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Dealers on trial: a spotlight on litigation in the shooting industry.

In many of the product liability lawsuits concerning firearms, the "buyer expectation" factor plays an important role. The factor is what the average consumer of reasonable intelligence and experience expects the firearm to do under ordinary usage. The key words are average and reasonable.

In some jurisdictions, the definition of defect, in strict liability litigation, provides for reasonable consumer expectations as not only a factor in cases but also a basis for a plaintiff's case.

For example, would an average person expect a safe, reliable firearm to fire without the trigger being pulled? No. The average person expects a safety or safety system to "keep it from going off."

In addition, what does the seller reasonably expect a buyer to do with the firearm? This is often a pivotal factor in breach-of-warranty cases.

One buyer sued a manufacturer after his .45 automatic discharged into his knee. He had put the gun in a half-cock position believing this was safer than full-cock. He argued that it was not reasonable nor foreseeable that the firearm would fire under ordinary use in the half-cock safety position.

He contended that the firearm should have been designed with a complete carrying safety since it was common to rely on that position as a safety. Since there was evidence that this is what consumers expected, it was held relevant to the "breach of an implied warranty of fitness."

Most customers don't understand the mechanics involved in a safety system and nor do they care. Trust is placed upon designers and manufacturers.

It is often argued that a customer should never substitute this reliance for proper handling practices. However, the courts have a hard time agreeing, particularly in cases of serious injury. This sometimes happens even in cases where the firearm is misused.

How a customer expects a product to perform plays a prominent role in defining whether a breach of warranty has occurred. Interestingly, French law has long recognized that consumers must logically rely upon the sellers' expertise when buying a gun.

In this country, with the state-of-warranty law and prevailing attitudes in gun litigation, consumers definitely have the edge. This must be considered by gun-makers during the design and manufacturing phases of building a firearm.

It is also important for dealers to fully explain the proper operating procedures of a firearm at the time of sale.
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Author:Wenner, Joan
Publication:Shooting Industry
Date:Mar 1, 1995
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