fact that the judge overturned the jury's verdict. President Reagan gave one story particular notoriety when he recounted it in a speech. The story is about a man in a telephone booth who was injured when the phone booth was struck by a car driven by a drunk driver. According to the story, the man sued and recovered from the telephone company rather than the drunk driver. After President Reagan's speech, the plaintiff (who had lost his leg in the accident) told a congressional committee that he watched the car veer out of control and tried helplessly to get out of the way but the door to the telephone booth jammed. The phone booth was near a busy intersection where there had been a number of prior accidents. Another often-repeated story is about a burglar who sued a property owner because he was injured when he fell through a skylight on a roof during a burglary. In the real case, the plaintiff was not a burglar at all but a high school student who was on the roof of the high school to get a floodlight for the basketball court. He fell through the skylight because it had been covered with tar and he could not see it. The school knew that workers and students occasionally went on the roof and in fact a similar accident had previously occurred.
But reality notwithstanding, these stories have been repeated enough to have become part of the myth of a whacky judiciary. ATRA's strategy has been effective. Portions of its agenda have [Page 1161] been enacted in forty-two states, and tort reform continues to be a political issue. The 1988 Republican Party platform calls for "a reasonable State and federal product liability standard that would be fair to small business" and the return of a "fault-based standard to the civil justice system."
It is not possible to measure the impact of all of this on the courts, but it seems unlikely that the courts are completely unaffected. Tort reform is a direct institutional assault on the judiciary; it seeks to have the legislatures overturn case law and restrict the courts' authority over tort law. In this atmosphere it is only natural for judges to wonder about the prudence of handing down a decision that offends powerful interests, particularly when the decision can be portrayed as judicial activism.
With respect to the question of whether the courts are afraid of offending politically powerful interest groups, it may be instructive to look at the tobacco decisions. Cigarettes egregiously fail a risk-utility test, but they are defended by a powerful constituency. About 30% of all Americans smoke cigarettes, and a million Americans are employed by the tobacco industry. Tobacco opponents won their first major victory in 1965 when Congress enacted the Federal Cigarette Labeling and Advertising Act (the Cigarette Act), which required warning labels on cigarette packages, and in 1971, they achieved a second victory when Congress banned cigarette advertising on radio and television. On the other hand, the tobacco industry has succeeded in having Congress grant substantial federal subsidies to tobacco growers and exempt tobacco from several regulatory acts, including the Consumer Products Safety Act.
Battles have also been fought in the courts and, until recently, the tobacco industry prevailed in every product liability case brought against it Its most potent weapon has been the assumption of risk defense because¾unlike handgun victims¾smokers have gen- [Page 1162] erally elected to take the risks the led to their injuries. In some cases courts held that plaintiffs smoked cigarettes before the health risks were known and the manufacturer could not have reasonably foreseen the danger; in others, courts held that the plaintiff started smoking after the advent of warning labels and therefore had assumed the risk. Five federal circuit courts of appeal have held that Congress preempted state tort claims based on failure to warn when it enacted the Cigarette Act, although one state supreme court has held the reverse.
Only a few cases have been allowed to proceed to jury verdicts. Defendants won all of them until June 1988 when a jury awarded a $400,000 verdict to the husband of a deceased cigarette smoker in the case of Cipollone v. Liggett Group, Inc. The case received wide publicity, and scholars wondered whether the floodgates had opened on tobacco product liability suits. But plaintiff's victory was short lived; judgment was reversed on appeal and remanded for a new trial. The verdict was reversed in part because of problems in the interrelationship of the comparative fault doctrine and the fact that plaintiff's failure to warn claims were barred after the warning labels appeared on cigarette packages in 1965. The district court dismissed plaintiff's risk-utility claim because it found that newly enacted state tort reform legislation precluded liability if the ordinary consumer knew of the unsafe, inherent characteristics [Page 1163] of the product. The court of appeals reversed, holding that it was for the jury to decide whether the risks inherent in smoking cigarettes were known to the ordinary consumer prior to 1966, and, as of this writing, an appeal is pending before the Supreme Court. Thus, as of this writing no product liability case has yet resulted in a judgment for plaintiff that has survived appeal.
There are many significant differences between handgun and cigarette cases. One profound difference involves the assumption of risk issue. In the main, smokers have elected to take whatever risks are inherent in smoking while handgun victims have not, (except, of course, those who are injured with their own guns). In the case of cigarettes, therefore, there are more plausible legal justifications for the courts' decisions than there are for handguns. It is beyond the purview of this article to examine the contours of the assumption of the risk defense in cigarette cases or to analyze whether the courts are "right" or "wrong" in those cases. Nevertheless, there are some intriguing parallels between the handgun and tobacco cases. Both handguns and tobacco have powerful supporters that courts may be reluctant to offend; and, in both instances, the courts have generally taken the position that the legislature intended to protect the product from liability despite the absence of any express legislative intent to that effect. The tobacco decisions have been more mixed than handgun cases, and the recent trend seems to favor plaintiffs. But since Cipollone and the recent decisions holding that the Cigarette Act does not preempt all tort actions, there have been reports that the tobacco industry is joining with the tort reform coalition to mount an intensified lobbying campaign for restrictive product liability legislation. It remains to be seen whether this [Page 1164] intensified lobbying will be successful legislatively¾or judicially. Perhaps the courts will view the legislative lobbying by the tobacco industry with alarm and the recent plaintiffs' trend will come to an abrupt end.
Three decades ago legal scholars and judges led "the assault on the citadel"¾an attack on the doctrine of privity of contract, which had previously prevented injured consumers from suing manufacturers. The citadel ultimately fell and the law of products liability was born. Since then, this nascent field has matured and developed. It is now an accepted part of American common law, and many believe it is a great success story about which the courts can be justly proud. However, it would have been naive to not anticipate a counterattack, and, indeed, one is well underway. This time, however, the weapons are not so much ideas as they are propaganda and PAC contributions, and the battlegrounds have shifted from the courthouses to the state capitols.
It is not possible to reach a definitive conclusion about whether the courts want to avoid imposing strict liability on handguns because they are afraid of provoking gun enthusiasts and prompting greater tort reform efforts. At this juncture, one can only suspect that the two may be related and hope that further research will throw more light on the subject. But, as a review of the cases has shown, the courts are, going to extraordinary lengths to exempt handguns from the law of products liability. In view of the enormous cost that handguns impose on victims and society-at-large, that is a most unfortunate result.
* Partner, Mesirov, Gelman, Jaffe, Cramer & Jamieson, Philadelphia, Pennsylvania. A.B. 1970, J.D. 1972, Syracuse University. Member, Board of Directors, The Center to Prevent Handgun Violence. The views set forth in this article are solely those of the author and do not necessarily reflect those of the Center to Prevent Handgun Violence or of any other organization.
1. See infra, text accompanying notes 39-84. See also P. SHIELDS, GUNS DON'T DIE¾PEOPLE DO 174-75 (1981); Sugarman, The NRA is Right, WASH. MONTHLY, June 1987, at 11.
3. Kennedy, The Handgun Crime Control Act of 1981, 10 N. KY. L. REV. 1, 6-7, n.30 (1982).
5. See, e.g., P. SHIELDS, supra note 1, at 116-22. Lacayo, Under Fire, TIME, Jan. 29, 1990, at 16; Sullivan, Spending With Both Barrels, SPORTS ILLUSTRATED, Aug. 7, 1989, at 66; Gergen, Gest, Klein, Secrets Behind the Gun Lobby's Staying Power, U.S. NEWS & WORLD REPORT, May 8, 1989, at 26; Magnuson, Why Wait a Week to Kill?, TIME, Sept. 26, 1988, at 26; Expensive Lobbying Pays Off for Rifle Association, N.Y. TIMES, Sept. 22, 1988, at A32, col. 1.; Bruce-Briggs, The Great American Gun War, 45 PUB. INTEREST 37, 38 (1976).
6. For polling data, see LOUIS HARRIS, INSIDE AMERICA 144-45 (1987).
7. Although products liability has been the principal theory asserted by most handgun plaintiffs, other theories of liability have also been litigated. Among them, in particular, is the doctrine of abnormally dangerous activity. See RESTATEMENT (SECOND) OF TORTS §§ 519-24A. In order to maintain a clear focus, however, this article restricts itself to the law of products liability, and reviews of case decisions are generally limited to the parts of the opinions that deal with products liability issues.
8. 32 N.J. 358, 161 A.2d 69 (1960).
9. Of the 53 American jurisdictions (the fifty states plus the District of Columbia, Puerto Rico and the Virgin Islands), 38 have adopted § 402 of the RESTATEMENT (SECOND) OF TORTS¾33 by case law and five by statute. Six jurisdictions have adopted the "Greenman Doctrine" enunciated in Greenman v. Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697, 13 A.L.R. 3d 1049 (1963), that provides: "A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being." 59 Cal. 2d at 62, 377 P.2d at 900, 27 Cal. Rptr. at 700, 13 A.L.R. 3d at 1054. The remaining jurisdictions have developed their own theories, all of which reach similar results. See, 2 AM. LAW PROD. LIAB. 3d § 16:9 (1987) (for a complete list of states adopting § 402A by judicial decision, with case citations); id. at § 16:24 (for states adopting § 402A by legislation, with statutory citations); id. § 16:13 (for states adopting the Greenman doctrine, with case citations); id. at §§ 16:18-27 (for other jurisdictions).
