Every year thousands of people are injured and killed by firearms. If you or someone you know has been injured by a firearm, you may wonder what recourse you have. Depending upon the circumstances of the injury, you may have recourse against the manufacturer, seller, distributor, owner or purchaser of the firearm under theories of products liability and/or negligence. Consulting with an experienced products liability attorney will help you understand any claims you may have for injuries caused by a firearm.

Theories of recovery: Is it a gun or a person that hurt you?

When looking at a firearm injury, one of the first questions you may ask yourself, and one that courts will ask, is how did it happen? If the weapon involved was defective, then recovery may be possible under products liability law. If the weapon was not defective, then it is necessary to turn to the laws governing negligence for recovery.

Firearms and Defective Product Cases

A product can be defective in a number of ways. If a product is marketed with inadequate instructions or warnings as to foreseeable risks, it is defective. If a product is manufactured with a flaw, but the design and marketing of the product are fine, it is called a manufacturing defect. If a product is designed in such way that it is foreseeable that injury could result, and if the risk of injury could have been reduced by an alternative design, then a product is said to be defective in its design. When looking at alternative designs, the court will look at the costs associated with the alternative designs, whether the proposed alternative would in fact have reduced the foreseeable risks of harm associated with the product, and whether the failure to use the alternative design made the product unreasonably unsafe at the time it was manufactured. If a product is defective in the way that it is marketed, manufactured, or designed, and someone is injured as a result of that defect, then the manufacturer, distributor and/or seller of the product are usually liable, or responsible for the consequences of the defect.

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.

The level of care or duty owed varies by state. Many states impose a duty to exercise a high degree of care in dealing with firearms. Other states impose a duty of ordinary care, but say that the standard of care is the care ordinarily used when dealing with firearms. In addition, there are federal, state, and local laws, which may impose a duty on the owner, seller or distributor of firearms. Such laws may forbid sales of weapons to certain classes of people, such as felons, minors and incompetents.

Once it is established what, if any, duty was owed, the question becomes whether that duty was breached. If the defendant violated the law, the court will look at whether the victim was in the class of people meant to be protected by the law, and whether the harm done to the victim was the sort of harm the law was designed to prevent. If the law was intended to prevent the type of harm caused to persons such as plaintiff, then the majority of courts will hold that the defendant is "negligent per se" or, negligent as a matter of law. Thus, violation of the law would be conclusive proof of negligence and the only question would be whether the negligence caused the plaintiff 's damages.