Product Liability Update (Continued from page 5)


requirements” of Rule 2-31129 was not


deemed to be a proper basis for granting summary judgment.30


It went on to hold


that most of the studies referenced by Halliday’s expert were lacking in proba- tive value or “not sufficiently probative” to be admissible to the issues as framed. The Court noted, for example, that the government statistics related to uninten- tional gun-related deaths contained no information on how the deaths occurred, where the guns were found, whether the guns were equipped with safety devices or in the possession of children when the shootings occurred.31


It found “patently


lacking in probative value” an unnamed study concluding that “boys will play with a gun they find in a seemingly safe envi- ronment” as if it were a toy.32


It further


rejected as “not sufficiently probative” two studies authored and relied upon by Halliday’s expert which concerned some 88 unintended gunshot deaths of children that involved handguns that were stored loaded and another study which con- cerned 131 such deaths, none of which involved guns manufactured by Sturm. These were deemed not relevant because Sturm had “not denied the foreseeability of young children playing with and being injured by handguns, or even of handguns being improperly stored.”33


Rather, it


urged, Sturm’s misuse argument focused on the warnings it gave and the unforeseeability of a handgun owner im- properly storing its handguns despite those warnings.34


The Court also found insuf-


ficiently probative additional studies regarding the lack of efficacy of safety in- struction with respect to gun handling procedures as they related to keeping guns loaded and of the ineffectiveness of reli- ance on training strategies.35 The Court of Special Appeals con- cluded that the trial court had correctly assumed, at the summary judgment stage, the admissibility of opinions offered by


29


Rule 2-311 (d) provides that, “A motion or a response to a motion that is based on facts not contained in the record or papers on file in the proceeding shall be supported by affi- davit and accompanied by any papers on which it is based.”


30138 Md. App. at 154, 770 A.2d at 1083. 31


138 Md. App. at 155-156, 770 A.2d at 1083-1084.


32138 Md. App. at 156, 770 A.2d at 1084. 33138 Md. App. at 156-157, 707 A.2d at 1084. 34138 Md. App. at 156, 707 A.2d at 1084. 35138 Md. App. at 156-157, 770 A.2d at 1084.


6 42


Plaintiff ’s gun policy expert that: (1) gun manufacturers have been aware for more than a century of the risk that handguns pose to children; (2) designing a product with safety features is more effective than safety instructions in preventing injuries to children; (3) child proof design changes were feasible; and (4) the instructions and lockable carrying case provided with Sturm’s handgun were inadequate to pro- tect children from the risk of unintended gun death. The Court acknowledged that these submissions were not disputed by Sturm and had a sufficient factual basis.36 The Court of Special Appeals held


Halliday’s claim barred even if the failure to include a child safety device on the handgun were considered a design defect, because Garris misused “what is undeni- ably a dangerous instrumentality.”37 While acknowledging that Sturm did not deny that it was foreseeable that young children would play with and be injured by handguns or that handguns would be improperly stored,38


it nevertheless found


that Garris’ placement of the gun under the mattress, “evidently within the reach of his son,”39


unmistakable and easy-to-follow’”40


contravened Sturm’s “‘clear, in-


structions that firearms should be stored securely and unloaded away from children and should be securely locked in racks or cabinets. It explained further: The presence of the warnings trans- forms the foreseeability inquiry; the proper question is, could [Sturm] have reasonably foreseen that Garris would not use the lockbox provided or that he would commit acts in violation of the law, or ignore clear warnings and instructions provided when he purchased the firearm? In this case, we conclude as a matter of law that this behavior was not reasonably foreseeable.41 The Court disputed the position taken by dissenting members42


that it was im- 36


138 Md. App. at 158, 770 A.2d at 1084- 1085.


37138 Md. App. at 170, 770 A.2d at 1092. 38138 Md. App. at 156, 770 A.2d at 1084. 39138 Md. App. at 173, 770 A.2d at 1094.


40


138 Md. App. at 173, 770 A.2d at 1094 (quoting Hood v. Ryobi America Corp., 181 F.3d 608, 612 (4th Cir. 1999)).


41


138 Md. App. at 174, 770 A.2d at 1095. While Halliday claimed that studies dem- onstrated that a significant portion of gun owners do not lock up their guns even where children are in the household, those studies were held not to be properly before the court on summary judgment. Id.


Judge Andrew L. Sonner, joined by Judge Ellen L. Hollander, dissented. 138 Md. App. at 175-177, 770 A.2d at 1095-1096.


Trial Reporter


properly removing from the domain of the trier of fact the question whether storage of a handgun under a mattress was rea- sonably foreseeable and, therefore, not a misuse of the product.43


“Even were we


to determine whether improper storage of the handgun was reasonably foresee- able as a factual matter,”the Court suggested, Strum would be entitled to summary judgment44


because “the risk- 43 44


138 Md. App. at 159-160, 770 A. 2d at 1086.


Halliday also asserted that Garris’s actions could not be imputed to bar recovery for the child under Section 10-910 of the Courts and Judicial Proceedings Code (“Courts Ar- ticle”) which specifies that, “In an action on behalf of an infant to recover for death, per- sonal injury, or property damage, the negli- gence of the parent or custodian of the in- fant may not be imputed to the infant.” Md. Cts. & Jud. Proc., §10-910 (Repl. Vol. 1997). The provision bars imputation of a parent’s negligence unless that parent’s neg- ligence is an independent and superseding cause of the child’s injuries. 138 Md. App. at 150 n.4, 770 A.2d at 1080 n.4 (relying on Caroline v. Reicher, 269 Md. 125, 130, 304 A.2d 831 (1973)). While the Court stated it was declining to reach the argument because Garris’s actions constituted misuse as a matter of law, it added that misuse is “necessarily a superseding cause of the in- jury.” Id. In its discussion of Garris’s mis- use, moreover, it noted, “Although negli- gence of the parent may not be imputed to the child, it is relevant on the question whether the elder Garris misused what is undeniably a dangerous instrumentality.” 138 Md. App. at 170, 770 A.2d at 1092. In Caroline, the Court of Appeals indicated that a parent’s actions would constitute a superseding cause only in “extraordinary” situations. It also noted that the question whether the intervening act of a third per- son is a superseding cause serving to dis- charge the original actor from liability is or- dinarily a question of fact. In that action, the Court held that it was error for the trial court to have submitted to the jury the ques- tion of the effect of any negligence by the mother of a child who sued her landlord for injuries the child sustained from the inges- tion of lead paint. It relied upon decisions in which the Court had refused to find a parent’s alleged negligence a superseding cause. 269 Md. at 130, 304 A.2d at 935 (relying on Farley v. Yerman, 231 Md. 444, 190 A.2d 773 (1963), and Katz v. Holsinger, 264 Md. 307, 286 A.2d 115 (1972)). In Farley, the Court rejected a landlord’s argu- ment that he not responsible for negligent failure to provide a screen for a gas log which projected into the living room from a shal- low fireplace causing injuries to a minor be- cause the parents had not made physical ar- rangements to prevent access to the flames


Fall 2001


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