TIPS 75th Anniversary

 

The Brief

TABLE OF CONTENTS
Spring 1999 Vol. 28, No.3
Article Abstracts

Full Text Articles Available For:
"Litigating Accidental Shooting Cases Against Gunmakers: A Working Model"
By:  Jonathan E. Lowy
and
Are Guns the Next Tobacco?
By:  Kip Reader, TIPS Chair

The View from the Chair
Are Guns the Next Tobacco? - Full Text

TIPS Notes

Proposed By-Law Changes

The Fidelity Loss Investigation in a Regulated Industry
By: Scott D. Baron

The Surety's Rights to obtain Salvage: Exoneration, Reimbursement, Subrogation and Contribution
By: George J. Bachrach

Selected Bibliography
By: George J. Bachrach

Collateral: What to Take, How to Take It, and What to Do with It Once You Have It
By: Joseph T. Getz

How to Be a Good Friend to the Court: Strategic Use of Amicus Briefs
By: Reagan Wm. Simpson

Practice TIPS
How to Prepare and Present a Fidelity Claim: Advice for the Insured
By: Mark Wilson

Twice Bitten: Violations of Ethical Rules as Evidence of Legal Malpracitce
By: Douglas L. Christian and Michael Christian

Litigating Accidental Shooting Cases Against Gunmakers: A Working Model - Full Text
By: Jonathan E. Lowy


Are Guns the Next Tobacco?
By: Kip Reader, TIPS Chair

Injuries and deaths involving the use of firearms in this country occur by the tens of thousands each year. The regularity of the violence almost numbs the public’s senses to the scope of the mayhem. Here are just a few numerical illustrations:

  • In 1992, handguns were used to murder 60 people in Japan, 128 in Canada, 33 in Great Britain, and 13,495 in the United States.
  • For every time a gun in the home is used in a legally justifiable shooting, there are four accidental shootings, seven criminal assaults or homicides, and 11 attempted or completed suicides.
  • The homicide rate in homes containing guns is four times the rate at homes without guns.

Yet, compared with most other consumer products, guns are virtually unregulated. Guns are not under the auspices of the Consumer Product Safety Commission, which regulates the safety of virtually every other U.S. consumer product. A child’s teddy bear or a child’s squirt gun is more closely regulated than a handgun in this country.

Until recently, lawsuits against the gun industry were viewed as long shots or fruitless efforts. Now, emboldened by the dramatic success of the states in their lawsuits against the tobacco industry, plaintiffs’ lawyers and public interest groups are mounting a litigation offensive against the manufacturers and marketers of all types of guns. In recent months, the cities of New Orleans, Chicago, and Atlanta have filed widely-publicized and potentially groundbreaking lawsuits against the gun industry. Those actions are expected to generate dozens of governmental actions against gun manufacturers. Chicago’s lawsuit maintains that guns are a public nuisance. New Orleans’ lawsuit is brought under a product liability theory of recovery; it claims that gun makers have not equipped their products with adequate safety devices, and thus have allowed guns to be acquired, and used, by criminals and children. For an excellent review of product liability law in the context of guns, be sure to read Jon Lowy’s excellent article, Litigating Accidental Shooting Cases Against Gun Makers: A Working Model, in Practice TIPS in this magazine.

In February, individual plaintiffs achieved a verdict that some have characterized as a major breakthrough and others have tried to dismiss as insignificant. In the U.S. District Court in Brooklyn, a jury found that 15 of 25 gun manufacturers were negligent in connection with shootings committed with illegally obtained handguns. The jury found that up to nine of those companies were liable for three New York shootings that resulted in two deaths. The plaintiffs pronounced the verdict a major win for themselves and the municipalities that are suing gun makers, and the gun companies’ attorneys claimed that the decision was a victory for their clients since there was no award of monetary damages in connection with six of the seven shootings involved in the lawsuit.

TIPS, in conjunction with the ABA Coordinating Committee on Gun Violence, has developed a groundbreaking CLE conference to educate practitioners–whether big firm or small firm, and whether plaintiff or defense–on the latest developments in this fast developing litigation. The title of the conference is "Gun Violence Liability: Taking Aim at the Gun Industry–Are Guns the Next Tobacco?"

This informative conference will not focus on public policy issues, Second Amendment rights, the NRA, or other controversial political aspects of the gun debate. Those issues, though critically important, are divisive and largely a matter of individual opinion and judgment. Rather, the conference will focus on topics that are squarely within TIPS’ area of expertise: an analysis of the escalating array of legal claims and theories of liability against manufacturers, evaluation of defense counsel’s opportunities to creatively deal with these new threats against the gun industry, and litigation strategy related to these issues.

The conference takes place on Friday, June 4, and Saturday, June 5, at the Mayflower Hotel in Washington, D.C. Our speakers–including plaintiffs’ attorneys, defense counsel, insurance and gun industry representatives, and academics–will include the "cream of the crop" in terms of experience in the firearms litigation field.

