A phrase that intimidating torts professors use to strike struck fear in the hearts of many first year law law students.
Proximate cause describes the so-called “legal” cause connecting a negligent act and the damage suffered by a third party. Proximate cause requires an examination of foreeabilty. For example, everyone knows an adult handing loaded pistol to a toddler is negligent. Harm flowing from that act is easily assigned to the adult, right? Not so fast. What if the toddler drops the gun and grandma, trying to pick up the gun, slips and falls from a banana, the toddler also dropped, and breaks her hip? Is the adult responsible for the broken hip?
A judge seems to have missed the important classes on proximate cause.
In real life gun owners have general immunity for wrongful third party use of a gun. One exception to immunity occurs when harm is caused because the gun maker/seller violated state law and harm is caused by that breach. Consumer protection false advertising claims have become a fruitful area of litigating this exception.
In a lawsuit against Smith and Wesson, victims of a public shooting claimed S & W was responsible because it advertised shooting a gun and the alleged shooter played shooting video games. S & W moved to dismiss based federal immunity. The court ruled:
*This allegation must be taken as true for purposes of a motion to dismiss. Presumably plaintiff has some “expert” to so testify.
Proximate cause describes the so-called “legal” cause connecting a negligent act and the damage suffered by a third party. Proximate cause requires an examination of foreeabilty. For example, everyone knows an adult handing loaded pistol to a toddler is negligent. Harm flowing from that act is easily assigned to the adult, right? Not so fast. What if the toddler drops the gun and grandma, trying to pick up the gun, slips and falls from a banana, the toddler also dropped, and breaks her hip? Is the adult responsible for the broken hip?
A judge seems to have missed the important classes on proximate cause.
In real life gun owners have general immunity for wrongful third party use of a gun. One exception to immunity occurs when harm is caused because the gun maker/seller violated state law and harm is caused by that breach. Consumer protection false advertising claims have become a fruitful area of litigating this exception.
In a lawsuit against Smith and Wesson, victims of a public shooting claimed S & W was responsible because it advertised shooting a gun and the alleged shooter played shooting video games. S & W moved to dismiss based federal immunity. The court ruled:
“Factual causation,” the court ruled, was established by “numerous allegations of unlawful marketing techniques and statutory authority that Smith and Wesson marketing and advertisements violated.” “Legal cause” sufficed that “Smith and Wesson’s unlawful conduct created a condition that foreseeably led to the shooter’s criminal act.”
Plaintiff alleged S & W advertising “intentionally promote militaristic misuse of firearms, especially among young people.”* If this opinion holds up based upon these facts, the federal immunity law will become useless. Any gun advertising could be seen by a potential killer. I don’t like federal immunity any more than the next guy. But this opinion must not stand. The judge destroyed the whole concept of proximate cause. *This allegation must be taken as true for purposes of a motion to dismiss. Presumably plaintiff has some “expert” to so testify.
It’s Time for the Supreme Court to Define ‘Proximate Cause’ in Firearm Advertising Liability Claims
The purpose of such lawsuits, orchestrated by Everytown for Gun Safety, is to destroy America’s lawful firearm industry. Making a mockery of PLCAA, not to mention the Second Amendment…
www.shootingnewsweekly.com
