Burkett v. Freedom Arms, Inc., s. USDC

• Decision Date: 08 August 1985
• Docket Number: Nos. USDC,s. USDC
• Citation: 299 Or. 551,704 P.2d 118
• Parties: , 54 USLW 2122, Prod.Liab.Rep. (CCH) P 10,672 Irving L. BURKETT and Zelma L. Burkett, Plaintiffs, v. FREEDOM ARMS, INC., and North American Arms, jointly and severally, Defendants. Civil 84-784/SC S31680.
• Court: Oregon Supreme Court

Page 118

704 P.2d 118

299 Or. 551, 54 USLW 2122, Prod.Liab.Rep.

(CCH) P 10,672

Irving L. BURKETT and Zelma L. Burkett, Plaintiffs, v. FREEDOM ARMS, INC., and North American Arms, jointly and severally, Defendants.

Nos. USDC Civil 84-784/SC S31680.

Supreme Court of Oregon.

Argued and Submitted June 4, 1985.

Decided Aug. 8, 1985.

James S. Coon, of Aitchison, Imperati, Paull, Barnett & Sherwood, Portland, argued the cause for plaintiff. With him on the brief was Alice L. Dale, Portland.

Elizabeth Samson, of Mitchell, Lang & Smith, Portland, argued the cause and filed the brief for defendant Freedom Arms, Inc.

E. Richard Bodyfelt, Portland, argued the cause for defendant North American Arms. On the brief was Peter R. Chamberlain, of Bodyfelt, Mount, Stroup & Chamberlain, Portland.

Before PETERSON, C.J., and LENT, CAMPBELL, ROBERTS, CARSON and JONES, JJ.

JONES, Justice.

This case is before us on certification from the United States District Court for the District of Oregon pursuant to ORS 28.200. ¹ Plaintiffs brought this diversity action in federal district court seeking to recover damages from the defendant manufacturers of a small, easily concealable handgun that severely injured plaintiff Irving Burkett, who was shot during the jail escape of Stephen Kessler in July 1982. The pertinent allegations in plaintiffs' amended complaint are as follows:

"VI.

"On July 25, 1982, Plaintiff Irving Burkett was seriously and permanently injured when a .22 caliber single-action handgun, commonly referred to as a 'freedom arms handgun', which is smaller than a derringer and shoots long rifle bullets, and which is manufactured so as to be concealable as a decorative item on the front of a large belt buckle, was discharged by an inmate during a jail break from Rocky Butte Jail, striking Plaintiff in the right side of his head. The gun used in the shooting of Plaintiff was manufactured and marketed by the Defendant Freedom Arms, Inc. and/or North American Arms. This gun was marketed to the general public. The shooting, as well as the manner in which the shooting took place, were entirely foreseeable to the Defendants. As a direct and proximate result of injuries sustained in the shooting, the Plaintiff is now severely and permanently debilitated.

"VII.

"At all times relevant herein, each of the named Defendants was engaged in the design, manufacture and/or marketing of handguns, including the gun in question.

"VIII.

"The design, manufacture and marketing of this handgun and others like it impose liability on Defendants in that the harm suffered by Plaintiff, Irv Burkett, resulted from the abnormal danger and risk inherent in the nature of the activity itself. An ultrahazardous activity such as the design, manufacture and/or marketing of this handgun and similar guns should not be undertaken without Defendants assuming the consequences of their actions. Specifically, this activity should be determined to be ultrahazardous and abnormally dangerous in that the design, manufacture and/or marketing of this handgun and similar handguns involve the following:

(A) A high degree of risk of harm to individual health and safety;

(B) The likelihood that the harm will be great, i.e., serious bodily harm or death;

(C) Unavoidable risk of harm even with the exercise of all reasonable care by Defendants;

(D) An activity which is not a matter of common usage;

(E) An activity which is inappropriate to the place where it is carried on;

(F) An activity whose value to the community is outweighed by its dangerous attributes.

