MESKILL, Circuit Judge:
Plaintiffs include two surviving victims and the estate of one deceased victim of the December 7, 1993 assault on the 5:33 p.m. Long Island Railroad commuter train.
On December 7, 1993, Colin Ferguson boarded the Long Island Railroad's 5:33 p.m. commuter train departing from New York City and opened fire on the passengers. Six people, including Dennis McCarthy, were killed and nineteen others, including Kevin McCarthy and Maryanne Phillips, were wounded in the vicious attack. Ferguson was armed with a 9mm semiautomatic handgun, which was loaded with Winchester "Black Talon" bullets (Black Talons). The injuries to Dennis and Kevin McCarthy and Maryanne Phillips were enhanced by the ripping and tearing action of the Black Talons because, unfortunately, the bullets performed as designed.
Plaintiffs brought this action against Olin, Sturm, Ruger & Company Inc., the manufacturer of the handgun used by Ferguson, and Ram-Line Inc., the manufacturer of the fifteen round capacity magazine used with the handgun, in New York State Supreme Court to recover for the injuries of Kevin McCarthy and Maryanne Phillips and the death of Dennis McCarthy. The complaint was based on various theories of negligence and strict liability. Defendants removed the case to the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. § 1441(a), on the grounds that the district court had original jurisdiction based on diversity of citizenship of the parties under 28 U.S.C. § 1332(a)(1). The action was subsequently discontinued with prejudice against Sturm, Ruger and Ram-Line.
Olin moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The district court granted the motion. First addressing the issue of negligence, the court held that plaintiffs' negligence theories must fail because Olin owed no duty to plaintiffs to protect them from criminal misuse of the Black Talon ammunition. McCarthy, 916 F.Supp. at 368-70. With respect to the strict liability claims, the court held that plaintiffs failed to allege the existence of a design defect in the Black Talon because the ammunition must by its very nature be dangerous to be functional. Id. at 370-71. The risk of the Black Talon arises from the function of the product, not from a defect in the product. Id. at 371. The court noted that to state a claim in either negligence or strict liability, plaintiff must demonstrate that defendant's breach was the proximate cause of their injuries. Here, Ferguson's conduct was an extraordinary act which broke the chain of causation. Id. at 372. The district court also pointed to two recent decisions by the New York Supreme Court addressing almost identical claims and holding that they did not state a cause of action. Id. at 368. See Pekarski v. Donovan, Nos. 95-11161, 95-1175, 95-1187, slip op. (N.Y.Sup.Ct. Oneida County Sept. 27, 1995) (victims of shooting by ex-police officer brought suit against Olin Corp.); Forni v. Ferguson, No. 132994/94, slip. op. (N.Y.Sup.Ct. New York County Aug. 2, 1995), aff'd, 232 A.D.2d 176, 648 N.Y.S.2d 73 (1st Dep't 1996) (action by victim of Long Island Railroad shooting against Olin Corp.).
Plaintiffs appeal the dismissal of their complaint, claiming that the issue of whether they will ultimately prevail is a matter to be determined on a factual basis and not merely on the pleadings. In the alternative, plaintiffs request that because the complaint is based on novel theories of liability under New York law, we certify the questions raised in this case to the New York Court of Appeals.
We review de novo the district court's dismissal of the complaint under Fed. R.Civ.P. 12(b)(6) and draw all reasonable inferences in the plaintiffs' favor. Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir.1994). The complaint may be dismissed only if "it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim[s] which would entitle [them] to relief." Conley
A federal court sitting in a diversity case will apply the substantive law of the forum state on outcome determinative issues. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir.1994). We determine de novo what the law of New York is. Bank of New York v. Amoco Oil Co., 35 F.3d 643, 650 (2d Cir.1994) (citing Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991)). In making this determination, we afford the greatest weight to decisions of the New York Court of Appeals. Id. "Where the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity." Travelers Ins. Co., 14 F.3d at 119. "Where the high court has not spoken, the best indicators of how it would decide are often the decisions of lower [New York] courts." In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 850 (2d Cir.1992). We may also consider relevant cases from jurisdictions other than New York. Bank of New York, 35 F.3d at 650.
Appellants argue that in New York, there is no definite rule of law as to liability for ammunition manufacturers, especially ammunition designed to cause enhanced injuries beyond ordinary bullets, and therefore the district court erred in dismissing their complaint. Appellants reason that because they raise "novel" theories of liability, discovery should be allowed so that the issues may be explored in "light of actual facts rather than pleading suppositions." As an alternative to their argument for remand, appellants ask us to certify the questions raised in this case to the New York Court of Appeals. We address appellants' arguments in reverse order, first discussing the standard applied to determine suitability for certification. Because we hold that certification is not warranted, we will then address the merits of the substantive issues raised in this appeal.
I. Certification to the New York Court of Appeals
The procedure for certifying a question of law to the New York Court of Appeals is governed by Second Circuit Rule 0.27 and New York Court of Appeals Rule 500.17. See also N.Y. Const. art. VI, § 3(b)(9). "Certification is a discretionary device, both for the certifying court and for the court requested to answer the certified question[s]." Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 51 (2d Cir.1992). See 2d Cir. R. 0.27 ("[T]his Court may certify to the highest court of a state an unsettled and significant question of state law that will control the outcome of a case pending before this Court."); N.Y. Ct.App. R. 500.17 (entitled "Discretionary Proceedings to Review Certified Questions From Federal Courts ..."). Certification provides us with
Dorman v. Satti, 862 F.2d 432, 434-35 (2d Cir.1988); but see Fletcher v. Kidder, Peabody & Co., 184 A.D.2d 359, 361, 584 N.Y.S.2d 838, 840 (1st Dep't 1992) (New York state court not precluded from exercising its own judgment nor bound to follow decisions of federal Court of Appeals encompassing New York law), aff'd, 81 N.Y.2d 623, 601 N.Y.S.2d 686, 619 N.E.2d 998, cert. denied, 510 U.S. 993, 114 S.Ct. 554, 126 L.Ed.2d 455 (1993).
