The Limits on the Use of Tort Law to Encourage Consumer Safety

Loyola Consumer Law Review

Volume 12 | Issue 3 Article 2

2000

The Limits on the Use of Tort Law to EncourageConsumer SafetySarah L. OlsonPartner, Wildman, Harrold, Allen & Dixon, Chicago, IL.

Anne G. KimballPartner, Wildman, Harrold, Allen & Dixon, Chicago, IL

Follow this and additional works at: http://lawecommons.luc.edu/lclr

Part of the Consumer Protection Law Commons

This Feature Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola Consumer Law Reviewby an authorized administrator of LAW eCommons. For more information, please contact [email protected].

Recommended CitationSarah L. Olson & Anne G. Kimball The Limits on the Use of Tort Law to Encourage Consumer Safety, 12 Loy. Consumer L. Rev. 178(2000).Available at: http://lawecommons.luc.edu/lclr/vol12/iss3/2

http://lawecommons.luc.edu/lclr?utm_source=lawecommons.luc.edu%2Flclr%2Fvol12%2Fiss3%2F2&utm_medium=PDF&utm_campaign=PDFCoverPages

http://lawecommons.luc.edu/lclr/vol12?utm_source=lawecommons.luc.edu%2Flclr%2Fvol12%2Fiss3%2F2&utm_medium=PDF&utm_campaign=PDFCoverPages

http://lawecommons.luc.edu/lclr/vol12/iss3?utm_source=lawecommons.luc.edu%2Flclr%2Fvol12%2Fiss3%2F2&utm_medium=PDF&utm_campaign=PDFCoverPages

http://lawecommons.luc.edu/lclr/vol12/iss3/2?utm_source=lawecommons.luc.edu%2Flclr%2Fvol12%2Fiss3%2F2&utm_medium=PDF&utm_campaign=PDFCoverPages

http://lawecommons.luc.edu/lclr?utm_source=lawecommons.luc.edu%2Flclr%2Fvol12%2Fiss3%2F2&utm_medium=PDF&utm_campaign=PDFCoverPages

http://network.bepress.com/hgg/discipline/838?utm_source=lawecommons.luc.edu%2Flclr%2Fvol12%2Fiss3%2F2&utm_medium=PDF&utm_campaign=PDFCoverPages

http://lawecommons.luc.edu/lclr/vol12/iss3/2?utm_source=lawecommons.luc.edu%2Flclr%2Fvol12%2Fiss3%2F2&utm_medium=PDF&utm_campaign=PDFCoverPages

mailto:[email protected]

FEATUREARTICLESThe Limits on the Use of Tort LawTo Encourage Consumer SafetySarah L. Olson

Anne G. Kimball

Introduction

Consumer safety is one of the fundamentalreasons for courts' universal application of strict liabilityand negligence principles to product design,manufacture, warnings and sale. When litigants partways with traditional notions of product liability andnegligence law in suits involving firearms, however, theyalso move well past the enunciated goal of promotingconsumer safety into a larger discussion of societal goalsin relation to violence. There are limits to the lengths thatproduct liability and negligence law can be stretched toaccommodate more generalized societal concerns overviolently inflicted injury. This attempt at expandingnegligence law is clear in the realm of tort-based firearmslitigation, when plaintiffs seek to impose liability for thecriminal, intentional or accidental injuries caused by useof a non-defective and lawfully sold firearm. Neither thelaw nor public policy supports the expansion of tort lawfrom a vehicle for promoting individual consumer safetyinto a means to further societal or legislative ends.

The basic premises that limit the application of tortlaw in product-related cases are simple and based oncommon sense. Because manufacturers are not insurersof all harms that can be occasioned by the use of theirproducts, a product must be defective or unreasonably

Loyola Consumer Law Review Volume 12, Number 3 2000

dangerous in design, manufacture or warnings forliability to attach. Manufacturers cannot be liable toremedy what they do not control. Where injuries stemfrom product uses or from open and obviouscharacteristics which are not defective, manufacturershave no means, short of discontinuing production, torespond. Similarly, the extent to which liability fornegligence may be alleged and imposed is limited byconcepts of duty and proximate cause. Unless themanufacturer stands in a relationship with the injuring orinjured party such that it can control the conduct of oneand prevent harm to the other, neither a breached dutynor a causal connection between breach and injury canarise.

By examining the history of tort-based claimsagainst firearm manufacturers over the last twenty-fiveyears, one can perceive the outline of principles whichprotect consumers in individual cases but restrict theapplication of tort law to promote more general societalgoals. This article addresses these principles:

I. A product must actually be defective fortort liability to be imposed against itsmanufacturer for injuries sustained during itsuse.A. The risk-utility test for product defect

does not measure social utility generally.B. A product is not defective based solely on

the fact that it can be used - criminally,intentionally or accidentally - to inflictinjury.

II. Product warnings are intended to protect thoseto whom dangers are not obvious. Where adanger inherent in a product is open andobvious, no warning is required.

III. Tort liability cannot be imposed where amanufacturer has no relationship with theinjured party, the injuring party, or the productthat causes injury at the time that an injury

Loyola Consumer Law ReviewVolume 12, Number 3 2000

occurs.IV. For tort liability to be imposed, the

manufacturer must control the risk at the timeof injury.

I. To Impose Tort Liability, A Product MustActually Be Defective

The threshold requirement of any tort claim basedupon the operation of a product, regardless of the theoryon which it is brought, is the identification of a product2defect which proximately causes the plaintiff's injury. Inthe forty years that have elapsed since product liabilitytheory took root, a philosophical and legal battle hasraged around the scope of protection it provides. Oneelement of this debate can be framed as follows: Doesproduct liability law apply to products which are inthemselves not defective in condition, but which can beused to inflict harm? In the context of firearm litigation,the courts' answer has been a resounding "No."

The central inquiry in these cases is not whetherthrough its normalfunction a firearm is capable ofcausing harm, but whether an unreasonably dangerousdefect in its condition does so. Almost without exception,the tort law of all fifty states has rejected the propositionthat the function of a product, as opposed to itscondition, can constitute a defect. In the firearm context,this rule has been uniform.3 A defective product:

Is one which, at the time it leaves the seller'shands, is in a condition not reasonablycontemplated by the ultimate consumer and isunreasonably dangerous for its intended use.

If, in fact, a firearm is sold in a defective condition,a product liability suit (if even required) can amplyredress an individual plaintiff's wrongs and simultaneously


protect other consumers by encouraging the manufacturerto correct the specific flaw.

Notwithstanding this explicit thresholdrequirement of defect, however, many plaintiffs infirearm cases fail to allege a legally cognizable defect inthe firearm with which they have been injured. Instead,over the last twenty-five years, plaintiffs have oftencontended that because a firearm has the inherentcapacity to be used to inflict death or serious injury, theproduct is itself defacto defective. This is contended eventhough the firearm is perfectly manufactured, operatesexactly as designed and intended by the user, isaccompanied by copious warnings, and produces noinjury to the "consumer." Under the guise of a traditionalproduct liability claim, these plaintiffs argue that theircomplaints state valid causes of action by alleging that aparticular firearm is too small, too concealable, of "toohigh a caliber," "too powerful" or simply because it hasthe capacity to inflict serious injury. This argumentmischaracterizes the meaning of "defect" under the lawof any state; all of these characteristics are inherent in orflow from the function of firearms, not a defect in thecondition of a specific firearm.

In the face of this protracted debate, courts haveheld firm to the principle that without a product defectthere can be no tort claim against firearm manufacturersunder either product liability or negligence theories. For5

example, in Patterson v. Rohm Gesellschaft, a conveniencestore robber shot and killed plaintiff's daughter, using arevolver in the crime. Plaintiff filed suit against themanufacturer of the firearm claiming, among otherthings, that the revolver was unreasonably dangerousand should not have been distributed to the publicbecause of the general prevalence of handgun use incrime. Rejecting this argument the court noted that:

[t]he unconventional theories advanced in thiscase ... are totally without merit, a misuse of


products liability laws. It makes no sense tocharacterize any product as "defective" - evena handgun - if it performs as intended andcauses iniury only because it is intentionallymisused.

Similarly, New York trial and appellate courtsrejected claims by victims of the infamous criminalrampage by Colin Ferguson aboard the Long Island RailRoad in December of 1993, which left six people dead.7

The plaintiffs contended that the model of Sturm, Rugerpistol used by Ferguson was defectively designedbecause it purportedly had "no legitimate sportingpurpose" and was "completely unnecessary for self-defense." In support of this assertion, plaintiffs pointedto the pistol's size and design, which permitted the easyremoval and replacement of ammunition magazines.Plaintiffs made no allegation that the specific pistol usedby Ferguson had malfunctioned or was defective incondition; indeed, the facts alleged clearly indicated thatthe firearm had functioned precisely as designed and asFerguson intended, with tragic results.