As examples, Wendell Gauthier, one of the architects of anti-tobacco litigation and counsel to the City of New Orleans in its lawsuit against the gun industry, will discuss the similarities and differences between tobacco and gun litigation. Dennis Hennigan of the Center to Prevent Handgun Violence will join Mayor Marc Morial of New Orleans, Mayor Alex Penelas of Miami, and Mayor Richard Daley of Chicago for discussion of lawsuits by municipalities and states against the gun industry. Ann Kimball and other high-profile defense counsel will report the defense perspective. Congresswomen Carolyn McCarthy (D-New York), who has been personally affected by gun violence and is nationally known for her active involvement on gun issues, will provide luncheon remarks.

Why am I using my Chair’s Column to highlight this conference? Because gun violence is a critically important subject, gun liability is fast-evolving, and we have put the Section’s resources to work to offer you and our members an unequaled CLE opportunity. If you would like more specifics or registration materials, contact TIPS’ CLE Manager Janet Hummons (312/988-5656 or hummonsj@staff.abanet.org) or me ( kreader@ulmer.com).

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The Fidelity Loss Investigation in a Regulated Industry
By: Scott D. Baron

In any financial institution bond claim investigation, the insured has a duty to cooperate with the insurer. The bond’s cooperation clause imposes a contractual duty on the insured to cooperate fully with the insurer; specifically, to produce all pertinent records and witnesses. Focusing on banking and related regulation, this article examines the obstacles faced by the insurer and the insured while investigating a claim, and explores ways to overcome those obstacles.

The insurer should obtain from the insured any examination reports issued by regulatory agencies. However, FDIC and OCC examination reports are confidential and financial institutions may not voluntarily disclose them without first complying with detailed regulations. The insurer should also obtain from the insured bank any cease and desist orders or other regulatory or administrative orders or directives that may have been issued to the bank. These items are not listed as exempt from the Freedom of Information Act.

Insurers will also want to obtain law enforcement records. Federal regulations require all federally insured financial institutions to file a suspicious activity report with the appropriate law enforcement agency when it detects a known or suspected criminal violation of federal law or a suspicious transaction related to a money laundering activity or a violation of banking laws. Because suspicious activity reports are confidential, the insured cannot disclose the report voluntarily. The insurer can try to obtain the report directly from the law enforcement agency or, if the FDIC has a copy, it may be obtained through the same procedures for obtaining examination reports. The Federal Bureau of Investigation is another source of information. With respect to criminal prosecutions, take statements from the alleged dishonest employee and obtain the relevant documentation as early on in the bond claim investigation as possible, since the employee may invoke the Fifth Amendment and the bank’s original documents may have been taken by the law enforcement agency as part of its investigation, with little that can be done until after the criminal proceedings have been concluded.

Confidentiality and privacy issues must be considered. Under federal law, a bank customer has no constitutional privacy interest with respect to his bank records. However, a customer has some protection from federal government intrusion under the Right of Financial Privacy Act of 1978, which creates a private right of action against both the government and the financial institution if information is improperly obtained or disclosed. Although it is implicit in the contract of the bank with its customer that no information may be disclosed by the bank concerning the customer’s account, a customer would not have a legitimate expectation of privacy in his loan files to the extent he was a party to dishonest activity relating to such loans.
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The Surety's Rights to Obtain Salvage: Exoneration, Reimbursement, Subrogation and Contribution
By: George J. Bachrach

Salvage is the reimbursement of a surety’s losses from the assets of its principal and indemnitors, and from claims against third parties. The basis for the surety’s salvage rights emanate from the four basic rights of the surety: exoneration, reimbursement, subrogation, and contribution. Early on in any case, the surety must decide whether it will take a proactive role in seeking salvage by enforcing its common-law exoneration rights and the equitable remedy of quia timet, both to protect the contract funds on the bonded projects and to obtain collateral from the principal and the indemnitors to reduce or eliminate the surety’s loss. A surety is entitled to exoneration only when the surety’s obligation to pay has become fixed and absolute. The objective is to compel the principal to pay or discharge the liability in lieu of the surety. The objective of quia timet is to compel the principal to do those acts the principal ought to do before the surety’s liability has become fixed and absolute.

In addition to common-law or equitable rights, a surety who has an express agreement of indemnity can seek to enforce the agreement. Specific rights and actions under the agreement include: reserve deposit rights; the right to obtain collateral from the principal and the indemnitors in order to litigate or defend against any claim, demand or suit against the bonds; trust fund rights; the right to review the books and records of the principal and the indemnitors; instituting separate suits against the principal and the indemnitors to enforce the surety’s rights of reimbursement; settlement with one or more indemnitors without waiving its rights against the other indemnitors or affecting their liability to the surety under the agreement; and reimbursement for payments made in good faith.

After obtaining a judgment under state law, the surety may begin collection activities and pursue recoveries for reimbursement of the surety’s loss. The judgment constitutes a lien against all real property of the principal and the indemnitors in the county in which the judgment is entered. The surety may execute on its judgment lien against the real property, and against the personal property in the hands of the principal and the indemnitors, and may garnish personal property of the principal and the indemnitors in the hands of third parties.

