Freddie Hamilton, et al., Plaintiffs, Gail Fox and Stephen Fox,
Beretta U.S.A. Corp., Taurus International Manufacturing, Inc., American Arms, Inc., and Colt's Manufacturing Co., Inc.,
Appellants, Accu-Tek, et al.,
2001 NY Int. 40
In January 1995 plaintiffs _- relatives of people
killed by handguns -_ sued 49 handgun manufacturers in Federal
court alleging negligent marketing, design defect, ultra-
hazardous activity and fraud. A number of defendants jointly
moved for summary judgment. The United States District Court for
the Eastern District of New York (Weinstein, J.), dismissed the
product liability and fraud causes of action, but retained
plaintiffs' negligent marketing claim (see, Hamilton v Accu-Tek,
935 F Supp 1307, 1315). Other parties intervened, including
plaintiff Stephen Fox, who was shot by a friend and permanently
Plaintiffs asserted that defendants distributed their products negligently so as to create and bolster an illegal, underground market in handguns, one that furnished weapons to minors and criminals involved in the shootings that precipitated this lawsuit. Because only one of the guns was recovered, plaintiffs were permitted over defense objections to proceed on a market share theory of liability against all the manufacturers, asserting that they were severally liable for failing to implement safe marketing and distribution procedures, and that this failure sent a high volume of guns into the underground market.
After a four-week trial, the jury returned a special
verdict finding 15 of the 25 defendants failed to use reasonable
care in the distribution of their guns. Of those 15, nine were
found to have proximately caused the deaths of the decedents of
two plaintiffs, but no damages were awarded. The jury awarded
damages against three defendants _- American Arms, Beretta USA
and Taurus International Manufacturing _- upon a finding that
they proximately caused the injuries suffered by Fox and his
mother (in the amounts of $3.95 million and $50,000,
Defendants unsuccessfully moved for judgment as a matter of law pursuant to Federal Rules of Civil Procedure 50(b). The District Court articulated several theories for imposing a duty on defendants "to take reasonable steps available at the point of * * * sale to primary distributors to reduce the possibility that these instruments will fall into the hands of those likely to misuse them" (Hamilton v Accu-Tek, 62 F Supp 2d 802, 825). The court noted that defendants, as with all manufacturers, had the unique ability to detect and guard against any foreseeable risks associated with their products, and that ability created a special "protective relationship" between the manufacturers and potential victims of gun violence (id., at 821). It further pointed out that the relationship of handgun manufacturers with their downstream distributors and retailers gave them the authority and ability to control the latter's conduct for the protection of prospective crime victims. Relying on Hymowitz v Eli Lilly & Co. (73 2 487, cert denied 493 US 944), the District Court held that apportionment of liability among defendants on a market share basis was appropriate and that plaintiffs need not connect Fox's shooting to the negligence of a particular manufacturer.
On appeal, the Second Circuit certified the following questions to us:
"(1) Whether the defendants owed plaintiffs a
duty to exercise reasonable care in the marketing
and distribution of the handguns they manufacture?
"(2) Whether liability in this case may be
apportioned on a market share basis, and if so,
how?" (see, Hamilton v Accu-Tek, 222 F3d 36, 39). We accepted certification (95 2 878) and now answer both questions in the negative.
Plaintiffs argue that defendant-manufacturers have a duty to exercise reasonable care in the marketing and distribution of their guns based upon four factors: (1) defendants' ability to exercise control over the marketing and distribution of their guns, (2) defendants' general knowledge that large numbers of their guns enter the illegal market and are used in crime, (3) New York's policy of strict regulation of firearms and (4) the uniquely lethal nature of defendants' products.
