Richman v. Charter Arms Corp., Civ. A. No. 82-1314.

• Citation: 571 F. Supp. 192
• Decision Date: 05 October 1983
• Docket Number: Civ. A. No. 82-1314.
• Parties: Judie RICHMAN, Individually and as Personal Representative of the Estate of Kathy Newman, Deceased v. CHARTER ARMS CORPORATION.
• Court: U.S. District Court — Eastern District of Louisiana

571 F. Supp. 192

Judie RICHMAN, Individually and as Personal Representative of the Estate of Kathy Newman, Deceased v. CHARTER ARMS CORPORATION.

Civ. A. No. 82-1314.

United States District Court, E.D. Louisiana, Section "I".

August 17, 1983.

As Amended August 22 and October 5, 1983.

Windle Turley, Dallas, Tex., for plaintiff.

David R. Frohn, Camp, Carmouche, Barsh, Hunter, Gray & Hoffman, Lake Charles, La., for defendant.

MEMORANDUM AND ORDER

MENTZ, District Judge.

Early in the afternoon on April 4, 1981, Willie Watson obtained a handgun from an acquaintance. That evening, Watson used the gun, allegedly a "snub nose .38," to kidnap, rob, rape, and then murder Kathy Newman, a third-year medical student at Tulane University. Since committing these crimes, Watson has been tried, convicted and sentenced to death.¹ Watson, however, is not a defendant in this case. The defendant here is the Charter Arms Corporation. The plaintiff is the victim's mother, Judie Richman. According to Ms. Richman, the defendant is liable to her because it designed, manufactured, and marketed the murder weapon. More specifically, Ms. Richman contends that, because the defendant made the murder weapon available for sale to the general public and because a reasonably foreseeable consequence of doing so was the loss of human life, the company is liable to her for the death of her daughter. The defendant disagrees and has now submitted a motion for summary judgment. The defendant's position is that Louisiana law does not allow courts, under any circumstances, to impose liability on handgun manufacturers for injuries sustained by the victims of illegal handgun violence.

This is a wrongful death case. Jurisdiction is based on diversity of citizenship, and neither party disputes the fact that Louisiana law is controlling. LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (5th Cir.1980). To prevail on its motion, the defendant must convince the Court that there is no genuine dispute as to any material facts. AT & T v. Delta Communications Corp., 590 F.2d 100 (5th Cir.), cert. denied, 444 U.S. 926, 100 S.Ct. 265, 62 L.Ed.2d 182 (1979). This is a heavy burden, albeit not an insurmountable one, for the court must give to the party opposing the motion the benefit of all reasonable doubts regarding whether a triable issue exists. Heyward v. Public Housing Administration, 238 F.2d 689 (5th Cir.1956). In short, at this stage in the litigation, all evidence must be reasonably interpreted in the light most favorable to the plaintiff.²

The plaintiff offers three reasons to explain why she is allegedly entitled to the relief requested. No one reason, however, appears to be different in any material way from any other. The essence of all three is contained in the following statement:

The murder weapon was designed, manufactured, and marketed by Defendant in a defective condition unreasonably dangerous to consumers, bystanders, and the general public, because the risk of foreseeable harm associated with marketing the product, as designed, to the general public, greatly outweighs any socially acceptable utility, if any; .... Therefore, Charter Arms Corporation is "strictly liable" to Plaintiff.

As the Court interprets this statement, the plaintiff is contending that the defendant is strictly liable to her either on a traditional products liability theory or on an ultrahazardous activity theory. Both theories have been "developed in part to place liability on the manufacturer in certain cases because, by marketing a product, it has assumed a special responsibility to the public and should bear the costs of accidents as a cost of doing business." Note, "Manufacturers' Liability to Victims of Handgun Crime: A Common-Law Approach," 51 Fordham L.Rev. 771, 778 (1983). See also Kent v. Gulf States Utilities Co., 418 So.2d 493, 498 (La.1982); Philippe v. Browning Arms Co., 395 So.2d 310, 318-19 n. 15 (La.1981); DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26, 31 (La.1981); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133, 139 (1971); Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 901 (1962) (Traynor, J.); Restatement (Second) of Torts §§ 402A comment c and 519 comment d (1965); Turley, "Manufacturers' and Suppliers' Liability to Handgun Victims," 10 N.Ky.L.Rev. 41, 45 (1981).

