Kelley v. R.G. Industries, Inc.

This case comes to us by an Order of Certification from the United States District Court for the District of Maryland. 1 The issues concern whether a handgun manufacturer or marketer might be liable under some circumstances for gunshot injuries caused by the use of one of its handguns during the commission of a crime.

I.

Olen J. Kelley was injured when an unnamed assailant shot him in the chest during an armed robbery of the grocery store where he was employed. The weapon used in the crime was a Rohm Revolver Handgun Model RG-38S, Serial Number 0152662, designed and marketed by Rohm Gesellschaft, a West German corporation. The handgun was assembled and initially sold by R.G. Industries, Inc., a Miami-based corporation which is a subsidiary of the West German corporation.

*129 Kelley and his wife filed a tort action against Rohm Gesellschaft and R.G. Industries in the Circuit Court for Montgomery County, setting forth several theories for recovery. The first count was based on strict liability, with the plaintiffs claiming that the handgun was “abnormally dangerous.” Count two, also sounding in strict liability, alleged that the handgun was defective in its “marketing, promotion, distribution and design,” rendering it “unreasonably dangerous.” Count three rested on a negligence theory. In a fourth count, the plaintiffs sought damages for loss of consortium.

One of the defendants, R.G. Industries, had the case removed to the United States District Court for the District of Maryland, pursuant to 28 U.S.C. §§ 1441 and 1446. R.G. Industries then filed an answer to the declaration and moved for summary judgment on the ground that it was not involved in the marketing or distribution of the handgun in question. Thereafter the parties filed a stipulation that R.G. Industries be dismissed from the case, without prejudice.

The remaining defendant, Rohm Gesellschaft, moved to dismiss the declaration for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rohm argued in its memorandum in support of the motion to dismiss that “the [plaintiffs’ contentions [must] fail because the handgun performed as it was supposed to perform and because Rohm Gesellschaft is not responsible for the criminal and tortious acts of Mr. Kelley’s assailant.” At a hearing on the motion, the United States District Court found that there were no controlling precedents in this Court on the strict liability issues and certified the following questions to us:

“Question 1

Is a handgun, which inflicts injury as the norm, rather than the exception, a defective or unreasonably dangerous product?

*130 “Question 2

Is the marketing of handguns an abnormally dangerous activity?

(a) Does the abnormally dangerous activity doctrine extend to instances in which the alleged tortfeasor is not an occupier of land?

(b) Does the abnormally dangerous activity doctrine apply where harm is brought about by some third person or persons over whom the tortfeasor had no control?” Oral argument was then held before this Court. As a

result of matters raised at oral argument which were not specifically addressed in the certification order, the plaintiffs requested that the order be withdrawn and that a new order be filed. Pursuant to the request, the United States District Court withdrew the original Order of Certification and substituted a “Further Order of Certification” posing the following four questions:

“Question 1

Is a handgun, which inflicts injury as the norm, rather than the exception, a defective or unreasonably dangerous product?

If the answer to Question 1 is “No,” then

“Question 2

Is a Rohm Revolver Handgun Model RG38S, which inflicts injury as the norm, rather than the exception, a defective or unreasonably dangerous product?

“Question 3

Is the marketing of handguns an abnormally dangerous activity? In answering this question, it may be that the Court of Appeals of Maryland may desire to address itself to the following sub-questions:

(a) Does the abnormally dangerous activity doctrine extend to instances in which the alleged tortfeasor is not an occupier of land?

(b) Does the abnormally dangerous activity doctrine apply where harm is brought about by some third person or persons over whom the tortfeasor had no control?

*131 If the answer to Question 3 is “No,” then

“Question 4

Is the marketing of Rohm Revolver Handguns Model RG38S an abnormally dangerous activity? In answering this question, it may be that the Court of Appeals of Maryland may desire to address itself to the following sub-questions:

(a) Does the abnormally dangerous activity doctrine extend to instances in which the alleged tortfeasor is not an occupier of land?

(b) Does the abnormally dangerous activity doctrine apply where harm is brought about by some third person or persons over whom the tortfeasor had no control?”

In addition, the Further Order of Certification provided that this Court was not restricted in its consideration and determination of the matter by the phrasing of the certified questions.

In considering the certified questions, and pursuant to the above-mentioned provision in the federal court’s order, we have rephrased the questions as follows:

1) Is the manufacturer or marketer of a handgun, in general, liable under any strict liability theory to a person injured as a result of the criminal use of its product?