Certification should not be used as "`a device for shifting the burdens of this Court to those whose burdens are at least as great.'" Dorman, 862 F.2d at 435 (quoting Kidney v. Kolmar Laboratories, 808 F.2d 955, 957 (2d Cir.1987)). Ordinarily, certification is proper "only where there is a split of authority on the issue, where [a] statute's plain language does not indicate the answer, or when presented with a complex question of New York common law for which no New York authority can be found." Riordan, 977
Recently, the New York courts have had the opportunity to address issues almost identical to those raised in this case. See Pekarski v. Donovan, Nos. 95-11161, 95-1175, 95-1187, slip op. (N.Y.Sup.Ct. Oneida County Sept. 27, 1995);
II. Strict Liability
Appellants' first argument is that Olin should be held strictly liable for their injuries because the Black Talon ammunition was defectively designed and the design and manufacture of the bullets were inherently dangerous.
A. Design Defect
A manufacturer who places into the stream of commerce a defective product which causes injury may be held strictly liable. Amatulli v. Delhi Const. Corp., 77 N.Y.2d 525, 532, 569 N.Y.S.2d 337, 340, 571 N.E.2d 645, 648 (1991). In New York, there are three distinct claims for strict products liability: (1) a manufacturing defect, which results when a mistake in manufacturing renders a product that is ordinarily safe dangerous so that it causes harm, Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395, 373 N.Y.S.2d 39, 335 N.E.2d 275 (1975); (2) a warning defect, which occurs when the inadequacy or failure to warn of a reasonably foreseeable risk accompanying a product causes harm, Torrogrossa v. Towmotor Co., 44 N.Y.2d 709, 405 N.Y.S.2d 448, 376 N.E.2d 920 (1978); and (3) a design defect, which results when the product as designed is unreasonably
To state a cause of action for a design defect, plaintiffs must allege that the bullet was unreasonably dangerous for its intended use. "[A] defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer." Robinson v. Reed-Prentice Division of Package Mach. Co., 49 N.Y.2d 471, 479, 426 N.Y.S.2d 717, 720, 403 N.E.2d 440, 443 (1980). See also Urena v. The Biro Manufacturing Co., 114 F.3d 359, 363 (2d Cir.1997) (applying the Robinson standard). "This rule, however, is tempered by the realization that some products, for example knives, must by their very nature be dangerous in order to be functional." Robinson, 49 N.Y.2d at 479, 426 N.Y.S.2d at 720, 403 N.E.2d at 443. The very purpose of the Black Talon bullet is to kill or cause severe wounding. Here, plaintiffs concede that the Black Talons performed precisely as intended by the manufacturer and Colin Ferguson.
DeRosa v. Remington Arms Co., 509 F.Supp. 762, 769 (E.D.N.Y.1981) (under New York law, shotgun as designed by defendant was not unreasonably dangerous for its foreseeable use) (quoting Murphy & Santagata, Analyzing Product Liability 4 (1979) and omitting footnotes) (alteration in original); Forni, 648 N.Y.S.2d at 74.
Appellants have not alleged that the bullets were defective. "As a matter of law, a product's defect is related to its condition, not its intrinsic function." Forni, 648 N.Y.S.2d at 74 (citing Robinson, 49 N.Y.2d at 479, 426 N.Y.S.2d at 720, 403 N.E.2d at 443). The bullets were not in defective condition nor were they unreasonably dangerous for their intended use because the Black Talons were purposely designed to expand on impact and cause severe wounding.
Appellants next argue that under the risk/utility test analysis applied by New York courts, appellee should be held strictly liable because the risk of harm posed by the Black Talons outweighs the ammunition's utility. The district court properly held that the risk/utility test is inapplicable "because the risks arise from the function of the product, not any defect in the product." McCarthy, 916 F.Supp. at 371. "There must be `something wrong' with a product before the risk/utility analysis may be applied in determining whether the product is unreasonably dangerous or defective." Addison v. Williams, 546 So.2d 220, 224 (La.Ct.App. 1989) (holding that Olin Corp. could not be held strictly liable for the manufacture of steel jacketed ammunition capable of causing enhanced injuries) (citing Note, Handguns and Products Liability, 97 Harv. L.Rev.1912, 1915 (1984)).
The purpose of risk/utility analysis is to determine whether the risk of injury might have been reduced or avoided if the manufacturer had used a feasible alternative design. See Urena, 114 F.3d at 364-65 (burden of proving product is unreasonably dangerous requires showing that product could have been designed more safely). However, the risk of injury to be balanced with the utility is a risk not intended as the primary function of the product. Here, the primary function of the Black Talon bullets was to kill or cause serious injury. There is no reason to search for an alternative safer design where the product's sole utility is to kill and maim. Accordingly, we hold that appellants have failed to state a cause of action under New York strict products liability law.
B. Inherently Dangerous Product
Appellants also argue that Olin should be held strictly liable because the Black Talon ammunition is "unreasonably dangerous per se." According to the appellants' theory, a product is unreasonably dangerous per se if a reasonable person would conclude that the danger of the product, whether foreseeable or not, outweighs its utility.
In their complaint, appellants asserted causes of action for the negligent marketing and manufacture of Black Talon bullets. On appeal, appellants do not appear to pursue their negligent manufacturing claim but rather focus their argument on Olin's negligent marketing of the ammunition. For the reasons discussed below, appellants cannot assert a cause of action under either theory of negligence.
The crux of appellants' negligence theory is that Olin negligently marketed and placed the Black Talon ammunition for sale to the general public. Appellants argue that because of the severe wounding power of the bullets, Olin should have restricted sales to law enforcement agencies, for whom the bullet was originally designed. They also argue that Olin should have known that their advertising, which highlighted the ripping and tearing characteristics of the bullet, would attract "many types of sadistic, unstable and criminal personalities," such as Ferguson.
To state a cause of action for negligence, the plaintiffs must show: (1) that Olin owed them a "duty, or obligation, recognized by law", (2) a breach of the duty, (3) a "reasonably close causal connection between [defendant's] conduct and the resulting injury" and (4) loss or damage resulting from the breach. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 30, at 164-65 (5th ed.1984) (hereinafter Prosser & Keeton). Becker v. Schwartz, 46 N.Y.2d 401, 410, 413 N.Y.S.2d 895, 899, 386 N.E.2d 807, 811 (1978). "In the absence of a duty, as a matter of law, no liability can ensue." Gonzalez v. Pius, 138 A.D.2d 453, 454, 525 N.Y.S.2d 868, 869 (2d Dep't 1988). "Thus it may be said that the defendant was negligent, but is not liable because he was under no duty to the plaintiff not to be." Prosser & Keeton, § 30 at 164.
