Why shouldnt the gun industry be liable for damage done by its products, just like anybody else?

[TomCADem]

Here is noted progressive legal scholar, and UC Berkeley Law Dean, Erwin Chereminsky on gun manufacturer immunity:

http://www.sacbee.com/opinion/california-forum/article178170691.html

It is time to stop giving the gun industry special protections that are not accorded to other businesses. In 2005, Congress passed the Protection of Lawful Commerce in Arms Act which prevents gun companies from being sued by the victims of gun violence.

The NRA got it right when it called this “the most significant piece of pro-gun legislation in twenty years.” No other industry enjoys this special treatment.

The massacre in Las Vegas occurred because gun companies make semi-automatic weapons that are easily converted into automatic weapons that can kill large numbers of people in a short amount of time. Gun manufacturers take automatic military weapons like the M-16 and modify them into legal, semi-automatic weapons, like the AR-15.

They can be turned back into automatic weapons, through bump stocks or other techniques that are described on many websites. Ammunition magazines with large capacity are manufactured that serve no purpose for hunting or sport.

[Wwcd]

1. Because the sole purpose of their product is to kill.

Nothing else.

[BigmanPigman]

2. We should start suing them as a public health and safety issue

like airbags in cars that don't open up. If a gun causes any harm to someone, sue the govt and gun manufacturers and NRA. Can we do that? Are there anywhere out there who know the answer?

[BoneyardDem]

21. Didn't Ikea get sued for dressers that tipped over?

they worked fine as a dresser...until they became a killing machine. Guns are no different

[BigmanPigman]

33. There is a diff according to the GOP

and gun rights supporters...IKEA doesn't have the 2 amend attached to it. Fuck them!

[Kajun Gal]

3. Weren't the cigarette companies held liable for lung cancer? Good idea for sure.

[hack89]

9. They were sued for lying and manipulating nicotine levels

if they had been honest then they would not have lost.

[Hoyt]

4. Gun manufacturers could install safety devices, limit magazine size, etc. But they dont,

Last edited Mon Feb 19, 2018, 10:16 PM - Edit history (1)

preferring to cater to their sick customers. That seems to make then liable.

And gun profiteers back NRA and other lobbyists who help keep their products on the street killing, wounding, intimidating people. They should be held liable.

[TomCADem]

5. Also, Like Opioid Manufacturers, They Are Enjoying Record Profits...

...as they engage in PR campaigns designed to encourage people to stockpile guns. "Obama is going to take away your guns!" Yet, perhaps even folks on this board will start clamoring to protect opioid makers from lawsuits.

https://www.nbcnewyork.com/news/local/NYC-Opioids-Heroin-Epidemic-Big-Pharma-Suit-470722263.html

New York City filed a $500 million lawsuit Tuesday against prescription opioid manufacturers and distributors, seeking to hold them accountable for their alleged part in the city's drug epidemic.

The lawsuit aims to recover expenses the city will incur in combating the crisis. In 2016, more than 1,000 people in New York City died of an opioid overdose, according to official data — the highest number on record.

“More New Yorkers have died from opioid overdoses than car crashes and homicides combined in recent years. 'Big Pharma' helped to fuel this epidemic by deceptively peddling these dangerous drugs and hooking millions of Americans in exchange for profit,” Mayor Bill de Blasio said in a statement.

The lawsuit alleges the opioid epidemic was caused by manufacturers’ marketing and by distributors sending prescription painkillers into New York City. That in turn placed a burden on the city for increased substance use treatment services, ambulatory services, emergency department services, inpatient hospital services, medical examiner costs, criminal justice costs and law enforcement costs.

[Hoyt]

6. Exactly. There are plenty of grounds to sue them, beyond product defects. That's why gun profiteers

paid for immunity from such suits. Deplorable.

[krispos42]

40. "Obama is going to take away your guns!"

I find it interesting you mention that for the following reason:

You note it's a fear tactic, which implies that it wasn't really going to ever happen but gun-rights people were ginning it up to drive domestic political participation. Which means that you're making fun of gun-rights people for taking you seriously when you knew nothing would happen. Which means... the gun-control people are driving up gun sales.