Granting the manufacturer's motion to dismiss,the trial court observed that plaintiffs were, in fact,complaining of the very function of the firearm and therisks which attend that function. As the court noted:

The risk of a gun lies in its function and not adefect in the product. A gun is designed to firea bullet which is capable of killing or seriouslyinjuring another. It is difficult to discern analternative design which would reduce thelikelihood of injury without changing itsfunction.9

Because plaintiffs could not identify any defect in thecondition of the specific firearm in question, they couldnot pursue a product liability or negligence actionagainst its manufacturer.

A similar result was obtained in Addison v. Cody


Wayne Williams.'0 In Addison, Mr. Williams fired 55 roundsfrom a semi-automatic rifle through the steel doors of abar, killing one person and injuring five others. TheLouisiana appellate court rejected plaintiffs' theory thatthe firearm was defective because it was "too powerful,""attractive to criminals," and had "no purpose except tokill human beings," stating:

The primary or basic function of a gun is tofire a bullet capable of killing. A gun that hasthe capacity to shoot and kill, which is itsprimary function, cannot be said to beunreasonably dangerous per se because it hasthat capacity. A product cannot be said to beunreasonably dangerous per se where thedanger complained of is the purpose andfunction of the product .... [Aill guns aredangerous and have the capacity to kill. Eachtype of gun has characteristics that make itmore dangerous than another type, dependingon the circumstances of its use .... Thus,attempting to characterize one type of gun aspresenting a greater risk of harm or as beingmore susceptible to criminal misuse thananother type becomes extremely tenuous...The manufacturers of the weapon and theammunition used in it are not liable forinjuries resulting from the intentional criminalmisuse of the gun.u

Every jurisdiction that has considered theapplication of product liability law to firearmmanufacturers for injuries inflicted with non-defectivefirearms has rejected plaintiffs' efforts to expand thistheory to such radical lengths.12 In each case, courts haveheld that plaintiffs do not state a product liability causeof action by asserting that a firearm is defective based onits function rather than a flaw in its condition, regardless


of how that assertion is specifically framed.

A. The Risk-Utility Test For Product Defect DoesNot Measure Social Utility Generally

Frustrated by courts' unwillingness to expandproduct liability law to situations where a non-defectivefirearm has been used to cause injury, plaintiffs haveinvoked the risk-utility test by which a product's designis assessed in some states. In the seminal case of Barker v.Lull Engineering Co., 13 the California Supreme Courtadopted this test, which weighs the risks associated withthe use of a specific product as designed, against itsspecific uses and usefulness. Other courts have adoptedthe same test to determine whether a product isunreasonably dangerous. This test considers theusefulness and desirability of the specific product; thelikelihood that, as configured, it will cause injury; theprobable severity of injury; the existence of alternativefeasible designs; the ability to eliminate the dangerwithout compromising the usefulness of the product; theuser's ability to avoid danger by the exercise ofreasonable care; and the ability of the manufacturer tospread the loss.14

In applying the risk-utility test to firearms thatfunction as designed (and often as their user intended)however, litigants have attempted to inappropriatelyexpand that concept to situations it was never intendedto address, even under Barker v. Lull. Risk-utility is ananalysis of alternative formulations of a product, that is,of the specific design incorporated into an individualproduct. It does not encompass a consideration of thesocial utility per se of a category of products, for example,the usefulness of all toasters, regardless of manufactureror model. The test measures the risk of a particularformulation of a product against the given use of theproduct, not against its usefulness as a social concept.

This interpretation of the risk-utility test is not


only supported by explicit formulations of risk-utilityanalysis; it is also implicit in the factual circumstances ofthe cases that discuss that theory. For example, in McKayv. Sandmold Systems, Inc., the issue was not the design ofmuller machines in any foundry, but rather whether thedoor on a specific muller should have been equippedwith a limit switch so that the machine could not bestarted with the door open. In Burch v. Sears, Roebuck &Co.,17 the issue was the danger inherent in the use of aparticular electric lawn mower designed without a deadman's switch, not the danger inherent in all lawn mowersbecause they utilize rotating sharp blades to accomplishtheir objective. In Voss v. Black & Decker Mfg. Co.,18

plaintiffs stated a cause of action by alleging that aspecific circular saw was defectively designed in that itpermitted an excessive amount of blade to be exposed,leading to plaintiff's particular injury. The cause of actionwas not based on the fact that all circular saws have thecapacity to cause laceration even when used as designedand intended. The underlying theme of the risk-utilitytest is the premise that this concept applies only when"something goes wrong with a product," not every timean individual is injured during its use.

Product liability cases involving firearms illustratethe limits drawn by the law on the application of the risk-utility test as a measure of product design. For example,in the early case of DeRosa v. Remington Arms, Inc., apolice officer died when his partner accidentallydischarged a shotgun. The plaintiff alleged that theshotgun fired because the trigger pull was "too light."Applying the risk-utility test of product defect, the courtheld that the firearm was not unreasonably dangerous asa matter of law simply by virtue of its function.Pointing out that ".... a gun [must] be designed so that itfinally can be fired... ," the court aptly stated:

Sadly, it must be acknowledged that: [m]anyproducts, however well-built or well-designed


may cause injury or death. Guns may kill;knives may maim; liquor may causealcoholism; but the mere fact of injury doesnot entitle the [person injured] to recover ....[T]here must be something wrong with theproduct, and if nothing is wrong there will beno liability.22

In other words, even when the risk-utility test isthe measure of product defectiveness, there must be anactual defect alleged in a specific product before the testis applied.

In Kelley v. R.G. Industries, Inc., the courtconsidered plaintiff's argument that a handgun, whichperformed without malfunction in the murder of thedecedent, should be evaluated under the risk-utilityanalysis. The court disagreed:

We believe.., that the risk-utility test isinapplicable to the present situation. Thisstandard is only applied when something goeswrong with a product .... [1]n the case of ahandgun which injured a person in whosedirection it was fired, the product workedprecisely as intended. Therefore, the risk-utility test cannot be extended to imposeliability on the maker or marketer of ahandgun which has not malfunctioned. 24

Despite these consistent rulings, plaintiffscontinue to attempt to use the risk-utility test as a way ofstating a product liability cause of action in casesinvolving firearms that function precisely as designedand, often, as intended, and they cite to cases like O'Brien

25 26v. Muskin Corp. or Perkins v. Wilkinson Sword. Thesecases, however, involve the evaluation of the condition ofa specific product (such as the slippery nature of thebottom of a particular swimming pool or the absence ofdevices to prevent small children from using a specificcigarette lighter), not the function of the product (to hold


water or to start a flame). In contrast, plaintiffs in firearmcases often attempt to use the risk-utility test to condemnthe function of the product (to discharge a bullet when thetrigger is pulled), rather than its condition (for example, afirearm which emits lead or gases which strike theshooter's hand when it is fired). Using the O'Brienswimming pool example, the proper analogy would bewhether the manufacturer of a non-defective swimmingpool, which properly holds water as its primary function,may be held liable when someone intentionally holdsanother under water and drowns him or her because theinstrumentality of the pool was employed (andemployable) for carrying out the criminal act. Courtshave overwhelmingly agreed that the risk-utility testcannot be applied to "create" a defect in condition in thisway; rather, that test is appropriate only where there is anunderlying defect in condition to evaluate.

B. A Product Is Not Defective Because It Can BeUsed To Inflict Injury

Rather than squarely addressing the requisiteelements of a product liability claim, plaintiffs sometimesallege that the inherent function of a firearm - that it willdischarge a bullet if all of the steps necessary to do so aretaken - constitutes the required defect. Although notlimited to these circumstances, the flaw in theseplaintiffs' cases is most obvious where injury or death bygunshot wound was the very result intended by theshooter.

A firearm, which necessarily must be capable ofbeing fired or otherwise it would not be a firearm, is notdefective merely because it is capable of being usedduring a criminal act or suicide to inflict intended harm.If a firearm may be found to be defective because it fires aprojectile when the trigger is intentionally pulled, a knifeor a pair of scissors is defective because it will cut, andgasoline is defective because it will ignite.


As noted above, state tort law does not supportsuch claims because, in the absence of a defect in thecondition of the firearm, no product liability cause ofaction can be stated. Moreover, in many states, courtshave found that plaintiffs cannot state a cause of actionwhere injury has been intentionally inflicted. Here, theacts of the shooter prevent the plaintiff from showingthat his or her injuries were proximately caused by anyact or omission of the defendant or by any defect in itsproduct. Thus, courts across the country have held thatfirearm manufacturers are not liable in tort for injuriesthat result from the intentional functioning of a firearm,whether or not the resulting harm is intended.2

Even though issues of proximate cause areordinarily factual questions for the jury to decide, courtsmay determine as a matter of law that a plaintiff cannot

281allege or satisfy this requirement as a matter of law. Inthese instances, proximate cause acts as a limit on thescope of product-related tort claims that may be pursued.Where a firearm is used to injure oneself or anotherdeliberately, its inherent capacity to do so is a result of itsfunction, not a defect in condition. Therefore, liabilitycannot attach.