The surety may be subrogated to the rights of the obligee, the claimants and/or the principal to claims, property rights and assets other than the contract funds on the contracts bonded by the surety for the principal. The following are examples of the claims, property rights and assets to which the surety may be subrogated: set-off rights; claims against third parties; claims against the federal government; claims to inventory and materials; and claims to a principal’s equipment.
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Collateral: What to Take, How to Take It, and What to Do with It Once You Have It
By: Joseph T. Getz

Most General Agreements of Indemnity allow the surety to collect from its principal and indemnitors collateral security for all liability incurred by the surety, any liability which has been asserted against the surety, and the amount of any reserves that may be established by the surety. Any collateral deposit clause should allow the surety to request collateral for all lost costs and expenses. Although common law or equitable rights may only be effective against the surety’s principal on the bond and not individual indemnitors, the Agreement generally covers additional parties and individual indemnitors.

A right of settlement clause, which may be used in conjunction with a collateral deposit, allows the surety the right to settle any claims which may be asserted against it. Language should be included allowing the surety to take advantage of private ordering whereby the surety may choose what event triggers the right to invoke the clause. Another issue concerns the amount of collateral a surety may demand under the terms of the clause.

Timely enforcement of a surety’s rights to collateral is key to prevent any loss against its bond. Collateral security clauses are amenable to the use of equitable remedies. A surety can demonstrate that its legal remedies are inadequate by proving that there is no claim for indemnification since the surety has not yet sustained a loss and that any claim against the principal for indemnification for potential liability to the obligee is inadequate because such a determination would not be binding on the obligee. A collateral enforcement clause bolsters a surety’s equitable rights that extend farther and can be asserted sooner than any legal remedies that may exist at some future point in time.

The surety’s preferred methods of collateralization are cash or its equivalent. The least preferred is real property or any interest a principal may have in real property because it may be difficult to convert these assets to cash in a timely fashion. Asserting rights in a principal’s equipment or contract funds is problematic given the effect this would have on the principal’s ability to carry on its business. Also, contract funds and equipment are often classes of collateral that have many other competing interests.

A claims situation often presents the surety with competing interests in battling a bankruptcy trustee or debtor in possession. In the event a pre-petition transfer of collateral was made to the surety, the surety should be careful to structure the transaction as one which may not be voided as a preferential transfer. The surety should be cognizant of avoiding violations of the automatic stay or it may subject itself to actual damages, costs, attorneys’ fees and punitive damages.
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How to Be a Good Fried to the Court: Strategic Use of Amicus Briefs
By: Reagan Wm. Simpson

This article provides an overview of the rules, conflicts, strategies, and tactics involved with amicus briefs, and covers ethical issues that amicus briefs raise. These briefs should focus on implications of a decision that the court may not have considered and legal arguments not advanced by others. Amicus briefs should be short, and honest and accurate, especially when citing evidence outside the record.

Amici can be divided into the following groups: special interest organizations and trade groups; parties in other, similar cases; the government or some agency or official of the government; individuals affected by, but not parties to, the litigation; law professors and attorneys practicing in a specialized field; and bar associations. In deciding whether to seek amicus support, consider how your case may potentially affect other persons and why the amicus is in a position to perceive the case in a broader or different context.

The amicus brief can serve several functions, including: examining policy issues; providing information beyond the record in the case; providing a more attractive advocate; providing support for the grant of discretionary review; supplementing a party’s brief; endorsing a particular position; correcting a decision that is not yet final; and seeking to limit the effect of an unfavorable decision or expected decision.

Procedurally, most jurisdictions require leave of court to file an amicus brief, which is generally obtained on motion or application to the court. In the Supreme Court and the federal courts of appeals leave is not required if all parties have provided written consent to the filing, or the brief is filed by certain designated entities, such as the United States, a federal agency, or a state or political subdivision thereof. Supreme Court Rule 37.5 provides that the rules applicable to other briefs apply to amicus briefs, except that the amicus brief should set forth the interest of the amicus and should contain: a statement of the interest of the amicus; summary of argument; argument; and conclusion. Further, an amicus brief in a case before the Supreme Court for oral argument must identify the party supported. The statement of interest should concisely identify the person or organization seeking to file the brief, identify the interest of the amicus, and describe how the amicus can assist the court. A common method of introducing social science evidence to the court is through non-record evidence in amicus curiae briefs. When amicus briefs present facts beyond the record that did not undergo the rigors of examination and cross-examination at trial, it is important for those facts or data to be well documented and scrutinized.
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How to Prepare and Present a Fidelity Claim: Advice for the Insured
By: Mark Wilson

The goal of this article is to enlighten the insured as to the nature of the claims process and to suggest realistic expectations for an informed insured.