According to plaintiffs, handguns move into the
underground market in New York through several well-known and
documented means including straw purchases (a friend, relative or
accomplice acts as purchaser of the weapon for another), sales at
gun shows, misuse of Federal firearms licenses and sales by non-
Defendants counter that they do not owe a duty to
members of the public to protect them from the criminal
acquisition and misuse of their handguns. Defendants assert that
such a duty -_ potentially exposing them to limitless liability
_- should not be imposed on them for acts and omissions of
numerous and remote third parties over which they have no
control. Further, they contend that, in light of the
comprehensive statutory and regulatory scheme governing the
distribution and sale of firearms, any fundamental changes in the
industry should be left to the appropriate legislative and
The threshold question in any negligence action is: does defendant owe a legally recognized duty of care to plaintiff? Courts traditionally "fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability" (Palka v Servicemaster Mgt. Servs. Corp., , 83 NY2d 579, 586; see also, Strauss v Belle Realty Co., , 65 NY2d 399, 402-403). Thus, in determining whether a duty exists, "courts must be mindful of the precedential, and consequential, future effects of their rulings, and 'limit the legal consequences of wrongs to a controllable degree'" (Lauer v City of New York, , 95 NY2d 95, 100 [quoting Tobin v Grossman, , 24 NY2d 609, 619]).
Foreseeability, alone, does not define duty -_ it
merely determines the scope of the duty once it is determined to
exist (see, Pulka v Edelman, , 40 NY2d 781, 785, rearg denied , 41 NY2d 901; see also, Eiseman v State of New York, , 70 NY2d 175,
187). The injured party must show that a defendant owed not
merely a general duty to society but a specific duty to him or
her, for "[w]ithout a duty running directly to the injured person
there can be no liability in damages, however careless the
The District Court imposed a duty on gun manufacturers "to take reasonable steps available at the point of * * * sale to primary distributors to reduce the possibility that these instruments will fall into the hands of those likely to misuse them" (Hamilton v Accu-Tek, supra, 62 F Supp 2d, at 825). We have been cautious, however, in extending liability to defendants for their failure to control the conduct of others. "A defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control" (D'Amico v Christie, , 71 NY2d 76, 88; see also, Purdy v Public Adm'r of the County of Westchester, , 72 NY2d 1, 8, rearg denied , 72 NY2d 953). This judicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another.
A duty may arise, however, where there is a
The key in each is that the defendant's relationship
with either the tortfeasor or the plaintiff places the defendant
in the best position to protect against the risk of harm. In
addition, the specter of limitless liability is not present
because the class of potential plaintiffs to whom the duty is
owed is circumscribed by the relationship. We have, for
instance, recognized that landowners have a duty to protect
tenants, patrons or invitees from foreseeable harm caused by the
criminal conduct of others while they are on the premises (see,
e.g., Nallan v Helmsley-Spear, Inc., , 50 NY2d 507, 518-519).
However, this duty does not extend beyond that limited class of
plaintiffs to members of the community at large (see, Waters v
New York City Hous. Auth., supra, 69 NY2d, at 228-231). In
Waters, for example, we held that the owner of a housing project
who failed to keep the building's door locks in good repair did
not owe a duty to a passerby to protect her from being dragged
off the street into the building and assaulted. The Court
concluded that imposing such a duty on landowners would do little
A similar rationale is relevant here. The pool of
possible plaintiffs is very large _- potentially, any of the
thousands of victims of gun violence.
Further, the connection
between defendants, the criminal wrongdoers and plaintiffs is
remote, running through several links in a chain consisting of at
least the manufacturer, the federally licensed distributor or
wholesaler, and the first retailer. The chain most often
includes numerous subsequent legal purchasers or even a thief.
