BILL ANALYSIS
SB 682
Page 1
Date of Hearing: May 14, 2002
ASSEMBLY COMMITTEE ON JUDICIARY
Ellen Corbett, Chair
SB 682 (Perata) - As Amended: May 6, 2002
SENATE VOTE : 22-11 (Not relevant.)
SUBJECT : FIREARMS: LIABILITY FOR MANUFACTURE OR SALE
KEY ISSUE : SHOULD THE CODE SECTION PROVIDING STATUTORY IMMUNITY
FOR MANUFACTURERS OF FIREARMS BE REPEALED, PERMITTING THE COURTS
TO PLAY THEIR CUSTOMARY ROLE IN DETERMINING THE MANUFACTURERS'
LIABILITY FOR THE HARM CAUSED BY THEIR PRODUCTS, IN ACCORDANCE
WITH GENERALLY APPLICABLE PRINCIPLES OF LAW?
SYNOPSIS
This bill repeals the code section providing limited statutory
protection from liability for manufacturers and sellers of
firearms and ammunition. The California Supreme Court recently
held, in the case of Merrill v. Navegar , that California's
existing statutory language barred liability for the
manufacturer of the guns used in the infamous 101 California
Street massacre in a suit brought under a theory of common law
negligence. This bill would repeal the statutory provision in
question, and would add to the law a statement clarifying that
persons may be held liable for negligence in the design,
distribution and marketing of firearms and ammunition. As to
all other types of products, and as to firearms as well in most
states, the courts are responsible for deciding when
manufacturers should be held liable for the harm caused by their
products. In line with this usual judicial role, this bill
would leave to the courts the decision as to whether to hold
firearm manufacturers liable, applying the principles of law
that apply as to manufacturers of other products.
SUMMARY : Repeals the existing code provision granting limited
statutory immunity to manufacturers and sellers of firearms and
ammunition. Specifically, this bill :
1)Provides that the design, distribution or marketing of
firearms and ammunition is not exempt from the duty to use
ordinary care and skill that is required under Code of Civil
Procedure section 1714.
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2)Repeals Code of Civil Procedure section 1714.4, which provides
that 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 posed by its potential to cause
serious injury, damage, or death when discharged.
EXISTING LAW :
1)Provides that everyone is responsible, not only for the result
of his willful acts, but also for an injury to another caused
by the want of ordinary care or skill in the management of his
property or person. (Civil Code section 1714.)
2)Provides that in 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 posed by its potential to cause serious injury, damage
or death when discharged. (Civil Code section 1714.4(a).)
3)Provides that injuries 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.
(Civil Code section 1714.4(b)(2).)
4)Provides that the section cited in paragraphs 2 and 3 above
shall not affect a products liability cause of action based
upon the improper selection of design alternatives, and that
the section is declaratory of existing law. (Civil Code
section 1714.4(c) and (d).)
5)Bars, under the Assault Weapons Control Act of 1989 (AWCA),
the manufacture, distribution, or sale of specified assault
weapons in California. (Penal Code sections 12275.5 et seq .)
FISCAL EFFECT : The bill as currently in print is keyed
non-fiscal.
COMMENTS : This bill addresses one of the more complex, and
most controversial, areas of public policy in California: the
manufacture and sale of firearms to the general public.
The Navegar Case To Which This Bill Responds . On July 3, 1993,
Gian Luigi Ferri entered the law offices of Pettit and Martin in
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the high rise office building at 101 California Street in San
Francisco. Armed with two semiautomatic assault weapons and a
semiautomatic pistol, he opened fire on persons in the offices
and hallways of three floors, killing eight people and wounding
six others before he fatally shot himself. Survivors of the
massacre subsequently sued Navegar, the manufacturer of the two
assault weapons (two TEC-9 semiautomatic assault pistols).
Plaintiffs asserted a common law negligence cause of action
against Navegar for its decision to market the TEC-9 to the
general public, a weapon with no legitimate sporting or
self-defense purpose, when the company knew or should have known
that it would attract purchasers likely to misuse the gun. Last
summer, the California Supreme Court, in Merrill v. Navegar
(2001) 26 Cal.4th 465, held that Civil Code section 1714.4
barred such liability against Navegar based upon its
interpretation of Civil Code section 1714.4.
