DESIGNS AND WARNINGS: WOULD THEY REALLY MAKE IT SAFER?

Present at: Gun & Media Violence-Issues for the Litigator
Sponsored by The American Bar Association
February 2-3, 2001
Beverly Hills, CA

By Richard C. Miller
rmiller@monseesmayer.com

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Firearms are Unique

A gun is not like any other product. Its purpose is to kill. Hence, firearms litigation is not like any other tort claim. In order to convince a jury a firearm is defective, someone negligently handled a gun, or its marketing, distribution or sale is improper, you must understand how people think and feel about firearms.

Other products such as tobacco, automobiles and pharmaceuticals may kill you but that is not their intended purpose. Firearms were designed first to kill an enemy and soon thereafter to put game on the family table. Self-protection from the enemy or sometimes from the very game being hunted was implicit in these uses. As such, firearms were not only useful but indispensable tools in years past. While firearms are still important for military and law enforcement purposes, subsistence hunting has all but disappeared in this country. Civilian use of firearms has been relegated to sporting activities such as hunting and shooting competitions. Since tort law deals primarily with consumer use of firearms, this is a dangerous product without much purpose.

The vestiges of why we owned and used firearms a century ago still remain. Now instead of protecting ourselves from Indians and outlaws, firearms are sold for protection from “criminals.” In order to increase sales in a saturated market, the firearms industry, particularly those making and selling handguns, have played upon the fear of crime to sell their goods. The “concealed carry” legislation which has swept the country is but one example of the industry’s efforts to rearm society. Not since the days of the “wild west” have we seen such a surge in the sale of handguns for self-protection. This is the classic example of creating a need in order to sell a product. Remember, this is the same industry that arms criminals in the first place through its questionable sales practices. An arms race can be good for business, be it military or civilian. Originally, the intent of the shooter distinguished a tort claim from criminal conduct. Now, the foreseeability of that conduct may give rise to other tort claims. It is that very foreseeability, if not the inevitability, of crime with guns that is creating new tort litigation.

Litigation Works

Firearms litigation can be divided into three main areas: 1) traditional products liability litigation; 2) negligence claims regarding sale, ownership and use of firearms, and 3) what I hesitatingly refer to as “public policy” cases. In addition, shootings can be classified as either accidental or intentional. With respect to accidental shootings, the first two areas of litigation, product liability and standard negligence claims against firearms manufacturers have significantly reduced the number of accidental deaths and injuries in the United States over the last few decades. On the other hand, these same manufacturers until recently have been immune from any lawsuits arising from intentional shootings, despite the foreseeability of these occurrences. But in the absence of legislative initiative, courts are becoming impatient and some are crafting remedies to redress both individual and community grievances.

Litigation has been the sole means to address deaths and injuries caused by dangerous and defective firearms in this country. Over the past few decades we have been successful in reducing the number of accidental shootings by forcing manufacturers: 1) to make changes in design and manufacture, 2) recall and retrofit dangerous guns, and 3) take those beyond hope off the market entirely. While the incidents of accidental shootings have been more than cut in half despite a five fold increase gun ownership, the incidents of intentional shooting have gone through roof. Again, because our elected officials refuse to deal with the problem prospectively, private attorneys have been called upon to deal with the tragic consequences of gun violence resulting from the proliferation of cheap handguns and dangerous assault weapons in this country.

Gradual Change?

Courts have traditionally been reluctant to hold firearms manufacturers liable for the criminal use of their products. They have dodged the bullet by holding that firearms regulation is peculiarly a legislative function. However, as federal and state legislatures continue to ignore their repeated pleas, some judges have begun to fashion remedies in those cases with the right facts. The foreseeability of gun violence resulting from an individual defendant’s conduct, and more recently that of the entire industry, is the linchpin of success in these cases. The history of what can be termed “public policy” firearms litigation has directly followed the increase in the number and potency of weapons sold to the general public. Following are a few of the more preeminent decisions, many of which result from news events you will remember.

