The New GUN WEEK, July 20, 2000
Page 4

Guest Editorial

Court Finds Gunmakers Not Responsible for Wrongdoing

by Ralph 0. Sherman

The lawsuits brought by cities and crime victims against
gun manufacturers offer the courts an opportunity to show
that common sense still exists in the judicial branch. The
Connecticut Appeals Court now has that opportunity in the
lawsuit by the city of Bridgeport against handgun
manufacturers. As the justices consider the Bridgeport case,
one decision they are likely to review is a recent federal
court ruling in a lawsuit in Michigan.
The Michigan case, Davis v. McCourt, was brought on behalf
of the estate of a young man who was shot dead by an
acquaintance. The shooter, McCourt, took a loaded
semi-automatic rifle, removed the magazine (the ammunition
holder), and emptied the magazine of ammunition. He then
reinserted the magazine in the gun, pointed it at the victim
?trying to scare him,? and pulled the trigger.
As with any semi-automatic firearm, the gun had the
potential to retain one round of ammunition, ready to be
fired, even though the magazine had been removed and
emptied. In this case, when McCourt pulled the trigger, the
remaining round was discharged.
McCourt was arrested and convicted of involuntary
manslaughter. He was then sued for civil damages to
compensate for the consequence of his actions.

Liability Claim

But because McCourt lacked the ?deep pocket? that was
needed for the lawsuit to be profitable, the manufacturer
was also sued. The claim: The manufacturer was liable for
designing a ?defective product? and for failing to warn that
the gun might still contain a live round after the magazine
was removed. (Apparently the plaintiff?s attorney considered
it irrelevant that owner?s manuals and safety courses have
warned about this scenario for decades.)
The manufacturer asked the trial court to dismiss the
claim. When the trial court granted the request, the
plaintiff took the case to the United States Court of
Appeals, 6th Circuit. What that court said in its decision,
issued May 31, is a model of common sense, legal principle,
and morality ? in as much as it would be immoral to hold A
responsible for B?s wrongdoing.
Essential to the court?s decision was the question of
whether a gun is a ?simple? product. Under Michigan law, a
manufacturer owes no duty to warn of an “open and obvious
danger? that is associated with the use of a ?simple?
product. Ruling that a gun is a ?simple? product, the court
cited case law that holds that ?the normal and intended
operation of the gun does not place the user in a dangerous
position.?
The gun manufacturer ?intended that users fire the gun not
at themselves or innocent individuals, but at sporting
targets, animals, or in the event of self-defense, at other
humans,? the court noted. ?Just as a manufacturer cannot
produce a hammer that will not mash, or a stove that will
not burn, it is also true that a manufacturer cannot produce
a gun that will not fire a bullet when it is, in fact,
loaded and when the firing mechanism deliberately engaged.?

Danger Issue

The court also cited case law to support the assertion that
a gun presents an open and obvious danger. When the user
deliberately picked up the gun, inserted his finger in the
trigger guard, pointed the gun at the victim, and pulled the
trigger, the gun performed in a way that is ?reasonably
expected,? according to a cited decision. (In that other
decision, the court held that a ?defective product? was not
the problem. ?Only a defective person would fail to realize
the obvious dangers associated with these actions,? the
court said
The appeals court deemed it irrelevant whether anyone knew
that the gun was loaded when the trigger was pulled. ?Any
gun safety course teaches and any reasonable gun user should
know that no gun, loaded or unloaded, should ever be pointed
at another human, much less pointed and mockingly fired,?
the court said. Bottom line: The law does not require a
manufacturer to design safety features to protect users from
the dangers of a simple product when the dangers are
?obvious and inherent in the product?s utility.?
In light of these observations, the court dismissed the
part of the lawsuit that was directed at the manufacturer.
The the cause of the tragedy was McCourt?s deliberate
actions, the court noted.
But anyone with a little common sense would know that
already.

Ralph D. Sherman is an attorney in West Hartford, CT, and
the chairman of Gunsafe, a membership organization to
preserve the Second Amendment and the right of self-defense.
This commentary was first published as an op-ed in The
Hartford Courant, June 26, 2000.