2) Is the manufacturer or marketer of a particular category of small, cheap handguns, sometimes referred to as “Saturday Night Specials,” and regularly used in criminal activity, strictly liable to a person injured by such handgun during the course of a crime?

3) Does the Rohm Revolver Handgun Model RG38S, serial number 0152662, fall within the category referred to in question 2?

The first question will be addressed in Part II of this opinion, the second in Part III, and the final question in Part IV.

*132 II.

Kelley maintains that a manufacturer and marketer of a handgun, which inflicts injuries such as his, should be held liable under either of two strict liability theories. First, Kelley asserts that the manufacturer or marketer is strictly liable because the manufacturing or marketing of handguns is an “abnormally dangerous activity.” Restatement (Second) of Torts, §§ 519-520. Second, Kelley argues that the manufacturer or marketer is strictly liable because handguns are “abnormally dangerous products” under Restatement (Second) of Torts, § 402A. For the following reasons, however, neither of these two doctrines, nor any of the other previously recognized strict liability principles, could properly be applied to hold, in general, the manufacturer or marketer of a handgun liable to a person injured by the handgun during the course of a crime. 2

A.

Kelley’s first premise for the imposition of liability is under the Restatement (Second) of Torts, §§ 519 and 520. These sections recognize the liability of one engaged in an abnormally dangerous or ultrahazardous activity even though that person may have exercised the utmost care to prevent harm. Whether an activity is “abnormally dangerous” under these sections depends on its satisfying the following six factors, specified in § 520:

“(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

*133 (d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.” 3

Regardless, however, of whether a handgun might satisfy these factors, Maryland law would not permit liability to be imposed on a handgun manufacturer or marketer under this theory. This Court has refused to extend the abnormally dangerous activity doctrine to instances in which the alleged tortfeasor is not an owner or occupier of land. Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 4 A.2d 757 (1939). See also Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969); Kirby v. Hylton, 51 Md.App. 365, 443 A.2d 640 (1982).

The thrust of the doctrine is that the activity be abnormally dangerous in relation to the area where it occurs. If a gasoline station owner has faulty tanks which leak gasoline into the underground water supply, that might be abnormally dangerous if the land in which the tanks are buried is located in a well populated area. In such a situation, the hazard bears a relation to the occupation and location of the land on which the activity occurs. See Yommer v. McKenzie, supra. The dangers inherent in the use of a handgun in the commission of a crime, on the other hand, bear no relation to any occupation or ownership of land. Therefore, the abnormally dangerous activity doctrine does not apply to the manufacture or marketing of handguns.

Other jurisdictions which have addressed the issue are in accord. See, e.g., Perkins v. F.I.E. Corp., 762 F.2d 1250, 1268 (5th Cir.1985), rev ’g Richman v. Charter Arms Co., *134 571 F.Supp. 192 (E.D.La.1983) (“[marketing handguns] is not a land-related activity, and the injuries of which the plaintiffs complain were not caused by the marketing itself, but rather resulted only when there was substandard conduct on the part of third parties”); Martin v. Harrington and Richardson, Inc., 743 F.2d 1200, 1203-1204 (7th Cir. 1984) (ultrahazardous activity doctrine applies only to the use of a product, not to its manufacture or sale); Riordan v. International Armament Corp., 132 Ill.App.3d 642, 87 Ill.Dec. 765, 769, 477 N.E.2d 1293, 1297 (1985) (“We have found no decision other than Richman that has held that the lawful sale of a non-defective product can be an ultra-hazardous activity.”); Burkett v. Freedom Arms, 299 Or. 551, 704 P.2d 118 (1985). See also Note, Legal Limits of a Handgun Manufacturer’s Liability for the Criminal Acts of Third Persons, 49 Mo.L.Rev. 830 (1984) (criticizing the imposition of liability under the ultrahazardous activity doctrine).

B.

Kelley next contends that a handgun is an abnormally dangerous product, and he argues that a handgun manufacturer or marketer should be strictly liable according to Restatement (Second) of Torts, § 402A. Section 402A provides that:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

*135 (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

Maryland adopted § 402A in Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976). In so doing, this Court held that in order for a plaintiff to recover under this theory, he must establish that:

“(1) the product was in a defective condition at the time that it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause of the injuries, and (4) that the product was expected to and did reach the consumer without substantial change in its condition.”

