RICHMAN v. CHARTER ARMS CORP.

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:

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:

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). Taken together, these two statements show that it is a mistake to cite Prosser in support of the proposition that criminal use can never amount to normal use.5

An even more compelling reason for rejecting the defendant's first argument was recently provided by the Fifth Circuit in LeBouef v. Goodyear Tire & Rubber Co., supra. In that case, after stating that "normal use" means "reasonably foreseeable use," the court declared that the normal use of a product can include its criminal use. The case arose because two individuals were injured when the tread on one of the tires of the sports car they were driving at the time of the accident separated from the body of the car. The Fifth Circuit found that when the accident occurred the car was in normal use, even though the driver at that time was highly intoxicated and driving in excess of 100 miles per hour. Commenting on the driver's illegal use of the car, the court stated: "It would be blinking reality in this case to hold that Ford could not reasonably have expected purchasers of any automobile, much less one equipped and marketed as was the Cougar, to transgress our nation's speeding laws periodically." Id. at 989 n. 4. The analogy here is manifest: if car manufacturers must reasonably expect purchasers of their products to speed periodically, then surely handgun manufacturers must reasonably expect purchasers of their products to kill periodically. Indeed, given the number of deaths caused annually in this country by handguns,6 any other finding would be patently unreasonable. For this reason, the Court finds that in the context of this case the criminal use of a handgun is, as a matter of law, a normal use of that product. Thus, the defendant's first argument must be rejected.

The defendant's other argument cannot reasonably be rejected. This is the argument that marketing handguns for sale to the general public is not "unreasonably dangerous," or, what amounts to the same thing, is not negligence per se. To rebut this argument, the plaintiff would have to show either that no reasonable handgun manufacturer would market its product in the way the defendant did knowing of the risks involved (i.e., knowing that the product would be used as a murder weapon), or that the risks involved are greater than a reasonable buyer would expect. Welch v. Outboard Marine Corp., supra; Perez v. Ford Motor Co., 497 F.2d 82 (5th Cir.1974); Wade, supra at 13-15. This, however, is precisely what the plaintiff cannot show.

As to the "consumer expectation" theory, common sense requires the Court to find that the risks involved in marketing handguns for sale to the general public are not greater than reasonable consumers expect. Every reasonable consumer that purchases a handgun doubtless knows that the product can be used as a murder weapon. This knowledge, however, in no way deters reasonable consumers from purchasing handguns. The "consumer expectation" theory normally applies in cases where the defendant has failed to attach an adequate warning to its product. See, e.g., Hunt v. City Stores, Inc., supra;7 Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978).8 In this case, however, it would be unreasonable to say that a death might have been averted had the Charter Arms Corporation attached an adequate warning to each of its handguns explaining how the product can be used and abused. Contrary to what the plaintiff suggests, such warnings are not likely either to alter consumer buying behavior or to reduce handgun violence. The plaintiff's reliance on the "consumer expectation" theory is therefore misplaced.

Equally misplaced is the plaintiff's reliance on the "reasonable seller" theory. To explain why, the Court must turn to the right-to-bear-arms provision of the Louisiana State Constitution and to the state legislature's view of that provision. The relevant constitutional provision provides:

LSA-Const. Art. 1, § 11. See generally Hargrave, "The Declaration of Rights of the Louisiana Constitution of 1974," 35 La. L.Rev. 1, 35-37 (1974).9 Whether or not the right described in this section includes the right to keep and bear handguns is not important here. What is important here is the fact that the Louisiana legislature has neither enacted a statute banning the sale of handguns to the general public nor adopted a joint resolution to amend the Constitution to that effect. Given the prominence of the handgun issue in public debates, the only plausible explanation for the refusal to ban handgun sales to the general public, either by statute or by constitutional amendment, is that a majority of the legislators think such a ban would be undesirable as a matter of public policy. The inference the court should draw from this is clear: the legislature does not think handgun manufacturers act unreasonably (are negligent per se) when they market their product to the general public. To couch this inference in the language of Louisiana products liability law, a majority of the legislators do not think marketing handguns for sale to the general public is an "unreasonably dangerous" activity. Any other view of the legislature's inaction would appear to be implausible.

