Product Liability and Guns

Firearms are responsible for thousands of injuries and deaths every year. Unfortunately, holding people accountable for these injuries can be challenging. If a person shoots you, the courts can hold them criminally and civilly liable. But what happens to the company that manufactured, distributed, and sold the firearm?

Depending on the facts of your case, you may have recourse against the manufacturer, seller, distributor, owner, or purchaser of the firearm under product liability. Consulting with an experienced products liability attorney will help you understand what legal claims you may have against these parties.

This section explains how product liability law applies to guns and other firearms. Specifically, it discusses what possible causes of action you may have against the gun manufacturer, wholesaler, distributor, and retailer. Finally, this section describes the damages you can demand from gun makers and firearm manufacturers.

Theories of Recovery: Was It a Gun or a Person That Hurt You?

When deciding whether they have a valid product liability claim, victims of gun violence must consider how their injury happened. Were you using your gun, and something went wrong? Or did someone else shoot you with their firearm?

These are the questions the courts will ask. If the weapon was defective, recovery may be possible under product liability law. Of course, your attorney must prove that the defect caused your injury. If the firearm wasn't defective, you may have to prove that the manufacturer or owner was negligent.

Which approach your lawyer will take in your case depends on several things, such as:

• State laws in your jurisdiction
• Whether the firearm had proper safeguards
• Whether the gun shop where the culprit bought the firearm followed the rules regarding the sale of handguns
• If an individual or entity committed a tort against you
• Whether the retailer conducted the proper background check before selling the gun
• The type of personal injury you suffered

Once they evaluate your case, your personal injury lawyer will let you know your options. If you decide to file suit, you must determine who you wish to pursue and under what legal theory.

Firearms and Defective Product Cases

The manufacturer (or the gun dealer) may be liable for damages if the firearm is defective. Given the inherent dangers associated with guns, the courts may apply strict liability in your case. This means that you can recover damages as long as your attorney proves that the product was, in fact, defective.

A product can be defective in three ways:

1. Marketing defect: A product would have been safe had the manufacturer, distributor, or retailer provided adequate instructions or warnings
2. Manufacturing defect: A product's design and marketing are safe, but the company did not manufacture it correctly
3. Design defect: The defendant designed the product so that it was foreseeable that injury could result, and the company could've reduced the risk of injury with an alternative design

It's important to note that while many people have argued that guns are defective because they are dangerous, this argument doesn't hold water. The fact that guns are inherently dangerous doesn't mean they are defective.

Firearms and Negligence Cases

If the person who hurt you used a defective gun, you may still have a valid claim. However, you would need to prove negligence to recover damages. Specifically, your personal injury attorney must prove the following four things:

• The defendant owed you a duty of care
• They breached that duty
• You suffered an injury
• The defendant's breach directly caused your injuries

The court will consider several factors when determining whether the defendant was negligent. For example, they'll look at whether the harm caused was foreseeable. The court will also look at how certain it was that the plaintiff would suffer injury.

Another factor the judge will consider is the connection between the defendant's conduct and the plaintiff's injury. The court also will look at the moral blame attached to the defendant's conduct.

One final thing the judge will consider is whether there's a public policy for preventing future harm. For example, with the rise in mass shootings in America, courts look harshly on a defendant who injured a large number of people, especially children.

Firearm Liability: Proving Fault in Negligence Cases

The fact that a defendant was negligent doesn't automatically mean the plaintiff will recover damages. You still must show that the defendant's negligence caused your injury.

You must prove two things for causation. First, you must show the defendant's behavior caused your injury. For example, imagine a parent buying their 17-year-old child a gun in violation of federal, state, and local law.

The child ends up injuring a neighbor during target practice in the field behind their house. The neighbor doesn't suffer significant injuries from their gunshot. But while undergoing surgery, the doctor makes a critical error, and the neighbor becomes disabled. Would the child and their parent be negligent?

Technically, the child may only be liable for the initial injuries the gunshot caused. But the plaintiff may argue that had the child not shot them, they wouldn't have needed surgery in the first place. The judge in this example may find the gunshot and surgeon's error were not closely related. So, the neighbor will only receive minor damages.