Product Liability Theory

Kelley v. R. G. Industries, Inc., was the first and is still the only firearms case to date which has held that plaintiffs can sue a manufacturer under a strict liability theory when the alleged defect in the product is the design concept itself. In Kelley, the plaintiffs claimed that a Saturday Night Special is inherently dangerous because of its short barrel, light weight, easyconcealability, low price, cheap materials, poor manufacture, inaccuracy andunreliability. These characteristics, the plaintiffs claimed, rendered the weapon particularly attractive to criminals and virtually useless for the legitimate purposes of law enforcement, hunting or target shooting, and self-protection. Other courts have declined to follow Kelley, finding that the definition of defect used in that case did not follow traditional product liability principles. Richardson v. FIE Courts also have been disinclined to expand the Kelley holding to assault weapons or airguns sold to children.

Add Negligence and Ultra-hazardous Activity

The Long Island Railroad cases sought damages under theories of negligence, strict product liability, and ultra-hazardous activity from the manufacturers of the weapons used by the assailant, Colin Ferguson . At 6:00 p.m. on December 7, 1993, Mr. Ferguson opened fire on a packed commuter train leaving six dead and 19 wounded. The suit alleged the defendant manufacturers should have recognized that their advertising would appeal to homicidal and mentally disturbed individuals making such an outburst of violence entirely foreseeable.

The suit first charged each manufacturer with negligence, claiming they knew or should have known of the dangers posed to the public by promoting and placing its products into the stream of commerce. The specific allegations made against defendants included: the product had no legitimate sporting purpose; the product was inappropriate for self defense; the product was specifically designed to kill large numbers of people in a short period of time, and such products were disproportionately associated with criminal activity.

Next, the suit advanced a products liability theory that the defendants had a duty to design their products to avoid unreasonable risks of harm to bystanders from misuse. Here, plaintiffs asserted it was reasonably foreseeable that mentally unstable persons would acquire these products for the purpose of going on a human shooting spree. Lastly, plaintiffs charged the defendants with engaging in an ultra-hazardous activity by advertising and indiscriminately selling there potent weapons to the general public without restriction.

The trial court in McCarthy granted defendants’ motion to dismiss, which was affirmed, and the companion McDermott case followed suit. The trial court held that any defect in the firearm magazine or ammunition must be in the condition of the product and not its “intrinsic function,” and, unfortunately, since they all worked as intended, there was no strict liability claim. With respect to the claims of negligence and ultra-hazardous activity, the court held that Ferguson’s actions were neither foreseeable nor controlled by the manufacturers and declined to impose any duty upon the industry.

The 101 California Street case involved an action arising from a tragic shooting at a California law firm in 1993. On July 1, 1993, Gian Luigi Ferri entered the Petit & Martin law office in the 101 California Street building in downtown San Francisco office. Ferri opened fire with at least three firearms, killing eight individuals and wounding six prior to committing suicide. Initially, plaintiffs asserted liability claims against a myriad of defendants, including the pawn shop which sold the weapon to Ferri; USA Magazines, the ammunition manufacturer; and Navegar, the producer of the assault weapon. The claims against USA Magazines was dismissed and the pawnshop settled for $150,000.00.

Plaintiffs remaining case against Navegar, Inc., d/b/a Intratec, alleged thatIntratec’s design and marketing of the TEC-DC9 firearm to consumers demanding extraordinary firepower would eventually lead to a tragedy like the Ferri rampage. After two years of discovery, the trial court acknowledged it was foreseeable to Intratec that its firearms could be used to kill people due to their assault weapon and commando‑style design. But to the contrary, the court dismissed the lawsuit against Intratec, holding it had no duty under California law to refrain from making or selling the TEC-DC9 because such conduct was legal in Florida, where it occurred. But the California Court of Appeals reversed, finding there was no reason to exempt makers of deadly weapons from a general duty to exercise ordinary care, relying heavily on Navegar’s extreme marketing of its assault weapon to the criminal market. Unfortunately, the California Supreme Court has granted review of the Appellate decision, de-publishing it and depriving us of any precedential value.

