Product Liability Update (Continued from page 7)
would be utilized,53 it stuck to Kelley’s gun
holding because the Court of Appeals had neither expressly rejected Kelley nor ap- plied the risk-utility test to a firearm.54 It distinguished other decisions in which Maryland’s appellate courts had applied the risk-utility test on the ground that “something other than the normal func- tion of the product [was] involved.”55
The
Court acknowledged that the question whether a product has malfunctioned was dependent, to a large degree, on “how narrowly or broadly the normal function
is defined.”56
Kelley, in its view, had al-
ready defined the normal function of a handgun to “propel bullets with deadly force.” Considering itself bound by prin- ciples of stare decisis to Kelley “[u]nless and until the Court of Appeals revisits the is- sue,”57
it rejected Halliday’s proffered
definition of the “normal functions of a gun as ‘law enforcement, sport, and home and business protection[.]’”58 In an eloquent dissent, Judge Andrew
53
138 Md. App. at 164, 770 A.2d at 1089 (cit- ing Valk Mfg. Co. v. Rangaswamy, 74 Md. App. 304, 317, 537 A.2d 622 (1988), rev’d on other grounds sub nom. Montgomery County v. Valk Mfg. Co., 317 Md. 185, 562 A.2d 1246 (1986)). In Valk, the Court applied the risk-utility test to a product where the design flaw was not the absence of a safety feature but nevertheless had an “
indirect...influence on
safety...by...mak[ing] it less likely that the safety feature [would] be utilized.” Id.
54138 Md. App. at 164, 770 A.2d at 1089. 55
138 Md. App. at 166, 770 A.2d at 1089 (dis- cussing C & K Lord, Inc. v. Carter, 74 Md. App. 68, 536 A.2d 699, 536 A.2d 699 (1988) and cases cited therein)).
L. Sonner, joined by Judge Ellen L. Hol- lander, objected to the creation of a “gun exception” to the application of the risk- utility test, found Kelley inapplicable to a design defect claim based on the absence of a safety device, and criticized the Court for “unjustifiably remov[ing] from the trier of fact” the balancing of the risk-util- ity test and the question whether product misuse constituted an intervening and superseding cause. The dissent urged that the Court had overlooked the widespread legal criticism of the “consumer expecta- tions” test evidenced by the application of the risk-utility test to design defect claims by twenty-four states, the rejection by the Restatement (Third) of Torts of the “consumer expectations” test, and the evo- lution of Maryland’s product liability law in the sixteen years since Kelley was de-
In C & K
Lord, the Court applied the risk-utility test to design defect claim by an employee of a chicken rendering plant injured when his arm was caught in a conveyor belt used to transport feathers to cookers. 74 Md. App. at 85, 536 A.2d 699. In C & K Lord, the Court stressed that the “malfunction” dis- cussion in Kelley was limited to instrumen- talities and did not apply where, as in the case before it, “the design defect is the fail- ure to include a safety device, such as the failure to include the same on a conveyor.” Id. at 86, 536 A.2d 699.
56138 Md. App. at 166, 770 A.2d at 1090. 57138 Md. App. at 169, 770 A.2d at 1092.
58
138 Md. App. at 166, 168, 770 A.2d at 1090. The Court also stated that Section 402A of the Restatement (Second) of Torts did not apply to handguns and a few other unnamed manufactured products that were “dangerous” by their “very nature.” 138 Md. App. at 168, 770 A.2d at 1091 (“This at- tribute is shared by only a few manufactured products, none of which is included in the list of products to which Restatement §402A was intended to apply.”).
cided.59
The dissent concluded that it
could not “subscribe to a strict products liability formula that assigns the least li- ability to the manufacturers of the most dangerous products,” explaining: The majority’s opinion freezes the technological advancements of handgun safety devices at 1985 levels [the date of the Kelley decision]. Handgun users and their children should not be deprived of the same standards of quality and safety afforded to users of every other product, because of this Court’s reluctance to hold [Sturm] liable for the P89 pistol it placed in the stream of commerce.60 The Court of Appeals in Halliday now has the opportunity to revisit Kelley in light of modern trends in product liabil- ity law in Maryland and elsewhere. The dissent has furnished it with ample am- munition to formally adopt the risk-utility test for design defect claims premised on the absence of a readily available safety device and to determine the appropriate interplay between the defense of misuse in a product liability claim and statutory prohibitions against imputing a parent’s negligence to a child except in the extraor- dinary situation when such negligence constitutes an independent and supersed- ing cause. Kelley involved the criminal use of a handgun, not a claim of design defect due to the absence of readily avail- able safety device as in Halliday. Kelley can and should logically be restricted to its particular factual context. It would be ironic, indeed, if the decision in which the Court of Appeals courageously at- tempted to craft a remedy (albeit short-lived) for the criminal victims of gun violence, now served as the means to eliminate a remedy for civil litigants.
59 60
138 Md. App. at 175-177, 770 A.2d at 1095-1096.
138 Md. App. at 177, 770 A.2d at 1096 (emphasis added).
CORRECTION
The Legislative Wrap-up in the Summer 2001 issue contains a misprint where it states that Peter Angelos "ordered" Senator Perry Sfikas to abandon the comparative negligence bill. The article should have read "urged," which was the word used in the author's submitted draft. The Trial Reporter regrets the error.
8 Trial Reporter Fall 2001
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