"The above listed factors, and combinations thereof, render Defendants' design, manufacture and marketing of the 'freedom arms handgun' ultrahazardous and abnormally dangerous. These factors were the producing cause of the Plaintiff's injuries for which the Defendants are jointly and severally liable."

The defendants, Freedom Arms, Inc. and North American Arms, moved to dismiss the amended complaint on the ground that the complaint failed to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. After oral argument, the federal district court declined to rule on the defendants' motions to dismiss and certified the following two questions of Oregon law to this court:

"(1) Does the manufacture, sale and marketing of a small, easily concealable handgun constitute an abnormally dangerous activity giving rise to the manufacturer's strict liability under Oregon law?

"(2) If the answer to the above question is in the affirmative, does the criminal misuse of the handgun, resulting in injury to an innocent victim, constitute a superseding cause relieving the manufacturer of liability?

Because we answer the first question in the negative and hold that, under Oregon law, the manufacture, sale and marketing ² of a small, easily concealable handgun does not constitute an abnormally dangerous activity, we do not reach the second question.

Plaintiffs initially brought their action on theories of strict products liability and negligence. The federal district court granted both defendants' FRCP 12(b)(6) motions to dismiss the complaint for failure to state a claim under either theory. Plaintiffs attempt to circumvent the problems encountered with the products liability and negligence theories by alleging in the amended complaint that the design, manufacture and sale of small, easily concealable handguns to the public is an abnormally dangerous activity ³ subjecting the defendants to strict liability for all injuries caused by the product.

Under section 519 of the Restatement (Second) of Torts (1965), "[o]ne 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." The factors to be considered in determining whether the activity is abnormally dangerous are set forth in section 520:

"(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 to 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."

Although this court has never explicitly relied upon the six Restatement factors in determining whether a given activity is abnormally dangerous, see generally Koos v. Roth, 293 Or. 670, 652 P.2d 1255 (1982), we have long recognized that strict liability may be incurred for damage caused by activities characterized by the court as abnormally dangerous or ultrahazardous, see, e.g., Koos v. Roth, supra (field burning); Bella v. Aurora Air, Inc., 279 Or. 13, 566 P.2d 489 (1977) (aerial herbicide spraying); McLane v. Northwest Natural Gas, 255 Or. 324, 467 P.2d 635 (1970) (natural gas storage); Bedell v. Goulter, 199 Or. 344, 261 P.2d 842 (1953) (dynamite blasting).

Plaintiffs seek to bring the design, manufacture and sale of a nondefective product within the analytical parameters of these prior decisions, particularly relying upon Bella v. Aurora Air, Inc., supra, and Bedell v. Goulter, supra. While our prior decisions indicate that under certain circumstances the use or storage of substances, whether these substances are inherently benign or dangerous, may constitute an abnormally dangerous activity, it is clear that the danger inherent in the activity itself is the basis for imposing strict liability for the resulting harm.

If plaintiffs were claiming that the use of a small, easily concealable handgun is an abnormally dangerous activity, perhaps this case would arguably fall within the analytical parameters of Oregon law, because the danger would inhere in the activity itself. However, plaintiffs' attempt to impose strict liability for engaging in an abnormally dangerous activity on the manufacturer of a nondefective product, where there is no contention that the activity of manufacturing and marketing apart from the subsequent use or misuse of the product is inherently dangerous, is unprecedented in Oregon and in all other common law jurisdictions that have considered this question. See Perkins v. F.I.E. Corp., 762 F.2d 1250, 1265 n. 43 (5th Cir.1985), and cases cited therein; Martin v. Harrington and Richardson, Inc., 743 F.2d 1200 (7th Cir.1984); Riordan v. International Armament Corp., 132 Ill.App.3d 642, 87 Ill.Dec. 765, 477 N.E.2d 1293 (1985). Richman v. Charter Arms Corporation, 571 F.Supp. 192 (E.D.La.1983), the only reported case which supported plaintiffs' position that their amended complaint states a valid claim for relief, was reversed by the Fifth Circuit Court of Appeals in the consolidated case of Perkins v. F.I.E. Corp., supra. The...