Idaho Law Review
Comments 37 (2000): 167.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.USING THE COURTS TO TARGET FIREARM MANUFACTURERS
CommentTable of Content
I. INTRODUCTION..................................................................... 167
II. FIREARM MANUFACTURERS SHOOT HOLE IN
PLAINTIFF'S CLAIMS................................................................ 170A. Traditional Strict Liability.............................................. 170
B. Products Liability............................................................ 175
1. Strict Liability in Tort............................................ 176
2. Product Category Liability.................................... 177
III. BRINGING FIREARM MANUFACTURERS INTO THE
CROSSHAIRS¾PLAINTIFFS REACHING THE JURY ON
NEGLIGENCE CLAIMS.............................................................. 182A. Duty................................................................................ 182
B. Breach............................................................................. 188
C. Causation........................................................................ 190
D. Damages......................................................................... 192
IV. U.S. CITIES TAKE UP ARMS AGAINST THE GUN
INDUSTRY.................................................................................. 194A. Changing Gun Designs Will Not Prevent Criminal
Misuse................................................................................. 196B. Firearm Manufacturers' Conduct Does Not Create an
Illegitimate Secondary Market of Handguns...................... 197C. Firearm Manufacturers Do Not Design Their Guns to
be Used in Crime................................................................ 200D. The Production of Firearms is not a Public Nuisance.... 201
V. CONCLUSION...................................................................... 202
I. INTRODUCTION
Criminal misuse of firearms has a significant impact on individual victims and their families.[1] It also has an impact on local and national governments.[2] Each year billions of dollars are spent on the direct and indirect costs of firearm injuries with a significant portion of [Page 168] the financial burden borne by local governments.[3] In an effort to shift the financial costs of firearm misuse, thirty-two United States cities in fifteen different states have filed lawsuits against the gun industry.[4]
Prior to 1998, claims against firearm manufacturers had been largely unsuccessful.[5] These early suits sought to hold firearm manufacturers liable under traditional tort theories¾strict products liability, strict liability for abnormally dangerous activities, and negligence.[6] The most prevalent claim proposed was products liability, where the plaintiff alleged "that the lethal nature of firearms constituted a design defect for which the defendant-manufacturers were strictly liable." [7] The doctrinal difficulties with these suits are twofold. First, plaintiff's failed to allege a particular defective condition in the firearm, which caused it to malfunction.[8] Second, firearms function as designed thus, they are not defective.[9]
Other efforts were made to hold firearm manufacturers liable.[10] Some plaintiffs alleged that the defendant-manufacturers' conduct constituted an abnormally dangerous activity that subjected the manufacturers to strict liability.[11] Others made negligence claims alleging that the manufacture and sale of firearms creates an unreasonable risk of harm.[12] These claims, however, were dismissed on two [Page 169] grounds.[13] First, the scope of traditional strict liability is limited and second, manufacturers generally have no duty to refrain from marketing a non- defective product.[14]
The failure of these early lawsuits did not deter plaintiffs from seeking new ways to hold firearm manufacturers liable.[15] For instance, in Halberstam v. S.W. Daniel, Inc., [16] the plaintiff managed to overcome the doctrinal obstacles that plagued previous lawsuits by alleging, in addition to products liability claims, that firearm manufacturers owed a duty to the general public to adopt reasonable restraints in marketing their products.[17] There, the plaintiff broke new ground by obtaining an unprecedented jury consideration.[18]
A year later, in Hamilton v. Accu-Tek, [19] a New York jury handed down a decision holding nine firearm manufacturers liable for handgun violence.[20] Like the court in Halberstam, the Hamilton court dismissed the products liability and strict liability claims, but allowed the case to go to the jury on the theory that the defendant-manufacturers had negligently marketed their products.[21]
In the wake of Halberstam and Hamilton, several United States cities have filed suit under similar legal theories.[22] For example, the State of California has sued twenty-eight firearm manufactures, alleging that the manufacturers:
knowingly and recklessly market, distribute, promote, design and sell handguns . . . the primary tool used to commit crime - in a manner that facilitates their use in crime, that fails to incorporate reasonable safety features, that deceives the public about the dangers of possessing a firearm, and that circumvents federal, state and local laws.[23] [Page 170]
The California plaintiffs also allege that the business practices of the defendant-manufacturers have created a public nuisance, from which the defendant-manufacturers have been unjustly enriched.[24]
This comment examines the individual theories brought by private plaintiffs and analyzes the claims being filed against the gun industry by city plaintiffs. It concludes that the present state of tort law cannot support the proposed legal extensions, which form the basis for both the private and public lawsuits.
II. FIREARM MANUFACTURERS SHOOT HOLES IN PLAINTIFFS' CLAIMS
A. Traditional Strict Liability
Traditional strict liability was born in English Courts.[25] By the end of the nineteenth century English law had welcomed the doctrine into its jurisprudence.[26] However, spanning the sea proved difficult.[27] At first, American courts were reluctant to welcome the doctrine, but eventually adopted it into the Restatement of Torts.[28] Under the Restatement, strict liability would be imposed on those who engage in "ultrahazardous" activities.[29] Thirty-eight years later, the scope of the theory was broadened in the Restatement (Second) of Torts, which states that "[o]ne who carries on an abnormally dangerous activity is subject to liability for harm . . . resulting from the activity, although . . . the utmost care to prevent the harm" was exercised.[30]
To determine whether an activity is abnormally dangerous, section 520 of the Restatement (Second) lists six factors for consideration:
[1] existence of a high degree of risk of some harm to the per- [Page 171] son, land or chattel of others; [2] likelihood that the harm that results from it will be great; [3] inability to eliminate the risk by the exercise of reasonable care; [4] extent to which the activity is not a matter of common usage; [5] inappropriateness of the activity to the place where it is carried on; and [6] extent to which its value to the community is outweighed by its dangerous attributes.[31]
It is not necessary that all the factors be present.[32] However, the balance of these factors must weigh in favor of strict liability.[33]
The enumerated factors of section 520 create a guide to solving the question of whether an injurer should be strictly liable.[34] The first three factors look at the nature of the risk, seeking to measure the degree of danger an activity imposes.[35] The rationale is, "the more dangerous an activity is, the more violent it is likely to be, and therefore the more likely it is to destroy evidence" pertinent to the plaintiff's negligence-based case.[36] The last three factors look at societal interests.[37] Factors four and five, commonality and inappropriateness, help courts determine which party is more capable of protecting victims from harm.[38] The more uncommon and inappropriate an activity is in an area, the more likely the potential victims are unable to protect themselves.[39] The last factor¾value to the community¾occasionally acts as a shield from strict liability, but only if the activity warrants such protection.[40] Ultimately, once it is determined that the defendant's conduct is abnormally dangerous, he becomes an insurer of safety and thus, bears the burden of fixing and/or controlling the danger.[41]
Plaintiffs in firearm manufacturer suits have frequently pled strict liability.[42] However, with equal frequency courts have rejected [Page 172] it.[43] For example, in Kelley v. R.G. Industries, Inc., [44] suit was brought against a firearm manufacturer based in part on traditional strict liability.[45] The factual underpinnings of the case involved an armed robbery of a convenience store where plaintiff was shot in the chest with a "Saturday Night Special" [46] handgun.[47] The complaint alleged that the handgun was abnormally dangerous and that the manufacturer produced a handgun which was "defective in its 'marketing, promotion, distribution and design,' rendering it 'unreasonably dangerous."' [48] The court ultimately held the manufacturer liable but determined that the doctrine of traditional strict liability does not apply to manufacturers or marketers of handguns.[49] The court reasoned that "[t]he dangers inherent in the use of a handgun . . . bear no relation to any occupation or ownership of land" and therefore, to impose strict liability on firearm manufacturers would broaden the scope of the doctrine.[50] [Page 173]
The reluctance of courts to impose traditional strict liability on firearm manufacturers also reflects their concern for the economic ramifications of such a liability rule.[51] In Perkins v. F.I.E. Corporation, a medical student was raped, robbed and fatally shot by a criminal wielding a handgun manufactured by the defendant.[52] The mother of the victim brought a wrongful death suit against the defendant-manufacturer on the grounds that the sale of the firearm constituted an abnormally dangerous activity.[53] The United States District Court for the Eastern District of Louisiana granted the manufacturer's motion for summary judgment on the products liability claim, but denied the motion on the plaintiff's abnormally dangerous activity claim.[54] The court then certified all questions of law to the Fifth Circuit Court of Appeals, which reversed, stating that to classify the marketing of firearms as an ultrahazardous activity "'would in practice drive manufacturers out of business' and 'would produce a handgun ban by judicial fiat."' [55] Moreover, to establish such a classification rule would open the door to extending the doctrine to "the manufacturers of any instrumentality that can be used dangerously." [56] Therefore, the court concluded that liability predicated on strict liability requires more then the potential danger spawned from the product's use.[57] The manufacturer's conduct must be dangerous.[58] Consequently, the selling of firearms should not rise to the requisite level of dangerousness, even though the product's misuse may be fatal.
A similar conclusion was reached in Moore v. R.G. Industries, Inc.[59] There, strict liability was not imposed on the manufacturer of an automatic handgun because the court found that defendant's conduct did not rise to the requisite level of ultrahazardousness.[60] The court then held that "handguns are widely used, and that the harm they pose comes from their use, rather than from the nature of their existence alone." [61] Consequently, the subsequent dangerous handling [Page 174] of firearms did not constitute an abnormally dangerous activity on the part of the manufacturer.[62]
This rationale was adopted in Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.[63] In Indiana Harbor, the circuit court held that transporting hazardous materials by railway did not constitute an abnormally dangerous activity.[64] It then stated that "[w]hatever the situation under products liability law, the manufacturer of a product is not considered to be engaged in an abnormally dangerous activity merely because the product becomes dangerous when it is handled or used in some way after it leaves his premises, even if the danger is foreseeable." [65] The court emphasized that ultrahazardousness or abnormal dangerousness is based on activities not products.[66]
Courts have also held that the manufacture and distribution of firearms constitutes a matter of common usage.[67] In Caveny v. Raven Arms Co., [68] the victim's estate brought suit against the firearm manufacturer that produced the gun used to kill the victim.[69] The plaintiff alleged that the manufacture and distribution of the Saturday Night Special handgun used to commit the crime constituted an ultrahazardous activity.[70] The court rejected this argument, and held that the use of the ultrahazardous activity doctrine does not apply to matters of common usage and "[w]ithout a doubt manufacturing and distributing handguns is a matter of common usage." [71]
Today the doctrine of traditional strict liability holds little hope for plaintiffs suing firearm manufacturers. Courts have consistently rejected the theory on the grounds that the manufacture and distribution of firearms constitutes a lawful activity whereby the manufacturer cannot possibly be engaged in an abnormally dangerous activ-[Page 175] ity.[72] Other courts have focused on the fact that the abnormally dangerous activity doctrine is land-based and the manufacture and distribution of firearms has no relation to land.[73] Still, other courts have based their decision on the fact that the Restatement (Second) of Torts precludes the application of the doctrine to firearm manufacturers because the activity complained of is a matter of common usage.[74] Lastly, courts have held that manufacturing and distributing firearms is a lawful enterprise and the subsequent misuse of the product is not related to the manufacturers' activities.[75] In light of these courts' rulings, it seems unlikely that subsequent lawsuits against firearm manufacturers predicated on traditional strict liability will survive summary judgment.