The claims process consists of four stages: notification of the carrier; investigation by the insured; the insured’s submission of a proof of loss to the carrier; and the carrier’s post-proof analysis of the claim. Policy language typically requires an insured to give immediate notice to its carrier. Notice is typically tied to when discovery of the loss occurs. When a court would consider discovery to occur may depend on the type of policy at issue. The current language of the Standard Form 24 financial institution bond provides that discovery occurs when the insured becomes aware of facts that a reasonable person would consider indicia of a covered loss. Although the precise parameters of when discovery occurs may vary from jurisdiction to jurisdiction, assume that an objective standard applies and put the carrier on notice immediately upon learning of facts which even arguably suggest that a loss covered by the bond has occurred.

The notice should include the bond number and the named insured and tell the carrier that it may have a claim. It should set forth sufficient information to allow the carrier to assess the potential severity and likelihood of a loss, as well as to put the carrier on notice of whether any quick efforts are needed to protect salvage rights.

The objectives for the post-notice investigation are: to minimize costs (determine whether to utilize in-house personnel or external personnel); preparation of a proof of loss; a proper investigation to ensure the filing of a timely proof of loss with the carrier; preserving the carrier’s subrogation rights, as well as the insured’s own rights to recovery for any uncovered loss, excess loss or deductible and; to better the insured’s own business, since the investigation of the loss will give the insured an opportunity to determine how the fraud occurred and why existing safeguards failed.

Following the investigation, a proof of loss is due within a specified period of time after discovery. The proof of loss should include: a description of the events underlying the claim; a description of how the insured concluded what those events were; the particulars of all events and the identification of all relevant individuals; the date of discovery and a narrative description of how that date was determined; the name, address and phone numbers of the individuals on the investigation team; and the methods used in the investigation. All documentary evidence upon which the insured relied to reach its conclusions should be attached as exhibits to the proof of loss.
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Twice Bitten: Violations of Ethical Rules as Evidence of Legal Malpracitce
By: Douglas L. Christian and Michael Christian

In a legal malpractice action, to establish that a duty was breached, a plaintiff must show the standard of care an attorney must use when representing his or her clients. Since the adoption of the ethical rules, many suits have arisen where the breach of an ethical rule was offered as evidence of attorney malpractice. An important issue in may of these cases is whether failure to comply with the ethical rules should be admissible as evidence against an attorney.

The majority of courts have held that the ethical rules can be used to show the standard of care for attorneys, and that if an attorney failed to meet the standard it is evidence that the applicable standard of care owed to the client has been breached. Typically, these cases hold that the breach of an ethical standard does not establish a cause of action by itself, but can be used to help prove the attorney breached a duty to the client. Some courts have held that a breach of the ethical rules is presumptive of legal malpractice, analogizing the violation of the rules to the violation of a statute or ordinance. A few courts have indicated that the violation of an ethical standard is conclusive evidence that an attorney breached the standard of care. These courts rationalize that legal duties are firmly established by the ethical rules and that violation of an ethical duty is determinative of negligence. Thus far, only two states have held that the violation of an ethical rule is completely inadmissible in an attorney malpractice action.

Although nearly all of the decisions discussing the admissibility of a violation of an ethical rule involve malpractice, on occasion, a lawyer may be sued not for committing malpractice, but for violating an ethical rule. The question arises whether the violation of an ethical rule, by itself, can form the basis for a lawsuit. Although the language prefacing the rules states that they are not to be used to impose civil liability, courts overwhelmingly allow this evidence in civil malpractice suits to show whether the attorney fell below the standard of care. No court has found the violation of the rule itself to be an independent cause of action.

As to the attorney who is being sued for legal malpractice, it seems likely that compliance with the ethical rules could be raised as an affirmative defense.
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Litigating Accidental Shooting Cases Against Gunmakers: A Working Model
By: Jonathan E. Lowy

Jonathan E. Lowy is a staff attorney with the Legal Action Project, Center To Prevent Handgun Violence, in Washington, D.C. He was co-trial counsel for the plaintiffs in the Dix case discussed in this article, and is co-counsel for the cities of New Orleans and Bridgeport and for Miami-Dade County in pending lawsuits against the gun industry.

This article is intended to assist lawyers in litigating products liability cases against gunmakers in which a young person unintentionally shoots another -- the sort of tragedy that occurs virtually every day in America.

Background

Imagine a widely-used product that is marketed as "insurance" to protect the safety of families, but which actually results in thousands of deaths of those family members and others each year. In fact, the best scientific data proves that it is 22 times more likely to harm the family or others than it is to defend them. 1 The industry has known of these statistics for many years, and it has known of simple, feasible safety devices that would prevent many deaths. However, the product makers have refused to implement these safety features. And rather than inform customers of the grave risks its product poses, the industry’s advertisements only hype that the product "saves lives," without mentioning the many lives lost for each one "saved." So the product continues to be sold, without decades-old safety features, and without warnings of its risks. And the deaths and injuries caused by it continue to mount every day.

One would think that victims of this product should be able to recover under settled principles of negligence and products liability law, and that the industry might face punitive damages for its callous refusal to take reasonable steps to prevent injuries which its product causes. Yet, although the above scenario summarizes the legal exposure which gunmakers face today, until recently gunmakers were rarely sued for their failure to prevent accidental shootings.

