Plaintiffs, as relatives of victims killed by handguns, brought an action against forty-nine handgun manufacturers in the United States District Court for the Eastern District of New York based on claims of negligent marketing, fraud, ultra-hazardous activity, and design defect. On summary judgment, the District Court dismissed all but the negligent marketing cause of action. Several parties intervened, including Stephen Fox, a permanently disabled victim of a handgun shooting. The case proceeded to trial before a jury with seven plaintiffs and twenty-five defendant handgun manufacturers.

At trial, Plaintiffs alleged that Defendants' failure to market and distribute their products safely created a large, illegal handgun market for minors and those responsible for the shootings at issue in this case. With only one gun in evidence and over Defendants' objection, Plaintiffs proceeded on a market-share theory of liability against all of the Defendant manufacturers for their alleged negligent marketing and distribution. The jury returned a special verdict finding that American Arms, Beretta U.S.A. and Taurus International Manufacturing negligently marketed and distributed handguns, proximately causing injuries to plaintiff Fox worth $3.95 million. The jury also found that the Defendant manufacturers' liability should be based on their respective national market shares.

The District Court denied Defendants' motion for judgment as a matter of law. Defendants appealed to the United States Court of Appeals, Second Circuit, which certified two questions at issue to the New York Court of Appeals. The Court of Appeals held that Defendant handgun manufacturers did not owe Plaintiffs a duty to exercise reasonable care in the marketing and distribution of their product, and that, if liability were to exist in this case, it should not be apportioned on a market-share basis.

1. Whether handgun manufacturers owed victims of handgun shootings a duty to exercise reasonable care in the marketing and distribution of their products.

2. Whether liability for the negligent manufacturing and marketing of handguns can be apportioned on a market-share basis, and if so, how.

1. No. Handgun manufacturers do not owe a duty of reasonable care to victims of handgun shootings in the marketing and distribution of handguns where such a duty could possibly encompass a very large number of plaintiffs, where the manufacturers are not shown to be a direct link in the causal chain of Plaintiffs' injuries, and where the manufacturers are not in a position to take reasonable steps to prevent the alleged harms.

2. No. Liability resulting from the negligent marketing and distribution of handguns may not be apportioned among handgun manufacturers on a market-share basis where the handguns are not deemed fungible and where the manufacturers engaged in varied production and marketing techniques that do not necessarily correspond to the amount of risk created by each manufacturers' conduct.

State of the Law Before Hamilton

In general, in determining whether a legally recognized duty of care exists, New York courts have traditionally relied upon an analysis of a number of balancing factors, including, but not limited to, the forseeability of risk and the existence of a specific duty of care owed to the injured party. Essential to the finding of a duty of care has been the defendant's ability to protect against the risk of harm, with liability extending only to those defendants "in the best position" to prevent the injuries of a limited, specific class. Thus, the Court of Appeals has been reluctant to impose liability for the acts of another without a specific relationship between the parties, such as parent/child or master/servant, and has sought to avoid placing defendants in situations of unlimited liability based upon third-party conduct.

Decisions have not always been consistent, however, in holding that "unending liability" is reason enough to limit the scope of duty. See e.g. MacPherson v. Buick Motor Co., 217 N.Y. 382 (N.Y. 1916); Millington v. S.E. Elevator Co. 22 N.Y.2d 498 (N.Y. 1968). Moreover, in some circumstances, the doctrine of negligent entrustment has dictated that control of a dangerous instrument imposes a duty to entrust it to a responsible person whose use does not create an unreasonable risk of harm to others. Restatement (Second) of Torts § 390; but see Earsing v. Nelson, 212 A.D. 2d 66 (1995) (holding that the theory of negligent entrustment does not extend to the manufacturer of an air gun). In general, the Court has avoided enlarging the scope of duty unless public policy goals would be furthered and the benefits to society would outweigh the costs of imposing a new duty of care upon a large number of potential defendants. See, e.g., Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 230 (N.Y. 1987).

Market-share liability has been a theory of recovery in the New York courts for plaintiffs harmed by a fungible product whose manufacturer was impossible to determine, and where the manufacturers generically marketed their product. See Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989). In instances where market-share liability has been applied, the defendant tortfeasors' liability has been apportioned among all manufacturers based upon the market share of each at the time of the tortuous act. In New York as well as other jurisdictions, market-share liability has never applied where products were not fungible, nor where each independent manufacturer's conduct created different degrees of harm. See e.g. Brenner v. American Cyanamid Co., 263 A.D.2d 165.

Effect of Hamilton on Current Law

The Court of Appeals held that Defendant handgun manufacturers do not owe Plaintiffs a duty to exercise reasonable care in the marketing and distribution of their product, and that, if liability were to exist in this case, it would not be apportionable on a market-share basis.

The holding in Hamilton thus limits the duty of care and consequent liability that may be imposed upon a gun manufacturer where the negligence alleged is based upon the acts of the gun industry rather than the acts of one manufacturer. The Court found the relationship between the gun manufacturers, the criminal wrongdoers, and Plaintiffs to be too remote to create a duty of care. The Court stated that such a duty should not be imposed without a more "tangible showing" of a direct causal link to the injuries and a showing that Defendants were "realistically in a position to prevent the wrongs." This suggests that even with the benefit of favorable inferences, plaintiffs are still required to make a strong showing of a causal link before a duty and corresponding liability would be imposed upon defendant gun manufacturers.

In addition, the Court limited the relevance of the foreseeability of harm as a determinative factor in establishing a duty of care, and likewise distinguished and thus curtailed the applicability of theories of products liability exemplified in cases such as MacPherson v. Buick Motor Co., 217 N.Y. 382 (N.Y. 1916). In Hamilton, the Court found no showing of a product defect or failure to warn, and refused to analogize the relationship between the gun manufacturers and Plaintiffs to the protective relationship existing in other industries, thus eliminating the potential for such reasoning to succeed in future challenges to the gun industry.