II. Product Warnings Are Not Required WhenThe Danger Is Obvious

A substantial number of cases in which plaintiffsraise product liability or negligence claims againstfirearm manufacturers include allegations that aparticular product's warnings were inadequate. Whetherwarnings are attacked on product liability grounds (aninadequate warning causes a product to be defective) oron negligence grounds (the manufacturer's conduct insupplying inadequate warnings was unreasonable), theseclaims all require the following basic elements. First, theproduct must contain a latent or undisclosed defect that


posed a risk to the consumer. Furthermore, the warningsthat accompanied the product did not adequately warnthe consumer of that defect or did not give instructionson how to safely use the product. Finally, the consumerwas injured as a proximate result of that inadequatewarning about the risk.29

Embedded in this set of criteria is the assumptionthat the injured consumer did not already know aboutthe risk that ultimately caused his or her injury. "As ageneral rule, a manufacturer does not have a duty towarn customers of dangers inherent in the manufacturer'sproduct if those dangers are generally known andrecognized by the ordinary consumer. 3 0 Under the lawof many states, manufacturers simply have no duty towarn of an open and obvious danger. As one court noted,it is simply not "necessary to tell a zookeeper to keep hishead out of the hippopotamus' mouth."3

' An open andobvious danger is one which is "plain enough [that itought to] be seen by anyone." 32 Courts around thecountry have frequently supported this principle, in boththe firearm and other product contexts. Thus, where thedangers associated with the use of a particular productare open and obvious to the reasonable consumer, or arespecifically known by the plaintiff, liability cannot beestablished and inadequate warnings claims will bedismissed in many jurisdictions.

The risks associated with owning, using andstoring firearms, including the risk that they may becriminally, intentionally or accidentally misused, aredangers made open and obvious by the very nature and35function of firearms themselves. In many states, theobvious nature of the danger associated with firearm useis reflected in criminal statutes and common law thatassume specific intent to commit homicide from the act of36

pointing a firearm at a person and firing. Based uponthe well-known function of firearms, "[tihe act ofpointing a firearm and firing it in the direction of anotherhuman being is an act with death as a natural and


probable consequence."37 This is a fact with which evenschool children are familiar.38 As the court succinctlynoted in Mavilia v. Stoeger Industries, "that death mayresult from careless handling of firearms is known by all,39

Americans from an early age." Similarly, the acts of anindividual who intends to commit suicide using a firearmcannot form the basis for any claim resting on a failure towarn.

Over the years, plaintiffs have also asserted thatthe warnings that accompany firearms upon sale by theirmanufacturers are inadequate because they do not warnthat the firearm may be stolen and subsequently used incrime. However, it has been obvious since at least biblicaltimes that a possibility exists that a criminal may stealone's small, valuable, portable possessions. Commonsense and common law dictate that a product manufacturerdoes not have a duty to warn consumers of the obviousdanger that arises when its products are stolen from theconsumer's home.4 1 This specifically applies to the theftof firearms, the risk of which is well known. 42 Further, itis clear that there are persons in our society who will usevarious products, including but not limited to firearms,gasoline, water, rope, knives, electricity, poison,automobiles, chains and baseball bats to inflict harmupon others. The manufacturers of these products canhave no duty to warn consumers of a fact that has longbeen a tragic social reality.

Where no duty to warn exists, no duty to recall isjustified, even in those states that impose such a post-sale43

duty on manufacturers. A duty to recall arises out of thepresence of a latent, unexpected danger about which awarning would or should have been given, had thedanger been recognized at the time of sale of the44

product. Where the dangers associated with theintentional use or misuse of a product are obvious,neither a duty to warn nor a duty to recall can be


imposed under the law.

III. Imposition of A Duty Requires ARelationship Between the Parties

While no duty exists in the examples above, it isnot accurate to say that product manufacturers do notowe any duties towards consumers of their products. Forexample, product manufacturers have a non-delegableduty to manufacture products free from dangerous latent45

defects in construction or design. Manufacturers have acorresponding duty to test adequately and to inspectproducts before their sale.4 Additionally, manufacturershave a duty to warn consumers about latent or hiddendangers associated with its products and to provideinstructions for their safe use. Other duties are specifiedby various states' common law. Over the last twenty-fiveyears, however, a dispute has raged in negligence suitsagainst firearm manufacturers, parallel to the debate inproduct liability cases over the definition of "defect." Innegligence suits, the threshold dispute has been whetherplaintiffs are seeking to impose a recognized duty ondefendants that the law currently does recognize, orwhether plaintiffs are seeking to impose an entirely newduty without foundation in the law.

Because plaintiffs often assert previouslyunrecognized duties against firearm manufacturers, thefirst question presented is whether such a duty actuallyexists. The answer is, in every jurisdiction, a question oflaw for the court. In fixing a duty, it is the court'sobligation "to limit the legal consequences of wrongs to acontrollable degree" 49 so as to protect against crushingexposure to liability.50

In many negligence-based cases involvingfirearms, plaintiffs have sought to impose a "duty" torefrain from lawfully selling a non-defective product tothose members of the public entitled to purchase them


under the law. In these cases, plaintiffs have not allegedany illegality on the part of the firearm manufacturers.Rather, plaintiffs assert that simply by placing into thestream of commerce a lawful and non-defective productthat has the capacity to be misused for illegal ends, thedefendant has breached a duty to the plaintiffs.Alternatively, plaintiffs claim that firearm manufacturershave a duty to police the entire distribution chain of theirproducts.

Courts have generally disagreed with the theoriesmentioned above. 5

' Absent something "wrong" with afirearm, courts have overwhelmingly ruled that amanufacturer does not owe any duty to remotely locatedindividuals to refrain from lawfully distributing itsproducts to people or entities that may legally purchase52 53

them. For example, in Patterson v. Rohm Gesellschaft, aU.S. district court found that the firearm manufacturerwas under no common law duty to regulate thedistribution of or to refrain from marketing its non-defective firearms to members of the public with whom itnever had any contact or relationship. Many othercourts have agreed by specifically rejecting claims that afirearms manufacturer can be liable for negligence wherethere is neither an allegation nor evidence that themanufacturer had any relationship with, or any controlover, either the injured party or the individual whoinflicted injury using a firearm.

In fact, various legislative enactments on bothstate and federal levels have already predetermined forfirearm manufacturers who may lawfully purchase orpossess their products. Legislatures have repeatedlyconsidered this subject for more than a hundred yearsand have determined whether, and under whatconditions, citizens may purchase, own or possessfirearms as a matter of public policy.56 For example,pursuant to federal law, a firearm manufacturer may sellfirearms only to other federally licensed firearmmanufacturers, federally licensed firearm importers,


federally licensed firearm dealers or federally licensed57firearm collectors. The Firearms and ExplosivesLicensing Center of the Bureau of Alcohol, Tobacco andFirearms ("BATF") is charged with investigating thequalifications of every applicant for such a federalfirearms license. Firearm manufacturers must keepdetailed records of each product they manufacture and/orsell, including type, model, caliber, serial number,purchaser's identity, address and other requiredinformation. Firearm manufacturers cannot ship anyfirearm that does not bear, among other things, a uniqueand permanent serial number and the manufacturer'sidentity.59 Every firearm produced and sold by a firearmmanufacturer must be regularly accounted for to theBATF either by documenting its legal sale or by showingthat it is still in the manufacturer's possession.

Many more federal regulations govern firearmmanufacture and distribution. In addition, each stateestablishes it own civil, criminal and regulatory structureto control firearm distribution, ownership, possessionand use within the state. Municipalities and countieslikewise regulate firearm ownership, distribution anduse. In all of these statutory and regulatory schemes, thecourts have placed the primary burden of monitoringand overseeing the lawful distribution of firearms on theretail seller, which is usually the only entity which hascontact with individual consumers.

Why doesn't a duty arise to avoid selling anotherwise lawful and non-defective product because itmight be used to injure another? The short and pragmaticanswer is that human beings are endlessly creative intheir mischief. Shifting the burden of that mischief to themanufacturer which has lawfully sold a perfectly soundinanimate object moves society further away fromaddressing the cause and prevention of injury, ratherthan closer.

The legal answer is also simple. Tort-based dutiesdo not exist in the abstract. Rather, they only arise on the


basis of relationships, which may create in one person aduty to control another's actions and a correspondinkobligation to protect third parties from those actions.The existence of a direct relationship between thedefendant and an injury-inflicting actor provides thedefendant with at least theoretical control and anopportunity to intervene to prevent injury, creating insome circumstances a duty to do so. Alternatively, apreexisting relationship between the defendant and aninjured person can hypothetically permit the defendantto protect, and thus avoid injury to, that person. In theabsence of a direct relationship with either the injurer orthe injured, however, a product manufacturer has noability to influence the outcome. The liability imposed onmanufacturers under these circumstances is absolute andmore akin to an insurance scheme than to tort liability.Thus, in the absence of a direct relationship - whetherparent/child; employer/ employee; landlord/ tenant;common carrier/passenger or other - the law has

63determined that no duty can arise.