10. See Wade, On the Nature of Strict Tort Liability for Products, 44 MISS. L.J. 825, 830 (1973).
11. Id. It should be noted that the section was originally to apply only to food.
12. Id., see especially n.24. Professor Wade was a member of the council and an adviser for the Restatement.
13. RESTATEMENT (SECOND) OF TORTS § 402A comment g (1965).
14. PROSSER AND KEETON ON THE LAW OF TORTS § 99 at 698-99 (Keeton, 5th ed. 1984); Keeton, The Meaning of Defect in Products Liability Law¾A Review of Basic Principles, 45 MO. L. REV. 579, 588-92 (1980); Wade, supra note 10, at 833-34. See also Note, Adding a Risk/Utility Analysis to the Consumer Expectation Test in Design Defect Cases, 28 ARIZ. L. REV. 459, 461-62 (1986).
15. 275 F.Supp. 373 (W.D. Pa. 1967).
16. Id. at 378.
17. Id. at 379.
18. Id. at 380.
19. 60 F.2d 737 (2nd Cir. 1932).
20. Id. at 740.
21. See, e.g., Wade, supra note 10, at 837-38 (1973).
22. Turner v. General Motors Corp., 584 S.W.2d 844 (Tex. 1979).
23. Id. at 846.
24. Id. at 851.
25. Id. at 847.
26. 1 AM. LAW PROD. LIAB. 3d § 1:50 (1987).
27. See generally I. SELIKOFF & D. LEE, ASBESTOS AND DISEASE (1978).
28. Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1087 n.20 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974).
29. 493 F.2d at 1087.
30. Id. at 1089.
31. Cunningham v. MacNeal Memorial Hosp., 47 Ill. 2d 443, 266 N.E.2d 287 (1970)(hepatitis); Kozup v. Georgetown Univ., 663 F.Supp. 1048 (D.D.C. 1987)(AIDS); Brody v. Overlook Hosp., 127 N.J. Super. 331, 317 A.2d 392 (1974), aff'd, 66 N.J. 448, 332 A.2d 596 (1974)(hepatitis). However, many states have either statutes exempting blood suppliers from strict liability or cases holding that a blood transfusion is a service, rather than a product, and products liability law therefore doesn't apply. See Fisher v. Sibley Memorial Hosp., 403 A.2d 1130 (D.C. App. 1979), and cases cited at notes 3-4 therein. These approaches seem unnecessary because, in view of the high social utility of blood transfusions, it would be sensible to hold that blood handled and tested under existing scientific knowledge is not unreasonably dangerous as a matter of law because its utility outweighs its risk.
32. Rinehart v. International Playtex, Inc., 688 F.Supp. 475 (S.D. Ind. 1988).
33. Hawkinson v. A.H. Robbins Co., Inc., 595 F.Supp. 1290 (D. Colo. 1984).
34. Hubbard-Hall Chemical Co. v. Silverman, 340 F.2d 402 (1st Cir. 1965).
35. See, e.g., Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R. 2d 821 (1959).
36. See, e.g., Dixon v. Bell, 5 M. & S. 198, 105 Eng. Rep. 1023 (1816) (defendant liable for entrusting gun to minor); Franco v. Bunyard, 547 S.W.2d 91 (Ark. 1977) cert. denied, 434 U.S. 835 (dealer may be liable for selling pistol to fugitive); Olson v. Ratzel, 89 Wis. 2d 227, 278 N.W.2d 238 (1979) (dealer may be found negligent for selling gun to minor); Cullum & Boren-McCain Mall, Inc. v. Peacock, 592 S.W.2d 442 (Ark. 1980) (despite absence of state legislation regulating sale of handguns, dealer may be liable for selling handgun to suspicious purchaser). But see Robinson v. Howard Bros. of Jackson, Inc., 372 So. 2d 1074 (Miss. 1979) (dealer not liable for selling pistol to minor).
37. Wheeler v. John Deere Co., 862 F.2d 1404, 1412 (10th Cir. 1988).
38. The hypothetical is somewhat analogous to Katko v. Briney, 183 N.W.2d 657 (Iowa 1971). In that case, the owner of an unoccupied house was upset by a number of break-ins at the property. He posted "no trespassing" signs outside and rigged a shotgun trap inside. When an intruder opened a door inside the house, a wire pulled the trigger of a 20-gauge shotgun pointed at the door. Id. at 658. The court held that this was tortious and it permitted a burglar to recover for injuries he sustained by the shotgun blast. Id. at 662. The hypothetical is significantly different than Katko, however, because it posits injuries to completely innocent victims. In that regard, the hypothetical is more germane to the typical handgun case.
39. This is a calculation of the average annual number of handgun murders for the years 1979-87. See U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT: HANDGUN CRIME VICTIMS 1 (June 1990). The number of handgun murders varies year to year, and even for a particular year the number of murders attributed to handguns may differ from report to report depending on the statistician's methodology. For example, according to FBI Uniform Crime Reports, during the period 1984-88, annual handgun murders ranged between 7,548 and 8,460. However, these figures exclude instances in which the type of firearm has not been reported. When those cases are distributed on the same ratio as those instances in which the type of firearm is known, the total number of handgun murders increases to a range from 8,121 to 9,018 during the same period. See FBI, UNIFORM CRIME REPORTS FOR THE UNITED STATES - 1988 12 (1989) [hereinafter cited as FBI CRIME REPORTS]. The numbers would increase still further if another distribution were made for the number of murders where, for one reason or another, the murder weapon was not reported. See also J. H. Sloan, Handgun Regulations, Crime, Assaults and Homicide, 319 NEW ENG. J. OF MED. 1256, 1256 (1988) (providing statistics reflecting about 9,000 handgun homicides annually in United States); and Benenson, Guns in America, 11 EDITORIAL RESEARCH REPORTS 927, 932 (Cong. Q., Inc. 1985) (reporting 7,277 handgun murders in 1984).
There is data suggesting that the murder rate will rise markedly during the 1990s. See SENATE COMM. ON THE JUDICIARY, FIGHTING CRIME IN AMERICA: AN AGENDA FOR THE NINETIES, 1-12 (1991); Number of Killings Soar in Big Cities Across U.S., N.Y. Times, July 18, 1990, at A1, col. 1.
40. FBI CRIME REPORTS, supra note 39, at 12. See also Browning, Handguns and Homicide 236 J. A.M.A. 2198, 2198 (1970).
41. FBI CRIME REPORTS, supra note 39, at 12.
42. Id. The percentages total 99% because the FBI reports all percentages to the nearest whole number.
43. F.E. ZIMRING & G. HAWKINS, THE CITIZEN'S GUIDE TO GUN CONTROL 16 (1987) [hereinafter ZIMRING & HAWKINS].
44. Id. Franklin E. Zimring is Professor of Law and Director of the Earl Warren Legal Institute, University of California at Berkeley. He has written extensively on the subject of firearms and crimes and was Director of Research for the Task Force on Firearms of the National Commission on the Causes and Prevention of Violence. Gordon Hawkins is a Senior Fellow at the Earl Warren Institute. See also Sugarman, supra note 1, at 12.
45. NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE TASK FORCE, FIREARMS AND VIOLENCE IN AMERICAN LIFE 41 (1969). See also ZIMRING & HAWKINS, supra note 43, at 15; Zimring, Is Gun Control Likely to Reduce Violent Killings?, 35 U. CHI. L. REV. 721, 728 (1968); Lizotte, The Costs of Using Gun Control to Reduce Homicides, 62 BULL. N.Y. ACAD. MED. 539, 541 (1986).
46. ZIMRING & HAWKINS, supra note 43, at 15. This used to be controversial. Based on a survey of prison inmates in which 75% said they would use a rifle or shotgun if handguns were not available and the fact that the lethality of a firearm correlates with its caliber, some criminologists argued that fatalities would increase. See, e.g., Lizotte, supra note 45, at 540-41; and other authorities discussed in ZIMRING & HAWKINS, supra note 43, at 13-15. These arguments seem unpersuasive. Only a fraction of firearm offenses occur during felonies. Furthermore, because handguns are so much more concealable and portable, long guns often are not a realistic substitute. Moreover, the Seattle-Vancouver study invalidates the hypothesis. See Sloan supra note 39, at 1260; and infra discussion in text accompanying notes 56-64.
47. FBI CRIME REPORTS, supra note 39, at 18-24 (handguns are used in approximately 33% of all robberies and 21% of all aggravated assaults).
48. Id. at 21.
49. Id. at 19.
50. Id. at 24.
51. ZIMRING & HAWKINS, supra note 43, at 30. C. F. Lizotte, Bordua, White, Firearms Ownership for Sport and Protection: Two Not So Divergent Models, 46 AM. SOC. REV. 499 (1981).
