The Volokh Conspiracy

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'Guns and Torts'


I thought I'd pass along this recent Journal of Tort Law article by Berkeley Prof. Stephen Sugarman, a leading tort law scholar. Here's the abstract (some paragraph breaks added):

When Hillary Clinton and Bernie Sanders squabbled during their 2015-16 election campaigns over the federal Protection of Lawful Commerce in Arms Act (PLCCA), 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 PLCCA 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.

In contrast to the hopes and fears of Clinton and Sanders, repealing PLCCA would not likely result in a burst of successful lawsuits, although some might be winners. Perhaps potential and actual tort litigation against this industry is better understood as part of a longer term battle over public opinion and eventual legislative reform.

And here's a passage from the body of the paper:

Like Secretary Clinton, the supporters of the bills put before Congress to repeal PLCAA argue that no other industry enjoys the legal shield that the gun industry does—giving as counter-examples firms such as auto companies, pharmaceutical drug companies and even tobacco companies.

They are right to some extent …. [But] would there be widespread tort liability for gun companies were both PLCAA and state pre-emption laws all repealed?

The central argument I will put forward is that it is not easy to find good examples from other important industries of defendants being held liable for the sorts of cases that gun victim plaintiffs would like to win.

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.

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. 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.