December 16, 2012 at 8:35 PM by Dr. Drang
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?