Kelley v. R.G. Industries, Inc.

• Decision Date: 01 September 1983
• Docket Number: No. 20,20
• Citation: 497 A.2d 1143,304 Md. 124,44 A.L.R.4th 563
• Parties: , 44 A.L.R.4th 563, 54 USLW 2195, Prod.Liab.Rep. (CCH) P 10,669 Olen J. KELLEY et ux. v. R.G. INDUSTRIES, INC. et al. Misc.,
• Court: Maryland Court of Appeals

Page 124

304 Md. 124

497 A.2d 1143, 44 A.L.R.4th 563, 54

USLW 2195,

Prod.Liab.Rep. (CCH) P 10,669

Olen J. KELLEY et ux. v. R.G. INDUSTRIES, INC. et al.

Misc. No. 20, Sept. Term, 1983.

Court of Appeals of Maryland.

Oct. 3, 1985.

Motion for Reconsideration Denied Nov. 12, 1985.

Howard L. Siegel and Barry H. Helfand, Rockville, for appellants.

Gerard P. Uehlinger and Lentz, Hooper, Jacobs & Blevins, Baltimore, on amicus curiae brief of Foundation for Handgun Educ.

Edward S. Digges, Jr., and Piper & Marbury, Baltimore, and James P. Dorr, Anne G. Kimball, and Wildman, Harrold Allen & Dixon, Chicago, Ill., on amicus curiae brief of Colt Firearms Div. of Colt Industries Inc., Smith & Wesson, A Div. of Bangor Punta Corp., Sturm, Ruger & Co., Inc.

Thomas M. Baumann (Hardwick, Tripoda & Harris, on brief, Baltimore, and James B. Sales, Frank G. Jones, Louis S. Zimmerman and Fullbright & Jaworski, of counsel, on brief, Houston, Tex., for appellees.

Argued before MURPHY, C.J., ELDRIDGE, COLE, DAVIDSON, ^* RODOWSKY and COUCH, JJ., and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), Specially assigned.

ELDRIDGE, Judge.

This case comes to us by an Order of Certification from the United States District Court for the District of Maryland. ¹ The issues concern whether a handgun manufacturer or marketer might be liable under some circumstances for gunshot injuries caused by the use of one of its handguns during the commission of a crime.

I.

Olen J. Kelley was injured when an unnamed assailant shot him in the chest during an armed robbery of the grocery store where he was employed. The weapon used in the crime was a Rohm Revolver Handgun Model RG-38S, Serial Number 0152662, designed and marketed by Rohm Gesellschaft, a West German corporation. The handgun was assembled and initially sold by R.G. Industries, Inc., a Miami-based corporation which is a subsidiary of the West German corporation.

Kelley and his wife filed a tort action against Rohm Gesellschaft and R.G. Industries in the Circuit Court for Montgomery County, setting forth several theories for recovery. The first count was based on strict liability, with the plaintiffs claiming that the handgun was "abnormally dangerous." Count two, also sounding in strict liability, alleged that the handgun was defective in its "marketing, promotion, distribution and design," rendering it "unreasonably dangerous." Count three rested on a negligence theory. In a fourth count, the plaintiffs sought damages for loss of consortium.

One of the defendants, R.G. Industries, had the case removed to the United States District Court for the District of Maryland, pursuant to 28 U.S.C. §§ 1441 and 1446. R.G. Industries then filed an answer to the declaration and moved for summary judgment on the ground that it was not involved in the marketing or distribution of the handgun in question. Thereafter the parties filed a stipulation that R.G. Industries be dismissed from the case, without prejudice.

The remaining defendant, Rohm Gesellschaft, moved to dismiss the declaration for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rohm argued in its memorandum in support of the motion to dismiss that "the [p]laintiffs' contentions [must] fail because the handgun performed as it was supposed to perform and because Rohm Gesellschaft is not responsible for the criminal and tortious acts of Mr. Kelley's assailant." At a hearing on the motion, the United States District Court found that there were no controlling precedents in this Court on the strict liability issues and certified the following questions to us:

"Question 1

Is a handgun, which inflicts injury as the norm, rather than the exception, a defective or unreasonably dangerous product? "Question 2

Is the marketing of handguns an abnormally dangerous activity?

(a) Does the abnormally dangerous activity doctrine extend to instances in which the alleged tortfeasor is not an occupier of land?

(b) Does the abnormally dangerous activity doctrine apply where harm is brought about by some third person or persons over whom the tortfeasor had no control?"

