Lead Opinion
Plaintiffs include two surviving victims and the estate of one deceased victim of the December 7, 1993 assault on the 5:33 p.m. Long Island Railroad commuter train.
BACKGROUND
On December 7, 1993, Colin Ferguson boarded the Long Island Railroad’s 5:33 p.m. commuter train departing from New York City and opened fire on the passengers. Six people, including Dennis McCarthy, were killed and nineteen others, including Kevin McCarthy and Maryanne Phillips, were wounded in the vicious attack. Ferguson was armed with a 9mm semiautomatic handgun, which was loaded with Winchester “Black Talon” bullets (Black Talons). The injuries to Dennis and Kevin McCarthy and Maryanne Phillips were enhanced by the ripping and tearing action of the Black Talons because, unfortunately, the bullets performed as designed.
Plaintiffs brought this action against Olin, Sturm, Ruger & Company Inc., the manufacturer of the handgun used by Ferguson, and Ram-Line Inc., the manufacturer of the fifteen round capacity magazine used with the handgun, in New York State Supreme Court to recover for the injuries of Kevin McCarthy and Maryanne Phillips and the death of Dennis McCarthy. The complaint was based on various theories of negligence and strict liability. Defendants removed the case to the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. § 1441(a), on the grounds that the district court had original jurisdiction based on diversity of citizenship of the parties under 28 U.S.C. § 1332(a)(1). The action was subsequently discontinued with prejudice against Sturm, Ruger and Ram-Line.
Olin moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The district court granted the motion. First addressing the issue of negligence, the court held that plaintiffs’ negligence theories must fail because Olin owed no duty to plaintiffs to protect them from criminal misuse of the Black Talon ammunition. McCarthy,
Plaintiffs appeal the dismissal of their complaint, claiming that the issue of whether they will ultimately prevail is a matter to be determined on a factual basis and not merely on the pleadings. In the alternative, plaintiffs request that because the complaint is based on novel theories of liability under New York law, we certify the questions raised in this case to the New York Court of Appeals.
DISCUSSION
We review de novo the district court’s dismissal of the complaint under Fed. R.Civ.P. 12(b)(6) and draw all reasonable inferences in the plaintiffs’ favor. Jackson Nat’l Life Ins. Co. v. Merrill Lynch & Co.,
A federal court sitting in a diversity ease will apply the substantive law of the forum state on outcome determinative issues. See Erie R.R. Co. v. Tompkins,
Appellants argue that in New York, there is no definite rule of law as to liability for ammunition manufacturers, especially ammunition designed to cause enhanced injuries beyond ordinary bullets, and therefore the district court erred in dismissing their complaint. Appellants reason that because they raise “novel” theories of liability, discovery should be allowed so that the issues may be explored in “light of actual facts rather than pleading suppositions.” As an alternative to their argument for remand, appellants ask us to certify the questions raised in this ease to the New York Court of Appeals. We address appellants’ arguments in reverse order, first discussing the standard applied to determine suitability for certification. Because we hold that certification is not warranted, we will then address the merits of the substantive issues raised in this appeal.
I. Certification to the New York Court of Appeals
The procedure for certifying a question of law to the New York Court of Appeals is governed by Second Circuit Rule 0.27 and New York Court of Appeals Rule 500.17. See also N.Y. Const, art. VI, § 3(b)(9). “Certification is a discretionary device, both for the certifying court and for the court requested to answer the certified question[s].” Riordan v. Nationwide Mut. Fire Ins. Co.,
the benefit of an authoritative construction from the state’s highest court before proceeding to the merits of the dispute ... [and] may further the interests of federal/state comity by providing the state court with the opportunity to rule on an issue of state law before being precluded from doing so by a contrary federal court judgment.
Dorman v. Satti,
Certification should not be used as “ ‘a device for shifting the burdens of this Court to those whose burdens are at least as great.’ ” Dorman,
Recently, the New York courts have had the opportunity to address issues almost identical to those raised in this case. See Pekarski v. Donovan, Nos. 95-11161, 95-1175, 95-1187, slip op. (N.Y.Sup.Ct. Oneida County Sept. 27, 1995);
II. Strict Liability
Appellants’ first argument is that Olin should be held strictly liable for their injuries because the Black Talon ammunition was defectively designed and the design and manufacture of the bullets were inherently dangerous.
A. Design Defect
A manufacturer who places into the stream of commerce a defective product which causes injury may be held strictly liable. Amatulli v. Delhi Const. Corp.,
To state a cause of action for a design defect, plaintiffs must allege that the bullet was unreasonably dangerous for its intended use. “[A] defectively designed product is one which, at the time it leaves the seller’s hands, is in a condition not reasonably contemplated by the ultimate consumer.” Robinson v. Reed-Prentice Division of Package Mach. Co.,
Sadly it must be acknowledged that: [m]any products, however well-built or well-designed may cause injury or death. Guns may kill; knives may maim; liquor may cause alcoholism; but the mere fact of injury does not entitle the [person injured] to recover ... there must be something wrong with the product, and if nothing is wrong there will be no liability.
