The Counsellor's Corner


The State Supreme Court is going to have to look at this one.  Whenever two appellate courts disagree on a significant issue, the State Supreme Court eventually has to step in and decide so that rulings do not continue to differ, depending upon the area of the state in which you live.  In early August, an appellate court ruled that a police officer wounded in the infamous 1997 North Hollywood bank hold-up cannot sue the gun manufacturer for his injuries.  This case was dismissed by Judge David Schacter in Burbank, and his decision was affirmed by the Second District Court of Appeal. 


The claim made by the officer was that the type of gun created and used to wound the officer was “so inherently dangerous that its mere existence constituted liability.”  The Court of Appeal stated that it did not think it would be a good idea to turn courts into judges of the merit of every consumer product put on the market.


Now in 1999, a different court of appeal in northern California went the other way on this issue, ruling that a gun manufacturer could be sued as a result of the slaying of eight men and women.  In that case, the appellate court ruled that there is a duty owed to the public by gun manufacturers to not “create risks above and beyond those inherent in the presence of firearms in our society.”


I am sure you all remember the horror on February 28, 1997, as many of us watched the military-style assault by the extraordinarily well-armed bank robbers on the police officers who responded.  It was horrifying.  In this matter the plaintiff in the Burbank case, an Officer Whitfield, arrived with his standard-issue hand gun.  At the scene, he was shot by Larry Philips, carrying a Heckler & Koch 308, and he was shot three times.  He suffered a significant leg injury, which required a twelve day hospital stay.  The Supreme Court will now have to decide which way to go on this issue and whether or not creating an “ultra hazardous product” theory of liability can be applied in this or any other situation. 


While I am sympathetic to Officer Whitfield, and I am a gun control advocate, I do not favor the Officer’s position in this case.  What a can of worms this would open.  Should the atom bomb not have been built because it could do too much?  Should every product created be examined to see whether it is more than we need, whatever the context?  I am a strong believer in people taking responsibility for their actions, however; the action in this case was taken by Larry Philips, not the gun company.  Of course, the gun company gets sued because they have money, and Larry Philips doesn’t.  They are what is referred to in the personal injury world as the “deep pocket;” however, they didn’t do it.  If you’re going to hold them responsible for creating the gun, where will this stop?  If the gun company loses, I believe this will have a chilling effect on those who invent and create.  We already live in a climate in which many drug companies drop out of the search for new medicines which could potentially cure significant illnesses because they realize that as soon as people begin to suffer negative side-effects, the drug company is going to be sued.  That situation is not quite analogous to this, but the common thread is that law suits can be a tremendous deterrent to progress in many fields, and to hold the gun manufacturer responsible in this case is taking liability a good step or two beyond where I would like to see it.