Plaintiffs make two alternative arguments in support of
a duty determination here. The first arises from a
manufacturer's "special ability to detect and guard against the
risks associated with [its] products [and] warrants placing all
manufacturers, including these defendants, in a protective
relationship with those foreseeably and potentially put in harm's
way by their products" (Hamilton v Accu-Tek,
As we noted earlier, a duty and the corresponding
liability it imposes do not rise from mere foreseeability of the
harm (see, Pulka,
The cases involving the distribution or handling of
hazardous materials, relied upon by plaintiffs, do not support
the imposition of a duty of care in marketing handguns. The
manufacturer's duty in each case was based either on a products
liability theory -- that is, the product was defective because of
the failure to include a safety feature _- or on a failure to
warn (see, e.g., Hunnings v Texaco, Inc., 29 F3d 1480 [11th Cir
1994] [defectively packaged hazardous substance accompanied by
lack of adequate warnings]; Blueflame Gas, Inc. v Van Hoose, 679
P2d 579 [Colo 1984] [insufficiently odorized propane gas]; Flint
Explosive Co. v Edwards, 66 SE2d 368 [Ga App 1951] [defective
dynamite]). Certainly too, a manufacturer may be held liable for
complicity in dangerous or illegal activity (see, e.g.,
Suchomajcz v Hummel Chem. Co., 524 F2d 19 [3d Cir 1975]
[manufacturer sold chemicals to retailer with knowledge that
retailer intended to use them in making and selling illegal
firecracker assembly kits]). Here, defendants' products are
concededly not defective _- if anything, the problem is that they
Plaintiffs also assert that a general duty of care
arises out of the gun manufacturers' ability to reduce the risk
of illegal gun trafficking through control of the marketing and
distribution of their products. The District Court accepted this
proposition and posited a series of structural changes in
defendants' marketing and distribution regimes that might "reduce
the risk of criminal misuse by insuring that the first sale was
by a responsible merchant to a responsible buyer" (Hamilton v
Finally, plaintiffs and the District Court identify an
alternative basis for imposing a duty of care here under the
negligent entrustment doctrine, arising out of the firearms
manufacturers' authority over "downstream distributors and
The tort of negligent entrustment is based on the
degree of knowledge the supplier of a chattel has or should have
concerning the entrustee's propensity to use the chattel in an
improper or dangerous fashion. Gun sales have subjected
suppliers to liability under this theory (see, Splawnik,
The negligent entrustment doctrine might well support
the extension of a duty to manufacturers to avoid selling to
At trial, plaintiffs' experts did surmise that since manufacturers receive crime gun trace requests conducted by the Bureau of Alcohol, Tobacco and Firearms (BATF), they could analyze those requests to locate retailers who disproportionately served as crime gun sources, and cut off distributors who do business with them. In essence, plaintiffs argue that defendants had an affirmative duty to investigate and identify corrupt dealers. This is neither feasible nor appropriate for the manufacturers.
Plaintiffs' experts explained that a crime gun trace is
the means by which the BATF reconstructs the distribution history
of a gun used in a crime or recovered by the police.
Federal law already has implemented a statutory and
regulatory scheme to ensure seller "responsibility" through
licensing requirements and buyer "responsibility" through
In sum, analysis of this State's longstanding precedents demonstrates that defendants _- given the evidence presented here -_ did not owe plaintiffs the duty they claim; we therefore answer the first certified question in the negative.
The Second Circuit has asked us also to determine if our market share liability jurisprudence is applicable to this case. Having concluded that these defendant-manufacturers did not owe the claimed duty to these plaintiffs, we arguably need not reach the market share issue. However, because of its particularly significant role in this case, it seems prudent to answer the second question.
Market share liability provides an exception to the
general rule that in common-law negligence actions, a plaintiff
must prove that the defendant's conduct was a cause-in-fact of
the injury. This Court first examined and adopted the market
share theory of liability in Hymowitz v Eli Lilly & Co. (73 2
Circumstances here are markedly different. Unlike DES,
guns are not identical, fungible products. Significantly, it is
often possible to identify the caliber and manufacturer of the
handgun that caused injury to a particular plaintiff.
more importantly -_ given the negligent marketing theory on which
plaintiffs tried this case _- plaintiffs have never asserted that
the manufacturers' marketing techniques were uniform. Each
manufacturer engaged in different marketing activities that
allegedly contributed to the illegal handgun market in different
ways and to different extents. Plaintiffs made no attempt to
establish the relative fault of each manufacturer, but instead
In Hymowitz, each manufacturer engaged in tortious conduct parallel to that of all other manufacturers, creating the same risk to the public at large by manufacturing the same defective product. Market share was an accurate reflection of the risk they posed. Here, the distribution and sale of every gun is not equally negligent, nor does it involve a defective product. Defendants engaged in widely-varied conduct creating varied risks. Thus, a manufacturer's share of the national handgun market does not necessarily correspond to the amount of risk created by its alleged tortious conduct. No case has applied the market share theory of liability to such varied conduct and wisely so.
