NEW TARGETS: AN OVERVIEW OF FIREARMS LITIGATION MISSOURI FIREARMS ACCIDENT ATTORNEY

By Richard C. Miller

rmiller@monseesmayer.com

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Intentional vs. Accidental Shootings: A New Target?

Firearm litigation has exploded with the proliferation of cheap handguns, assault weapons and escalating waves of violent crimes. Law firms, schools, restaurants, malls, public transportation and post offices have all been subjected to deadly gunfire. In response to the grave misuse of firearms, people are demanding safer streets, neighborhoods and schools. Some municipalities have attempted to meet these demands with innovative gun laws but have met with limited success. The courts have considered creative legal arguments in order to rectify the deadly effects of firearms, but so far have established few helpful precedents.

But, there is both good news and bad with respect to lawyers’ attempts to judicially address this serious social problem. First, the good news: When the courts have permitted lawyers to bring their claims before a jury, problems such as defective firearms and their negligent use have diminished significantly. The data regarding accidental shootings indicates a promising trend and a lot of the credit belongs to those who have forced the industry to accept liability for its products.

  • The annual number of fatal firearm accidents fell to an all-time low in 1995 of 1,400 in comparison to fatal accidents involving motor vehicles (43,900), falls (12,600), poisoning of all types (10,600), drowning (4,500), fires (4,100) and choking on an ingested object (2,800). 1
  • Since 1930, the annual number of firearm accidents has been cut by more than half, even though the U.S. population has doubled and the number of privately owned firearms has quadrupled. 1
  • In 1995, there were roughly 200 fatal firearm accidents among children, which represents 3% of the 6,600 fatal accidents among children that year. 1

The bad news is that we have had little or no effect on the incidence or seriousness of intentional shootings in the United States.

  • In 1994 there were 38,505 firearm-related deaths broken down as follows: 17,800 homicides, 18,700 suicides and 1,300 unintentional deaths. 2
  • In 1990, firearm injuries cost over $20.4 billion in both direct costs for hospital and other medical care and indirect costs for long-term disability and premature death. 3
  • At least 80% of the economic cost of treating firearm injuries are paid for by taxpayer dollars. 3
  • More than 70% of homicides are committed with a firearm. 2
  • In 1994, firearm injuries were the second leading cause of death for young people, 10-24 years of age and the third leading cause of death for persons aged 25 to 34. 2
  • People living in households in which guns are kept have a risk of suicide that is 5 times greater than people in households without guns. 4

The Firearms Industry (Unlike Tobacco) is Still Bulletproof

The firearms industry is largely unregulated. The Consumer Product Safety Commission (CPSC), otherwise charged with the responsibility “to protect the public against unreasonable risks of injury associated with consumer products” has no regulatory authority over defective firearms. 5 The Consumer Product Safety Act says that the CPSC “shall make no ruling or order that restricts the manufacture or sale of firearms, firearms ammunition, or components of firearms ammunition, including black powder or gun powder for firearms.” 6 The only other product that received similar treatment in the CPSC’s enabling legislation was tobacco and look what that immunity has wrought. The Treasury Department’s Bureau of Alcohol, Tobacco and Firearms (BATF) is the federal agency that regulates firearms, but its authority extends only to issues such as firearms sale, transportation, registration and licensing as authorized by limited federal legislation such as Gun Control Act of 1968. 7 It has no regulatory authority over defective firearms.

Instead the firearms industry has been left to regulate itself. But with this insulated group that has meant no regulation at all. While other industries have established minimum standards, the Sporting Arms and Ammunition Manufacturing Institute and other industry organizations have limited themselves to standardizing cartridge calibers and lobbying to prevent any meaningful safety regulation. For instance, SAAMI’s dropfire standards are minimal – a gun that fires when dropped from a height of anything over a foot passes – a frequent occurrence in the field. The only legal authority that has caused any change in the way the firearms industry acts and enhance the safety of its customers are the courts. The industry truly fears and despises the legal system and is actively working to change it through tort reform. An example of this “reform” is an 18 year statute of repose proposed in federal product liability legislation that would leave many victims of defective guns without a remedy, despite the fact that guns last much longer than most consumer products.

The firearms industry has a strong lobby, both at the federal and state levels of government. In addition, the National Rifle Association (NRA), while made up primarily of individual firearms enthusiasts, spends a lot of its time and money protecting firearms manufacturers. The firearms industry has been able to use the NRA lobby as its mouthpiece to carve out numerous legislative exceptions to long-standing judicial precedents applicable to other products. For instance, some states have enacted legislation that specifically makes the “risk/utility test,” commonly used to define a defective product, inapplicable to firearms. 8 Consequently, a plaintiff cannot ask a jury whether the risk of the design in question outweighs its benefits. Instead, the firearm can only be found defective if it does not perform as the ordinary consumer would expect. One state statute specifically provides that placing a firearm in the stream of commerce will not constitute the proximate cause of injuries from a third party’s use of the product, even if such injuries are foreseeable.9 Other states have found that injuries resulting from the discharge of a firearm are proximately caused not by the product’s inherent potential to cause harm but by the discharge itself. 10 There is no more dangerous consumer product than firearms whose sole purpose is to kill. Yet because of the NRA, legislatures have taken great pains to except and protect the firearms industry from civil liability, often to the detriment of its members. 11

