Top New York court finds gun makers not liable.

Handgun manufacturers do not owe victims of gun violence a duty to guard against the firms' negligent marketing of their products, New York's highest court has ruled unanimously. (Hamilton v. Beretta U.S.A. Corp., No. 36, 2001 WL 429247 (N.Y. Apr. 26, 2001).)

The ruling is a setback to the plaintiffs in this case, but the court "left the door open to future cases against the gun industry," said Dennis Henigan, director of the Legal Action Project for the Washington, D.C.-based Center to Prevent Handgun Violence. Other pending firearms suits are based on a stronger evidentiary record than was presented here, he explained. The ruling was also limited to a decision on the plaintiffs' negligent-marketing theory and did not address cases based on a products liability theory. The center filed an amicus brief in the New York case.

In January 1995, relatives of people killed or hurt by handguns sued 49 firearms manufacturers in federal court, alleging negligent marketing, design defect, ultrahazardous activity, and fraud. The U.S. District Court for the Eastern District of New York dismissed all but the negligent marketing claim. Eventually, 7 plaintiffs went to trial against 25 defendants.

After a four-week trial, a jury returned a verdict against 15 defendants, finding they failed to use reasonable care in the distribution of their guns. Liability was apportioned among the defendants according to their share of the national handgun market. A federal appeals court certified questions of New York law to the state's highest court.

General foreseeability of possible harm does not by itself create a duty to others, the state high court said. An injured party must show that a defendant owed not merely a general duty to society, but also a specific duty to him or her.

Courts generally hesitate to impose a duty on a defendant to control the acts of third parties, the court noted. In gun violence cases, the pool of possible plaintiffs is large--potentially any of the thousands of victims of gun violence. The connection between the gun makers, the criminal wrongdoers, and the plaintiffs is remote, "running through several links in a chain consisting of at least the manufacturer, the federally licensed distributor or wholesaler, and the first retailer."

Also, the plaintiffs failed to show that "a change in marketing techniques would likely have prevented their injuries," the court said. "Indeed, plaintiffs did not present any evidence tending to show to what degree their risk of injury was enhanced by the presence of negligently marketed and distributed guns, as opposed to the risk presented by all guns in society."

Cases involving distribution of hazardous materials do not support imposing a duty of care in marketing handguns, the court decided, as those cases involved products that were defective or lacked adequate warnings. "Here, defendants' products are concededly not defective--if anything, the problem is that they work too well," the court said.

Henigan said that the New York decision does not mean the end of the effort to hold gun manufacturers liable for their actions.

"The plaintiffs failed to marshal sufficient evidence connecting the industry's acts with the particular shootings at issue in the case," he said. "We're quite confident we can make that connection" in the cases being brought by cities around the country against gun makers.

Also, Henigan observed, the industry had sought a flat ruling that if a product is legal and works properly, the manufacturer is not liable for any harm caused. "The court was not willing to go that far," he said. "There is a duty of care that goes beyond mere compliance with the law."