DeRosa v. Remington Arms Co.,
Appellants have not alleged that the bullets were defective. “As a matter of law, a product’s defect is related to its condition, not its intrinsic function.” Forni,
Appellants next argue that under the risk/utility test analysis applied by New York courts, appellee should be held strictly liable because the risk of harm posed by the Black Talons outweighs the ammunition’s utility. The district court properly held that the risk/utility test is inapplicable “because the risks arise from the function of the product, not any defect in the product.” McCarthy,
The purpose of risk/utility analysis is to determine whether the risk of injury might have been reduced or avoided if the manufacturer had used a feasible alternative design. See Urena,
Appellants also argue that Olin should be held strictly liable because the Black Talon ammunition is “unreasonably dangerous per se.” According to the appellants’ theory, a product is unreasonably dangerous per se if a reasonable person would conclude that the danger of the product, whether foreseeable or not, outweighs its utility.
III. Negligence
In their complaint, appellants asserted causes of action for the negligent marketing and manufacture of Black Talon bullets. On appeal, appellants do not appear to pursue their negligent manufacturing claim but rather focus their argument on Olin’s negligent marketing of the ammunition. For the reasons discussed below, appellants cannot assert a cause of action under either theory of negligence.
The crux of appellants’ negligence theory is that Olin negligently marketed and placed the Black Talon ammunition for sale to the general public. Appellants argue that because of the severe wounding power of the bullets, Olin should have restricted sales to law enforcement agencies, for whom the bullet was originally designed. They also argue that Olin should have known that their advertising, which highlighted the ripping and tearing characteristics of the bullet, would attract “many types of sadistic, unstable and criminal personalities,” such as Ferguson.
To state a cause of action for negligence, the plaintiffs must show: (1) that Olin owed them a “duty, or obligation, recognized by law”, (2) a breach of the duty, (3) a “reasonably close causal connection between [defendant’s] conduct and the resulting injury” and (4) loss or damage resulting from the breach. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 30, at 164-65 (5th ed.1984) (hereinafter Prosser & Keeton). Becker v. Schwartz,
In tort cases, foreseeability is often confused with duty. Foreseeability “is applicable to determine the scope of duty— only after it has been determined that there is a duty.” Pulka v. Edelman,
New York courts do not impose a legal duty on manufacturers to control the distribution of potentially dangerous products such as ammunition. Accordingly, although it may have been foreseeable by Olin that criminal misuse of the Black Talon bullets could occur, Olin is not legally liable for such misuse. As the district court pointed out, appellants have not alleged that any special relationship existed between Olin and Ferguson. Here, Olin could not control the actions of Ferguson. “[I]t is unreasonable to impose [a] duty where the realities of every day experience show us that, regardless of the measures taken, there is little expectation that the one made responsible could prevent the ... conduct [of another].” Pulka,
It is “the responsibility of courts in fixing the orbit of duty, to limit the legal consequences of wrongs to a controllable degree and to protect against crushing exposure to liability.” Strauss v. Belle Realty Co.,
CONCLUSION
Because we hold that the Black Talon bullets were not defectively designed, we must affirm the dismissal of appellants’ strict liability claims. We also hold that Olin was under no legal duty to prevent criminal misuse of its product and therefore affirm the dismissal of the negligence claims. Although appellants are the victims of a horrible tragedy, under New York law, they have failed to state a cause of action upon which relief can be granted — in sum, New York law does not afford them a remedy. Accordingly, we affirm the judgment of the district court.
Notes
. Robert C. Phillips, the spouse of surviving victim Maryanne Phillips, and Carolyn McCarthy, in her individual capacity, the spouse of deceased victim Dennis McCarthy, are also named plaintiffs in the action.
. The Appellate Division, First Department affirmed the decision on October 1, 1996, after the district court dismissed this action.
. Although the dissenting opinion suggests that we should formulate a new standard to determine whether certification is appropriate, Dissenting Op. at Section I, we note that Riordan establishes the standard applicable in this Circuit for determining whether it is appropriate to certify a question to a state court, and that we have "no authority to depart from Second Circuit precedent unless it has been overruled in banc or by the Supreme Court.” Leecan v. Lopes,
. In 1994, former Rome, New York police officer Joseph Merola killed two teenagers and wounded two others allegedly using Black Talon bullets during a shooting rampage. The victims of the shooting brought three separate actions against, inter alios, Olin in the New York Supreme Court, Oneida County. The cases were consolidated and are hereinafter collectively referred to as "Pekarski."
. The dissenting opinion claims that our practice of according intermediate state court decisions substantial weight in our determination of how the state’s highest court would likely rule will encourage forum-shopping. The dissenting opinion argues that this practice would encourage litigants who are favored by the intermediate court rulings to always file suit in federal court, to avoid the possibility, however slim, that the highest state court might overturn the intermediate court ruling. We note, however, that if we completely disregard state lower court rulings in determining how a state’s highest court might rule, we would encourage forum-shopping by the litigants who are disfavored by the state lower court rulings. In any event, surely it makes sense to give the rulings of state lower courts, which are in a better position than federal courts to predict the workings of the state's highest court, substantial weight — especially where, as in the instant case, these state court rulings are consistent with the well-nigh unanimous opinion of courts across the country.
. Appellants cite Halphen v. Johns-Manville Sales Corp.,
It is also noted that appellants argued in the district court that manufacturing the ammunition was an ultrahazardous activity. This claim is not pursued on appeal.
Dissenting Opinion
dissenting:
/
This case is less about bullets than about federal/state relations. It raises important questions of when it is appropriate for this court to certify issues of New York law to the New York Court of Appeals. I believe that federal courts in general, and this circuit in particular, have tended to be far too reluctant to certify questions to the state courts. See, e.g., Martin Flumenbaum & Brad S. Karp, Certification of Unsettled Law Issues, N.Y.L.J., Jan. 29, 1992, at 3 (noting that the procedure for certification to the New York Court of Appeals “has been used only sparingly by the Second Circuit,” which in 1992 had certified only five issues over the preceding six-year period). Specifically, federal courts have all too often refused to certify when they can rely on state lower court opinions to define state law. I view this reluctance as both wrong and unjust.