A duty to control the acts of criminals or to protectanother against the criminal acts of a third party isnaturally even more circumscribed, and requires that thedefendant have an actual, not just theoretical, relationshipwith and control over the third party's conduct forliability to attach.64 The Elsroth case is particularlyilluminating. Plaintiffs brought suit againstpharmaceutical maker Johnson & Johnson after thedecedent was poisoned as a result of criminal tamperingwith a bottle of Extra-Strength Tylenol.65 Plaintiffscomplained that defendant's packaging had "enhanced"the risk of criminal tampering. In dismissing productliability and negligence claims against the manufacturer,the court aptly stated that "[t]he doctrine of strictproducts liability.. .was not created as a lever to controlthe criminal conduct of persons over whom manufacturersand retailers have no control." 66 Although the courtrecognized that the random death of innocents was an


egregious injustice, it concluded that" ... a second[injustice] would be perpetrated were we to permitrecovery against these defendants for a wrong they didS 67

not truly commit."

That crime is a foreseeable fact of human societyand injury from crime is sure to result, is simply notenough standing alone to create a duty to prevent orrestrict the lawful distribution of a non-defective firearm.This lesson is illustrated by Buczkowski v. McKay, in whichthe Michigan Supreme Court refused to impose a duty onthe basis of a "fiction of foreseeability."68 In that case,plaintiff's decedent was shot shortly after an individualpurchased a firearm from the defendant retailer. Plaintiffclaimed that the retailer should have foreseen that acrime would be committed based on the customer'sdemeanor. The Michigan high court concluded that eventhough a buyer/seller relationship existed between theretailer-defendant and the customer-shooter, thatparticular relationship was not sufficient to create a dutyon the part of the retailer to foresee and forestall

69subsequent injury to a third party.

In reaching this conclusion, the court followed theposition enunciated by Oliver Wendell Holmes inrejecting the concept that foreseeability alone creates aduty:

If notice [foreseeability] so determined is thegeneral ground for liability, why is not a manwho sells firearms answerable for assaultscommitted with pistols bought of him, sincehe must be taken to know the probability that,sooner or later, someone will buy a pistol fromhim for some unlawful end? ... The Principleis pretty well established.., that everyone hasa right to rely upon his fellow-man to actlawfully and, therefore, is not answerable forhimself acting upon the assumption that theywill do so, however improbable it may be.70


Unless a manufacturer has a direct relationshipwith a criminal actor and the ability to control his or heractions, the imposition of a fictional duty to prevent aspecific crime at some undetermined future time andplace creates a scheme of absolute liability in which themanufacturer must insure any injury intentionallycaused with its products. Tort law simply does notcontemplate such sweeping and limitless shifts ofresponsibility. As the Supreme Court of New YorkCounty has pointed out:

While it may be argued that a gunmanufacturer has a moral duty to prevent orreduce the likelihood of injury to shootingvictims, by not designing and marketing [aspecific type of] hand guns, to impose a legalduty here would create limitless liability. Thiswould be inappropriate because.., the gun/ammunition manufacturer has no control overthe actions of a criminal whose goal might beto randomly kill or seriously injure innocentpeople.

IV. For Tort Liability To Be Imposed, theManufacturer Must Control the Risk at theTime of Injury

Over the past two decades, plaintiffs haveattempted to establish liability on the part ofmanufacturers for injuries sustained through product useby invoking alternative, more tenuous tort theories. Twotheories have gained particular favor among plaintiffs, ifnot in the courts: absolute liability for ultrahazardousactivities and liability for creating a public nuisance.However, efforts to apply these theories to product-related injuries suffer from a major flaw - the absence ofcontrol by the product manufacturer over the injury-


causing instrument or person at the time that injuryoccurs.

The Restatement (Second) of Torts § 519(1) sets thefollowing standard for imposing absolute liability forultrahazardous activities:

One who carries on an abnormally dangerousactivity is subject to liability for harm to theperson, land or chattels of another resultingfrom the activity, although he has exercisedthe utmost care to prevent the harm.72

Many states have adopted this principle in certain,limited circumstances.73 Typically, these cases involve theuse of property that is under the defendant's control atthe time the plaintiff sustains an injury. In New York, forexample, ultrahazardous activity theory has formed the74

basis for liability in cases involving blasting, thecollection of a quantity of water or other naturalresources in a dangerous location,75 dredging propertyadjacent to plaintiffs' land,76 or contamination of aneighbor's property by spillagg of chemicals, oil or otherallegedly harmful substances.

Where absolute liability has been imposed, thecourts' rulings have been premised on the ability of theresponsible party to control and/or eliminate the specificrisk of which plaintiff complains. In all activitiestraditionally classified as abnormally dangerous, theparty against whom liability is sought controls the risk atthe time of the injury-producing activity. Thus, those whostore or blast with explosives, store oil or gas, or dredgechannels have been found liable under this doctrine.However, absolute liability has not been imposed on themanufacturer of the explosives, the producer of the oil orgas, or the manufacturer of the dredger. The reason forthis distinction is clear: A manufacturer typically hasneither control nor custody over the risk at the time ofinjury.

In the firearm context, courts have universally


rejected efforts to apply the ultrahazardous activitytheory to the manufacture and sale of lawful, non-defective products. Every court that has specificallyconsidered whether the manufacture and lawful sale ofnon-defective firearms are ultrahazardous or abnormallydangerous activities has ultimately rejected plaintiffs'theory. For example, in Martin v. Harrington &Richardson, Inc.,79 the Seventh Circuit Court of Appealsaffirmed the ruling of an Illinois federal district courtdismissing plaintiffs' ultrahazardous activity claim forfailure to state a cause of action. The appellate courtfound that "[p]laintiffs' claim, in essence, is thatmanufacturing and selling handguns to the public is anultrahazardous activity that gives rise to strict liability forany damage done by the guns." The court explained theflaw in plaintiffs' argument:

[I]t blurs the distinction between strict liabilityfor selling unreasonably dangerous productsand strict liability for engaging inultrahazardous activities by making the sale ofa product an activity. Accepting plaintiffs'argument would run counter to Illinois' long-standing requirement that strict liability forthe sale of a product be limited tounreasonably dangerous products. Illinois hasnever imposed liability upon a non-negligentmanufacturer of a product that is notdefective."1

Some courts have gone further to conclude thatthe intervention of substandard conduct by a thirdperson precludes the classification of an activity asultrahazardous as a matter of law. In Kent v. Gulf StatesUtitlity Co.," the Louisiana Supreme Court refused toclassify transmission of electricity over high-tensionpower lines as an ultrahazardous activity, despite theknown risks to neighboring persons and property. Inmaking this determination, the court observed that when


transmission of electricity results in injury, it is almostalways because of substandard conduct on the part ofsomeone other than the electric company From theperspective of public policy, the court determined thatabsolute liability irrespective of fault was not appropriateunder those circumstances. The court stated:

It is noteworthy that, in each of the activitiesplaced in this special [ultrahazardous activity]category by decisions of Louisiana courts, theenterpriser is almost invariably the sole causeof the damage and the victim seldom had theability to protect himself. No decisions haveplaced in this category any activities in whichthe victim or a third person can reasonably beexpected to be a contributing factor in thecausation of damages with any degree offrequency.

In cases where non-defective firearms are lawfullymarketed to those in the "general public" who areentitled to purchase them and are subsequently used tointentionally or accidentally inflict injury, a third personcan reasonably be expected to be a contributing factor inthe causation of injury in every instance. Put differently,"[t]he marketing of a handgun is not dangerous in and ofitself, and when injury occurs, it is not the direct result ofthe sale itself, but rather the result of actions taken by a

84third party." Having no control over the product or thesituation, where the manufacturer is incapable ofeliminating the risk of injury; courts recognize thatabsolute liability has no basis in the law.