In tort cases, foreseeability is often confused with duty. Foreseeability "is applicable to determine the scope of duty — only after it has been determined that there is a duty." Pulka v. Edelman, 40 N.Y.2d 781, 785, 390 N.Y.S.2d 393, 396, 358 N.E.2d 1019, 1022 (1976). "The mere fact that a consequence might foreseeably result from an action or condition does not serve to establish a duty owing from a defendant to a plaintiff." Gonzalez, 138 A.D.2d at 454, 525 N.Y.S.2d at 869. The existence of a duty is a question of law to be decided by the court. New York courts are reluctant to impose a duty of care where there is little expectation that the defendant could prevent the actions of a third party. See Pulka, 40 N.Y.2d at 786, 390 N.Y.S.2d at 397, 358 N.E.2d at 1022 ("While a court might impose a legal duty where none existed before, such an imposition must be exercised with extreme care, for legal duty imposes legal liability." (citation omitted)). "[C]ommon law in the State of New York does not impose a duty to control the conduct of third persons to prevent them from causing injury to others. This is so ... even where as a practical matter defendant
New York courts do not impose a legal duty on manufacturers to control the distribution of potentially dangerous products such as ammunition. Accordingly, although it may have been foreseeable by Olin that criminal misuse of the Black Talon bullets could occur, Olin is not legally liable for such misuse. As the district court pointed out, appellants have not alleged that any special relationship existed between Olin and Ferguson. Here, Olin could not control the actions of Ferguson. "[I]t is unreasonable to impose [a] duty where the realities of every day experience show us that, regardless of the measures taken, there is little expectation that the one made responsible could prevent the ... conduct [of another]." Pulka, 40 N.Y.2d at 785, 390 N.Y.S.2d at 396, 358 N.E.2d at 1022; see also Forni, 648 N.Y.S.2d at 74 ("Plaintiffs did not, nor could they, show that defendants-manufacturers owed plaintiffs a duty of care.... New York does not impose a duty upon a manufacturer to refrain from the lawful distribution of a non-defective product.").
It is "the responsibility of courts in fixing the orbit of duty, to limit the legal consequences of wrongs to a controllable degree and to protect against crushing exposure to liability." Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402, 492 N.Y.S.2d 555, 557, 482 N.E.2d 34, 36 (1985) (internal quotation marks and citations omitted). To impose a duty on ammunition manufacturers to protect against criminal misuse of its product would likely force ammunition products — which legislatures have not proscribed, and which concededly are not defectively designed or manufactured and have some socially valuable uses — off the market due to the threat of limitless liability. Because Olin did not owe a legal duty to plaintiffs to protect against Colin Ferguson's horrible action, appellants' complaint does not state a cause of action for negligence and the claim was properly dismissed.
Because we hold that the Black Talon bullets were not defectively designed, we must affirm the dismissal of appellants' strict liability claims. We also hold that Olin was under no legal duty to prevent criminal misuse of its product and therefore affirm the dismissal of the negligence claims. Although appellants are the victims of a horrible tragedy, under New York law, they have failed to state a cause of action upon which relief can be granted — in sum, New York law does not afford them a remedy. Accordingly, we affirm the judgment of the district court.
CALABRESI, Circuit Judge, dissenting:
This case is less about bullets than about federal/state relations. It raises important questions of when it is appropriate for this court to certify issues of New York law to the New York Court of Appeals. I believe that federal courts in general, and this circuit in particular, have tended to be far too reluctant to certify questions to the state courts. See, e.g., Martin Flumenbaum & Brad S. Karp, Certification of Unsettled Law Issues, N.Y.L.J., Jan. 29, 1992, at 3 (noting that the procedure for certification to the New York Court of Appeals "has been used only sparingly by the Second Circuit," which in 1992 had certified only five issues over the preceding six-year period). Specifically, federal courts have all too often refused to certify when they can rely on state lower court opinions to define state law. I view this reluctance as both wrong and unjust.
Reluctance to certify is wrong because it leads to precisely the kind of forum shopping that Erie R.R. Co. v. Tompkins, 304 U.S. 64, 73-77, 58 S.Ct. 817, 819-22, 82 L.Ed. 1188 (1938), was intended to prevent. See Hanna v. Plumer, 380 U.S. 460, 468, 85 S.Ct. 1136, 1142, 14 L.Ed.2d 8 (1965) (noting that one of the aims of the Erie decision was "discouragement of forum-shopping"). This is especially so in situations where there is some law in the intermediate state courts, but no definitive holding by the state's highest tribunal. In such cases, and in the absence of certification, the party that is favored by the
When federal courts, in effect, prevent state courts from deciding unsettled issues of state law, they violate fundamental principles of federalism and comity. As the Supreme Court has noted, while certification may cause delay in any given case, "[i]t does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism." Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974); see also Arizonans For Official English v. Arizona, ___ U.S. ___, ___, 117 S.Ct. 1055, 1073, 137 L.Ed.2d 170 (1997). Federal courts that refuse to certify end up "mak[ing] important state policy, in contravention of basic federalism principles." Hakimoglu v. Trump Taj Mahal Assocs., 70 F.3d 291, 302 (3d Cir.1995) (Becker, J., dissenting); see also Richard Alan Chase, Note, A State Court's Refusal to Answer Certified Questions: Are Inferences Permitted?, 66 ST. JOHN'S L. REV. 407, 415 (1992) ("A federal court demonstrates respect for state sovereignty when it certifies a question to the state's highest court and defers to its judgment on unresolved issues of state law.").
Reluctance to certify is unjust because, as has happened with some frequency,
The case of DeWeerth v. Baldinger provides a striking example. In that case, the plaintiff, DeWeerth, had originally prevailed in the federal district court, which ruled that as a matter of New York law she had established ownership of a valuable impressionist painting that had been stolen from her forty years earlier. See DeWeerth v. Baldinger, 658 F.Supp. 688 (S.D.N.Y.1987). On appeal, this court reversed the district court's judgment, finding that New York limitations law requires a showing of reasonable diligence in locating stolen property, and that DeWeerth had failed to make such a showing. See DeWeerth v. Baldinger, 836 F.2d 103, 108-12 (2d Cir.1987). We elected not to certify this question of New York law to the New York Court of Appeals, endeavoring instead to resolve the issue on our own. See id. at 108 n. 5.
Three years later, the New York Court of Appeals was presented with precisely the same issue, and held that the statute of limitations does not require a showing of reasonable diligence. See Solomon R. Guggenheim Found. v. Lubell, 77 N.Y.2d 311, 567 N.Y.S.2d 623, 626-27, 569 N.E.2d 426, 429-30 (1991). The Court of Appeals remarked, somewhat acidly:
Id. (citations omitted).