Reluctance to certify is wrong because it leads to precisely the kind of forum shopping that Erie R.R. Co. v. Tompkins,
If the federal court treats the plaintiff more favorably than the state tribunal would, then the plaintiff always files in federal court; similarly any departure in the manufacturer’s favor leads the defendant to remove any suit filed in state court. In either case, the state loses the ability to develop or restate the principles that it believes should govern the category of cases. Certification then ensures that the law we apply is genuinely state law.
Id.
When federal courts, in effect, prevent state courts from deciding unsettled issues of state law, they violate fundamental principles of federalism and comity. As the Supreme Court has noted, while certification may cause delay in any given case, “[i]t does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism.” Lehman Bros. v. Schein,
Reluctance to certify is unjust because, as has happened with some frequency,
The case of DeWeerth v. Baldinger provides a striking example. In that case, the plaintiff, DeWeerth, had originally prevailed in the federal district court, which ruled that as a matter of New York law she had established ownership of a valuable impressionist painting that had been stolen from her forty years earlier. See DeWeerth v. Baldinger,
Three years later, the New York Court of Appeals was presented with precisely the same issue, and held that the statute of limitations does not require a showing of reasonable diligence. See Solomon R. Guggenheim Found. v. Lubell,
Although the [Second Circuit in DeWeerth ] acknowledged that the question posed by the case was an open one, it declined to certify it to this Court, stating that it did not think that it “[would] recur with sufficient frequency to warrant use of the certification procedure.” Actually, the issue has recurred several times in the three years since DeWeerth was decided, including the case now before us. We have reexamined the relevant New York case law and we conclude that the Second Circuit should not have imposed a duty of reasonable diligence on the owners of stolen art work for purposes of the Statute of Limitations.
Id. (citations omitted).
Following the New York Court of Appeals’ decision in Guggenheim, DeWeerth attempted to reopen her case in order to have her dispute decided in accordance with the actual law of New York. See DeWeerth v. Balding-er,
Before the advent of the certification procedure, this court had little choice but to “do [its] best to predict what the highest state
This last is why the statement quoted by the majority, ante, Op. at 153, that the certification “procedure must not be a device for shifting the burdens of this Court to those whose burdens are at least as great,” Dorman v. Satti,
Just as the Supreme Court of the United States can decide for itself whether it wishes to grant certiorari, so too can state courts make analogous decisions as to certification. If anything, it is the failure to certify when certification is plausible that burdens state courts, because such a failure puts pressure
This is not to say that certification should be used indiscriminately. As Judge Cabranes has explained, federal courts must be careful to certify only in appropriate cases. See L. Cohen & Co., Inc. v. Dun & Bradstreet, Inc.,
II
In cases that are dramatic and involve “hot” issues, there is a tendency for the parties to describe themselves as raising new issues that are remarkable in their legal context.
A. Liability for negligence
To hold a defendant hable in negligence in New York, a plaintiff must show: 1) a duty on the part of the defendant; 2) a breach of that duty by conduct involving an “unreasonable risk of harm,” W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on the Law of Torts, § 53 at 358 (5th ed.1984) [hereinafter Prosser & Keeton]; 3) damages suffered by the plaintiff; and 4) causation, both in fact and proximate, between the breach and the plaintiffs harm. See, e.g., Febesh v. Elcejay Inn Corp.,
1. Conduct involving an unreasonable risk of harm
The plaintiffs alleged in their complaint that the defendant created an unreasonable
Could a New York jury find that there was an undue risk of harm, if not in producing Black Talons, then in advertising them for use by (and selling them to) the general public? Put differently, could a jury find that the benefit gained by making Black Talons available to the public was outweighed by their potential harm.
The distinctive feature of the Black Talon bullet is that it “is designed to expand upon impact exposing razor-sharp edges at a 90-degree angle to the bullet. This expansion dramatically increases the wounding power of the bullets.” McCarthy v. Sturm, Ruger and Co.,
There is nothing novel in finding negligence on these grounds. New York law recognizes that a defendant can be held liable for negligently marketing a product. See, e.g., Kaufman v. Eli Lilly and Co.,
The fact that the New York legislature has not chosen to forbid the distribution of Black Talons in no way alters the conclusion that the defendant may have been negligent in marketing them to the general public.
I therefore conclude that there is little doubt that if the New York Court of Appeals
2. Damages
No one questions that the plaintiffs suffered harm of the most serious sort on the evening of December 7, 1993. Carolyn McCarthy lost her husband, who was shot in the head with a Black Talon bullet. Kevin McCarthy was shot in the head and hand, and now suffers paralysis. Maryanne Phillips was shot in her left arm, which was nearly destroyed by a Black Talon bullet. Whether these damages can be said to have resulted from the defendant’s decision to market Black Talons is a question of causation, and is considered immediately below.
S. Causation
Under New York law, a plaintiff alleging negligence must prove that the defendant’s breach of duty was a cause of the plaintiffs injury. Generally, there must be cause in fact, a causal tendency (that is, a “causal link”), and proximate cause. See Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. Chi. L. Rev. 69, 71-73 (1975) [hereinafter Calabresi, Concerning Cause ].