278 Md. at 344, 363 A.2d 955. See also, e.g., Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 495 A.2d 348 (1985); Sheehan v. Anthony Pools, 50 Md.App. 614, 440 A.2d 1085 (1982), aff'd., 295 Md. 285, 455 A.2d 434 (1983); Eaton Corp. v. Wright, 281 Md. 80, 375 A.2d 1122 (1977).

Phipps and its progeny expressly require that the product be defective when sold. In determining whether a product is defective, in its design or its manufacture, Maryland cases have generally applied the “consumer expectation” test. As this Court explained in Phipps:

“[f]or a seller to be liable under § 402A, the product must be both in a ‘defective condition’ and ‘unreasonably dangerous’ at the time that it is placed on the market by the seller. Both of these conditions are explained in the official comments in terms of consumer expectations. As Comment g explains, the requirement of a defective condition limits application of § 402A to those situations where ‘the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.’ An ‘unreasonably dangerous product is defined in Comment i as one which is ‘dangerous to an extent beyond that which would be contemplated by the ordinary con *136 sumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.’ ”

278 Md. at 344, 363 A.2d 955.

A handgun manufacturer or marketer could not be held liable under this theory. Contrary to Kelley’s argument, a handgun is not defective merely because it is capable of being used during criminal activity to inflict harm. A consumer would expect a handgun to be dangerous, by its very nature, and to have the capacity to fire a bullet with deadly force. Kelley confuses a product’s normal function, which may very well be dangerous, with a defect in a product’s design or construction. For example, an automobile is a dangerous product, if used to run down pedestrians. In such situation, injury would result from the nature of the product — its ability to be propelled at a great speed with great force. But that same automobile might also be defective in its design or construction, e.g., if the gasoline tank were placed in such position that it could easily explode in a rear-end collision. Only in the second instance, regarding the placement of the gasoline tank, would the design of the product be defective, exposing the product’s manufacturer to liability under § 402A. Similarly, a handgun is dangerous because its normal function is to propel bullets with deadly force. That alone is not sufficient for its manufacturer to incur liability under § 402A. For the handgun to be defective, there would have to be a problem in its manufacture or design, such as a weak or improperly placed part, that would cause it to fire unexpectedly or otherwise malfunction.

Another test used to determine whether a design defect exists under § 402A is the “risk/utility” test, applied in Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978). In Barker, the plaintiff machinery operator sued the defendant manufacturer for injuries received while trying to escape from the malfunctioning machinery. The plaintiff alleged that the machinery was defective because it was not equipped with certain safety devices. The plaintiff appealed from a jury’s verdict *137 for the defendants, arguing that the trial court had erred in instructing the jury that strict liability for a product design must be “ ‘based on a finding that the product was unreasonably dangerous for its intended use.’ ” 20 Cal.3d at 422, 143 Cal.Rptr. 225, 573 P.2d 443. The Supreme Court of California agreed with the plaintiff, and reversed. In so doing, the court articulated a dual definition for a design defect, the second part of which rests on a balancing of the product’s risks and utilities (20 Cal.3d at 432, 143 Cal.Rptr. 225, 573 P.2d 443):

“[A] product may be found defective in design, so as to subject a manufacturer to strict liability for resulting injuries, under either of two alternative tests. First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design.”

Since the Barker decision, numerous jurisdictions have adopted a risk/utility test as an alternate standard for the determination of design defects under § 402A. See, e.g., Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979); Rucker v. Norfolk & W. Ry. Co., 77 Ill.2d 434, 33 Ill.Dec. 145, 396 N.E.2d 534 (1979); Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980); Back v. Wickes Corp., 375 Mass. 633, 378 N.E.2d 964 (1978); Duke v. Gulf & Western Mfg. Co., 660 S.W.2d 404 (Mo.App.1983); Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152, 386 A.2d 816 (1978); Wilson v. Piper Aircraft Corp., 282 Or. 61, 577 P.2d 1322 (1978).

