Patterson v. Gesellschaft

• Decision Date: 14 May 1985
• Docket Number: No. CA 3-81-1006-R.,CA 3-81-1006-R.
• Citation: 608 F. Supp. 1206
• Parties: Jett Edwards PATTERSON, individually and as representatives of the Estate of James Patterson, deceased, Plaintiff, v. Rohm GESELLSCHAFT, Heinrich Rohm, Sr., Guenter Rohm, William S. Kirk; and Heinrich Peter Rohm, individually and d/b/a R.G. Industries, Inc., Defendants.
• Court: U.S. District Court — Northern District of Texas

608 F. Supp. 1206

Jett Edwards PATTERSON, individually and as representatives of the Estate of James Patterson, deceased, Plaintiff, v. Rohm GESELLSCHAFT, Heinrich Rohm, Sr., Guenter Rohm, William S. Kirk; and Heinrich Peter Rohm, individually and d/b/a R.G. Industries, Inc., Defendants.

No. CA 3-81-1006-R.

United States District Court, N.D. Texas, Dallas Division.

May 14, 1985.

Windle Turley and John Howie, Dallas, Tex., for plaintiff.

Robert G. Vial, Vial, Hamilton, Dallas, Tex., for defendants except Gesellschaft.

Robert F. Ruckman, Jackson Walker, Dallas, Tex., for Gesellschaft.

Chas. C. Sorrells, Dallas, Tex., for intervenor American Motorist Ins.

MEMORANDUM OPINION

BUCHMEYER, District Judge.

This is a products liability action. The "product" involved is a Rohm .38 caliber revolver, a "Saturday Night Special."

However, this handgun is not defective. Admittedly, there was no malfunction because of some manufacturing error; the gun did not lack any necessary safety features; and, it performed exactly as a handgun is intended to do, by firing a bullet with deadly force when the trigger was intentionally pulled.

But unfortunately, this .38 caliber revolver was used in a robbery. And tragically, this gun caused the death of the clerk at the grocery being robbed. Consequently, the plaintiff's attorneys make this far-reaching claim: that, under an unconventional and expanded theory of products liability, the mother of the murder victim can recover damages from the manufacturer and the seller of this nondefective revolver because the risks of injury and death that accompany handguns "greatly outweigh any utility they may have" and, consequently, handguns are "unreasonably dangerous." Restatement (Second) of Torts § 402A (1965).

This claim is totally without merit and totally unsupported by legal precedent. It is a misuse of tort law, a baseless and tortured extension of products liability principles. And, it is an obvious attempt — unwise and unwarranted, even if understandable— to ban or restrict handguns through courts and juries, despite the repeated refusals of state legislatures and Congress to pass strong, comprehensive gun-control measures.

Accordingly, this opinion grants summary judgment dismissing this supposed products liability claim.¹

1. FACTUAL BACKGROUND²

The handgun in question was manufactured and sold in 1967 by a West German company, the defendant Rohm Gesellschaft ("Rohm"). The gun is a .38 caliber revolver with a four-inch barrel and a total length of only nine inches. It is cheap, small, light, easy to conceal — and, for these reasons, is of the type commonly referred to as "snubbies" or "Saturday Night Specials."

On December 29, 1980 — over 13 years after the handgun was manufactured — it was used by Berlin Ransom in the attempted robbery of a "7-Eleven" store in Dallas, Texas. During the crime, Ransom shot and killed James Patterson, the clerk at this convenience grocery. Later, Ransom was caught and convicted; he is now confined in the Texas Department of Corrections.³

The plaintiff, Jett Edwards Patterson, is the mother of James Patterson, the murder victim. She seeks $500,000 in damages from Rohm, the manufacturer, and from R.G. Industries, a firearm distributor in Florida (and its officers, Heinrich Rohm, Sr., Guenter Rohm, Heinrich Peter Rohm and William Kirk).⁴ Although it is conceded that the Rohm .38 revolver did not malfunction — and performed exactly as it was intended — the plaintiff's attorneys nevertheless make these two "products liability" claims:

(i) Design Defect: that the handgun was "defective and unreasonably dangerous" in its design because handguns simply pose risks of injury and death that "far outweigh" any social utility they may have.

(ii) Defect in Distribution: that the system of distributing and marketing handguns was "defective and unreasonably dangerous" because it is too easy for handguns to be obtained by criminals and others who misuse them.

Both of these theories are baseless. They have been rejected by almost every court that has considered them.⁵ Since it is admitted that there was nothing wrong with the .38 caliber revolver, the plaintiff cannot recover under either of the purported "products liability" claims.

