Armijo v. Ex Cam, Inc.

• Decision Date: 06 February 1987
• Docket Number: Civ. No. 86-0737-JB.
• Citation: 656 F. Supp. 771
• Parties: Dolores ARMIJO, Individually, as Personal Representative of the Estate of James Fray Saulsberry, and as next friend of Erin Armijo Saulsberry, Plaintiff, v. EX CAM, INC., and Armi Tanfoglio Giuseppe, Defendants.
• Court: U.S. District Court — District of New Mexico

656 F. Supp. 771

Dolores ARMIJO, Individually, as Personal Representative of the Estate of James Fray Saulsberry, and as next friend of Erin Armijo Saulsberry, Plaintiff, v. EX CAM, INC., and Armi Tanfoglio Giuseppe, Defendants.

Civ. No. 86-0737-JB.

United States District Court, D. New Mexico.

February 6, 1987.

Ortega and Snead, P.A., Tanya L. Scott, Albuquerque, N.M., for plaintiff.

Miller, Stratvert, Torgerson & Schlenker, P.A., Judith Amer, Albuquerque, N.M., for defendants.

MEMORANDUM OPINION AND ORDER

BURCIAGA, District Judge.

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 impression 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. Federal courts, sitting in diversity, are required to apply the law of the forum state. Pound v. Insurance Co. of North America, 439 F.2d 1059 (10th Cir.1971); Jaeco Pump Co. v. Inject-O-Meter Manufacturing Co., 467 F.2d 317 (10th Cir.1972). Where there is no state law on point, federal courts must construe the law of the state in the manner in which the state's highest court would so construe it if faced with similar facts and issues. Holler v. United States, 724 F.2d 104 (10th Cir. 1983); Hartford v. Gibbons & Reed Co., 617 F.2d 567 (10th Cir.1980). This Court's opinion is that the New Mexico courts would not, under any existing theory of tort liability, recognize such a cause of action, and Plaintiff's case must therefore be dismissed.

The facts from which this claim arose are as follows. On or about April 3, 1983, Plaintiff Dolores 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., ¶ 11, 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, ¶ 6. Defendant Ex Cam, Inc., is the importer and distributor of the gun which was used. Defendant Armi Tanfoglio Giuseppe "Armi" is the manufacturer and distributor. Id., ¶ 5.

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 Specials" articulated by the Supreme Court of Maryland in Kelley v. R.G. Industries, Inc., 304 Md. 124, 497 A.2d 1143 (1985). The Court does not believe that the New Mexico courts would adopt any of these theories to recognize a cause of action in this case.

Strict Products Liability

The New Mexico courts have adopted the law of strict products liability in tort, as set forth in the Restatement (Second) of Torts § 402A.¹ Stang v. Hertz Corp., 83 N.M. 730, 497 P.2d 732 (1972). Under this doctrine, the Plaintiff has the burden of proving the following elements: (1) the product was defective; (2) the product was defective when it left the hands of the Defendant and was substantially unchanged when it reached the user or consumer; (3) that because of the defect the product was unreasonably dangerous to the user or consumer; (4) the consumer was injured or was damaged; (5) the defective condition of the product was the proximate cause of the injury or damage. Tenney v. Seven-Up Co., 92 N.M. 158, 159, 584 P.2d 205 (1978).

Plaintiff's 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 or 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 average 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., 789 F.2d 1326 (9th Cir.1986); Martin v. Harrington & Richardson, Inc., 743 F.2d 1200 (7th Cir.1984); Patterson v. Rohm Gesellschaft, 608 F.Supp. 1206 (N.D.Tex.1985); Mavilia v. Stoeger Industries, 574 F.Supp. 107 (D.Mass.1983); DeRosa v. Remington Arms Co., 509 F.Supp. 762 (E.D.N.Y.1981); Rhodes v. R.G. Industries, Inc., 173 Ga. App. 51, 325 S.E.2d 465 (1985). There is no merit in Plaintiff's argument that these rulings are not on point because the New Mexico courts do not embrace the "consumer expectation" theory of products liability law. Clearly, consumer expectation will always play some part in determining whether a product is "unreasonably dangerous." See Skyhook Corp. v. Jasper, 90 N.M. 143, 560 P.2d 934 (1977) ("there is no duty to warn of dangers actually known to the user of a product, regardless of whether the duty rests in negligence or in strict liability under § 402A," 90 N.M. at 148). Plaintiff has failed to state a claim for strict products liability under § 402A of the Restatement.

"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., 97 N.M. 194, 638 P.2d 406 (Ct.App.1981), the court of appeals declined to impose strict "ultrahazardous activity" liability upon a railroad company, where plaintiff had been injured when a train began moving as he was attempting to climb between the cars. The court stated:

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.

97 N.M. at 200, 638 P.2d 406 (citation omitted).

The Ruiz decision 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., 88 N.M. 74, 537 P.2d 682 (Ct.App. 1975), the court rejected the argument that treatment of seed grain with a poisonous chemical, known as Panogen grain treatment, was an "ultrahazardous activity." In so doing, the court applied the following test for ultrahazardous activity: (a) such activity is not a matter of common usage, and (b) the danger cannot be eliminated by the exercise of the utmost care. 88 N.M. at 79, 537 P.2d 682. The court held that "first, Panogen grain treatment had wide acceptance and use throughout the country.... Second, the arguments of all parties recognize that adequate warning would eliminate the danger." 88 N.M. at 79, 537 P.2d 682.

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 manufacturer 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 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 producted by their products." Martin v. Harrington & Richardson, Inc., 743 F.2d 1200 (7th Cir.1984). Other...