. . . These Cases Make Bad Law

We’re all still grieving for the families of the Littleton shooting victims and still shocked by the Conyers incident. But already, debate has begun in earnest over broader social questions such as: “Why did it happen?” “Who is to blame?” and “How can we prevent similar tragedies in the future?”

There is already talk of a new round of lawsuits by municipalities and others against firearms and video game manufacturers, trying to punish “bad” industries and deter teen violence. As a society, however, we need to consider carefully the social, economic and moral consequences of any decision to impose legal liability on the manufacturers of lawful products, when those products are misused in ways that result in unintended and tragic consequences. The public debate should also be informed by an understanding of the significant legal issues such lawsuits raise. Let me mention just a few.

A fundamental principle of the American legal system is that liability cannot be imposed absent a legal duty, or obligation, running from the defendant to the plaintiff. In determining whether such a duty exists, courts examine the nature of the relationship between the parties, the product and the injury, and ask whether there is a sufficient nexus to allow the plaintiff to proceed with a lawsuit. In the past, liability could not be imposed without a direct buyer-seller relationship between the injured person and a product manufacturer. Over time, most courts have abandoned this concept in favor of more liberal standards. Courts now speak in terms of whether it was “reasonably foreseeable” that the plaintiff would come into contact with the product and that the use of the product would result in the particular harm for which recovery is sought.

In recent lawsuits against the tobacco companies by state attorneys general and labor union health funds seeking to recover the costs of treating persons suffering from alleged “smoking related diseases,” the defendants argued that the relationship between the plaintiffs and the damages claimed, on the one hand, and the tobacco companies and their products on the other, was too remote to allow the lawsuits to proceed. It’s quite likely that similar issues would be implicated in any lawsuits against firearms or video game manufacturers.

Also, under our current laws, liability cannot be imposed unless the plaintiff can prove that the product in question is defective and that the defect renders the product unreasonably dangerous. The mere fact that a product, if used improperly, can cause harm or the fact that the normal use of a product carries with it certain inherent risks is not enough to prove that the product is defective. If that were true, anyone cut by a knife, burned by a match or injured in a fall from a ladder would have a good legal claim.

Related to the issue of duty is that of proximate or legal causation. To prevail in any products liability lawsuit, a plaintiff must prove that a defect in the product was a substantial factor harming the plaintiff. Ordinarily, the intervening, intentional misconduct of people such as Eric Harris and Dylan Klebold is considered an unforeseeable superseding cause sufficient to absolve the manufacturer from liability. This rule would provide a strong defense in any litigation involving guns or video games.

Manufacturers are also entitled to raise various statutory and constitutional defenses to liability. In the case of tobacco--a heavily regulated product--certain liability claims have been rejected on the grounds that they were preempted by federal statutes governing the advertising, promotion and sale of cigarettes. Ten years ago, a lawsuit against the producers of a violent film, “The Warriors,” was dismissed by the Massachusett Supreme Judicial Court on 1st Amendment freedom of speech grounds. The court in that case held that, unless the content of a film is directed toward inciting imminent lawless action and is likely to incite such action, it is constitutionally protected.

Video game manufacturers would certainly assert a substantial 1st Amendment defense, and it is likely that the 2nd Amendment’s guarantee of the right of the public to bear arms would be implicated in any lawsuit against firearms manufacturers.

In the aftermath of a calamity like the Littleton shootings, the very human and understandable desire to assign blame can lead to public outcries to change the law in an attempt to expand the liability of product manufacturers. The temptation to do so should be resisted.

There is an old adage in the legal profession that should guide any discussions about expanding liability in response to this or any tragedy: “Bad cases make bad law.”

New rules adopted today to punish unpopular defendants, be they tobacco companies, firearms companies or video games manufacturers, will surely be used tomorrow to expand the liability of other, more “benign” targets, such as automobile manufacturers, television and film producers, pharmaceutical and biotechnology companies. The ultimate costs of such expanded liability, of course, are borne by all of us.