Following the New York Court of Appeals' decision in Guggenheim, DeWeerth attempted to reopen her case in order to have her dispute decided in accordance with the actual law of New York. See DeWeerth v. Baldinger, 804 F.Supp. 539 (S.D.N.Y.1992). Understandably, however, this court ruled that the subsequent clarification of state law did not justify disturbing a final judgment. See DeWeerth v. Baldinger, 38 F.3d 1266, 1272-73 (2d Cir.1994). Thus, despite the fact that "the DeWeerth panel's prediction was wrong," id. at 1273, and that DeWeerth was, in fact, entitled to the painting under New York law, she was left without a remedy. This happened not because of any decision by the highest court of New York, but rather because of the will of the federal courts.
Before the advent of the certification procedure, this court had little choice but to "do [its] best to predict what the highest state
This last is why the statement quoted by the majority, ante, Op. at 153, that the certification "procedure must not be a device for shifting the burdens of this Court to those whose burdens are at least as great," Dorman v. Satti, 862 F.2d 432, 435 (2d Cir.1988) (citation and internal quotation marks omitted), while true enough, can rarely be determinative. In the first place, it is well known that state court judges have expressed both publicly and privately their desire for certification
Just as the Supreme Court of the United States can decide for itself whether it wishes to grant certiorari, so too can state courts make analogous decisions as to certification. If anything, it is the failure to certify when certification is plausible that burdens state courts, because such a failure puts pressure
This is not to say that certification should be used indiscriminately. As Judge Cabranes has explained, federal courts must be careful to certify only in appropriate cases. See L. Cohen & Co., Inc. v. Dun & Bradstreet, Inc., 629 F.Supp. 1419, 1422-24 (D.Conn.1986); see also Barnes v. Atlantic and Pac. Life Ins. Co., 514 F.2d 704, 705 n. 4 (5th Cir.1975) ("[W]e use much judgment, restraint and discretion in certifying. We do not abdicate."). But "appropriate" must mean virtually any case in which 1) a significant and dispositive issue of state law is in genuine doubt (despite the existence of nonbinding lower court decisions, especially where those decisions — like the ones relied upon by the majority — were never appealed to the state's highest court), and 2) certification is specifically requested by the party that did not invoke federal court jurisdiction. By such a standard, I believe that certification is not used enough, and that cases like the one before us are especially suited to its use.
In cases that are dramatic and involve "hot" issues, there is a tendency for the parties to describe themselves as raising new issues that are remarkable in their legal context.
A. Liability for negligence
To hold a defendant liable in negligence in New York, a plaintiff must show: 1) a duty on the part of the defendant; 2) a breach of that duty by conduct involving an "unreasonable risk of harm," W. PAGE KEETON, DAN B. DOBBS, ROBERT E. KEETON & DAVID G. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS, § 53 at 358 (5th ed.1984) [hereinafter PROSSER & KEETON]; 3) damages suffered by the plaintiff; and 4) causation, both in fact and proximate, between the breach and the plaintiff's harm. See, e.g., Febesh v. Elcejay Inn Corp., 157 A.D.2d 102, 555 N.Y.S.2d 46, 47 (1990); Stagl v. Delta Airlines, Inc., 52 F.3d 463, 467 (2d Cir.1995). So viewed, three of the four elements of a cause of action for negligence — damages, causation, and conduct involving an unreasonable risk of harm — are either readily present or sufficiently cognizable under New York law on the facts of this case that a federal court would err mightily to hold on its own to the contrary. The fourth, the existence of a duty, is a more difficult question. But it is one that, I submit, only the New York Court of Appeals (or the New York Legislature) can answer.
1. Conduct involving an unreasonable risk of harm
The plaintiffs alleged in their complaint that the defendant created an unreasonable
Could a New York jury find that there was an undue risk of harm, if not in producing Black Talons, then in advertising them for use by (and selling them to) the general public? Put differently, could a jury find that the benefit gained by making Black Talons available to the public was outweighed by their potential harm.
The distinctive feature of the Black Talon bullet is that it "is designed to expand upon impact exposing razor-sharp edges at a 90degree angle to the bullet. This expansion dramatically increases the wounding power of the bullets." McCarthy v. Sturm, Ruger and Co., 916 F.Supp. 366, 368 (S.D.N.Y. 1996); see also Winchester Halts Sale of Disintegrating Bullet to Public, SALT LAKE TRIB., Nov. 23, 1993, at A4 [hereinafter Winchester Halts Sale] ("The 9mm bullets disintegrate upon impact into tiny razor-like claws that tear up tissues and organs."); Wendell Jamieson, Winchester Disarms a Killer Bullet, NEWSDAY (New York), Nov. 23, 1993, at 5 (noting that "the devastating bullets ... bloom into claw-like prongs on impact and cause hideous, gaping wounds"). The defendant marketed the product to civilian consumers in a slick black box bearing the words "BLACK TALON" surrounded by the sharp, gleaming claws of a bird of prey. It is certainly possible that a fact-finder would conclude that any benefit that comes from marketing and selling bullets with this additional destructive feature to private citizens is outweighed by their potential for significant harm.
There is nothing novel in finding negligence on these grounds. New York law recognizes that a defendant can be held liable for negligently marketing a product. See, e.g., Kaufman v. Eli Lilly and Co., 65 N.Y.2d 449, 492 N.Y.S.2d 584, 589, 482 N.E.2d 63, 68 (1985); Bikowicz v. Sterling Drug, Inc., 161 A.D.2d 982, 557 N.Y.S.2d 551, 552 (1990). And there is no reason why that principle should not allow recovery against a manufacturer who introduces a harmful product into general circulation, where the social utility of marketing that product to the public is outweighed by its risk of harm. See McClurg, supra; Joseph A. Page, Liability for Unreasonably and Unavoidably Unsafe Products: Does Negligence Doctrine Have a Role to Play?, 72 CHI.-KENT. L. REV. 87 (1996);
The fact that the New York legislature has not chosen to forbid the distribution of Black Talons in no way alters the conclusion that the defendant may have been negligent in marketing them to the general public.
I therefore conclude that there is little doubt that if the New York Court of Appeals
No one questions that the plaintiffs suffered harm of the most serious sort on the evening of December 7, 1993. Carolyn McCarthy lost her husband, who was shot in the head with a Black Talon bullet. Kevin McCarthy was shot in the head and hand, and now suffers paralysis. Maryanne Phillips was shot in her left arm, which was nearly destroyed by a Black Talon bullet. Whether these damages can be said to have resulted from the defendant's decision to market Black Talons is a question of causation, and is considered immediately below.