SB 682 is a direct response to the Supreme Court's decision in
Navegar . The author introduced the bill to address the decision
and to reiterate the state's commitment to allow the victims of
gun violence in California the opportunity to hold gun
manufacturers accountable for their choices. Supporters of the
bill believe that gun manufacturers should be liable in
accordance with otherwise applicable law regarding liability -
as are the manufacturers of other products, including other
inherently dangerous products.
Theories of Product Liability . California has long permitted
recovery against the producer of a dangerous or defective
product for injuries or damages resulting from the use of the
product under numerous legal theories. These theories fall into
three categories: breach of warranty, negligence, or strict
liability in tort. With regard to suits brought by the victims
of gun violence, negligence and strict liability are the
relevant legal theories. (Breach of warranty applies when the
buyer of a defective product sues the manufacturer alleging
breach of an express or implied warranty.)
Negligence Theories . Negligence is the breach of a legal duty
of care toward another. The general duty of care owed to others
is defined by statute in California. Section 1714(a) states:
Everyone is responsible, not only for the result of his
willful acts, but also for an injury occasioned to another
by his want of ordinary care or skill in the management of
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this property or person, except so far as the latter has,
willfully or by want of ordinary care, brought the injury
upon himself.
This section has been held to be the foundation of California
negligence law. ( Rowland v. Christian (1968) 69 Cal.2d 108.) A
manufacturer may be sued for negligence as to the manufacture of
a product, the design of the product, for negligent entrustment,
or, under certain circumstances, for the manner in which the
product is marketed. (There may also be claims for negligent
failure to warn regarding a dangerous propensity of a product, a
category of negligence not relevant here.) Negligence as to the
manufacture of a product is perhaps the most straightforward of
these types of claims. If a gun manufacturer failed to use due
care in the manufacture of its guns, such that the guns had a
high likelihood of failing to perform as intended, then that
manufacturer would be liable for damages or injuries caused
thereby. For example, if something with regard to the
manufacturing process created guns that had a high likelihood of
exploding when people attempted to fire them (using them as
intended), the manufacturer could be held liable for the damages
resulting from such explosions.
A manufacturer may also be held liable for the failure to
exercise reasonable care in designing a product so that it may
be used safely. Here, a balancing test applies, as a design
decision made for safety reasons may compromise other features
of the product. Determining what constitutes reasonable care
involves balancing the likelihood of harm to be expected of a
product of given design and the gravity of harm to be expected
against the burden of the precaution that might be taken to
avoid the harm. ( Pike v. Frank G. Hough Co. (1970) 2 Cal.3rd
465.) Thus, for example, a gun manufacturer might be held
liable for injuries caused due to guns discharging when dropped,
if safety features that would generally prevent such occurrences
were readily available, did not compromise other features of the
gun, and yet were not used in making the gun in question.
A theory of negligent entrustment applies when a potentially
harmful product is sold to a consumer group that lacks the
capacity to exercise ordinary care. Firearm manufacturers and
dealers have a duty not to sell weapons to individuals whom they
know or should know would use the weapons negligently. Thus a
dealer who sold a gun to someone who told the dealer he intended
to use it for criminal purposes would be liable for the harm
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caused by the buyer's misuse. However, negligent entrustment
has not been held to impose liability for the sale of firearms
to the general public, as the general public (and legal gun
buyers in particular) are not considered to lack the capacity to
exercise ordinary care. ( See Linton v. Smith & Wesson (Ill.
App. Ct. 1984) 469 N.E.2d 339.)
Under certain circumstances, a manufacturer may also be held
liable for negligent decisions made with regard to the marketing
of a product. For example, if a product generally safe for use
would foreseeably cause undue danger when used by children, the
manufacturer could be held liable if it utilized a marketing
scheme aimed at children. ( See 50 Cal. Jur. 3d (Rev) Part 2,
Products Liability, section 13.) Traditionally, defendants have
been successful in asserting a defense of misuse to claims of
negligent marketing when injuries have resulted from criminal
use of a gun. ( See , e.g ., Bennet v. Cincinnati Checker Cab Co.