Courts have also generally rejected a cause ofaction for public nuisance against the manufacturer of anon-defective, lawful product for injuries arising fromthe conduct of third parties subsequent to its sale. Forexample, in City of Bloomington v. Westinghouse, the Citysued Monsanto Corporation, claiming that improperdisposal of PCBs manufactured by Monsanto and sold to


Westinghouse had polluted the City's water treatmentsystem. Plaintiff appealed the dismissal of its nuisanceclaims against Monsanto. The appellate court found thatMonsanto could not be liable because "the pleadings[did] not set forth facts from which it could be concludedthat Monsanto retained the right to control the PCBs beyond• 1 ,86

the point of sale to Westinghouse." Further, the courtfound that Westinghouse was "in control of the product itpurchased and was solely responsible for the nuisancecreated by not safely disposing of the product. ,,87

Other courts have agreed and have applied therequirement of control in dismissing nuisance claimsagainst manufacturers of lawful, non-defective products.For example, in City of Manchester v. National GypsumCo.,88 plaintiff sued the manufacturers of asbestosproducts used in schools and public buildings inManchester, New Hampshire. Plaintiff based itscomplaint on multiple theories, including the claim thatthe asbestos manufacturers had created a public nuisanceby using asbestos in public buildings. After acknowledgingthat the concept of public nuisance is comprehensive, thedistrict court nonetheless found that control over theasbestos at the time of the alleged injury was "a basicelement of the tort of nuisance."8 9 Because plaintiff hadfailed to allege such control and, by virtue of the factspled would never be able to plead such control, itscomplaint was dismissed. As the court noted, "[i]fdefendants exercised no control over the [offending]instrumentality, then a remedy directed against them is oflittle use."9°

Several recent cases have studied the applicabilityof public nuisance law to the manufacture and sale of91

non-defective firearms. In Bubalo v. Navegar, two policeofficers were shot when they responded to a suspectedbreaking and entering. The surviving officer and thefamily of the deceased officer brought a public nuisanceaction against the manufacturer of the firearm used inthis crime, "a compact, lightweight, semi-automatic,


paramilitary assault weapon."92 The Bubalo plaintiffsspecifically alleged that defendant's actions in designing,manufacturing, marketing, and selling a firearm thatpurportedly appealed to criminals constituted a publicnuisance. In dismissing those claims as a matter of law,the district court held that it was "reluctant to recognize anew theory of nuisance liability without a more solidfoundation in Illinois decisional law. 9 3 The court alsoobserved that the Seventh Circuit's analysis in Martin v.

94Harrington and Richardson, Inc., that there could be noliability for merely manufacturing dangerous products,provided "ample justification for precluding theapplication of Illinois nuisance law to reach a similarresult. ,95

96Likewise, in Cincinnati v. Beretta U.S.A. Corp., an

Ohio trial court held that public nuisance "simply doesnot apply to the design, manufacture and distribution ofa lawful product." Noting that the integrity of the entirebody of product liability law would be destroyed byapplication of public nuisance principles to the design,manufacture and sale of products, the court concludedthat "a party cannot be held liable in nuisance absentcontrol of the activity which creates or maintains theS ,98

nuisance." This ruling is consistent with the limitationsthat many states' common law places on public nuisanceliability.

V. These Limitations On Tort Actions ReflectSound Public Policy

Complaints which attempt to allege causes ofaction in the absence of the requisite defect, duty,proximate cause, or control over the offending productdistort the scope of tort law in any state beyond allreasonable bounds and directly conflict with establishedprecedent. Under the guise of a tort action, plaintiffs inthese cases urge courts to impose an unprecedented duty


on firearm manufacturers to limit the distribution of theirlegally produced, non-defective handguns to "safe"consumers of those products. Alternatively, plaintiffsurge courts to impose strict or absolute liability onfirearm manufacturers for the intentional, criminal oraccidental misuse of their non-defective products byindividuals over whom the manufacturers have nocontrol and with whom they have no relationship.

In taking this position, plaintiffs immediatelycome into direct, irreconcilable conflict with state andfederal public policy as expressed through theirrespective legislatures. The lawful distribution offirearms is highly regulated in this country, having beenaddressed by various legislatures for over one hundred99

years. Moreover, firearm manufacture, distribution,possession, ownership and use are highly controlled bymultiple layers of government. The constitutions andstatutory schemes of many states endorse an individualright to own or possess firearms.100 In creating andbuttressing federal firearm regulations, the United StatesCongress has declared that it did not thereby intend to"discourage or eliminate the private ownership or use offirearms by law-abiding citizens for lawful purposes."'0 'This legislative intent was recently reinforced by theUnited States Supreme Court, which recognized that"there is a long tradition of widespread lawful gunownership by private individuals in this country," andthat "despite their potential for harm, guns generally canbe owned in perfect innocence."10 2

Plaintiffs dismiss existing statutory and regulatorycontrols in an effort to judicially create wholly new andunsupported limitations on and liability for the lawfulmanufacture and sale of non-defective firearms. In theprocess, plaintiffs implicitly urge courts to abandon anextensive, long-standing and effective framework offederal, state and local laws and administrativeregulations governing the manufacture, distribution, sale,ownership and use of firearms. Specifically, plaintiffs


would have courts abandon existing enactments thathave predetermined who may lawfully sell and who maylawfully purchase and own handguns. By urging civilliability for the lawful manufacture and distribution ofnon-defective firearms within the existing framework ofpublic policy and legislation, some plaintiffs havecandidly made plain their primary goal in this litigation:to end or to severely limit the manufacture and distributionof legally produced, non-defective firearms. Such a goalis clearly political in nature. It calls for action which is notjudicial, but rather lies well within the realm of thelegislature, where decisions can be democraticallyreached after amassing the facts, hearing competingviewpoints and allowing full and open debate.

Many courts have indicated their clearunderstanding of this point, declining "to interfere withthe Legislature's exercise of authority in this area. ' 4 InKing, plaintiff was rendered paraplegic after beingintentionally shot with a handgun alleged to be a"Saturday Night Special." 0 The King court rejectedplaintiffs' proposal to substitute their individual moraljudgments for the extensive, long-standing framework ofpublic policy reflected in federal, state and local laws andregulations permitting the design, manufacture, sale andownership of legally sold, non-defective firearms of thatdesign.1

06 That opinion echoed the sentiments of many

courts, as summarized by a Pennsylvania trial court:

[o]nly the legislature should have the power toregulate the sale of firearms on the market,and decide whether they are so dangerousthat manufacturers, wholesalers and retailersshould be absolutely liable for injuriesresulting from their use. The jury should notbe able to speculate on whether handguns arebeneficial to society; that is a policy matter forthe legislature to decide.107

These decisions uphold the doctrine of separation


of powers, which balances the various branches of aneffective system of democratic government. "Thedoctrine of separation of powers prohibits courts fromexercising a legislative function by engaging in policydecisions and making or revising rules or regulations."0 8

As James Madison recognized, judges must refrain fromlawmaking to avoid violating that basic tenet of tripartitegovernment. "Were the power of judging joined with thelegislative,.., the judge would then be the legislator. " 109

Although the United States Constitution does notimpose the doctrine of separation of powers on stategovernments, that doctrine is implicitly embedded inmany of the states' Constitutions and in the manner inwhich they organize their governments."0 Suits that seekto limit the lawful distribution of firearms of certaindesigns or to exert global control over their alreadyhighly regulated distribution violate the principle ofseparation of powers by intruding the court into aninherently legislative process.

The function of the courts is to deal with theparticular facts of specific situations while acting on acase-by-case basis. The legislature is better equipped tomake policy decisions that will apply to all parties insimilar situations. The problems which may arise whenthese functions are confused or commingled areillustrated by the response of other courts to Kelley v. R.G.Industries, Inc., in which the Maryland Court of Appealsadopted a new theory of absolute liability for the,111

manufacturers of "Saturday Night Specials." Inrejecting this theory, the District Court for the District of112

Columbia in Brady v. Hinckley, pointed to a series ofpractical problems and unintended consequences causedby the Kelley decision, including a practical restriction onaccess to firearms for self-defense which affected only113

economically disadvantaged consumers. The court alsonoted that the Maryland court's foray into an essentiallylegislative arena created problems of a constitutionalproportion:


All of the above suggests to this Court thatwhat is really being suggested by the plaintiffs... is for this Court, or Courts, to indirectlyengage in legislating some form of guncontrol. The pitfalls noted above seem to beample evidence, however, that such legislationshould be left to the federal and statelegislatures which are in the best position tohold hearings and enact legislation which canaddress all of the issues and concerns as wellas reflect the will of the citizens.'

When legislative efforts to change a substantivebody of law are not successful over time, it is tempting tobelieve that appeal to a judicial forum may be effective.Such reactions do unintended damage, however, byundermining the premises upon which our tripartitesystem of government rests, challenging the rights ofprivate companies to engage in lawful, regulated trade,and altering the fundamental bases and limitations of tortliability. Expansion of tort liability beyond its inherentlimitations would have a profound effect not only onmanufacturers of firearms, but on every person or entitywho makes, sells, distributes or uses products. Such astartling departure from existing law should be takenonly after the most thorough and open debate in thelegislature occurs where voices of all concerned can beheard.

Conclusion

Tort claims based on a specific product's design,manufacture or warnings may result in improvements inthat product to the indirect benefit of consumers,generally. This does not mean, however, that tort liabilitycan be effectively used to combat violence or to addressbroader societal concerns. In short, there are limits on theuses to which tort litigation involving products can and


should be established. To the extent that litigants' actualgoals are political or legislative, the only constitutionallypermissible forum for those debates is likewise politicalor legislative.

Sarah L. Olson is a partner in the Chicago office of Wildman,Harrold, Allen & Dixon. She received her B.A. from the Universityof California at Berkley with high honors in 1975, and her J.D. fromChicago-Kent College of Law in 1986. Ms. Olson's practice focuseslargely on defense of complex, mass tort litigation in the areas offirearms, electromagnetic field-utilizing products, alcoholicbeverages, phamaceuticals and medical devices.