Firearms manufacturers are intensely competitive. However, they cooperate when threatened by litigation. Firearms constitute the oldest industry in this country, one that drove the industrial resolution. Many companies trace their roots back to the last century, some before the Civil War and even the Revolutionary War. Firearms manufacturers are usually located in small towns with loyal employees who have little other choice. Suffice it to say, firearms companies have a great deal of control over those who work or want to work in the industry. Most firearms experts employed by manufacturers will never criticize a competitor’s design. Unfortunately, few independent experts have more than an engineering knowledge of firearms. The most credible experts are those who combine their technical education with extensive firearms experience, resulting in unique knowledge about the design, manufacture and use of guns. Seldom will these experts have any industry background, manufacturing experience, much less any patents to their credit. Look for an expert that meets the above qualifications, but also has peculiar knowledge about the particular gun and manufacturer involved in your case – when you find him he will be worth his weight in gold.

Hiding Behind Their Guns

Firearms and ammunition manufacturers have tried to hide themselves from liability behind “corporate veils.” Typically, the manufacturers set up sham subsidiaries that usually have limited assets, little net worth and no insurance. Although they are able to meet their daily financial responsibilities, they are often unable to pay significant tort judgments. Many courts have demonstrated a willingness to disregard the corporate separateness of parent and subsidiary where it is clear the subsidiary was created to defeat justice, perpetrate fraud, or evade statutory, contractual, or tort responsibility. For example, in products liability suits filed against the Remington Arms Co. and its parent, E.I. du Pont de Nemours & Co., several federal courts have issued orders denying Remington’s motions to dismiss or for summary judgment. 12 Evidence of the unique relationship of these two entities establishes that corporate separateness had not been maintained so that Du Pont acted as the “alter ego” of Remington, making it similarly liable.

There are also a number of fly-by-night corporations that churn out millions of cheaply made weapons each year. Presently, most U.S. manufacturers of “Saturday Night Specials” have grown out of one company started in Southern California after the 1968 ban on cheap foreign imports. These companies, such as Raven Arms, Inc., Jennings Firearms, Inc., Davis Industries, Inc. and Lorcin Arms Co. are referred to as the “Ring of Fire.” They and their progeny are responsible for the great majority of handguns used in violent crime. After mass-producing poor quality and therefore dangerous firearms, these companies may halt production and close their doors, change their name or “reorganize” in bankruptcy. But they soon continue production under different names and corporate structures without paying for the tragedies they caused. Phoenix Arms arose from the ashes of Ravem Arms and Lorcin Arms declared bankruptcy to save itself from tort liability. Generally, because the firearms these companies produce are inexpensive, they are starter guns for gang members who use them to kill our children. They are also far more dangerous than the higher-quality firearms sold by reputable manufacturers because they are made with cheap materials, using poor manufacturing procedures and defective designs. Lawyers who sue one of these entities should make every effort to find the “deep pockets” which in these cases are difficult, but not impossible to identify.

Foreign manufacturers flood the U.S. marketplace with millions of guns each year. Some produce quality products; others make inexpensive, defective guns that cause thousands of injuries and deaths annually. It is very difficult to bring these manufacturers before U.S. courts, or once there, to collect a judgment. Like many U.S. gun manufacturers, some foreign manufacturers use small subsidiary corporations with limited assets to shield themselves from tort liability. For example, Rohm GmbH, a German company, and Tangfolio, an Italian one, incorporated smaller U.S. subsidiaries to avoid accountability in U.S. courts. Both Rohm and Tangfolio exported “Saturday Night Specials,” but since the Gun Control Act of 1968 barred importation of their dangerous handguns, the companies exported parts to their subsidiaries who assembled them into the same cheaply made handguns in the U.S to avoid this law. A long history of litigation has exhausted any insurance coverage these sham corporations had and now their victims are left without recourse unless they want to pursue Tangfolio or Rohm as component parts makers or under an alter ego theory, with the attendant difficulties of suing foreign companies.

Obtaining personal jurisdiction over these defendants is difficult, if not impossible. Before filing suit, one must establish that the defendant had the requisite “minimum contacts” with the forum jurisdiction. This has become more difficult with the Supreme Court’s decision in Asahi Metal Industry Co. v. Superior Court of California. 13 The Court held that the mere placing of a product in the stream of commerce will not satisfy the requisite contacts needed to subject a foreign defendant to personal jurisdiction. Even the defendant’s awareness that the stream of commerce may or will sweep the product into the forum jurisdiction does not convert this act into one of purposefully directing the product toward the forum state.

