Absolute liability is a rare and difficult standard to impose, and is usually applied only to those engaged in the “ultra-hazardous” production of certain drugs, explosives, toxic chemicals, and nuclear devices. But in their lawsuits, Stein and Corboy ask the court to find the gun-makers absolutely liable for introducing “abnormally dangerous instrumentalities of no social value and contrary to public policy … into the channels of commerce.” The defendants refute this claim by placing handguns under a different legal heading—“unavoidably unsafe” products, which, by the current limits of technology, cannot be made completely safe for their intended use but are beneficial and so exempt from absolute liability.
From the premise of these arguments certain troubling questions naturally arise. For example, if strict product liability can be extended to lawful, properly functioning, but dangerous objects such as handguns, won’t the makers of long guns, knives, axes, liquors, sleeping pills, cigarettes, and automobiles soon be made liable too, based on their products’ potential to cause injury? After all, an automobile can be as deadly as a gun; as the cause of 55,000 deaths each year, cars easily best handguns as the leading cause of unnatural death. Should the courts decide whether a compact car is riskier than a large car, and place liability on its makers? Using the risk/utility test, Turley, Stein, and Corboy say that other products are potentially dangerous but causing injury is not their prime function, as it is the function of handguns; they all have other, beneficial uses that outweigh their occasional risks.
The use of product-liability law to instigate a sort of gun control is not a popular idea within the legal community. “I find myself in a very difficult position in this controversy,” says Sheila Birnbaum, a product-liability specialist and professor of law at New York University Law School. “Though I believe in gun control, I think it should be accomplished by other means. My feeling is that tort law is being misused here. I am concerned that the tort system not be expanded to purposes for which it was not intended, to the point where the system might collapse.” Even the professional organization of the plaintiff’s bar, the American Trial Lawyers Association (ATLA), is shying away from any association with this kind of suit, to the disappointment of Windle Turley, who hoped it would take a strong stand of support.
Product-liability law has come under attack in the past few years as an unfair burden on the business community, a hindrance to industrial expansion and innovation, and an economic menace perpetrated by radical judges and ambulance-chasing lawyers. Although the basis for product liability is derived from ancient common law, it has undergone tremendous development and change in the past thirty years, with courts both widening the scope of corporate liability and easing the consumer’s burden of proof. The increased popularity of such suits, and celebrated monetary awards made by juries (often later reduced by the judge), are precipitating a strong backlash. The legislatures of more than twenty states are considering or have passed product-liability “reform” bills, setting statutes of limitation, monetary-award ceilings, and other restrictions. Congress is considering a similar reform bill. Faced with this kind of public sentiment, the ATLA appears unwilling to lend support to a legal tactic that might further damage the reputation of product-liability law.