52. Sugarman, supra note 1, at 13.
54. ZIMRING & HAWKINS, supra note 43, at 33.
55. The N.R.A. claims that 600,000 crimes are "thwarted" annually by use of guns. However, this figure is based on projections from a poll rather than empirical research and is even considered unreliable by the pollster himself. A number of respected studies indicate that about 2.3% to 3% of all gun fatalities are the result of self-defense. A study by a professor of medicine at the University of Tennessee and the chief medical examiner of King County, Washington found that only nine of 398 gunshot fatalities (2.3%) were defensive shootings. A Time magazine report found that only 14 of 464 gunshot deaths (3.0%) that occurred across the country during the week of May 1, 1989, were due to self-defense. All of this data is discussed in Magnuson, Do Guns Save Lives?, TIME, Aug. 21, 1989, at 25-26. For the Time report, see 7 Deadly Days, July 17, 1989, at 30. See also Sugarman, supra at note 1 at 13.
56. FBI CRIME REPORT, supra note 39, at 27 (1989).
57. Sloan, supra note 39, at 1256. (The authors include nine physicians and experts in public health, and the study was funded in part by a grant from the Centers of Disease Control.)
58. Id. at 1256-57.
59. Id. at 1257-58.
60. For Seattle, 29,527 per 100,000; for Vancouver, 29,857. Id. at 1259.
62. Id. at 1258-59.
63. Id. at 1259.
64. Id. at 1258. During the seven year period of the study, 388 homicides occurred in Seattle and 204 in Vancouver. Id. Thus, of the combined total of 592 homicides in both cities, 65.5% occurred in Seattle.
65. Id. at 1258.
66. Id. at 1260.
67. In the words of the researchers:
Our analysis of the rates of homicide in these two largely similar cities suggests that the modest restriction of citizens' access to firearms (especially handguns) is associated with lower rates of homicide. This association does not appear to be explained by differences between the communities in aggressiveness, criminal behavior, or response to crime.
Id. at 1261.
68. ZIMRING & HAWKINS, supra note 43, at 60. See also U.S. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 79 (108th ed. 1988) [hereinafter cited as STATISTICAL ABSTRACT] and THE WORLD ALMANAC 1989, 108 (1988), which report 1985 and estimated 1986 and 1987 U.S. suicide rates of 12.3, 13.1 and 12.7 per 100,000. Applying these rates to U.S. population figures for 1985-87 [STATISTICAL ABSTRACT at 7], it may be estimated that there were 29,432 suicides in 1985 and about 31,000 in each of the next two years.
69. Browning, Epidemiology of Suicide: Firearms, 15 COMPREHENSIVE PSYCHIATRY 549, 549 (1974).
70. Boyd, The Increasing Rate of Suicide by Firearms, 308 NEW ENG. J. MED. 872, 873 (1983).
71. See Clarke, Jones, Suicide and Increased Availability of Handguns in the United States, 28 SOC. SCI. MED. 805, 805-07 (1989). See also Lester, Murrell, The Influence of Gun Control Laws on Suicidal Behavior, 137 AM. J. PSYCHIATRY 121, 121-22 (1980).
72. An editorial in The New England Journal of Medicine concluded:
How else might suicide be prevented? By making it hard to do; by putting a fence around the observation platform to the Empire State Building, which was finally done; by lowering the carbon monoxide content of gas used in homes, thus making less lethal a once favorite means of exit for depressed Britons; by limiting the number of sedative and antidepressant tablets prescribed at one time, so that if a patient decides to take a hundred of something, it will have to be aspirin, not amitriptyline; and by getting guns out of the houses of despondent people.
Hudgens, Preventing Suicide, 308 NEW ENG. J. MED. 897, 898 (1983). See also Magnuson, Suicides: The Gun Factor, TIME, July 17, 1989, at 61.
The poem, "Resume," by Dorothy Parker, makes almost the same point:
Razors pain you;
Rivers are damp;
Acids stain you;
and drugs cause cramp.
Guns aren't lawful;
Gas smells awful;
You might as well live.
D. Parker, Enough Rope 61 (1926).
73. In testimony before Congress, Dr. Pamela Cantor, President of the American Association of Suicidology, estimated that in the United States about 3,380 youths commit suicide with firearms every year. A Hearing to Consider the Federal Role in Addressing the Tragedy of Youth Suicide, Before the Subcomm. on Juvenile Justice of the Senate Comm. on the Judiciary, 99th Cong., 2d Sess. 1, 3 (1986) (statement of Dr. Cantor) (5,200 adolescents commit suicide in the U.S. every year, 65% of them with guns). Assuming that about 82% of these use handguns, which is consistent with statistics for all suicides in the United States, the figure for youth handgun suicides would be about 2,800.
74. Id. at 52 (statement of Dr. Pamela Cantor, President, Am. Assn. of Suicidology).
75. There are about 30,000 suicides in the U.S. each year. See note 68 supra. There appears to be a trend of increasing suicide by firearm. In 1960, 47% of all suicides were committed with firearms; by 1977, firearms were used in 56% of all suicides. See ZIMRING & HAWKINS, supra note 43, at 61. Studies indicate that 83% of all firearm suicides are committed with handguns. See Boyd, supra note 70, at 873. By extrapolation, (30,000 suicides x 56% committed with firearms x 83% of those committed with handguns) it is estimated that 13,944 suicides are committed with handguns each year¾and the number is presumably rising because of the increasing total number of suicides, see supra text accompanying note 65, and the increasingly use of firearms in all suicides.
76. In 1967, there were 2,896 accidental firearm deaths in the United States; 1977 was the first year in recent decades in which the number fell below 2,000. P. SHIELDS, supra note 1, at 175 (Appendix D, reproducing data furnished by The National Safety Council). From 1983 to 1985, the number of accidental firearm deaths per year fell into the 1,600-1,700 range. STATISTICAL ABSTRACT, supra note 68, at 82.
77. See AM. YOUTH WORK CENTER AND EDUCATIONAL FUND TO END HANDGUN VIOLENCE, KIDS & GUNS: A CHILD SAFETY SCANDAL 16 (2d ed. 1989).
78. Id. See also studies published by the Center to Prevent Handgun Violence, "The Killing Seasons; A Study of When Unintentional Handgun Shootings Among Children Occur," (1988) and "Child's Play: A Study of 266 Unintentional Handgun Shootings of Children," (1989). Both studies are available from the Center to Prevent Handgun Violence, 1225 Eye Street, N.W., Suite 1100, Washington, D.C. 20005.
79. See supra text accompanying note 51.
80. See sources cited supra at notes 77 and 78.
81. See Martin, The Cost of Hospitalization for Firearm Injuries, 260 J. A.M.A. 3048, 3049 (1988). This study of all shootings in San Francisco during 1984 found a ratio of 1.98 of hospitalizations for firearm injuries to deaths from firearm injuries. The researchers believe the sample is representative and extrapolation to the entire United States is sound. The 50,000 figure is calculated by multiplying the number of all firearm injuries resulting in hospitalization (62,075) by the percentage caused by handguns (81.3%). See id. at 3049.
82. Id. at 3050. The $800 million figure is calculated by multiplying the estimated total medical costs for all firearm injuries ("more than $1 billion per year") times the percentage of injuries caused by handguns (81.3%). See id. at 3049.
84. Indirect costs are generally estimated to be twice the direct costs. Id.
85. Pete Shields, the founder of Handgun Control, Inc., who also happens to be a hunter, writes:
There are a few hunters who do hunt with handguns, but most states place restrictions on the type of guns that can be used in hunting, the reason being that killing of game should be done in as humane a manner as possible. Small caliber handguns are more likely to wound the animal rather than kill it outright. Realistically, only long guns, rifles and shotguns are effective firearms for hunting.
P. SHIELDS, supra note 1, at 54.
Sociologists James D. Wright, Peter H. Rossi, and Kathleen Daly, who are often considered to be "pro-gun," write that, "although handguns are not often used to hunt game, they sometimes are." J. WRIGHT, P. ROSSI & K. DALY, UNDER THE GUN: WEAPONS, CRIME AND VIOLENCE IN AMERICA 57 (1983). However, Wright, Rossi, and Daly argue, nevertheless, that "a quality sidearm is part of the standard regalia for the de rigueur sportsman," partly because it is a good weapon against snakes. Id.
86. ZIMRING & HAWKINS, supra note 43, at 30.
87. The Seattle-Vancouver study is discussed supra, in the text accompanying notes 58-67. In 1988, there were 20,675 murders and non-negligent manslaughters in the United States. FBI CRIME REPORTS, supra note 39, at 8.
88. See sources cited supra at note 55. The 620 figure is computed by using the 3% figure from the Time report.
89. PROSSER, HANDBOOK OF THE LAW OF TORTS § 52, at 315-16 (4th ed. 1971).
90. Raddatz v. U.S., 750 F.2d 791 (9th Cir. 1984).
91. Id. at 793. The defendant identified as Dr. A in the main body is Dr. Arner; Dr. B is Dr. O'Donnell.
92. Id. at 793-94.
93. Id. at 795.
95. Perhaps the only confusion on this point might result from a misapplication of the "last clear chance" doctrine. More than a century ago that rule was defined as providing that, "the party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it." G.E. WHITE, TORT LAW IN AMERICA 46 (1985) (quoting an article attributed to William Wills, published at 2 L. Q. REV. 506 (1886) (original emphasis)). For our purposes, the key word in that definition is "opponent," which indicates that the rule is properly applied only between joint tortfeasors inter se. This makes it a rule of contributory negligence. Thus, if A and B were independently negligent, A had the last clear chance to prevent an accident resulting from their negligence, and B is injured in the accident, B could recover from A. However, if A were the injured party, he could not recover from B. According to legal historian Professor G. Edward White, courts have consistently permitted an injured and innocent third party to recover from either A or B. Id. at 48.
