Gun Dealers Can Be Liable for Gun Injuries
Jeff Randa, a nineteen-year-old, had mentioned to a gun dealer many times that he wanted to buy a handgun and ammunition. The dealer told the youth that he could not buy a gun until he was twenty-one years old. Randa asked if his grandmother could purchase the weapon. The dealer replied that if she were a qualified buyer she could but that the dealer could not sell her the weapon "just so she could give the gun to her grandson."
Subsequently, Randa's grandmother came into the store with him and purchased the handgun the youth had his heart set on. Twelve days later, Randa went to a party with the gun. Bryan Hoosier, who was also at the party, told Randa to point the gun and shoot. Randa did so, killing Hoosier, and was later convicted of voluntary manslaughter.
Hoosier's father sued the gun dealership for negligence, accusing the dealership of knowing that the gun would be given to a minor after being sold to an adult. The dealership argued that it could not be liable and that the state laws imposed criminal penalties only on violators.
In 1993 the California Court of Appeals ruled that the dealer was indeed liable for injuries (Hoosier v. Randa, 17 Cal. Rptr. 2d 518, 521 [Cal. Ct. App. 1993]). The state gun control laws were passed not only to establish criminal penalties but also to protect the public. If a dealer violated the law, he also violated his responsibility of care owed to the public. Consequently, any person harmed by such a violation may sue the violator.
Ohio—The Responsibilities of Gun Show Promoters
In 1992, during a gun show promoted by Niles Gun Show, Inc., four youths under the age of eighteen stole several handguns. The corporation from which the vendors rented space had no policy that required the dealers to protect their wares from being stolen, although it had an unenforced policy barring minors from entering the show.
After leaving the show, one of the youths also stole a car. While driving around, the juveniles confronted two men, Greg L. Pavlides and Thomas E. Snedeker. One of the boys, Edward A. Tilley III, shot Pavlides in the chest and Snedeker in the head with one of the stolen guns. Tilley was arrested, charged, and convicted of two counts of attempted murder and one count of unauthorized use of a motor vehicle.
Pavlides and Snedeker sued the Niles Gun Show for negligence for not protecting the public from criminal acts by third parties who stole weapons that had not been properly secured. The trial court dismissed the case, stating that the promoters had no such responsibility, but on appeal, the Ohio Court of Appeals reversed the lower court's decision, sending the case back to be tried. The court of appeals ruled that the promoters of gun shows may have a duty to provide adequate security to protect the public from criminal acts that might occur if the guns were stolen.
The plaintiffs showed a report from a gun show operator in which safeguards, such as hiring security guards to keep out minors, had been used to prevent theft. This promoter also had required vendors to keep weapons in display cases or tied down. The court ruled that the gun show operators should be expected to make a reasonable effort to bar minors from shows where unsecured firearms are displayed and to prevent juveniles from stealing or purchasing weapons. The court further stated that it is "common knowledge" that minors possessing guns can create dangerous situations, and so gun show promoters should have been aware that minors stealing guns might use them in criminal activity.
Filing Suit against a Manufacturer
Olen J. Kelley was injured in 1981 when he was shot in the chest during an armed robbery of the grocery store where he worked. The gun used was a Rohm revolver handgun model GR-38S, designed and marketed by Rohm Gesellschaft, a West German corporation. The handgun was assembled and initially sold by R. G. Industries, Inc., a Miami-based subsidiary of the West German corporation. Kelley and his wife filed suits against Rohm Gesellschaft and R. G. Industries in the Circuit Court of Montgomery County, Maryland.
Two counts charged that the handgun was "abnormally dangerous" and the company was defective in its "marketing, promotion, distribution and design." A third count charged negligence. The case revolved around whether or not the gun in question was a Saturday Night Special, which had been and still is banned from import by the Bureau of Alcohol, Tobacco, Firearms and Explosives. The Federal District Court of Baltimore, where the case was first brought, asked the state court for a ruling on whether the manufacturer could be held liable under Maryland law.
The Maryland Court of Appeals ruled that the manufacturer or marketers could not be held strictly liable because handguns are "abnormally dangerous products" and their manufacturing and marketing are "abnormally dangerous activit[ies]" (Kelley v. R. G. Industries, Inc. [497 A.2d 1143, 1985]). In its decision, the court noted,
Contrary to Kelley's argument, a handgun is not defective merely because it is capable of being used during criminal activity to inflict harm. A consumer would expect a handgun to be dangerous, by its very nature, and to have the capacity to fire a bullet with deadly force.
The Maryland Court of Appeals also stated that Kelley confused a product's normal function, which may be dangerous by its very nature, with a defect in its design and function. Kelley had cited as an example the fact that a car is dangerous if it is used to run down pedestrians. The injury that results is from the nature of the product—the ability to be propelled to great speeds at great force. However, if the gas tank of the car leaked in such a way as to cause an explosion in the event of a rear-end collision, then the design of the product would be defective, and the manufacturer would be liable. The court concluded that to impose "strict liability upon the manufacturers or marketers of handguns for gunshot injuries resulting from the misuse of handguns by others would be contrary to Maryland public policy."
However, the Maryland court's opinion differed on Saturday Night Specials, which they defined as guns "characterized by short barrels, light weight, easy concealability, low cost, [and] use of cheap materials." The court considered these guns
… largely unfit for any of the recognized legitimate uses sanctioned by the Maryland gun control legislation. They are too inaccurate, unreliable and poorly made for use by law enforcement personnel, sportsmen, homeowners or businessmen…. The chief "value" a Satur day Night Special handgun has is in criminal activity because of its easy concealability and low price.