B. Products Liability
The law governing liability for defective products has evolved dramatically in the last century.[76] In the nineteenth century, the law of products liability required that the injured party and the manufacturer have a contractual relationship.[77] Over time this requirement became so riddled with exceptions that it eventually gave way to negligence, [78] which in turn gave way to strictly liability in tort.[79] [Page 176]
1. Strict Liability in Tort
Strict liability for defective products is defined in section 402A of the Restatement (Second) of Torts.[80] Under the Restatement, strict liability is to be imposed upon any product seller who sells a product "in a defective condition unreasonably dangerous to the user or consumer." [81] One definition of "unreasonable danger" is set out in Philips v. Kimwood Machine Co.[82] There, the court held that unreasonable danger meant "dangerous to an extent beyond that which would be contemplated by the ordinary consumer." [83] If, however, the product is unavoidably unsafe, [84] the unreasonable danger is determined by the adequacy of the warning.[85]
The determination of "unreasonable danger" is critical to a products liability case.[86] However, this determination alone is insufficient to impose strict liability in tort.[87] The plaintiff, must also establish that the defendant is a seller engaged in the business of selling products of that kind and that the product was expected to, and does, reach the consumer substantially unchanged.[88] Here, unlike traditional strict liability, the focus is on the product's condition rather than the conduct of the manufacturer.[89] Therefore, recovery is predicated on the existence of a defect, either in the design, manufacture, or adequacy of the warning.[90] If the plaintiff fails to fit her case into one of these defects, strict liability in tort will not apply.
In firearm cases, the failure to allege a particular defective condition is a common bar to plaintiffs' recovery.[91] For example, in Moore v. R.G. Industries, Inc., a plaintiff who was rendered quadriplegic from a gunshot wound intentionally inflicted by her husband brought suit against the weapon's manufacturer.[92] The trial court granted sum- [Page 177] mary judgment for the defendant-manufacturer, holding that it could not be liable for injuries intentionally inflicted by a person using a properly operating handgun.[93] On appeal, the ninth circuit affirmed basing its opinion on the fact that the firearm was not defective because it performed as intended.[94]
A similar result was reached in Shipman v. Jennings Firearms, Inc.[95] In Shipman, the estate of a fatally shot victim brought suit against the firearm manufacturer who designed the weapon used by the criminal perpetrator.[96] The plaintiff alleged that the lethal nature of the firearm constituted a design defect.[97] The trial court disagreed, and granted summary judgment for the defendant.[98] On appeal, the eleventh circuit affirmed, holding that strict products liability is inapplicable when the firearm performs as intended and designed.[99]
Many courts adhere to the decisions handed down by the Moore and Shipman courts.[100] In fact, these holdings have become boilerplate.[101] Therefore, actions brought against firearm manufacturers will ultimately fail if the firearm that injured the plaintiff did not have a particular defective condition.
2. Product Category Liability
Courts employing products liability law have rejected the imposition of absolute liability.[102] However, according to some commentators, the failure to allege a particular defective condition should not be dispositive.[103] Proponents of this rationale argue that a limited number [Page 178] of product categories should be deemed defective solely because the manufacturer is in a better position to bear the costs of the injuries caused by its products.[104] While the imposition of liability without a particular defective condition is appealing to some, it has drawn substantial negative attention.[105]
Plaintiff proponents have attempted to convince the courts that holding manufacturers accountable for injuries without an independent defective condition is supported by new societal standards.[106] These proponents, however, in practical effect, are attempting to create a liability scheme that scraps traditional doctrines of products liability law, and imposes a duty on manufacturers that make them insurers of safety.[107] Fortunately, this theory has found little support in the courts.[108]
Proponents of product category suggest that the courts, through tort litigation, can "select certain generic product categories and hold manufacturers of those products accountable for injuries" even though there is no defect in the individual product.[109] No bright line test has emerged, but efforts to develop the conceptual framework have limited the evaluation to two theoretical approaches.[110] First, proponents argue that the courts could employ a test that determines the category "on the basis of a risk-utility balancing, deciding which categories of products, in the aggregate, generate more social costs than [Page 179] benefits."[111] Second, the courts could select the category on the basis of an adaptation of the doctrine of traditional strict liability.[112]
Under the risk-utility approach, "whenever the unavoidable risks associated with a given product category" outweighs the social utility of that product, categorical liability would be invoked to hold the manufacturer liable for the injuries sustained by the plaintiff.[113] For instance, in O'Brien v. Muskin Corp., [114] the plaintiff, after suffering injuries from diving into a shallow aboveground swimming pool manufactured by the defendant, brought suit under strict liability in tort.[115] The plaintiff alleged that the defendant should be strictly liable for his injuries because the vinyl pool bottom was too slippery.[116] The central issue in the case focused on the appropriateness of the vinyl pool liner.[117] The trial court refused to submit the design defect claim to the jury "because the plaintiff's expert admitted that he knew of no aboveground swimming pool that used any material other than vinyl as a liner and he could not suggest an economically viable [alternative]."[118]
On appeal, the New Jersey Supreme Court reversed, holding that there are some products that are so dangerous and of so little utility that the risks associated with their use outweigh their benefits.[119] In such instances, the court continued, the manufacturer is in a better position to bear the costs of injury, even though no safer alternative is available.[120] The court then concluded that, even in the absence of a feasible alternative design, the jury was entitled to make a risk-utility determination.[121]
Although the product category liability theory was successful in O'Brien, the victory was short-lived.[122] In 1987, the New Jersey Leg- [Page 180] islature passed a bill that eliminated manufacturers' liability for products defectively designed.[123]
The theory was tested against a cigarette manufacturer in Gunsalus v. Celotex Corp.[124] There, plaintiff sought to proceed on a product category liability theory by alleging that the cigarette manufacturer's product was the contributing cause of lung cancer and therefore the manufacturer should be strictly liable.[125] The court rejected the argument, and held that plaintiff could not proceed without alleging a particular defective condition.[126] To do otherwise, the court explained would overstep the judicial function.[127]
A similar result was reached in Patterson v. Rohm Gesellschaft.[128] In Patterson, a grocery store clerk was shot and killed with a firearm manufactured by the defendant.[129] The plaintiff argued product category liability, but the court emphatically rejected the claim, [130] and held that the "judicial system lack[s] the institutional capacity to deal with issues of this kind." [131]
A differing result occurred in Kelley v. R.G. Industries, Inc.[132] There, the Maryland Supreme Court found that, although the defendant-manufacturer's handgun was not defective, it nevertheless subjected the manufacturer to strict liability on a categorical basis.[133] Their examination found Saturday Night Special handguns unfit for any legitimate purpose.[134] Therefore, the court held that public policy demanded the weapons be deemed categorically defective.[135] [Page 181]
The categorical liability victory of Kelley, however, was short- lived.[136] In 1988, Maryland's legislature adopted legislation that prohibited the imposition of strict liability for injuries resulting from the criminal misuse of firearms.[137]
Courts have consistently rejected the imposition of product category liability.[138] Many factors influence these decisions.[139] First, categorical liability rejects the traditional defect approach, which is the core of modern products liability law.[140] Without a defect either in design, manufacture, or warning, a manufacturer becomes an insurer of safety, which if adopted by the courts would unduly inhibit product availability by failing to accommodate practical realities.[141]
Second, courts are ill equipped to decide which manufacturers should be deemed categorically liable for resulting harm.[142] This is a legislative function that requires democratic consensus.[143] Moreover, the decisions made by both judge and jury are confined to the individual fact scenarios presented in each case.[144] Deciding issues outside those fact scenarios constitutes dictum.
Judicial restraint has played a significant role in the rejection of product category liability. Courts are unwilling to overstep the judicial function and, more often then not, defer these issues to Congress or state legislatures. Consequently, the imposition of liability, predicated on product category is very unlikely. [Page 182]
III. BRINGING FIREARM MANUFACTURERS INTO THE CROSSHAIRS¾PLAINTIFFS REACHING THE JURY ON NEGLIGENCE CLAIMS
Given the difficulties of holding firearm manufacturers liable under traditional strict liability and products liability law, plaintiffs have turned to the more flexible theory of negligence.[145]
Negligent marketing has emerged as a viable theory against firearm manufacturers.[146] To prevail on such a theory, plaintiff must prove that defendant had a duty of care that was breached by engaging in conduct that created an unreasonable risk of harm, and that this breach proximately caused plaintiff's injury.[147]
A. Duty
Duty in negligence is the conclusion that one class of individuals has a socially imposed obligation to act with care to avoid invading the interests of some other class of individuals.[148] For example, driving an automobile clearly involves a foreseeable risk of harm. Therefore, as a class of individuals, drivers have a socially imposed obligation to drive with reasonable care to avoid invading the interests of those put at risk by the drivers' actions. Similarly, manufacturing firearms involves a foreseeable risk of harm. The risk, however, is that the firearm manufacturer will produce a firearm that has a particular defective condition. Thus, firearm manufacturers have a duty to manufacture non-defective products.
Prior to 1998, imposing a duty on firearm manufacturers without establishing a defective condition in their firearms proved difficult.[149] Several plaintiffs sought to establish duty based on a negligent marketing theory.[150] These claims, however, were plagued with "three previously insurmountable doctrinal obstacles." [151] The first obstacle involved the application of the negligent entrustment doctrine.[152] According to the Restatement (Second) of Torts:
[o]ne who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely . . . to use it in a manner involving unrea- [Page 183] sonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.[153]
Comments extend this rule to product sellers.[154]
The critical element to the establishment of a negligent entrustment case is a "showing that the entrustor knew or should have known some reason why entrusting the item to another was foolish or negligent." [155]
In the commercial setting, liability under negligent entrustment "arises from selling potentially harmful products to consumer groups that lack the capacity to exercise ordinary care." [156] For example, if an automobile seller sells an automobile to a drunk, that seller has affirmed a duty to protect those subject to harm by the actions of the entrustee-drunk. This same rationale can be applied to firearm manufacturers. Firearm manufacturers have a duty not to sell firearms to individuals whom they know or have reason to know will use the weapon foolishly or negligently. Selling firearms to the general public does not invoke liability under the negligent entrustment doctrine.[157]
In Linton v. Smith & Wesson, the plaintiff alleged that the defendant- manufacturer had a "duty to use 'reasonable means to prevent the sale of its handguns to persons who are likely to cause harm to the public."' [158] The Linton court expounded several reasons for not imposing liability.[159] First, firearm manufacturers have no duty to refrain from marketing non-defective products.[160] Second, since the firearm manufacturers market their product "to the general public¾who as a group define the standard of care¾such marketing cannot entail an unreasonable risk of harm." [161] Third, federal and state statutory regulations "filter out high-risk purchasers, thereby making lawful purchasers a low-risk group." [162]
A second obstacle to establishing a duty of care was the courts' unwillingness to see negligent marketing as anything other than a disguised design defect claim.[163] The problem that faced the courts [Page 184] was that plaintiffs argued that firearm manufacturers have a duty to refrain from marketing their product because firearms are potentially lethal.[164] The courts were not receptive to these arguments.[165] In fact, they rejected them on the grounds that firearm manufacturers have no duty to refrain from marketing lawful products.[166]
In Hamilton v. Accu-Tek, an action was brought against multiple firearm manufacturers for the death of individuals shot and killed by criminal perpetrators wielding illegally obtained handguns.[167] The plaintiffs alleged, inter alia, that the defendant manufacturers negligently marketed their weapons in a manner that fostered the growth of a substantial underground market, which made guns readily available to criminals.[168] The judge allowed the case to go forward, but rejected the argument that the lethal nature of handguns creates a legal duty.[169] To explain his position, Judge Weinstein stated that "[t]he mere act of manufacturing and selling a handgun does not give rise to liability absent a defect in the manufacture or design of the product itself." [170] To rule otherwise "would create limitless liability for any deaths caused by the use of the gun model used in the killings." [171]
Although Judge Weinstein clarified that firearm manufacturers have no duty to refrain from marketing their product, he indicated that if a plaintiff alleges a duty of care short of ceasing production, dismissal of his suit would be unlikely.[172] The catch, however, is that the plaintiff must demonstrate that specific features of a defendant's marketing strategy are unreasonable.[173]
The third obstacle to establishing a duty in a negligent marketing claim is the reluctance of the courts to create a duty to protect others from the intervening criminal or tortious misconduct of third persons, absent a special relationship between the firearm manufacturer and the injurer or the victim.[174] By and large, the imposition of a [Page 185] duty requires some act by the defendant that created a foreseeable and unreasonable risk of harm.[175] Absent some control, one person is generally not liable for the conduct of another person.[176] If, however, the defendant bears some special relationship to the third party, a duty may arise, but only if the defendant has the ability and authority to control the instrumentality or the third person's conduct.[177]
This obstacle can be addressed two ways.[178] First, plaintiffs may allege that the "defendant-manufacturer's own conduct created or increased the risk [of harm]." [179] Under this approach, the plaintiff "could argue that they do not seek to hold defendant-manufacturers liable for the conduct of third party criminals but only for harms proximately caused by supplying easy access to weapons tailored to criminal activity and encouragement to use them accordingly." [180] Consequently, the special relationship requirement becomes inapplicable.[181]