96. Certainly no nation at war has looked with indifference upon those supplying arms to her enemy. The analogy is not completely inapposite. Every act¾from a single slaying by a madman to war waged by nations¾is the product of both intent and means.
97. PROSSER, HANDBOOK OF THE LAW OF TORTS 309 (3d ed. 1964).
98. Id. at 311.
99. Id. at 313.
100. Id. at 313-14.
101. Id. at 311-12.
102. See sources cited supra at notes 77-78.
103. See supra text accompanying notes 39-88.
104. Schetky, Children and Handguns, 139 AM. J. DISEASES OF CHILDREN 229 (1985).
105. Cepeda v. Cumberland Engineering Co., 76 N.J. 152, 386 A.2d 816 (1978).
106. Id. at 166, 386 A.2d at 822. Presumably one of the foremen removed the guard because only they had the tools, or the authority, to do so. Id. at 166, 386 A.2d at 823.
107. Id. at 167, 386 A.2d at 823.
108. Id. at 177, 386 A.2d at 828.
109. See, e.g., Briney v. Sears, Roebuck & Co., 782 F.2d 585 (6th Cir. 1986) (applying Ohio law).
110. See, e.g., Wheeler v. John Deere Co., 862 F.2d 1404, 1413 n.6 (10th Cir. 1988); McMurray v. Deere & Company, 858 F.2d 1436 (10th Cir. 1988); Van Buskirk v. Carcy Canadian Mines, Ltd., 760 F.2d 481, 492, 495 (3d Cir. 1985); Polk v. Ford Motor Co., 529 F.2d 259, 264 (8th Cir.), cert. denied, 426 U.S. 907 (1976).
111. RESTATEMENT (SECOND) OF TORTS § 402A comment k (1965).
114. See id.
115. Id. at comment j.
116. Id. at comment n.
117. Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330, 338 (5th Cir. 1984) (applying Texas law).
118. Id. (quoting Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1106 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974)).
119. The others are: California (Moore v. R.G. Industries, Inc., 789 F.2d 1326 (9th Cir. 1986)); District of Columbia (Delahanty v. Hinckley, 564 A.2d 758 (D.C. 1989)); Georgia (Rhodes v. R.G. Industries, Inc., 173 Ga. App. 51, 325 S.E.2d 465 (Ga. App. 1984)); Florida (Shipman v. Jennings Firearms, Inc., 791 F.2d 1532 (11th Cir. 1986), Trespalacios v. Valor Corp., 486 So.2d 649 (Fla. Ct. Dist. App. 1986)); Kentucky (Bennet v. Cincinnati Checker Cab Co., 353 F.Supp. 1206 (E.D. Ky. 1973)); and Texas (Patterson v. Roehm Gesellschaft, 608 F.Supp. 1206 (N.D. Tex. 1985)).
120. Richman v. Charter Arms Corp., 571 F.Supp. 192, 194 (E.D. La. 1983).
121. Id. at 193-94.
122. Id. at 195.
123. Id. at 197.
124. Id. at 198. Nevertheless, the court denied defendant's motion for summary judgment, holding that plaintiff might be able to establish liability under the ultrahazardous or abnormally dangerous activity doctrine, set forth in the RESTATEMENT (SECOND) OF TORTS §§ 519, 520. Because this article is restricted to products liability theory, this section of the opinion is not discussed. The holding was short-lived, however; it was reversed by the Fifth Circuit in the consolidated case of Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985), which held that the ultrahazardous activity doctrine applies only to activity relating to real estate.
125. Perkins v. F.I.E. Corp., 762 F.2d at 1275.
126. See Hunt v. City Stores, Inc., 387 So.2d 585 (La. 1980).
127. Id. at 589.
128. Perkins, 762 F.2d at 1272.
129. For the district court's discussion of both tests, see Richman v. Charter Arms Corp., 571 F.Supp. 192, 197 (E.D. La. 1983). For the court of appeals discussion of both tests, see Perkins v. F.I.E. Corp., 762 F.2d 1250, 1270-71 (5th Cir. 1985).
130. Circuit Judge John Minor Wisdom.
131. He wrote: "A product is defective and unreasonably dangerous when a reasonable seller would not sell the product if he knew of the risks involved or if the risks are greater than a reasonable buyer would expect." Welch v. Outboard Marine Corp., 481 F.2d 252, 254 (5th Cir. 1973) (emphasis added). Although he referred to the two standards as "seller-oriented" and "user-oriented" rather than using the risk-utility and consumer expectation labels, he discussed each theory at length, recognizing that Louisiana used both.
132. Circuit Judge Jerre S. Williams.
133. Pennington v. Vistron Corp., 876 F.2d 414, 420 (5th Cir. 1989).
134. See, e.g., Entrevia v. Hood, 427 So. 2d 1146 (La. 1983).
135. Phillips v. Roy, 431 So. 2d 849, 39 A.L.R. 4th 509 (La. Ct. App. 1983).
136. Id. at 852, 39 A.L.R. 4th at 515. For similar cases involving alleged negligence of gun dealers, see note 35 supra.
137. Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110 (La. 1986).
138. Id. at 114 n.2 (citations omitted).
139. Id. at 114.
140. Id. at 113, 118.
141. Id. at 114-15.
142. Id. at 115.
143. Strickland v. Fowler, 499 So. 2d 199, 202 (La. Ct. App.), cert. denied, 500 So.2d 411 (1986).
145. Id. at 200, 202.
146. Id. at 202.
148. Entrevia v. Hood, 427 So. 2d 1146, 1149-50 (La. 1983).
149. 217 N.Y. 382, 111 N.E. 1050 (1916).
150. 32 N.J. 358, 161 A.2d 69 (1960).
151. 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963).
152. See supra, note 9.
153. See Weber v. Fidelity & Casualty Ins. Co., 259 La. 599, 250 So.2d 754 (1971), and cases cited therein.
154. Morning v. Alfono, 400 Mich. 425, 254 N.W.2d 759 (1977).
155. Id. at 432, 254 N.W.2d at 762.
156. Id. at 434, 254 N.W.2d at 763.
157. Id. at 434-35, 254 N.W.2d at 763.
158. Id. at 435, 254 N.W.2d at 763.
161. Id. at 459, 254 N.W.2d at 755. In a similar case, a California appellate court reached the opposite result, holding that imposing strict liability on slingshots would effectively ban them "by judicial fiat," and should be "within the purview of the Legislature, not the judiciary." Bojorquez v. House of Toys, Inc., 62 Cal. App. 3d 930, 933, 133 Cal. Rptr. 483, 484 (1976).
162. See supra text accompanying notes 137-42.
164. Linton v. Smith & Wesson, 127 Ill. App. 3d 676, 469 N.E.2d 339 (1984).
165. Id. at 677, 469 N.E.2d at 339.
166. Id. at 678, 469 N.E.2d at 340.
167. Id. at 678-79, 469 N.E.2d at 340.
168. Martin v. Harrington and Richardson, Inc., 743 F.2d 1200, 1201 (7th Cir. 1984).
169. Id. at 1202.
170. See supra text accompanying notes 120-24. The Seventh Circuit handed down its final decision in Martin on October 16, 1984. The Fifth Circuit did not hand down its decision in Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985) until June 15, 1985.
171. Id. at 1204.
172. Id. at 1205.
173. Riordan v. International Armament Corp., 132 Ill. App. 3d 642, 477 N.E.2d 1293 (1985).
174. Id. at 645, 477 N.E.2d at 1294-95.
175. Id. at 650-51, 477 N.E.2d at 1298.
176. Id. at 651, 477 N.E.2d at 1298-99.
177. Huntley, The Concept of Defect in Illinois Products Liability Litigation, 71 ILL. B.J. 22, 40 (1982).
178. Id. at 26-33. The four cases were Palmer v. Avco Distrib. Corp., 82 Ill. 2d 211, 220, 412 N.E.2d 959, 964 (1980); Rucker v. Norfolk & W. Ry., 77 Ill. 2d 434, 437, 396 N.E.2d 534, 536 (1979); Kerns v. Engelke, 76 Ill. 2d 154, 166, 390 N.E.2d 859, 865 (1979); Anderson v. Hyster Co., 74 Ill. 2d 364, 368-69, 385 N.E.2d 690, 692-93 (1979).
179. Lease v. International Harvester Co., 174 Ill. App. 3d 897, 904, 529 N.E.2d 57, 62 (1988). See also Drobney v. Federal Sign and Signal Corp., 182 Ill. App. 3d 471, 479, 539 N.E.2d 186, 190 (1989). These cases involve questions of the feasibility of alternate designs and, since it is impossible to make a safe handgun, one might argue that they provide little guidance with respect to handguns.