Anne G. Kimball is a partner in the Chicago office of Wildman,Harrold, Allen & Dixon. She graduated magna cum laude from SmithCollege and the University of Chicago Law School. Her practicefocuses on product liability and employment law. Currently, Ms.Kimball represents such clients as Smith & Wesson and The BeerInstitute, including such member companies as Anheuser-BuschCompanies, Inc., Adolph Coors Company, Miller Brewing Companyand Stroh Brewing Company.

Endnotes

1. See, e.g., Fischer v. Johns-Manville Corp., 512 A.2d 466 (N.J. 1986);Codling v. Paglia, 298 N.E.2d 622 (N.Y 1973). Throughout this article,cases from many different jurisdictions are cited and quoted. Thesewere chosen as representative of principles widely adopted in manyor all states, but reference to the specific case law of any given statemay reveal variations on or even, occasionally, rejection of thesethemes. To ascertain the overall law of a particular state, therefore,detailed review of its tort law is required. Copies of slip opinions areavailable upon request (and in cases of very large orders, copyingand postage) from Sarah L. Olson at [email protected].

2. See, e.g., Prentis v. Yale Mfg. Co., 365 N.W.2d 176 (Mich. 1984);Robinson v. Reed-Prentice Div. of Package Mach. Co., 403 N.E.2d 440(N.Y. 1980).

3. See, e.g., King v. R.G. Indus., Inc., 451 N.W.2d 874 (Mich. App.


1990); Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985).

4. Robinson, 403 N.E.2d at 443.

5. 608 F. Supp. 1206 (N.D. Tex. 1985)

6. Id. at 1216.

7. Fomi v. Sturm, Ruger & Co., Inc., No. 132994194 (N.Y. Sup. Ct.Aug. 2, 1995), aff'd, 232 A.D.2d 176 (N.Y. App. Div. 1996).

8. Id.

9. Id.

10. 546 So.2d 220 (La. App. 2d Cir. 1989), writ denied, 550 So.2d 634(La. 1989).

11. Id. at 225.

12. See, eg. DeRosa v. Remington Arms Co., 509 E Supp. 762 (E.D.N.Y.1981); Bennet v. Cincinnati Checker Cab Co., Inc., 353 E Supp. 1206(E.D. Ky. 1972); Trespalacios v. Valor Corp. of Florida, 486 So.2d 649(Fla. App. 3d Dist. 1986); Resteiner v. Sturm, Ruger & Co., Inc., No.94-30474 (Mich. Cir. Ct. March 9, 1995), aff'd, 566 N.W.2d 53 (Mich.App. 1997); Faiella v. Bangor Punta Corp., No. 7546 of 1984 (Ct. C.P.Beaver County, Pa. Feb. 1985), aff'd, 506 A.2d 1340 (Pa. Super. Ct.1985), among others.

13. 573 P.2d 443 (Cal. 1978)

14. See, e.g., O'Brien v. Muskin, 463 A.2d 298 (N.J. 1983), superceded byN.J. STAT.ANN. § 2A:58C-3(West 1991).

15. See, e.g., Barker, 573 P.2d at 443.

16. 482 A.2d 260 (Pa. Super. Ct. 1984).

17. 467 A.2d 615 (Pa. Super. Ct. 1983).

18. 450 N.E.2d 204 (N.Y. 1983)

19. Kelley v. R.G. Indus., Inc., 497 A.2d 1143, 1149 (Md. 1985).

20. 509 F. Supp. 762 (E.D.N.Y. 1981).


21. See id. at 769.

22. Id.

23. 497 A.2d 1143 (Md. 1985).

24. Id. at 1149. Many other courts have reached the same conclusion.See, e.g. Strickland v. Fowler, 499 So.2d 199 (La. App. 2d Cir. 1986),writ denied, 500 So.2d 411 (La. 1986); Patterson v. Rohm Gesellschaft,608 F. Supp. 1206 (N.D. Tex. 1985) ("Under Texas law, there can be noproducts liability recovery unless the product does have a defect.Without this essential predicate, that something is wrong with theproduct, the risk-utility balancing test does not apply"); Francis v.Diamond Int'l Corp., Nos. CV 82-11-1278 and CV 83-02-0215 (C.P.Butler County, Ohio Mar. 22, 1983), aff'd, 1985 WL 4793 (Ohio App.12 Dist. Dec. 30, 1985), appeal dismissed, No. 86-343 (Ohio May 28,1986) ("The weighing test should only be applied where the productcould be made safer with an alternative design, and not where theproduct is in itself dangerous"); Moore v. R.G. Indus., Inc., No. C-82-1417-MHP (N.D. Cal. Aug. 29, 1984), aff'd, 789 F.2d 1326 (9th Cir.1986) ("... ItIhis court... cannot hold as a matter of California lawthat all small handguns are therefore defectively designed. Such aninterpretation would permit courts to apply a cost-benefit analysis toall product lines manufactured in our economy"); Brady v. Hinckley,No. 82-549 (D.D.C. July 3, 1986), aff'd, No 86-5459 (D.C. Cir. Apr. 6,1987); Riordan v. Int'l Armament Corp., 477 N.E.2d 1293 (111. App. 1stDist. 1985) ("In essence, plaintiffs complain not of the product'sparticular design, but of the product itself. Because plaintiffschallenge the entire line of small, concealable handguns, the Barkerfactors.. .are inapplicable"); McCarthy v. Olin, 916 E Supp. 366(S.D.N.Y. 1996), aff'd, 119 F.3d 148 (2d Cir. 1997); McDermott v.Sturm, Ruger & Co., Inc., CV94-5405 (E.D.N.Y. 1995); Forni, No.132994194 (N.Y. Sup. Ct. Aug. 2, 1995); Mazzillo v. Banks, No. 3742-C(C.P. Luzeme County, Pa. Feb. 6, 1987), aff'd, No. 00803 (Pa. Super.Ct. Nov. 23, 1987), leave denied, No. 1013 E.D. Allocatur Docket 1987(Pa. Apr. 22, 1988); Resteiner v. Sturm, Ruger & Co., Inc., No. 94-30474 (Mich. Cir. Ct. March 9, 1995), aff'd, 566 N.W.2d 53 (Mich. App.1997).

25. 463 A.2d 298 (N.J. 1983).

26. 700 N.E.2d 1247 (Ohio 1998).

27. See, e.g. Resteiner, No. 94-30474 (Mich. Cir. Ct. March 9, 1995)


(dismissing plaintiff's tort claims against firearm manufacturerwhere a stolen gun was intentionally and criminally misused, andawarding sanctions for frivolous appeal); see also Rodriguez v. Glock,Inc., 28 F. Supp. 2d 1064, 1073 (N.D. Ill. 1998) (holding thatammunition manufacturer was not liable for the criminal misuse ofits product); Bolduc v. Colt's Mfg. Co., Inc., 968 F. Supp. 16, 18 (D.Mass. 1997) (ruling absence of proposed alternative design usingmagazine disconnect did not render pistol defective where decedent"deliberately pointed the gun at his own head and pulled thetrigger"); Wasylow v. Glock, Inc., 975 F. Supp. 370, 373 (D. Mass.1996) (dismissing design defect claims based on pistol's lack ofmanual safety or magazine disconnect where plaintiff sustainedinjuries through his own "undeniable" misuse of the product);Eichstedt v. Lakefield Arms Ltd., 849 F. Supp. 1287, 1293 (E.D. Wis.1994) ("The moral of this story is simple. One should never point agun at another, thinking it is unloaded. And one should nevercompound the felony by pulling the trigger. When these cardinalrules are violated, the victim has an airtight negligence suit againstthe shooter. He has no case against the gun maker"); Raines v. ColtIndus., Inc., 757 F. Supp. 819, 826 (E.D. Mich. 1991) (dismissingplaintiff's claim that gun was defective absent magazine disconnect;individual's act of deliberately firing pistol relieved firearmmanufacturer of liability as a matter of law); Delahanty v. Hinckley,564 A.2d 758 (D.C. 1989) (concluding that traditional tort theoriesprovide no basis for holding firearm manufacturers liable for injuriesarising from guns' intentional uses), aff'd, 900 F.2d 368 (D.C. Cir.1990); Armijo v. Ex Cam, Inc., 656 F. Supp. 771, 773 (D.N.M. 1987)(following the "overwhelming weight of authority which rejectsstrict products liability as a theory for holding handgunmanufacturers liable for the criminal misuse of their products" andacknowledging that "[tihe mere fact that a product is capable ofbeing misused to criminal ends does not render the productdefective"), aff'd, 843 F.2d 406 (10th Cir. 1988); Patterson, 608 F. Supp.at 1212 (ruling mother of murder victim could not recover damagesfrom firearm manufacturer under "unconventional" and "expanded"theory of products liability where plaintiff did not offer, and couldnot offer, alternative design "because a gun, by its verynature.. .[m]ust have the capacity to discharge a bullet with deadlyforce"); Forni, No. 132994194 (N.Y. Sup. Ct. Aug. 2, 1995) (grantingfirearm, magazine, and ammunition manufacturers' motion todismiss product liability and negligence claims arising out of theLong Island Railroad shooting, noting that the manufacturers"certainly had no control over the criminal conduct of a thirdparty"); King v. R.G. Indus., 451 N.W.2d 874 (Mich. App. 1990)(holding that firearm manufacturer could not be held liable for


intentional functioning of handgun); Addison v. Cody WayneWilliams, 546 So.2d 220, 226 (La. App. 2d Cir. 1989), writ denied, 550So.2d 634 (La. 1989) ("The manufacturers of the weapon and theammunition used in it are not liable for injuries resulting from theintentional criminal misuse of the gun."); Taylor v. Gerry'sRidgewood, Inc., 490 N.E.2d 987, 990-92 (Ill. App. 3d 1986) (rulingsummary judgment properly granted for manufacturer despiteclaimed need for an additional safety device where revolver"performed according to its design" when individual "deliberatelypointed it at the decedent's head and pulled the trigger"); Riordan,477 N.E.2d 1293 (affirming grant of firearm manufacturers' anddistributors' motion to dismiss "where the plaintiff's injury wascaused by that product's operation precisely as it was designed tooperate").