The first of these, the requirement that the defendant’s negligent act was a but for cause of the injury, see, e.g., Saulpaugh v. State,
The plaintiffs have clearly made such a showing here. Their allegations, if true, will support a finding that, but for the defendant’s marketing of its product to persons like Colin Ferguson, the plaintiffs would not have suffered such extensive injuries. Indeed, the majority concedes that “[t]he injuries to Dennis and Kevin McCarthy and Maryanne Phillips were enhanced by the ripping and tearing action of the Black Talons.” Ante, Op. at 151; cf. Bolm v. Triumph Corp.,
Similarly there can be no doubt that a causal tendency was shown.
While it is true “that an intervening intentional or criminal act will generally sever the liability of the original tort-feasor,” New York law is clear that “[t]hat doctrine has no application when the intentional or criminal intervention of a third party or parties is reasonably foreseeable.” Kush v. City of Buffalo,
Jp. Duty
Three of the four elements of negligence liability have, without question, been sufficiently alleged under New York law. The only aspect of this case — viewed as a negligence action — that is problematic is the existence of a duty. “In order to establish a prima facie case of negligence under New York law, a claimant must show that ... the defendant owed the plaintiff a cognizable duty of care....” Stagl,
In many jurisdictions, the existence of a duty depends primarily on 1) the foreseeability of harm to the plaintiff that would flow from the defendant’s negligent acts,
That is not, however, the law in New York. Under New York law, the question of the existence of a “[djuty in negligence cases is [not] defined ... by foreseeability of injury.” Strauss,
The question of the scope of an alleged tort-feasor’s duty is, in the first instance, a legal issue for the court to resolve. In this analysis, not only logic and science, but policy play an important role. The common law of torts is, at its foundation, a means of apportioning risks and allocating the burden of loss. While moral and logical judgments are significant components of the analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that the legal consequences of wrongs are limited to a controllable degree.
Waters v. New York City Housing Auth.,
Unlike foreseeability and causation, which are issues generally and more suitably entrusted to fact finder adjudication, the definition of the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration. Common-law experience teaches that duty is not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility. These sources contribute to pinpointing and apportioning of societal risks and to an allocation of burdens of loss and reparation on a fair, prudent basis.
... Courts traditionally and as part of the common-law process 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 Management Servs. Corp.,
This does not mean that the court is required- — or even permitted — to weigh such policy considerations to determine the existence of a duty in each individual New York negligence ease. Once the New York Court of Appeals has established that the relationship between plaintiffs and defendants in certain circumstances or categories of cases suffices to establish a duty of due care, all eases of like kind are covered by that finding, and there is no warrant to take a case from the jury for a separate judicial examination of duty.
It follows that, before we can be confident that there is a jury question as to negligence in this case, we must find precedents that establish a duty between the parties in cases akin to this one. I am not prepared to make such a finding. Nor, however, am I prepared to say that the New York Court of Appeals would not find that such a precedent exists or create one in this case. I am not, in other words, satisfied that the New York Court of Appeals has made a policy determination, one way or the other, in circumstances akin to those here.
The majority, instead, has no difficulty concluding that New York courts have determined that there is no duty here. It relies on the New York Court of Appeals’ statement that
[i]n the ordinary circumstance, common law in the State of New York does not impose a duty to control the conduct of third persons to prevent them from causing injury to others; liability for the negligent acts of third persons generally arises when the defendant has authority to control the actions of such third persons. This is so, we have said, even where “as a practical matter” defendant could have exercised such control.
Purdy v. Public Adm’r of Westchester,
Moreover, in cases such as this one involving the introduction of goods into the stream of commerce, New York courts have had little difficulty in holding the original seller to have a duty not only to the purchaser and parties having a direct relationship with the purchaser, but also to third-party bystanders. Thus, in the celebrated case of Codling v. Paglia,
In fact, under appropriate conditions, a defendant can even be held liable for the intervening criminal acts of a third party. See, e.g., Stagl, 52 F.3d at 467; Nallan v. Helmsley-Spear, Inc.,
What then does the New York Court of Appeals mean when it says that it has
imposed a duty to control the conduct of others where there is a special relationship: a relationship between defendant and [an intervenor] whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person’s conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others[?]
Purdy, 530 N.Y.S.2d at 516, 526 N.E.2d at 7.
It cannot mean that a duty will be imposed only where there is privity between the defendant and the victim. See, e.g., Codling,
What of this case? On the one hand, it seems that the defendant could have substantially reduced the harm caused by these unusually destructive bullets by not marketing them to the general public. And the danger of exposing the defendant to liability beyond sound public policy might not be present here, especially if the New York courts were to conclude that marketing Black Talons to the general public causes more harm than benefit.
Under the circumstances, it is hard to know whether the New York Court of Appeals would find a duty. The fact that the foreseeable intervenor behaved in a criminal, rather than a negligent, manner does not change matters for the purposes of proximate cause. See Kush, 462 4N.Y.S.2d at 835,
In this respect, the argument that, because it is legal to sell and advertise Black Talons, there can be no liability, is misplaced. As Judge Gabrielli has noted, “[t]he common-law duty of reasonable care to those within the ambit of foreseeable danger requires no buttressing by legislative enactment; nor does the absence of such legislation in the present instance exclude the possibility of liability.” Pulka,
It is precisely because the public policy decision of whether to impose a legal duty is one that the New York Court of Appeals has retained for itself that we should be especially inclined to certify the question to that Court, rather than to endeavor to resolve it ourselves. Certification is particularly warranted when “the resolution of [the issue] requires a careful weighing of competing state policies and potentially could affect a large number of people.” Jackson v. JohnsManville Sales Corp.,
B. Strict products liability
The requirements for strict products liability in New York are not markedly dissimilar from those for negligent products liability. Once again: a) a duty is needed; b) that duty must be breached by the defendant’s manufacture or sale of a defective product; c) the plaintiff must suffer an injury; and d) the defect must be the cause of the plaintiffs injury.
