From Hakim v. Safariland, Inc., decided Monday in an opinion by Judge John Lee, joined by Chief Judge Diane Sykes and Judge Joel Flaum:
David Hakim, a SWAT officer …, accidentally got shot by a colleague during a training exercise. The offending projectile was a "breaching" shotgun round manufactured by Safariland, LLC. Breaching rounds assist law enforcement officers in breaking down doors by disabling hinges and other attachments on doorframes. When used as intended, they disintegrate harmlessly on impact with a metal attachment mechanism. But here, Hakim's fellow officer missed the metal door hinge he was shooting at. The round struck wood, remained live, and ultimately hit Hakim in the spine. Hakim's thirteen-month recovery from his injury required multiple surgeries, and to this day he experiences pain so severe that he has trouble sleeping….
Hakim [sued, claiming] … that Safariland had failed to provide adequate warning that its rounds do not disintegrate if they strike wood instead of metal. A jury … awarded Hakim $7.5 million on his failure-to-warn claim….
The court upheld the verdict, and rejected Safariland's claims that its warnings were adequate:
Safariland acknowledges that none of its product literature specifically warns that breaching rounds that hit wood do not disintegrate. But it argues that this danger was implied in its literature. For instance, Safariland notes that the documents advise shooting the rounds directly at metal attachment mechanisms, rather than attempting to "shear" those mechanisms off a door, to "minimize the risk of the projectile[s] causing serious injury or death." But other statements in the literature seem to indicate that the rounds will disintegrate on contact with wood. For instance, the literature states that breaching rounds "disintegrate[] into a fine powder" upon contact with a "hard surface." A reasonable consumer certainly could interpret the term "hard surface" to include wood.
Adding to the confusion is Safariland's product catalog. The catalog features the breaching rounds on a page labeled "less lethal" and states that the rounds "[d]isintegrate[] on contact" and are "[s]afe to use at close distances." A reasonable jury could interpret these statements as conveying the false impression that the breaching rounds are not particularly harmful, even when misfired….
This is quite consistent with the Protection of Lawful Commerce in Arms Act, which preempts products liability claims "resulting from the criminal or unlawful misuse of a qualified product by the person or a third party." And the PLCAA also expressly excludes lawsuits stemming from "a defect in design or manufacture of the product," when "the discharge of the product was [not] caused by a volitional act that constituted a criminal offense"; that appears to include failure-to-warn claims, see Adames v. Sheahan (Ill. 2009).
And it's quite consistent with the way other products are treated. Here's an excerpt from Torts and Guns, a Journal of Tort Law article by the late leading tort scholar Stephen Sugarman (Berkeley Law) (paywall-free version here):
When Hillary Clinton and Bernie Sanders squabbled during their 2015-16 election campaigns over the federal Protection of Lawful Commerce in Arms Act (PLCAA), they were talking past each other, misleading their listeners, and failing to understand what this statute pre-empting some state tort claims against the gun industry was actually about. Many critics of PLCAA argue that gun makers and sellers should be liable just like those in the auto, pharmaceutical drug, and tobacco industries. Yet, it is very rare for defendants in those industries to be successfully sued in tort for the sort of conduct that gun control advocates would like to hold the gun industry liable….
Take the motor vehicle accident problem. It is well understood that car companies make vehicles intended to be sold to ordinary drivers that are capable of going more than 100 miles per hour even though that is well more than the maximum road speed allowed. Surely the car companies know that some owners regularly drive faster than, say, 75 miles per hour and cause accidents because of their speeding. Product liability law today generally requires product makers to take into account foreseeable product misuse.
Does this make cars involved in very high speed crashes defectively designed? Although there is something appealing about this idea, I don't see successful cases being brought on this theory, and given the record so far I'd be surprised if they were successful.
Next, I imagine that in today's high-tech world motor vehicles could be engineered so that (perhaps absent an emergency) they could not be driven faster than the posted speed limit on the road on which they are currently travelling (and I assume that self-driving cars currently have and will continue to have this feature). Does the failure to include this speed-control function in all of today's new motor vehicles make them defective so that the manufacturer would be liable in tort to victims of drivers whose speeding (at any speed) causes accidents? This too is an appealing idea, but I don't see such cases.
In the same vein, surely by now all new cars could be sold with breathalyzer type testers included (often called ignition interlock devices) so that a driver with too high a breath-alcohol reading would be unable to start the car. These devices are now frequently required of those convicted of "driving under the influence." Does this make all cars without such devices defective products? Including such devices in all vehicles this could go a long way towards preventing drunk driving by those who have yet to be caught and convicted. Again, there is something attractive about this idea, and yet, I don't see successful cases based on this theory.
In short, if failure to preclude expected abuse by drivers, even when feasible, does not currently seem to lead to auto company tort liability, it is difficult to see why it would readily do so for gun makers.
Car companies sell vehicles to car rental companies who in turn rent them to the public. If a would-be renter staggers to the counter obviously drunk or high, it would be irresponsible to turn the keys over to such a customer even if he had a reservation. If a company did that, and the driver then had an accident based on drunk driving, the common law would probably impose liability on the car rental agency for negligent entrustment. [The PLCAA likewise has an exception allowing liability in negligent entrustment cases. -EV]
But if the car rental company knew that a clearly sober customer with a valid license had a recent DUI conviction and provided her with the keys that probably would not be negligent entrustment. So, if that customer then stopped at a bar outside the airport parking lot, drank a few shots and then crashed her car into someone, the car rental company would probably not be liable. [The PLCAA would allow liability if a gun seller knew that a buyer had a criminal conviction that disqualified the buyer from buying the gun under federal or state law. -EV] Moreover, if Hertz learns that certain of its franchise locations are renting cars that are disproportionately in accidents, would Hertz be liable for any future accidents for failure to cease providing that franchise with cars to rent? I don't think so.
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