Under New York law, a plaintiff alleging negligence must prove that the defendant's breach of duty was a cause of the plaintiff's injury. Generally, there must be cause in fact, a causal tendency (that is, a "causal link"), and proximate cause. See Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. CHI. L. REV. 69, 71-73 (1975) [hereinafter Calabresi, Concerning Cause ].
The first of these, the requirement that the defendant's negligent act was a but for cause of the injury, see, e.g., Saulpaugh v. State, 132 A.D.2d 781, 517 N.Y.S.2d 328, 329 (1987), is readily met. To establish cause in fact, plaintiffs must generally prove that the specific damages they suffered resulted from the defendant's unduly risky conduct, and would not have occurred in the absence of the defendant's negligence.
The plaintiffs have clearly made such a showing here. Their allegations, if true, will support a finding that, but for the defendant's marketing of its product to persons like Colin Ferguson, the plaintiffs would not have suffered such extensive injuries. Indeed, the majority concedes that "[t]he injuries to Dennis and Kevin McCarthy and Maryanne Phillips were enhanced by the ripping and tearing action of the Black Talons." Ante, Op. at 151; cf. Bolm v. Triumph Corp., 33 N.Y.2d 151, 350 N.Y.S.2d 644, 647-48, 305 N.E.2d 769, 771-72 (1973) (holding that a manufacturer can be held liable in negligence "for defects in design which do not cause accidents but do enhance or aggravate injuries").
Similarly there can be no doubt that a causal tendency was shown.
While it is true "that an intervening intentional or criminal act will generally sever the liability of the original tort-feasor," New York law is clear that "[t]hat doctrine has no application when the intentional or criminal intervention of a third party or parties is reasonably foreseeable." Kush v. City of Buffalo, 59 N.Y.2d 26, 462 N.Y.S.2d 831, 835, 449 N.E.2d 725, 729 (1983). Moreover, "[a]n intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent." Derdiarian, 434 N.Y.S.2d at 170, 414 N.E.2d at 671. It cannot be said that criminal acts like Colin Ferguson's were, as a matter of law, not foreseeable. And it is precisely the unreasonable risk of this type of criminal activity that forms the basis of the plaintiffs' negligence claim. Accordingly, whether the defendant's alleged breach was a proximate cause of the plaintiffs' injuries is a question for the jury in this case.
Three of the four elements of negligence liability have, without question, been sufficiently alleged under New York law. The only aspect of this case — viewed as a negligence action — that is problematic is the existence of a duty. "In order to establish a prima facie case of negligence under New York law, a claimant must show that ... the defendant owed the plaintiff a cognizable duty of care...." Stagl, 52 F.3d at 467; see also Strauss v. Belle Realty Co., 65 N.Y.2d 399, 492 N.Y.S.2d 555, 557, 482 N.E.2d 34, 36 (1985). In this case, the plaintiffs must show that the defendant was under a duty to protect them from the harm caused by foreseeable criminal intervenors, and that such a duty entailed refraining from aggressively marketing its product to the general public.
In many jurisdictions, the existence of a duty depends primarily on 1) the foreseeability of harm to the plaintiff that would flow from the defendant's negligent acts,
That is not, however, the law in New York. Under New York law, the question of the existence of a "[d]uty in negligence cases is [not] defined ... by foreseeability of injury." Strauss, 492 N.Y.S.2d at 557, 482 N.E.2d at 36; see also Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 396, 358 N.E.2d 1019, 1022 (1976) ("Foreseeability should not be confused with duty.... [Foreseeability] is applicable to determine the scope of duty — only after it has been determined that there
Waters v. New York City Housing Auth., 69 N.Y.2d 225, 513 N.Y.S.2d 356, 358, 505 N.E.2d 922, 923-24 (1987) (citations, brackets, and internal quotation marks omitted).
This does not mean that the court is required —or even permitted — to weigh such policy considerations to determine the existence of a duty in each individual New York negligence case. Once the New York Court of Appeals has established that the relationship between plaintiffs and defendants in certain circumstances or categories of cases suffices to establish a duty of due care, all cases of like kind are covered by that finding, and there is no warrant to take a case from the jury for a separate judicial examination of duty.
It follows that, before we can be confident that there is a jury question as to negligence in this case, we must find precedents that establish a duty between the parties in cases akin to this one. I am not prepared to make such a finding. Nor, however, am I prepared to say that the New York Court of Appeals would not find that such a precedent exists or create one in this case. I am not, in other words, satisfied that the New York Court of Appeals has made a policy determination, one way or the other, in circumstances akin to those here.
The majority, instead, has no difficulty concluding that New York courts have determined that there is no duty here. It relies on the New York Court of Appeals' statement that
Purdy v. Public Adm'r of Westchester, 72 N.Y.2d 1, 530 N.Y.S.2d 513, 516, 526 N.E.2d 4, 7 (1988) (citations omitted).
Moreover, in cases such as this one involving the introduction of goods into the stream of commerce, New York courts have had little difficulty in holding the original seller to have a duty not only to the purchaser and parties having a direct relationship with the purchaser, but also to third-party bystanders. Thus, in the celebrated case of Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973), the New York Court of Appeals found a duty to a bystander injured by the defendant's product (an automobile) even though the defendant seller had been found to be free from negligence by a jury and even though the negligence of the user/purchaser of the car was in part the cause of the bystander's injuries. See id., 345 N.Y.S.2d at 463, 298 N.E.2d at 624 (holding that, despite the negligent intervenor, "the manufacturer of a defective product may be held liable to an innocent bystander ... for damages sustained in consequence of the defect").
In fact, under appropriate conditions, a defendant can even be held liable for the intervening criminal acts of a third party. See, e.g., Stagl, 52 F.3d at 467; Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 612-13, 407 N.E.2d 451, 457-58
What then does the New York Court of Appeals mean when it says that it has
Purdy, 530 N.Y.S.2d at 516, 526 N.E.2d at 7.