180. See, e.g., Liberty Mut. Ins. Co. v. Williams Machine & Tool Co., 62 Ill. 2d 77, 82, 338 N.E.2d 857, 860; Zanzig v. H.P.M. Corp., 134 Ill. App. 3d 617, 621, 480 N.E.2d 1204, 1208-09, (1985); Boddie v. Litton Unit Handling Systems, 118 Ill. App. 3d 520, 527, 455 N.E.2d 142, 147-48, (1983); Domine v. Fulton Iron Works, 76 Ill. App. 3d 253, 257-58, 395 N.E.2d 19, 23, (1979); Johnson v. Marshall and Huschart Machinery Co., 66 Ill. App. 3d 766, 769, 384 N.E.2d 141, 143-44 (1978).
181. Liberty Mut. Ins. Co., 62 Ill. 2d at 82, 338, N.E.2d at 860.
182. Zanzig, 134 Ill. App. 3d at 621, 480 N.E.2d at 1207.
183. Domine, 76 Ill. App. 3d at 257-58, 395 N.E.2d at 23.
184. See supra text accompanying note 148.
185. The Illinois Constitution provides: "Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed." ILL. CONST. art. I, § 22.
186. Quilici v. Village of Morton Grove, 695 F.2d 261, 268 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983).
187. Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1206 (7th Cir. 1984).
188. See, e.g., Schwartz v. American Honda Motor Co., 710 F.2d 378, 380 (7th Cir. 1983).
189. Coney v. J.L.G. Indus. Inc., 97 Ill. 2d 104, 119, 454 N.E.2d 197, 204 (1983).
190. Kuziw v. Lake Engineering Co., 586 F.2d 33, 35 (7th Cir. 1978) (citations omitted).
191. Schwartz v. American Honda Motor Co., 710 F.2d 378, 380 (7th Cir. 1983). Both the majority and dissenting opinions cite Kerns v. Engelke, 76 Ill.2d 154, 165, 390 N.E.2d 859, 864 (1979), which held: "If the use of a product is abnormal, but nonetheless one that may be anticipated, it may be foreseeable. There is a distinction between intended use and foreseeable use . . . where a particular use should be known to the reasonably prudent manufacturer such use cannot be labelled unforeseeable." See 710 F.2d 378, 380, 384-85.
192. Mavilia v. Stoeger Indus., 574 F.Supp. 107 (D.Mass. 1983).
193. See supra text accompanying notes 120-22.
194. Mavilia v. Stoeger Indus., 574 F.Supp. at 108.
195. Id. at 111.
197. Back v. Wickes Corp., 375 Mass. 633, 640, 378 N.E.2d 964, 969 (1978).
199. Id. at 640-41, 378 N.E.2d at 969.
200. Id. at 641, 378 N.E.2d at 969.
201. Johnson v. City of Boston, 22 Mass. App. 24, 490 N.E.2d 1204, 1206 (1986).
202. Id.; Back v. Wickes Corp., 375 Mass. 633, 642, 378 N.E.2d 964, 970; Everett v. Bucky Warren, Inc., 376 Mass. 280, 288, 380 N.E.2d 653, 659 (1978).
203. MASS. GEN. L. ch. 140 § 122-24; ch. 269 §§ 10, 12E (1981).
204. See, e.g., The Guns of Boston, TIME, August 2, 1976, at 41; Muzzling Handguns, TIME, April 28, 1975, at 26.
205. MASS. GEN. L. ch. 140 § 131 (1981). See Ruggiero v. Police Comm'r, 18 Mass. App. 256, 464 N.E.2d 104 (1984).
206. The Other Arms Race, TIME, Feb. 6, 1989, at 20, 25. Following an import ban on assault weapons, on March 15, 1989, Colt Industries voluntarily suspended commercial sales of the AR-15. See Gunning for Assault Rifles, TIME, Mar. 27, 1989, at 39.
207. See The Other Arms Race, TIME, Feb. 6, 1989 at 20, 25.
208. Mazzillo v. Banks, Nos. 3740, 3742, 3744-C, slip op. at 5-6 (Court of Common Pleas of Luzerne County 6, 1984).
209. Id. at 6.
210. 373 Pa. Super. 646, 536 A.2d 833 (1987).
211. Mazzillo v. Banks, Superior Court of Pennsylvania, No. 803 Phila. 1987, Slip Op., Nov. 23, 1987, at 5.
212. 518 Pa. 641, 542 A.2d 1370 (1988).
213. Azzarello v. Black Brothers Co., 480 Pa. 547, 551, 391 A.2d 1020, 1024 (1978).
214. Id. at 558, 391 A.2d at 1026. It may be argued that the court was focusing upon the respective functions of the judge and jury, not of the court and legislature. See also, e.g., Vargus v. Pitman Mfg. Co., 510 F.Supp. 116, 121-22 (E.D. Pa. 1981). Nevertheless, when read in its entirety the Azzarello case clearly places on the court the unreasonably dangerous determination, recognizing that this requires a risk-utility analysis and determinations of social policy.
215. See, e.g., Neal v. Carey Canadian Mines, Ltd., 548 F.Supp. 357, 369 (E.D. Pa. 1982); Martin v. Owens-Corning Fiberglass Corp., 515 Pa. 377, 528 A.2d 947 (1987).
216. Stanton v. Astra Pharmaceutical Prod., Inc., 718 F.2d 553 (3d Cir. 1983).
217. Hoffman v. Misericordia Hosp. of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). But see Gunsalus v. Celotex Corp., 674 F.Supp. 1149 (E.D. Pa. 1987). In that case a plaintiff with lung cancer sued the manufacturer of Pall Mall cigarettes. Id. at 1151. Plaintiff had smoked Pall Malls since he was eleven years old, and he contended that¾along with asbestos¾Pall Malls had contributed to his developing cancer. Id. In an opinion granting summary judgment in favor of the cigarette manufacturer, the district judge wrote:
Some courts have recognized liability of a supplier for injuries caused by a product based on a comparison of the utility of the product with the risk of injury that it provides. But this doctrine, making the supplier an insurer of products the judge deems too dangerous to use, impermissibly allows judges to decide cases based upon their own views of social or personal utility. Whether products should be banned or whether absolute liability should be imposed for their use are determinations more appropriately made by the legislative branch of government.
Id. at 1159 (citation omitted).
Then, without citing any Pennsylvania authority, the court added: "Pennsylvania courts have not adopted the risk-utility theory of liability. We believe that if the Supreme Court of Pennsylvania were faced with this risk-utility claim, it would reject it." Id.
A second district judge cited this holding with approval in another products liability case brought against a cigarette manufacturer under Pennsylvania law. See Miller v. Brown & Williamson Tobacco Corp., 679 F.Supp. 485, 488 (E.D. Pa. 1988), aff'd, 856 F.2d 184 (3rd Cir. 19).
Yet, about a month after the first of those two district court decisions and about a month before the second, the Third Circuit handed down an opinion in Hon v. Stroh Brewery Co., 835 F.2d 510 (3rd Cir. 1988) that held precisely the opposite¾that Pennsylvania does, in fact, recognize the risk-utility test. The plaintiff in that case sued for the wrongful death of her husband, who had died from pancreatitis resulting from drinking alcohol. Id. at 510-11. She sued the manufacturer of his favorite brand of beer, alleging that beer was unreasonably dangerous under § 402A. The Third Circuit vacated a district court decision that granted summary judgment for the defendant, id. at 517, and wrote:
In applying this Restatement rule, the Supreme Court of Pennsylvania has held that the trial judge must decide a threshold issue as a matter of law: taking the allegation of the complaint to be true, would the social policy considerations underlying strict liability justify recovery under § 402A in this case. Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). The court must thus balance the product's social utility against its unavoidable risks to determine whether the condition of the product could be labeled 'unreasonably dangerous' and the risk of loss placed on the manufacturer. Only if the court decides that strict liability would be appropriate does the case go to the jury for a determination regarding the truth of the plaintiff's allegations. See 391 A.2d at 1025-27.
Id. at 512 (citations in original). See also Childers v. Joseph, 842 F.2d 689, 697 (3rd Cir. 1988)(recognizing that Pennsylvannia uses the risk-utility test).
As discussed in the last section of this article, it appears that cigarettes¾like handguns¾may have an almost magical quality that makes courts forget that the relevant jurisdiction has, in fact, adopted the risk-utility test.
218. Richardson v. Holland, 741 S.W.2d 751, 756 (Mo. App. 1987).
219. Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 376-77 (Mo. 1986) (per curiam). Cf. Hylton v. John Deere Co., 802 F.2d 1011, 1015 (8th Cir. 1986).
220. Nesselrode, 707 S.W.2d at 377, n.10.
221. Id. at 378.
222. Id. at 375-76.
223. Id. at 376.
224. Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 438 (Mo. 1984) (en banc).
225. Jeannelle v. Thompson Medical Co., 613 F.Supp. 346 (E.D. Mo. 1985).
226. Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 378 (Mo. 1986).
