If the weapon appears to have malfunctioned in some way, then recovery may be possible under a products liability theory. In determining whether there was a malfunction, the courts will look at whether the weapon operated as expected or intended. Thus, while there have been many attempts to argue that guns are defective because they are dangerous, the fact that a weapon injures or kills when fired has not traditionally been considered a defect in and of itself.

Products liability cases involving weapons have been successful where the injury is alleged to have occurred due to a true malfunction of the weapon or due to inadequate warnings relating to an unexpectedly dangerous quality of the weapon. For example, a gun with a firing mechanism that is significantly more sensitive than other similar guns might require a warning as to that quality. That highly sensitive firing mechanism might also be considered a design defect. A gun manufactured with an inadequate safety could be both defective in design, if the inadequacy was by design, and defective in manufacture, if the inadequately designed safety was also manufactured with a flaw.

Firearms and Negligence Cases

If the injury or death occurred through the use of a weapon that was not defective, recovery may still be possible under a negligence theory. To succeed in a negligence claim the injured person must show that the defendant owed a duty to the injured person, that the duty was breached, and that the breach of the duty was the cause of the injury.

When determining whether the injured person was owed a duty the court will look at several factors including the foreseeability of harm to the injured person and the degree of certainty that the plaintiff (the person bringing the claim) would suffer injury. Courts will also look to see how close the connection was between the defendant's (the person sued) conduct and the plaintiff's injury, as well as the moral blame attached to the defendant's conduct. Finally courts look at the case in the a broader context to determine whether there is any general public policy of preventing future harm, or any burden to the defendant and/or consequences to the community if the burden of a duty is imposed. A court may even look at the availability and cost of insurance in the event a duty is imposed.