2. THE ALLEGED DESIGN DEFECT

a. The Texas Law

The Texas law of products liability controls this diversity case. Texas has adopted the Restatement (Second) of Torts § 402A — which provides that one who sells a product "in a defective condition unreasonably dangerous" is subject to liability for injuries caused by the product. Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967).

However, under Texas law, the manufacturer is not required to insure that its products are completely safe or that they will not cause injury to anyone.⁶ Instead, the manufacturer is liable for injuries resulting from a product only if that product is "defective" — i.e., has a defect in the sense that something is wrong with it. Syrie v. Knoll International, 748 F.2d 304 (5th Cir.1984); Davidson v. Stanadyne, Inc., 718 F.2d 1334 (5th Cir.1983). This required defect may be one of three distinct types:

(i) The product may malfunction because of some manufacturing defect.

(ii) The product may be defective because it was sold without sufficient warning or instructions.⁷

(iii) the product may be defective because its basic design is unsafe. See Note, supra footnote 1, at 1912-13.⁸

In cases involving the third type of defect, that of defective design, Texas uses the "risk/utility balancing test": whether the product is "unreasonably" dangerous in the sense that "the danger-in-fact associated with the use of the product outweighs the utility of the product." Davidson, 718 F.2d at 1338; Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 347 (5th Cir.1983). Typically, this requires the jury to weigh the risks involved in the defective product against the feasibility and cost of an improved design. For example, if placing the gasoline tank in the center of the car "would reduce the chances of fire in rear-end collisions without creating other risks, significantly reducing performance, or significantly increasing costs, then the risk of the rear-end design outweighs its utility, and the car is defective." See Note, supra footnote 1, at 1913-14.

b. The Contentions of the Plaintiff's Attorneys

In this case, it is admitted that the Rohm .38 caliber revolver did not malfunction and that it did not lack any essential safety features. Nevertheless, the plaintiff's attorneys argue (i) that Texas law no longer requires a showing that the product is defective; (ii) that the word "defective" in § 402A is merely synonymous with the phrase "unreasonably dangerous";⁹ and (iii) that the jury may simply apply the "risk/utility test" to any product (whether or not it has a defect).

By this reasoning, the plaintiff's attorneys contend — in this and other cases — that a nondefective handgun will be "defective and unreasonably dangerous" if the jury determines that the risks of injury and death outweigh any utility a handgun may have. (Transcript, pp. 11, 15, 30.) Specifically, they argue that:

"... Handgun use results in 22,000 deaths every year in the United States and that medical care for gunshot victims costs approximately $500 million each year. Although handguns constitute only thirty percent of all firearms sold in the United States, ninety percent of all cases of firearm misuse involve handguns. Most murders are sudden crimes of passion; without the ready availability of handguns, such crimes would be less likely. Proponents of manufacturers' liability further argue that handguns are almost useless for self-protection: a handgun is six times more likely to be used to kill a friend or relative than to repel a burglar, and a person who uses a handgun in self-defense is eight times more likely to be killed than one who quitely acquiesces. Thus, handguns, at least as distributed to the general public, are said to be defective." (Note, supra footnote 1, at 1914.)¹⁰

These arguments, of course, apply to all handguns, not just the "Saturday Night Special" involved in this case. See Mavilia v. Stoeger Industries, 574 F.Supp. at 110, footnote 2.

Aside from the fact that contrary evidence can obviously be advanced to argue the "social utility" of handguns¹¹ — and despite this Court's admiration for such a delightfully nonsensical claim: that a product which does not have a defect can nevertheless, under the law, be defective¹² — the plaintiff's attorneys are simply wrong. Under Texas law, there can be no products liability recovery unless the product does have a defect. Without this essential predicate, that something is wrong with the product, the risk/utility balancing test does not even apply.

c. The Product Must Be Defective

There can be no valid products liability claim without a product which has a defect. This is demonstrated by any of the Fifth Circuit cases which state the principles of Texas products liability law. For example, in Syrie v. Knoll International, 748 F.2d at 306, the court listed the four essential elements of a "strict liability cause of action" — and the very first one was "a product that is defective." Similarly, in Davidson v. Stanadyne, 718 F.2d 1334, the Fifth Circuit stated:

"The principles governing recovery in a products liability case alleging defective design under Texas law have been recently summarized in Kindred v. Con/Chem, Inc., 644 S.W.2d 828 (Tex. App. — Corpus Christi 1982), rev'd on other grounds, 650 S.W.2d 61 (Tex.1983):

`As established in Turner v. General Motors Corp., 584 S.W.2d 844 (Tex. 1979), the predicate for recovery in a defective design case is a showing that the product was defective, that the defect made the product unreasonably dangerous and that the defect was a producing cause of injuries....'" (718 F.2d at 1338) (emphasis added).¹³

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