(1973, E.D. Kentucky) 353 F. Supp. 1206.) In such cases the
courts have typically held that there is no duty of a
manufacturer of a nondefective product to anticipate the harm
possible through criminal use of the product. In other cases,
plaintiffs have argued that marketing firearms to the general
public was negligent in light of the lethal nature of the
product. The courts have generally rejected such claims,
holding that firearm manufacturers have no duty to refrain from
marketing lawful products.
Recent Negligent Marketing of Firearm Cases . In a few recent
cases, courts have allowed plaintiffs to proceed on a theory of
negligent marketing where plaintiffs have asserted that the
manufacturers' particular marketing practices evidenced a lack
of due care. For example, in Hamilton v. Accu-Tek (1996) 935 F.
Supp. 1307, the District Court for the Eastern District of New
York denied summary judgment on plaintiffs' negligent marketing
claim, finding sufficient evidence for plaintiffs to proceed on
the theory that defendant manufacturers had not exercised
sufficient supervision of distributors and dealers to lessen the
likelihood that their guns would enter the underground market.
Judgment was later entered against certain defendants in that
case upon a jury finding of negligence proximately causing
plaintiffs' injuries; however, the New York State Court of
Appeals later found that the defendants did not, under New York
State Law, owe plaintiffs a duty of care to exercise reasonable
care in the marketing and distribution of handguns. ( Hamilton
v. Beretta (2001) 96 N.Y. 2d 222.) Thus there will likely be
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further litigation where plaintiffs allege not that the guns in
question should not be sold at all, but that the specific
marketing choices of the manufacturers are negligent, showing a
lack of due care to ensure that the guns are kept out of the
hands of criminals.
Strict Liability Theories . Strict liability is the theory used
in certain kinds of cases where the courts impose liability
without a showing of negligence. Two types of strict liability
have been argued in cases against gun manufacturers by the
victims of gun violence: strict liability for ultrahazardous
activities, and strict product liability.
Most products liability cases are brought on a theory of strict
products liability. Under strict liability, a manufacturer may
be held liable for the harm caused by a defective product
without a showing of negligence. A manufacturer may exercise
the utmost care in the making of its guns, and yet unavoidably
on rare occasion manufacture a defective gun. When that gun
explodes in the hand of the user, the manufacturer may be held
liable, even though it exercised due care.
As with negligence actions, a strict product liability action
may be brought with regard to a defect in manufacture or a
defect in design. Where a defect in design is alleged, the
plaintiff must show that in hindsight the design alternative
chosen was not appropriate (even though the manufacturer may
have exercised due care in making the choice). California law
allows recovery on a strict liability theory of defective design
if the plaintiff can show:
?either (1) that the product has failed to perform as
safely as an ordinary consumer would expect when used in an
intended or reasonably foreseeable manner, or (2) if, in
light of the relevant factors?, the benefits of the
challenged design do not outweigh the risk of danger
inherent in such a design. ( Barker v. Lull (1978) 20 Cal.
3d 413, 418.)
As was noted by the Supreme Court in Navegar , this latter test,
weighing the benefits of a design against the risks it poses, is
quite similar to the type of balancing that would apply in a
negligence action alleging defective design.
Strict liability for ultrahazardous activities (also sometimes
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discussed as strict liability for abnormally dangerous
activities) applies when the activity of the defendant is so
dangerous that it necessarily involves a serious risk of harm to
others even if the utmost care is exercised. The determination
of whether an activity is ultrahazardous is a question of law.
( Luthringer v. Moore (1948) 31 Cal.2d 489.) Plaintiffs in the
Navegar action asserted that Navegar's making the TEC -9
available for sale to the general public was an abnormally
dangerous activity. The Court of Appeal upheld the trial
court's grant of summary judgment to defendants with regard to
this cause of action, offering a succinct explanation that the
danger must be inherent in the activity itself in order for
strict liability to apply under this theory. ( Merrill v.