It cannot mean that a duty will be imposed only where there is privity between the defendant and the victim. See, e.g., Codling, 345 N.Y.S.2d at 461-65, 298 N.E.2d at 622-25 (finding that a defendant can be held liable to a third-party bystander). Nor can it mean that the defendant must actually be able to control the intervenor. See, e.g., Modave, 501 F.2d at 1072 (finding that a negligent doctor can be held liable for the harm caused by another negligent doctor at a different hospital). Rather, the cases in which New York courts have refused to find the requisite relationship are ones in which the defendant did not have much of an opportunity to prevent the harm, see Pulka, 390 N.Y.S.2d at 395-96, 358 N.E.2d at 1021, and in which imposing a duty would expose the defendant to liability "beyond sound public policy," Einhorn v. Seeley, 136 A.D.2d 122, 525 N.Y.S.2d 212, 216 (1988); see also Waters, 513 N.Y.S.2d at 358-59, 505 N.E.2d at 924. That is, they are the rather unusual cases where the allowance of liability would create "disproportionate risk and reparation allocation, and [would violate] public policies affecting the expansion or limitation of new channels of liability." Palka, 611 N.Y.S.2d at 821, 634 N.E.2d at 193. Thus, "'duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." PROSSER AND KEETON, supra, § 53 at 358.
What of this case? On the one hand, it seems that the defendant could have substantially reduced the harm caused by these unusually destructive bullets by not marketing them to the general public. And the danger of exposing the defendant to liability beyond sound public policy might not be present here, especially if the New York courts were to conclude that marketing Black Talons to the general public causes more harm than benefit.
Under the circumstances, it is hard to know whether the New York Court of Appeals would find a duty. The fact that the foreseeable intervenor behaved in a criminal, rather than a negligent, manner does not change matters for the purposes of proximate cause. See Kush, 462 N.Y.S.2d at 835, 449 N.E.2d at 729 (noting that, although "an intervening intentional or criminal act will generally sever the liability of the original tort-feasor," New York law is clear that "[t]hat doctrine has no application when the intentional or criminal intervention of a third party or parties is reasonably foreseeable"). Does it do so for purposes of duty? That is a question to which the New York Court of
In this respect, the argument that, because it is legal to sell and advertise Black Talons, there can be no liability, is misplaced. As Judge Gabrielli has noted, "[t]he common-law duty of reasonable care to those within the ambit of foreseeable danger requires no buttressing by legislative enactment; nor does the absence of such legislation in the present instance exclude the possibility of liability." Pulka, 390 N.Y.S.2d at 398, 358 N.E.2d at 1023-24 (Gabrielli, J., dissenting). There is all of the difference in the world between making something illegal and making it tortious. Making an activity tortious forces the people who derive benefit from it to internalize the costs associated with it, thereby making sure that the activity will only be undertaken if it is desired by enough people to cover its costs.
It is precisely because the public policy decision of whether to impose a legal duty is one that the New York Court of Appeals has retained for itself that we should be especially inclined to certify the question to that Court, rather than to endeavor to resolve it ourselves. Certification is particularly warranted when "the resolution of [the issue] requires a careful weighing of competing state policies and potentially could affect a large number of people." Jackson v. Johns-Manville Sales Corp., 757 F.2d 614, 615 (5th Cir.1985). We are simply not entitled to make policy for the State of New York. Such is a task for the State's highest tribunal.
B. Strict products liability
The requirements for strict products liability in New York are not markedly dissimilar from those for negligent products liability. Once again: a) a duty is needed; b) that duty must be breached by the defendant's manufacture or sale of a defective product; c) the plaintiff must suffer an injury; and d) the defect must be the cause of the plaintiff's injury.
As to duty, damages, and causation, the same arguments made with respect to negligence apply here as well. And for those
The additional problem with the claim of strict products liability is that the plaintiffs must establish the existence of a defect. The majority notes that the New York Court of Appeals has explained that "a defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer." Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 426 N.Y.S.2d 717, 720, 403 N.E.2d 440, 443 (1980). Since the Black Talons performed in precisely the manner contemplated by Colin Ferguson, the majority concludes that under New York's "consumer contemplation" test, the Black Talon is not a defective product.
There is no doubt that, in order for strict products liability to apply, there must be a defect, i.e. "something wrong with the product, and if nothing is wrong there will be no liability." DeRosa v. Remington Arms Co., 509 F.Supp. 762, 769 (E.D.N.Y.1981) (citation and internal quotation marks omitted). But a large number of jurisdictions have held that there is something wrong with any product that is unreasonably dangerous, "even though it comports in all respects to its intended [and obvious] design." Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020, 1025 (1978); see also Turner v. General Motors Corp., 584 S.W.2d 844, 850 (Tex.1979). In other words, these jurisdictions employ a risk/benefit calculus to establish a design defect. "Under this approach, a product is defective as designed if ... the magnitude of the danger outweighs the utility of the product," that is, if "the harmful consequences in fact from intended and reasonably foreseeable uses resulting from the way the product was designed and marketed up to the time of plaintiff's injury outweigh the benefits in terms of wants, desires, and human needs served by the product." PROSSER & KEETON, supra, § 99 at 699.
Historically, in determining whether a product is defectively designed, some courts have applied only the "risk/benefit test" while others have used only the "consumer contemplation test" alluded to by the majority. See id., § 99 at 698-700. But many courts have allowed a plaintiff to establish a defect, and hence liability, if the defendant's product fails either of these tests. See, e.g., Turner, 584 S.W.2d at 850; Barker v. Lull Eng'g Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 236, 573 P.2d 443, 454 (1978).
In Robinson, the case upon which the majority relies, the New York Court of Appeals appeared to require that the plaintiff meet both tests:
Robinson, 426 N.Y.S.2d at 720, 403 N.E.2d at 443.
This dual requirement would be highly unusual. And more recently, the Court of Appeals, after quoting this passage from Robinson, went on to say that
Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 402, 450 N.E.2d 204, 208 (1983). Significantly, this latter statement of what constitutes a prima facie case makes no mention at all of consumer expectations as a separate requirement additional to that imposed by the risk/benefit test.
Moreover, in Denny v. Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d 250, 254-58, 662 N.E.2d 730, 734-38 (1995), the Court of Appeals explained that, while the risk/benefit test is an essential element of a cause of action for design defect, the consumer contemplation test sounds more in commercial law than in torts, and is therefore an element of a claim of breach of an implied warranty. As a result, it is anything but clear whether, read in light of more recent developments in the jurisprudence of the New York Court of Appeals, Robinson in fact stands for the proposition that a plaintiff may not establish that a product was defectively designed for the purposes of attaching strict liability without proving that the product was in a condition not reasonably contemplated by the consumer.
