11 Mile Hill Road, Newtown, Connecticut 06470-2359
Telephone: (203) 426-1320 Fax: (203) 426-3592
August 30, 2002
Dear Honorable Members of the California State Senate
OPPOSITION TO SB 682
The Sporting Arms and Ammunition Manufacturers’ Institute, Inc.
(“SAAMI”)1 strongly opposes SB 682 because the repeal of Civil Code §1714.4 will
result in firearm manufacturers being held to a higher standard under the law than
any other manufacturer of legal, non-defective products.
At the time he introduced SB 682, Senator Perata said, “We don’t want a lower
standard [or] a higher standard [for firearms manufacturers], we want the same
standard that any other manufacturer of any other legal product must face.” (Reuters,
August 14, 2001). SAAMI agrees – and that is precisely why Civil Code § 1714.4 was
adopted and why SB 682 should be rejected.
In an August 22, 2002 letter to the Chief Clerk of the Assembly, Senator Perata said that
it is NOT the legislative intent of SB 682 to “open manufacturers and sellers of firearms and
ammunition to actions based on intentional misuse of firearms and ammunition by others and
other frivolous type lawsuits.” (See Senator Perata letter to Chief Clerk of the Assembly dated
August 22, 2002). But, Senator Perata’s statements cannot be reconciled with a repeal of Civil
Code § 1714.4 because repealing the statute will lead to a flood of exactly the kind of suits he
says he is not in favor of. Clearly, Senator Perata is ignorant of both the reasons why Civil Code §
1714.4 was adopted and the consequences of repealing it.
1
SAAMI is a non-profit trade association of the nation’s leading
ammunition. Since its formation in 1926 at the request of the
actively engaged in the development and promulgation of product
SAAMI publishes more than 700 voluntary standards and is an
American National Standards Institute (ANSI).
manufacturers of sporting firearms and
federal government, SAAMI has been
standards for firearms and ammunition.
accredited standards developer for the
Honorable Members of the California State Senate
August 30, 2002
Page 2 of 5
Q: WHY WAS CIVIL CODE § 1714.4 ENACTED?
A: TO “STOP AT BIRTH” THE NOTION THAT MANUFACTURERS
AND DEALERS ARE LIABLE IN PRODUCTS LIABILITY TO VICTIMS OF
HANDGUN USAGE. Merrill v. Navegar, Inc., 26 Cal.4th 465, 482 (2001).
Civil Code § 1714.4 pertains only to firearms and ammunition manufacturers
NOT because it was intended to provide special protection or immunity to one industry
but in direct response to a series of lawsuits against a specific industry.
Civil Code § 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. The same argument was
made in Merrill v. Navegar, Inc. - the plaintiffs argued that the firearm should not be
legal to sell to the general public. As the California Court of Appeals noted in Whitfield
v. Heckler & Koch, 98 Cal. Rptr.2d 820 (Ct. App., 2000) (review granted), “[w]hile this
may be a cogent argument to make to the legislature for purposes of a debate on gun
control legislation, it does not present a viable legal standard….We are not prepared to
embrace a theory which would turn courts and juries into arbiters of which products are
or are not ‘appropriate’ to manufacture and sell in this country.” Whitfield, 98 Cal.
Rptr.2d at 828. California has already enacted legislation prohibiting so-called “Saturday
night specials” and “assault weapons.”
The California Supreme Court in its decision (5-1) in Merrill v. Navegar, Inc.
explained why Civil Code § 1714.4 was enacted:
1.
To protect manufacturers and sellers of firearms from
being held liable in tort for selling or furnishing a
firearm that was used to cause an injury or death;
2.
To preclude courts from using products liability theories to
hold firearm manufacturers and dealers civilly liable to victims
of firearms usage;
3.
To prevent courts from extending products liability laws to
hold a supplier of a firearm liable in tort to persons injured by
use of the weapon; and
4.
To “stop at birth” the notion that manufacturers and dealers
are liable in products liability to victims of handgun usage.
Honorable Members of the California State Senate
August 30, 2002
Page 3 of 5
Merrill v. Navegar, Inc., 26 Cal.4th 465, 482 (2001).
If Civil Code § 1714.4 is repealed, California courts will be flooded with exactly the
kinds of frivolous cases the law was intended to “stop at birth.” California courts will be flooded
by lawsuits that seek to hold firearm manufacturers liable to victims of firearms usage; courts will
not be prevented from extending products liability laws to hold a supplier of a firearm liable in
tort to persons injured by use of the weapon – exactly what anti-gun interest groups supporting
SB 682 want to see happen; firearm manufacturers will not be protected against suits seeking to
hold them liable in tort for selling a legal, non-defective product that was used by a criminal to
cause an injury or death.
Q: DOES CIVIL CODE § 1714.4 PROVIDE FIREARM
MANUFACTURERS WITH SPECIAL IMMUNITY OR PROTECTION
AGAINST LAWSUITS?
A: NO. Contrary to the rhetoric of anti-gun interest groups and politicians, Civil
Code § 1714.4 does NOT provide firearms manufacturers with any immunity or special
protection against lawsuits, either product liability claims or other recognized tort law
claims. The statute, by expressly stating that it is “declaratory of existing law,”
simply codifies the common law. (Code 1714.4(d)).
