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utility test is inapplicable to handguns which do not malfunction.”45 In holding the risk-utility test inappli- cable to Halliday’s design defect claim, the Court relied upon the “ultimate holding”


or to otherwise keep their children away from the area. 231 Md. at 448–450, 190 A.2d at 775. The Court explained why the parents’ alleged omissions were not so extraordinary to be superseding: We think the rule urged upon us is not applicable here. The landlord not only knew of the danger in the abstract but in the con- text of the almost continual presence of the very young children in close proximity to the danger. He cannot disclaim realization that the parents might not be able to do more than they did, or that they would not do more, or that their acting as they did was not to be deemed so unusual or extraordi- nary as to be unreasonable or, finally, that the foreseeable acts or omissions would be but normal responses to a situation created by his own conduct. 231 Md. at 449, 190 A.2d at 775.


In


Katz, the Court of Appeals similarly rejected a landlord’s argument that the parents’ fail- ure to supervise a child who fell off a porch that needed repair was not an independent, intervening cause. The Court commented: In the present case, the landlords not only


knew that the balusters were missing and of the theoretical danger involved in this de- fective condition, but Mr. Katz...was specifi- cally warned of the actual danger to the two year old infant Zella prior to the accident. He must necessarily have realized that a par- ent cannot watch an active infant every mo- ment and that in an instant she might leave her mother, go on the porch contrary to the mother’s instructions, and fall through the open hole in the porch railing. The acts or omissions of the mother in the instant case were not “so unusual or extraordinary as to be unreasonable[.]” 264 Md. at 315, 286 A.2d at 119. In


Halliday, the Court, in finding misuse as a matter of law, implicitly ruled that Garris’s actions were, in fact, an independent and su- perseding cause. It left no room for the trier of fact to determine that Garris’s storage of the gun was a foreseeable misuse that did not rise to a superseding cause because efforts were made by Garris to prevent the child’s access to the handgun, improper storage was conceded to be foreseeable, and because par- ents, as stated in Katz, “necessarily...cannot watch an active infant every moment[.]” Under Maryland law, contributory negli- gence is not a is not a defense to a strict li- ability claim. Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 598, 495 A.2d 348 (1985). By terming as “misuse” a parent’s negligence in leaving a gun within the reach of a child, the contributory negligence of a parent is effectively imputed to the child.


45


138 Md. App. at 160, 770 A.2d at 1086, 1087-1092.


Fall 2001 Trial Reporter


46304 Md. 124, 497 A.2d 1143 (1985). 47304 Md. at 138, 497 A.2d 1143.


48


Section 402A requires proof of four ele- ments: (1) that the product was in a defec- tive condition at the time it left the posses- sion of the seller; (2) that it was unreason- ably dangerous to the user or consumer; (3) that the defect was a cause of the injuries; and (4) that the product was expected to and did reach the consumer without substantial change in its condition. Phipps v. General Motors Corp., 278 Md. 337, 344, 363 A.2d 955 (1976).


49


138 Md. App. at 161, 770 A. 2d at 1087 (citing Kelley, 304 Md. at 138, 497 A.2d 1143)).


50


This holding was statutorily abrogated by the General Assembly. Md. Ann. Code art. 27, §36-I(h).


51 52


138 Md. App. at 162, 770 A.2d at 1987 (cit- ing Kelley, 304 Md. at 156, 497 A.2d 1143).


138 Md. App. at 163-165, 770 A.2d at 1088-1089 (citing Ziegler v. Kawasaki Heavy Industries, 74 Md. App. 613, 622-623, 539 A.2d 701 (1988)(absence of safety device may “clearly be a design defect, even in a product which does not ‘malfunction’”); Klein, supra, 92 Md. App. at 486, 608 A.2d 1276; Nicholson v. Yamaha Motor Co., 80 Md. App. 695, 717-719, 566 A.2d 135 (1989)).


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in Kelley v. R. G. Industries,46


that “‘the


risk-utility test cannot be extended to impose liability on the maker or marketer of a handgun which has not malfunc- tioned.’”47


It rejected Halliday’s


contention that the statement was dictum. In Kelley, it urged, the Court had expressly addressed the question whether Section 402A48


of the Restatement (Second) of


Torts operated to hold the seller of a “Sat- urday Night Special” liable to persons injured as a result of the criminal use of its product. Applying the consumer ex- pectations test, it answered the question in the negative: the gun was not defec- tive because it operated normally.


It nevertheless


carved out (briefly)50


a “separate limited


area of strict liability” for manufacturers and marketers of Saturday Night Specials in recognition of the fact that they knew or ought to know the “chief use of the product is for criminal activity.”51


In


Kelley, of course, there was no claim, as in Halliday, that the gun was defective due to the absence of a protective device. In Halliday, the Court did not address the potential significance of that distinction. While recognizing that it had fre- quently applied the risk-utility test since Kelley to design defect claims based on the absence of a safety device52


or claims in- In


Kelley, the Court had refused to apply the risk-utility test, finding that test can only be used “when something goes wrong with the product.”49


volving design aspects rendering it less likely that the product’s safety features


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