228. Missouri principles do not afford a handgun manufacturer a defense of misuse. Under Missouri law, a manufacturer is responsible for objectively foreseeable misuses. On a number of occasions when it was writing under Missouri law, the Eighth Circuit stated: "The realities of intended and actual use are well known to the manufacturer and to the public and these realities should be squarely faced by the manufacturer and the court." Vanskike v. ACF Indust., Inc., 665 F.2d 188, 196 (8th Cir. 1981), cert. denied, 455 U.S. 1000 (1982); see also Polk v. Ford Motor Co., 529 F.2d 259, 264 (8th Cir. 1976), cert. denied, 426 U.S. 907; Larsen v. General Motors Corp., 391 F.2d 495, 502-03 (8th Cir. 1968).
229. See Burkett v. Freedom Arms, Inc., 299 Or. 551, 555, 704 P.2d 118, 120 (1985).
230. Id. at 553, 704 P.2d at 119.
231. Id. at 555, 704 P.2d at 120.
233. Id. at 558, 704 P.2d at 122.
234. Phillips v. Kinwood Machine Co., 269 Or. 485, 492, 525 P.2d 1033, 1036 (1974). See also Rice v. Hyster Co., 273 Or. 191, 199 n.1, 540 P.2d 989, 993 n.1 (1975).
235. See Willamette Essential Oils, Inc. v. Herrold & Jensen Implement Co., 68 Or. App. 401, 683 P.2d 1374 (1984).
236. THE WORLD ALMANAC AND BOOK OF FACTS, 452, 548 (1990).
237. Kelley v. R.G. Indust., Inc., 304 Md. 120, 128, 497 A.2d 1143, 1144 (1985); see also Siegel, Winning Without Precedent: Kelley v. R.G. Industries, 14 LITIGATION 32, 32 (1988).
238. See Seigel supra note 237, at 32.
240. Brill, The Traffic (Legal and Illegal) in Guns, HARPER'S, Sept. 1977, at 37, 41.
241. The path was a circuitous one. The action was originally filed in state court. Defendant removed the case to federal district court, which certified various questions to the Court of Appeals of Maryland. See Siegel, supra note 237, at 32-33.
242. Kelley v. R.G. Industries, Inc., 304 Md. 124, 497 A.2d 1143 (1985). The court held that the abnormally dangerous activity doctrine only applies in relation to the use of land. Id. at 133, 497 A.2d at 1147.
243. Id. at 138, 497 A.2d at 1149.
245. Id. at 158-59, 497 A.2d at 1160.
246. Id. at 140, 497 A.2d at 1190 (listing cases).
247. Id. at 146, 154, 157, 497 A.2d at 1154, 1158, 1159.
248. Id. at 155, 497 A.2d at 1158.
249. See Brill, supra note 240, at 38. See also The Snub Nosed Killers: Handguns in America, Cox Newspapers (Dec. 1981).
250. The Snub Nosed Killers: Handguns in America, supra note 249 at 4.
251. House Bill 1131, signed by Governor William D. Schaefer on May 23, 1988. See MD. ANN. CODE art. 3A, § 36-I(L)(1988 Supp).
252. Baltimore Sun, Nov. 30, 1988, at 1A, col. 1.
257. Delahanty v. Hinckley, 564 A.2d 758 (D.C. App. 1989).
258. The notion that judges are influenced by unconscious forces is not a new one. In his famous lecture on the nature of the judicial process, Justice Benjamin N. Cardozo discussed a number of jurisprudential principles and considerations that influence judges. He then added:
Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and dislikes, the predilections and prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.
B.N. CARDOZO, The Nature of the Judicial Process, in SELECTED WRITINGS OF BENJAMIN NATHAN CARDOZO 178 (M.E. Hall, ed. 1947).
259. Some argue that only the search for extra-legal explanations has merit. The Critical Legal Studies (CLS) movement contends that legal reasoning is a sham and that "[l]aw is merely politics dressed in different garb." Hutchinson, Monahan, Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 STAN. L. REV. 199, 206 (1984). Critical legal scholars contend that decisions are not the result of overarching legal doctrine and are nothing more than a series of ad hoc compromises. They view products liability law as merely a spectrum where at one end manufacturers would not be liable for any injuries caused by their products and, at the other end, would be liable for all such injuries. Opposing forces engage in a constant tug of war between these two extremes, and outcomes of particular cases depend on the prevailing state of that struggle rather than rational legal theory. See id. at 210-11.
260. A recent attempt to pass such legislation reveals much about the political dynamics of the issue. On January 31, 1989, members of the Council of the District of Columbia introduced legislation that would make manufacturers, importers, and dealers of handguns strictly liable for all injuries proximately resulting from operation of their products. Handgun Manufacturing Strict Liability Act of 1989, Bill 8-132, § 4. The bill included a finding by the Council that "a handgun is unreasonably dangerous because the benefits of the product outweigh the risk of injury posed by its potential to cause serious injury, damage or death. . ." Id. at § 2.
The bill enjoyed strong support in the Council and was passed 8-4 in a preliminary vote; nevertheless, its sponsors were mindful that, pursuant to the procedures of the D.C. home-rule charter, Congress might veto the bill if it were enacted. See D.C. Gun Bill's Foes Pin Hope on Congress, Philadelphia Inquirer, July 10, 1989, at 3-A, col. 3. Presumably because they felt its chances of passage were better, the bill's supporters amended the bill to substitute assault weapons for handguns. The D.C. Council passed the amended legislation (Assault Weapon Manufacturing Strict Liability Act of 1990) on December 11, 1990 by a vote of 8-3. See D.C. Council Pins Liability in Shootings On Dealers, Makers of Assault Weapons, Wash. Post, Dec. 12, 1990, at A1, col. 1; D.C. Law Holds Makers of Guns Liable, Philadelphia Inquirer, Dec. 19, 1990, at 3-A, col. 2.
However, the N.R.A. and its friends in Congress found a way to destroy the legislation without vetoing it. Representative Thomas J. Bliley, Jr., the ranking Republican on the House District of Columbia Committee, threatened to hold up $100 million in emergency federal aid unless the legislation was recinded. Assault Rifle Ban Falls Victim to a Trade-Off, National L.J., Feb. 18, 1991, at 18, col 1; The Federal Yoke, New Republic, March 18, 1991, at 15. The Council was forced to oblige, and it repealed the act on February 2, 1991. Assault Rifle Ban Falls Victim to a Trade-Off, National L.J., Feb. 18, 1991, at 18, col 1; The Federal Yoke, New Republic, March 18, 1991, at 15. See also Law Against Assault Weapons is Repealed by D.C. Council, Philadelphia Inquirer, Feb. 6, 1991, at 4-A, col. 2.
It is interesting to speculate how a District of Columbia court would treat this series of events if it were faced with an assault weapon products liability case. From the fact that their legislatures have not banned handguns, some courts in other jurisdictions have inferred that the legislature did not consider handguns to be unreasonably dangerous. See supra text accompanying notes 126-49, 185-88, 204-06. That rationale is no longer available in the District of Columbia ¾ at least with respect to assault weapons.
261. See G.E. WHITE, supra note 95, at 119-21, 168-73, 197-207.
262. One court mentioned "the prominence of the handgun issue in public debates." See text accompanying note 124.
263. Among many groups on both sides, the most notable are Handgun Control, Inc. and the N.R.A.
264. The most notable political action committees or PACs devoted to the issue are the National Rifle Association Political Victory Fund, which raised $4,692,544 in 1985-86, and Handgun Control Inc. PAC, which raised $299,038 during the same time period, making each of them among the largest PACs in their respective categories. See M. BARONE & G. UJIFUSA, THE ALMANAC OF AMERICAN POLITICS 1988 1367-68 (1987).
265. The battles are too numerous to even try to list. At the time of this writing, the most prominent current battles before the United States Congress are over bills to ban assault weapons and to establish a national seven-day waiting period for handgun purchases. See, e.g., Senate Reaffirms Assault Weapon Ban, Wash. Post, June 29, 1990, at A10, col. 1; The Brady Bill and New York Guns, TIMES, Sept. 12, 1990, at A26, col. 1.
266. See, e.g., S. EPSTEIN, THE POLITICS OF CANCER 246-314 (1978).
268. Id. See also sources cited infra, at note 271.
269. See S. EPSTEIN, supra note 231, at 263-70, 275-79.
270. See N.Y. Times, March 13, 1985, at B2, col. 1; Boston Globe, June 13, 1985, at 46, col. 1.
271. Arguments that the chemicals are dangerous and should be banned are made in S. EPSTEIN, THE POLITICS OF CANCER (1978) and S. EPSTEIN, L. BROWN & C. POPE, HAZARDOUS WASTE IN AMERICA (1982). Arguments that the chemicals are not unduly hazardous, and that those who advocate banning the chemicals are alarmists, are made in E. EFRON, THE APOCALYPTICS (1984) and E. WHELAN, TOXIC TERROR (1985).
272. See The Commercial Appeal, June 25, 1987, A1, at A8, col. 2; and Chemical Marketing Reporter, June 26, 1987, at 26.
273. See, e.g., Chlordane Should be Banned Nationwide, Newsday, Feb. 15, 1987, at 3, col. 1; and J. Feldman & S. Epstein, Rachel Carson's Spring is Still Silent, Philadelphia Inquirer, Sept. 27, 1987, at E7, col. 1.
274. Letter from Charles H. Frommer, Vice President, Regulatory, Government and Public Affairs, Velsicol Chemical Corp. to "Dear Pest Control Professional," (May 28, 1987).