In his August 22, 2002 letter, Senator Perata argues that in order for a manufacturer to be
liable “a design defect” must be shown to have caused the injury. That argument is a red-herring.
Civil Code § 1714.4 has always allowed an injured plaintiff to sue a firearm
manufacturer for defects in the way a firearm was designed or manufactured. The law,
however, recognizes that some products, for example knifes and firearms, must by their
very nature be dangerous in order to function. The mere fact of injury does not entitle an
injured person to recover from the manufacturer. See, DeRosa v. Remington Arms Co.,
Inc., 509 F. Supp. 762, 769 (E.D.N.Y., 1981) (Weinstein, J.), See also, Restatement
(Third) of Torts: Product Liability §2, cm. d (1997). Whether a defect exists is related to
the product’s condition, not its intrinsic function. Before a firearm can be said to be
defective there must be something wrong with the product – there must in fact be a
defect. See, Note, Handguns and Product Liability, 97 Harv. L. Rev. 1912, 1915 (1984).
Courts throughout the United States 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. See, e.g., Whitfield v. Heckler & Koch, 98 Cal. Rptr.2d
820 (Ct. App., 2000) (review granted); McCarthy v. Olin Corp., 119 F. 3d 148 (2d. Cir.
1997); Forni v. Ferguson, 232 A.D.2d 176 (1st Dept., 1996); Leslie v. United States, No.
98-6027, slip op. (3d Cir. 1999), aff'g Leslie v. United States, 986 F. Supp. 900 (D. NJ.
1997); Casillas v. Auto-Ordnance Corp., No. C 95-3601 FMS, 1996 WL 276830 (N.D.
Cal. May 17, 1996). Manufacturers of lawful products are not responsible under product
Honorable Members of the California State Senate
August 30, 2002
Page 4 of 5
liability law for the injury caused by the criminal misuse of their non-defective products.
See Moore v. R.G. Industries, Inc., 789 F.2d 1326 (9th Cir., 1986). Every appellate court
in the United States that has addressed this issue has so concluded.
We are not aware of any decision which places weapons
manufacturers in a legal vacuum or relieves them of their duty to
manufacture products which are as safe as technology permits. No
known or imagined safety device can prevent a determined
criminal from using a gun for illicit purposes… particularly where
the weapon was purchased legally.
Whitfield, at 828
Q: WHAT TYPE OF LAWSUIT DOES CIVIL CODE § 1714.4 PREVENT?
A: IT ONLY BARS THE USE OF THE “RISK/UTILITY” TEST IN A
DESIGN DEFECT CLAIM. The statute prevents product liability lawsuits in which a
plaintiff alleges that a firearm is defective in design because “the benefits of the product
do not outweigh the risk of injury by its potential to cause serious injury, damage or death
when discharged.” Why? Because, as the statute very clear states, “The potential of a
firearm … to cause serious injury, damage, or death does not make the product defective
in design.” (Civil Code § 1714.4(b)(1)). In order for the “risk/benefit” test to apply,
there must be a “defect” in the product and the fact that a firearm has the potential to
cause injury does NOT make it defective. The statute is, therefore, “declaratory of
existing law.”
What this means is that a plaintiff cannot say a firearm is defectively designed, or
in product liability parlance “unreasonably dangerous,” simply because when discharged
it has the potential to cause injury or death. Firearms are designed to fire bullets and are
obviously inherently dangerous.
Q: DOES CODE § 1714.4 PREVENT INJURED PARTIES FROM SUING
FIREARMS MANUFACTURERS?
A: ABSOLUTELY NOT. Firearms manufacturers, like all other product
manufacturers, can be sued and always could.
The statute clearly states, “This section shall not affect a products liability cause
of action based upon the improper selection of design alternatives,” (Code § 1714.4(c)).
This is known in the law as a “feasible alternative design” case. A product can be found
to be defective if it can be proved that there was an alternative feasible way to design the
product with less harmful consequences, i.e., the absence of a safety device made the
product defective.
Honorable Members of the California State Senate
August 30, 2002
Page 5 of 5
It has always been and continues to be possible to sue firearms manufacturers
under traditional product liability and other recognized tort law claims like (1) design
defect claims under the “consumer expectation” test; (2) feasible alternative design defect
claims under the “risk/utility” test; (3) feasible alternative design defect claims under
“consumer expectation” test, (4) manufacturing defect claims; (5) failure to adequately
warn; and (4) negligent entrustment (i.e., providing a firearm to a crazed or intoxicated
person or a minor). See generally, Merrill v. Navegar, Inc., supra.
Code § 1714.4 is as important for what claims it preserves – that’s why it doesn’t
provide any immunity or special protection to firearms manufacturers and is merely
declaratory of existing law. The court in the Merrill decision explains in great detail how
§1714.4 was drafted to specifically allow for injured parties to sue firearms
manufacturers.
CONCLUSION
SAAMI urges you to reject SB 682. Repealing Civil Code § 1714.4 will result in
California courts being flooded with the kinds of cases the statute was intended to prevent
- lawsuits that seek to hold firearm manufacturers responsible for criminal shootings and therefore will result in firearm manufacturers being held to a higher legal standard
than other manufacturers of legal, non-defective products.
If Senator Perata believes what he says, then SB 682 should be rejected.
Respectfully Submitted,
Lawrence G. Keane
General Counsel