Attorneys trying to serve foreign corporations should also be aware of the Hague Convention’s requirements on service of process. 14 Article 1 says that it “shall apply in all cases in civil or commercial matters where there is occasion to transmit a judicial or extrajudicial documents for service abroad.” In those cases in which the defendant is in a country that is a signatory to the treaty, the Convention is mandatory and exclusive. A plaintiff must jump through the Convention’s many procedural hoops, including translating the pleadings into the defendant’s language. In essence, a failure to comply with the Convention invalidates service of process. The Convention applies only to service outside the United States so it is not implicated if the plaintiff can validly serve a foreign corporation through an agent here. 15

Problems arise for plaintiffs who are injured by a firearm made in a country not a signatory to the Hague Convention. In essence, these foreign corporations are immune from suit in the United States absent a separate treaty with the country in which they may be found. But even if a manufacturer is located in a signatory county, absent assets in the United States it is practically impossible to collect a judgment. The Peoples Republic of China is a case in point. It has sold literally millions of cheap and often dangerously defective SKS semi-automatic rifles in the United States, resulting in dozens of injuries and deaths. Yet only one judgment has been taken against it because of the difficulty of service and collection. 16 Since the PRC is not a member of the convention, its commercial subsidiaries are untouchable unless they have assets in the United States. As a result, U.S. importers and retailers of Chinese firearms are bearing the brunt of tort claims, losing their insurance coverage and going bankrupt in the process. With China’s growing trade relationship to the United States, it will eventually have to recognize the jurisdiction of U.S. courts and assume responsibility for its products or risk losing our lucrative market. The PRC is perfectly aware of this issue as it was the subject of discussion at recent negotiations to adopt an international treaty on the enforcement and collection of foreign judgments which it attended.

Dodging the Bullet

Courts have been reluctant to find manufacturers liable for producing dangerous firearms merely because they have little or no social use. Courts usually dodge the bullet by declaring that firearms regulation is best left to the legislatures. Foreseeability is the linchpin which will make the firearms industry accountable. While some courts are beginning to recognize that the industry, from manufacturers to sellers, knows the consequences of its conduct, they are still reluctant to create a legal duty to protect the public.

As gun violence has escalated, lawyers have begun arguing that firearm manufacturers are negligent not only because they can foresee the criminal use of their guns, but because they know crime will be the result of their conduct. Allegations that certain manufacturers intentionally market their products to this end have been made with supporting evidence. 17 Even so, most courts have been reluctant to consider the proof, instead dismissing claims or granting summary judgment for defendants. The prominent cases which follow indicate that this judicial power keg may soon explode.

Kelley v. R.G. Industries, Inc., is believed to be the only firearms case to date in which the court held that a strict liability claim exists when the alleged defect in the product is the design concept itself. 18 In Kelly, the plaintiffs claimed that a Saturday Night Special is inherently dangerous because of its short barrel, light weight, easy concealability, low price, inferior materials, poor manufacture, inaccuracy, and unreliability. These characteristics, the plaintiffs claimed, rendered the weapon particularly attractive to criminals and virtually useless for the legitimate purposes of law enforcement, sports, and protection, essentially a risk/utility analysis. Other courts have declined to follow Kelly, finding that the definition of defect used in that case did not follow traditional product liability principles. 19 More recently, courts have refused to expand the Kelly holding to assault weapons. 20 The typical reasoning is that these cases seek judicial regulation of firearms, a peculiarly legislative function. But as the following assault weapons cases show, the tide may be turning.

Firing Blanks?

The Long Island Railroad case involved a group of shooting victims seeking damages under theories of negligence, strict liability, and ultrahazardous activity from the manufacturers of the weapons used by the assailant, Colin Ferguson. 21 At 6:00 p.m. on December 7, 1993, Mr. Ferguson opened fire on a packed train of commuters and shoppers leaving 6 dead and 19 wounded. The law suit alleged that the defendants should have recognized that their advertising would appeal to homicidal and mentally disturbed individuals, foreseeably resulting in outbursts of violence.

The manufacturer was charged with negligence in that it knew or should have known of the dangers posed to the public by promoting and placing its assault weapons into the stream of commerce. Specific allegations included: the product had no legitimate sporting purpose, the product was unnecessary for self defense, the product was specifically designed to kill or injure large numbers of people in a very short period of time, and such products were disproportionately associated with criminal activity.

Next, the suit advanced a products liability theory in that the defendants had a duty to design their products to avoid unreasonable risks of harm to bystanders from misuse. Here, plaintiffs asserted that it was reasonably foreseeable that mentally unstable persons would acquire these products for the purpose of indiscriminately shooting others. Lastly, plaintiffs charged the defendants with engaging in a ultrahazardous activity. This count declared that by advertising and indiscriminately selling these products to the general public without restriction, the manufacturers were engaging in ultrahazardous and abnormally dangerous activity that would lead to criminal conduct.