As to duty, damages, and causation, the same arguments made with respect to negligence apply here as well. And for those
The additional problem with the claim of strict products liability is that the plaintiffs must establish the existence of a defect. The majority notes that the New York Court of Appeals has explained that “a defectively designed product is one which, at the time it leaves the seller’s hands, is in a condition not reasonably contemplated by the ultimate consumer.” Robinson v. Reed-Prentice Div. of Package Mach. Co.,
There is no doubt that, in order for strict products liability to apply, there must be a defect, i.e. “something wrong with the product, and if nothing is wrong there will be no liability.” DeRosa v. Remington Arms Co.,
Historically, in determining whether a product is defectively designed, some courts have applied only the “risk/benefit test” while others have used only the “consumer contemplation test” alluded to by the majority. See id., § 99 at 698-700. But many courts have allowed a plaintiff to establish a defect, and hence liability, if the defendant’s product fails either of these tests. See, e.g., Turner,
In Robinson, the case upon which the majority relies, the New York Court of Appeals appeared to require that the plaintiff meet both tests:
Where a product presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to detailed plans and specifications, it is said to be defectively designed. This rule, however, is tempered by the realization that some products, for example knives, must by their very nature be dangerous in order to be functional. Thus, a defectively designed product is one which, at the time it leaves the seller’s hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce.
Robinson,
This dual requirement would be highly unusual. And more recently, the Court of Appeals, after quoting this passage from Robinson, went on to say that
[i]n order to establish a prima facie case in strict products liability for design defects,*172 the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiffs injury.
Voss v. Black & Decker Mfg. Co.,
Moreover, in Denny v. Ford Motor Co.,
Indeed, one recent commentator, after an extensive fifty-state survey, did not include New York on his list of the twenty-five “[sjtates which use consumer expectations as part of any test for strict liability design defects.” John F. Vargo, The Emperor’s New Clothes, 26 U. Mem. L. Rev. 493, 951 index 2 (1996). Instead, he noted that, while “the Robinson court mixed the consumer expectation test with a risk-utility test,” id. at 822, that court may not have intended that result, see id. at 823, and, after Voss and Denny, “New York law ... appears to relegate the consumer expectation test to the separate legal theory of warranty,” id. at 837.
Significantly, the Restatement of Torts, upon which the Court of Appeals relied in Robinson, now takes the position that the existence of a design defect should be determined solely by the risk/benefit test. See Restatement (Third) of Torts.- Products Liability § 2(b) & cmts. c, f (Tentative Draft No. 2,1995) [hereinafter, Restatement 3rd], According to the most recent Restatement, the consumer contemplation test no longer applies.
Since it is more than possible that the New York Court of Appeals would apply the risk/benefit test to determine whether the Black Talon is a defective product, and since, as discussed above, it cannot be said as a matter of law (especially by a federal court) that the benefits of the Black Talon outweigh
Nonetheless, the fact that a product fails the risk/utility test may not be sufficient to give rise to strict liability. This is so because, as the majority notes, New York law has appeared to require that the plaintiff also show a reasonable alternative design before she will be permitted to recover in strict liability for a defectively designed product. See Voss,
applies even though the plaintiff alleges that the category of product sold by the defendant is so dangerous that it should not have been marketed at all. Thus common and widely distributed products such as alcoholic beverages, tobacco, firearms, and above-ground swimming pools may be found to be defective only upon proof [that] ... reasonable alternative designs could have been adopted. Absent [such] proof ... courts do not impose liability based on a conclusion that an entire product category should not have been distributed in the first instance. That is, courts have not imposed liability for categories of products that are generally available and widely used and consumed, solely on the ground that they are considered socially undesirable by some segments of society.
Restatement 3rd, supra, § 2 cmt. c.
In the instant ease, however, a possible alternative design does exist. It consists of the elimination of the extra-destructive “talons.” The proposed Restatement contains a remarkably relevant discussion:
Several courts have suggested that the designs of some products are so manifestly unreasonable, in that they have low social utility and high degree of danger, that liability should attach even absent proof of a reasonable alternative design. In large part the problem is one of how the range of relevant alternative designs is described. For example, a toy gun that shoots hard rubber pellets with sufficient velocity to cause injury to children could be found to be defectively designed within the rule of § 2(b). Toy guns that do not produce injury would constitute reasonable alternatives to the dangerous toy. Thus, toy guns that project ping pong balls, soft gelatin pellets, or water might be found to be reasonable alternative designs to a toy gun that shoots hard pellets. However, if consideration is limited to toy guns that are capable of causing injury, then no reasonable alternative will, by hypothesis, be available. In that instance, the design feature that defines which alternatives are relevant — the capacity to injure — is precisely the feature on which the user places value and of which the plaintiff complains. If a court were to adopt this characterization of the product, it could conclude that liability should attach without proof of a reasonable alternative design. The court would condemn the product design as defective and not reasonably safe because the extremely high degree of danger posed by its use or consumption so substantially outweighs its negligible utility that no rational adult, fully aware of the relevant facts, would choose to use or consume the product.
Id., § 2 cmt. d.
