After approximately ten minutes of shooting, Ferri turned his gun on himself. When the smoke cleared, eight people were dead and six were wounded. The dead included not only employees of Pettit & Martin, but also several people who happened to be near the law firm during Ferri's assault.
Outraged by this senseless violence, the victims and their family members turned to the court system for relief. Recognizing that current gun-control laws do little to prevent this type of attack, the plaintiffs sued the gun manufacturers directly, hoping to restrict the availability of guns by making them an unprofitable product.
In seeking to hold Navegar Inc., the manufacturer of the TEC–9s, liable, the plaintiffs did not claim that the weapons themselves had malfunctioned or that the sales were illegal. Instead, the lawsuit alleged that the gun manufacturer was liable under a theory of common-law negligence.
In a decision issued last month, Merrill v. Navegar Inc., 26 Cal. 4th 465 (2001), the California Supreme Court answered the question of whether Navegar could be held liable for the plaintiffs' injuries. Because of a statute, California Civil Code section 1714.4, which immunizes gun manufacturers from most product-liability suits, the court rejected the plaintiffs' attempt to hold Navegar liable, in a 5–1 decision.
Section 1714.4 provides that gun-related injuries are not caused by the gun but by the person who uses it: "[I]njuries or damages resulting from the discharge of a firearm or ammunition are not proximately caused by its potential to cause serious injury, damage, or death, but are proximately caused by the actual discharge of the product."
As a consequence of this principle, section 1714.4 further states that "[i]n a products liability action, no firearm or ammunition shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury." As a result of section 1714.4, courts are precluded from balancing the risks created by a weapon against any benefit that the weapon may have to society in deciding whether the weapon is defective.
Accordingly, short of claims that the gun or ammunition malfunctioned, section 1714.4 prohibits product-liability claims against gun manufacturers.
In Merrill, the plaintiffs attempted to avoid section 1714.4 by using a negligence theory. In this common-law negligence claim, the plaintiffs alleged that Navegar was negligent in distributing the TEC–9 to the general public because it knew or should have known that the TEC–9 would be particularly attractive to criminals and particularly suited for mass killings.
The court rejected the plaintiffs' negligence theory, holding that section 1714.4 applies to product-liability claims sounding in negligence as well as strict liability. In support of this holding, the court cited numerous product-liability actions based on theories of negligent design, manufacture and warnings and noted that principles of negligence have been incorporated into certain strict-liability claims.
The prime example of the overlap between negligence and strict-liability principles offered by the court is the risk-benefit test introduced in Barker v. Lull Engineering Co., 20 Cal. 3d 413 (1978). The risk-benefit test for strict-liability design-defect claims incorporates negligence principles by requiring courts to balance the product's utility and the availability of other designs with the risks of the present design in order to determine liability.
Finding that product-liability actions encompass claims based on negligence, the court then struck down the plaintiffs' negligent-distribution theory. Since the plaintiffs' claim alleged that Navegar breached its duty of care by selling weapons with certain characteristics, and since product liability is premised on the notion that the manufacturer's liability should stem from its distribution of goods to the public, the court held that the plaintiffs' negligent-distribution claim really was a different way of asserting a product-liability defect claim.
Citing from the plaintiffs' brief, which highlighted evidence of the TEC–9's use in criminal activity and argued that the gun had no legitimate use, the court concluded that the plaintiffs' negligent-distribution claim really invited the court to engage in the type of risk-benefit analysis that section 1714.4 bars.
As the court observed, a ruling on the plaintiffs' claim would require it to consider the dangers posed by the gun and balance them against the beneficial value of the gun to society. Relying on the wording of the statute and its legislative history, the court declined the plaintiffs' invitation.
As the court noted, section 1714.4 was enacted in response to the growing number of lawsuits aiming to hold gun manufacturers and suppliers liable for gun-related injuries. The legislative history for section 1714.4 shows that the purpose of the statute was to preclude plaintiffs from using product liability to accomplish this goal.
By making the statute applicable to "products liability" actions — as opposed to "strict liability" actions — and by incorporating the risk-benefit test into the wording of the statute, the court found that the Legislature intended to preclude courts from engaging in any policy determinations regarding the usefulness of guns to our society.
Given the legislative intent and wording of the statute, the court found that the statute must apply to negligence claims in order to be effective. If the plaintiffs were able to avoid section 1714.4's ban simply by raising a claim based on negligence, section 1714.4 would be rendered useless.
In addition, although the plaintiffs specifically declined to assert a negligent-advertising theory, the court considered Navegar's marketing. The court acknowledged that Navegar had created ads that seemingly highlighted the weapon's utility in crimes — its "natural lubicity [sic] to increase bullet velocities" and "excellent resistance to fingerprints, sweat, rust, petroleum distillates of all types, gun solvents, gun cleaners, and all powder residues."
Navegar had other marketing pieces of equally dubious societal value, such as ads that compared the "TEC–9 [to] a low cost Uzi-type assault pistol" and a New York Times article in which the company's marketing director stated that reports of the TEC–9's use in sensational murders and accounts of its condemnation by law-enforcement officials only helped sales.
While the idea that Navegar purposefully targeted criminals with their marketing would be disturbing if true, the court found that there was no evidence that any of Navegar's advertisements caused Ferri to travel to Nevada to purchase the TEC–9s. Thus, the outcome of the lawsuit would not have changed if the plaintiffs had raised a negligent-advertising claim.
Although the Merrill court declined to hold Navegar liable for injuries sustained from use of its unflawed products, the court did not foreclose all claims against gun manufacturers. As the Merrill court noted, gun manufacturers still can be held liable under the traditional theories of liability so long as the plaintiff can prove that the weapon actually was defective in design, manufacture or warnings without resort to a risk-benefit analysis.
For example, section 1714.4(c) leaves open product-liability causes of action based on improper selection of design alternatives. The court also left open claims based on negligent entrustment or negligent furnishing to a minor or someone who is obviously intoxicated.
Because section 1714.4 currently prevents plaintiffs from arguing that guns, or certain types of guns, are just too dangerous to be sold, the Merrill court explained that any sweeping change to gun-control laws or gun-manufacturer liability will need to come from the Legislature.
The dissent, which vigorously disputed the majority's holding that section 1714.4 barred negligent-distribution claims and precluded all risk-benefit balancing by courts, agreed and noted that silver lining in the majority's "narrow" holding was that it left this area ripe for review by the Legislature.
Whether the Legislature will reconsider the propriety of section 1714.4 and revise or repeal it, however, remains to be seen. For now, lawsuits premised on the notion that guns cause harm and do not benefit society will not get far.