Making social policy through courts: gun control advocates fight firearms.

• Author: Feldman, Danielle

Suits against firearms manufacturers distort the roles of legislatures and courts, threaten lawful industries, and ignore personal responsibility

TORT SUITS against firearms companies for non-defective products allow contingency fee attorneys, improperly using the power of the judiciary, to legislate firearms prohibitions and thus circumvent Congress and state legislatures. These tort suits usually emerge as the aftermath of a shooting and generally involve a manufacturer of a perfectly designed legal product, someone who fired the trigger and a victim. Instead suing the assailant, the actions are brought against gun manufacturers for creating a non-defective product.

All this not only confuses tort theory but also harms a perfectly legal industry. This litigation distorts the legal theory behind tort liability, promotes erroneous presumptions about gun manufacturers, draws unfair parallels between the harms of firearms and tobacco, causes negative economic repercussions on the market, misconstrues the role of the judiciary, and displaces individual responsibility for crime.

CONCEPTUALLY WEAK TORT CASES

Tort actions against firearms manufacturers for non-defective products usually involve a few main elements: a manufacturer, an assailant, a victim, and sometimes a retailer. Plaintiffs' attorneys assume that the manufacturers are negligent because they produced a non-defective product that caused harm. Plaintiffs' attorneys also ignore an assailant's responsibility and sue manufacturers, who are a much more remote cause to the final injury, in part because manufacturers have deeper pockets than assailants. Retailers are targeted on the argument that but for their negligence in the sale, the shooting not have occurred. These arguments have a conceptually weak basis in tort law.

1. Tort Theory and Cases

   Tort suits against gun manufacturers for non-defective products entail the misuse of legal standards and erroneous assumptions. Because this article deals only with non-defective products, it will omit "non-defective" for the sake of in further discussion.

   1. Traditional Tort Theory

      Tort theory assumes that responsibility for injury is proved if the plaintiff can establish that the defendant has breached a duty and was the cause of the injury. A manufacturer, by placing a product in the stream of commerce, assumes a "special duty" to the customer, and in view of the assumption if that duty, the consumer is reasonable in believing that the product is safe for the purpose for which it was designed and manufactured. The special duty is presumed to be the manufacturer's because it, unlike the consuming public, has the ability to control the risks inherent in the product.

      There are two generally recognized theories of strict liability. One is based on an activity that is "abnormally dangerous." The second involves a defective product that is unreasonably dangerous. Using the second theory, the courts generally determine the potential harm of the unreasonably dangerous product by using one of the tests: the consumer expectations test or the risk-benefit test.(1)

      Sections 519 and 520 of the Restatement (Second) of Torts provide an excellent definition of liability from an abnormally dangerous activity:

      (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has taken care to prevent such harm.

      (2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

      The Restatement lists six factors by which to determine if an activity is abnormally dangerous:

      (a) existence of a high degree of risk of some harm to the person, land or chattels of others;

      (b) likelihood that the harm that results from it will be great;

      (c) inability to eliminate the risk by the exercise of reasonable care;

      (d) extent to which the activity is not a matter of common usage;

      (e) inappropriateness of the activity to the place where it is carried on; and

      (f) extent to which its value to the community is outweighed by its dangerous attributes.

      In contrast to negligence theory, which holds the manufacturer liable only for the harm that a reasonable person could not foresee, the abnormally dangerous activity theory is deemed a strict liability theory, because it perceives a breach of duty of care in an activity that is carried on with all reasonable care. The abnormally dangerous activity theory is generally limited to activities associated with or directly related to the use or occupancy of land.

      Instead of declaring a product or activity per se abnormally dangerous, strict liability places liability the manufacturer only for a defective product that is found to be unreasonably dangerous. A product can be defective if it has a construction or manufacturing flaw, the manufacturer fails to warn the consumer of the dangers inherent in the product, or the product is defectively designed.

      Most American jurisdictions have adopted some form of strict liability, and although the precise elements for vary, there are four basic factors:

      * The product was in a defective condition at the time it left the possession or control of the seller.

      * The product was unreasonably dangerous to the user or consumer.

      * The defect was a cause of the injuries.

      * The product was expected to and did reach the consumer without substantial change in its condition.(2)

      The basic inquiry of the consumer expectations test is whether the product is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."(3)

      The consumer expectations test, however, does not suit actions against gun manufacturers for two reasons. First, the test precludes recovery for injury that results from the use of products that have open or obvious dangers. Second, a particular consumer who may lack the knowledge about a product's dangers, even though such knowledge is common throughout the community, may be unaware of the product being purchased or the risks associated with the product. To impute such knowledge to the consumer may preclude recovery to which an injured victim otherwise may be legitimately entitled.(4)

      The second test to determine whether a product is unreasonably dangerous is the risk-benefit test. The fundamental precept of the risk-benefit test is that a product is unreasonably dangerous only if the product's risks outweigh its benefits. In jurisdictions that applied the risk-benefit test, a plaintiff generally had to prove, among other factors, that (1) the product was defective, (2) the defect was the proximate cause of the injuries; (3) the defect made the product unreasonably dangerous, and (4) the product had not changed substantially since it left the manufacturer's control. These requirements mirrored Section 402A and placed an affirmative burden on the plaintiff to demonstrate not only that the product was defective but that the product was unreasonably dangerous by showing that the product's risks outweighed its benefits.(5)

      But now in some jurisdictions that apply the risk-benefit test, the plaintiff no longer has the affirmative duty to demonstrate that the product is unreasonably dangerous, it being sufficient plaintiff to prove that (1) the product was defective and (2) the defect proximately caused the injury. In these jurisdictions, the defendant/manufacturer now has the burden to demonstrate that the product's benefits outweigh its risks.

      Nevertheless, courts have steadfastly refused to apply the risk-benefit test to handguns. For example, in Patterson v. Rohm Gesellschaft, a Texas federal district court determined that the risk-benefit test "incorporates the idea that a defect is something that can be remedied or changed.... However, a gun, by its very nature, must be dangerous and must have the capacity to discharge a bullet with deadly force."(6)

      The superseding cause argument presents one of the more significant defenses to a product liability claim. Section 440 of the Restatement defines a superseding cause "an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about." A superseding cause prevents the plaintiff from proving that the product was defective only because the defect proximately caused the injury. As Section 448 states, because "the act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom," the innocent victim should file suit against the assailant who committed the intentional tort instead of the manufacturer of a non-defective product. But courts sometimes have ruled against the manufacturer.

   2. Sample Cases

      In Kelley v. R.G. Industries,(7) a grocery store employee was shot during a robbery. The police were unable to identify the assailant, but they did identify the revolver as being manufactured by R.G. Industries. The Maryland Court of Appeals ruled that as a general proposition an arms manufacturer could not...