Admittedly, Louisiana law does "hold to a high degree of care persons dealing in, handling or distributing highly dangerous substances and instrumentalities such as ... firearms...." Holland v. St. Paul Mercury Insurance Co., 135 So.2d 145, 154 (La. App.1961). Yet this in no way supports the plaintiff's position. For in holding that dealers and distributors of firearms must exercise a high degree of care, courts are saying, at least by negative implication, that there is some standard of behavior dealers and distributors can follow and, in so doing, act reasonably. No doubt, the plaintiff can argue in response that, while dealers and distributors can act reasonably, they fail to do so when they market handguns for sale to the general public. Absent the legislature's inaction, this argument might be plausible. Given that inaction, however, the argument is not.

Since Louisiana courts must defer to the legislature on such matters, see, e.g., Transway, Inc. v. Louisiana Public Service Commission, 296 So.2d 305, 309 (La.1974); Arceneaux v. Hawkins, 376 So.2d 362, 366 (La.App.1979), so too must this Court. Cole v. Elliott Equipment Corp., 653 F.2d 1031 (5th Cir.1981). Every federal court exercising diversity jurisdiction is "in effect, sitting as a state court." Id. at 1034, quoting Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967). This Court's duty is "to make a considered `educated guess' as to what decision would be reached by the Supreme Court [of Louisiana] with respect to the policies involved in this litigation under the facts of the present case." Ann Arbor Trust Co. v. North American Company for Life and Health Insurance, 527 F.2d 526, 527 (6th Cir.1975). With this in mind, the Court here finds that, in light of the facts and arguments discussed above, the plaintiff has no basis for recovery under the Louisiana law of products liability.

The plaintiff's alternate theory of recovery is based on the law governing ultrahazardous or abnormally dangerous activities. In the past, Louisiana courts have found a number of activities to be ultrahazardous. See, e.g., Langlois v. Allied Chemical Corp., supra (storage of toxic gas); Craig v. Montelepre Realty Co., 252 La. 502, 211 So.2d 627 (1968) (pile driving); Gotreaux v. Gary, 232 La. 373, 94 So.2d 293 (1957) (crop dusting by airplanes); Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955) (blasting with explosives); Rosenblath v. Louisiana Bank & Trust Co., 432 So.2d 285 (La.App.1983) (demolition of buildings with ball, crane, and blasting). When courts have found that an activity fits into this category, they

Kent v. Gulf States Utilities Co., supra at 498 (emphasis in original).10 No Louisiana court has held, however, that the marketing of handguns for sale to the general public is an ultrahazardous activity. Indeed, no Louisiana court has held that any activity associated with handguns is an ultrahazardous activity. Still, this is not dispositive. For no Louisiana court has held to the contrary, either.

What the courts have said, repeatedly, although only in dicta as far as handguns are concerned, is this:

Holland v. St. Paul Mercury Insurance Co., 135 So.2d 145, 154 (La.App.1961) (emphasis added). See also Prescott v. Central Contract Co., 162 La. 885, 111 So. 269 (1927); Cambridge Mutual Fire Insurance Co. v. State Farm Fire & Casualty Co., 405 So.2d 587 (La.App.1981); Miller v. Lambert, 380 So.2d 695 (La.App.1980); Waters v. Southern Farm Bureau Casualty Insurance Co., 212 So.2d 487 (La.App.1968), writ refused, 252 La. 900, 214 So.2d 720 (1968). Yet, given the way Louisiana law has developed, this statement is misleading. It suggests that all dealers, handlers, and distributors that engage in the enumerated activities are held to a negligence standard. But such is not the case. People that distribute electricity, for example, are subject to strict liability under Article 2317. Kent v. Gulf States Utilities Co., supra at 499. Similarly, people that blast with explosives are subject to "absolute" liability under the law governing ultrahazardous activities. Id. at 498. Owing to these inconsistencies, the Court has no alternative but to examine the defendant's marketing practices in light of the law of ultra-hazardous activities.

An ultrahazardous activity is not an unreasonably dangerous activity. It is an activity "in which the risk may be altogether reasonable and still high enough that the party ought not undertake the activity without assuming the consequences." Kent v. Gulf States Utilities Co., supra, at 498. To determine whether an activity fits this description, the Louisiana Supreme Court has articulated the following rule:

Langlois v. Allied Chemical Corp., supra 249 So.2d at 140 (citation omitted). Even a cursory reading of this rule reveals its vagueness. Fortunately, though, the court did not simply articulate the rule and say no more. To support its reliance on the rule, the court referred to the Restatement provisions that apply to ultrahazardous activities. Id. 249 So.2d at 139 n. 13. Although those provisions are likewise rather vague, they are nonetheless sufficiently clear to provide this Court with the guidance it needs. See Ashland Oil, Inc. v. Miller Oil Purchasing Co., supra, at 1307-1308.