28. See Forni, No. 132994194 (N.Y. Sup. Ct. Aug. 2, 1995).

29. See, e.g., Riordan, 477 N.E.2d 1293.

30. Gawlowski v. Miller Brewing Co., 644 N.E.2d 731, 733, (Ohio Ct.App. 1994) appeal denied, 641 N.E.2d 1110 (Ohio 1994).

31. Bartkewich v. Billinger, 247 A.2d 603, 606 (Pa. 1968).

32. Rogers v. Moore, No. 91-CV-76954-DT at 9 (E.D. Mich. Feb. 26,1993), citing Fisher v. Johnson Milk Co., 174 N.W.2d 752, 753 (Mich.1970).

33. See Raines v. Colt Indus., Inc., 757 E Supp. 819, 824 (E.D. Mich.1991); Rogers, No. 91-CV-76954-DT (E.D. Mich. Feb. 26, 1993); Armijov. Ex Cam, Inc., 656 F. Supp. 771, 773; Diggles v. Horwitz, 765 S.W.2d839 (Tex. App. 1989); Eichstedt v. Lakefield Arms Ltd., 849 E Supp.1287, 1293 (E.D. Wis. 1984); Richardson v. Holland Corp., 741 S.W.2d751 (Mo. App. 1987); Riordan, 477 N.E.2d at 1293; Schilling v. Blount,Inc., 449 N.W.2d 56 (Wis. App. 1989).

34. See, e.g., Raines, 757 E Supp. at 826.

35. See MacPherson v. Buick Motor Corp., 111 N.E. 1050 (1916).

36. See, e.g., State v. Widner, 431 N.E.2d 1025 (Ohio 1982).

37. State v. Pound, No. 16834, 1998 WL 636996, at *3 (Ohio Ct. App.Sept. 18, 1998) (quoting State v. Brown, No. 68761 (Cuyahoga App.,Feb. 29, 1996)).


38. See id.

39. Mavilia v. Stoeger Indus., Inc., 574 F. Supp. 107, 111 (D. Mass.1983).

40. Deuteronomy 5:19 and parallel prohibitions in all major religions.

41. See Fisher v. Johnson Milk Co., 174 N.W.2d 752, 752-53 (Mich.1970) (quoting Jamieson v. Woodward & Lothrop, 247 F.2d 23, 26(D.C. Cir. 1957)).

42. See, e.g., Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206, 1209n.7 (N.D. Tex. 1985); Resteiner v. Sturm, Ruger & Co., Inc., No. 94-30474 (Mich. Cir. Ct. March 9, 1995) ("Theft [of firearms] andsubsequent use by a criminal are a (sic) widely known, commonlyrecognized and unfortunate realities regarding which Sturm, Rugerhad no duty to warn").

43. See DePue v. Sears, No. 1:89-CV-972, 1992 U.S. Dist. LEXIS 14931,at *12 (W.D. Mich. 1992).

44. See, e.g., Comstock v. Gen. Motors Corp., 99 N.W.2d 627 (Mich.1959).

45. See, e.g., Forrest City Mach. Works, Inc. v. Aderhold, 616 S.W.2d720 (Ark. 1981).

46. See, e.g., Nicklaus v. Hughes Tool Co., 417 F.2d 983 (8th Cir. 1969).

47. See Riordan v. Int'l Armament Corp., 477 N.E.2d 1293 (Ill. App.3d 1985).

48. See, e.g., Eiseman v. New York, 511 N.E.2d 1128 (N.Y. 1987).

49. Tobin v. Grossman, 249 N.E.2d 419 (N.Y. 1969).

50. See Pulka v. Edelman, 358 N.E.2d 1019 (N.Y. 1976).

51. Two currently pending decisions, which appear to articulatenegligence-based liability for lawful distribution of certain firearms(or certain quantities of firearms) to the population entitled topurchase them, are aberrations in their respective states of origin,and are being appealed. See Hamilton v. Accu-Tek, 62 F. Supp.2d 802(E.D.N.Y. 1999) (reflecting a trial court's refusal to apply controlling


precedent including McCarthy v. Olin Corp., 119 F.3d 148 (2d Cir.1997)), and Fomi v. Sturm, Ruger & Co., Inc., No. 132994194 (N.YSup. Ct. Aug. 2, 1995), aff'd, 648 N.YS. 2d 73 (N.Y. App. Div. 1996).The California appellate court decision in Merrill v. Navegar, 89 Cal.Rptr. 2d 146 (Cal. Ct. App. 1st Dist. 1999), likewise attempts theunprecedented step of imposing liability in negligence based on thelawful sale of a non-defective firearm based on the theory that a dutyexists to avoid "enhancing" the risk of criminally-inflicted injury.Merrill has been accepted on appeal by the California Supreme Courtand, pursuant to California court rules, has therefore been vacateduntil that appeal is resolved.

52. See, e.g., McCarthy v. Olin, 916 F. Supp. 366 (S.D.N.Y. 1996), aff'd,119 F.3d 148 (2d Cir. 1997); McDermott v. Sturm, Ruger & Co., Inc.,CV94-5405 (E.D.N.Y., 1995); Forni, No. 132994194 (N.Y. Sup. Ct. Aug.2, 1995); First Commercial Trust Co. v. Lorcin Eng'g, Inc., 900 S.W.2d202 (Ark. 1995); Addison v. Cody Wayne Williams, 546 So. 2d 220,226 (La. App. 2d Cir. 1989), writ denied, 550 So.2d 634 (La. 1989);Delahanty v. Hinckley, 564 A.2d 758 (D.C. 1989); Caveny v. RavenArms Co., 665 F. Supp. 530 (S.D. Ohio 1987); Armijo v. Ex Cam, Inc.,656 E Supp. 771, 773 (D.N.M. 1987); Riordan, 477 N.E.2d 1293;Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206 (N.D. Tex. 1985);Bennet v. Cincinnati Checker Cab Co., Inc., 353 F. Supp. 1206 (E.D.Ky. 1972).

53. 608 E Supp. 1206 (N.D. Tex. 1985).

54. See id. at 1211.

55. See Knott v. Liberty Jewlery & Loan, Inc., 748 P.2d 661 (Wash.App. 1988), review denied, 110 Wash.2d 1024 (1988) ("Themanufacturer of a non-defective firearm has no duty to control thedistribution of that handgun as the distribution was intended for thegeneral public who presumably can recognize the dangerousconsequences in the use of handguns and can assume responsibilityfor their actions."); Richardson v. Holland, 741 S.W.2d 751, 755 (Mo.App. 1987) ("The basis alleged.., for imposing strict liability upon[the firearm manufacturer] is that it failed to warn of the dangersassociated with the distribution of the handgun and failed toregulate or limit the distribution and sale of the handgun so as toprevent its use in criminal activities ... A conclusory allegation of afailure to regulate or limit the distribution of handguns violates noduty of [the manufacturer] to the plaintiff"); Delahanty, 564 A.2d 758(D.C. 1989); Armijo, 656 F Supp. at 773; Caveny, 665 F. Supp. at 531;Riordan, 477 N.E.2d 1293 (Ill. App. 3d 1985); Bennet, 353 F. Supp. 1206


(E.D. Ky. 1972).

56. See Federal Gun Control Act of 1968, 18 U.S.C. § 921 (1999).

57. See 18 U.S.C. § 922(a)(1)(A)(5).

58. See ATF Commerce in Firearms and Ammunition, 27 C.F.R. §§178.121-131 (1999).

59. See 18 U.S.C. § 922(K); 27 C.F.R. § 178.34, 178.92.

60. See 27 C.F.R. § 178.23.

61. See Huddleston v. United States, 415 U.S. 814, 823 (1984).

62. See Forni, No. 132994194 (N.Y. Sup. Ct. Aug. 2, 1995).

63. See Strauss v. Belle Realty Co., 65 N.Y. 2d 399, 402, 482 N.E.2d 34(N.Y. 1985); First Commercial Trust Co. v. Lorcin Eng'g, Inc., 900S.W.2d 202 (Ark. 1995).