It is worth noting that courts and commentators have been wrestling with the questions of what is a relevant safer alternative design, and whether entire categories of products can be deemed defective in the absence of an
I therefore believe that the question of whether the defendant can be held strictly liable for the alleged defective design of the Black Talon, like the question of duty, is “a complex question of New York common law for which no [controlling] New York authority can be found.” Riordan v. Nationwide Mut. Fire Ins. Co.,
I do not know whether the New York Court of Appeals would allow a cause of action for negligence or strict liability to proceed in this case. Nor do I know whether that Court should allow such liability.
. An analogous situation exists where there is authority from the state's highest court, but that authority is very old and has been ignored in recent years, during which time other jurisdictions have abandoned similar rulings. Cf. Harry Shulman, The Demise of Swift v. Tyson, 47 Yale L.J. 1336, 1350 (1938) (inquiring whether, under Erie, federal courts have "the power to disregard a state decision on the ground that it will doubtless be overruled by the state court at the first opportunity”); Arthur L. Corbin, The Common Law of the United States, 47 Yale L.J. 1351, 1352 (1938) (suggesting, critically, that under one reading of Erie, federal courts forced to apply state common law are "limited in a way in which the [state] judges themselves are not limited,” insofar as they cannot look to intervening decisions of the courts of other states, or to any other sources that might lead them to disregard or limit prior cases).
. See also Ira P. Robbins, The Uniform Certification of Questions of Law Act: A Proposal for Reform, 18 J. Legis. 127, 128 (1992) (noting that certification "resolves many of the problems associated with the Erie doctrine”); Appellate Certification of State Law Questions to State Courts, 9 No. 2 Fed. Litigator 56, 56 (1994) ("One of several considerations that can enter into a plaintiff's choice of forum when her citizenship is diverse from that of defendants is whether she would rather have a state court or a federal court decide matters of state law. Although federal courts are to decide such questions as state courts would, it is no secret that the tendencies of federal judges and state judges with respect to open questions in certain areas of the law are not always identical. To make the equation more complex, when a state supreme court has a procedure for certification of questions of law for determination by that court, a federal court may, but is not required to take advantage of it.”).
.See, e.g., Hakimoglu,
. This is quite different from cases in which the state’s highest court declines to hear an appeal from an intermediate court and later, on hearing a similar case, decides it differently from the way the earlier case was decided. In all such cases, it is the highest court of the jurisdiction whose law applies that has decided, for its own reasons, to let the result in the first case stand. Likewise, when the state’s highest court declines to accept certification from a federal court, it is the highest court of the jurisdiction whose law applies that, in effect, has decided to allow the federal court to guess as to the law of the state, and to permit that guess to be based on the usual sources of law employed by federal courts in diversity cases, including non-binding lower state court opinions, the law of other jurisdictions, etc. And a judgment — even a judgment to abstain — by the state’s highest court is all that a litigant is entitled to receive. When instead a federal court fails to certify, the highest court of the state is denied the right to decide whether it wishes to resolve the issue. The loser loses because a court that has no ultimate say as to the applicable law has made itself into a court of last resort. For these reasons, I am unconvinced by Judge Selya’s thoughtful arguments against certification. See Bruce M. Selya, Certified Madness: Ask a Silly Question. . ., 29 Suffolk U.L. Rev. 677 (1995). I agree with him that certification is not a panacea (and that it creates some procedural problems), but that is a far different issue.
. This is still the case today when federal courts are asked to ascertain the law of a state that has not provided for certification. See, e.g., Sargent v. Columbia Forest Prods., Inc.,
. See also Peterson v. U-Haul Co.,
.See, e.g., Harrison v. Insurance Co. of North America,
. The majority suggests that I am proposing a "new standard” for certification, in violation of Riordan v. Nationwide Mut. Fire Ins. Co.,
. The plaintiffs in the instant case are guilty of this mistake. See McCarthy v. Sturm, Ruger and Co.,
. The plaintiffs' negligent manufacturing claim was based on the fact "that a manufacturer is obligated to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use.” Micallef v. Miehle Co.,
. This is nothing more than the traditional "Hand formula.” See United States v. Carroll Towing Co.,
. One commentator has described this type of negligent marketing claim in these terms:
The imposition of negligence-based tort liability on the manufacturers of unreasonably and unavoidably unsafe products would require proof that a reasonable person in defendant's position, with the knowledge that defendant possessed' — or in the exercise of due care should have possessed — would not have marketed the product. Such a decision would be warranted if the foreseeable risks of harm from marketing the product would exceed the costs of avoiding that harm, which, in the product-liability context, is measured by the loss of utility that society incurs from the unavailability of the product.
Page, supra, at 97 (footnotes omitted). The decision not to limit the distribution of a dangerous product can constitute negligent marketing. See id. at 97 n. 40. Another commentator has articulated three potential negligent marketing claims: 1) a claim that the manufacturer acted unreasonably in marketing a product "that presents an unusually high risk of harm and negligible utility for legitimate purposes”; 2) a claim that the manufacturer implemented "a marketing strategy that deliberately, recklessly, or negligently targeted] criminal consumers”; and 3) a claim that the manufacturer failed "to take reasonable steps in the marketing process to minimize the risk that its products [would] be purchased by persons likely to misuse them.” MeClurg, supra, at 799.