The relevant sections in the Restatement are §§ 519 and 520.11 Section 519 reads as follows:

Restatement (Second) of Torts § 519. Section 520 contains a list of "the factors to be considered in determining whether an activity is abnormally dangerous." Id. at § 519 comment b. Those factors are:

Id. at § 520. In considering these factors, a court should be aware that "[a]ny one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily." Id. at § 520 comment f.12

The drafters' discussion of each factor is illuminating. Here, in part, is what they say about the first two, (a) and (b):

Id. at comment g. The plaintiff in this case argues, in effect, that the harm threatened by the defendant's marketing practices — namely, serious physical injuries and deaths — is "major in degree" and "sufficiently great." She also argues that the likelihood of such harms occurring is far from "relatively slight." The ultimate validity of these arguments depends on whether the plaintiff can establish a causal connection between the harms threatened and the injury sustained. That issue is for a jury to decide. At this point, however, the Court cannot find as a matter of law that the plaintiff's arguments are without merit.

Factor (c) concerns whether the party engaging in the allegedly ultrahazardous or abnormally dangerous activity can eliminate the risk of serious harm by exercising reasonable care. Again, the drafters' discussion is illuminating:

Id. at comment h. According to the plaintiff, marketing handguns for sale to the general public is not an activity that "can be made entirely safe by the taking of all reasonable precautions." In saying this, the plaintiff is not suggesting that no way exists for the defendant to reduce the risk of harm. She readily acknowledges that the defendant could reduce the risk by altering its current marketing practices — by restricting sales to, say, law enforcement agencies and sporting clubs. But this, she says, is beside the point. For what is ultrahazardous or abnormally dangerous, in her view, is not the marketing of handguns per se but the marketing of handguns to the general public. Her point is that, so long as the defendant continues its current marketing practices, no amount of due care will significantly reduce the risk of harm. This argument, like the plaintiff's argument in connection with factors (a) and (b), is not without legal merit.

The fourth factor, (d), is "common usage." In the context of this case, the paramount question regarding this factor is whether handgun use is an activity that "is customarily carried on by the great mass of mankind or by many people in the community." Id. at comment i. The example discussed in the Restatement focuses on motor vehicles:

Id. Operating an automobile is just one potentially dangerous activity that is also a common activity. Consuming liquor is another: it, too, "is customarily carried on by the great mass of mankind or by many people in the community." The same holds true for the use of knives; many people use them every evening at the dinner table. Handgun use, on the other hand, appears to fit into a different category. Handguns are not an item of "general use"; they are an item of extraordinary or abnormal use. Many people in the community are likely on an average day to operate an automobile, to consume a drink, or to use a knife. Few people, however, are likely to use a handgun except in highly unusual circumstances—when attacked by a criminal assailant, for example, or when acting as a criminal assailant. Thus, the Court cannot conclude that the operation of handguns is "a matter of common usage."

To the extent the "locality" factor, (e), is germane here, it too supports the plaintiff's claim. Normally, this factor, which concerns "the place where [the activity] is carried on," pertains to such activities as blasting with explosives, crop dusting, and transporting highly inflammable liquids. Id. at comment j. Whether or not these activities are ultrahazardous depends on where they are conducted. If conducted in a densely populated area, they are likely to be ultrahazardous. If conducted in a desert, they are not. This is why the location of the activity is critical. In this case, however, the plaintiff contends that there is no place in the United States where handguns can be safely marketed for sale to the general public. This may or may not be true. The important point, for the purposes of this motion, is that the Court cannot say either that the plaintiff's contention is immaterial or that no genuine dispute about it exists.

The final factor, (f), concerns the value of the activity to the community. Regarding this factor, the drafters state:

Id. at comment k. The plaintiff argues that marketing handguns for sale to the general public has no utility at all. Quite clearly, this is an exaggeration. For the social utility of an activity that produces jobs and enables some people to defend themselves cannot be denied. Furthermore, the legislature, by not banning handguns sales to the general public, either by statute or by constitutional amendment, has indicated that it thinks the social utility of the defendant's marketing practices is at least as great as the social disutility of those practices. Still, none of these facts about the value of the defendant's marketing practices leads to the conclusion that "the community is largely devoted to the [defendant's] dangerous enterprise and [that the community's] prosperity largely depends upon it."