We recognize the difficulty in proving precisely which
manufacturer caused any particular plaintiff's injuries since
Notably, courts in New York and other jurisdictions
have refused to extend the market share theory where products
were not fungible and differing degrees of risk were created
(see, e.g., Brenner v American Cyanamid Co., 263 AD2d 165 [lead
pigment used in paint]; Matter of New York State Silicone Breast
This case challenges us to rethink traditional notions of duty, liability and causation. Tort law is ever changing; it is a reflection of the complexity and vitality of daily life. Although plaintiffs have presented us with a novel theory -- negligent marketing of a potentially lethal yet legal product, based upon the acts not of one manufacturer, but of an industry - - we are unconvinced that, on the record before us, the duty plaintiffs wish to impose is either reasonable or circumscribed. Nor does the market share theory of liability accurately measure defendants' conduct. Whether, in a different case, a duty may arise remains a question for the future.
Accordingly, both certified questions should be answered in the negative.
1 According to the U.S. Census Bureau's Statistical Abstract for the U.S., there were 7,402 murders by handguns in 1998 (see, U.S. Census Bureau, Statistical Abstract of the United States: 2000, Table No. 333). This figure does not separately identify legal/illegal handgun deaths. In 1997, there were 39,400 gunshot wounds treated in hospital emergency rooms. For 59% of the victims of nonfatal gunshot wounds, the type of firearm was unknown. Where the firearm was known, 82% were shot by handguns, but additional details about the firearm used are not given (see, U.S. Department of Justice, Bureau of Firearms and Gun Statistics, http:/www.ojp.usdoj.gov/bjs/guns.htm [site visited on 2-27-01]; see also, Zawitz and Strom, Firearm Injury and Death From Crime, 1993-1997, Bureau of Justice Statistics: Selected Findings, October 2000, at 4).
2 One of the original plaintiffs was Katina Johnstone. Her husband was killed with a Smith & Wesson revolver. The gun was recovered and traced to its lawful owner, who had reported it missing after a burglary of his home two weeks before the shooting. Johnstone's case was transferred to Federal court in California (Hamilton v Accu-Tek, 47 F Supp 2d 330).
3 For example, limiting the volume of sales in states with weak gun controls to insure against circulation of the oversupply to strong gun control states such as New York; restricting distribution entirely to established retail stores carrying stocks of guns; franchising of retail outlets; and barring distribution to dealers who sell at unregulated gun shows (see, Hamilton v Accu-Tek, 62 F Supp 2d 802, at 826, 829-832).
4 See, Lytton, Tort Claims Against Gun Manufacturers For Crime-Related Injuries: Defining a Suitable Role for the Tort System in Regulating the Firearms Industry, 65 Mo L Rev 1, 41).
5 An analysis of Bureau of Alcohol, Tobacco and Firearms (BATF) data for 1998 reveals that a very small number of FFLs do account for a significant portion of guns used in crimes. "Just 1.2 percent of dealers _- 1,020 of the approximately 83,200 licensed retail dealers and pawnbrokers -_ accounted for over 57 percent of the crime guns traced to current dealers in 1998" (see, Commerce in Firearms in the United States, BATF Document, February 2000, at 2]). However, the data does not reveal whether any given FFL's high incidence of crime gun sales is attributable to irresponsible conduct, or merely reflects a high volume of legal sales or some other activity (such as theft) over which the FFL has no control. BATF has "targeted" those dealers to "determine the reasons for diversion of firearms from this relatively small proportion of dealers * * *" (id.). Because of BATF's continued pursuit in identifying how handguns enter the illegal market, it may well be that a core group of corrupt FFLs will emerge at some future time. This might alter the duty equation.