This case, however, is quite different from the ordinary strict liability case. In the ordinary case, the reprehensible actions of a person like Willie Watson are not an issue. See, e.g., Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980); Langlois v. Allied Chemical Corp., supra. Here they clearly are. Yet, according to the plaintiff, the rationale underlying both theories of recovery is not affected by Willie Watson's conduct. That rationale, she says, provides her with a cause of action regardless of what Willie Watson did. In saying this, the plaintiff is not contending that Willie Watson's conduct should be ignored or that he should be relieved of his responsibility to pay financially for the death of her daughter. What the plaintiff is contending is that, if she chooses to sue for damages, the law does not require her to sue Willie Watson; instead, it allows her to sue and to recover from the defendant and then allows the defendant to try to recover from Willie Watson. The question before the Court, then, is who has the burden of trying to recover from Willie Watson and of bearing the loss in the event that he cannot pay.³

The leading decision cited by the plaintiff in support of her products liability theory is Hunt v. City Stores, Inc., supra. In that case, the court listed four elements a plaintiff must prove to recover damages in a products liability suit. Those four elements are "1 that the product was defective, i.e., unreasonably dangerous to normal use; 2 that the product was in normal use at the time the injury occurred; 3 that the product's defect caused his injury; and 4 that the injury might reasonably have been anticipated by the manufacturer." Id. at 589, citing Weber v. Fidelity & Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754, 755 (1971). See also DeBattista v. Argonaut-Southwest Ins. Co., supra at 30. Of these four elements, only the first will be considered here since the plaintiff cannot as a matter of law prove that element.

To establish that a product is "defective" under Louisiana law, a plaintiff "need not prove defective design or manufacture." Hunt v. City Stores, Inc., supra at 589.⁴ A plaintiff need only prove that the product is "unreasonably dangerous to normal use." Id. In this context, "the phrase `normal use' does not take on its everyday meaning." Woods v. International Harvester Co., Inc., 697 F.2d 635, 637 (5th Cir.1983). The phrase is not limited to "routine or intended use." LeBouef v. Goodyear Tire & Rubber Co., supra, at 989. Instead, "it encompasses all reasonably foreseeable uses of a product." Id. (emphasis in original). By contrast, the phrase "unreasonably dangerous" does have roughly the same meaning in this context as it has in ordinary discourse. The Fifth Circuit recently described this meaning by saying: "A product is ... unreasonably dangerous when a reasonable seller would not sell the product if he knew of the risks involved or if the risks are greater than a reasonable buyer would expect." Welch v. Outboard Marine Corp., 481 F.2d 252, 254 (5th Cir.1973). See also Bridges v. Chemrex Specialty Coatings, Inc., 704 F.2d 175, 179 (5th Cir.1983); DeBattista v. Argonaut-Southwest Ins. Co., supra, at 30-31 (citing Welch and applying Restatement (Second) Torts, § 402A comment i); Hunt v. City Stores, Inc., supra, at 589 ("if the likelihood and gravity of harm outweigh the benefits and utility of the manufactured product, the product is unreasonably dangerous"); Wade, "Strict Tort Liability of Manufacturers," 19 Sw.L.J. 5, 15 (1965).

Against the claim that the murder weapon used to kill Kathy Newman was "unreasonably dangerous to normal use," the defendant advances two arguments. The first is that the handgun was not in normal use at the time Ms. Newman was killed because "criminal use is neither normal nor foreseeable use." In support of this argument, the defendant cites two cases involving the illegal use of handguns, Bennet v. Checker Cab Co., Inc., 353 F.Supp. 1206 (E.D.Ky.1973) and Robinson v. Howard Brothers of Jackson, Inc., 372 So.2d 1074 (Miss.1979). The district court in Bennet summed up the argument this way:

Plaintiff alleges that the defendant in Bennet should have reasonably foreseen and anticipated that the weapon in question would be used in the commission of a crime. The rule concerning foreseeability of a subsequent criminal act is stated in Prosser, Torts, 3d Ed. page 176:

There is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging than those which are merely negligent; and this is all the more true where, as is usual with the case, such acts are criminal. Under all ordinary and normal circumstances in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law.

Bennet v. Checker Cab Co., Inc., supra, at 1210. In both Bennet and Robinson, the court concluded that criminal use can never be normal use.

This Court disagrees. First of all, Prosser does not say that criminal use is never normal or foreseeable. What he says, in the quoted excerpt, is that criminal use is not normal or foreseeable "in the absence of any reason to expect the contrary." Moreover, in the very same section of the treatise that contains the quoted excerpt, Prosser states that there are "situations in which the defendant will be held liable because his affirmative conduct has greatly increased the risk of harm to the plaintiff through the criminal acts of others." Prosser, Handbook of the Law of Torts, 175 (4th ed. 1971)...