The McDermott case was stayed pending resolution of McCarthy v, Sturm, Ruger & Co., a case arising from the same shooting involving other plaintiffs.22 The McCarthy trial court granted defendants’ motion to dismiss and plaintiffs appealed the decision to the Second Circuit Court of Appeals. The trial court had ruled that plaintiffs failed to establish a defect in the manufacture of the firearm, magazine, or ammunition used by Ferguson. The court declared that the defect must be in the condition of the product and not its “intrinsic function,” and that Ferguson’s actions were not foreseeable nor controlled by the manufacturers. The McCarthy court had previously dismissed Sturm, Ruger and Ram-Line, the manufacturers of the firearm and the magazine, with prejudice leaving Olin, the ammunition manufacturer. In July of last year, the Second Circuit upheld the trial court’s dismissal of the action against Olin. 23

The 101 California Street case arose 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. Ferri opened fire with at least three firearms killing eight individuals and wounding six prior to committing suicide. Initially, plaintiffs asserted liability 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. Subsequently, the case against USA Magazines was dismissed and the pawn shop settled for $150,000.00.

Plaintiffs remaining claim against Navegar, Inc., d/b/a Intratec, alleged that Intratec’s design and marketing of the TEC-9 firearm to consumers demanding extraordinary firepower would lead to a tragedy like the Ferri rampage. After two years of discovery, Judge Warren acknowledged that it was foreseeable to Intratec that its firearms could be used to kill people due to the weapons assault weapon design. But to the contrary, on May 6, 1997 Judge Warren dismissed the lawsuit against Intratec holding that it had no duty under California law to refrain from making or selling the TEC-9 because such conduct was legal in Florida, where it occurred. While Plaintiff’s ultimately lost, this is the first time a court found the consequences of a firearms manufacturer’s conduct clearly foreseeable.

The First Salvo

In Hamilton v. Accu-tek, survivors of two intentional shootings brought a cause of action against 50 plus manufacturers and distributors of various handguns alleging that the defendants conspired by collectively selling handguns in a negligent manner to foster the creation of illegal markets. 24The Plaintiffs’ decedents were victims of young handgun-wielding assailants utilizing illegally obtained firearms. As in the Long Island Railroad Case, the plaintiffs claimed that defendants’ marketing practices rendered them liable for firearm injuries and deaths under theories of negligence, strict liability, ultrahazardous activity and fraud. Specifically, the court characterized plaintiffs claims as follows:

[T]he heart of the 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, youths may readily illegally obtain handguns which they then use, resulting in the deaths of individuals such as the decedents represented by the plaintiffs in this court. 25

Initially, Judge Weinstein granted defendants’ motion to dismiss the strict liability and fraud claims. However, on October 25, 1996 the U.S. District Court for the Eastern District of New Jersey rejected for the third time defendants’ motions to dismiss the remaining negligence count allowing discovery to begin. This case is expected to go to trial later this year. It may establish the precedent we need to address this serious problem.

Two other cases that appeared promising have failed to provide more than legal arguments that might survive summary judgment in other jurisdictions. In Bobalo v. Navegar, Inc. 26 Judge Coas let stand a cause of action for public nuisance based on Illinois state law in an intentional shooting situation. However, upon reconsideration a year later the Northern District of Illinois reversed itself citing to appellate opinions from the 5th, 7th and D.C. Circuits which deferred to the legislature. Judge Coas concluded that despite proper pleading of a “serious and disturbing allegation” that Navegar targeted its guns to criminals, there was insufficient foundation in state decisional law to recognize a new theory of nuisance liability. However, the court certainly provided a target for future cases by acknowledging a common law nuisance action supported by the Restatement of Torts, section 834, in those jurisdictions that have favorable precedent.

Even if a case gets to trial, the right facts are still necessary to prevail. Sixteen year old Aaron Halberstam was killed when a Lebanese immigrant armed with 9mm semi-automatic handgun opened fire on a van filled with Hasidic students in retaliation for the slaying of 29 Muslims in an Israeli mosque. The gun was manufactured by a little known American company owned by Wayne and Sylvia Daniel, but the shooter Rashid Baz bought it used on the New York streets. The federal court jury refused to hold the manufacturer liable, apparently buying the argument that a manufacturer cannot control what is done with the weapons they sell. Query whether the result would be the same in a case where one of the “Ring of Fire” handguns (Davis, Bryco, Raven, Phoenix, Lorein, etc. whose cheap semi-automatic handguns are used disproportionately in criminal activity) was sold new directly to a similar individual. Would a metropolitan jury fearful of gun violence find these manufacturers who have flooded their city with weapons, essentially creating a mini-arms race, liable for the foreseeable consequences of their marketing activities. Perhaps that is what Hamilton v. Accutek will decide.

