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herently dangerous product safe.”10


It


nevertheless determined that the parents’ misuse of the handgun rendered summary judgment appropriate.


The trial court


stressed that the child’s father knew of the dangers of improper storage and that it was a criminal offense11


to place a gun in


a location where a child may find it.12 The trial court further determined that the risk-utility test was inapplicable to the plaintiffs’ product liability claim because that test applied only “when something goes wrong with a product.”13


guished decisions involving what it termed foreseeable “sloppy uses”14


It distin- of a


product from misuse constituting a crimi- nal offense.15 In the Court of Special Appeals, Halliday argued that the trial court had improperly applied the “consumer expec- tations” test rather than the risk-utility test to a defectively designed product claim based on the absence of an available safety device, relying on Klein v. Sears Roebuck & Co..16


(Third), Products Liability.17


the Court of Appeals’ statement in Kelley v. R.G. Industries,19


a product liability ac-


tion involving a handgun, that the risk-utility test did not apply in the ab- sence of a product malfunction, was obiter dictum.20


Halliday posited that because


and the Restatement of Torts In Klein, a


products action that did not involve a fire- arm, the Court of Special Appeals had iterated that “the absence of a safety de- vice may clearly be a design defect, even in a product that does not ‘malfunc- tion.’”18


Halliday urged that the trial


court erred in not applying the risk-util- ity test because the handgun behaved “the way one would predict the gun would behave.” Halliday further contended that


10138 Md. App. at 143, 770 A.2d at 1076. 11


Sturm was aware that its warnings regard- ing storage of the handgun would not be followed by a significant portion of gun owners, Garris’s storage of the gun did not constitute misuse sufficient to defeat Halliday’s design defect claim as a matter of law.21 Sturm contended that the firearm was neither defective nor unreasonably dan- gerous as a matter of law because it operated in the expected manner, i.e., met the “consumer expectations” test. It also contended that the pistol was used in a manner contrary to clearly worded in- structions and warnings and, hence, was not a reasonably foreseeable misuse. Sturm had warned gun purchasers that firearms should always be stored securely and unloaded away from children, that firearms should be kept in locked contain- ers when not in use, and that ammunition should be stored separate from firearms.22 Garris had also received a “Youth Hand- gun Safety Act Notice” advising that “Safety, storing and securing firearms away from children will help prevent the un- lawful possession of handguns by juveniles, stop accidents and save lives.”23 It was undisputed that a lockbox24


and


padlock had accompanied delivery of the gun to Garris.25


It was also undisputed


that Garris had stored the pistol under his mattress and separately stored the ammu- nition magazine with bullets on a book shelf, and that the child had found the gun and loaded the magazine, having seen semi-automatic pistols loaded and fired on television.26 The Court of Special Appeals acknowl- edged that there were disputes of fact as to whether Garris had been offered the chance to purchase a trigger lock at the time he obtained the handgun as an ad- ditional safety precaution and whether a salesperson explained the need for such a lock on the date of purchase or reviewed the owner’s manual with him.27


However,


it did not consider the disputes material to the issues, as it framed them: (1) whether the handgun sold to Garris was in a defective and unreasonably danger- ous condition; and (2) whether Garris’ improper storage of the gun constituted an unforeseeable misuse. 28 The Court of Special Appeals preliminar- ily addressed the admissibility of the affidavit submitted by Halliday’s gun policy expert. The expert’s affidavit ref- erenced numerous studies and an editorial which were not appended to the affidavit or to Halliday’s opposition to Sturm’s motion for summary judgment. Because the affidavit contained citations to and a description of the studies, Halliday’s fail- ure to comply with the “technical


(Continued on page 6)


Md. Ann. Code art. 27, Section 36K, per- taining to access to firearms by minors. That provision, however, expressly provides that violation of the provision shall not be con- sidered evidence of negligence, contributory negligence, or otherwise limit the liability of a partner or insurer or otherwise and his damages.


12138 Md. App. at 144-145, 770 A.2d at 1077. 13138 Md. App. at 144, 770 A.2d at 1076-77. 14138 Md. App. at 144, 770 A.2d at 1077. 15138 Md. App. at 144-145, 770 A.2d at 1077.


16 17


92 Md. App. 477, 608 A.2d 1276, cert. de- nied, 328 Md. 447, 614 A.2d 973 (1992).


138 Md. App. at 147-148, 770 A.2d at 1079. Section 2 of the Restatement (Third) of Torts: Product Liability, states that a prod- uct is “defective in design when the foresee- able risks of harm posed by the product could have been reduced or avoided by the adop- tion of a reasonable alternative design by the seller...and the omission of the alternative design renders the product not reasonably safe.”


18


138 Md. App. at 148, 770 A.2d at 1079 (quoting Klein, supra, 92 Md. App. at 486, 608 A.2d 1276)).


Fall 2001 Trial Reporter 5


19304 Md. 124, 138, 497 A.2d 1143 (1985). 20138 Md. App. at 148, 770 A.2d at 1079. 21138 Md. App. at 150, 770 A.2d at 1080. 22138 Md. App. at 148-149, 770 A.2d at 1079. 23138 Md. App. at 149, 770 A.2d at 1080.


24


Id. Sturm offered no evidence that its box had any effect on preventing children’s fore- seeable injuries or deaths.


25138 Md. App. at 149, 770 A.2d at 1085. 26


27


138 Md. App. at 149-150, 770 A.2d at 1080-1081.


138 Md. App. at 149 n.3, 158, 770 A.2d at 1080, n.3, 1085.


28138 Md. App. at 158, 770 A.2d at 1085.


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