Second, plaintiffs may seek to establish that the defendant-manufacturer is in a special relationship with the general public or the third-party criminal.[182] For instance, in McCarthy v. Sturm, Ruger & Co., [183] the court pointed out that to hold manufacturers liable to injured plaintiffs requires that the defendant-manufacturer have the ability and authority to control the criminal's actions.[184] The problem that faced the plaintiffs in McCarthy was the fact that they could not prove that the defendant-manufacturer had a special relationship with the third party criminal. To overcome this problem, plaintiffs claimed that the defendant- manufacturer's act of "marketing [their] product create[d] a duty [that ran] . . . to all those affected by the use of the product marketed." [185] To support this argument, the plaintiffs asserted that "[i]t is now well established that the manufacturer . . . of a product, by marketing it, owe [s] a legal duty to those affected by its use." [186] The court disagreed and held that the common law has not adopted a negligent entrustment rule for the protection of the general [Page 186] public.[187] In addition, the court held that "[t]o extend [the] theory to the general public would be a dramatic change in tort doctrine," and would "imply that the general public lacks ordinary prudence . . . thus undermin[ing] the reasonable person concept so central to tort law." [188]
McCarthy stands for the proposition that negligent entrustment does not extend to the general public.[189] Some commentators, however, have argued that it does.[190] For instance, Timothy D. Lytton points out that "[i]f the relationship between a manufacturer and a bystander supports a duty under products liability doctrine, it might support a duty of care in [a] negligence [action]." [191] He further asserts that "[f]uture plaintiffs might argue that the introduction of firearms into the stream of commerce should carry with it some special responsibility to the public." [192] This statement, however, finds little support in the courts.[193] In fact, Lytton warns his readers of this point.[194]
In addition to the difficulties of finding a special relationship, courts are reluctant to impose a duty to anticipate the criminal or tortious acts of third persons.[195] The courts' reluctance is twofold.[196] First, they are concerned that imposing a duty in such circumstances would create crushing liability on prospective defendants.[197] Second, courts [Page 187] fear that imposing a duty on defendants who could have done very little to prevent the harm creates unavoidable and, thus, near absolute liability.[198] The court in Hamilton v. Accu-Tek addressed these concerns.[199]
In Hamilton, the court determined that firearm manufacturers have a legal duty to market their products in a way that does not add to the criminal misuse of firearms.[200] The court determined that application of this duty would not subject firearm manufacturers to crushing liability nor impose a duty requirement that approached absolute liability.[201] Reasonable steps could have been taken to "reduce the risk of criminal misuse by ensuring that the first sale was by a responsible merchant to a responsible buyer." [202] The court then opined that firearm manufacturers should bear the true economic costs of their product.[203] Moreover, firearm manufacturers' ongoing close relationship with downstream distributors and retailers provided them with "'sufficient authority and ability to control' the latter's conduct for the protection of prospective victims." [204]
Duty predicated on the manufacturer's control over down-stream distributors and retailers, while appealing to potential plaintiffs is not supported by other courts.[205] In fact, the Hamilton court's failure to adhere to case precedent may prove fatal. Most courts hold that manufacturers can reasonably rely upon the assumption that others will obey the criminal law.[206] Consequently, it seems unlikely that courts beyond the eastern district of New York will impose a legal duty on firearm manufacturers that requires them to anticipate the intervening criminal acts of third persons whom they have no ability or authority to control.[207] [Page 188]
In the absence of a legal duty, the plaintiff cannot maintain a negligence suit.[208] Therefore, it is critical to note that most cases against firearm manufacturers are dismissed for failure to demonstrate that a duty was owed to protect the plaintiff from criminal misuse of firearms.[209] However, if the plaintiff can successfully establish a legal duty, there are additional problems with the remaining elements of a negligence claim.[210]
B. Breach
"Negligence is the failure to exercise the care that would have been exercised by the reasonably prudent person under [similar] circumstances." [211] To prove negligence, a plaintiff must establish that the defendant breached their duty of care by engaging in conduct that created an unreasonable risk of harm. The primary factor to be taken into account in assessing the reasonableness of the defendant's conduct is foreseeability.[212] The logic is that reasonable care involves a connection between foreseeability and behavior. Consequently, a defendant cannot be negligent for failing to take precautions regarding an unforeseeable risk of harm.[213]
The question of breach becomes complex when plaintiffs seek to impute breach from the negligent or criminal acts of a third party actor.[214] In such situations, the conduct of the third party can create an [Page 189] unreasonable risk of harm for which defendant-manufacturers should be liable.[215] Under this paradigm, however, the defendant must have a legal duty that was breached by failing to anticipate and guard against the third party's foreseeable misconduct.[216]
Third party misconduct is a central issue in lawsuits against firearm manufacturers.[217] To survive summary judgment, a plaintiff must allege either that the manufacturer breached his duty to anticipate the risk of criminal activity, [218] or demonstrate that the manufacturer implemented a marketing plan that targets criminal misuse.[219]
The standard of care employed against a manufacturer is measured by a reasonable prudent entity standard, where strict compliance with all relevant laws and regulations is not dispositive.[220] To satisfy this standard, the manufacturer must take preventive measures to act in accordance with reasonable prudence.[221]
Reasonable prudence likely requires: (1) manufacturers obtain sufficient knowledge of firearm production so as to ensure against producing and distributing defective firearms, and (2) firearm manufacturers must not negligently distribute their firearms to individuals they know or have reason to know will use their product negligently or foolishly.[222] These two areas have been exhaustedly covered by previous cases, and have resulted in favorable rulings for defendant-[Page 190] manufacturers.[223] Moreover, plaintiffs will likely fail to establish breach because the production and distribution of firearms constitutes a matter of common usage, [224] and selling products "to the general public, who as a group define the standard of care, cannot entail a foreseeable risk of harm." [225]
C. Causation
Essential to the plaintiffs case is a showing that there is a reasonable connection between defendant's breach and plaintiff's injury.[226] "This connection usually is dealt with by the courts in terms of what is called 'proximate cause,' or 'legal cause."' [227] Proximate cause is often dealt with in terms of foreseeability.[228] Thus, to be liable plaintiff's injury must be a foreseeable result of the defendant's conduct.[229] This foreseeability test demands that the harm be within the risk.[230] Consequently, the injury suffered by the plaintiff must be the type of risk associated with the defendant's conduct.
Although the foreseeability and harm-within-the-risk tests are relatively straightforward, they are not always dispositive.[231] Sometimes these tests do not entirely solve the question of whether defendant's conduct or omission proximately caused plaintiff's injury.[232] For example, cases involving the issue of intervening and superseding cause.[233]
Ordinarily, an intervening cause does not break the chain of causation unless it is also a superseding cause.[234] To be a superseding cause it must be of "such an extraordinary nature or so attenuated from the defendant's conduct that responsibility for the injury should not reasonably be attributed to [the defendant]." [235] [Page 191]
Generally, the subsequent intentional tortious or criminal acts of third persons will break the causal chain.[236] There are, however, cases in which the original defendant is negligent precisely because his action risks the intentional misconduct of third persons.[237] Under these circumstances, the chain of causation is not broken.[238]
Cases brought against firearm manufacturers raise the issue of whether the acts of third party criminals break the chain of causation. According to the Restatement (Second) of Torts, a defendant "[n]ormally . . . has much less reason to anticipate intentional misconduct than he has to anticipate negligence." [239] Therefore, as a general rule, the illegal acts of third persons producing injury "should be treated as the proximate cause, insulating and excluding the . . . defendant [from liability]." [240]
This principle has been recognized in firearm related cases.[241] In Bennet v. Cincinnati Checker Cab Co., an ex-convict wielding a revolver imported by the defendant-manufacturer shot the plaintiff.[242] "The plaintiff alleged that the defendant firearm dealer 'should have reasonably foreseen and anticipated that the weapon . . . would be used in the commission of a crime."' [243] The court held that the "plaintiff's complaint failed to state a claim upon which relief could be granted since '[t]here is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging [Page 192] than those which are merely negligent; and this is all the more true where . . . such acts are criminal."'[244]
Similarly, in Robinson v. Howard Brothers of Jackson, Inc., [245] the court refused to find that a product seller proximately caused plaintiff's injury.[246] In Robinson, the defendant firearm dealer sold a pistol to a minor in violation of both state and federal law.[247] Subsequently, the minor used the weapon to murder his former lover.[248] The court refused to impose liability and held that:
The intentional criminal act [by the minor] . . . was an independent intervening cause that broke the causal connection between defendants' negligent act and the death of [the victim]. The criminal act cannot be said to have been within the realm of reasonable foreseeability because the defendants, although negligent per se, could reasonably assume that [the minor] would obey the criminal law.[249]
The foregoing cases involved the application of intervening and superseding cause to firearm dealers.[250] These cases represent the traditional view of causation. Consequently, it is unlikely that manufacturers, who as a group are one more step removed, could be held liable under similar circumstances. Moreover, to hold firearm manufacturers liable for the intentional criminal conduct of independent third persons would expand tort law beyond recognized principles and open the door to crushing liability. Therefore, if change is called for, the proper forum should be the legislature, not the courts.
D. Damages
At first glimpse, damages, the fifth element of a negligence claim, appears to be the easiest element to satisfy. A plaintiff must simply [Page 193] suffer an injury caused by the defendant's negligent conduct.[251] However, the type of theory alleged can limit damages.[252]
Damages in tort cases perform two functions, they "achiev[e] corrective justice by compensating the plaintiff for losses resulting from the defendant's tortious act, and promot[e] deterrence by threatening defendants with liability for the costs resulting from their tortious acts." [253] Consequently, a successful plaintiff may recover any compen- [Page 194] satory damages, [254] as well as, in particular situations, any exemplary or punitive damages as the jury or judge deems appropriate.[255]
Plaintiffs in firearm manufacturer suits often invoke wrongful death or survival statutes.[256] In a wrongful death actions, only the decedent's heirs may recover.[257] Under a survival statute, the decedent's estate becomes the beneficiary.[258] An additional limitation is imposed when measuring damages in such cases. A successful wrongful death suit measures the amount recoverable by equating dollars to the resulting loss the beneficiary suffered.[259] The measure of damage available in a survival action is limited to the amount that would have been recoverable if the decedent had lived a full life expectancy.[260] Moreover, punitive damage awards are precluded from the recoverable basis in survival actions, and pain and suffering damages are excluded from the loss calculus in wrongful death actions.[261]
IV. U.S. CITIES TAKE UP ARMS AGAINST THE GUN INDUSTRY
Violent crime is a nationwide problem.[262] In 1997 alone, it was estimated that approximately 1,635,000 violent crimes occurred in the United States.[263] Of those crimes, roughly 420,000 were firearm- related, and of those, 18,000 resulted in murder and nonnegligent [Page 195] manslaughters.[264] Viewing these numbers against the backdrop of the national total, firearms were involved in a low percentage of violent crimes. In fact, only 1.1 percent of all violent crimes result in firearm- related murders or nonnegligent manslaughters.[265] In light of this small fraction, suits against firearm manufacturers seem misplaced. Nevertheless, several cities have brought suit seeking social redress for firearm-related injuries.[266]
Unfortunately, courts are entertaining these suits and reinforcing the notion that the judicial system is an appropriate arena for gun-control legislation.[267] This is not surprising considering the hundred-year trend in American products liability law.[268] Nonetheless, holding firearm manufacturers liable to local governments oversteps the judicial function.[269]
The first string of local government lawsuits emerged in late 1998.[270] As of October 16, 2000, the number of lawsuits has grown to include thirty-two United States cities in fifteen different states.[271] The bulk of these lawsuits focus on the conduct of the firearm manufacturer, alleging that the gun industry facilitates gun violence by (1) failing to implement more safety features; (2) creating an illegitimate [Page 196] secondary market; and (3) designing guns specifically for use in crime.[272]
A. Changing Gun Designs Will Not Prevent Criminal Misuse [273]
In 1991, the General Accounting Office (GAO) published a report that indicated that unintentional firearm deaths could have been prevented by incorporating simple safety features.[274] The report concluded that about one-third of the total number of unintentional deaths in 1988 could have been prevented if a grip safety devise would have been implemented.[275] The report did not, however, address the impact these safety features would have on crime.[276]
Additional safety features are likely to reduce unintentional injuries.[277] However, the factual premise that such safety features will reduce crime is unsupported by credible, empirical evidence.[278] No study has shown that there is a corollary between safety features and the crime rate. More importantly, and perhaps more telling is the fact that there has been no study that demonstrates that gun control reduces crime.[279] Thus, one cannot empirically support an assertion that implementing more safety devices would reduce firearm-related [Page 197] crimes.[280] Moreover, most perpetrators of gun violence purchase their weapons on the legitimate gun market.[281] Consequently, obtaining weapons through this market allows criminals to acquire the locking codes and other safety devises that would prevent them from firing the weapons. Thus, additional safety features would not prevent criminals from misusing the weapons. Proponents of personalized gun technology do not address this issue.
