Caveat mercatus: let the merchant beware!
Most firearm sellers are woefully uninformed on the subject of liability for negligence for failing to warn or instruct gun buyers -- until they're sued! If you do business under the theory that you're just a "middleman" and that the manufacturer is responsible for providing instruction for the use of their own products, or that the buyer is responsible for his own action when using a firearms, there may be a court date in your future.
When a firearm causes injury during normal use, chances are pretty good it may have been defective. Depending upon the circumstances, the manufacturer, distributor, or retailer may be held responsible to pay money to the injured party. Even if the gun is not faulty in design, materials, or workmanship, the dealer could be held liable for failing to warn of potential risks (such as lack of a positive safety system, for instance) and/or not instructing the buyer in the proper use of the weapon.
GUNS: A SPECIAL PRODUCT CATEGORY
The first point to keep in mind is that today's courts are determined to protect the consumer whenever possible, even if he or she bears some responsibility for the claimed injury.
Guns are deemed "special" in that their use carries a high potential for death or injury. Thus, there is what is called a "duty of care" placed on various parties in the chain of sale. The extent of that duty and to whom it is owed are what lawsuits are made of. That's why it is necessary for you to have at least a basic knowledge of this area of responsibility so that certain pitfalls can be avoided.
Some will argue that since all firearms are potentially dangerous, people know they should be handled and treated accordingly; therefore, there is no need for a warning to explain to the buyer the danger and potential risks for injury if not handled properly.
The law sees differently. Even an experienced shooter can be unfamiliar with a particular model or an unusual safety mechanism and require information. You can count on an injured party's attorney to argue the more serious the potential harm, the greater the seller's duty to take steps to reduce the hazards.
In early firearm negligence cases, "buyer beware" prevailed, but neither that nor an argument that customers themselves are unreasonably careless carries much weight today. Here's an example of the thinking of the courts of the 1990s.
An individual was injured when a revolver discharged accidentally when jarred. The court said a revolver is considered an "inherently dangerous object" with which injury could reasonably result, and held the retailer liable for failing to warn the buyer of potential risks. The reasoning of the court: The average person today is not familiar enough with guns to fully appreciate the potential risks for injury.
Another court held a dealer/seller of a used Model 49 single-shot Ithaca rifle legally responsible for injuries to a buyer when he was injured after it was dropped during handling. The retailer failed to warn the buyer of this potential firing risk.
Not every claim for legal damages will be judged to have merit, especially where no physical injury resulted. Consider this actual case of an inexperienced big game hunter against both the manufacturer and retailer of an expensive Winchester rifle. The claimant cited a lack of proper instruction in the gun's operation and an alleged malfunction at just the wrong time, causing a prized Bengal tiger to be missed. The hunter claimed expenses for a trip to India, three weeks of lost earnings, and the "loss of honor, prestige, and victory involved in killing a Bengal tiger."
No money was collected for these "damages" from either defendant!
LIABILITY IN FIREARM ACCIDENTS
Firearm accidents that result in injury number in the thousands each year. As every dealer knows, they can occur in many different ways ranging from intentional trigger pulls to accidental discharges where the trigger has not even been touched. Misfires, slam fires, discharges by being dropped or bumped, and various safety-system problems can and often do occur.
Legal obligations imposed in "failure to warn or instruct" cases will depend upon the facts involved. (Basically, did the buyer receive any instruction, and if so, was it adequate?) Also the relationship of the parties, such as a dealer and a non-expert buyer, or a dealer and an experienced buyer will be considered.
Some other typical inquiries which an attorney will make:
* What role did the dealer play in the buyer's choice of weapon by the giving of operational advice, instructions, or warnings? Did a seller, for example, mismatch a holster to a firearm and, if so, was this a contributing cause of the accident?
* Was there a failure to give accompanying factory instructions and warnings when the gun was taken out of the display cabinet in an attempt to hurriedly make the sale?
* Was there a recall from a manufacturer that wasn't taken care of?
* Were any malfunctional characteristics adequately communicated to the buyer? Had there been a number of reported accidents and injuries with a particular weapons that the seller knew, or should have known about?
A buyer's "reasonable expectations" are frequently the basis of inadequate instruction lawsuits. Let's use the example of a particular weapon firing without the trigger being pulled. Would the average buyer have expected that result from a supposedly safe and reliable firearm you recommended?
COMMON CASE DEFENSES
A lawsuit involving a total lack of warnings or instruction, or inadequate warnings or instruction from a dealer can many times be successfully defended. For example, if a dealer can show that proper instructions and warnings were given at the time of sale, a plaintiff has to prove they were not adequate for him to comprehend.
If no printed instructions or instructive packaging came with the firearm, the plaintiff is required to prove an adequate warning would have been heeded if it had been given. Thus, how applicable warnings and instructions are presented to a buyer is just as crucial as any printed materials from the manufacturer.
An inadequate warning is in effect no warning in the eyes of the courts. Again, if a dealer can show the information given to the buyer was sufficient under the particular circumstances, the dealer's defense is strengthened.
Other common defenses are that the buyer assumed the risk, or that he was negligent and contributed to his own injury by abusing the weapon or not using it in normal manner. If defenses such as these can be proven to a court or jury's satisfaction, damages may be denied altogether, or at least largely reduced.
TIPS FOR DEALERS
1) Always keep in mind the legal duty placed upon you as seller, warn purchasers of potential risks, and make sure you explain gun operation instructions as clearly as you can. Go over any manufacturer-provided instructions and warnings.
2) Take the time to answer all customer questions.
3) Make sure your staff is knowledgeable in the weapons and ammo you carry and that they impart as much of this to the customer as you do. The time and effort spent could prove very worthwhile in the long run.
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|Title Annotation:||includes related article; firearms marketing|
|Date:||Dec 1, 1992|
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