Manufacturers or marketers are liable because they should know this type of gun is made primarily for criminal activity. Judge John C. Eldridge quoted an R. G. Industries salesman as telling a prospective handgun marketer, "If your store is anywhere near a ghetto area, these ought to sell real well. This is most assuredly a ghetto gun." The salesman allegedly went on to say that although the gun sold well, it was virtually useless, and he would be afraid to fire it.
The Maryland Court of Appeals did not rule on whether the gun in question fell within the category of Saturday Night Specials but referred that decision to the U.S. District Court. It did, however, indicate that strong evidence had been presented that the gun fit many of the qualifications; if it were found to be a Saturday Night Special, liability against manufacturer and marketer could be imposed. This decision applied only in Maryland, and the Maryland legislature soon passed a law overriding this decision. Few courts have accepted this interpretation.
Saturday Night Specials Cannot Be Singled Out
KELLEY DOES NOT APPLY IN NEW MEXICO. Dolores Armijo's brother, Steven Armijo, shot and killed James Salusberry, Ms. Armijo's husband, in front of Ms. Armijo and her daughter. He then tried to shoot them, but the gun would not go off. Ms. Armijo, claiming the gun used was a Saturday Night Special, sued Ex Cam, Inc., the importer and distributor of the weapon.
She sued on the basis of four theories: strict product liability (the product was defective and unreasonably dangerous; therefore, the manufacturer was responsible for the actions of the product); "ultra-hazardous activity" liability (a gun is a dangerous product and the manufacturer is accountable for the results of its use); negligence liability (the manufacturer did not somehow show reasonable care while marketing a product that carried some degree of risk that it might be used to commit a crime); and a narrow form of strict product liability for Saturday Night Specials put forth in Kelley v. R. G. Industries, Inc.
The U.S. District Court in New Mexico did not believe that any court in New Mexico would ever recognize any of these theories as the basis of a court case under New Mexico law (Armijo v. Ex Cam, Inc. [656 F.Supp. 771, 1987]). The court said,
It would be evident to any potential consumer that a gun could be used as a murder weapon. So could a knife, an axe, a bow and arrows, a length of chain. The mere fact that a product is capable of being misused to criminal ends does not render the product defective.
[Based on New Mexico law, any case] would not result in liability for a manufacturer of guns, as guns are commonly distributed and the dangers … are so obvious as to not require any manufacturers' warnings.
The court showed little respect for Kelley v. R. G. Industries, Inc., indicating that it went against common law in the state of New Mexico. Therefore, it would not be considered. Furthermore, the court concluded,
All firearms are capable of being used for criminal activity. Merely to impose liability upon the manufacturers of the cheapest types of handguns will not avoid that basic fact. Instead, claims against gun manufacturers will have the anomalous [unusual] result that only persons shot with cheap guns will be able to recover, while those shot with expensive guns, admitted by the Kelley court to be more accurate and therefore deadlier, would take nothing.
A CASE RESULTING FROM THE ATTEMPTED ASSASSINATION OF THE PRESIDENT. In 1981 John Hinckley tried to assassinate President Ronald Reagan. An individual injured during the assassination attempt sued to hold the gun manufacturer liable based upon negligence, strict product liability, and a "social utility" claim based upon strict liability for unusually dangerous products.
The Washington, D.C., court rejected the plaintiff's claims (Delahanty v. Hinckley [D.C., No 88-488, October 1989]). There was no issue that the gun did not work properly. Furthermore, a manufacturer had no duty to warn a buyer "when the danger, or potentiality of danger is generally known and recognized."
The court did not believe the marketing of a handgun was in and of itself dangerous. Rather, the danger resulted from the action of a third party. The plaintiff had shown no connection between the gun manufacturer and John Hinckley, nor had the plaintiff shown a reasonable way in which the gun manufacturer could have prevented John Hinckley from using the weapon to try to kill President Reagan. The court dismissed the Kelley argument, not accepting a ruling that categorizes one type of product as liable for negligence simply because it is inexpensive and/or poorly made.
Filing Suit Against a Seller
In December 1980 James J. Robertson purchased a handgun. Eighteen months later, he used that gun to kill himself. Robertson's family brought a wrongful-death suit against the seller of the handgun before the 298th Judicial District Court, Dallas County, Texas. The district court found in favor of the defendant, Grogan Investments (Robertson v. Grogan Investment Company [710 SW.2d 678, 1986]), because the plaintiff's claim that
the sale of handguns … to the general public is an abnormally dangerous and ultrahazardous activity … does not state a cause for strict liability under Texas law. In fact, Texas courts, when confronted with the opportunity to apply strict liability for ultrahazardous activities, have declined to do so and have consistently required some other showing, such as negligence or trespass, for recovery.
Filing Suit Against a Retail Establishment
In July 1998 the Florida Supreme Court upheld a $2.6 million verdict against Wal-Mart for negligence in selling handgun ammunition to underaged buyers in January 1991 (Wal-Mart Stores, Inc. v. Coker [1998 Fla. Lexis 861]). A Florida Wal-Mart store employee sold the ammunition to two teenagers without asking about age or requesting identification, a violation of federal law. Several hours later, the teenagers used the ammunition in a robbery of an auto parts store, during which they shot and killed Billy Wayne Coker. Coker's wife filed suit against Wal-Mart.
Though acknowledging that the sale was illegal, Wal-Mart argued that the perpetrators' intervening act of murder was not foreseeable and, therefore, the illegal sale was not the legal cause of Coker's death. The Florida Court of Appeals ruled, however, that an ammunition vendor's illegal sale could be the legal cause of an injury or death caused by the buyer's intentional or criminal act.
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