. One lower federal court has attempted to cast doubt on this proposition, suggesting that a negligent marketing claim in a case like this one "really amount[s] to an alternate pleading of the [strict] product liability theory," and that the act of marketing a product cannot "give rise to liability absent a defect in the manufacture or design of the product itself.” Hamilton v. Accu-Tek,
Traditionally, products liability actions have been allowed to proceed on a number of grounds, including negligence and strict liability. See, e.g., Voss v. Black & Decker Mfg. Co.,
It is true that, in cases such as this one, the question of defect in strict products liability may closely resemble the question of breach in negligence, as the existence of a defect, like the existence of negligence, may depend (at least in part) on whether the benefit of the product outweighs the risk of harm. See infra Part II.B; see also Denny v. Ford Motor Co.,
Strict products liability for design defect ... differs from a cause of action for a negligently designed [or marketed] product in that the plaintiff is not required to prove that the manufacturer acted unreasonably in designing [or marketing] the product. The focus shifts from the conduct of the manufacturer to whether the product, as designed, was not reasonably safe. A manufacturer is held liable regardless of his lack of actual knowledge of the condition of the product because he is in the superior position to discover any design defects and alter the design before making the product available to the public.
Voss,
[t]o impose liability for negligence, it would not be necessary for the plaintiff to prove there was "something wrong” with the product. The plaintiff would need to show only that there was “something wrong” with the manufacturer’s conduct. To find for the plaintiff under a negligent marketing theory, the court essentially would be saying: "Your product may be fine, but there was 'something wrong’ with your selling it (or with the manner in which you sold it).”
McClurg, supra, at 801.
. The general rule is, of course, that the legality of an act does not insulate it from possible tort liability. Illegality may be negligence per se, as it is in New York, see Van Gaasbeck v. Webatuck Cent. Sch. Dist. No. 1,
. There are exceptions to this requirement, see, e.g., Modave v. Long Island Jewish Med. Ctr.,
. "There is a causal link [that is, a causal tendency] between an act or activity and an injuty when we conclude on the basis of the available evidence that the recurrence of that act or activity will increase the chances that the injury will also occur." Calabresi, Concerning Cause, supra, at 71. This concept is distinct from cause in fact. For instance, "but for the fact that the trolley driver had been speeding, the trolley car would not have been under a particular rotten tree when it fell and hit the car. Yet, unless speeding increases vibrations and vibrations increase the likelihood of trees falling, the admittedly but for cause would not be causally linked to the injury.” Id. at 72.
. See, e.g., Doucette v. Town of Bristol,
. See, e.g., Nutbrown v. Mount Cranmore, Inc.,
. The fact that the court in Codling found liability based on the nascent doctrine of strict products liability, rather than negligent products liability, is of no matter. In Codling, the trial court allowed the plaintiffs cause of action for negligence to proceed to the jury, which found no unreasonable conduct on the part of the defendant. See Codling,
It has been noted that "[t]he strict liability rule for products liability cases ... does not eliminate the requirement that, even where there is a defect in the product, there must be some duty owed to the plaintiff.” Walton v. Chrysler Motor Corp.,
Instead, in addition to Codling and Bolm, numerous cases suggest that, under New York law, the existence of a duty in strict liability establishes the existence of a duty in negligence as well. See, e.g., Colonno v. Executive I Assocs.,
. Whether the imposition of liability in these circumstances would go beyond the dictates of sound public policy is, of course, a difficult policy issue, but it is certainly not out of the question that the Court of Appeals might make just that determination.
. There is one situation in which that question has often come up in state courts. When a car owner negligently leaves the keys in the ignition of an unlocked car, and a thief steals the car and runs over a third-party pedestrian, does the car owner owe a duty to the pedestrian? In other words, could the defendant be held liable for the criminal acts of an intervenor absent any direct relationship with the plaintiff? Historically, a majority of jurisdictions answered this question in the negative, finding either no duty or no proximate cause. See Zinck v. Whelan,
In New York, the Court of Appeals initially indicated that it would allow liability in this situation. See Maloney v. Kaplan,
Not long after, the New York legislature enacted what is now N.Y. Veh & Traf. L. § 1210(a), which provides that ”[n]o person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, [and] removing the key from the vehicle." That "statute changed the prior case law and it is now clear that the intervention of an unauthorized person no longer operates to break the chain of causation.” Guaspari v. Gorsky,
Because they found no proximate cause, the courts of New York never reached the question of duty. By enacting § 1210(a), the slate legislature (reflecting the will of the people) imposed liability before the New York Court of Appeals had occasion to reconsider its decision and perhaps join the "substantial and growing number of jurisdictions” that have found not only proximate cause, but also a duty, in cases of this sort. As such, we have no indication of what the Court of Appeals would say about duty in this situation in the absence of a statute. It is worth noting, however, that the Court of Appeals’ earliest and only pronouncement on the subject, Maloney v. Kaplan, held, at least by implication, that a duty did exist.
. Cf. Note, Absolute Liability for Ammunition Manufacturers, 108 Harv. L. Rev. 1679, 1691 (1995) ("The primary advantage of [imposing tort liability on ammunition manufacturers] is that it will force consumers of ammunition to internalize costs that have heretofore been borne by third parties and society in general. Such internalization will provide manufacturers and consumers with the proper incentives to choose care and activity levels that more closely equate costs and benefits.”) (footnote omitted); id. at 1690 (noting that, unlike banning ammunition, imposing liability "does not reflect any moral or
.Indeed, the fact that the Black Talon has not been banned should not be taken to suggest that a majority of New Yorkers necessarily favors its continued availability. To the contrary, the public outcry against Black Talons was so great even before Colin Ferguson’s crime that their manufacturer chose to withdraw them from public distribution in the face of mounting political pressure. See Jamieson, supra, at 5. Bills had been introduced in Congress both to ban the bullets, see id., and, alternatively, to tax them out of existence. See Winchester Bows to Pressure, Halts Talon Bullet Sales, Balt. Sun, Nov. 23, 1993, at 5A. Police groups, including New York City's Police Commissioner, had advocated banning the bullets. See Jamieson, supra, at 5. Even emergency room physicians had condemned the bullets because of the danger of contracting blood-borne diseases when the razor-sharp talons pierce both their surgical gloves and their skin. See Winchester Halts Sale, supra, at A4; All Things Considered: Winchester Will no Longer Make the Black Talon Bullet (National Public Radio broadcast, Nov. 23, 1993).