64. See Buczkowski v. McKay, 490 N.W.2d 330 (Mich. 1992), reh'gdenied, 491 N.W.2d 830 (Mich. 1992); Elsroth v. Johnson & Johnson,700 F. Supp. 151 (S.D.N.Y. 1988).

65. See Elsroth, 700 F. Supp. at 165.

66. Id.

67. Id. at 168.

68. Buczkowski, 490 N.W.2d at 335.

69. See id.

70. OLIVER WENDELL HOLMES, COLLECTED LEGAL PAPERS 131-32 (1952),cited in Mavilia v. Stoeger Indus., Inc., 574 F. Supp. 107, 110 n. 3 (D.Mass. 1983).

71. Forni, No. 132994194, (N.Y. Sup. Ct. Aug. 2, 1995).

72. RESTATEMENT (SEcOND) OF TORTS § 519(1) (1965).

73. See, e.g., Spano v. Perini, 250 N.E.2d 31 (N.Y 1969).


74. See id.

75. See Doundoulakis v. Town of Hempstead, 368 N.E.2d 24 (N.Y.1977).

76. See Sea Harbor Corp. v. G & M Dredging Co., 105 N.YS.2d 497(N.Y Sup. Ct. 1951).

77. See Snyder v. Jessie, 565 N.YS.2d 924 (N.Y. App. Div. 1990); Statev. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985).

78. See, e.g. Perkins v. F.I.E. Corp., 762 F.2d 1250, 1268 (5th Cir. 1985);Caveny v. Raven Arms Co., 665 F. Supp. 530, 531 (S.D. Ohio 1987);Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1203-04 (7thCir. 1984); Moore v. R. G. Indus., Inc., 789 F.2d 1326, 1328 (9th Cir.1986); Armijo v. Ex Cam, Inc., 656 F. Supp. 771 (D.N.M. 1987);Shipman v. Jennings Firearms, Inc., 781 F.2d 1532 (11th Cir. 1986);Delahanty v. Hinckley, 564 A.2d 758 (D.C. 1989); Trespalacios v. ValorCorp. of Florida, 486 So.2d 649 (Fla. App. 3d Dist. 1986); Riordan v.Int'l Armament Corp., 477 N.E.2d 1293 (Ill. App 3d. 1985); Kelley v.R.G. Industries, Inc., 479 A.2d 1143, 1147 (1985); Richardson v.Holland Corp., 741 S.W.2d 751 (Mo. App. 1987); Burkett v. FreedomArms, Inc., 704 P.2d 118 (Or. 1985); Faiella v. Bangor Punta Corp., No.7546 of 1984 (Ct. C.P. Beaver County, Pa. Feb. 1985), aff'd, 506 A.2d1340 (Pa. Super. Ct. 1985); Chapman v. Oshman's Sporting Goods,Inc., 792 S.W.2d 785 (Tex. Ct. App. 1990); Knott v. Liberty Jewlery &Loan, Inc., 748 P.2d 661, 665 (Wash. App. 1988).

79. 743 F.2d 1200 (7th Cir. 1984).

80. Id. at 1201-02.

81. Id. at 1204.

82. 418 So.2d 493 (La. 1982).

83. Id. at 499 n.8.

84. Perkins, 762 F.2d at 1265-1266.

85. 891 E2d 611 (7th Cir. 1989).

86. Id. at 614 (emphasis added).

87. Id.


88. 637 F. Supp. 646 (D.R.I. 1986).

89. Id. at 656.

90. Id.; see also, Robbins Corp. v. Eastman Chemical Co., 912 F. Supp.1476, 1494 (N.D. Ala. 1995); Town of Hooksett v. W.R. Grace & Co.,617 F. Supp. 126, 133 (D.N.H. 1984).

91. No. 96-C-3664, 1997 U.S. Dist. LEXIS 8551 (N.D. Ill. June 11,1987), rev'd in part on reh'g, 1998 U.S. Dist. LEXIS 3598, Mar. 20, 1998.

92. Id. at *2.

93. Id. at *14-15.

94. 743 F.2d 1200 (7th Cir. 1984).

95. Bubalo, 1997 U.S. Dist. LEXIS 8551, at *11.

96. No. A9902369, 1995 Ohio Misc. LEXIS 27 (Ohio Ct. C.P. Nov. 15,1999), appeal pending.

97. Beretta, 1995 Ohio Misc. LEXIS 27, at *8. The legal basis of acontrary ruling in Ceriale v. Smith & Wesson Corp., No. 99L 5628 (Il.Cir. Ct. Nov. 30, 1999) is seriously flawed. The trial court there ruledthat plaintiff had standing to bring a public nuisance claim againstan entire manufacturing industry based on an Illinois appellatedecision which had been reversed by the Illinois Supreme Court. SeeGlisson v. City of Marion, 720 N.E.2d 1034 (Ill. 1999). In giving herruling, the Ceriale judge acknowledged the unique nature of heropinion by inviting additional dispositive motions and by statingthat, if a case remains following those motions, immediateinterlocutory appeal will be permitted.

98. Beretta, 1995 Ohio Misc. LEXIS 27, at *4.

99. See 27 C.F.R. §§ 178.121-178.131; 27 C.F.R. § 178.23.

100. See e.g., Louisiana Constitution, Art. I, § 11.

101. 18 U.S.C. § 921 ("Other provisions" (b)(2)).

102. Staples v. U.S., 511 U.S. 600, 610-611 (1994).


103. See 18 U.S.C. § 921.

104. King v. R.G. Indus., Inc., 451 N.W.2d 874, 875 (Mich. App. 1990);see also Patterson v. Rohm Gesellschaft, 608 F. Supp. 1206, 1216 (N.D.Tex. 1985)(". . . the question of whether handguns can be sold is apolitical one, not an issue of products liability law - and that this is amatter for the legislature, not the courts"); Armijo v. Ex Cam, Inc.,656 F. Supp. 771, 773 (D.N.M. 1987)("To recognize such a cause ofaction in New Mexico would require an abrogation of the commonlaw in a way bordering on judicial legislation"); Delahanty v.Hinckley, 564 A.2d 758 (D.C. 1989); Mavilia v. Stoeger Indus., Inc.,574 F. Supp. 107 (D. Mass. 1983); Francis v. Diamond Int'l Corp., 665F.Supp 530; Knott v. Liberty Jewlery & Loan, Inc., 748 P.2d 661 (Wash.App. 1988); Richardson v. Holland Corp., 741 S.W.2d 751, 755 (Mo.App. 1987); Bennet v. Cincinnati Checker Cab Co., Inc., 353 F. Supp.1206 (E.D. Ky. 1972); Brady v. Hinckley, No. 82-549 (D.D.C. July 3,1986), aff'd No. 86-5459 (D.C. Cir. Apr. 6 1987).

105. King, 451 N.W.2d at 875.

106. See id.

107. Mazzillo v. Banks, No. 3742-C (C.P. Luzerne County, Pa. Feb. 6,1987), aff'd, No. 00803 (Super. Ct., Nov. 23, 1987).

108. Route 20 Bowling Alley, Inc. v. Mentor, No. 94-L-141, 1995 OhioApp. LEXIS 5721, *8, (Ohio Ct. C.P. Nov. 15, 1999), appeal pending, No.94-L-141 (Ohio Ct. C.P. Dec. 22, 1995)(citing Zangerle v. Evatt, 139Ohio St. 563, 41 N.E.2d 369 (1942)).

109. THE FEDERAUST PAPERS (Penguin, Pub., New York 1961).

110. See South Euclid v. Jemison, 503 N.E.2d 136 (1986).

111. Kelley v. R.G. Indus., Inc., 497 A.2d 1143 (Md. 1985). Despite itssound approach to product liability law, the Kelley court establishedan entirely new area of absolute liability only for the manufacturersof firearms which the court deemed inexpensive, "poor quality,"small, easily concealable handguns of a type not used by sporting orlaw enforcement consumers. This new area of liability was basedsolely on the court's mistaken impression that the Marylandlegislature had expressed its desire as a matter of public policy toban distribution of such firearms. To the contrary, after the Kelleydecision was issued, the Maryland legislature enacted a statuteoverruling the cause of action that case purported to create. See MD.


ANN. CODE art. 27, § 36-I(h)(1)(1994).

112. No. 82-549 (D.D.C. July 3, 1986), aff'd No. 86-5459 (D.C. Cir. Apr.6 1987).

113. Kelley, 497 A.2d at 1143.

114. Brady, No. 82-549 (D.D.C. July 3, 1986); but see, Patterson v. RohmGesellschaft, 608 F. Supp. 1206 (N.D. Tex. 1985) ("It would beimproper for courts to ignore the fact that legislatures haverepeatedly rejected arguments like those made by plaintiffs'attorneys in this case").


Documents

The Limits on the Use of Tort Law to Encourage Consumer Safety