275. See EPA Press Release (from Office Of Public Affairs A-107), April 6, 1988.
276. Courts have consistently held that products liability actions may be brought with respect to these chemicals. See Villari v. Terminix International, Inc., 663 F.Supp. 727 (E.D. Pa. 1987) (aldrin); Camp Creek Duck Farm, Inc. v. Shell Oil Co., 103 Ill. App. 3d 81, 430 N.E.2d 385 (4th Dist. 1981)(aldrin); Golden Gate Hop Ranch, Inc. v. Velsicol Chemical Corp., 66 Wash. 2d 469, 403 P.2d 351, cert. denied, 382 U.S. 1025 (1965) (heptachlor); Van Antwerp-Aldridge Drug Co. v. Schwartz, 263 Ala. 207, 82 So. 2d 209 (1955) (chlordane).
277. The term "political" is being used in the broad and commonly understood way and includes any activity that is designed to influence governmental action. It includes lobbying elected officials, petitioning non-elected officials, exhorting others to lobby or petition, attempting to influence public opinion and thereby indirectly influence governmental action, as well as election campaign activity. The issue of whether a product should be banned or its distribution restricted (e.g., prescription drugs, alcohol, pornographic material) is political because bans and restrictions are imposed by governmental action, whether legislative or administrative.
Some draw a distinction between "politics" and "pseudopolitics." See, M. SELIGER, IDEOLOGY AND POLITICS, 178-90 (1976). By "politics," they mean the activity motivated by "some universalistic scheme," and by "pseudopolitics," they mean those motivated by a private interest. Id. This distinction may be valid for political scientists or philosophers, but it will never do for courts. For judicial purposes, no distinction can be drawn between the publicly spirited citizen who proposes banning tobacco because it causes disease and places a burden on society and the tobacco farmer who opposes a ban out of self-interest. Both are equally entitled to advocate their positions.
278. For collected product liability cases involving asbestos, see 9 AM. LAW PROD. LIAB. 3d § 113:17 (1987). See especially: Borel v. Fibreboard Paper Prod. Corp., 493 F.2d 1076, 1089 (5th. Cir. 1973) ("The utility of an insulation product containing asbestos may outweigh the known or forseeable risk to the insulation workers and thus justify its marketing. The product could still be unreasonably dangerous, however, if unaccompanied by adequate warnings."); Halphen v. Johns-Manville Sales Corp., 788 F.2d 274, 275 (5th Cir. 1986) (affirming lower court's jury instruction that, "[a] product is unreasonably dangerous per se if a reasonable person would conclude that the danger-in-fact of the product, whether foreseeable or not, outweighs the utility of the product.").
279. For collected cases involving the Dalkon Shield, see 6 AM. LAW PROD. LIAB. 3d § 90:21-24 (1987).
280. For collected product liability cases involving tampons, a feminine hygiene product associated with toxic shock syndrome, see Id. at § 86:50.
281. For collected product liability cases involving diethylstilbestrol (DES), a fertility drug associated with cancer and other diseases in the daughters of women who took the drug during their pregnancy, see id. at § 89:39; Annotation, Products Liability: diethylstilbestrol (DES), 2 A.L.R. 4 th 1091 (1980).
282. Generally, punitive damages are available in product liability actions when the manufacturer's conduct reflects "a flagrant indifference to the probability that the product might expose consumers to unreasonable risks of harm." Moran v. Johns-Manville Sales Crop., 691 F.2d 811, 815 (6th Cir. 1982) (quoting Leichtamer v. American Motors Corp., 67 Ohio St. 2d 456, 424 N.E.2d 568, 570-72 (1981)).
283. The risk-utility test expresses notions of culpability, causation and foreseeability. A manufacturer is presumed to know how its product is principally used. Thus, a manufacturer is presumed to know whether its product is causing more harm than social benefit; if that is the case, it is therefore assumed the manufacturer distributed its product with the intention that it be so used.
284. See, e.g., MAUET, FUNDAMENTALS OF TRIAL PRACTICE 135-39 (1980)
Modern litigation is using experts with unparalled frequency. No longer are experts used merely in personal injury cases, nor are they only physicians and surgeons. Injury cases now regularly use economists. Product liability cases often use reconstruction experts. Building construction cases regularly use engineers and architects. More and more frequently, trial lawyers are using experts to explain how and why things happened the way they did, or didn't happen the way they were supposed to.
Id. at 135.
See also, e.g., a collection of articles about expert witnesses in the Winter 1982 issue of LITIGATION, including an overview of expert testimony (Ostroff, Experts: A Few Fundamentals, at 8) and articles about expert witnesses in criminal cases (Meyer, at 23), tort cases (Corby, at 28), antitrust cases (Nagin, at 36), trademark cases (Gilson, at 40) patent cases (Hofer, at 44), and cases involving financial data (Fox & Gunther, at 33).
285. Among these tools are Federal Rules of Evidence 702-05, which allow experts wide latitute to offer opinions and discuss the data on which their opinions are based without having to first admit the data into evidence. Indeed, the data need not itself be admissible evidence. Id. See Lewis v. Rego Co., 757 F.2d 66, 73-74 (3d Cir. 1985); Paddock v. Dave Christensen, Inc., 745 F.2d 1254, 1261-62 (9th Cir. 1984); Bryan v. John Bean Div. of FMC Corp., 566 F.2d 541, 545 (5th Cir. 1978). In addition, Federal Rule of Evidence 803(18) permits expert witnesses to refer to, and read from, learned treatises during their testimony. It is conceivable that virtually all of the data that appears in the risk-benefit section of this article could be discussed by a single expert witness. Also useful in some instances are Federal Rules of Evidence 201 and 803(8), which, respectively, allow the court discretion to take judicial notice of adjudicative facts, and permit data compilations of public agencies to be admitted into evidence.
286. This famous phrase is from Justice Felix Frankfurter's opinion in Colegrove v. Green, 328 U.S. 549, 556 (1946).
287. The political question is currently most authoritatively defined by Baker v. Carr. 369 U.S. 186 (1962). A discussion of the political question doctrine is outside the scope of this article, but it may be noted that in this context, "a political question" is a term of art that cannot reasonably embrace the issue of whether products liability should apply to handguns. A good description of the history and contours of the doctrine may be found in L. TRIBE, AMERICAN CONSTITUTIONAL LAW, § 3-13, at 96-107 (2d ed. 1988).
288. See ZIMRING & HAWKINS, supra note 43, at 81.
289. See R. Sherrill, A Lobby on Target, in SOCIAL PROFILE: THE UNITED STATES TODAY 321 (The N.Y. Times, eds. 1970); Lacayo, supra note 5, at 15; Sullivan, supra note 5, at 66; Gergen, Gest & Klein, supra note 5, at 26; Expensive Lobbying Pays Off for Rifle Assn., supra note 5, at A32, col. 1. Cf. McGuigan, Loose Cannons, 49 POL. REV. 54 (1989) (N.R.A.'s failure to play coalition politics with conservative forces, particularly organized law enforcement, resulted in a decreased effectiveness in winning political support.).
290. See Lacayo, supra note 5, at 15 (membership) and 20 (revenue).
291. See Expensive Lobbying Pays Off for the Rifle Assn., supra note 5, at A32, col. 1.
292. See Lacayo, supra note 5, at 15.
293. A.M. SCHLESINGER, JR., THE CRISIS OF CONFIDENCE 23 (1969).
294. W. MURPHY, C. PRITCHETT, COURTS, JUDGES, AND POLITICS 163 (1974).
295. See H. SCHWARTZ, PACKING THE COURTS 54, 79 (1988).
296. Id. at 83-85, 201-04.
297. The nominee was Andrew L. Frey, whom President Reagan nominated to the United States Court of Appeals for the District of Columbia in 1983. Mr. Frey was a superbly qualified candidate. He had served on the Solicitor General's staff, where he rose to head the criminal section and had argued 55 cases before the Supreme Court. He had received both the Attorney General's Distinguished Service Award and the Presidential Award for Meritorious Service. See H. SCHWARTZ, supra note 295, at 77-80.
298. For example, both the 1984 and 1988 Republican Party platforms called for the appointment of judges committed to "judicial restraint." 1984 Republican National Convention Platform, at 20; Republican Platform, Aug. 16, 1988, at 37. (Both citations are from pamphlets published by the Republican National Committee.)
299. A fairly typical comment was made by Senator Orrin G. Hatch in his opening statement during the confirmation hearings of Justice David H. Souter: "I share President Bush's view that a Supreme Court justice should interpret the law and not legislate his or her own policy preferences from the bench." See N.Y. Times, Sept. 14, 1990, at B4, col. 2.