B. Firearm Manufacturers' Conduct Does Not Create an Illegitimate Secondary Market of Handguns
Allegations that firearm manufacturers intentionally flood legitimate firearm markets with the purpose of creating an illegitimate secondary market flies in the face of logical reasoning. Modern studies demonstrate that a substantial percentage of firearms used to inflict harm are not obtained through an illegitimate secondary market, but [Page 198] from the legitimate primary market [282] where manufacturers, distributors, and retailers must be federally licensed and comply with federal paperwork laws.[283] Thus, logic leads to one conclusion - illegal gun trafficking, not the production of firearms, is the true problem.
One scholar advocates that retail dealers are the illegal deviators of firearm distribution laws, and that there are three reasons why firearms are being easily diverted to crime.[284] First, there are no federal laws limiting the number of guns that can be bought in a single sale.[285] Second, there are no federal regulations for secondary sales.[286] Last, firearm owners do not have to register their weapons with law enforcement, thus precluding the creation of an electronic database to keep track of gun trafficking.[287]
Certainly, these arguments demonstrate potential flaws in the distribution of firearms. Naturally, criminals will exploit these loopholes, but suing firearm manufacturers for pursuing legitimate marketing efforts is not justified. The proper remedy for poor legislation is the legislature.[288] Moreover, if lawsuits are necessary, the target of suit should be those who sell firearms to criminals.
The leading sources of firearm diversion are (1) multiple sales to straw purchasers;[289] (2) corrupt dealers;[290] (3) theft;[291] and (4) gun [Page 199] shows.[292] The primary focus of reducing illegal gun trafficking should be directed at curtailing the exploitation of these loopholes. Fortunately, gun trafficking can be reduced, and according to Siebel, "the most effective methods to reduce the flow of guns into the criminal market is to limit sales of handguns to one per month per buyer." [293] This limitation would eliminate multiple sales, and:
[w]ithout multiple sales, the value of straw purchasing as a means to obtain crime guns [would be] dramatically reduced, because if a straw purchaser can only legally obtain one handgun a month, a gun trafficker would need to recruit hundreds of straw purchasers to acquire the number of guns a single straw buyer could buy today.[294]
Efforts to attack straw purchasing have been employed.[295] In 1998, the Chicago Police Department implemented an undercover investigation strategy that targeted dealers who sell guns to persons openly intending to resell the guns to criminals or to use the guns in criminal activity.[296] This strategy employed a two-person undercover team that infiltrated suburban gun stores.[297] "Both agents carried identification indicating they lived in Chicago," but "[o]nly one of the agents carried a firearm owner identification ("FOID") card, which is required under Illinois law to purchase a firearm in [that] state." [298] The agents then approached the dealers making it patently obvious that the agent without the required firearm identification was the intended purchaser who was purchasing the gun for use in criminal enterprises.[299] "Despite these brazen indications of criminal intent . . . the suburban dealers sold the firearms," [300] and many "even counseled [Page 200] the agents [on] how best to arrange a purchase to avoid federal paperwork." [301]
This undercover sting operation confirms that at least twelve Chicago dealers are willing to sell firearms to criminals and other illegitimate owners.[302] The operation does not prove that retail dealers on a national scale are corrupt. More importantly, the operation cannot support a reasonable inference that lawsuits targeting firearm manufacturers are valid. In fact, the operation confirms that retail dealers not firearm manufacturers are selling guns to criminals. Moreover, firearm manufacturers have no authority or ability to control the operation of retail dealers.[303] Therefore, the underlying policy of legal redress is not served by suing persons, who as a group act in accordance with the law, and who can do nothing to prevent the problem short of not selling their product.[304]
C. Firearm Manufacturers Do Not Design Their Guns to be Used in Crime
There is no evidence that firearm manufacturers intend their products to be criminally misused.[305] Nor do they design their guns to appeal to criminals.[306] The states and the federal government have long recognized that the sale of firearms is a lawful activity.[307] This concept, while appalling to many anti-gun ownership advocates, is well rooted.[308] Unfortunately, well-rooted principles do not deter emotional upheaval. Moreover, principles of law cannot extinguish the flame of one's deeply rooted emotional belief system.[309] Therefore, proponents of the theory will probably continue to pursue these arguments and lawsuits in spite of legal doctrine. [Page 201]
Manufacturers do not produce weapons to cause death and hardship.[310] Proving that manufacturers so intend will be difficult. The burden becomes even less attainable when empirical evidence is inconclusive and non- supportive.[311]
Recent studies indicate that it is difficult to determine with precision the number of privately owned handguns.[312] It is even more difficult to determine what types of guns are appealing to criminals. Therefore, designing guns for a class of people that intentionally hide themselves from studies and law enforcement officers creates a very difficult task. Moreover, without empirical data, advocates "should not be able to credibly support their claims about the manufacturers' imputed 'knowledge' and 'intent."'[313]
D. The Production of Firearms is not a Public Nuisance
Public nuisance is defined as "an unreasonable interference with a right common to the general public." [314] Circumstances that make an interference unreasonable include: a significant interference with public health, safety, peace, comfort, or convenience; the existence of a statute or ordinance proscribing the conduct; or conduct of a continuing nature or of long-lasting effect that the "actor knows or has reason to know has a significant effect upon the public right." [315]
The State of California's complaint represents a typical public nuisance claim against firearm manufacturers.[316] There, the complaint alleges that the defendants' "ongoing conduct relating to their creation and supply of a crime market for firearms . . . has created and maintained a public nuisance" and this supply of firearms to the criminal market puts citizens in fear for their health, safety and welfare.[317]
These arguments suffer from the ill-conceived perception that firearms alone create fear. Firearms, like any other instrumentality, are only as evil as the heart of the one wielding them. More importantly, "it does not follow . . . that reductions in [gun ownership] would be accompanied by similar reductions in the rates of violent [Page 202] crime." [318] Cities, therefore, should consider criminals the true source of social fear and target them, not the instrumentality they use to perpetrate crime. Doing this will likely reduce crime and social fear. Unfortunately, a common-sense approach is not sufficient to rid the courts of these claims.
To hold firearm manufacturers liable when the true creators of the illegal criminal market are easily identifiable would be an injustice as well as an extension of tort law. Firearm manufacturers should not be held responsible for creating a public nuisance when the true violators are straw purchasers and corrupt dealers.[319] The plaintiffs in these lawsuits should seek corrective justice rather than impugning the innocent.
V. CONCLUSION
Civil lawsuits are initiated to redress civil wrongs.[320] To rectify these wrongs, tort law demands that the defendant be at fault or be in a better position to control the risk than the plaintiff.[321] The lawsuits against firearm manufacturers employ extensions of tort law that are unsupported by existing legal methodology. The intervening intentional criminal misconduct of third persons should insulate manufacturers from liability when they have no ability or authority to control the conduct of the third party criminal. Furthermore, courts should not use the judiciary to effectuate gun control reform. This function is better served by Congress or state legislatures.
Shaun R. Bonney *
* B.S., Political Science, Boise State University, 1997. Associate of Science, Criminal Justice Administration, Boise State University, 1998. J.D. Candidate, University of Idaho, 2001. Patron Program Coordinator, University of Idaho Law Review, 2000-2001.
1. See generally WINDLE TURLEY, FIREARMS LITIGATION LAW, SCIENCE AND PRACTICE (1988).
2. See id. at 13-19.
3. See id. See also Wendy Max & Dorothy P. Rice, Shooting in the Dark: Estimating the Cost of Firearm Injuries, 12 HEALTH AFFAIRS 171 (1993).
4. See http://www.gunlawsuits.com/cities/index.asp (last modified Oct. 16, 2000).
5. See Timothy D. Lytton, Halberstam v. Daniel and the Uncertain Future of Negligent Marketing Claims Against Firearms Manufacturers, 64 BROOK L. REV. 681, 682 (1998).
6. See id. at 681.
7. Id.
8. See id at 682. See also Moore v. R.G. Indus., Inc., 789 F.2d 1326, 1327 (9th Cir. 1986); Shipman v. Jennings Firearm, Inc., 791 F.2d 1532, 1533-34 (11th Cir. 1986); Perkins v. F.I.E. Corp., 762 F.2d 1250, 1275 (5th Cir. 1985); Kelley v. R.G. Indus., Inc., 497 A.2d 1143, 1148-50 (Md. 1985); Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1323 (E.D.N.Y. 1996); DeRosa v. Remington Arms Co., 509 F. Supp. 762, 769 (E.D.N.Y. 1981).
9. See James Henderson & Aaron Twerski, Closing the American Products Liability Frontier: The Rejection of Liability Without Defect, 66 N.Y.U. L. REV. 1263, 1297-1316 (1991) [hereinafter Henderson & Twerski].
10. See Richard C. Ausness, Product Category Liability: A Critical Analysis, 24 N. Ky. L. Rev. 423 (1997) (discussing earlier lawsuits that alleged traditional strict liability and negligence claims). See also Moore, 789 F.2d at 1326; Martin v. Harrington & Richardson, Inc. 743 F.2d 1200 (7th Cir. 1984); Caveny v. Raven Arms Co., 665 F. Supp. 530 (S.D. Ohio 1987), aff'd 849 F.2d 608 (6th Cir. 1988); Hammond v. Colt Indus. Operating Corp., 565 A.2d 558 (Del. Super. Ct. 1989); Knott v. Liberty Jewelry & Loan, Inc. 748 P.2d 661 (Wash. Ct. App. 1988).
11. See Lytton, supra note 5, at 682. See also Moore, 789 F.2d at 1326; Shipman, 791 F.2d at 1533-34; Kelley 497 A.2d at 1146-47.
12. See Lytton, supra note 5, at 682. See Shipman, 791 F.2d at 1533- 34; Linton v. Smith & Wesson, 469 N.E.2d 339, 340 (Ill. App. Ct. 1984); Knott, 748 P.2d at 664.
13. See Lytton, supra note 5, at 682.
14. See id.
15. See id.
16. No. 95 Civ. 3323 (E.D.N.Y. 1998).
17. See Lytton, supra note 5, at 682 (discussing facts of Halberstam).
18. See id. Ultimately, however, the jury found for the defendant- manufacturers. See id. Thus, the plaintiff's failure to meet their burden of persuasion warns plaintiffs that they "will ultimately fail if they continue to rely on highly speculative arguments linking firearms manufacturers to gun violence." Id.
19. 62 F. Supp. 2d 802 (E.D.N.Y. 1999).
