From: "Alex Hamilton", [EMAIL PROTECTED] > Court Finds Gunmakers Not Responsible for Wrongdoing > > by Ralph 0. 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. > > Liability Claim > > 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, 6th 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 deliberately engaged." > > Danger Issue > > 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 the cause of the tragedy was McCourt's deliberate > actions, the court noted. > But anyone with a little common sense would know that > already. > > > Ralph D. Sherman is an attorney in West Hartford, CT, and > the chairman of Gunsafe, a membership organization to > preserve the Second Amendment and the right of self-defense. > This commentary was first published as an op-ed in The > Hartford Courant, June 26, 2000. 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