Other Targets

Intentional, and for that matter accidental shootings should also be examined for claims based on negligent entrustment of a firearm. Point of sale cases are maintained primarily against retailers that have a duty to keep firearms away from “incompetent” individuals who cannot legally own a firearm. Federal law prohibits the purchase of firearms by a person who is:

  • under indictment or convicted of a crime punishable by more than one year in jail,
  • a fugitive from justice,
  • an unlawful user of or addicted to a controlled substance,
  • an adjudicated mental incompetent or one who has been committed to an institution,
  • an alien unlawfully or illegally n the United States,
  • a recipient of a dishonorable discharge,
  • one who has renounced U.S. citizenship,
  • one who is under 21 for handguns/under 18 for long guns;
  • subject to a protective order, or
  • convicted of a misdemeanor domestic violence offense. 27

In Strever v. Cline, the Montana Supreme Court recently ruled that owners of firearms owe a duty to the general public to store them and their ammunition in a reasonably safe manner. 28 After burglarizing several cars in the neighborhood, Strever accompanied by friends began unloading the truck used to store the stolen goods. One of his accomplices, Cline, who was allegedly “high” from smoking marijuana, discovered a pistol and began waiving it around resulting in its discharge, killing Strever. Strever’s mother brought a negligence action individually and on behalf of her son against the other boys involved in the robbery and the owner of the truck. The District Court granted summary judgment for the truck owner and an accomplice declaring that the defendants did not owe a duty to Strever. In addition, the District Court entered default judgments against other boys that failed to appear before the court.

On a motion for certification the Montana Supreme Court addressed two issues: whether the District Court erred in finding that the truck owner did not owe a legal duty to Strever and whether it erred in its ruling that if such a duty existed, any negligence on the part of the driver was not the proximate cause of Strever’s death. In analyzing whether the driver owed Strever a duty of care, the court turned to cases involving trespass on private property. The Supreme Court concluded that the test is whether the landowner exercised ordinary care in the circumstances and not the status of the injured party. Hence, the court sought to determine what duty the truck owner owed the general public in storing his loaded firearm. Ultimately, the Strever court held that the car owner did owe a legal duty to the general public to store his firearm and ammunition in a “safe and prudent manner taking into consideration the type of firearm, whether the ammunition is in close proximity or easily attainable, and the location and circumstances of storage.” 29 To the contrary, the court ruled that the truck owner was relieved of any liability due to the unforeseeable intervening acts of the three other boys involved in this tragedy.

Ross v. Glaser involved a wrongful death action brought by a family of a deceased young man who was shot and killed by defendant’s mentally ill son. 30 Anthony Glaser, an adult who suffered from mental disturbances including psychosis, purchased several firearms in response to recurring threats and harassment by members of the Ross family. On September 29, 1991, Glaser was taunted by four of the Ross’s friends outside of his home. In response, Glaser ran inside and ordered his father John Glaser to give him one of his guns, which he did and left his house in rage. In an attempt to restrain his son, John ran after Anthony telling the neighbors to call the police. Anthony slipped away in his car and subsequently discovered Forrest Ross outside a nearby store where he shot him to death. As a result, Anthony was found guilty of second-degree murder, but was also found mentally ill.

In the wrongful death action, the Ross court made two important decisions. First, it held that the father owed a duty of care to the victim of his majority-age son, despite the son’s intervening criminal actions. This holding narrowed the sweep of Buczkowski v. McKay, reestablishing in Michigan the principle that persons have a duty not to entrust firearms to dangerous individuals. 31 Second, the decision broadly interprets causation by holding that a jury could find that the father’s actions foreseeably caused his mentally-impaired son’s subsequent rampage.

On July 17, 1997, the Florida Supreme Court held that a retail gun dealer has a legal duty to refrain from selling firearms to intoxicated buyers and is liable for resulting harm where the buyer uses the gun to shoot an innocent person. 32 The victim, Deborah Kitchen, brought suit against K-Mart for injuries suffered when her intoxicated ex-boyfriend purchased a rifle from K-Mart and shot her in the neck, resulting in quadriplegia. The Florida Supreme Court’s ruling is the strongest statement from a state supreme court that gun sellers must be held to the “highest degree of care.”

In other cases involving “straw purchases,” courts have recently held retailers accountable for firearms sales intended to circumvent gun laws. In these cases a “straw man” legally buys a firearm for someone who is prevented by law from buying one himself. In a Virginia case, a jury ordered a gun dealer to pay damages for facilitating a straw purchase. 33 Nicholas Elliott, 15, paid for a MAC-11 semiautomatic pistol, which was actually purchased by his second cousin, Curtis Lee Williams, who was 37. While at the store, Elliott handed Williams $300 and said, “That’s the one I want,” and told Williams to buy the weapon. After filling out the required paperwork, Williams handed the firearm to Elliott in the store. A few months later, Elliott killed a teacher at his school. The jury found the retailer was negligent for selling the firearm to an adult when it was apparent that it was intended for a minor.

In a significant California case, the defendant, Jeff Randa, fatally wounded Bryan Hoosier with a handgun. The handgun had been bought by Randa’s grandmother after Randa had tried to buy a handgun several times but could not because he was too young. When he asked a sales clerk if his grandmother could buy a gun for him, the clerk said the grandmother could buy the gun if she were a qualified buyer, but that the store could not sell it to her “just so she could give the gun to him.” Several days later, Randa and his grandmother bought the handgun. A California appellate court reversed a summary judgment that exonerated the retailer from liability, finding that to do otherwise could immunize firearms dealers who circumvent the letter and spirit of the firearm control laws. 34 The court found that “‘those who distribute guns must be held accountable as they are the first step in preventing lawless individuals from obtaining guns.'” 35

