Academic journal article Defense Counsel Journal

Making Social Policy through Courts: Gun Control Advocates Fight Firearms

Academic journal article Defense Counsel Journal

Making Social Policy through Courts: Gun Control Advocates Fight Firearms

Article excerpt

Suits against firearms manufacturers distort the roles of legislatures and courts, threaten lawful industries, and ignore personal responsibility

TORT SUITS against firearms companies for non-defective products allow contingency fee attorneys, improperly using the power of the judiciary, to legislate firearms prohibitions and thus circumvent Congress and state legislatures. These tort suits usually emerge as the aftermath of a shooting and generally involve a manufacturer of a perfectly designed legal product, someone who fired the trigger and a victim. Instead suing the assailant, the actions are brought against gun manufacturers for creating a non-defective product.

All this not only confuses tort theory but also harms a perfectly legal industry. This litigation distorts the legal theory behind tort liability, promotes erroneous presumptions about gun manufacturers, draws unfair parallels between the harms of firearms and tobacco, causes negative economic repercussions on the market, misconstrues the role of the judiciary, and displaces individual responsibility for crime.


Tort actions against firearms manufacturers for non-defective products usually involve a few main elements: a manufacturer, an assailant, a victim, and sometimes a retailer. Plaintiffs' attorneys assume that the manufacturers are negligent because they produced a non-defective product that caused harm. Plaintiffs' attorneys also ignore an assailant's responsibility and sue manufacturers, who are a much more remote cause to the final injury, in part because manufacturers have deeper pockets than assailants. Retailers are targeted on the argument that but for their negligence in the sale, the shooting not have occurred. These arguments have a conceptually weak basis in tort law.

A. Tort Theory and Cases

Tort suits against gun manufacturers for non-defective products entail the misuse of legal standards and erroneous assumptions. Because this article deals only with non-defective products, it will omit "non-defective" for the sake of in further discussion.

1. Traditional Tort Theory

Tort theory assumes that responsibility for injury is proved if the plaintiff can establish that the defendant has breached a duty and was the cause of the injury. A manufacturer, by placing a product in the stream of commerce, assumes a "special duty" to the customer, and in view of the assumption if that duty, the consumer is reasonable in believing that the product is safe for the purpose for which it was designed and manufactured. The special duty is presumed to be the manufacturer's because it, unlike the consuming public, has the ability to control the risks inherent in the product.

There are two generally recognized theories of strict liability. One is based on an activity that is "abnormally dangerous." The second involves a defective product that is unreasonably dangerous. Using the second theory, the courts generally determine the potential harm of the unreasonably dangerous product by using one of the tests: the consumer expectations test or the risk-benefit test.(1)

Sections 519 and 520 of the Restatement (Second) of Torts provide an excellent definition of liability from an abnormally dangerous activity:

(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has taken care to prevent such harm.

(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.

The Restatement lists six factors by which to determine if an activity is abnormally dangerous:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes. …

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