Lawsuits that impose basic tort principles on the gun industry may finally compel gunmakers to take steps to save lives. Recently, a number of cities have filed suits against the gun industry on a variety of theories. The city of New Orleans, Miami-Dade County, and Atlanta filed suit, seeking damages caused by guns without feasible safety features, including those which do not prevent unauthorized persons from firing them. The city of Chicago and Cook County have alleged that the gun industry’s unreasonable distribution practices constitute a "public nuisance," making it responsible for the costs incurred by the city's and county’s responses to criminal gun violence. The city of Bridgeport, Connecticut, 2 seeks to recover damages incurred both as a result of gunmakers’ defective designs, as well as from their negligent distribution and marketing of guns which leads to criminal shootings. One can expect to see more private citizens suing the gun industry on similar grounds, particularly in light of a recent verdict in federal court in Brooklyn, New York, in which several gunmakers were found liable for criminal shootings. 3

A working model

The shooting
Unintentional shootings are reported virtually every day in newspapers and on television. One typical example taken from an actual newspaper account: A couple bought a .380 caliber handgun, intending to use it to protect their family at home. They wanted the gun readily accessible, but they did not want their children to use it. Therefore, they kept the gun hidden under the mattress of their bed. One day their 12-year-old son found the gun, removed the magazine, and, thinking he had thereby unloaded it, brought it outside to play. While waving the gun, he fired it. He did not realize that a round was in the chamber. That bullet struck his 19-month old brother in the face and killed him. 4

The incident, through tragic, was not unusual: "On average, one child 18 years of age or under is accidentally killed, and 10 are injured by a firearm every day across the United States." 5 Many adults are also killed and injured in similar circumstances each year.

Theories of recovery
Like many victims of gun violence, the parents who owned that gun apparently never thought to bring a lawsuit against the gunmaker. However, unbeknownst to them, they had several viable claims, including: strict liability for making and selling a product with defective design and warnings; strict liability for distribution of the product; negligent design; and negligent distribution. 6 This article focuses on the strict liability claim for defective design.

The gun
Virtually all guns fired in such accidents are defective in several respects. Each of these defective attributes are part of the design of many--in some cases all--pistols manufactured today.

First, the gun (like many semi-automatics) did not include a simple, inexpensive device -- a magazine disconnect safety -- which would have prevented the gun from firing when the magazine was removed. Magazine safeties have been around for over 80 years, and they were designed to prevent precisely this sort of accident. 7 The devices cost less than 50 cents. Had it been included, the young boy’s life would have been saved.

Second, almost all guns fail to include feasible safety measures which would prevent unauthorized users from firing the gun, although they had long been available. 8 For years there have been numerous designs available which would incorporate an internal lock into a gun, so that it could only be fired by someone who held the key, or knew the combination. For example, in 1989 an inventor, Frank Brooks, patented an early version of "Saf-T-Lok," with which a gun can only be fired if one presses the combination on three buttons located above the grip. "Saf-T-Lok" is now working on a more sophisticated "personalized" gun, in which the gun will only fire if it reads the thumbprint of the user. Colt has been working on similar "smart gun" technology, with which the gun can only be fired by persons wearing a magnetized ring.

Third, the pistols tend to be deceptively designed. When a user attempts to unload it by emptying or removing the magazine (in which the bullets are loaded), the gun does not alert users if a round was in the chamber. As a result, foreseeable users often think the gun is unloaded (as did Omar), and unintentional shootings--by children and adults--result. For nearly a century gunmakers have known that many people are killed because users of all ages are deceived into thinking that a pistol is unloaded when the magazine is empty or removed, and feasible safety features have long existed which would prevent these tragic consequences.

Gunmakers generally fail to implement any of these feasible safety devices. While some gunmakers include what they term a "chamber loaded indicator," those devices are grossly ineffective. For example, Beretta markets some of its guns by telling customers that it is designed to inform them that a gun is loaded, yet the only indication it provides that a round is in the chamber is an unlabeled tiny red dot which protrudes slightly on one side when the chamber is loaded. Not only is it virtually impossible to ascertain whether the dot is in a "loaded" or "unloaded" state, but the gun does not indicate what the dot is supposed to indicate.

Third, guns are sold without remotely adequate warnings. Users are not warned that their guns should be locked away when not in use, even though gunmakers will recognize that this should be done. Nor are users warned that children are attracted to guns, or that thousands of children have died as a result of gaining access to guns in the home, nor did the pistol itself warn users how to determine that the round was in the chamber.

Legal arguments

Plaintiff’s burden
Under California law, a product can be defective under the risk/utility or consumer’s expectation tests. Under the risk/utility test--which is most useful in accidental shooting cases--a product is defective if "the risk of danger inherent in the challenged design outweighs the benefits of such design." 9 Under the consumer expectation test, a product is defective if it "failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner." 10 Even "perfectly" manufactured products are defective if they are unsafe "because of the absence of a safety device," or because they "lack adequate warnings and instructions." 11 Products must be made to prevent injury when foreseeably misused, even if that use was not "intended." 12

To prevail in a strict liability action, plaintiffs have the initial burden to prove that a jury could find that the design caused the injury. That burden is met where, as in the incident described above, the user would not have fired the gun had it been designed to alert users that a round was in the chamber, and he would not have been able to fire it if a feasible internal locking device were incorporated.