20. See id.
21. See Hamilton v. Accu-Tek, 935 F. Supp 1307, 1314 (E.D.N.Y. 1996).
22. See http://www.gunlawsuits.com/cities/index.asp (last modified Oct. 16, 2000).
23. Complaint For Maintaining a Public Nuisance and for Unfair, Unlawful and Deceptive Trade Practice in Violation of Business and Professions Code §§ 17200 and 17500 at 2-3, California v. Arcadia Mach. & Tool, Inc.[hereinafter Complaint].
24. See id. at 3.
25. The most celebrated strict liability case is the House of Lords decision of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). There, the defendant constructed a reservoir on his property. See id. Unknown to the defendant the reservoir was constructed over a former coal mine. See id. The water eventually flooded plaintiff's property. See id. The plaintiff could not prove negligence, but the House of Lords ultimately held the defendant strictly liable because the damage was caused by what it called the non-natural use of defendant's land. See id. The scope of the holding is unclear. However, the court probably meant that the escape of anything brought onto your land which was not naturally there would automatically result in liability for the damage caused by its escape. See KENNETH S. ABRAHAM, THE FORM AND FUNCTIONS FO TORT LAW 168-69 (1997).
26. See Abraham, supra note 25, at 168-69.
27. See id. See also Losee v. Buchanan, 51 N.Y. 476 (1873); Brown v. Collins, 53 N.H. 442, 448 (1873) (rejecting the strict liability rule of Rylands because it would serve as "an obstacle in the way of progress and improvement").
28. See RESTATEMENT OF TORTS §§ 519-20 (1939).
29. Id.
30. RESTATEMENT (SECOND) OF TORTS § 519(1) (1977).
31. RESTATEMENT (SECOND) OF TORTS § 520 (1977).
32. See Andrew Jay McClurg, The Tortious Marketing of Handguns: Strict Liability is Dead, Long Live Negligence, 19 SETON HALL LEGIS. J. 777, 789 (1995).
33. See id.
34. See id. at 788.
35. See id.
36. ABRAHAM, supra note 25, at 170.
37. See Koos v. Roth, 652 P.2d 1255 (Or. 1982).
38. See id. See also Abraham, supra note 25, at 171.
39. See ABRAHAM, supra note 25, at 171 (stating that potential injurers are superior in their ability to control the risk if the activity is uncommon and inappropriate).
40. See id. at 171.
41. See PROSSER, HANDBOOK OF THE LAW OF TORTS §79, at 517 (4th ed. 1971) (stating that "in case of strict liability . . . the defendant acts at his peril, and is an insurer against the consequences of his conduct") (internal quotations and citations omitted).
42. See Moore v. R.G. Indus., Inc., 789 F.2d 1326, 1327 (9th Cir. 1986); Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1201-02 (7th Cir. 1984); Hammond v. Colt Indus. Operating Corp., 565 A.2d 558, 562 (Del. Super. Ct. 1989); Richardson v. Holland, 741 S.W.2d 751, 754 (Mo. Ct. App. 1987); Amijo v. Ex Cam, Inc., 656 F. Supp. 771 (N.M. 1987); Caveny v. Raven Arms Co., 665 F. Supp. 530, 531 (S.D. Ohio 1987); Burkett v. Freedom Arms, Inc., 704 P.2d 118 (Or. 1985); Ellsworth v. Bishop Jewelry & Loan Co., 742 S.W.2d 533 (Tex. 1987); Knott v. Liberty Jewelry & Loan, Inc., 748 P.2d 661, 665 (Wash. Ct. App. 1988).
43. See Moore, 789 F.2d at 1327; Martin, 743 F.2d at 1201-02; Hammond, 565 A.2d at 562 (holding that the manufacture or marketing of handguns is not an abnormally dangerous activity); Richardson, 741 S.W.2d at 754; Amijo, 656 F. Supp. at 774 (stating that manufacturing handguns is not an ultrahazardous activity); Caveny, 665 F. Supp. at 531; Burkett, 704 P.2d at 120 (holding that manufacturing and marketing small easily concealable handguns does not constitute an abnormally dangerous activity); Ellsworth, 742 S.W.2d at 535 (selling handguns does not constitute an abnormally dangerous activity); Caveny, 665 F. Supp. at 531; Knott, 748 P.2d at 665 (holding that "the manufacture, distribution or sale of a handgun is not a high-risk, ultrahazardous activity"). But see Richman v. Charter Arms Corp., 571 F. Supp. 192, 208 (E.D. La. 1983) (stating that the plaintiff could proceed under the law of ultrahazardous activities).
44. 497 A.2d 1143 (Md. 1985).
45. See id. at 1145.
46. A "Saturday Night Special" is a handgun that poses a great risk of criminal misuse because they are easily concealable and relatively inexpensive. See Kelley, 497 A.2d at 1158-59. These guns are also considered to have no legitimate societal purpose, and therefore, guns meeting this description (in light of a determination by the trier of fact) create a presumption that the manufacturer or marketer knows or ought to know that he is selling a product principally used in crime. Id.
47. See id. at 1144.
48. Id.
49. See id. at 1159. The court stated that "liability may be imposed against a manufacturer or anyone else in the marketing chain" if the trier of fact finds that the handgun is a Saturday Night Special, used to commit a criminal act by one of the perpetrators, and such misuse caused injury to the plaintiff or plaintiff's decedent. Id. at 1160. The court went on to determine that the handgun used in the case was a Saturday Night Special. See id at 1159-61. Other courts have held that traditional strict liability does not apply to guns classified as "Saturday Night Specials." See Richardson, 741 S.W.2d at 754; Amijo, 656 F. Supp. at 774.
50. Id. at 1147 (stating that the doctrine is traditionally land- based).
51. See Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985).
52. See id. at 1253.
53. See id.
54. See id. The court applied the abnormally dangerous test as stated in the Restatement (Second) of Torts. See id.
55. Id. at 1269 (quoting Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1204 (7th Cir. 1984)).
56. Id.
57. See id.
58. See id. at 1265 n.43.
59. 789 F.2d 1326 (9th Cir. 1986).
60. See id. at 1328.
61. Francis M. Dougherty, Handgun Manufacturer's or Seller's Liability for Injuries Caused to Another by Use of Gun in Committing Crime, 44 A.L.R. 4th 595, 563 (1987) (recapping holding of case).
62. See Moore, 789 F.2d at 1328.
63. 916 F.2d 1174 (7th Cir. 1990).
64. See id. at 1176.
65. Id. at 1181 (citation omitted).
66. See id. See also Perkins v. F.I.E. Corp., 762 F.2d 1250, 1265 (5th Cir. 1985). Although the Indiana Harbor Belt R.R. Co. case dealt with hazardous chemicals, the rationale underlying the decision is analogous to the manufacture and distribution of firearms. Manufacturing and distributing firearms is a lawful enterprise and firearms do not become dangerous until they are mishandled or misused by third persons. See, e.g., Perkins, 762 F.2d at 1265.
67. See Perkins, 762 F.2d at 1268; Moore v. R.G. Indus., Inc., 789 F.2d 1326, 1328 (9th Cir. 1986); Caveny v. Raven Arms Co., 665 F. Supp. 530, 532 (S.D. Ohio 1987); Burkett v. Freedom Arms, 704 P.2d 118 (Or. 1985) (holding that strict liability for abnormally dangerous activities does not extend to the marketing of firearms).
68. 665 F. Supp. 530 (S.D. Ohio 1987).
69. See id.
70. See id. at 531.
71. Id. at 532.
72. See Perkins, 762 F.2d at 1268; Moore, 789 F.2d at 1328; Caveny, 665 F. Supp. at 532; Burkett, 704 P.2d at 118; Kelly v. R.G. Indus., Inc., 497 A.2d 1143, 1147 (Md. 1985).
73. See Kelly, 497 A.2d at 1147.
74. See Caveny, 665 F. Supp. at 532.
75. See Perkins, 762 F.2d at 1268; Moore, 789 F.2d at 1328; Caveny, 665 F. Supp. at 532; Burkett, 704 P.2d at 118; Kelly, 497 A.2d at 1147.
76. See Winterbottom v. Wright, 10 m. & W. 109, 152 Eng. Rep. 402 (1842); Thomas v. Winchester, 6 N.Y. 397 (1852); MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916); Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 900-01 (Cal. 1962); Escola v. Coca Cola Bottling Co., 150 P.2d 436, 443-44 (Cal. 1944); Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69, 77 (N.J. 1960).
77. Winterbottom v. Wright, 10 m. & W. 109, 152 Eng. Rep. 402 (1842). In Winterbottom, the plaintiff was injured while driving a stagecoach supplied by his employer and contractually maintained by the defendant. The plaintiff was denied recovery because of the absence of privity. See id.
78. See Thomas v. Winchester, 6 N.Y. 397 (1852) (eliminating the privity requirement when the injury is caused by an imminently dangerous product); MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916) (holding that the manufacture of anything that could foreseeably harm a third party if negligently made is subject to liability).
79. See Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 900-01 (Cal. 1962) (adopting strict liability as a theory); Escola v. Coca Cola Bottling Co., 150 P.2d 436, 443-44 (Cal. 1944) (noting in the concurring opinion that strict liability should be imposed); Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69, 77 (N.J. 1960) (holding that the manufacturer and retailer should be strictly liable).
80. See RESTATEMENT (SECOND) OF TORTS § 402A (1965).
81. Id.
82. 525 P.2d 1033 (Or. 1974).
83. Id. at 1036 (quoting the RESTATEMENT (SECOND) OF TORTS § 402A cmt. i).
84. "Unavoidably unsafe" means those products that are in the present state of human knowledge incapable of being made safe for their ordinary and intended use. See RESTATEMENT (SECOND) OF TORTS § 402A cmt. k.
85. See Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1091 (5th Cir. 1973) (describing Comment k of the RESTATEMENT (SECOND) OF TORTS § 402A).
86. See RESTATEMENT (SECOND) OF TORTS § 402A (1965).
87. See id.
88. See id.
89. See id.
90. For a discussion of the three categories of defects see, Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 346 n.1 (5th Cir. 1989); Richardson v. Holland, 741 S.W.2d 751, 754 (Mo. Ct. App. 1987); Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206, 1209 (N.D. Tex. 1985).
91. See Moore v. R.G. Indus., Inc., 789 F.2d 1326, 1327 (9th Cir. 1986).
92. See id.
93. See id. at 1327.
94. See id.
95. 791 F.2d 1532, 1534 (11th Cir. 1986).
96. See id.
97. See id. at 1532.
98. See id. at 1534.
99. See id.
100. See Perkins v. F.I.E. Corp., 762 F.2d 1250, 1272 (5th Cir. 1985); Kelley v. R.G. Indus., Inc., 497 A.2d 1143, 1148-50 (Md. 1985); Caveny v. Raven Arms Co., 665 F. Supp. 530, 532 (S.D. Ohio 1987); Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1323 (E.D.N.Y. 1996); DeRosa v. Remington Arms Co., 509 F. Supp. 762, 769 (E.D.N.Y. 1981).
101. See supra note 100. See also Moore, 789 F.2d at 1327; Shipman, 791 F.2d at 1533-34.
102. Courts evaluating products liability law have consistently held that strict liability is not absolute liability, that liability be predicated on proof of a defect, and manufacturers of products are not insurers of their products safety. See Harvey M. Grossman, Categorical Liability: Why the Gates Should Be Kept Closed, 36 S. TEX. L. REV. 385, 387 (1995). See also Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 901 (Cal. 1962); Rhodes v. R.G. Indus., Inc., 325 S.E.2d 465, 467-68 (Ga. Ct. App. 1984) Richardson v. Holland, 741 S.W.2d 751, 753 (Mo. Ct. App. 1987).
103. See Ausness, supra note 10; Grossman, supra note 102, at 402; Henderson & Twerski, supra note 9, at 1297.
104. See supra note 103.
105. The bulk of the cases that have addressed it have rejected it. See Shipman, 791 F.2d at 1534; Perkins, 762 F.2d at 1269; Martin v. Harrington & Richardson, Inc., 743 F. 2d 1200, 1204 (7th Cir. 1984); Richardson, 741 S.W.2d at 755. Commentators have criticized it. See Henderson & Twerski, supra note 9; Donald E. Santarelli & Nicholas E. Calio, Turning the Gun on Tort Law: Aiming at Courts to Take Products Liability to the Limit, 14 St. Mary's L.J. 471, 507-08 (1983) [hereinafter Santarelli & Calio]; Note, Handguns and Product Liability, 97 HARV. L. REV. 1912, 1925 (1984).