Indeed, one recent commentator, after an extensive fifty-state survey, did not include New York on his list of the twenty-five "[s]tates which use consumer expectations as part of any test for strict liability design defects." John F. Vargo, The Emperor's New Clothes, 26 U. MEM. L. REV. 493, 951 index 2 (1996). Instead, he noted that, while "the Robinson court mixed the consumer expectation test with a risk-utility test," id. at 822, that court may not have intended that result, see id. at 823, and, after Voss and Denny, "New York law ... appears to relegate the consumer expectation test to the separate legal theory of warranty," id. at 837.
Significantly, the Restatement of Torts, upon which the Court of Appeals relied in Robinson, now takes the position that the existence of a design defect should be determined solely by the risk/benefit test. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2(b) & cmts. c, f (Tentative Draft No. 2, 1995) [hereinafter, RESTATEMENT 3RD]. According to the most recent Restatement, the consumer contemplation test no longer applies.
Since it is more than possible that the New York Court of Appeals would apply the risk/benefit test to determine whether the Black Talon is a defective product, and since, as discussed above, it cannot be said as a matter of law (especially by a federal court) that the benefits of the Black Talon outweigh
Nonetheless, the fact that a product fails the risk/utility test may not be sufficient to give rise to strict liability. This is so because, as the majority notes, New York law has appeared to require that the plaintiff also show a reasonable alternative design before she will be permitted to recover in strict liability for a defectively designed product. See Voss, 463 N.Y.S.2d at 402, 450 N.E.2d at 208. But see Vargo, supra, at 832-37 (suggesting that, despite Voss, a showing of a reasonable alternative design is no longer required in New York after Denny); Jerry J. Phillips, The Unreasonably Unsafe Product and Strict Liability, 72 CHI-KENT L. REV. 129, 159 (1996) (explaining that the Court of Appeals in Denny "noted that the strict tort claim was tried on a risk-utility standard, apparently without reasonable alternative design being a necessary factor"). Moreover, it has been noted (in a controversial comment in the latest tentative draft of the third Restatement of Torts)
RESTATEMENT 3RD, supra, § 2 cmt. c.
In the instant case, however, a possible alternative design does exist. It consists of the elimination of the extra-destructive "talons." The proposed Restatement contains a remarkably relevant discussion:
Id., § 2 cmt. d.
It is worth noting that courts and commentators have been wrestling with the questions of what is a relevant safer alternative design, and whether entire categories of products can be deemed defective in the absence of an
I therefore believe that the question of whether the defendant can be held strictly liable for the alleged defective design of the Black Talon, like the question of duty, is "a complex question of New York common law for which no [controlling] New York authority can be found." Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 51 (2d Cir.1992). And that question, again like the question of duty, will turn in substantial part on considerations of public policy. See Azzarello, 391 A.2d at 1026 (noting that the question of whether "the utility of a product outweigh[s] the unavoidable danger it may pose" is "depend[ent] upon social policy"). Accordingly, I would certify both questions.
I do not know whether the New York Court of Appeals would allow a cause of action for negligence or strict liability to proceed in this case. Nor do I know whether that Court should allow such liability.
It is also noted that appellants argued in the district court that manufacturing the ammunition was an ultrahazardous activity. This claim is not pursued on appeal.
Page, supra, at 97 (footnotes omitted). The decision not to limit the distribution of a dangerous product can constitute negligent marketing. See id. at 97 n. 40. Another commentator has articulated three potential negligent marketing claims: 1) a claim that the manufacturer acted unreasonably in marketing a product "that presents an unusually high risk of harm and negligible utility for legitimate purposes"; 2) a claim that the manufacturer implemented "a marketing strategy that deliberately, recklessly, or negligently target[ed] criminal consumers"; and 3) a claim that the manufacturer failed "to take reasonable steps in the marketing process to minimize the risk that its products [would] be purchased by persons likely to misuse them." McClurg, supra, at 799.
Traditionally, products liability actions have been allowed to proceed on a number of grounds, including negligence and strict liability. See, e.g., Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398, 401, 450 N.E.2d 204, 207 (1983) ("In New York, a plaintiff injured by an allegedly defective product may seek recovery against the manufacturer on the basis of any one or more of four theories of liability. Depending on the factual context in which the claim arises, the injured plaintiff ... may state a cause of action in contract, express or implied, on the ground of negligence, or ... on the theory of strict products liability.") (citation and internal quotation marks omitted); id. ("As the law of strict products liability has developed in New York, a plaintiff may assert that the product is defective because of a mistake in the manufacturing process or because of an improper design or because the manufacturer failed to provide adequate warnings regarding the use of the product.") (citations omitted).
It is true that, in cases such as this one, the question of defect in strict products liability may closely resemble the question of breach in negligence, as the existence of a defect, like the existence of negligence, may depend (at least in part) on whether the benefit of the product outweighs the risk of harm. See infra Part II.B; see also Denny v. Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d 250, 255, 662 N.E.2d 730, 735 (1995) (noting that "the inquiry in design defect cases [is] close to that used in traditional negligence cases"). But a claim of negligent marketing differs from a claim of design defect in at least one important way:
Voss, 463 N.Y.S.2d at 401-02, 450 N.E.2d at 207-08. Conversely,
McClurg, supra, at 801.
It has been noted that "[t]he strict liability rule for products liability cases ... does not eliminate the requirement that, even where there is a defect in the product, there must be some duty owed to the plaintiff." Walton v. Chrysler Motor Corp., 229 So.2d 568, 573 (Miss. 1970), overruled on other grounds by Toliver v. General Motors Corp., 482 So.2d 213 (Miss.1985); see also Allabach v. Santa Clara County Fair Ass'n, Inc., 46 Cal.App.4th 1007, 54 Cal.Rptr.2d 330, 333 n. 1 (1996). Many courts have indicated that the duty requirement is identical in strict liability and negligence claims. See, e.g., Wagatasuma v. Patch, 10 Haw.App. 547, 879 P.2d 572, 585 (1994); Briggs v. Hartford Ins. Co., 532 So.2d 1154, 1156 (La.1988). While the Third Circuit has rejected a district court's statement that "courts have consistently applied the identical duty requirement to strict liability and negligence claims," Griggs v. BIC Corp., 786 F.Supp. 1203, 1209 (M.D.Pa.), rev'd, 981 F.2d 1429, 1434-35 (3d Cir.1992), that case dealt with situations in which, while there was no duty in strict liability, there might still be a duty in negligence. I have uncovered no authority for the converse proposition: that a duty can exist in strict liability, but not in negligence. Such a position would be unlikely, to say the least.