It is then the defendant’s burden to prove that the benefits of its design choice outweighs its risks. There is no benefit to designing a gun so that it can be fired by unauthorized, irresponsible users, or which does not alert users that it is loaded; these attributes only put users and innocent victims at grave risk of being shot, either accidentally or intentionally. As it was feasible for the gunmaker to make a gun without these dangerous attributes, the gun was defective under the risk/utility test.

Even in states where the plaintiff carries the burden to prove that an alternative, safer design was feasible, that is relatively easy to prove. 13 The technology required to implement an internal locking device into a gun is simple, and has existed for many years. 14 With relative ease an expert can modify the make of gun used in a shooting and, using pre-manufacturing date technology, incorporate a lock into it.

Defenses and responses
Plaintiffs are likely to counter a number of attacks on this position before judges and juries. The most likely defenses -- and effective responses to them -- are discussed below.

"Magazine safeties and internal locks destroy the utility of the gun," or "guns are useful for the reason they are dangerous--because they fire." Despite the rhetorical force those points may have initially, upon close scrutiny they fail. For the safer designed gun can fire; its only limitation is that it can only be fired by persons whom the owner wants to fire it--not by thieves, curious children, or suspects who wrestle a gun from the arresting police officer--and when that person wants to fire it. The fact that unsafe--defective--guns can be fired by unauthorized users is not what makes guns useful; on the contrary, it is what makes guns deadly to gun owners, their families, and innocent victims. Nor is a gun useful because it does not alert users that it is loaded; again, this attribute causes danger, without providing any benefit.

Similarly, even if a gunmaker may be able to construct a hypothetical scenario in which a magazine safety could, conceivably, decrease the utility of a gun (for instance, if the magazine is removed when an intruder approaches) a gun without a magazine safety is still defective if, overall, the risks of a gun without the device outweigh the benefits of the device. The risks that a gun will be accidentally fired when the magazine is removed far outweigh the gunmakers’s speculative hypotheticals will actually come to pass, and that there will be some adverse consequence to including such a device. Therefore, the gun is defective, at least under California law.

"Plaintiffs will have you believe all guns are defective." As this defense runs counter to the facts and the law, a motion in limine should prevent it from ever being heard by the jury. For one, some gunmakers do employ these alternative designs: Taurus makes a handgun with a locking device which prevents unauthorized use; and handguns employ an indicator which alerts users that a round is in the chamber. But even if these safety features were not used by other manufacturers, that would not even be relevant, much less a legally cognizable defense. The only relevant issue is what safety measures were feasible, not whether they were implemented. 15 And it has long been the law that an entire industry can be negligent. 16

"Gunmakers have no duty to prevent injuries caused by unintended users." This argument fails, for one, because the lack of feasible safety features and warnings makes the gun unsafe for all users--though the deceptive and unsafe design is even more dangerous to those of lesser maturity. But even if plaintiffs were arguing only that the gun should be "child-proof," that argument would be tenable--at least under California law--if it was foreseeable that children would gain access to guns. 17 All manufacturers are required to "foresee some degree of misuse and abuse of its product, either with users or third parties, and to take reasonable precautions to minimize the harm that may result from misuse and abuse." 18 If a Ford Pinto exploded when its 14-year-old driver negligently stopped short, Ford would not be immune from liability because the driver was "unintended" and careless.

Further, many products that present dangers if used by unauthorized persons are made so that unauthorized use is prevented. Automobile manufacturers, for instance, employ feasible means to prevent cars from being opened or started without a key, and aspirin bottles are "child-proof." These product makers take steps to prevent foreseeable injuries caused by unintended, careless misusers.

Numerous studies confirm that it is foreseeable that an unauthorized user could gain access to the gun, and that shootings could result. Indeed, the fact that gunmakers include, in their owners manuals, perfunctory warnings to keep guns away from children, tacitly concedes that they are aware of this risk. Further, a 1991 Government Accounting Office study found that 31 percent of unintentional shootings in 1988-89 were from children six years or younger firing a gun or from a person firing a gun thinking it was unloaded. 19

"Guns don’t have to be made safe since they are patently dangerous." Even though a gun does present some patent dangers, the danger at issue in these cases is latent, for the danger is not that the gun fires a bullet, but that the design conceals that it is loaded. But even if the danger were patent, a gunmaker is obligated to take feasible steps to minimize such danger--at least under California law. 20 Indeed, even if the gun was "intrinsically dangerous," that would not relieve the gunmaker of liability for failing to minimize its danger. 21 Gunmakers may be liable if they do not make their products as safe as possible, or make use of adequate warnings. 22

