Both firearms and explosives, including gasoline, dynamite, oil, and blasting material, are covered by product liability law. In addition, state and federal governments regulate the handling, storing, transportation, and the use of explosive substances.
All states require a person or a business to obtain a permit before using explosives in any manner. State and local laws may provide punishment to any person or business that uses, stores, sells, or transports explosives without a license.
The regulation of firearms is a complicated subject. Laws vary greatly from state to state. Federal law also regulates firearms and explosives. This article does not deal with such issues as the licensing or open or concealed carrying of firearms. Rather it deals only with the law of product liability as it applies to the manufacture and distribution of defective firearms and explosives.
Can a Manufacturer Be Liable for Defects?
A manufacturer can be liable for harm caused by a firearm if it is defective. A firearm can be defective in any of three ways:
- Warning defect: A firearm that is marketed with inadequate instructions or warnings as to foreseeable risks is defective;
- A manufacturing defect: A product manufactured with a flaw is defective; this is referred to as a “manufacturing defect”;
- A design defect: A product designed in such a way that it is foreseeable that injury could result, and if the risk of injury could have been reduced by an alternative design, then a product is said to have a design defect.
If a product is defective in the way it is marketed, manufactured, or designed, and a person who used the product as it is intended is injured as a result of that defect, then the manufacturer, distributor and/or seller of the product can be liable for the foreseeable harm caused by the defect.
When considering whether an alternative design could have reduced the risk of injury of a design defect, a court will sometimes weigh the following three factors:
- Whether the alternative design would have been very costly;
- Whether the proposed alternative would in fact have reduced the foreseeable risk of harm posed by the product, and
- Whether the failure to use the alternative design made the product unreasonably unsafe.
An example of a warning defect would be the absence of a warning about an unusual and unexpectedly dangerous quality of the weapon. For example, a gun with a firing mechanism that is significantly more sensitive than that on other similar guns should come with a warning about the unusual sensitivity of the firing mechanism. The highly sensitive firing mechanism might also be considered a design defect.
A gun safety that does not function properly could be seen as a design defect, or it might be a manufacturing defect, if the defect was the result of a fault in the manufacturing process.
The manufacturer of a firearm can also be liable for injuries caused by the product on the basis of a theory of negligence. The success of a claim for negligence would depend on the injured person showing the following elements:
- The manufacturer owed a duty of care to the injured person;
- The manufacturer failed to exercise reasonable care in producing the firearm;
- The negligence of the manufacturer was the proximate, or actual, cause of the person’s injury;
- The injured person suffered quantifiable damage as a result of their injury.
The nature of the duty of care owed by the manufacturer of firearms varies by state. In some states a firearm manufacturer owes a duty to exercise a high degree of care. In other states the duty is one of ordinary care, or the care ordinarily used when dealing with firearms.
In addition, there are a number of laws, federal, state, and local, which may impose a duty on the owner, seller, or distributor of firearms. For example, in some states the law may forbid sales of weapons to certain classes of people, such as felons, minors, and other people considered incompetent. If a manufacturer were to sell a firearm to a member of one of these groups who then used the firearm to injure a person, this may violate the duty of care and serve as the basis for a negligence case against the manufacturer.
The same general principles of law apply to the manufacturers and distributors of explosive material. In some states, the manufacturers of explosives are held to a higher standard of care than wholesalers and sellers of explosives. Manufacturers of explosives must always provide safety warnings and instructions for their products before they place the product into the stream of commerce.
Also, the users of explosives may be liable to a person injured during the use if it is considered an ultrahazardous activity. A person who engages in an ultrahazardous activity can be liable for injuries caused even if they exercised reasonable care or caution.
What Is Considered “Reasonable Care” for Explosive Manufacturers?
Reasonable care can vary greatly depending on the type of explosive being manufactured and the level of danger it presents. Some of the more common requirements for reasonable care include:
- Limiting the use of added ingredients in explosives that increase their dangerousness;
A reasonable inspection of an explosive to discover potential defects;
Reasonable testing of the explosive to ensure safe and proper usage;
Warning customers of potential dangers from use of the explosive (within reasonable limits);
Complying with all statutes and regulations regarding licensed explosives;
Providing general safety instructions regarding handling, storage and use of the product.
Many accidents involving explosives are accidents with fireworks. Consumers themselves are responsible for most of the injuries caused by fireworks. Some of the common mistakes that consumers make include such moves as:
- Improperly lighting the fireworks;
- Being too close to other people when lighting the fireworks;
- Lighting fireworks while holding them in one’s hand.
Even when used properly, fireworks are dangerous explosives, and they can cause severe injuries. However, a firework injury can be magnified by defects, i.e., manufacturing, design or warning defects. The law in some states also imposes a special duty of care in connection with fireworks and other explosives with regard to children.
Defects in fireworks can cause them to explode prematurely, before users have positioned themselves at a safe distance. Or, a defective fuse may ignite the explosives in the firework in a way the manufacturer did not intend, causing the firework to explode in an unexpected way. Finally, fireworks designed to rocket into the air, such as bottle rockets, can shoot off unpredictably, injuring bystanders or even hitting nearby vehicles and buildings.
Whatever the cause, firework injuries can be catastrophic. Reported injuries have included loss of eyesight, severe lacerations (cuts) caused by debris and damaged shell casings, and burns. It pays to be extremely cautious when using fireworks.
What If the Injured Person Is Not the Original Purchaser?
The law on the question of whether a person other than the original purchaser can recover for injury from a defective explosive varies from state to state. Some states allow only purchasers to be compensated for any injuries, while other states would allow injured persons who are not purchasers to recover damages. Other states provide specific laws that define who can recover for injuries from a defective firearm or explosive.
What Are the Defenses to Liability for Defective Firearms and Explosives?
A defendant who is named in an explosives case may use contributory negligence as a defense. Of course, the defendant would have to prove that the injured person contributed to their injury in some way. In some states if the injured person was contributorily negligent in any way, they are precluded from any recovery at all.
However, in most states, comparative negligence is used and the amount of recovery is reduced only by the amount that the injured person contributed to their own injury.
A defendant can also use the assumption of risk defense. Under the defense of assumption of risk, the defendant may argue that the injured person had knowledge of the risks and dangers involved, but chose to disregard the warnings given.
How Can a Lawyer Help Me?
If you were injured as a result of a defective firearm or explosive you should contact an experienced product liability lawyer for an analysis of your case. The law in this area is complex. A case could possibly involve several areas of both state and federal law.
Manufacturers may be located in foreign countries. An experienced lawyer may confront a number of challenges, both legal and technical, in prosecuting a product liability or negligence case involving explosives or firearms. It is not something that the average consumer is likely to handle on their own.
You might have been severely injured by a malfunctioning explosive or firearm. You are most likely to achieve the best possible result if you have an experienced personal injury lawyer representing your interests.