On the other hand, the judge may find that the gunshot was the proximate cause of the plaintiff's injuries. If so, the child and parent may be liable for damages.

Example of Gun Owner Negligence

Even if a gun isn't defective, you may still have a valid claim. The gun owner may have been negligent in how they used, stored, or cleaned the gun. Some common instances of negligence related to gun injuries include the following:

• Not maintaining firearms in a secure location
• Failing to clean or maintain a firearm properly
• Shooting a human while hunting accidentally
• Discharging a firearm by accident

If any of these things happen to you, you may have a civil claim. These cases are rare, but they are more common among hunters and people who shoot guns recreationally. If someone negligently hurts you with a weapon, you may be able to sue for damages.

Negligent Sales in Firearm Cases

Due to federal laws on gun control (and relevant state laws), gun dealers must follow specific rules when selling firearms. If a firearms dealer sells a gun in violation of the law, they can be liable if the person to whom they sell the gun harms someone. For example, if they sell a firearm before the buyer's background check comes back, they may be negligent.

The same thing is true if a gun shop owner sells a firearm to any of the following:

• An intoxicated person
• Someone who is known to be mentally unstable
• A buyer who indicates that they may misuse the weapon

Recently, at least one court has held that gun manufacturers must exercise reasonable care in the marketing and distribution of their products to guard against the risk of criminal misuse. But this is not the prevailing opinion.

Negligent Entrustment in Firearm Cases

In negligent entrustment cases, a gun owner lets an unstable or unfit person handle, use, or store their gun. That person ends up hurting someone. The plaintiff's lawyer will argue that the defendant was negligent in allowing someone they knew (or had reason to know) was incompetent, inexperienced, or reckless access to the gun.

The actual entrustment happens when the defendant gives the gun to a third party. Entrustment in the case of firearms can mean that the gun owner gives the third-party permission to use their weapon.

If the third party takes the gun and the owner knows they handled it without permission, a defendant can also be liable. The gun theft doesn't relieve the owner of liability if it was reasonably foreseeable.

Courts often combine negligent entrustment with negligent storage. Careless storage is a passive form of negligent entrustment. A person can be liable for negligent storage when they maintain their gun in a place where it's reasonably foreseeable that people can access it. Negligent storage cases often involve a person who leaves their gun within the range of children.

PLCAA and Gun Industry Immunity

In 2005, at the urging of the National Rifle Association, President Bush passed the Protection of Lawful Commerce in Arms Act (PLCAA). This law granted almost blanket civil immunity to gun manufacturers, distributors, and retailers. The rationale behind the law was that the courts should not punish the gun industry for the acts of individual gun owners.

Since Congress passed the law, judges have dismissed almost every civil case filed against members of the gun industry. It wasn't until recently that this changed.

In November 2019, the United States Supreme Court allowed the lawsuits filed by families of the Sandy Hook school shooting victims to move ahead. The Sandy Hook shooting victims eventually secured a settlement in the case.

The Supreme Court's ruling shows that the immunity granted to the gun industry may not be absolute. But your attorney must prove that your case meets the one narrow exception provided for in the PLCAA.

The narrow and only exception to the blanket immunity provided by the PLCAA applies to unlawful activity on the part of members of the gun industry. Your attorney must demonstrate the defendant violated one of the many gun industry rules before your case can proceed.

Getting Legal Help From an Attorney

If you're shot and injured, you may have a right to recover damages. It all depends on the facts surrounding your case. If the gun was defective, you may have a product liability claim against the gun's manufacturer.

If your case involves negligence, you may have to sue a gunshop owner or an individual. The same is true if a loved one is shot and killed. You may be able to file a wrongful death lawsuit against the gun owner.

Before you take any legal action, you should talk to a personal injury attorney. Not only do they know the law, they also know how to prove civil liability.

When you meet with your attorney, they'll explain your options. They'll also help determine whether you should pursue a product liability claim or a personal injury lawsuit.