While no decision of this Court in a product liability case has expressly rested upon an application of the risk/utility test, we did state in Phipps that “in some circumstances the *138 question of whether a particular design is defective may depend upon a balancing of the utility of the design and other factors against the magnitude of that risk.” 278 Md. at 348, 363 A.2d 955. Also, the Court of Special Appeals in Sheehan v. Anthony Pools, supra, 50 Md.App. at 620 n. 6, 440 A.2d 1085, in referring to the factors used in the risk/utility analysis, said that “[tjhese factors rationalize what most courts do in deciding design cases, although not all the factors are necessarily weighed nor is the risk/utility analysis denominated as such.” Ibid.

We believe, however, that the risk/utility test is inapplicable to the present situation. This standard is only applied when something goes wrong with a product. In Barker, an unbalanced machine tipped over. In Back v. Wickes Corp., supra, a motor home exploded, and in Duke v. Gulf & Western Mfg. Co., supra, a power press caught the plaintiff’s hands. These products malfunctioned. On the other hand, in the case of a handgun which injured a person in whose direction it was fired, the product worked precisely as intended. Therefore, the risk/utility test cannot be extended to impose liability on the maker or marketer of a handgun which has not malfunctioned.

In sum, regardless of the standard used to determine whether a product is “defective” under § 402A, a handgun which functions as intended and as expected is not “defective” within the meaning of that section. This has been the consistent conclusion in other jurisdictions which have confronted the issue.

For example, in Patterson v. Rohm Gesellschaft, 608 F.Supp. 1206 (N.D.Tex.1985), plaintiff’s decedent died from gunshot wounds inflicted by a .38 caliber Rohm during a crime. The plaintiff argued that the gun’s manufacturer was strictly liable under § 402A. Rejecting the “defective design” claim, the court stated that “a gun, by its very nature, must be dangerous and must have the capacity to discharge a bullet with deadly force.” 608 F.Supp. at 1212.

*139 Similarly, in Riordan v. International Armament Corp., supra, the court rejected the plaintiffs contention that a handgun was defectively designed because it was small and easily concealable, saying, “[the] size and concealability of the defendants’ handguns were not conditions which caused the handgun to fail to perform in the manner reasonably to be expected in light of its nature and intended function.” 87 Ill.Dec. at 770, 477 N.E.2d at 1298. The court held that a handgun could not be deemed defective “where the plaintiff’s injury was caused by that product’s operation precisely as it was designed to operate.” Ibid. Accord, Richman v. Charter Arms Co., 571 F.Supp. 192, 196-197 (E.D.La. 1983), rev’d on other grounds, Perkins v. F.I.E. Corp., 762 F.2d 1250, 1268 (5th Cir.1985); Martin v. Harrington and Richardson, Inc., supra, 743 F.2d 1200; Francis v. Diamond International Corp., Nos. CV82-11-1279 and CV8302-0215 (Ct. of Com.Pl., Butler County Ohio, March 22, 1983), appeal noted, No. CA-84-09-111, Ohio Court of Appeals. See, in addition, Makarevick, Manufacturers’ Strict Liability for Injuries From a Well-Made Handgun, 24 Wm. & Mary L. Rev. 467 (1983) (criticism of both negligence and strict liability theories as bases for imposing liability); Santarelli and Calió, Turning the Gun on Tort Law: Aiming at Courts to Take Products Liability to the Limit, 14 St. Mary’s L.J. 471 (1983) (arguing that existing products liability theories cannot be extended to hold handgun manufacturers liable); Note, Handguns and Products Liability, 97 Harv.L.Rev. 1912 (1984) (handgun manufacturers should not be liable under either design defect or defective distribution theories). But cf, Turley and Harrison, Strict Tort Liability of Handgun Suppliers, 6 Hamline L.Rev. 285 (1983) (favoring imposition of liability under § 402A). 4

*140 C.