106. The contention is that the courts should decide which categories of products should be deemed defective as a class, rather than the legislatures. See Grossman, supra note 102, at 405-06.
107. See Grossman, supra note 102, at 387 (citing Rhodes, 325 S.E.2d at 467-68; Richardson, 741 S.W.2d at 753; Thibault v. Sears, Roebuck & Co., 395 A.2d 843, 845-46 (N.H. 1978)).
108. See id. at 393; Shipman, 791 F.2d at 1533-34; Perkins, 762 F.2d at 1277; Richardson, 741 S.W.2d at 754 (holding that the doctrine of strict liability under section 402A "is not applicable unless there is some malfunction due to an improper or inadequate design or defect in manufacturing").
109. Grossman, supra note 102, at 392.
110. See id. at 393.
111. Henderson & Twerski, supra note 9, at 1297. See Grossman, supra note 102, at 393.
112. See Grossman, supra note 102, at 393. Part II of this comment discusses traditional strict liability and its ultimate failure as a viable theory for imposing liability on firearm manufacturers.
113. Grossman, supra note 102, at 393.
114. 463 A.2d 298 (N.J. 1983).
115. See id. at 301.
116. See id.
117. See Henderson & Twerski, supra note 9, at 1316. See O'Brien, 463 A.2d at 301.
118. Henderson & Twerski, supra note 9, at 1316. See O'Brien, 463 A.2d at 304.
119. See O'Brien, 463 A.2d at 306.
120. See id.
121. See id. In the court's words: "[t]he trial court should have permitted the jury to consider whether, because of the dimensions of the pool and the slipperiness of the bottom, the risks of injury so outweighed the [pool's] utility . . . as to constitute a defect." Id.
122. See Grossman, supra note 102, at 396 (citing N.J. STAT. ANN. § 2A:58C-3 (West 1987)). The statute does have an exception if the court, on the basis of clear and convincing evidence, makes all of the following determinations:
(1) the product is egregiously unsafe or ultrahazardous; (2) the ordinary user or consumer of the product cannot reasonably be expected to have knowledge of the product's risks, or the product poses a risk of serious injury to persons other than the user or consumer; and (3) the product has little or no usefulness.
§2A:58C-3b.
123. See id.
124. 674 F. Supp. 1149, 1151 (E.D. Pa. 1987).
125. See id. at 1159.
126. See id.
127. See id.
128. 608 F. Supp. 1206 (N.D. Tex. 1985).
129. See id.
130. See id. at 1208.
131. Grossman, supra note 102, at 395 (discussing Patterson's holding). Judge Buchmeyer declared: "as a judge, I know full well that the question of whether handguns can be sold is a political one, not an issue of products liability law - and that this is a matter for the legislatures, not the courts." Patterson, 608 F. Supp. at 1216.
132. 497 A.2d 1143 (Md. 1985).
133. See id. at 1147-50. It is critical to note that the court rejected categorical liability for handguns generally. This case is limited to "Saturday Night Specials." See id. at 1154.
134. See id. at 1152-59.
135. See id. at 1159.
136. See Grossman, supra note 102, at 397 (referring to MD. CODE ANN. art. 27, § 36-I (1992)).
137. See id.
138. See Shipman v. Jennings Firearms, Inc., 791 F.2d 1532, 1534 (11th Cir. 1986); Perkins v. F.I.E. Corp., 762 F.2d 1250, 1269, 1274 (5th Cir. 1985) (stating that "[n]o court in this jurisdiction has ever applied a general risk/utility analysis to a well-made product that functioned precisely as it was designed to do"); Martin v. Harrington & Richardson, Inc., 743 F. 2d 1200, 1204 (7th Cir. 1984); Richardson v. Holland, 741 S.W.2d 751, 755 (Mo. Ct. App. 1987); Gunsalus v. Celotex Corp. 674 F. Supp. 1149, 1151 (E.D. Pa. 1987); Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206, 1208 (N.D. Tex. 1985).
139. See Grossman, supra note 102, at 392.
140. See id. at 402.
141. See id.
142. See Gunsalus, 674 F. Supp. at 1151. See also Grossman, supra note 102, at 407.
143. See Patterson, 608 F. Supp. at 1216. See generally Grossman, supra note 102.
144. See generally Grossman, supra note 102. See also PATRICIA SMITH, THE NATURE AND PROCESS OF LAW 140 (1993) (stating that "one feature that distinguishes the judicial function from the legislative function is that a court operates in terms of individual cases").
145. See McClurg, supra note 32, at 795.
146. See id.
147. See PROSSER & KEETON ON THE LAW OF TORTS §30,at 164-65 (5th ed. 1984).
148. See PROSSER, HANDBOOK OF THE LAW OF TORTS §53, at 324 (4th ed. 1971).
149. Lytton, supra note 5, at 683.
150. See McClurg, supra note 32, at 795.
151. Lytton, supra note 5, at 683.
152. See id.
153. RESTATEMENT (SECOND) OF TORTS § 390 (1965).
154. See id. cmt. a.
155. Vince v. Wilson, 561 A.2d 103, 105 (Vt. 1989) (quoting from Mullins v. Harrell, 490 So. 2d 1338, 1340 (Fla. Dist. Ct. App. 1986)) (emphasis added).
156. Lytton, supra note 5, at 683.
157. See Linton v. Smith & Wesson, 469 N.E.2d 339 (Ill. App. Ct. 1984).
158. Id. at 340.
159. See id.
160. Id.
161. Lytton, supra note 5, at 700.
162. Id.
163. See id. at 684; Forni v. Ferguson, 648 N.Y.S.2d 73 (1st Dep't 1996); McCarthy v. Sturm, Ruger & Co., 916 F. Supp. 366 (S.D.N.Y. 1996).
164. See Lytton, supra note 5, at 684.
165. Id.; Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1323 (E.D.N.Y. 1996); DeRosa v. Remington Arms Co., 509 F. Supp. 762, 766 (E.D.N.Y. 1981).
166. See Lytton, supra note 5, at 703; Hamilton, 935 F. Supp. at 1323; DeRosa, 509 F. Supp. at 766.
167. See Hamilton, 935 F. Supp. at 1307.
168. See id.
169. See id. at 1313-14.
170. Id. at 1323. The court distinguished Forni v. Ferguson and McCarthy v. Sturm, Ruger & Co. on the grounds that those cases were really products liability claims, whereas the Hamilton plaintiffs argued for a duty short of refraining from marketing the defendant's product. See id. Therefore, the court stated that the plaintiff set forth a negligence claim distinct from a design defect claim. See id.
171. Id.
172. See Lytton, supra note 5, at 702-03.
173. See id.
174. See id. at 703.
175. See Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 342 (Cal. 1976) (holding that as a general principle, a "defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous"). Id. (quoting Rodriguez v. Bethlehem Steel Corp., 525 P.2d. 669, 680 (Cal. 1974)).
176. See Tarasoff, 551 P.2d at 342.
177. See id. See also Hamilton, 62 F. Supp. 2d at 821.
178. See Lytton, supra note 5, at 703.
179. Id.
180. Id.
181. See id.
182. See id.
183. 916 F. Supp. 366 (S.D.N.Y. 1996).
184. See id. at 369.
185. Id.
186. Id.
187. See id. at 370.
188. Id.
189. See id.
190. See Lytton, supra note 5, at 703.
191. Id. at 704.
192. Id.
193. See Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 342 (Cal. 1976); Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1323 (E.D.N.Y. 1996); McCarthy v. Sturm, Ruger & Co., 916 F. Supp. 366 (S.D.N.Y. 1996); DeRosa v. Remington Arms Co., 509 F. Supp. 762, 766 (E.D.N.Y. 1981).
194. See Lytton, supra note 5, at 704-05. "He states that "[t]he alleged causal connection between marketing firearms and violent crime remains largely unsubstantiated." Id. He further concedes that "[i]n individual cases, the promotion, distribution or sale of any particular weapon is almost never a but- for cause of a crime committed with it, given the ready availability of other weapons in stores and on the street." Id.
195. See Tarasoff, 551 P.2d at 342-43; Hamilton v. Accu-tek, 62 F. Supp. 2d 802, 819 (E.D.N.Y. 1999).
196. See Hamilton, 62 F. Supp. 2d at 819.
197. See id. See also Eisman v. State of New York, 511 N.E.2d 1128, 1135 (N.Y. 1987) (declining to extend physician's duty to accurately relate prisoner's medical history to individual members of college community out of concern that the physician would be exposed to limitless liability); Waters v. New York City Hous. Auth., 505 N.E.2d 922, 924 (N.Y. 1987) (finding limitless liability a significant factor in court's refusal to impose duty on city housing project to protect passerby from criminal acts of third parties); Strauss v. Belle Realty Co., 482 N.E.2d 34, 36 (N.Y. 1985) (stating that it is the court's responsibility to fix the orbit of duty, to limit the legal consequences of wrongs to a controllable degree, and to protect against crushing exposure to liability); Einhorn v. Seeley, 136 A.D.2d 122, 127 (N.Y. App. Div. 1988) (holding locksmith who installed allegedly defective lock responsible for rape of tenant's guest by intruder "would be to enlarge the obligations of such artisans far beyond the existing law and beyond sound public policy").
198. See Hamilton, 62 F. Supp. 2d at 820. See also Pulka v. Edelman, 358 N.E.2d 1019, 1022 (N.Y. 1976) (holding that it would be unreasonable to impose responsibility for negligent conduct of another "where the realities of every day experience show us that, regardless of the measures taken, there is little expectation that the one made responsible could prevent the negligent conduct"); Strauss, 482 N.E.2d at 36.
199. See Hamilton v. Accu-Tek, 62 F. Supp. 2d 802, 819-20 (E.D.N.Y. 1999).
200. See id.
201. See id. at 820.
202. Id.
203. See id. (stating that the price of handguns could be raised to be "more reflective of their true economic cost to the community").
204. Id. at 821 (quoting Purdy v. Pub. Adm'r of Weschester City, 526 N.E.2d 4, 7 (N.Y. 1988)).
205. See generally Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 342 (Cal. 1976); McCarthy v. Sturm, Ruger & Co., 916 F. Supp. 366 (S.D.N.Y. 1996); DeRosa v. Remington Arms Co., 509 F. Supp. 762, 766 (E.D.N.Y. 1981).
206. See PROSSER, HANDBOOK OF THE LAW OF TORTS § 33, at 173-74 (4th ed. 1971) (stating that manufacturers can rely on this assumption).
207. See Donald E. Santarelli & Nicholas Calio, Turning the Gun on Tort Law: Aiming at Courts to Take Products Liability to the Limit, 14 St. Mary's L.J. 471, 489 (1983). See also McCarthy v. Sturm, Ruger & Co., 916 F. Supp. 366 (S.D.N.Y. 1996); Pulka v. Edelman, 358 N.E.2d 1019, 1022 (N.Y. 1976); Restatement (Second) of Torts § 390 (1977) (limiting the negligent entrustment doctrine to those people a reasonable person would consider lacking ordinary prudence).
208. See PROSSER, HANDBOOK OF THE LAW OF TORTS § 30, at 143 (4th ed. 1971).
209. See Moore v. R.G. Indus., Inc., 789 F.2d 1326, 1327 (9th Cir. 1986); Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1201-02 (7th Cir. 1984); Hammond v. Colt Indus. Operating Corp., 565 A.2d 558, 562 (Del. Super. Ct. 1989); Caveny v. Raven Arms Co., 665 F. Supp. 530, 531 (S.D. Ohio 1987); Knott v. Liberty Jewelry & Loan, Inc., 748 P.2d 661, 665 (Wash. Ct. App. 1988).