"The gunmaker did not cause the injury." The gunmaker will point the finger of blame at the gun owner--for improperly failing to lock up the gun--and at the shooter--for improperly handling it. However, in California a product maker has no right to rely upon its product being used properly or lawfully. On the contrary, it is required to contemplate the foreseeable misuse of its product; it cannot claim to "rely" on responsible behavior which it should know will not take place. 23 An independent cause only relieves a tortfeasor of liability when the event could not have been soreseen. 24 Indeed, here "the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes [the gunmaker] negligent," therefore, "such an act, whether innocent, negligent, intentionally tortious, or criminal does not prevent [it] from being liable for harm caused thereby." 25 Further, the failure of third parties to exercise reasonable care does not limit a manufacturer’s duty to make its products as safe as possible. 26

A common variant of this argument is "You don’t sue General Motors when a drunk driver crashes a car." However, where it is foreseeable that a car will be misused--including by drunk drivers--carmakers are obligated to take feasible steps to prevent injuries. 27 More to the point, a car manufacturer does all that is feasibly possible to prevent unauthorized users from driving it, by requiring door keys and ignition keys. But gunmakers do not install any means to prevent children and other unauthorized users from firing its guns. The more appropriate analogy would be if cars were made without any keys or locks, and kids were hopping into cars and crashing them. Under that scenario car makers would indeed be liable for failing to include feasible means to prevent such misuse. Similarly, guns should be made with a "key" which would prevent unauthorized users from firing it. Indeed, it makes no sense that an aspirin bottle is child-proofed, but a gun is not.

"The owner would not use the internal lock, even if we made one." 28This defense should fail as it is based entirely on speculation, and it suggests that plaintiffs are required to clear an almost impossible evidentiary burden--which was created by defendant’s irresponsible conduct; that is, that plaintiffs must prove that the gun owner would have purchased and utilized a safer gun, even though the gun owner has never even seen such a gun--thanks to the defendant’s failure to make one. California courts have rejected this defense, noting:

It is particularly appropriate that the jury be allowed to determine the inference to be drawn when the evidence indicates that a safety device, designed to prevent the very injury that occurred, was not present. To take the case from the jury simply because the plaintiff could not prove to a certainty that the device would have prevented the accident would enable the manufacturer to prevail on the basis of its failure to provide the safeguard. 29

Further, the defense runs counter to the entire premise of products liability law that manufacturers are in the best position to anticipate injuries and to prevent them from recurring. 30 Instead, this argument suggests that, by analogy, only people who buy cars have the duty to install seat belts. Additionally, the implication is inaccurate, for there are many people who would not go to the trouble of installing seat belts in their cars, yet they would buckle up if seat belts were pre-installed by the manufacturer.

"This is an issue for the legislature, not the courts." This argument should be reversed, for it suggests that for some reason gunmakers should be granted a special exemption from legal principles of negligence and products liability law. But such an exemption can only be created by the legislature. Indeed, it is especially appropriate to impose liability on gunmakers for failing to make a safer product, for guns are the only products exempt from the Consumer Product Safety Act. 31 Therefore, tort liability is the only means to discourage the making of unsafe guns.

Conclusion

The above analysis suggests that product liability claims against gunmakers for accidental shootings by children (and other unauthorized users of guns) should prevail--at least under California law. However, one should be aware that these cases are not without their difficulties, in part because of the mindset of many potential jurors and judges that gun owners are solely responsible if their weapons are misused by others. For example, the author recently served as co-counsel in a trial in which the parents of an unintentional shooting victim sought to recover against the gunmaker. That case, Dix v. Beretta, resulted in a defense verdict--although that verdict was tainted by rather egregious juror misconduct (one of several issues which plaintiffs are appealing). 32 However, the recent verdict in Hamilton v. Accu-Tek 33 --in which Beretta and other gunmakers were found liable for criminal shootings--shows that these difficulties are not insurmountable. And as the history of tobacco litigation has shown, even a string of initial failures in the courtroom can precede some remarkable successes, which will lead to healthy rewards for innocent victims of out-dated guns and the making of safer guns in the future.

Notes

1 - Kellerman, "Injuries and Deaths Due to Firearms in the Home," 45 Journal of Trauma 263 (1998).

2 - Mayor Marc H. Morial, and the City of New Orleans v. Smith & Wesson Corp. (U.S.D.C. E.D. La. 98-3467); Alex Penelas, as Mayor of Miami-Dade County, and Miami-Dade County, a Political subdivision of the State of Florida v. Arms Technology, Inc., (Cir. Ct. 11th Jud. Cir. Miami-Dade County); City of Atlanta v. Smith & Wesson Corp., et al., (St. Ct. Fulton County, 99VSO149217J); City of Chicago and County of Cook v. Beretta U.S.A. Corp., (Cir. Ct. Cook County); Mayor Joseph P. Ganim and the City of Bridgeport v. Smith & Wesson, Inc., (Sup. Ct. Jud. Dist. of Fairfield, CT.

3 - Hamilton v. Accu-Tek, (E.D.N.Y. 95-CV-0049).