The Court further held that a duty of care cannot be imposed based upon the negligent entrustment doctrine because Plaintiffs did not show that Defendants knew or had reason to know that the distributors sold guns into the illegal gun-trafficking market on a consistent basis. The Court suggested that such a duty might be imposed if the manufacturer had the requisite knowledge that specific groups of dealers played a "disproportionate role in supplying the illegal gun market." The Court's extension of duty in these instances might be further limited, however, by the Court's refusal to acknowledge an affirmative duty on the part of manufacturers to identify and investigate corrupt dealers.

In finding that liability in this case may not be apportioned on a market-share basis, the Court concluded that guns were not identical, fungible products, and in this respect, differed from the situation in Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (N.Y .1989), where the Court applied market share liability with respect to the birth control drug DES. In addition, the Court found that although Plaintiff sought to hold all Defendants liable based on market share, the manufacturers' marketing techniques were not uniform, and no attempt was made to determine relative fault. A further obstacle Plaintiffs failed to overcome was the fact that a differing degree of risk for abuse was created based on Defendants' varying conduct, and that such risk should be assessed in light of the additional probability that Plaintiffs' injuries were caused from non-negligently marketed guns. Thus, even if Defendants' market share in the negligently marketed gun market could be determined, it seems the liability would further be reduced by the probability that a negligently marketed gun in fact caused the injuries. See Twerksi & Sebok, Liability Without Cause? Further Ruminations on Cause-in-Fact as Applied to Handgun Liability, 32 CONN. LAW REV. 1379, 1398-1404 (Summer 2000). This suggests that the ultimate liability imposed if market-share theory were applied might be more difficult to determine than the District Court's calculations indicate and would result in far less liability overall for specific manufacturers.

Unanswered Questions

The Court based its finding in part on the lack of evidence directly placing the Defendant in the causal chain of events leading to the Plaintiff's injuries. If stronger evidence were presented that the manufacturer negligently marketed its handguns and proximately caused Plaintiffs injuries, could the manufacturer have owed a duty of reasonable care to the victims of handgun shootings? What kind of evidence, if any, could ever demonstrate that negligence?

The Court noted that the negligent entrustment doctrine might support the extension of a duty to manufacturers to avoid selling to certain distributors in circumstances where the manufacturer knows or has reason to know that those distributors are engaging in substantial sales of guns into the illegal gun-trafficking market on a consistent basis. What constitutes "substantial sales" into the illegal gun-trafficking market?

Would the difficulty in the market-share liability calculations cited in the Court's opinion, limiting damages to the proportion to which defendant's negligent marketing enhanced the risk of injury by handguns, lead the Court to be less likely to apply market-share liability in the future?

Survey of the Law in Other Jurisdictions

Courts in other jurisdictions have been reluctant to extend liability to gun manufacturers where the basis of liability is negligent manufacturing and distribution. California's Civil Code provides that no firearm shall be deemed defective under a product liability claim on the basis that the benefits of the firearm do not outweigh the societal risks and costs. Cal. Civ. Code. § 1714.4(a) (1998). The California Supreme Court has interpreted this statute strictly. See Merrill v. Navegar, Inc., 28 P.3d 116 (Cal. Ct. App. 2001) (rejecting the plaintiff's attempt to bypass the statute, stating that the California Legislature's intent was to bar negligence claims involving risk/benefit analysis). Similarly, an Illinois Appellate Court rejected outright the idea of subjecting gun manufacturers to strict liability claims. See Miller v. Civil Constructors, Inc., 651 N.E.2d 239, 245 (Ill. App. Ct. 1995) (holding that because the risk of harm in using a firearm may be practically eliminated through the use of reasonable or utmost care, the imposition of strict liability would unnecessarily require the user to ensure complete safety regardless of the degree of care used).

The Texas Court of Appeals and the Florida Supreme Court, however, have recognized negligent entrustment as a basis for gun manufacturer liability. See Kennedy v. Baird, 682 S.W.2d 377 (Tex. Ct. App. 1984) (stating that a crucial element of a negligent entrustment claim is the degree of knowledge that the defendant had or should have had regarding the entrustee's ability to use the object in a dangerous and harmful manner); Kitchen v. K-Mart Corp., 697 So. 2d 1200 (Fla. 1997) (holding that the defendant had the requisite knowledge required for negligent entrustment where the victim's boyfriend bought the gun at the defendant's store while intoxicated).

Market-share liability has been used in some jurisdictions. However, it has not been applied against gun manufacturers. The first notable application of market-share liability was in a California court. See Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980). The Sindell case involved DES, a generic drug produced by many manufacturers, which was found to cause cancer in the children of the mothers who ingested the drug. Given the time period that elapsed between the ingestion of the drug and the discovery of cancer, it was impossible to ascertain the identity of the specific manufacturer. Id. at 936. The California Supreme Court's rationale for using market-share liability was that causation was impossible to establish given the unusual circumstances of the case and that the drug was a fungible product, which all of the defendants produced and manufactured in similar manners.

In contrast, Pennsylvania courts have never adopted market-share liability. See Mellon v. Barre-National Drug Co., 18 Pa. D.& C.4th 321 (Pa. C. P. CT 1993). In rejecting the plaintiff's claim of market-share liability against the manufacturers of an over-the-counter weight control drug, the District Court of Pennsylvania held that the facts of the case did not fit those of the DES cases. Id. at 329. The court further held that the use of market-share liability should be a very narrow exception to the general rule that causation must be established, and because such unusual exceptions had not yet been brought in Pennsylvania court, the state did not accept the doctrine. Id.