Traditional Negligence

Old style negligence is the favored cause of action in many of the lawsuits which have sought to hold the firearms industry accountable for the foreseeable criminal use of their product. “Duty, breech, causation and damages” have been reborn through the foreseeability of criminal or maniacal conduct which never seems to leave the front pages of newspapers. The leading case to espouse this theory is Hamilton v. Accu-Tek, 935 F.Supp. 1307 (E.D.N.Y. 1996) which stands for the proposition that manufacturers of this uniquely hazardous product have a duty when they put firearms in the stream of commerce to take reasonable steps to prevent their use in criminal activity. In Hamilton, the victims of two intentional shootings with unknown handguns brought claims against numerous manufacturers and a few distributors under market share ( Hymowitz v. Eli Lilly & Company 539 N.E. 2d 106g, (1989) 541 N.Y.S. 2d 941, cert. denied, 110 S.Ct. 350)(1989) Eli Lilly & Company v. Hymowitz 439 U.S. 944, 110S. Ct. 350, 107 L. Ed2d 338 (U.S. N.Y. Oct. 30, 1989) and enterprise liability ( Hall v. E.I. Du Pont De Nemours & Co. Inc., 345 Fed Sub 353) theories. The court dismissed plaintiffs’ claims in strict liability, ultra-hazardous activity and fraud but allowed the negligence claim to proceed to trial stating:

[T]he heart of plaintiffs’ theory, apparently, is the claim that defendants’ negligence in methods of marketing handguns and flooding the handgun market has fostered the development of an extensive underground economy in handguns. Through this underground market, it is suggested, minors may readily illegally obtain handguns which they then use, resulting in the deaths of individuals such as the decedents represented by plaintiffs of this court.

The jury rendered a verdict against several manufacturers and assessed damages against a few of these, but the court’s judgment is presently on appeal. Hamiltion v. Accu-tek, No. CV-95-0049, E.D.N.Y.

Plaintiffs’ negligent marketing theory was based on the following allegations which they were able to prove through expert testimony, statistical and epidemiological evidence and the marketing practices of the manufacturers:

1. Handguns are not a consumable product in that they have a life expectancy of 50 to 100 years.

2. However, handguns used in criminal activities are a consumable product in that they are routinely disposed of after use.

3. The legitimate market for hunting, shooting and self-protection cannot begin to absorb the 1.5 million new handguns produced on an average each year.

4. This apparent oversupply finds its way to the underground firearms market, which buys handguns in bulk in weak regulatory states and smuggles them into states with stricter controls.

5. Handguns are disproportionately used in criminal activity constituting a very substantial portion of total handgun sales.

6. A large proportion of the handguns used in crime were sold recently, suggesting a strong connection between the primary legal retail market and the illegal underground market.

7. Sales of handguns in states that are the primary source of firearms used in criminal activity are significantly higher than would be expected given the overall level of gun ownership in that state.

8. Statistical analysis of the oversupply of handguns for a particular state can predict the number of handguns from that state which will be used in criminal conduct in other states.

9. The industry has designed guns to meet the needs of its criminal customers in order to increase sales.

10. The handgun industry knows this and profits by it to others detriment.

The industry has always responded with its trite slogan “Guns don’t kill people; people kill people.” This primary legal defense in Hamilton was one of the intervening and/or superseding cause in which the defendant blames the shooter for his intentional conduct. The industry also emphasizes its initial sale is entirely lawful, and it already complies with numerous regulations, although few of which circumscribe this type of conduct. In those states without market share or enterprise liability, it is impossible to pursue a case unless you can identify the specific make and preferably the model and caliber of the handgun involved.

More Product Liability and Some Negligence

Another significant case focused on one defendant since the handgun manufacturer was known and detailed design changes that could easily be made to handguns which significantly reduce the number of accidents after which the shooter exclaims “I didn’t think it was loaded!” Unfortunately, Dix v. Beretta was tried to a defense verdict, but it was recently reversed for jury misconduct. Kenzo Dix was shot with a Beretta 9 millimeter semi-automatic handgun by his 14 year old friend, thinking the gun was unloaded because he had removed the magazine. This is yet another typical example of a tragic consequence of children and guns which could have easily been avoided by the design changes urged by the plaintiffs. First, at the very least, Beretta should have included a “chamber loaded” indicator which would signal the user that a round was in the chamber. Better yet, magazine disconnect designs have been available for many years which disable the firearm when the magazine has been removed as in this case. Third and perhaps safest are such things as a child safety lock or smart gun technology that renders a firearm incapable of discharging other than by its intended user.