4 - Lode Town Rallies in Wake of Tot’s Shooting Death, Stockton Record, Mar. 22, 1996.

5 - Cal. Penal Code § 12800(b)(2).

6 - The owner of the gun could also be sued for negligent storage of the gun. However, where, as here, the owners would also be seeking to recover for the death of their son, such a claim would not be viable.

7 - The supreme court of New Jersey, in Hurst v. Glock, Inc., 684 A.2d 970, 972 (N.J. 1996), discussed a 1910 patent to prevent "the dangerous accidental firing sometimes liable to occur after the magazine has been withdrawn in the belief that all cartridges have been removed . . . whereas the loaded cartridge last fed to the barrel remains in the chamber," and noted a similar discussion in the January 1958 issue of the National Rifle Association’s American Rifleman magazine.

8 - Until recently no manufacturer included an internal lock in its guns. However, recently Taurus has begun selling a revolver with an internal lock which can be made ready to fire with a key.

9 - Barker v. Lull Engineering Co., 573 P.2d 443, 453 (Cal. 1978).

10 - Id.

11 - Id.

12 - Id. at 451 fn 9.

13 - For a survey of decisions on this issue, see 78 ALR 4th 155, Burden of Proving Feasibility of Alternative Safe Design in Products Liability Actions Based on Defective Design.

14 - Child safety devices date back to at least 1884, when Smith & Wesson designed a gun that it claims could not be fired by a child under eight. Smith and Wesson Trade Catalog, 1895; R.G. Jinks, History of Smith and Wesson (Beinfeld Publishing 1977). There are numerous patents for more sophisticated safety devices dating back several decades. Frank Brooks began making "Saf-T-Loks" around 1989. Kenneth Pugh patented a magnetized trigger gun--more akin to a "smart gun"--in 1991. Patent No. 05016376, Issue Date 5/21/91.

15 - Grimshaw v. Ford Motor Company, 119 Cal. App. 3d 757, 802, 174 Cal. Rptr. 348, 377 (Cal. Ct. App. 1981).

16 - T.J. Hooper 60 F.2d 717, (2d Cir. 1932), cert. den. 287 U.S. 662.

17 - Barker v. Lull, 573 P.2d at 451 fn. 9 (error to instruct that only a product’s "intended use" is relevant in a products liability case).

18 - Self v. General Motors Corp. 42 Cal. App. 3d 1, 6-7 (Cal. Ct. App. 1974). See also Buccery v. General Motors Corp., 60 Cal. App. 3d 533, 546 (Cal. Ct. App. 1976).

19 - Accidental Shootings: Many Deaths and Injuries Caused By Firearms Could Be Prevented, GAO/PEMD - 91-9 (March 1991).

20 - See Pike v. Frank Gough Co., 467 P.2d 229, 234 (Cal. 1970).

21 - Titus v. Bethlehem Steel Co., 91 Cal. App. 3d 377, 380 and fn. 8 (Cal. Ct. App. 1979) (citation omitted).

22 - This defense may be more difficult to overcome in other jurisdictions. For instance, Michigan law does appear to hold that there is no duty to make safe "simple tools" which are patently dangerous, and that guns fall into this category. Treadway v. Smith & Wesson Corp., 950 F. Supp. 1326 (E.D. Mich. 1996); Raines v. Colt Industries, Inc., 757 F. Supp. 819 (E.D. Mich. 1991); Kirk v. Hanes, 16 F.3d 705 (6th Cir. 1994).

23 - Self v. General Motors Corp., 42 Cal. App. 3d at 6-7.

24 - Soule v. General Motors Corp. 882 P.2d 298, 301 fn. 9 (Cal. 1991).

25 - Restatement (Second) of Torts, § 449.

26 - Pike v. Frank Hough Co., 467 P.2d at 234.

27 - See, e.g., Binakonsky v. Ford Motor Co., 133 F.3d 281 (4th Cir. 1998).

28 - This argument cannot be made if the plaintiffs contends that the gun could have been made with "personalized" "smart gun" technology, for with those designs guns are necessarily unusable except by authorized users (who, for instance, wear a magnetized ring which activates the gun). However, while Colt and others are now working on "smart guns," there are none on the market at the moment. Once it becomes easier to prove that this technology was feasible at the time the gun in question was manufactured, these cases will become considerably easier.

29 - Campbell v. General Motors Corp., 649 P.2d 224, 229 (Cal. 1982).

30 - See, e.g., Brown v. Superior Court, 44 Cal 3d 1049, 1054 (1988).

31 - 15 U.S.C. § 2052(a)(1)(E). See also Hammond v. Colt Industries, 565 A.2d 558 (Super. Ct. Del. 1989) (denying summary judgment where thirteen-year-old accidentally shot friend); Handguns Without Child Safety Devices: Defective In Design, 16 J. Law & Commerce 171 (1996).

32 - Dix v. Beretta, Alameda Co. (Cal.) Superior Court, No. 950681-9 (1998).

33 - Hamilton, cited in note 3 supra.

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