Navegar (1999) 75 Cal.App. 4th 500, 560.) Shooting a gun might
be held to be an abnormally dangerous activity; making or
selling a gun is not.
A Maryland court has applied strict liability principles to make
manufacturers liable with regard to the manufacture of an entire
class of weapons. In Kelley v. R.G. Industries (1983) 304 Md.
124, the Court of Appeals of Maryland used the risk/utility test
as a starting point for a new theory of liability to find that
the manufacturers of "Saturday Night Specials" could be held
liable for injuries caused by the criminal misuse of these guns.
The court discussed at length the lack of legitimate utility of
these weapons and social policies in favor of imposing liability
on the manufacturers. However, this decision was later
legislatively overturned.
Merrill v. Navegar : In Merrill v. Navegar , the plaintiffs
asserted several theories of liability. They asserted a theory
of common law negligence based on Navegar's marketing of the
TEC-9, a gun with no legitimate civilian use and a number of
features attractive to criminals, to the general public, even
though it was foreseeable (and indeed foreseen) that it would
attract purchasers with criminal intent. They further argued
negligence per se (as a matter of law), on the grounds that
Navegar's advertisement of the TEC-9 in California violated the
Assault Weapons Control Act of 1989 (AWCA). Finally, plaintiffs
asserted a cause of action claiming strict liability on the
grounds that the sale of the TEC-9 to the general public was an
abnormally dangerous activity.
The California trial court granted summary judgment for the
defendant on all three causes of action. The trial court read
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plaintiffs' common law negligence claim as asserting that
Navegar had a duty not to make the TEC-9 available for sale to
the general public, and found that the company had no duty not
to manufacture and sell a legal product. (Although sale of the
TEC-9 in California is barred under AWCA, it is legal in other
states. Ferri purchased his guns in Nevada.)
With regard to the negligence per se action, the trial court
found that plaintiffs factual evidence failed to create a
triable issue of fact as to whether the advertising of the TEC-9
in California influenced Ferri to purchase the guns or to
undertake his attack. Thus the court found summary judgment was
appropriate because there was no triable issue of fact with
regard to causation. Finally, as to plaintiffs' strict
liability claim based on defendant's allegedly abnormally
dangerous activity, the court found that as a matter of law, the
manufacture and distribution of a firearm was not inherently
dangerous.
Plaintiffs appealed the trial court's decision as to common law
negligence and ultrahazardous activity. The court of appeal
affirmed the trial court as to ultrahazardous activity. The
court of appeal found, as discussed above, that the manufacture
and sale of guns, as opposed to their use, were not abnormally
dangerous activities. However, the court of appeal reversed the
trial court's decision as to negligence, thereby granting
plaintiffs the right to proceed on this theory. In so holding,
the court stated:
[T]he manufacturer and distributor of a legal and
nondefective firearm may not be found negligent merely
because it manufactured and/or distributed the weapon.
This does not mean, however, that those who manufacture,
market and sell firearms have no duty to use due care to
minimize risks which exceed those necessarily presented by
such commercial activities, which can be accomplished
without unreasonably depriving responsible citizens of the
right to purchase and use firearms. ( Merrill v. Navegar
(1999) 75 Cal.App.4th 500, 524.)
The court of appeal further found that Civil Code section 1714.4
did not apply to the case, relying on its reading of the code
section's legislative history to find that the section was
intended only to bar product liability actions based on design
defect under the risk/benefit theory noted in Barker v. Lull ,
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supra .
Defendant appealed the court of appeal's decision as to
negligence (plaintiffs did not appeal the decision as to
ultrahazardous activity). Thus the only question to reach the
California Supreme Court in Navegar was whether plaintiffs'
common law negligence cause of action was sufficient to survive
a motion for summary judgment. The Supreme Court found that it
was not, and premised its holding on a finding that the
negligence cause of action was barred under section 1714.4.