Either you really thought Obama was going to get to pass some serious gun-control legislation, in which case political opposition is expected, or gun-control legislation is just something used to get Democrats to the polls but doesn't really have a chance of passing. Yet you are surprised when gun-rights people take you seriously.

[Jim Lane]

10. Then pass a law mandating such features.

As with an auto manufacturer who makes a car that lacks legally mandated safety devices, a gun manufacturer could be held liable for injuries or deaths that occur because the product didn't meet the legal standards.

If you look at posts on DU, however, you'll see that that's not the goal. The goal is to hold the gun manufacturer liable for every death or injury that involves the use of one of its products, and thereby to drive them all out of business, and thereby to achieve (through unelected judges and juries) a prohibition on guns that can't be achieved democratically, through the people's elected representatives.

[Hoyt]

11. Car manufacturers have been sued for not doing things that improve safety.

[TomCADem]

13. It Is Legal To Sue. This is Why Gun Makers Asked for Immunity

Normally, if you a manufacturer puts a dangerous product in the stream of commerce, they can be sued so they can pay the costs of such damages. As a result of damages, the manufacturer will take steps to improve safety.

[Jim Lane]

14. Your statement of products liability law is not accurate.

To be fair, no tweet-sized statement could be accurate. I've litigated products cases (mostly for injured victims but once for a manufacturer of machinery) and it is my view that what you've written is so oversimplified as to be uninformative.

Without my giving you a complete treatise on products liability -- and there are entire books on the subject -- I invite you to consider the example of automobiles, referred to in other posts in this thread. An automobile is a dangerous product. (Proof: Thousands of people are killed every year by automobiles.) All this invective about the PLCAA doesn't change the fundamental point that a manufacturer's liability is basically the same, whether the product is guns or automobiles. The manufacturer can be held liable for a defect in the design or manufacture of the product if the defect causes death or injury. The manufacturer cannot be held liable if the death or injury occurs because someone else negligently or intentionally uses the product in a way that causes the death or injury.

One of the Nazis in Charlottesville used his car to murder Heather Heyer. Should the manufacturer of the car be held liable?

[TomCADem]

15. I Thought Tort Law Is Often Understoood...

...tortas a system for achieving an efficient allocation of resources to safety. For example, Richard Posner has written that "most accidental injuries are intentional in the sense that the injurer knew that he could have reduced the probability of the accident by taking additional precautions."" According to this analysis, we could eliminate all automobile accidents simply by not driving; automobile accidents are one of the conscious costs we accept as a price of driving."

So, why disrupt the operation of the market by creating an absolute immunity for gun manufacturers? It is not like they are on the verge of bankruptcy. To the contrary, the sale of guns has grown and they have been making record profits. So, let them internalize some of the costs to society of promoting the sale of guns.

[Jim Lane]

19. You're incorrectly assuming that the law creates "an absolute immunity for gun manufacturers"

It doesn't.

You quote Richard Posner. He and other devotees of the free market do indeed see markets as all-important, and the law merely as their servant. That view is comparatively recent in the millennia-long evolution of the law.

That right-wing perspective is too limited. For example, requiring automobile manufacturers to "internalize some of the costs to society of promoting the sale of [automobiles]" (what you advocate as to guns) would arguably promote market efficiency, but it is not the law. Manufacturers of automobiles or of guns have no absolute immunity and can be held liable for design or manufacturing defects, but cannot be held liable for someone else's misuse (even foreseeable misuse) of their products. Imposing liability on the manufacturer for every death or injury involving the product is considered unfair. The correct solution is not to abuse the tort system, but to enact sensible gun control legislation.

[kcr]

17. If all manufacturers liability are the same, then why do gun corporations get special protection?

You were quick to point out how inaccurate the post you responded to was, then fail to explain your point entirely. I don't even think you accurately explained why that post was inaccurate. I think you're just playing the same games that gun nuts do. Cars are dangerous? Wow, who knew? That's an awfully familiar argument. Hey, did you know that people slip and fall in bathtubs, too? But when a car manufacturer knows that a cosmetic feature makes it easier for their product to be used to commit mass murder and could easily be changed in their design but they choose not to because they sell more that way? Then you've got yourself an equivalent analogy.