The defendant maintains that, if liability is imposed in this case, no company that markets handguns for sale to the general public will be able in the future to obtain insurance. The result, according to the defendant, will be catastrophic for handgun manufacturers: all such companies will be forced either to alter their marketing practices radically or to go out of business. This argument has a ring of plausibility to it. At the same time, however, it is highly speculative. One problem is that the defendant has introduced no evidence to support the argument. Another problem is that the defendant ignores the impact LSA-C.C. art. 3536 would have on the imposition of liability. That article contains a one-year prescription period for all "damages ... resulting from offenses or quasi-offenses." Thus, even if liability is imposed here, neither the defendant nor its competitors can be held liable in other similar cases, unless the plaintiff has filed suit within a year following the date of death.

Perhaps the most significant fact the defendant ignores is that increased insurance costs can be passed on to consumers in the form of higher prices for handguns. The people who benefit most from marketing practices like the defendant's are handgun manufacturers and handgun purchasers. Innocent victims rarely, if ever, are beneficiaries. Consequently, it hardly seems unfair to require manufacturers and purchasers, rather than innocent victims, to pay for the risks those practices entail. See, e.g., Fletcher, "Fairness and Utility in Tort Theory," 85 Harv.L.Rev. 537, 546 (1972); Sharp, "Aristotle, Justice and Enterprise Liability in the Law of Torts," 34 U.Toronto Faculty L.Rev. 84, 90 (1976). Furthermore, economic efficiency seems to require the same result. In an important article on ultrahazardous activities and risk allocation, Professor Clarence Morris makes just this point. Morris, "Hazardous Enterprises and Risk Bearing Capacity," 61 Yale L.J. 1172 (1952). In his view, "the avowed goal of the absolute liability approach is allocation of loss to the party better equipped to pass it on to the public: the superior risk bearer." Id. at 1176; See also Calabresi & Hirschoft, "Toward a Test for Strict Liability," 81 Yale L.J. 1055, 1060 n. 19 (1972); Diamond, "Eliminating the `Defect' in Design Strict Products Liability Theory," 34 Hastings L.J. 529 (1983); England, "The System Builders: A Critical Appraisal of Modern Tort Theory," 9 J.Legal Stud. 27, 69 (1980). Professor Morris discusses a variety of examples to show that the defendant is not always the superior risk bearer in an ultrahazardous activity case. Here is what he says, however, about bodily injury and risk-bearing capacity:

Id. at 1177.

Another prominent legal scholar, Wex Malone, in an article on Louisiana tort law, says much the same thing:

Malone, "The Work of the Louisiana Appellate Courts for the 1969-70 Term — Torts," 31 La.L.Rev. 231, 241 (1971).13 Thus, both fairness and economic efficiency suggest that the community would be better off if the defendant's marketing practices were classified as ultrahazardous. The Court, though, cannot reach that conclusion on this motion.14 All the Court can conclude here is that the defendant's marketing practices are not so valuable to the community that they should automatically be exempt from the ultrahazardous classification.

At this point, a brief summary is in order. The Court has now examined all of the factors contained in § 520 of the Restatement in light of the facts in this case. In so doing, the Court has shown that a genuine dispute exists in connection with each factor. Two factors, however, require special emphasis here in order to delimit the scope both of the plaintiff's claim and of similar claims that might be brought against other manufacturers. The first is factor (c), "common usage." The second is factor (f), "value to the community." If the defendant can eventually show either that the operation of handguns is a matter of common usage or that the social utility of the company's marketing practices is significantly greater than the social disutility of those practices, the plaintiff is likely to lose on the merits. On the evidence produced so far, however, the defendant has failed to make the requisite showing. Since the Court has no reason to suspect that its analysis is in any way incompatible with Langlois v. Allied Chemical Corp., supra, the leading Louisiana case on ultrahazardous activities, the Court cannot find as a matter of law that the defendant's marketing practices are exempt from being classified as ultrahazardous.

Yet this is not the end of the matter. Still to be considered are the Charter Arms Corporation's defenses. Under Louisiana law, no defendant can be held strictly liable for any injury "caused by the fault of the victim, by the fault of a third person, or by an irresistible force." Jones v. The City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737, 740 (La.1980). See also Loescher v. Parr, 324 So.2d 441 (La.1975); Holland v. Buckley, 305 So.2d 113 (La.1974). The Charter Arms Corporation contends that this rule obviously exonerates the company from liability since Kathy Newman's death was not caused by the company but by a third person — Willie Watson. Not surprisingly, however, the matter is neither as obvious as the defendant contends nor as clear as appearances suggest.

In Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1979), the Louisiana Supreme Court held, in a scholarly opinion written by Judge (then Justice) Tate, that a defendant can escape liability by proving third-person fault only if the third-person fault "is the sole cause of the damage," Id. at 1293; that is, only if "the intervening third person's act or fault is in the nature of a superseding cause in Anglo-American tort law. See Restatement of Torts, 2d, Sections 440-453 (1965)." Id. at 1293 n. 15.15 Louisiana courts writing since Olsen have followed the same rule. See, e.g., Ruffo v. Schwegmann Brothers Giant Supermarkets, Inc., 424 So.2d 470, 474 (La.App.1982); Brown v. Soupenne, 416 So.2d 170, 173 (La.App.1982); Robertson v. Parish of East Baton Rouge, 415 So.2d 365, 367 (La.App.1982). So, too, has the Fifth Circuit in cases construing Louisiana law. See Hyde v. Chevron U.S.A., Inc., 697 F.2d 614, 620 (5th Cir. 1983); Rodrigue v. Dixilyn Corp., 620 F.2d 537, 542 (5th Cir.1980); Ramos v. Liberty Mutual Insurance Co., 615 F.2d 334, 342 (5th Cir.1980).

Two of the Louisiana appellate courts that have followed Olsen have interpreted the case rather narrowly. According to both, Olsen says that a defendant can exonerate himself from liability in a strict liability suit by showing that the third person who caused the injury was a "stranger," someone who acted without the defendant's consent. Brown v. Soupenne, supra; Robertson v. Parish of East Baton Rouge, supra. The Fifth Circuit has in dicta reached the same conclusion in one case but the opposite conclusion in another. In Hyde v. Chevron U.S.A., Inc., supra, the court stated: "The owner [of a thing] is absolved from liability by three defenses ... [one of which is] the fault of some third person (who must be a `stranger' rather than a person acting with the consent of the owner)." Id. at 620. In Ramos v. Liberty Mutual Insurance Co., supra, the court stated: "Only where the third person's actions are the sole cause of the damages, in the nature of a superseding cause, will the owner of a thing be exonerated. When the `third person' is a stranger, not one acting with the owner's consent, the owner cannot avoid 2322 liability." Id. at 342.

For several reasons, the Court here finds the Ramos court's interpretation of the "sole cause" rule more consistent with Olsen. The first reason can be gleaned from what the Olsen court actually said regarding strangers:

Olsen v. Shell Oil Co., supra, at 1293-94 (citing Restatement (Second) of Torts 66 440-453) (emphasis added). By using `and' rather than `or,' the conjunctive rather than the disjunctive, the court indicated that it is necessary but not sufficient for a party claiming this defense to show that the third person was a stranger. According to this interpretation, the defendant in Olsen could not have established the defense simply by showing that the third person involved was a stranger; the defendant also had to show that the risk of harm it created by allowing its building to fall into disrepair in no way contributed to the plaintiff's injury. By analogy, the defendant in this case must show both that Willie Watson was a stranger — clearly an easy showing to make — and that the risk of harm it created by marketing handguns for sale to the general public in no way contributed to Kathy Newman's death. The defendant cannot simply invoke the so-called "stranger" rule and thereby escape liability.

The Louisiana Supreme Court recently provided another reason for adopting the Ramos court's interpretation. In Kent v. Gulf States Utilities Co., supra, the court made the following comment:

Id. at 499 n. 8. This statement does not distinguish between strangers and other persons. It suggests, instead, that the Louisiana law governing ultrahazardous activities is still unsettled as to a defendant's liability for damages caused by third-person-strangers. Had the issue already been settled by the time Kent was decided, the court could easily have said so.

The final, and perhaps most important, reason for following Ramos stems from the fact that Olsen bases the third-person defense on §§ 440-453 of the Restatement. Those sections, like the Louisiana Supreme Court in Kent, draw no distinction between strangers and other persons. The focus of those sections, or at least of the sections relevant to this case, is almost exclusively on the foreseeability of the intervening act or force that creates or increases the risk of harm. Given this focus, the distinction between strangers and other persons is irrelevant.