The Supreme Court based its holding on a different reading of
the plaintiffs' claim than that set forth in the court of
appeals decision. The court of appeal (in reasoning later
shared by Justice Werdegar in her dissenting opinion in Navegar )
saw plaintiffs as asserting not that the TEC-9 was too dangerous
to be sold at all, but that given its design features, it should
have been sold to military or police buyers rather than the
general public. The majority opinion, by contrast, found that
the plaintiffs' claim was basically that the TEC-9's potential
for harm outweighed any possible benefit from availability of
the product. As to the assertions with regard to negligence in
distribution, the Court found that with regard to a product
distributed to the public, this added nothing - thus, according
to the Court majority, the common law negligence claims amounted
to a negligent design defect action in disguise. The Court read
section 1714.4 to bar liability on such a theory both as to
strict liability and negligence.
Even under Navegar , a number of legal theories appear to remain
available to allow recovery against gun manufacturers. Where a
company manufactures a defective gun (e.g. an exploding gun), it
may still be held liable for that manufacturing defect under
either a strict liability or negligence theory. It is clear
that suits based on negligent marketing, like the suit in
Hamilton v. Accu-Tek , supra, would also appear not to be barred
under the Supreme Court's interpretation of section 1714.4
(although these theories present other substantive difficulties
for plaintiffs with regard to proof and causation). Similarly,
negligent entrustment suits remain viable under Navegar .
Navegar probably also leaves open the possibility of design
defect suits alleging that the failure to incorporate a safety
feature unduly increased the risk of accidental harm.
The Meaning of Navegar : Though some theories of liability thus
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appear viable under Navegar , what is clearly not possible under
the holding in Navegar is any suit that relies on a theory of
design defect, alleging that the gun's inherent potential for
harm outweighs its benefits - regardless of whether such a suit
is brought on a negligence or a strict liability theory. Such a
suit, alleging negligence, is now barred under the Supreme
Court's holding in Navegar even if it relies not only on the
dangers of the weapon, but on its sale to the general public.
Thus the Court's reading of section 1714.4 grants broad immunity
to gun manufacturers who create particularly dangerous guns and
market them widely.
The Effect of SB 682 . SB 682 repeals section 1714.4, and places
in section 1714 a statement that the design, distribution and
marketing of firearms and ammunition are not exempt from the
duty to use ordinary care, as otherwise required by that
section. Thus no particular theory of recovery would be
statutorily barred in a suit against a gun manufacturer or
distributor. This would include any actions based on negligence
in any aspect of design, manufacture, or marketing (including a
claim like that asserted by the plaintiffs in Navegar , that the
combination of the weapon's design and the marketing of it
amounted to a negligent choice). These are the same types of
lawsuits that might be brought as to any product causing harm,
including other inherently dangerous products. Theories of
recovery could also include strict liability based on a
risk/utility analysis that a weapon's potential for harm
outweighed any benefit, or a strict liability action based on
the manufacture of a gun as an ultrahazardous activity. These
kinds of actions assert, in essence, that the harm caused by
guns is so great and their benefits so small that their
manufacturers should generally be held strictly liable for
whatever harm they cause. However, as noted below, suits
brought under such theories in other states have rarely met with
success.
No Liability Guarantees With Repeal of 1714.4 . This bill's
repeal of the statutory bar on certain theories of liability
will not, it is important to acknowledge, guarantee their
success in the courts. Most states have no laws barring
liability for gun manufacturers in certain cases; they leave the
decision as to when to impose liability up to the courts.
Nonetheless, plaintiffs have rarely been successful in holding
gun manufacturers liable for gun violence on any of the various
theories asserted. As noted above, only one court was willing
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to step in to impose liability on the grounds that the risks of
a class of guns outweighed its benefits. ( Kelley , supra .) Most
courts have declined to step in to create such liability for a
product the Legislature has decided should remain lawful. Thus
the argument of the California Rifle and Pistol Association in
opposition to SB 682, that the bill will "establish a precedent
allowing manufacturers of inherently dangerous products to be
litigated out of existence," seems exaggerated and misplaced.