[Jim Lane]

18. My point is that gun makers DON'T get special protection --

Last edited Thu Feb 22, 2018, 01:19 PM - Edit history (1)

at least, not in the sense that's being incorrectly assumed by many DUers.

The general statement: A corporation (call it Manufacturer) produces a Product which a person (call him or her Tortfeasor) uses in such a way as to injure another person (Victim). It's not a case where Product had a defect (an auto ignition that occasionally turns itself on, or a gun that can be fired even with the safety engaged). Instead, the injury occurred solely because of Tortfeasor's negligence or intent to harm Victim.

On those facts, should Manufacturer be liable to Victim because Product played a role in the injury?

Under current law, the answer to that question is No, regardless of whether Product was a gun or an automobile (or, for that matter, a bathtub).

Some people here want to answer that question Yes if Product was a gun but No for all (or almost all) other Products. People advocating those policies are the ones seeking special treatment of gun manufacturers. The PLCAA was enacted because people with that point of view were bringing numerous lawsuits, trying to use the courts to accomplish what they could not accomplish through legislation.

That doesn't mean the PLCAA is perfect. It's hardly news -- and hardly unique to the gun issue -- that, when a statute is enacted to address one situation, lawyers facing different situations set to work and try to find loopholes, ambiguities, questionable interpretations, unintended consequences, etc. It's quite possible that the PLCAA should be tightened up to deal with some such cases. The hypothetical you raise, about a cosmetic change that improves safety at little or no cost, might be an example. The basic point of PLCAA, however, is sound: Pending the enactment of sensible gun control legislation (which I favor), gun manufacturers should not be singled out for liability just because someone misuses one of their products.

You write, "You were quick to point out how inaccurate the post you responded to was, then fail to explain your point entirely." You're quite correct. I couldn't explain my point entirely and said so: "Without my giving you a complete treatise on products liability -- and there are entire books on the subject...." If you want a more thorough exposition of the law of products liability, the New York State Bar Association is offering a two-volume treatise with a total of 1,175 pages. Of course, that's just as to New York law. To analyze legislation with nationwide impact, I'd need to do further reading to take account of differences among the states. Then I'd have to try to summarize my findings in a DU-post-sized message. Sorry, but I'll have to pass.

[hardluck]

34. I want my 50 state survey!

(channeling my inner law partner)

[Jim Lane]

37. Oh, so you don't care about gun violence victims in the District of Columbia? (n/t)

[BoneyardDem]

22. "One of the Nazis in Charlottesville used his car to murder Heather Heyer......

Should the manufacturer of the car be held liable?"

You clearly know much about law, and I readily admit I'm not an attorney...but how does your example work in a situation the Ikea Dresser issue? Ikea has been successfully sued for a perfectly well working dresser that tipped onto a child that was climbing up the dresser. The family failed to supervise their own child, the dresser was working perfectly to specs, yet a misuse of the product (just like the misuse of guns) lead to a successful law suit. Should Ikea be held responsible because someone failed to use their product as prescribed?

[Jim Lane]

25. A manufacturer -- of cars, or guns, or furniture -- can be held liable for design defects

I'm not familiar with the specifics of the Ikea case, but from what I found in a quick look it's consistent with the general principle that I stated in #14:

The manufacturer can be held liable for a defect in the design or manufacture of the product if the defect causes death or injury. The manufacturer cannot be held liable if the death or injury occurs because someone else negligently or intentionally uses the product in a way that causes the death or injury.

It appears from this article that the plaintiffs' theory against Ikea was design defect:

The families brought a wrongful death lawsuit against the company, alleging that Ikea "had consistently refused to meet voluntary national safety standards" and "refused to re-design its furniture products to be more stable and tip-resistant," according to the family's lawyers.