All too often it is not someone outside the home who is responsible for a child’s injury or death. Parental liability is another area of firearms litigation that is getting greater attention. It is estimated that 1.2 million children under 14 have access to firearms in their homes. 36 In fact, firearms are the leading cause of death for both white and African-American teenage boys. 37A number of courts have imposed liability on parents who left a gun within a child’s access. Negligent entrustment, training, storage and other claims can and are being made against parents who do not treat firearms with the proper respect. In most accidents involving children handling guns there will have been a violation of one of these duties – the only question will usually be whether their is any insurance to cover the claim. The Georgia Court of Appeals has held that parents may be held liable for keeping a loaded pistol at home where an unsupervised child could get it. 38 In addition to judicially imposed liability, a number of states have enacted child accident prevention laws to counter the rising number of firearm accidents. For example, a Florida statute prescribes a felony conviction for firearm owners who store their loaded weapons within the reach of children. In California, the legislature passed a similar law – the Children’s Firearms Accident Prevention Act of 1991. 39 At least some of the firearms industry is beginning to feel the heat – late last year a number of manufacturers announced a “voluntary” program to include child safety locks on all handguns they manufactured in the future. This move in and of itself recognizes a duty on the part of the entire industry to protect children from the all too frequent accidental shooting at home. It will make it much easier for a judge and jury to impose liability on owners, retailers or manufacturer who ignore this duty.

Among the most innovative cases in this field are those involving claims against magazine publishers for carrying articles or advertisements relating to firearms or ammunition. The Eleventh Circuit upheld a judgment against a magazine that published a personal service advertisement for a hired gun. 40The ad said: “GUN FOR HIRE: 37 year old professional mercenary desires jobs. . . . Discrete [sic] and very private. Body guard, courier, and other special skills.” A man who read the ad hired the person who had placed it to shoot another man. The court said that the magazine would be liable only if the ad on its face would have alerted a reasonably prudent publisher that it presented a clearly identifiable, unreasonable risk of causing harm to the public from violent criminal activity. The court then found that the publisher could have “‘recognized the offer of criminal activity as readily as its readers obviously did.'” 41

In contrast, a Texas court refused to award damages to the parents of a 12-year-old boy who was accidentally killed by his friend after the two boys read about guns and ammunition in Boys’ Life Magazine. The plaintiffs sued the Boy Scouts who published the magazine, a firearms manufacturer, and an industry organization that advertised in a supplement to the magazine. The supplement included articles about earning Boy Scout merit badges for shooting, but also presented information about the power, speed, sounds, and accuracy of various firearms and ammunition. After reading the supplement, the boy and his friend found an old rifle that accidentally discharged and killed the plaintiffs’ son. The court held that the defendants did not have a duty to either refrain from publishing the supplement or to add warnings about the danger of firearms or ammunition. 42 The plaintiffs also claimed that the defendants had violated a Texas statute that prohibited firearms sales to minors, in that the ads were nothing more than offers to sell firearm products to minors. Nevertheless, the court found that the statute only barred the actual transfer of firearms to minors. Any broader interpretation would make all firearm ads illegal, the court said.

Traditional firearms product liability litigation has not disappeared by any means. As the sources cited at the start of this article indicate there are still 1,300 accidental deaths per year, not to mention 18,000 more injuries attributable to unintentional shootings. Although some of the more litigated products have been fixed, which is a welcome byproduct of litigation efforts, others have burst onto the market to take their place. Winchester model 94 exposed hammer/half-cock cases have essentially disappeared, perhaps due to the age of the guns. Ruger’s “upgrade” of its Blackhawk revolver adding a safety mechanism effectively reduced the number of accidents even though the modified gun may not be an exact replica of the 1973 Colt “peace maker.” In 1982 Remington fixed its bolt action rifles so they could be loaded and unloaded on safe – as a result only a few of these cases remain. Remington even took the novel approach of agreeing to class certification so that it could settle over nine million claims of defective shotgun barrels that had the potential to explode in the process significantly diminishing its attendant liability exposure.

Unfortunately, nothing ever changes in the firearms industry because there are no standards, either governmental or self imposed to encourage quality in their design and manufacture. Anyone can make a firearm anyway they want to and sell it to unsuspecting consumers – as a result there are new contenders for the “Top-Ten Bad Guns.” In the push for newer firearms to compete with the firepower of criminals many law enforcement agencies around the country have purchased Glock semiautomatic handguns, without a safety, because they allow rapid firing. The consequences are an alarming increase in gunshot accidents, both self inflicted as well as injuries to other officers and civilians, many from drop fires or other jar-offs. Perhaps the most ominous newcomer is the SKS semiautomatic rifle manufactured by the People’s Republic of China without any concern for safety. These guns, many of which were actually used against our troops in Viet Nam and even Korea were sold to U.S. importers for less than $40.00 per rifle and retailed for less than $100.00 with a box of ammunition included. Unfortunately the price is indicative of the quality and as a result SKS rifles are firing inadvertently upon being jarred, sometimes going fully automatic and emptying the entire magazine before the shooter knows what is happening. The poor quality of most “Saturday Night Specials” and Assault Weapons sadly ensures that there will be plenty of opportunity for standard product liability litigation for many years to come.