The silence of the Legislature as to the liability of
manufacturers of other dangerous products - explosives or
knives, for example - has not put those manufacturers out of
business.
Indeed, other opponents note that in the absence of statute,
courts have generally not held manufacturers of dangerous
products liable under a balancing test approach. California
Manufacturers and Technology Association states:
According to case law developed in California and
throughout the United States prior to the enactment of
Civil Code section 1714.4, manufacturers of products which
were by their nature unavoidably dangerous such as guns or
knives could be sued for negligent design or manufacture
but not under a theory of strict liability which
contemplated the balancing test of social utility vs.
danger.
Similarly, the Sporting Arms and Ammunition Manufacturers'
Institute (SAAMI) points out that courts "have consistently
dismissed product defect claims against firearms and ammunition
manufacturers where the injury was caused by the discharge of a
firearm that functioned as designed and intended because the
firearms in those cases were not defective."
The California courts are therefore unlikely to read the
clarifying language in SB 682 as a green light to put gun
manufacturers out of business. They should, however, feel less
reticent to find merit as to particular claims of negligence
where the decisions of a manufacturer as to the design and
distribution of a weapon show a failure duly to consider the
consequences of those decisions. Holding the manufacturers
liable for harm caused in such cases, and thereby giving them
incentive to take public safety into account in their decisions,
would appear to be absolutely within the traditional purview of
the courts and their appropriate powers.
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ARGUMENTS IN SUPPORT : Supporters argue that it is unfair, and
bad social policy as well, to provide special statutory
protection to the gun industry. The Legal Community Against
Violence states "SB 682 ? would remove the unfair statutory
protection uniquely provided to the gun industry." Los Angeles
County states, "SB 682 helps to clarify that those who design or
market firearms or ammunition owe the public the same duty of
care as manufacturers of other consumer products."
ARGUMENTS IN OPPOSITION : Opponents argue that section 1714.4
was simply codification of case law as it existed at the time of
enactment of the statute, holding that gun manufacturers could
not be held liable under a theory of strict liability, balancing
the social utility of the product against the danger inherent in
its use. Codification was necessary, they state, to stop a
spate of lawsuits attempting to hold gun manufacturers
responsible for the harm caused by gun violence. SAAMI states:
Civil Code Section 1714.4 was enacted in 1983 as a
legislative response to numerous product liability lawsuits
filed against firearms manufacturers by victims of criminal
violence committed with lawfully manufactured,
non-defective firearms. In those cases, victims of
criminal violence committed with inexpensive, small caliber
handguns, sometimes referred to as "Saturday Night
Specials," brought product liability suits alleging that
the products designs were such that the risk of injury by
the potential of the legally manufactured firearm to cause
injury when discharged (it operates exactly as designed and
intended) outweighed the benefits of the product.
Opponents further argue that the court in Navegar reached the
correct result, protecting manufacturers against suits involving
non-defective products. The National Rifle Association argues
that once such suits are allowed, the benefit versus risk
analysis could be used by the courts to allow suit against the
manufacturers of items such as sky diving equipment and skate
boards. It is difficult to see, however, how the repeal of the
statutory protection provided under section 1714.4 could affect
the courts willingness to impose liability on other industries.
Finally, opponents argue that it is bad policy to change this
longstanding provision of law in response to the outcome in one
particular case. The California Rifle and Pistol Association
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states "If the legislature changes the law every time a
plaintiff loses a lawsuit, the effect would not only be chaotic
and disastrous for producers of consumer products but it would
also make irrelevant the judicial branch of government."
REGISTERED SUPPORT / OPPOSITION :
Support
The Brady Campaign
Coalition to Stop Gun Violence
County of Los Angeles
Legal Community Against Violence
Million Mom March
Opposition
California Manufacturers and Technology Association
California Rifle and Pistol Association
National Rifle Association of America
Sporting Arms and Ammunition Manufacturers Institute, Inc.
Analysis Prepared by : Kathy Sher / JUD. / (916) 319-2334