MEMORANDUM OPINION AND ORDER
THIS MATTER comes on for consideration of Defendants’ motion to dismiss. The Court, having reviewed the pleadings, the evidence of record and the relevant law, finds that Defendants’ motion is well taken and will be granted.
This diversity action presents an issue of first impressiоn before the courts of New Mexico. The issue, simply stated, is as follows: May the manufacturer of a gun which is used as an instrument for murder and assault be held liable in damages to a victim of such criminal activity? In this diversity action, this Court must follow New Mexico law. Fedеral courts, sitting in diversity, are required to apply the law of the forum state.
Pound v. Insurance Co. of North America,
The facts from which this claim arose are as follows. On or about April 3, 1983, Plaintiff Dоlores Armijo’s brother, Steven Armijo, shot and killed James Fray Saulsberry, Plaintiff’s husband. Complaint, ¶ 5. Both Plaintiff and her young daughter witnessed the shooting, id., 1111, and were subjected to an assault by Steven Armijo, whereby he attempted to fire the gun at them, but it did not go off. Plaintiff’s Response to Motion to Dismiss, p. 1.
Plaintiff alleges that the gun used by Steven Armijo to commit those criminal acts was of a type commonly known as a “Saturday Night Special.” Complaint, 116. Defendant Ex Cam, Inc., is the importer and distributor of the gun which was used. Defendant Armi Tanfoglio Giuseрpe [“Armi”] is the manufacturer and distributor. Id., 115.
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The Plaintiff presents four theories in support of her relatively novel claim: strict products liability, liability under an “ultra-hazardous activity” theory, negligence, liability, and a narrow form of strict products liability for “Saturday Night Spеcials” articulated by the Supreme Court of Maryland in
Kelley v. R.G. Industries, Inc.,
Strict Products Liability
The New Mexico courts have аdopted the law of strict products liability in tort, as set forth in the Restatement (Second) of Torts § 402A.
1
Stang v. Hertz Corp.,
Plaintiffs argument for strict liability fails on the first of these elements, that the product must be “defective.” Plaintiff does not allege anywhere in her Complaint that the gun in question misfired оr otherwise worked improperly. Plaintiff does not allege that the gun performed otherwise than exactly as intended. Rather, Plaintiff argues that the risk of intentional criminal misuse of such a firearm, such as happened in this case, is so great as to outweigh any potential societal benefit of the product, thus rendering it defective. No New Mexico case law supports this novel theory. Rather, the appropriate test for “defective condition” is found in comment g to § 402A: “g. Defective Condition. The rule stated in this section applies only where the product leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.” (Emphasis added.) Implicit in this analysis is the understanding that a product which has inherent and obvious dangers, which the avеrage consumer would certainly recognize, is not “defective,” merely because it was placed on the marketplace with such obviously dangerous propensities. It would be evident to any potential consumer that a gun could be used as a murder weapon. So could a knife, an axe, a bow and arrows, a length of chain. The mere fact that a product is capable of being misused to criminal ends does not render the product defective.
Although there is no New Mexico case law directly on this point, this Court believes that New Mexico courts would follow the overwhelming weight of authority which rejects strict products liability as a theory for holding handgun manufacturers liable for the criminal misuse of their products.
See Delahanty v. Hinckley,
Nos. 82-409 & 82-490, slip op. (D.C.D.C. Dec. 8, 1986);
Moore v. R.G. Industries, Inc.,
“Ultrahazardous Activity”
Plaintiff argues, in her brief, that marketing of handguns should be classed as an “ultrahazardous activity” subject to strict liability.
2
Such a theory with respect to handgun manufacturers is not supported by New Mexico case law. In
Ruiz v. Southern Pacific Transportation Co.,
We can thus dispense with the strict liability considerations raised in the “500” Series of the Restatement. New Mexico has not yet recognized the theory of a landowner’s strict liability except in cases where his activity has involved the use of explosives.
The
Ruiz
decisiоn indicates a willingness on the part of New Mexico courts to confine “ultrahazardous activity” liability to a specific setting: activities carried out on real property. However, a prior case had, without actually deciding the issue, indicated that the ultrahazardous activity doctrine might have some applicability in the products liability area. In
First National Bank v. Nor-Am Agricultural Products, Inc.,
Whether or not the New Mexico courts intended, by this ruling, to imply that the “ultrahazardous activity” doctrine may be used to assert strict liability against the manufacturer of a product is unclear, especially in light of the more recent
Ruiz
opinion. However, even applying the
First National Bank
test to the case at bar would not result in liability for a manufacturеr of guns, as guns are commonly distributed and the dangers, if misused, are so obvious as to not require any manufacturers’ warnings. The
First National Bank
test would be more suited to impose liability on the
user
of a firearm than on the seller. Furthermore, a different conclusion would produce a result clearly contrary to existing New Mexico products liability law, which declines to make manufacturers into
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insurers.
See Skyhook v. Jasper, supra.
To hold sellers liable under the “ultrahazardous activity” doctrine would, in the words of the Seventh Circuit, “require that manufacturers of guns, knives, drugs, alcohol, tobacco and other dangerous products act as insurers against all damages produced by their products.”
Martin v. Harrington & Richardson, Inc.,
Negligence
Plaintiff additionally seeks to impose liability on Defendants under a negligence standard. Plaintiff argues that Defendants breached a duty of reasonable care in marketing a product which carried some degree of risk that it might be used in a criminal enterprise. However, this Court is not persuaded that the New Mexico courts would be inclined to impose such a duty. Plaintiff points to cases such as
Lopez v. Maez,
The Kelley Case
In
Kelley v. R.G. Industries, Inc.,
This Court finds it unnecessary to engage in any lengthy discussion of the Kelley doctrine. To recognize such a cause of action in New Mexico would require an abrogation of the common law in a way bordering on judicial legislation. A federal court sitting in diversity is especially reluctant to take such action, in the absence of more specific guidance from the state courts. Furthermore, creation of such a doctrine is extremely problematic insofar as which manufacturers would be held liable. All firearms are capable of being used for criminal activity. Merely to impose liability upon the manufacturers of the cheapest types of handguns will not avoid that basic fact. Instead, claims against gun manufacturers will have the anomalous result that only persons shot with cheap guns will be able to recover, while those shot with expensive guns, admitted by the Kelley court to be more accurate and therefore deadlier, would take nothing. This Court does not believe the New Mеxico courts would adopt such a doctrine.
Wherefore,
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Notes
. § 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer (1) One who sells any product in a defective condition unreasonably dangеrous 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 product, and
(b) it is expected to and dоes 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 (b) thе user or consumer has not bought the product from or entered into any contractual relation with the seller.
. Under § 519 of the Restatement (Second) of Torts: “One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.” Section 520 of the Restatement sets forth the following factors to be considered in determining whether an activity is abnormаlly dangerous:
(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;
(d) extent tо 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.
. See §§ 30-7-1, 30-7-2, 30-7-3, 30-7-4, 30-7-9, 30-7-16, 4-41-10, 4-41-10.1, 17-2-12, 17-2-20.1, 17-2-20.2, 17-2-33 NMSA 1978 & 1984 Supp.
. For example, the court found such guns to be "too inaccurate, unreliable, and poorly made for use by law enforcement personnel, sportsmen, homeowners or businessmen.”