Oral argument was then held before this Court. As a result of matters raised at oral argument which were not specifically addressed in the certification order, the plaintiffs requested that the order be withdrawn and that a new order be filed. Pursuant to the request, the United States District Court withdrew the original Order of Certification and substituted a "Further Order of Certification" posing the following four questions:

"Question 1

Is a handgun, which inflicts injury as the norm, rather than the exception, a defective or unreasonably dangerous product?

If the answer to Question 1 is "No," then

"Question 2

Is a Rohm Revolver Handgun Model RG38S, which inflicts injury as the norm, rather than the exception, a defective or unreasonably dangerous product?

"Question 3

Is the marketing of handguns an abnormally dangerous activity? In answering this question, it may be that the Court of Appeals of Maryland may desire to address itself to the following sub-questions:

(a) Does the abnormally dangerous activity doctrine extend to instances in which the alleged tortfeasor is not an occupier of land?

(b) Does the abnormally dangerous activity doctrine apply where harm is brought about by some third person or persons over whom the tortfeasor had no control?

If the answer to Question 3 is "No," then

"Question 4

Is the marketing of Rohm Revolver Handguns Model RG-38S an abnormally dangerous activity? In answering this question, it may be that the Court of Appeals of Maryland may desire to address itself to the following sub-questions:

(a) Does the abnormally dangerous activity doctrine extend to instances in which the alleged tortfeasor is not an occupier of land?

(b) Does the abnormally dangerous activity doctrine apply where harm is brought about by some third person or persons over whom the tortfeasor had no control?"

In addition, the Further Order of Certification provided that this Court was not restricted in its consideration and determination of the matter by the phrasing of the certified questions.

In considering the certified questions, and pursuant to the above-mentioned provision in the federal court's order, we have rephrased the questions as follows:

1) Is the manufacturer or marketer of a handgun, in general, liable under any strict liability theory to a person injured as a result of the criminal use of its product?

2) Is the manufacturer or marketer of a particular category of small, cheap handguns, sometimes referred to as "Saturday Night Specials," and regularly used in criminal activity, strictly liable to a person injured by such handgun during the course of a crime?

3) Does the Rohm Revolver Handgun Model RG38S, serial number 0152662, fall within the category referred to in question 2?

The first question will be addressed in Part II of this opinion, the second in Part III, and the final question in Part IV.

II.

Kelley maintains that a manufacturer and marketer of a handgun, which inflicts injuries such as his, should be held liable under either of two strict liability theories. First, Kelley asserts that the manufacturer or marketer is strictly liable because the manufacturing or marketing of handguns is an "abnormally dangerous activity." Restatement (Second) of Torts, §§ 519-520. Second, Kelley argues that the manufacturer or marketer is strictly liable because handguns are "abnormally dangerous products" under Restatement (Second) of Torts, § 402A. For the following reasons, however, neither of these two doctrines, nor any of the other previously recognized strict liability principles, could properly be applied to hold, in general, the manufacturer or marketer of a handgun liable to a person injured by the handgun during the course of a crime. ²

A.

Kelley's first premise for the imposition of liability is under the Restatement (Second) of Torts, §§ 519 and 520. These sections recognize the liability of one engaged in an abnormally dangerous or ultrahazardous activity even though that person may have exercised the utmost care to prevent harm. Whether an activity is "abnormally dangerous" under these sections depends on its satisfying the following six factors, specified in § 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." ³

Regardless, however, of whether a handgun might satisfy these factors, Maryland law would not permit liability to be imposed on a handgun manufacturer or marketer under this theory. This Court has refused to extend the abnormally dangerous activity doctrine to instances in which the alleged tortfeasor is not an owner or occupier of land. Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 4 A.2d 757 (1939). See also Yommer v. McKenzie, 255 Md. 220, 257 A.2d 138 (1969); Kirby v. Hylton, 51 Md.App. 365, 443 A.2d 640 (1982).

The thrust of the doctrine is that the activity be abnormally dangerous in relation to the area where it occurs. If a gasoline station owner has faulty tanks which leak gasoline into the underground water supply, that might be abnormally dangerous if the land in which the tanks are buried is located in a well populated area. In such a situation, the hazard bears a relation to the occupation and location of the land on which the activity occurs. See Yommer v. McKenzie, supra. The dangers inherent in the use of a handgun in the commission of a crime, on the other hand, bear no relation to any occupation or ownership...