In fact, one of the plaintiffs in this action, Carolyn McCarthy, was elected to Congress largely on a platform of opposition to assault weapons and extra-destructive ammunition. See NBC Nightly News (NBC television broadcast, Nov. 6, 1996) ("Carolyn McCarthy has been elected to Congress. The widow of one of the victims of the 1993 massacre on New York’s Long Island Railroad turned politician after her local congressman voted against a ban on assault weapons. Last night she defeated him.’’).
. Naturally, that task may also be undertaken by the state’s legislature. See supra note 21 (noting that the New York legislature imposed liability, where the Court of Appeals had not, for the injuries caused to a third person when a car owner leaves the keys in an unlocked car and an intervening thief steals the car and strikes the third person).
. These are not the elements of a cause of action in strict products liability. Those elements are much more specific, and depend on the theory of liability being asserted. See, e.g., Fane v. Zimmer, Inc.,
. The difference between this risk/ulility test and the Learned Hand test for negligence is that the latter requires that a reasonable person knew or ought to have known of the undue danger at the time that she or he acted, while the former imposes strict liability and is not limited by what the actor knew or should have known. See Voss,
. For a detailed analysis of the various tests adopted by state courts in determining the existence of a design defect, see John F. Vargo, The Emperor's New Clothes, 26 U. Mem L. Rev. 493, 538-47 (1996).
. The plaintiffs also claimed below that the defendant's decision to manufacture Black Talons as designed was negligent. It should be noted that, regardless of the applicability of the consumer expectations test in strict liability, New York law does not allow a manufacturer to rely on the obvious nature of the defect (that is, on reasonable consumer expectations) to defend against a claim of negligent design and manufacture. See Micallef v. Miehle Co.,
. This commentator suggests that the Court of Appeals’
prior statement concerning consumer expectations could be explained in at least two different ways. The court may be adopting a modified Barker [v. Lull Eng'g Co., supral rule in design cases — the design defect may be established by application of the consumer expectations test, but if this test proves inappropriate, the plaintiff may establish design defect through [a variation of the risk/benefit calculus]. An alternative interpretation is that the consumer expectation test is used for manufacturing defects, and the risk-utility test is used for design cases.
Id. at 832.
.I have elsewhere argued in favor to the consumer expectations test, and have expressed doubts about the appropriateness of the risk/benefit test. See Guido Calabresi & Jeffrey O. Cooper, New Directions in Tort Law, 30 Val U.L. Rev. 859, 864-65 (1996). But my personal preferences are, of course, irrelevant to the task before us.
. For a description of the controversy surrounding this section of the Restatement, see Vargo, supra, at 519-36; Carl T. Bogus, The Third Revolution in Products Liability, 72 Chi.-Kent L. Rev. 3, 15-16 (1996).
. Whatever the merits of the contention that entire categories of products can be found defective even in the absence of evidence of an alternative design, it is important to emphasize that this is not a case in which the plaintiffs seek to impose liability on the manufacturers of all handguns or ammunition, and in which by definition there could be no reasonable alternative design short of failing to manufacture that type of product at all. Rather, this is a case in which the plaintiffs seek to impose liability for the decision to create extra-destructive ammunition that shreds human flesh upon impact and to market that product to the general public. There exists an alternative design — no talons — and an alternative marketing strategy — sale only to police officers, see Bogus, supra, at 15 n. 83 ("Some products may be unreasonably dangerous when sold to the public-at-large but not when sold to a particular class of purchasers. For example, x-ray equipment may be reasonably dangerous when sold to licensed facilities, and handguns may be reasonably dangerous when sold to law enforcement officers, even if such products are unreasonably dangerous when sold to the public-at-large.”) — either of which stop well short of imposing liability on the entire ammunition product category.
. A third potential cause of action may also exist on these facts — ultrahazardous activity liability. Like negligence and strict liability, ultra-hazardous activity liability requires the existence of a duty relationship which is breached by the defendant’s ultrahazardous activity, thereby causing demonstrable injury to the plaintiff. The district court refused to consider whether there was a breach in this case (in other words, whether the defendant's activities were ultrahazardous) because it found that there was no duty relationship. It agreed with the defendant that "the doctrine of ultrahazardous activity does not apply to products; rather, it is limited to activities involving the use of land." McCarthy,
It seems to me particularly ironic to say that New York courts would limit the applicability of
In fact, New York law has at times allowed ultrahazardous liability for activities not involving the defendant's use of land. See, e.g., Margosian v. U.S. Airlines, Inc.,
Nonetheless, the plaintiffs chose not to pursue this argument on appeal, and I will go no further in discussing its possible viability or non-viability-
. In this respect, I have, in my dissent, emphasized the arguments in favor of liability, not because I am necessarily convinced by them, but because that is what I must do to determine whether there is sufficient uncertainty to warrant certification.