Seller Conduct Is Key To Assault-Gun Liability

By J. Bonderman
Originally published in
Leaders' Product Liability Law & Strategy
8, April 1991

When the District of Columbia enacted legislation late last year making manufacturers and sellers of military-style semi-automatic assault weapons strictly liable for death and injury caused by their use within the city, it focused public attention on a serious legal question: Who should pay the cost of this gun violence? Assault weapons are distinguishable from hunting and sporting weapons by their combat hardware: large-capacity detachable ammunition magazines, folding stocks, pistol grips, bayonet mounts, flash suppressors, bipods, grenade launchers and night sights. Because of their extraordinary firepower and combat features, guns such as Uzis, AK-47s, TEC-9s and MAC-10s are far more likely than conventional firearms to be used in crimes.

Although the D.C. council has rescinded the liability law in return for increased federal aid, the law's demise need not end the liability debate. Such legislation is, in fact, unnecessary to create civil liability, because well-established common law principles lead to the same result.

As the product liability bar is well aware, however, various theories of liability applied to handgun manufacturers and sellers have not fared well in the last decade. See, e.g., Delahanty v. Hinckley, 564 A.2d 758 (D.C. App. 1989); Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985); Riordan v. International Armament Corp., 477 N.E. 2d 1293 (Ill. App. 1 Dist. 1985). Generally, the courts held that handgun sellers could not be strictly liable for the criminal misuse of their products because the handguns used in crime are not "defective" as contemplated by the Restatement (Second) of Torts Sec. 402A. There was nothing "wrong" with the handguns: indeed, they had inflicted injury because they accomplished their intended purpose all too well.

Are the handgun cases the death knell of liability as applied to assault weapons? Absolutely not. First, the factual context is entirely different. The combat features of assault weapons have no legitimate sporting purpose, but they make these guns particularly appealing to drug dealers and other criminals. Second, viable theories of liability place the emphasis on the conduct of the assault weapon maker and seller, rather than on the alleged existence of a defect in the gun.

The common-law doctrine of strict liability for "ultrahazardous" or abnormally dangerous activities, which originated in the 1866 English case, Rylands v. Fletcher, L.R. 1 Ex. 265, provides a basis for holding the assault weapon industry strictly liable for gun violence.

Unlike product liability theory, which requires some kind of "defect" in the product, under the abnormally dangerous activity doctrine, manufacturers or sellers of products may be held liable in spite of the fact that the product was highly effective for its intended use. For example, the doctrine has been applied to the sale of a pesticide that traveled great distances in the air, killing more than the insect life it was intended to reach. Chapman Chemical Co. v. Taylor, 222 S.W. 2d 820 (Ark. 1949).

Under the modern version of the doctrine, the abnormally dangerous activity may be the introduction into the community of a dangerous product that presents an unusual risk of serious injury because of the way it was stored, transported or distributed. In McLane v. Northwest Natural Gas, 467 P.2d 635 (Ore. 1970), concerning the explosion of natural gas stored in a highly populated area, the court wrote, "The basis of the liability is the intentional behavior in exposing the community to the abnormal risk."

Similarly, when the gun industry markets assault weapons to the general civilian population, it exposes the community to an abnormal risk. The gun issue is analogous to cases in which the doctrine is applied to activities that do not cause injuries themselves, but rather create the conditions under which there is a high risk that some other event, perpetrated by man or nature, will cause injury.

For instance, although blasting of explosives has long been considered the paradigmatic abnormally dangerous activity, the doctrine also has been applied to the mere storage of explosives. Exner v. Sherman Power Const. Co., 54 F.2d 510 (2d Cir. 1931). The storage of dangerous substances cannot itself cause injury; the intervention of some other force, whether it be lightning or the careless use of a match, is required. Moreover, courts have applied the doctrine to impose liability even when the intervening cause triggering the injury is a criminal act, as long as the act is reasonably foreseeable. See e.g. Yukon Equipment Inc. v. Firemen's Fund Ins. Co., 585 P.2d 1206 (Alaska 1978).

The sale of assault weapons to the general civilian population also satisfies the six factors listed by the Restatement (Second) of Torts Sec. 520 to determine whether an activity is abnormally dangerous:

• Existence of a high degree of risk of harm. A major 1989 study showed assault weapons are 20 times more likely than conventional firearms to be used in criminal activity, and 25 times more likely to be used in drug crimes.

• Likelihood that resulting harm will be great. Their rapid-fire capability and large magazine capacity give assault weapons an extraordinary capacity for destruction.

• Inability to eliminate the risk through ordinary care. There is no "careful" way to sell assault weapons to the general public. Their general availability ensures their use by violent criminals.

• The activity is not common. Assault weapons account for only 0.5 percent of the 200 million privately owned firearms in the United States. The uncommon nature of assault weapon sales distinguishes them from sales of more ubiquitous, but potentially hazardous, products such as automobiles, alcohol, knives and other firearms.

• The activity's inappropriateness to the place it is carried on. Marketing combat weapons to the general public, instead of restricting their sale to the military and police, is inappropriate wherever it occurs.

• Value of activity outweighed by dangerous attributes. The disproportionate use of assault weapons in criminal activity strongly suggests that the social costs of their sale to the general public exceed any conceivable benefits. In fact, unlike other dangerous consumer products, assault weapons have no social utility; they are specifically designed to kill as many people as possible as quickly as possible.

In light of the well-known danger of assault weapons, liability may also be supported by a simple analysis. According to the comment to Sec. 519 of the Restatement: "If the utility of the activity does not justify the risk it creates, it may be negligence merely to carry it on, and the [abnormally dangerous activity doctrine] is not then necessary to subject the defendant to liability for harm resulting from it."

Manufacturers' common-law duty to minimize the foreseeable misuse of their dangerous products is well-recognized. See Moning v. Alfono, 254 N.W. 2d 759 (Mich. 1977). Because of what the assault weapon seller knows or ought to know about its product, it would be contrary to this duty to knowingly participate in a marketing plan that imprudently imperils the lives of innocent third parties.

Maryland's highest court found manufacturers of "Saturday Night Specials" – cheap, low-quality, small, highly concealable handguns – liable for criminal violence committed with such guns. The court created a new cause of action combining elements of strict liability and negligence. Because a marketer of a Saturday Night Special "knows or ought to know" that the gun is primarily used for criminal activity and that "such criminal use, and the absence of legitimate uses for the product" are foreseeable, the court found an implied duty not to market these guns. Kelley v. R.G. Industries Inc., 497 A.2d 1143, 1159 (1985).

Whether liability results from negligence theory, the abnormally dangerous activity doctrine, or a new hybrid analysis, the common policy argument should be based on a risk distribution rationale familiar to the law of product liability: Between the makers and sellers of assault weapons (who have created the risk for their financial benefit) and the victims of these products, the former are better able to bear the costs of violence. Unlike product liability law, however, the focus of assault weapon litigation should be the marketing decisions of the gun industry, not the search for defects in the product.