My understanding of the PLCAA is that a gun manufacturer, like Ikea, is still liable for injury caused by a design defect. For example, suppose there's a gun that can go off accidentally even if the safety is engaged, because the safety wasn't properly designed so as to fulfill its function of preventing such discharges. A person injured as a result of this defect would still have a valid cause of action against the manufacturer. The PLCAA does not confer a sweeping immunity that would protect the manufacturer.

Here's the problem: If the gun is designed in such a way that the user, by disengaging the safety and then pulling the trigger, can cause a bullet to be fired that kills someone, that's not a design defect. That's what the damn thing is supposed to do. And if it's an AR-15 or the like, and instead of firing "a bullet" it fires a murderous stream, well, that's also not a design defect. That's inherent in the nature of the product, just as it's inherent in the nature of automobiles that someone can intentionally or negligently drive one into a crowd and cause death or injury.

Design defect depends in part on technology. For example, there are industrial machines that can cause injury to the workers using them. There are some such injuries that, at one time, would not have left the manufacturer liable. If a worker sticks his hand into the machine while it's running, and is injured, there was nothing the manufacturer could do about it. More recently, however, engineers have developed interlock mechanisms. The area where the worker has to reach in to clear a jam can be protected by a door. The door can't be opened if the machine is on, and the machine can't be turned back on unless the door is closed. If the state of the art, as of the time the machine was manufactured, was that such interlock mechanisms were available, then the manufacturer can be held liable for not incorporating one, even if a worker injured by an older machine would have no case.

For guns, there's simply no mechanism the manufacturer can install that will prevent a robber from using a gun to hold up a liquor store but still allow the liquor store clerk to use his own gun in self-defense.

Most of the gun control we need can't come from the courts. Congress should just ban things like AR-15s.

[Fred Sanders]

26. NRA is marketing guns for kids. The Cricket gun. If said child kills self or others with said

gun...civil suit seems appropriate just as if Ford promoted Kars for Kids and the kid killed someone.

The logic applies to all manufactured products...except guns. Then again all logic fails when it comes to the gun lovers.

[Jim Lane]

27. The answer is legislated standards, not litigation

In your Kars for Kids hypothetical, the obvious answer would be that there are laws setting a minimum age for driving. Those laws are made by the people's elected representatives, not a random selection of jurors. The legislators decide what the requirements should be, and those requirements are then published so everyone can know what the applicable law is. There are also minimum-age requirements for buying tobacco.

I'm no gun lover so I don't know the law here. If a 10-year-old walks into a gun shop, plunks down his cash, and asks for an AR-15, is it legal for the shop to sell it to him? If the answer is Yes, then that's the problem, and the law should be changed. If the answer is No, but the shop illegally sells the gun anyway, then, as I understand the PLCAA, the shop could be held liable for violating the law.

Even if the purchaser is an adult, the PLCAA allows the seller to be held liable for negligent entrustment. In one case, a woman's family warned the gun shop that she was mentally ill and shouldn't be sold a gun. The shop sold her the gun anyway and she murdered her father with it. The Missouri Supreme Court held, correctly in my view, that the PLCAA did not shield the gun shop from liability. (Source: "MISSOURI GUN SHOP AGREES TO PAY $2.2 MILLION TO SETTLE WRONGFUL-DEATH LAWSUIT")

[Fred Sanders]

28. Needing a license is a red herring. The point is the NRA is manufacturing

and advertising a product that a child should not have, a product designed to kill and maim...not so for a car. If the kid kills someone with a product designed to kill the manufacturer selling and advertising that product would NOT be shielded, except for the NRA Shield Law.

A WMD in the hands of kids is encouraging public danger, and if you encourage public danger you should have your ass sued off.

The answer is legislation that does not shield the manufacturer from the same legal principles everyone else has to live under.

What is so special about gun factories versus any other factory?

[Jim Lane]

29. You're simply repeating your false premise.

Please take note of the Missouri case. If a gun is sold to someone who, to the seller's knowledge, should not have one, then the seller can be held liable for negligent entrustment. You can call the PLCAA "the NRA Shield Law" but your invective doesn't change the result -- the seller was not shielded. After the PLCAA defense was defeated, the gun seller paid $2.2 million to settle the case.