Plaintiffs utilized a risk/utility analysis to argue that a handgun which fails to contain the simple design changes is defective perse Beretta did not contend that the design changes were not feasible but, instead, criticized them, particularly the “chamber loaded” indicator as ineffective. Firearms manufacturers usually argue that any safety enhancement is a poor substitute for safe gun handling practices of the user and, in fact, may become a crutch on which the shooter should not rely. Remember one of the more recently adopted Ten Commandments is “Don’t rely on your gun’s safety, treat every gun as if it were loaded and ready to fire.” Beretta argued that it was not liable for the death of Kenzo Dix under California law because it had no duty to implement safety features to prevent a gun from being fired by an unauthorized user and that the risk was open and obvious to anyone. The trial court denied Beretta’s motions for summary judgment, as did the court of appeals pursuant to writ filed by Beretta. As a result, there is precedent for this cause of action and hopefully a retrial will result in the opposite verdict.

Public Nuisance Fits

Equity teaches us that for each wrong there is a remedy. Historically, equitable doctrines were developed to supplement or when necessary, override common and statute law when justice needed a remedy to protect rights or enforce duties. Our courts have generally rejected strict liability claims for defective products and ultra-hazardous activity in the firearms context. Only recently have they begun to consider traditional negligence principals with respect to the marketing and sale of handguns because no other remedy was available. However, many of the municipal lawsuits against the firearms industry have seized upon a remedy which esoteric, may fit their claims to a tee. As codified in the Restatement (Second) of Torts, Section 821B (1965) the public nuisance doctrine is designed to remedy “significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience.” Restatement (Second) of Torts, Section 825 (1965).

While this cause of action may appear tailor-made for municipalities there is some question whether it can be asserted by anyone other than an individual. Alexander Penelas v. Arms Technology Inc. No. 99-01941 CA-06, slip op. at 2-4 (Circuit Court Miami-Dade County December 13, 1999); City of Cincinnati v. Beretta USA Court, No. A9902369, slip op. at 5 (Court C.P. Hamilton County Oct 7, 1999). But if it is, injunctive relief may be available which would allow governmental entities to address the problem of firearms violence prospectively rather than continuing to suffer economical and social repercussions after the fact.

Pleading a public nuisance case is simple in that the plaintiff must only allege: 1) the existence of public rights; 2) the violation of that right by the defendant, and 3) resulting injury. In addition to conduct that is both intentional and unreasonable, an Illinois court has held that a defendant who is merely negligent can also be liable under the doctrine of public nuisance. Bubalo v. Navegar, Inc. 1998 U.S. Dist. LEXIS 3598 7-8 (N. D .Ill. Mar. 16, 1998). Most importantly, a firearms manufacturer may create a public nuisance even though the condition it creates is not itself harmful, but becomes so upon the act of another person such as the criminal who uses its product. Restatement (Second) of Torts, Section 834, comment F. The municipal plaintiffs have grafted the public nuisance doctrine onto their allegations of negligent marketing and sale of handguns as listed above to create an equitable remedy that is perhaps the best cause of action for addressing the problem of handgun violence in their cities.

The firearms industry has reacted to this novel theory through misdirection by refocusing on traditional negligence defenses. They claim the making and selling of a lawful product cannot be a public nuisance particularly when they do not control that product after the initial sale. They want to contrast the legality of their sale of handguns with the illegality of someone else’s criminal use of their product. The manufacturers would prefer to ignore the concept mentioned at the start of this section, the foreseeability of criminal use of their product given the glut of handguns in the United States. At this point in time there is no answer and little direction as to whether public nuisance will be a viable cause of action in municipal or individual litigation resulting from intentional shootings. But the key fits, if the courts choose to open this door.Ceriale v. Smith & Wesson Corp., No.99L5628 (Cir. Ct. Cook County Nov. 30, 1999)