THE TOP TEN LIST OF BAD GUNS

  1. Chinese SKS Semi-Automatic Rifle: Fires upon being jarred, sometimes going “full auto” and emptying the entire magazine.
  2. Glock Semi-Automatic Handguns: No true safety mechanism rendering firearm inoperable and may sometimes fire upon being jarred or dropped.
  3. “Ring of Fire” Manufacturers Pistols: Poor design, cheap materials, insecure safety, uneven quality control and various other problems.
  4. Rohm, Tangfolio Foreign Handguns: Problems similar to the U.S. manufacturers, although if assembled before importation must meet minimum federal standards.
  5. Point of Sale Cases: Claims against retailers and for selling firearms and/or ammunition to incompetent individuals such as felons and minors.
  6. Parental Liability Cases: Claims against parents and others who negligently entrust firearms to others or store them where others, particularly children can access them.
  7. Future Firearms Manufactured Without a Child Lock Safety: Liability will be created as a result of President Clinton’s initiative in which a number of manufacturers “voluntarily” agreed to include this safety device in future firearms acknowledging the foreseeability of these accidents and the need for these locks.
  8. Remington cases: To varying degrees their Model 700/600 Bolt Action Rifle, the Common Fire Control system found on most of its other guns and exploding shotgun barrels that were not fixed in the class action settlement.
  9. Freedom Arms Casull Revolver: While expensive and relatively uncommon, these .454 caliber revolvers are commonly used to hunt big game in the field which is dangerous in itself, but potentially lethal with this gun because of the difficulty in engaging the safety.
  10. Winchester Shotgun Barrels: The high lead and sulphur content in the barrels of these Japanese manufactured guns make them cheaper to produce but also prone to explosion.

The Right to Bear Arms

Congress enacted the Brady Act in 1993 as an amendment to the Gun Control Act of 1968 to establish a waiting period for the purchase of handguns and a system to check the backgrounds of those waiting. The Brady Act required the Attorney General to establish a background checking system by November 30, 1998. In a 5-4 decision on June 27, 1997, the United States Supreme Court struck down the Brady Act’s mandatory background check as violating the Tenth Amendment principles of federalism. 43However, the act’s five-day waiting period for handgun purchasers was unanimously upheld since it is directed at gun store owners and not state officials. The Supreme Court’s ruling has little to no effect upon 27 states that have enacted their own background checks laws. 44 Likewise, in the other 23 states law enforcement officials have indicated that they plan to continue background checks based upon their effectiveness. Overall, the Justice Department has estimated background checks have stopped more than 250,000 prohibited firearm purchases since the Brady law took effect on February 28, 1994.

The “Brady Bill” is the most prominent and only example of legislative solutions to firearms injuries and deaths at the federal level. State legislatures have been equally ineffective, although other governmental entities such as state officials and local municipalities have taken action to address problems in their jurisdiction. In Massachusetts the Attorney General is attempting to regulate various safety aspects of firearms sold in the state under his inherent police powers. California is engaged in a struggle in which industry proponents in the state legislature want to pre-empt stringent gun control laws enacted by numerous municipalities. The NRA is also fighting back by sponsoring constitutional amendments which would prevent any legislation affecting an individual’s right to bear arms, which is close to becoming law in Wisconsin. It has already been successful in passing “concealed curry” laws in a majority of the states, although some such as Missouri have resisted unless the issue is submitted to a popular vote.

A Call To Arms

The simple fact is that something needs to be done and trial lawyers may be the only ones who can make a difference now! The statistics cited at the start of this article speak for themselves. It is the role, and the duty of the courts to strike that delicate balance between individual rights and the responsibility of those who make and sell products which they know will injure and kill. That balance has been achieved in traditional areas of tort liability involving unintentional conduct and the results are telling. But so far liability for the foreseeable results of intentional conduct has not even been put on the same scale with the sacrosanct firearms industry. It is time to balance the scales of justice, before this random and senseless firearms violence strikes again, this time closer to your home than Jonesboro, Arkansas.

