Reasonably foreseeable misuse

Whenever a mass shooting occurs, I wonder how gun manufacturers and importers have managed stay clear of our civil court system. And whether they’ll continue to do so.

Now, I realize that gun manufacturers do get sued when their products are suspected of failing—when a gun misfires or its barrel explodes, for example. But those are situations where the gun doesn’t behave the way it’s supposed to. Tragically, in mass shootings the guns tend to behave exactly as they’re supposed to.

You might think that’s the reason gun manufacturers don’t get sued, that since the gun is simply doing the job it’s designed for, there’s no basis for suing its maker. That reasoning, however, doesn’t always apply to other products. It’s not uncommon, for example, for users to get their hands caught and mangled in industrial machinery, and for the manufacturer of that machinery to then be sued for making and selling a defective product. The machines in these cases aren’t malfunctioning—their function simply isn’t compatible with hands being put in the wrong place.

The standard of care expected of manufacturers is that their products are to remain safe not only when used properly, but also when subjected to “reasonably foreseeable misuse,” a term of art in the world of torts and product liability law. The term “reasonably foreseeable” is, of course, subject to interpretation, and that interpretation changes with time. When my grandfather worked in a machine shop, belts and gearing ran unguarded—it was “reasonable” to expect workers to keep their hands away from those areas. I remember, though, that when Grandpa was retired and his former coworkers came around to visit, most of them were missing a finger or two. Nowadays there’s general agreement that pinch points and other hazards should be covered with some sort of guard, and the arguments over reasonable foreseeability have moved to a new level. Is it reasonably foreseeable that a guard will be removed? If so, what is the responsibility of the manufacturer to either prevent removal or to ensure that the machine cannot be operated without the guard in place? These questions, which would never have been considered in my grandfather’s time, are debated every day in our courts and in the committees and bureaus that establish safety standards.

This evolution in our standards for safety and responsibility isn’t confined to machinery. Up until the 90s, tobacco companies were generally successful in defending themselves against lawsuits filed by smokers, but that turned around quickly. There’s a concern today that college football is at risk from future lawsuits over concussions.

The same thing could happen with guns. There’s no question that mass shootings are a misuse of the product, but after so many, how can anyone argue that they aren’t reasonably foreseeable?


7 Responses to “Reasonably foreseeable misuse”

  1. Jason says:

    There’s a great Law and Order episode about something similar. Gun manufacturer was successfully sued for a product that had “fingerprint resistant finish” and some other features (forget what they were, but I think things like extended clip and fast switching of clips) that were essentially explicitly marketed toward criminal uses. Additionally, they sold those guns specifically at gun shows and not in shops and did some other shifty things to motivate sales.

    The details are unimportant, but the message was they were responsible for knowingly making and marketing a weapon to assist criminal use of weapons in “reasonably forseeable” circumstances.

  2. Keith says:

    While I really do sympathize with your argument, I can’t help but see similar arguments against automobile manufacturers if a car is driven into a crowd or against big oil companies when gasoline is used for arson or against …

  3. Dr. Drang says:

    I’m not making an argument, Keith. While I do believe in stricter gun control, I don’t think it should be achieved through the back door of the civil courts.

    That its product can be used to kill people is not an argument I would expect to prevail in a lawsuit against a gun manufacturer. That’s too broad and, as you point out, too easy to apply to any other product. If gun manufacturers start losing lawsuits brought by shooting victims and their families, it’ll be because they failed to take some action to keep guns out of the hands of the mentally ill. What action? If there were an easy answer to that, the litigation would already be successful.

  4. Wes Campaigne says:

    In most of your examples, there’s a presumption that the misuse is accidental or unintentional. No amount of safety features is going to stop you from losing a finger if you’re intentionally feeding your hand to the saw. I suppose such intentional misuse isn’t considered reasonable.

    So how do you deal with a situation where intentional misuse is reasonably foreseeable?

    When there’s no feasible way to make that form of misuse difficult or impossible, it seems like the only remaining answer is: you regulate access to the product, entrusting it only to people who (reasonably foreseeably) won’t misuse it. Thus we get drug prescriptions, driver’s licenses, etc…

    And yet people object to stricter gun control?

  5. Jess says:

    Many of the recent “shall issue permit” decisions have explicitly referenced the second amendment. That is, courts in the USA seem to be crediting the “maximal” 2A interpretation with respect to citizen ownership of most firearms. IANAL, but I’m given to understand that current Constitutional understandings override unprecedented interpretations of tort law.

  6. leftover says:

    Bushmaster Firearms International, maker of the .223 used in the Newtown, CT tragedy, was sued, along with Bull’s Eye Shooter Supply, by some victims and families of victims of the 2002 Beltway sniper attacks.

    Bushmaster and Bull’s Eye settled out of court for $2.5 million.

  7. Dr. Drang says:

    An out-of-court settlement in which the amount is public? The plaintiffs must have insisted on that. Thanks for the link, leftover.