You seem to be assuming that a gun shop could sell an AR-15 to a 10-year-old and face no liability. Your assumption seems to be inconsistent with the way courts have actually interpreted and applied the PLCAA.

[Fred Sanders]

30. "Gun shop" not in my post. Gun manufacturer of kids guns is...anything on that?

[Jim Lane]

32. This seems to me to relate to selling, not manufacturing.

I don't understand the concept of "manufacturer of kids' guns" in the first place. A 10-year-old is physically capable of using an AR-15, right? And an adult could use a Cricket or some other gun that's marketed to kids? There's no gun that's inherently a kids' gun.

That's why the issue seems to arise from the selling, not the manufacture.

I think I've read that there are some laws about deceptive design of non-firearms. That is, it's illegal to manufacture a water pistol that looks so much a real Glock that someone could pull off a robbery with it, because it's a credible threat. If the NRA or anyone else is going in the other direction -- a real gun with cutesy features that make it especially attractive to kids -- then the answer would be to make that illegal, if the objectionable features of the gun can be specified.

Really, though, it would be more practical to address the problem at the point of sale. Ban the sale to children of AR-15s, Crickets, and any other kind of working gun. Nothing in the PLCAA would prevent that approach.

[hardluck]

35. Here's an example

of a design defect class action case involving firearms, specifically, a defective trigger:

http://remingtonfirearmsclassactionsettlement.com/

As you state, such cases are not preempted by the PLCAA.

[Calista241]

31. Magazines are generally made by 3rd parties.

Yes, the manufacturer does sell branded magazines, but most gun owners will purchase cheaper, generic 3rd party gear.

[aikoaiko]

7. because their products aren't killing or injuring people....

...except when there are defects and people can sue under those circumstances.

[TomCADem]

41. Seems Like Another Neoliberal Protect Gun Makers Talking Point...

...I am sure the same argument is made with respect to opiods and Pintos where the maker promotes an inherently dangerous product, but then says that they should not be liable for user mistakes.

[aka-chmeee]

8. Shouldn't General Motors be liable if one of their Trucks is intentionally driven into a crowd? nt

[EX500rider]

12. Was something wrong with your other thread about the exact same thing?

https://www.democraticunderground.com/?com=view_post&forum=1002&pid=10259153

[X_Digger]

38. Didn't get the purity he wanted, perhaps? n/t

[USALiberal]

16. The same reason I cant sue Coors if I get killed by a drunk driver. Nt

[TomCADem]

20. Is there a federal law banning such lawsuits?

This is what doesn’t make sense. The creative examples people try to use do not involve passing a federal law banning such suits.

[NCTraveler]

24. That is not accurate.

Please add citation for your claim.

[NCTraveler]

23. Because it would limit the number of guns available.

That is the only reason. Gun availability. Elected public officials protecting them in this special manner have blood on their hands.

[TheSmarterDog]

36. Guns have more rights than people.

And they're more important than human rights, too.

[krispos42]

39. They do, and they are.

But they're not liable for OTHER PEOPLE misusing their products.

Look, if a gun breaks and hurts or kills somebody due to a manufacturing or design defect, then yeah, they can and do get sued. There are periodic recalls of both guns and ammunition for this kind of thing, class action lawsuits, out of court settlements, the whole shebang.

This one is by Ruger, a big American manufacturer.
"Gun manufacturer issues massive recall saying pistols could unintentionally discharge"
https://www.eastidahonews.com/2017/06/gun-manufacturer-issues-massive-recall-saying-pistols-could-unintentionally-discharge/

Here's one by Walther, a big German manufacturer.
"Important Safety Recall – MARCH 2017 Walther CCP Pistols"
http://www.waltherarms.com/recall/#

And I recall somebody (Winchester?) recalling a bunch of .22 ammo because they had accidentally put a double charge of gunpowder in the cartridges. They ran ads in the major gun magazines and on their website.