210. See discussion infra Parts III.B, III.C, III.D.
211. Abraham, supra note 25, at 53. The reasonable person standard is very general. See id. To help clarify what it means to be negligent, an analysis known as the negligence calculus has emerged. See id. at 61. The most famous expression of the calculus was pronounced by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947). In that case, Judge Hand created what is more commonly known as the Hand Test where PL>B represents the equation. P stands for the probability/foreseeability that something bad will happen. L represents the gravity or magnitude of harm, and B equals the burden of adequate precautions. See id. If PL is greater than B, the defendant breached his duty of care. See id. The negligence calculus has been embodied in the Restatement (Second) of Torts §§ 291- 93 (1965).
212. See McClurg, supra note 32, at 806. See also United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
213. See ABRAHAM, supra note 25, at 60.
214. See generally ABRAHAM, supra note 25.
215. See RESTATEMENT (SECOND) OF TORTS § 302A-B; Hamilton v. Accu-Tek, 62 F. Supp. 2d 802, 828 (E.D.N.Y. 1999); see also Kush v. City of Buffalo, 449 N.E.2d 725 (N.Y. 1983) (finding the Board of Education negligent for leaving student employees unsupervised); Nallan v. Helmsley-Spear, Inc., 407 N.E.2d 451, 457-59 (N.Y. 1980) (holding that the criminal history in the building was sufficient to support the conclusion that defendants breached their duty to anticipate the risk of criminal activity).
216. See Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334, 342 (Cal. 1976).
217. See Moore v. R.G. Indus., Inc., 789 F.2d 1326, 1327 (9th Cir. 1986); Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1201-02 (7th Cir. 1984); Hammond v. Colt Indus. Operating Corp., 565 A.2d 558, 562 (Del. Super. Ct. 1989); Caveny v. Raven Arms Co., 665 F. Supp. 530, 531 (S.D. Ohio 1987); Hamilton, 62 F. Supp. 2d at 820;Knott v. Liberty Jewelry & Loan, Inc., 748 P.2d 661, 665 (Wash. Ct. App. 1988).
218. See Hamilton, 62 F. Supp. 2d at 820.
219. See McClurg, supra note 32, at 806.
220. See Hamilton, 62 F. Supp. 2d at 829.
221. See RESTATEMENT (SECOND) OF TORTS § 288(C) (1965). Most courts have ruled that manufacturing and distributing firearms is not a dangerous activity. See Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1201- 02 (7th Cir. 1984); Caveny v. Raven Arms Co., 665 F. Supp. 530, 531 (S.D. Ohio 1987); Hammond v. Colt Indus. Operating Corp., 565 A.2d 558, 563 (Del. Super. Ct. 1989) (holding that the manufacture or marketing of handguns is not an abnormally dangerous activity); Knott v. Liberty Jewelry & Loan, Inc., 748 P.2d 661, 665 (Wash. Ct. App. 1988) (holding that "the manufacture, distribution and sale of a handgun is not a high-risk, ultrahazardous activity."). But see Richman v. Charter Arms Corp., 571 F. Supp. 192, 208 (E.D. La. 1983) (stating that the plaintiff could proceed under the law of ultrahazardous activities).
222. See generally RESTATEMENT (SECOND) OF TORTS § 390 (1965).
223. See supra notes 153-62 and accompanying text; see also supra note 209.
224. See Caveny v. Raven Arms Co., 665 F. Supp. 530, 532 (S.D. Ohio 1987).
225. Lytton, supra note 5, at 700 (discussing Linton v. Smith & Wesson, 469 N.E.2d 339, 340 (Ill. App. Ct. 1984)).
226. See PROSSER, HANDBOOK OF THE LAW OF TORTS § 41, at 236 (4th ed. 1971).
227. Id.
228. See id.
229. See ABRAHAM, supra note 25, at 118. See also McCarthy v. Sturm, Ruger & Co., 916 F. Supp. 366, 371 (S.D.N.Y. 1996).
230. See ABRAHAM, supra note 25, at 118-19.
231. See id. at 121.
232. See id.
233. See id. at 121, 129.
234. See id. at 129-32.
235. Gordon v. Eastern Ry. Supply, Inc., 626 N.E.2d 912, 916 (N.Y. 1993). See also ABRAHAM, supra note 25, at 129-32; Hamilton, 62 F. Supp. 2d at 833.
236. See Neusus v. Sponholtz, 369 F.2d 259, 263 (7th Cir. 1966) (holding that the fireman's failure to engage the safety mechanism of a ladder was an intervening negligent act sufficient to break the chain of causation); Robinson v. Howard Bros. of Jackson, Inc., 372 So. 2d 1074, 1076 (Miss. 1979) (holding that despite the firearm dealer's negligence, the intentional criminal act was an independent intervening cause that broke the causal connection between defendant's negligent act and the death of the victim); DeRosa v. Remington Arms Co., 509 F. Supp. 762, 770 (E.D.N.Y. 1981) (holding that no proximate causal link existed between the alleged defect in the firearm and the injuries suffered by the plaintiff); McLaughlin v. Mine Safety Appliances Co., 181 N.E.2d 430, 435 (N.Y. 1962). See also ABRAHAM, supra note 25, at 129-32; Santarelli & Calio, supra note 105, at 495 (stating that "courts generally refuse to find that product sellers have a duty to foresee or anticipate the criminal misuse of their products").
237. See Rotz v. City of New York, 143 A.D.2d 301, 304-06 (N.Y. App. Div. 1988); Kush v. City of Buffalo, 449 N.E.2d 725, 729 (N.Y.1983).
238. See supra note 237.
239. RESTATEMENT (SECOND) OF TORTS § 302B cmt. d (1965). See also PROSSER, HANDBOOK OF THE LAW OF TORTS §33, at 173-74 (4th ed. 1971).
240. Decker v. Gibson Prods., 505 F. Supp. 34, 37 (M.D. Ga. 1980). See also Horville v. Anchor-Wate Co., 663 F.2d 598, 602-03 (5th Cir. 1981); Magnuson v. Rupp Mfg,. Inc., 171 N.W.2d 201, 208-09 (Minn. 1969); Robinson, 372 So. 2d at 1076.
241. See Bennet v. Cincinnati Checker Cab Co., 353 F. Supp. 1206 (E.D. Ky. 1973).
242. See id.
243. Santarelli & Calio, supra note 105, at 488-89 (citing Bennet, 353 F. Supp. at 1210).
244. Id. (quoting PROSSER, HANDBOOK OF TORTS § 33, at 173- 74 (4th ed. 1971)).
245. 372 So. 2d 1074 (Miss. 1979).
246. See id. at 1076.
247. See id. at 1074. See also Santarelli & Calio, supra note 105, at 489.
248. See Robinson, 372 So. 2d at 1074-75. See also Santarelli & Calio, supra note 105, at 489.
249. Robinson, 372 So. 2d at 1076. See also McCarthy v. Sturm, Ruger & Co., 916 F. Supp. 366, 372 (S.D.N.Y. 1996) (holding that the intentional shooting "' was an extraordinary act which broke the chain of causation"') (citation omitted).
250. See generally Horville v. Anchor-Wate Co., 663 F.2d 598, 602-03 (5th Cir. 1981); Decker v. Gibson Prods., 505 F. Supp. 34, 37 (M.D. Ga. 1980); Bennet v. Cincinnati Checker Cab Co., 353 F. Supp. 1206 (E.D. Ky. 1973); Magnuson v. Rupp Mfg,. Inc., 171 N.W.2d 201, 208-09 (Minn. 1969); Robinson, 372 So. 2d at 1076.
251. See PROSSER, HANDBOOK OF THE LAW OF TORTS §30, at 143 (4th ed. 1971).
252. See RESTATEMENT (SECOND) OF TORTS § 402A (precluding pure economic loss - loss not accompanied by property damage or personal injury). See also East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 872-73 (1986); Russell v. Ford Motor Co., 575 P.2d 1383, 1387 (1978).
In addition, market share liability limits the amount recoverable. See Hymowitz v. Eli Lilly & Co., 541 N.Y.S.2d 941, 947-50 cert. denied, 493 U.S. 944 (1989). Under market share liability when the circumstances of a particular case make it impossible to establish which manufacturer of a product caused injury to the plaintiff, some courts have employed the doctrine of market share liability. See id. Under this theory, causation is proved by establishing that exposure to a particular product caused the injury in question, and that exposure to this product, regardless of who manufactured the unit involved, caused the plaintiff to suffer the injury. See id. If the plaintiff can establish this by a preponderance of the evidence, the burden shifts to the defendants to disprove causation. See id. Failure to exculpate themselves will result in the apportionment of liability according to the degree of risk posed by each individual defendant, measured by their share of the market. See id.
Market share theory has primarily been limited to toxic tort cases. See generally MARC A. FRANKLIN, TORT LAW AND ALTERNATIVES CASES AND MATERIALS 339-41 (6th ed. 1996). However, it has been extended to other areas with mixed results. See id. See also Santiago v. Sherwin Williams Co., 3 F.3d 546 (1st Cir. 1993) (using market share liability for lead paint); Shackil v. Lederle Laboratories, 561 A.2d 511, 541 (N.J. 1989) (applying market share liability to childhood vaccine); Morris v. Parke, Davis & Co., 667 F. Supp. 1332 (C.D. Cal. 1987) (using market share liability for vaccines); Richie v. Bridgestone, Inc., 27 Cal. Rptr. 418 (1st Dist. 1994) (applying market share liability to asbestos lined break pads) Wheeler v. Raybestos-Manhattan, 11 Cal.Rptr.2d 109 (1992) (holding that the market share approach was applicable to manufacturers of brake pads that used asbestos fibers). Cf. Goldman v. Johns-Manville Sales Corp., 514 N.E.2d 691 (Ohio 1987) (refusing to hold asbestos manufacturers liable under market share theory). However, in Hamilton v. Accu-Tek, a firearm case, the court observed that the market share theory is an expansive doctrine and "a rigid limitation would [be] inconsistent with the . . . long tradition of extending the boundaries of products liability law [to] the needs of contemporary society . . . ."Hamilton v. Accu-Tek, 62 F. Supp. 802, 841 (E.D.N.Y. 1999). The court supported this proposition by stating that, "[p]roducts liability law cannot be expected to stand still where innocent victims face inordinately difficult problems of proof." See id. (quoting Bichler v. Eli Lilly & Co., 450 N.Y.S.2d 461, 466 (1973)).
When a market share theory of liability is pled, the successful plaintiff is only entitled to the amount of proven losses apportioned to the market share of the defendant. See Hymowitz, 541 N.Y.S.2d at 947-50. Consequently, the jury's determination of the defendant's market share becomes important. In firearm manufacturer suits, however, the market share of each defendant is difficult to evaluate with mathematical exactitude. Therefore, the awards are susceptible to knee-jerk application and are subject to dispute. Moreover, a damage award based on jury speculation is unreasonable.
253. ABRAHAM, supra note 25, at 207.
254. "Compensatory damages are such as will compensate the injured party for the injury sustained, and nothing more; such as will simply make good or replace the loss caused by the wrong or injury." BLACK'S LAW DICTIONARY 390 (6th ed. 1990). Measuring compensatory damages is determined by evaluating the out-of-pocket losses resulting from the defendant's tortious conduct as well as other awards that restore the injured person to the position they were in before the damage occurred. See ABRAHAM, supra note 25, at 207.
255. "Exemplary damages are damages on an increased scale, awarded to the plaintiff over and above what will barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the part of the defendant, and are intended to solace the plaintiff [and] to punish the defendant." BLACK'S LAW DICTIONARY 390 (6th ed. 1990). State law varies on when punitive damages may be awarded. See ABRAHAM, supra note 25, at 222. Most require behavior that is more blameworthy than gross negligence. See id.
256. See Shipman v. Jennings Firearm, Inc., 791 F.2d 1532, 1534 (11th Cir. 1986); Caveny v. Raven Arms Co., 665 F. Supp. 530, 531 (S.D. Ohio 1987); Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206, 1208 (N.D. Tex. 1985); McCarthy v. Sturm, Ruger & Co., 916 F. Supp. 366, 368 (S.D.N.Y. 1996).
