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Atty. Ralph D. Sherman130 West Main Street • New Britain, Connecticut 06052 tel. (860) 229-0213 • fax (860) 229-0235 • e-mail atty@ralphdsherman.com Press archive Decision in gun lawsuit shows common sense isn't dead "Op-ed" article published in The Hartford Courant June 26, 2000by Ralph D. 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. 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, Sixth 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 is deliberately engaged." 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 true cause of the tragedy was McCourt’s deliberate actions, the court noted. But anyone with a little common sense knew that already.
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