The fact that a handgun manufacturer or marketer generally would not be liable for gunshot injuries resulting from a criminal’s use of the product, under previously recognized principles of strict liability, is not necessarily dispositive. This Court has repeatedly said that “the common law is not static; its life and heart is its dynamism — its ability to keep pace with the world while constantly searching for just and fair solutions to pressing societal problems.” Harrison v. Mont. Co. Bd. of Educ., 295 Md. 442, 460, 456 A.2d 894 (1983). See Felder v. Butler, 292 Md. 174, 182, 438 A.2d 494 (1981). The common law is, therefore, subject to judicial modification in light of modern circumstances or increased knowledge. Jones v. State, 302 Md. 153, 161, 486 A.2d 184 (1985); Boblitz v. Boblitz, 296 Md. 242, 462 A.2d 506 (1983); Condore v. Prince George’s Co., 289 Md. 516, 425 A.2d 1011 (1981). Indeed, we have not hesitated to change the common law to permit new actions or remedies where we have concluded that such course was justified. Boblitz v. Boblitz, supra (authorizing negligence action by one spouse against another); Moxley v. Acker, 294 Md. 47, 447 A.2d 857 (1982) (changing common law so as to permit an action of forcible detainer even though force is not present); Adler v. American Standard *141 Corp., 291 Md. 31, 432 A.2d 464 (1981) (recognizing tort of abusive or wrongful discharge); Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978) (refusing to recognize interspousal immunity with regard to outrageous intentional torts); Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977) (recognizing tort of intentional infliction of emotional distress).

On the other hand, we have consistently recognized that common law principles should not be changed contrary to the public policy of the State set forth by the General Assembly of Maryland. Harrison v. Mont. Co. Bd. of Educ., supra, 295 Md. at 460-461, 456 A.2d 894; Condore v. Prince George’s Co., supra, 289 Md. at 532, 425 A.2d 1011; Austin v. City of Baltimore, 286 Md. 51, 55-56 (majority opinion), 67-70 (Smith and Eldridge, JJ., concurring), 405 A.2d 255, 263 (1979).

By Ch. 13 of the Acts of 1972, the Maryland General Assembly enacted a comprehensive regulatory scheme concerning the wearing, carrying and transporting of handguns, codified under the subtitle “Handguns” at Maryland Code (1957, 1982 Repl.Vol., 1984 Cum.Supp.), Art. 27, §§ 36B-36G.

The subtitle begins with a declaration of the State’s policy, in § 36B(a), that:

“(i) There has, in recent years, been an alarming increase in the number of violent crimes perpetrated in Maryland, and a high percentage of those crimes involve the use of handguns;

(ii) The result has been a substantial increase in the number of persons killed or injured which is traceable, in large part, to the carrying of handguns on the streets and public ways by persons inclined to use them in criminal activity;

(iii) The laws currently in force have not been effective in curbing the more frequent use of handguns in perpetrating crime; and

(iv) Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the *142 peace and tranquility of the State and to protect the rights and liberties of its citizens.”

To effectuate that policy, the Legislature generally made it unlawful for persons to wear, carry or transport handguns, whether openly or concealed. § 36B(b). 5 Section 36B(c) also provides certain limited exceptions to the prohibition. 6 Law enforcement personnel, both State and feder *143 al, as well as persons in the military, are permitted to carry handguns. Exceptions are also created for persons engaged in hunting and target practice, and for home and business protection if confined to the real estate owned or leased by the persons having the handguns. An allowance is also made for a person who does not fit within any of those exceptions, but who, under § 36E, has proven, upon application to the Maryland State Police, that he has “good and substantial reason” to carry a handgun and meets certain other qualifications. 7

*144 The express statutory provisions allowing persons to possess and carry handguns in certain specified instances demonstrate that not all handguns or handgun usage is inconsistent with Maryland public policy. In our view, generally to impose strict liability upon the manufacturers or marketers of handguns for gunshot injuries resulting from the misuse of handguns by others, would be contrary to Maryland public policy as set forth by the Legislature.

III.

There is, however, a limited category of handguns which clearly is not sanctioned as a matter of public policy. To impose strict liability upon the manufacturers and marketers of these handguns, in instances of gunshot wounds caused by criminal use, would not be contrary to the policy embodied in the enactments of the General Assembly. This type of handgun, commonly known as a “Saturday Night Special,” 8 presents particular problems for law enforce *145 ment officials. 9 Saturday Night Specials are generally characterized by short barrels, light weight, easy conceala *146 bility, low cost, use of cheap quality materials, poor manufacture, inaccuracy and unreliability. These characteristics render the Saturday Night Special particularly attractive for criminal use and virtually useless for the legitimate purposes of law enforcement, sport, and protection of persons, property and businesses. 10

*147 A.

The legislative policies of both the United States Congress and the Maryland General Assembly reflect the view that “Saturday Night Specials” comprise a distinct category of handguns that, because of their characteristics, should be treated differently from other handguns.

(1)

The Gun Control Act of 1968 was originally enacted by Congress as Title IV of the Omnibus Crime Control and Safe Streets Act of 1