Instead, in addition to Codling and Bolm, numerous cases suggest that, under New York law, the existence of a duty in strict liability establishes the existence of a duty in negligence as well. See, e.g., Colonno v. Executive I Assocs., 228 A.D.2d 859, 644 N.Y.S.2d 105, 107 (1996) (holding that, in a products liability action premised on negligence, "the principle emanating from strict products liability law now holds contractors to a general standard of reasonable care for the protection of third persons who may be foreseeably endangered by the contractor's negligence") (citations and internal quotation marks omitted). While the New York Court of Appeals has not spoken directly to this issue, there is absolutely no indication that New York law contemplates that there can be no duty in negligence despite the presence of a duty in strict liability. For a federal court to presume so in a diversity case without any statement to that effect from the New York Court of Appeals would be an extraordinary act.
In New York, the Court of Appeals initially indicated that it would allow liability in this situation. See Maloney v. Kaplan, 233 N.Y. 426, 135 N.E. 838, 839 (1922) (Pound, J.) ("The driver of a spirited horse, who leaves it unhitched in the street, may be liable for accidents immediately brought about by one who frightens the animal or touches it with the whip, so that it runs away; so the driver of an automobile who leaves it in the street without properly securing it may be liable for accidents immediately brought about by his negligence, although others may start the car."); see also Illidge v. Goodwin, 5 Carr. & Payne's Rep. 190 (C.P.1831) ("If a man chooses to leave a cart standing in the street, he must take the risk of any mischief that may be done."). Subsequently, however, the Court of Appeals refused to allow recovery, see Walter v. Bond, 292 N.Y. 574, 54 N.E.2d 691 (1944), aff'g 267 A.D. 779, 45 N.Y.S.2d 378 (1943), concluding that the car owner's negligence could not be a proximate cause of the plaintiff's injury, see Wilson v. Harrington, 295 N.Y. 667, 65 N.E.2d 101 (1946), aff'g 269 A.D. 891, 56 N.Y.S.2d 157 (1945); accord Lotito v. Kyriacus, 272 A.D. 635, 74 N.Y.S.2d 599, 600-01 (1947).
Not long after, the New York legislature enacted what is now N.Y. VEH. & TRAF. L. § 1210(a), which provides that "[n]o person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, [and] removing the key from the vehicle." That "statute changed the prior case law and it is now clear that the intervention of an unauthorized person no longer operates to break the chain of causation." Guaspari v. Gorsky, 36 A.D.2d 225, 319 N.Y.S.2d 708, 711 (1971).
Because they found no proximate cause, the courts of New York never reached the question of duty. By enacting § 1210(a), the state legislature (reflecting the will of the people) imposed liability before the New York Court of Appeals had occasion to reconsider its decision and perhaps join the "substantial and growing number of jurisdictions" that have found not only proximate cause, but also a duty, in cases of this sort. As such, we have no indication of what the Court of Appeals would say about duty in this situation in the absence of a statute. It is worth noting, however, that the Court of Appeals' earliest and only pronouncement on the subject, Maloney v. Kaplan, held, at least by implication, that a duty did exist.
In fact, one of the plaintiffs in this action, Carolyn McCarthy, was elected to Congress largely on a platform of opposition to assault weapons and extra-destructive ammunition. See NBC Nightly News (NBC television broadcast, Nov. 6, 1996) ("Carolyn McCarthy has been elected to Congress. The widow of one of the victims of the 1993 massacre on New York's Long Island Railroad turned politician after her local congressman voted against a ban on assault weapons. Last night she defeated him.").
Id. at 832.
It seems to me particularly ironic to say that New York courts would limit the applicability of ultrahazardous activity liability solely to cases involving land, given that, in the seminal case of ultrahazardous activity liability in the United States — Sullivan v. Dunham, 161 N.Y. 290, 55 N.E. 923, 924 (1900) — the Court of Appeals declared that "the safety of the person is more sacred than the safety of property," and held that prior cases that had allowed liability only for trespass upon land, and not trespass upon persons, did not prevent the imposition of liability on a defendant whose ultrahazardous activity had injured a passerby.
In fact, New York law has at times allowed ultrahazardous liability for activities not involving the defendant's use of land. See, e.g., Margosian v. U.S. Airlines, Inc., 127 F.Supp. 464, 467 (E.D.N.Y.1955) (finding that an airplane pilot whose plane crashed on the plaintiff's property was liable under New York law despite the lack of negligence because aviation was, at the time, an ultrahazardous activity) (citing Rochester Gas & Elec. Corp. v. Dunlop, 148 Misc. 849, 266 N.Y.S. 469 (Monroe County Ct.1933), and RESTATEMENT (FIRST) TORTS § 520 cmt. b (1939) (classifying aviation as an ultrahazardous activity)). Subsequently, New York courts have refused to allow ultrahazardous activity liability for the use of airplanes, concluding "in light of the technical progress achieved in the design, construction, operation and maintenance of aircraft generally, that flying should no longer be deemed to be an ultrahazardous activity." Wood v. United Air Lines, 32 Misc.2d 955, 223 N.Y.S.2d 692, 697 (N.Y.Sup.Ct.1961), aff'd, 16 A.D.2d 659, 226 N.Y.S.2d 1022 (1962); accord Crist v. Civil Air Patrol, 53 Misc.2d 289, 278 N.Y.S.2d 430, 433-34 (N.Y.Sup.Ct.1967). But these cases do not undermine the principle that ultrahazardous activity liability may be imposed on activities other than the use of land. See, e.g., Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181, 1184-87 (1972) (en banc) (transporting gasoline by truck constitutes an ultrahazardous activity). Indeed, one court has found that the manufacturing and marketing of assault weapons to the general public constitutes an ultrahazardous activity. See In re 101 California Street, No. 959316 (Cal.Super.Ct. 2d Dep't Apr. 10, 1995) (cited in Hamilton v. Accu-Tek, 935 F.Supp. 1307, 1324 (E.D.N.Y.1996)). But see Delahanty v. Hinckley, 564 A.2d 758, 760-61 (D.C.1989) (collecting cases refusing to allow ultrahazardous activity liability for the manufacture and sale of firearms). See generally McClurg, supra, at 788-91 (collecting cases and commentary).
Nonetheless, the plaintiffs chose not to pursue this argument on appeal, and I will go no further in discussing its possible viability or non-viability.