1. The National Safety Council, Accident Facts: 1996 Edition
2. National Summary of Injury Mortality Data, 1987-1994, Atlanta, GA: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, November, 1996.
3. Max W. Rice, DP. Shooting in the Dark: Estimating the Cost of Firearm Injuries. Health Affairs 1993; 12(4): 171-185.
4. Kellermann AL, Rivara FP, Somes G, Reay DT, Francisco J, Banton G, Prodzinski J, Fligner C, Hackman BB, Suicide in the Home in Relation to Gun Ownership. New England Journal of Medicine 1992; 327:467-472.
5. 15 U.S.C. §2051(b)(1)(1972).
6. Consumer Product Safety Act of May 11, 1976, Pub. L. No. 94-284, §3(e), 1976 U.S. CODE CONG. & ADMIN. NEWS (90 Stat.) 504.
7. 18 U.S.C. §921 et seq. (1968).
8. CAL.CIVIL CODE §1714.4 (West 1985 & Supp. 1991); COLO. REV. STAT. §13-21-501-505 (1990); IDAHO CODE §6-1410 (1990); NEV. REV. STAT. ANN §41.131 (1985); N.C. GEN. STAT. §99B-11 (1987).
9. COLO. REV. STAT. §13-21-504(2) (1990).
10. CAL. CIVIL CODE §1714.4 (1990); COLO. REV. STAT. §13-21-504(1) (1990); IDAHO CODE §6-1410 (1990).
11. LAWYERS COOP. PUB. CO., AM. LAW PROD. LIAB. 3D §106.8 (1988).
12. Jones v. Remington Arms Co., No. 90-0090 C (E.D. Mo. Act. 31, 1990); Hartman v. Remington Arms Co., No. 90-4074-CV-C-5 (W.D. Mo. June 20, 1990); DeLoach v. Remington Arms Co., No. CV292-78 (S.D. Ga. May 25, 1993); Murray v. Remington Arms Co., 795 F. Supp. 805 (S.D. Miss. 1993); see also Alix M. Freedman, Behind the Cheap Guns Flooding the Cities Is a California Family, WALL ST. J., Feb. 28, 1992, at A1.
13. 480 U.S. 102 (1987).
14. See Richard A. Bowman & Cortney G. Sylvester, Service and Discovery Under the Hague Conventions, A.B.A. FORUM: EMERGING ISSUES IN MOTOR VEHICLE PRODUCT LIABILITY LITIGATION (1993).
15. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).
16. Walters v. Peoples Republic of China, et al., No. 93-5118 (W.D. Mo. 1996).
17. The Arkansas Supreme Court rejected this theory in a case against Lorcin by affirming the trial court’s dismissal of negligent and intentional marketing claims.
18. 498 A. 2d 1143 (Md. 1985).
29. Richardson v. Holland, 741 S.W. 2d 751 (Mo. Ct. App. 1987).
20. Addison v. Williams, 546 So. 2d 220 (La. Ct. App.), cert. denied, 550 So. 2d 634 (La. 1989); Koepke v. Crosman Arms Co., 582 N.E. 2d 1000 (Ohio Ct. App. 1989).
21. McDermott v. Sturm, Ruger and Co., Inc., et al., Case #94-5405, (E.D. N.Y. 1996).
22. McCarthy v. Sturm, Ruger and Co., Inc., 916 F. Supp. 366 (S.D.N.Y. 1996).
23. McCarthy v. Olin Corp., – F.3d – (2d Cir. 1997).
24. Hamilton v. Accu-tek, 935 F. Supp. 1307 (E.D.N.Y. 1996).
25. Id. at 580.
26. Bobalo v. Navegar, Inc., Case No. 96C3664 (N.D. Ill. 1997 and 1998)
27. 18 U.S.C. 922 et. seq.
28. Strever v. Cline, et al., 53 Mont. 576 (1996).
29. Id. at 580.
30. Ross v. Glaser, 559 N.W. 2d 331 (Mich. Ct. App. 1996).
31. Buczkowski v. McKay, 490 N.W. 2d 330 (Mich. 1992) (court exonerated K-Mart from selling shotgun ammunition to an 18-year-old who admitted being intoxicated at purchase who within hours used the ammunition to settle score with acquaintance).
32. Kitchen v. K-Mart, No. 86,812 (Fla. 1997).
33. Farley v. Snug Enters., Inc. No. CL 89-2047 (Va. 2d Jud. Cir. Ct. Oct. 4, 1990); see also Dealer Liable in Straw Purchase Sale, 5 FIREARMS LITIG. REP. 1 (Winter 1991-92); Pierre Thomas, Gun Shop Liable in Virginia Killing; Jury Orders Owners to Pay $100,000, WASH. POST, Jan. 17, 1992, at D1.
34. Hoosier v. Randa, 17 Cal. Rptr. 2d 518, 522 (Ct. App. 1993).
35. Id. (quoting Al’s Loan Office, Inc. v. United States Dep’t of Treasury, 738 F. Supp. 221, 225 (E.D. Mich. 1990).
36. Mark Genrich. Gun Control, PHOENIX GAZETTE, Mar. 10, 1993, at A11.
37. Ed.
38. Jacobs v. Tyson, 407 S.E.2d 62 (Ga. Ct. App. 1991).
39. CAL. PENAL CODE §12035 (West 1993).
40. Braun v. Soldier of Fortune Magazine, Inc. 968 F. 2d 1110 (11th Cir. 1992), cert. denied, 113 S. Ct. 1028 (1993).
41. Id. at 1121 quoting Braun v. Soldier of Fortune Magazine, 749 F. Supp. 1083, 1085
42. Way v. Boy Scouts of Am., 856 S.W. 2d 230 (Tex. Ct. App. 1993).
43. Printz v. U.S., 117 S. Ct. 2365 (1997).
44. Legal Action Report, Issue No. 15, pp. 1-2 (September 1997).

If you or a family member were recently injured in a fire arm accident, contact the Kansas City firearm litigation lawyers of Monsees & Mayer P.C today.