Municipal Litigation

Various municipalities have sued the firearms industry, primarily handgun manufacturers, in an effort to address the social problems caused by firearms violence and the economic costs cities bear as a result. City mayors have been emboldened by the success of their counterparts at the state level with tobacco litigation, although there are many differences between these cases and the goals of the parties involved. First and foremost, the firearms industry is not the tobacco industry as it has a lot less money and the little it has is spread out over many more manufacturers. I think it is fair to say that the largest firearms manufacturer does not have a net worth anywhere near a billion dollars and most are small concerns or “mom and pop” operations with few assets from which to pay a judgment. That said, I also think it is fair to say that the goal of municipal firearms litigation is not primarily money, but instead to change to the way the industry does business. The Plaintiffs realize it may be impossible to collect for past misdeeds and have been willing to accept settlements that reduce the future social and economic costs from intentional and accidental shootings. Smith & Wesson was released from a number of these cases as a result of its agreement to include child safety locks and make other novel changes to the way it makes and sells handguns. As a result, of Smith & Wesson’s conscientious and forthright approach to municipal complaints, it was ostracized by the industry which was led by organizations such as the National Shooting Sports Foundation.

Unfortunately, the tobacco suits were settled before their legality was thoroughly tested in the courts. That has not been the course of municipal firearms litigation as the industry overall, buoyed by their trade associations who also are defendants, have fought tooth and nail to dismiss these cases. In some states these efforts have been met with success and in others failure, in whole or in part. One response has been a charge led by the NRA to enact model statutes in the very legislatures that refused to address the problem in the first place. The statutes prevent the municipalities within that state from litigating the firearms issues, similar to an earlier round of legislation which prevented municipalities from even regulating firearms within their borders. But the constitutionality of these statutes is being challenged in the courts, and only time will tell whether municipalities have the right to sue handgun makers to obtain compensation for the medical and welfare payments paid to the families of those injured and killed by foreseeable criminal use of their products.

Whatever happens, there are a lot of interesting comparisons and contrasts between the tobacco and firearm cases:

1. Unlike firearms, tobacco never had a useful purpose, although firearms have lost most of the utility they once had.

2. Death and serious injury are the direct and intended consequences of firearms use, whereas they are only the unavoidable byproducts of tobacco use.

3. Until recently the tobacco industry denied that its product caused any injury, whereas the firearms industry clearly sells its products to do just that, but blames their misuse on the intervening acts of third parties.

4. Firearms enthusiasts generally love their product whereas tobacco users are addicted to theirs.

5. Tobacco cannot eliminate its cancer-causing propensity whereas firearms can be made that do not malfunction.

6. Governments have heavily taxed tobacco products to control their use, whereas they refuse to even license firearms users.

7. Both products cause billions of dollars in damages–both here in the United States and overseas where there is less regulation.

With the exception of a few disreputable handgun manufacturers that originated in southern California and are commonly referred to as the “Ring of Fire,” the intent of municipal litigation is not to put firearms manufacturers out of business. Reputable manufacturers such as the Smith & Wesson, while sometimes making a bad product, have seen the errors of their ways and will change their conduct accordingly. Not true with those manufacturers who are in it to make money off the pain and suffering of victims everywhere.

Design Principles

The quality of any product is defined as its suitability for its intended use. A device of adequate quality must perform its intended task in the environment in which it is to be employed and must perform that task in a reasonably safe and reliable fashion. These basic concepts are the foundation of quality control procedures which must necessarily commence at the conceptual stage of product design where the product specification is generated. Contained in the product specification are such things as product task definition, product special features, and other specifics chosen by project management as the controller of the overall effort.

If the product definition is that of a device which, in performance of its intended task, creates a condition of potential hazard, that condition must be addressed at the product design stage. It is at the design stage of product development when all technically and economically feasible safety provisions consistent with the function of the device should first be considered.

A wealth of information concerning prior industry art and experience has always been available to the prudent and thorough designer in the form of patent materials, industrial documentation publicly available, and existing designs already in the marketplace. In recent years, electronic access to immense databases and computer‑aided analyses have greatly expanded the capabilities of the product designer. The use of such information is especially important when the design specification is for a device intended to project missiles with more or less destructive force and whose safety of use is closely associated with the reliability of control over the device exercised by its operator. Propulsion of a missile by the device which occurs for any reason outside the active volition of the operator is an intolerable condition which may be prevented by passive design features not dependent in any way upon the actions of the operator.

(Courtesy of John T. Butters, P.E.)