This is not to say that one cannot be too extreme by appearing to be a rigid and ideological strict constructionist. That was one of Judge Robert H. Bork's principal problems during his confirmation hearings. After the Senate failed to confirm him, Judge Bork blamed his defeat on a campaign waged by a "left-liberal" intellectual class that cannot win at the polls and therefore seeks to have its agenda "enacted into law by the Supreme Court." R.H. BORK, THE TEMPTING OF AMERICA 337 (1990). Judge Bork believes that this class was responsible for his defeat because, "I would not have enacted that agenda for them." Id. at 338. In contrast, Justice David H. Souter was more successful with a middle-ground approach. He said that he believed judges should look to the the "principles" underlying constitutional provisions rather than divining the framers' "specific intent." See Souter Tacks Over Shoals, N.Y. Times, Sept. 14, 1990, A1, col. 1, at B5, col. 1. Despite Justice Souter's moderation, however, the rhetoric against judicial activism was unabated and conservatives were reassurred that Justice Souter held the proper views. For example, the Wall Street Joural said in an editorial:
The country is focused on David Souter, but it's worth noting that a Justice Souter will be icing on the judicial-restraint cake. After three landslide victories by presidential candidates who ran against judicial activism, the lower federal courts have undergone a massive shift back to judges who are happy to interpret the law and forgo making it up.
Wall St. J., Sept. 17, 1990, at A14, col. 1.
300. For discussions of the insurance "crises" and the rise of the "tort reform" movement, see generally Page, Deforming Tort Reform, 78 GEO. L.J. 649 (1990); Sugarman, Taking Advantage of the Torts Crisis, 48 OHIO ST. L.J. 329 (1987); Wiggins & Caldwell, Liability-Limiting Legislation: An Impermissible Intrusion into the Jury's Right to Decide, 36 DRAKE L. REV. 723 (1986-87).
301. See Page, supra note 300, at 657.
302. See Sugarman, supra note 300, at 333-34; Wiggins & Caldwell, supra note 300 at 724-26.
303. See Sugarman, supra note 300, at 333-38; Page, supra note 300, at 662.
304. See Sugarman, supra note 300, at 335; Page, supra note 300, at 658.
305. See Community, Business, Civic Groups Form Coalition to Reform State, Federal Tort Laws, BNA Daily Rept. for Executives, Jan. 17, 1986, at A-13.
306. Among the changes ATRA advocates to tort law are: (1) substituting "pure several liability" for joint and several liability so that a tortfeasor is liable only for the portion of plaintiff's injury that is assessed to him; (2) placing a ceiling on awards for noneconomic injuries such as pain and suffering, mental anguish, injury to reputation, loss of consortium, etc.; (3) requiring that all punitive awards be made by judges rather than juries and capping punitive awards at twice the amount of economic damages; and (4) limiting attorneys' contingency fees.
ATRA proposes many significant changes to products liability law which, in its words, are "intended to prevent the spread of judicially created absolute liability in those specific areas where courts have shown a tendency to depart from traditional fault-based principles." ATRA, Fault-Based Liability Standards and Defenses, at C-1 (unpublished document obtained from ATRA). Under ATRA's proposals, inter alia, a manufacturer would not be liable unless an alternative design that would have prevented the harm was available, or if: (a) the unsafe aspect of the product is an inherent characteristic that would be recognized by the ordinary person; (b) the harm was caused by an unavoidably unsafe aspect of the product; (c) the product was misused by the consumer or others; or (d) the harm was caused by a defective condition of which the claimant was aware and fully understood the potential risk. Id. at C-1 - C-2.
307. E.g., American Hospital Association, American Medical Association, American Nurses' Association, American Osteopathic Association, American Red Cross.
308. E.g., American Insurance Association, AEtna, CIGNA, Crum & Forster Insurance Co., Hartford Insurance Co., Nationwide Insurance Companies, State Farm Insurance Companies, Travelers Companies.
309. E.g., Dow Chemical Co., E.I. DuPont de Nemours & Co., Exxon Co., Montsanto Co., Union Carbide Corp.
310. E.g., American Home Products, Boeing Co., General Electric Co., Rockwell International, TRW Inc.
311. E.g., Eli Lilly and Co., Johnson & Johnson, Merck & Co., Inc., Pfizer, Inc., Pharmaceutical Manufacturers Association.
312. All membership information is from the ATRA membership list as of July 9, 1990, obtained from ATRA, 1212 N.Y. Ave., Suite 515, Washington D.C. 20005. It appears that ATRA may be careful not to invite particularly controversial firms to be members. Notably absent from its list are tobacco and asbestos firms. The absence of the N.R.A., therefore, may be a deliberate tactical choice.
313. See Page, supra note 300, at 676 n.138.
314. Id. at 676-77 n.139.
315. Id. at 676 n.138. See also Reagan Reiterates Support for Liability Suit Limits, N.Y. Times, May, 31, 1986, at A28, col. 1.
316. See Page, supra note 300, at 676 n.138.
317. President Reagan implied that the man sued only the telephone company by saying, "[I]t's no surprise that the injured man sued, but you may be startled to hear who he sued: the telephone company and associated firms." See Reagan Reiterates Support for Liability Suit Limits, supra note 315.
322. Id. Some of these stories are repeated as if they are true in a book on tort reform by Peter W. Huber, a senior fellow at the Manhattan Institute, a conservative think tank. HUBER, LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES 220 (1988).
323. This count is taken from ATRA literature entitled Successful Tort Reform Efforts 1986-89. The states that, according to ATRA, have not enacted some of its proposals are Arkansas, Delaware, Massachusetts, North Carolina, Pennsylvania, Tennessee, West Virginia, and Wisconsin.
324. Republican Platform, Aug. 16, 1988, supra note 298, at 9.
325. See L. HARRIS, INSIDE AMERICA 101 (1987).
326. See Comment, Judicial and Legislative Control of the Tobacco Industry: Toward a Smoke-Free Society, 56 U. CIN. L. REV. 317, 332 n.89 (1987).
327. 15 U.S.C. §§ 1331-41 (1982).
328. See Comment, supra note 326 at 326, n.48.
329. See id. at 327.
330. See id. at 329 (regulatory exemptions) and 331 (subsidies).
331. See Jacobson, After Cipollone v. Liggett Group, Inc.: How Wide Will the Floodgates of Cigarette Litigation Open?, 38 AM. U.L. REV. 1021, 1022 (1989).
332. For a survey of all cases, see id. at 1030-36.
334. Pennington v. Vistron Corp., 876 F.2d 414, 420-21 (1989); Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230, 235 (6th Cir. 1988); Palmer v. Liggett Group, Inc., 825 F.2d 620, 626 (1st Cir. 1987); Stephen v. American Brands, Inc., 825 F.2d 312, 313 (11th Cir. 1987); Cipollone v. Liggett Group, Inc., 789 F.2d 181, 187 (3d Cir. 1986), cert. denied, 107 S.Ct. 907 (1987).
335. Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 94, 577 A.2d 1239, 1251 (1990). In addition, one federal court of appeals and one state supreme court have held that tort claims that do not rely on a failure to warn are not preempted by the Cigarette Act. See Pennington v. Vistron Corp., 876 F.2d 414, 423 (5th Cir. 1989); Forster v. R.J. Reynolds Tobacco Co., 437 N.W.2d 655, 661-62 (Minn. 1989).
336. 693 F.Supp. 208 (D.N.J. 1988).
337. E.g., Denting the Cigarette Industry's Legal Armor, N.Y. Times, June 19, 1988, at E28, col. 1.
338. E.g., Jacobson, After Cipollone v. Liggett Group, Inc.: How Wide Will the Floodgates of Cigarette Litigation Open?, 38 AM. U.L. REV. 1021 (1989).
339. 893 F.2d 541, 583 (3d Cir. 1990), cert. granted, 59 U.S.L.W. 3652 (U.S. Mar. 25, 1991) (No. 90-1038).
340. The New Jersey Products Liability Act, N.J. STAT. ANN. § 2A:58C (West 1987). This legislation may be characterized as defense-oriented "tort reform" legislation that is discussed more extensively supra in the text accompanying notes 300-24.
341. The district court's unpublished opinion of Oct. 27, 1987, is discussed in the Third Circuit's opinion at 893 F.2d 541, 577-78.
The district court held that the new law codified existing common law and that, therefore, the legislature intended that it apply retroactively. However, the New Jersey Supreme Court has since found the reverse. Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 94-95, 577 A.2d 1239, 1251-52 (1990), cert. granted, 59 U.S.L.W. 3652 (U.S. Mar. 25, 1991) (No. 90-1038).
342. Cipollone, 893 F.2d at 577-78.
343. See supra note 340.
344. One intriguing parallel is the amnesiac effect that both cigarettes and handguns seem to have on courts, wiping risk-utility decisions from their memories. See supra note 217.
345. The three major decisions holding that the Cigarette Act does not preempt all state tort claims are relatively recent. See note 335 supra. In addition, even though it was subsequently overturned, the Cipollone verdict was generally perceived as a chink in the tobacco industry's armour.
346. See Tobacco Lobby is Targeting Pa. on Liability Laws, Philadelphia Inquirer Sept. 26, 1990, at B1, col. 1; Heavyweight Fight Looms over Products Liability, Legal Intelligencer, Sept. 26, 1990, at 1, col. 1; Unsafe Proposal, Philadelphia Inquirer, April 3, 1990, at 10-A, col. 1.
347. The famous phrase was coined by Professor William L. Prosser in his article, The Assault Upon the Citadel, 69 YALE L.J. 1099 (1960), in which he urged and predicted the adoption of strict liability. Six years later he was able to report that the citadel had fallen. See Prosser, The Fall of the Citadel, 50 MINN. L. REV. 791 (1966).