257. See ABRAHAM, supra note 25, at 220-21.
258. See id. at 221.
259. See id. at 220.
260. See id. at 221.
261. See id.
262. See generally SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 1998, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS (1999).
263. See id. at 273.
264. See id
265. See id. See also NATIONAL INSTITUTE OF JUSTICE, U.S. DEP'T OF JUSTICE, WEAPONS, CRIME AND VIOLECE IN AMERICA 12 (1981) (estimating that one percent of privately owned firearms are used in criminal activity) [hereinafter NIJ Report].
266. See http://www.gunlawsuits.com/cities/index.asp (last modified Oct. 16, 2000).
267. Two models of lawsuits have emerged. The first is the New Orleans model, which attacks the gun industry's failure to incorporate feasible safety systems into guns that would prevent widespread firearm misuse by unauthorized users. See Brian J. Siebel, City Lawsuits Against the Gun Industry: A Roadmap for Reforming Another Deadly Industry, ST. LOUIS U. PUB. L. REV. 7 (1999). The second model is based on a Chicago lawsuit, which asserts that the gun industry implements marketing practices that move firearms from the legal marketplace into an illegitimate secondary market that caters to buyers who include criminals. See id. at 17. Recent lawsuits have combined the two models. See, e.g., Complaint, supra note 23.
268. According to Santarelli & Calio, "[t]ort law has continually developed in a fashion that favors plaintiffs, both in liability and in damages issues." Santarelli & Calio, supra note 105, at 473. Moreover, the "doctrines of manufacturer and seller liability for allegedly product-related harm have expanded dramatically. Traditional defenses have been eliminated or significantly eroded and less stringent proof requirements for claimants have been instituted to ease the path to recovery." Id.
269. See generally SMITH, supra note 144. See also Perkins v. F.I.E. Corp., 762 F.2d 1250, 1269 (5th Cir. 1985); Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206, 1216 (N.D. Tex. 1985).
270. On October 30, 1998, the City of New Orleans was the first to file suit against the gun industry. See Siebel, supra note 267, at 1 (citing Morial v. Smith & Wesson, No. 98-18578). Two weeks later, Chicago followed in Chicago v. Beretta U.S.A Corp. See id.
271. See http://www.gunlawsuits.com/cities/index.asp (last modified Oct. 16, 2000).
272. See Complaint, supra note 23, at 14-33.
273. The argument that implementing more safety features on guns will prevent a whole slew of deaths was made in Morial and the lawsuit brought in California. See Complaint, supra note 23, at 23-28; Siebel, supra note 267, at 7-14 (claiming that these feasible self-locking devices would personalize guns and prevent a whole host of firearm injuries and deaths). According to Siebel, the gun industry has had the ability to design guns to be self-locking, utilizing various types of devices that would prevent the gun from being fired by unauthorized users. Siebel also makes the point that these features should be distinguished from child safety locks. See Siebel, supra note 267, at 7 n.31. One way to reduce these unintentional fatalities and non-lethal injuries is to build locking systems into firearms. See Mark Polston & Douglas Weil, Unsafe by Design: Using Tort Actions to Reduce Firearm-Related Injuries, 8:1 Stan L. Rev. 13, 15-16 (1997). See also Siebel, supra note 267, at 5; Accidental Shootings: Many Deaths and Injuries Caused by Firearms Could Be Prevented, GAO/PEMD-91-9 (March 1991) [hereinafter GAO Report].
274. See GAO Report, supra note 273. The U.S. Senate commissioned the report. See Siebel, supra note 267, at 6-7. Its purpose was to examine the extent to which certain safety devices, if installed on firearms, could prevent firearm-related deaths. See id. at 15-17. The simple safety device considered by the GAO Report was a type of grip safety designed to prevent children six years and younger from being able to fire the weapon. See id.
275. See Siebel, supra note 267, at 15-17.
276. See id. at 8.
277. See id.
278. See Santarelli & Calio, supra note 105, at 477 (stating that the contentions of anti-gun ownership circles find "no support in existing empirical data").
279. See NIJ Report, supra note 265, at 223; see also Santarelli & Calio, supra note 105, at 482 (suggesting that a reduction in private gun ownership does not support the conclusion that crime will be reduced).
280. Of the estimated 200 million firearms in private hands, (NIJ Report, supra note 265, at 45) an estimated 2.5 million handguns are added each year. See Complaint, supra note 23, at 15. "Recent reports indicate that more than 500,000 guns are stolen each year in the United States." Siebel, supra note 267, at 8 (citing Philip J. Cook, Regulating Gun Markets, 86 J. CRIM. L. & CRIMINOLOGY 59, 81-82 (1995); Marianne W. Zawitz, Guns Used in Crime, U.S. Dep't of Justice, Bureau of Justice Statistics 3 (July 1995); Michael Rand, Guns and Crime: Handgun Victimization, Firearm Self-Defense, and Firearm Theft, U.S. Dep't of Justice, Bureau of Justice Statistics 3 (April 1994); Polston & Weil, supra note 273, at 15 & nn.34-36 (1997); James T. Dixon, On Lemon Squeezers and Locking Devices: Consumer Product Safety and Firearms, A Modest Proposal, 47 Case W. Res. L. Rev. 979, 990-91 & nn. 87-93 (1997)). Proponents of extra safety features claim that the implementation of personalized gun technology, such as locking features, would reduce injury or death because the thieves would not have the key to unlock the firearm. See id. See also Michael Rand, Guns and Crime: Handgun Victimization, Firearm Self-Defense, and Firearm Theft, U.S. Dep't of Justice, Bureau of Justice Statistics 3 (April 1994); Polston & Weil, supra note 273, at 15 & nn.34-36 (1997); James T. Dixon, On Lemon Squeezers and Locking Devices: Consumer Product Safety and Firearms, A Modest Proposal, 47 CASE W. RES. L. REV. 979, 990-91 & nn.87-93 (1997). However, stolen weapons can still be used as an object of threatened violence. More importantly, the amount of injuries/fatalities that would be prevented by implementing personalized locking systems, that in theory would stop stolen firearms from being used, would not be significant in proportion to that amount of firearms purchased and owned by citizens in the United States.
281. See Siebel, supra note 267, at 18. There are about 65 million handguns in the United States, and about 2.5 million are added each year. See Complaint, supra note 23. If a percentage of the total 500,000 stolen guns are used to commit crime, this number is minimal in comparison to the total amount of firearms being purchased on legitimate and underground markets. Furthermore, according to the U.S. Bureau of Alcohol, Tobacco and Firearms (ATF) '[v]irtually all new firearms used in crime first pass through the legitimate distribution system of federally licensed firearms dealers." A Progress Report: Gun Dealer Licensing & Illegal Gun Trafficking, U.S. Dep't of the Treasury I (Jan. 1997); see also Mark D. Polston, Civil Liability for High Risk Gun Sales: An Approach to Combat Gun Trafficking, 19 SETON HALL LEGIS. J. 821, 828 n.36 (1995).
282. See A Progress Report: Gun Dealer Licensing & Illegal Gun Trafficking, U.S. Dep't of the Treasury I (Jan. 1997) (stating that "[v]irtually all new firearms used in crime first pass through [the] legitimate distribution system of federally licensed firearm dealers"). See also Mark D. Polston, Civil Liability for High Risk Gun Sales: An Approach to Combat Gun Trafficking, 19 SETON HALL LEGIS. J. 821, 824-28 (1995); Siebel, supra note 267, at 18. The primary market consists of three layers - manufacturers, distributors, and retailers. See id. at 17-18.
283. See Siebel, supra note 267, at 17-18. See also 18 U.S.C. § 923; 27 C.F.R. Parts 178-79. Manufacturers and distributors are required to keep records that show how and when the guns were sold. See 18 U.S.C. § 923(g)(1)(A). Additionally, dealers are required to ask public purchasers to fill out a form, show identification, and pass a background check before selling the gun. See 18 U.S.C. § 922(s). Beginning in November 1998, all firearm purchasers were required to submit to checks.
284. See Siebel, supra note 267, at 19-24. Siebel indicates, however, that the gun industry could institute some controls that weed out corrupt dealers.
285. See id. at 19. However, multiple sales must be reported to the ATF and local law enforcement. See ATF - The Youth Crime Gun Interdiction Initiative - The Illegal Youth Firearms Markets in 17 Communities 7, Dep't of Treasury (July 1997).
286. See Siebel, supra note 267, at 19. Secondary sales are sales made between the initial purchaser and a new purchaser.
287. See id. See also Julius Watchel, Sources of Crime Guns in Los Angeles, California, 21 POLICING: AN INT'L J. OF POLICE STRATEGIES & MNGMNT. 220, 221 (1998).
288. See generally Smith, supra note 144, at 140.
289. See Siebel, supra note 267, at 20 (citing Joseph J. Vice, Jr., Memo from the Chief, CGAP Shots 2 (Oct. 1998) (indicating that the most important single source of firearms used in crime are those purchased by straw purchasers)).
290. See id. at 21. See also Mark D. Polston, Civil Liability for High Risk Gun Sales; An Approach to Combat Gun Trafficking, 19 SETON HALL LEGIS. J. 821, 824-28 (1995); Watchel, supra note 287, at 224 (concluding that dealer corruption is a significant source to the distribution of firearms to criminals).
291. See Watchel, supra note 287, at 232; Zawitz, supra note 280, at 3; Rand, supra note 280, at 3; Polston & Weil, supra note 273, at 15 nn.34-36 (1997); Dixon, supra note 280, at 990-91 & nn. 87-93.
292. See Siebel, supra note 267, at 22 (citing Gun Shows In America: Tupperware Party for Criminals, Violence Policy Center (1996)).
293. Id. at 23.
294. Id.
295. See id. at 25.
296. See id. (explaining Operation Gunsmoke, which was used as a basis for the Complaint in Chicago v. Beretta U.S.A. Corp.).
297. Id. The targets of the illegal sales were twelve gun stores that had sold the highest numbers of guns traced to crime in the Chicago area.
298. Id. at 25.
299. See id.
300. Id.
301. Id.
302. See generally Siebel, supra note 267, at 25.
303. See generally Santarelli & Calio, supra note 105. See also Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976); Hamilton v. Accu-Tek 62 F. Supp. 2d 802 (E.D.N.Y. 1999).
304. See generally PROSSOR, HANDBOOK OF THE LAW OF TORTS §1 (4th ed. 1971).
305. See Santarelli & Calio, supra note 105, at 476-77.
306. See id. (noting that "[t]he allegation that gun manufacturers intend their products to be misused as instruments of death is almost too ludicrous to require a response").
307. See id. at 476-77. See also 18 U.S.C. §§ 921-28 (1976) (Gun Control Act of 1968). The Act allows for the sale of firearms provided they comply with applicable dures. See id. at § 923. See also Bureau of Alcohol, Tobacco & Firearms, U.S. Dep't of the Treasury, ATF P 5300.5, State Laws and Published Ordinances: Firearms (1981).
308. See Santarelli & Calio, supra note 105, at 477.
309. See id. (stating that the contentions of anti-gun ownership circles find "no support in existing empirical data").
310. See generally Santarelli & Calio, supra note 105, at 476-77.
311. See Santarelli & Calio, supra note 105, at 477-78. "However, the best available data indicates that 'the fraction of all privately owned firearms that are involved in any sort of criminal activity in any given year is in the order of a fraction of one per cent [sic]."' Id. at 478 (quoting the NIJ Report).
312. See id.
313. Id. at 478.
314. RESTATEMENT (SECOND) OF TORTS § 821B(1) (1965).
315. RESTATEMENT (SECOND) OF TORTS § 821B(2) (1965).
316. See Complaint, supra note 23, at 31.
317. Id.
318. Santarelli & Calio, supra note 105, at 482 (citing NIJ Report at 236-37).
319. See supra notes 289-90.
320. See generally PROSSER, HANDBOOK OF THE LAW OF TORTS §1 (4th ed. 1971).
321. See generally PROSSER, HANDBOOK OF THE LAW OF TORTS §1 (4th ed. 1971).