6 Our decision is in accord with most jurisdictions that
have considered this issue (see, e.g., Armijo v Ex Cam, Inc., 843
F2d 406 [10th Cir 1998] affg 656 F Supp 771; First Commercial
Trust Co. v Colt's Mfg. Manufacturing Co., 77 F3d 1081 [8th Cir
1996]; Shipman v Jennings Firearms, Inc., 791 F2d 1532 [11th Cir
1986]; City of Philadelphia v Beretta U.S.A. Corp., 2000 WL
1871712 [ED Pa 2000]; Adkinson v Rossi Arms Co., 659 P2d 1236
[Alaska 1983]; First Commercial Trust Co. v Lorcin Eng'g, Inc.,
900 SW2d 202 [Ark 1995]; Delhanty v Hinckley, 564 A2d 758 [D.C.
Ct App 1989]; Trespalacios v Valor Corp. 486 So2d 649 [Fla Dist
Ct App 1986]; Riordan v International Armament Corp., 477 NE2d
1293 [Ill App Ct 1985]; Linton v Smith & Wesson, 469 NE2d 339
[Ill App Ct 1984]; Resteiner v Sturm, Ruger & Co., 566 NW2d 53
[Mich Ct App 1997]; King v R.G. Indus., Inc., 451 NW2d 874 [Mich
Ct App 1990]; City of Cincinnati v Beretta U.S.A. Corp., 2000 WL
1133078 [Ohio Ct App 2000]; Knott v Liberty Jewelry & Loan, Inc.,
748 P2d 661 [Wash Ct App 1988]; cf., City of Boston v Smith &
Wesson Corp., 2000 WL 1473568 [Mass Sup Ct 2000]). There are two
notable exceptions, both of which involved different factual
contexts and different theories of negligent marketing not
relevant here (see, Halberstam v Daniels, No. 95-C3323 [EDNY
1998]; Merrill v Navegar, Inc., 89 Cal Rptr 2d 146 [Ct App 1999],
superseded by grant of review, 991 P2d 755).
8 In fact, the "ATF emphasizes that the appearance of an
[FFL] or a first unlicensed purchaser of record in association
with a crime gun or in association with multiple crime guns in no
way suggests that either the FFL or the first purchaser has
committed criminal acts. Rather, such information may provide a
starting point for further and more detailed investigation"
(Youth Crime Gun Interdiction Initiative,
9 Gun manufacturers must be licensed by the Federal government in order to produce, deal and ship firearms in interstate commerce (see, 18 USC § 922[a][A], 923[a]; 27 CFR 178.41[a]). Manufacturers may sell only to licensed importers, licensed dealers, or licensed collectors (see, 18 USC § 922[a]). Manufacturers must keep records of each firearm they make and sell, including the firearm's type, model, caliber, serial number, as well as information about the purchaser (see, 18 USC, § 923[g][A]; 27 CFR 178.123[a],[b]). Any firearm shipped must bear a unique and permanent serial number and the manufacturer's identity (see, 18 USC § 922[k], 923[i], 27 CFR 178.34, ).
Like manufacturers, firearms dealers must also be licensed by the Federal government (see, 18 USC § 922[a][A] 923[a]; 27 CFR 178.41[a]). As the "principal agent of enforcement" (Huddleston v United States, 415 US 814, 824-825), licensed dealers must initiate criminal background checks on purchasers and may sell only to those who have been cleared by the FBI or other appropriate law enforcement agencies (see, 18 USC § 922[c],[s],[t]). Licensed dealers may not sell firearms to individuals who fall within certain at-risk categories (felons, drug users, individuals previously committed to mental institutions and individuals subject to domestic restraining orders, or convicted of crimes of domestic violence, among others) (see, id., § 922[d]). Federal law also establishes age limits for gun purchasers and sales cannot be made to juveniles (see, id., § 922[b], [x]).
Licensees must keep records of all multiple sales to unlicensed persons (see, 18 USC § 923[g][A]). Additionally, all licensees must report any theft or loss of a firearm to appropriate authorities within 48 hours (see, id., § 923[g]). The BATF oversees compliance with Federal requirements and is charged with enforcing this entire regulatory scheme (see generally, 27 CFR Parts 178 and 179). Dealers face criminal penalties and license revocation for intentional unlawful sales (see, 18 USC § 924; 18 USC § 923[e]; 27 CFR 178.73[a]).
10 We note that New York has recently become the second State in the nation to establish a new "fingerprinting" system for identifying guns by the distinctive marks on their shell casings (see, General Business Law § 396-ff).
11 Plaintiffs do not contend that negligent marketing of
handguns is the sole source of handguns used in crime. They
acknowledge that some injuries from handguns will still occur.
Indeed, the District Court, using BATF data, assessed the
enhanced risk at 33 percent, leaving a significant probability
that plaintiffs' injuries from unidentified weapons came from
guns that had not been negligently marketed (see, Hamilton v