All product liability attorneys know by heart the engineering mantra regarding defective and dangerous products: “First, design around it; next, guard against it; and last, warn about it.” Whether you are an engineer trying to correct a problem or an attorney suggesting better alternatives, first try to fix a firearms problem and only if one cannot do so are more warnings considered. As a practical matter, the dangerous nature of firearms requires defects must be fixed. That fix may be a redesign of the dangerous part or enhanced safety designs which are in the nature of a guard. Safety mechanisms are an integral part of the fire control system whose purpose is to prevent a discharge in the safe mode and transfer control of the system to the trigger when the safety is released. Warnings, in the traditional sense of printed materials provided when a gun is sold, are certainly helpful in preventing accidental discharges. They are relatively ineffective when someone has a gun in his hand and wants to pull the trigger. However, there are designs available that are part of the safety system which may prevent a person from pulling the trigger unless he wants to shoot someone. If a shooting is intentional, no design of the fire control or enhanced safety will prevent this occurrence. The only limitation is smart gun technology which can limit intentional discharges to the owner or anyone else who has the appropriate “key” to activate the gun.

Examples of Success!

As stated above, firearms litigation has been remarkably effective in addressing dangerously defective firearms over the past quarter century. In the absence of any statistics regarding defective firearms, John T. Butters, P.E. prepared an anecdotal summary of firearms cases after researching available sources of information. Several models stand out for the amount of litigation surrounding them. The problems with each of those firearms have been resolved in whole or in part, therefore the number of accidents, as reflected by the amount of recent litigation, has diminished to the point of disappearance. Ruger single action revolvers (sometimes referred to as the “Blackhawk”) took the prize with 130 known cases. But, after redressing the product to include a safety, there has been little litigation on the new models or the old ones which were retrofitted with this design. Winchester Model 94 and other guns with notorious “half-cock” safety have been discontinued because litigation pointed out their clear defect and as a result, it has been some time since we have seen any of these cases. Of the two Remington bolt action rifles which have a propensity to the fire on safety, the Model 600 has been recalled. Design changes on the Model 700, such as changing the safety mechanism, have reduced, but not eliminated the number of malfunctions. To the contrary, nothing has or can be done regarding the millions of cheap, poorly made and potentially dangerous Chinese SKS semi-automatic rifles imported into this country because their manufacturer, the Peoples Republic of China, is relatively immune from suit in the United States.

Design/Warning Solutions

Now it is time to turn our attention to intentional shootings which I can classify by intent. In the sad stereotypical shooting that results from children playing with guns, the child intends to pull the trigger, but does not intend or at least understand the consequences. On the other hand, criminal conduct necessarily requires an intent to do harm as well as pull the trigger. There are a number of design/warnings that can enhance the safety of guns by preventing the former situation from occurring. There are a few that prevent the latter; this is better addressed through approaches discussed by other speakers. The following are some feasible designs which range from minimal safeguards to those attempting to address some intentional shootings:

1. “Loaded indicator”—This design merely indicates with a red warning when the firearm has a round in the chamber. This is similar to the red marking many manufacturers use on cross-bolt safeties to indicate when the safety is off and therefore familiar to most users. While it will not prevent all accidents, what harm is there in placing this simple modification on all guns, particularly when it is foreseeable they will be handled by children?

2. “Magazine lock”—This design simply renders a firearm inoperable when the magazine has been removed, preventing those accidents which occur when the shooter does not realize a round may still be in the chamber. While not all guns have removable magazines, those that do would be rendered safer for unfamiliar users who play with guns.

3. “Child proof safeties”—These are various safety designs that prevent a child from operating a firearm, similar to medicine bottles. Either through the dexterity, force or other manipulations necessary to arm a firearm, children simply cannot shoot it.

4. “Gun locks”—This design has been adopted by some manufacturers; others should follow suit. Locks may be internal to the firearm or external, in that they are a separate device, sometimes made by after-market manufacturers. Either typically requires a key to unlock the gun, a simple concept. All stored guns should be under lock and key and, like safety mechanisms, the lock should be under closest to the point of discharge, i.e. intrinsic to the gun is better than a separate device. This is better that merely a lock box, which of course, is better than nothing.