Having concluded that the Charter Arms Corporation cannot escape liability simply by showing that Willie Watson was a "stranger," the Court will now turn to the Restatement sections Olsen requires the Court to examine. The relevant sections are 440 and 448. Section 440 defines the term "superseding cause":

Restatement (Second) of Torts § 440 (1965). Section 448 contains one of the rules to be used in determining whether a given intervening act or force is a superseding cause:

Id. at § 448 (1965) (emphasis added).16

These sections of the Restatement discuss "superseding cause" only in terms of an act or force that exonerates a defendant from liability for his own negligence. They say that a negligent defendant can be held liable only if the intervention by a third person is foreseeable. They do not say, however, whether the same rule applies in a strict liability case, where the defendant's negligence is not an issue.17 Olsen states that the same rule applies in both cases, although the actual holding in Olsen is narrower. Unlike Willie Watson, the "third person" that contributed to the injury in Olsen was only negligent. No party in Olsen appears to have alleged, nor did the court there find, that the third person's conduct was intentionally tortious or criminal. Thus, the facts in Olsen did not require the court to discuss, much less to expand the scope of, § 448. Since the court cited no authority in support of its claim that a broad version of that section is part of Louisiana's law of strict liability, the court's claim was dicta. Even so, in the opinion of this Court, that dicta ought to be followed in this case.18 The Charter Arms Corporation mentions no standard the Court might use to draw a principled distinction between acts of a third person that are only negligent and acts of a third person that are intentionally tortious or criminal. Nor has the Court, as a result of its own extensive research, succeeded in identifying such a standard. The critical question, then, on this motion for summary judgment, is not whether Willie Watson's conduct was the sole cause or a superseding cause of Kathy Newman's death. That question, as a matter of law, is for a jury to answer. What a jury must decide is whether "the defendant's [activities had] something to do with the harm," Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620, 622 (La.1972); Jones v. Robbins, 289 So.2d 104, 106 (La.1974);19 or were "a substantial factor contributing to ... the injury." Frank v. Pitre, 353 So.2d 1293, 1296 (La.1977) (Tate, J., concurring); Taylor v. State, 431 So.2d 876, 879 (La.App.1983).20 The critical question here is: What are the legal limits of a handgun manufacturer's liability for the criminal acts of third persons? The answer to this question must be found in Louisiana's law of products liability and ultrahazardous activities. After carefully examining the law in these two areas, the Court has concluded that the plaintiff may proceed with her claim under the law of ultrahazardous activities but that she has no claim under the law of products liability.

In reaching this conclusion, the Court is not unmindful of the fact that handgun violence is a pressing political issue. Some will doubtless argue that it is solely a political issue. Those who do, however, will be mistaken. They will have overlooked two significant facts about Louisiana jurisprudence. The first can be found in Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983):

See also R. Dworkin, Taking Rights Seriously 81-130 (1977); H.L.A. Hart, The Concept of Law, 120-144 (1961); Moore, "The Semantics of Judging," 54 S.Cal.L.Rev. 151 (1981); O'Connell, "Expanding No Fault Beyond Auto Insurance: Some Proposals," 59 Va.L.Rev. 749, 789-790, 825-826 (1973). Tate, "The `New' Judicial Solution: Occasions for and Limits to Judicial Creativity," 54 Tul.L.Rev. 877 (1979-80).

As this excerpt suggests, much overlap exists under Louisiana law between the role of the courts and the role of the legislature. Indeed, "except in the clearest of cases," courts must resolve a legal dispute "from the same standpoint as would a legislator regulating the matter." Id. This is not to say that the courts and the legislature are partners of equal standing in deciding matters of public policy. Far from it. Outside the area of constitutional law, the legislature always has the final word. If the legislature speaks clearly, the courts must defer. It is only when the legislature fails to speak clearly that courts can and "must consider the moral, social, and economic values, as well as the ideal of justice, in reaching an intelligent and responsible decision." Id.

This brings us to the second significant fact about Louisiana jurisprudence — namely, that the case here is not one of the "clearest of cases." As indicated above, the legislature has said it thinks the activity of marketing handguns for sale to the general public is a reasonable activity. At the same time, however, the legislature has not said whether it thinks a person that engages in such an activity ought or ought not to "[carry it] on at his peril, rather than at the expense of the innocent person who suffers harm from it." Restatement (Second) of Torts, supra, at § 520 comment h. This silence, when viewed in connection with Langlois and the Restatement criteria for ultrahazardous activities, prevents the Court at this point from telling the plaintiff that she is without a legal remedy. The Court cannot say that there is no genuine dispute about material facts. Consequently, the defendant's motion for summary judgment is DENIED.