This article is for people considering a lawsuit against a gun manufacturer for injuries that happened in Wyoming from a defective firearm.
You or a family member were injured by a firearm. The gun went off unexpectedly. Maybe it was holstered and discharged. Maybe you racked the slide and it went off. Maybe you were just moving it from the truck to the house. In any case, the gun went off, and you or someone you love is injured.
Now you have a serious injury. Maybe it’s a permanent injury. Maybe it’s an injury that you can manage with physical therapy. If there is one certainty about the situation, you have a mountain of medical bills. Nothing about healthcare in this country is cheap. Hopefully, you have insurance. But even with insurance there are co-pays, deductibles, out-of-network fees and other expenses.
But the medical bills are just the tip of the iceberg. The medical bills are your badges to show and document your pain and suffering. How many days in the hospital and visits to the physical therapist? What about all of the nights where the pain kept you up? Perhaps this event took years of your good health away. Perhaps it’s changed your relationship with your friends, your family, and yourself. There are things you used to do that now you can’t or don’t.
If you’re on a lawyer’s website, you are interested in learning about your rights under the law. What can kinds of lawsuits are there for defective guns?
Two kinds of lawsuits for a firearm injury:
- Negligence against a person. This kind of lawsuit is for someone that negligently causes the injury. For example, think of a driver going too fast in the snow and hitting another car. In this kind of case, you sue an individual for his negligent actions. Perhaps he negligently handled the firearm or negligently entrusted the firearm to someone who wasn’t responsible. I am going to ignore this type of claim for the remainder of the article.
- Products Liability. This is a claim against the manufacturer or seller of the gun. In this kind of lawsuit, you sue the manufacturer or seller of the gun for selling a defective gun. I am going to discuss this kind of product liability claim for the remainder of the article.
Within products liability, there are several kinds of claims.
The Wyoming Supreme Court identifies three kinds of claims against a manufacturer.
A product is defective if, at time of sale or distribution, it contains a manufacturing defect, a design defect, or is defective because of inadequate instructions or warnings.
A manufacturing defect is a flaw or defect in the manufacturing process. For example, the plans call for a pure alloy metal in an important part, but that part was actually manufactured with a dirty alloy, or the wrong alloy, and the metal piece failed. In this instance, the design is fine but the execution fails.
A design defect is the opposite. In a design defect, the design itself is the problem. Using our example above, the part is manufactured with the a pure alloy and is structurally sound. But the design was bad, and a safer alternative existed.
Inadequate instructions or warnings.
Inadequate instructions or warnings. Here, the manufacturer doesn’t do enough to instruct or warn the consumer how to use the product safely. We have all seen warnings that seem obvious–don’t let an infant eat these small pieces, but some warnings and instructions are less obvious. A manufacturer needs to reasonably instruct and warn the user and consumer.
All three of these kinds of claims are essentially negligence claims against the manufacturer. Here is how negligence is defined in a Wyoming products liability case:
Negligence in the manufacture of a product means the failure of a manufacturer to do something that a reasonably careful manufacturer in the same business would do, or doing something that a reasonably careful manufacturer in the same business would not do.
Along with these kinds of negligence claims against the manufacturer, there are also claims against the seller.
Seller liability for defective conditions
Here is how the Wyoming Supreme Court generally defines defective condition for lawsuits against the seller of the gun:
One who sells any product in a defective condition unreasonably dangerous to the user or consumer is liable for physical harm caused thereby to the ultimate user or consumer or if the seller is engaged in the business of selling a product and the product reaches the user or consumer without substantial change in the condition in which it is sold.
This rule applies although the seller has exercised all possible care in the preparation and sale of his product and the user or consumer has not bought the product from or entered into any contractual relation with the seller.
There are a couple things to be aware of with this law. First, the law allows you to sue the seller, even if the seller wasn’t responsible for the defective condition. Second, the law allows you to sue the seller, even if you are not the purchaser of the product. That means if you borrowed the gun, you still have the right to bring this kind of lawsuit.
Wyoming has adopted five elements in the establishment of strict liability for the sale of a defective product:
1. that the sellers were engaged in the business of selling the product that caused the harm;
2. that the product was defective when sold;
3. that the product was unreasonably dangerous to the user or consumer;
4. that the product was intended to and did reach the consumer without substantial change in the condition in which it was sold; and
5. that the product caused physical harm to the plaintiff/consumer.
These kinds of claims against the seller go together with claims against the manufacturer. Often a lawsuit will involve both the seller and the manufacturer.
Of course, a claim can also go against anyone that makes a misrepresentation about the product.
Here is the Wyoming Jury Instruction on Misrepresentation:
Misrepresentation: In order to recover on his strict liability theory based on misrepresentation, the Plaintiff has the burden of proving the following:
That the defendant by advertising, labels, or otherwise, made to the public a misrepresentation of a material fact concerning the character or quality of a product sold by the Defendant, and
That Plaintiff justifiably relied on the misrepresentation.
A misrepresentation claim exists where the defendant makes a promise about the product (it’s safe!) and the Plaintiff relies on that misrepresentation to his detriment (it’s not safe).
Examples of gun lawsuits
There are several famous lawsuits against gun manufacturers. Most recently, there were several lawsuits against Taurus for its pistols. The Millennium PT-140 pro pistol would fire when bumped or dropped, even though the safety was on and the gun was holstered. Another famous example is the lawsuit against Remington that ultimately led to the voluntary recall of 7.5 million rifles.
Expectations for a lawsuit against a gun manufacturer
Anyone considering one of these lawsuits should be prepared for a long road. There are a number of elements of a lawsuit against a gun manufacturer for you to consider.
- Expert involvement. Your attorney will involve experts in reviewing the firearm and investigating the claims. These experts will be involved before the lawsuit is even filed. My law firm advances the costs for these experts. For example, I would hire an expert to analyze the manufacture and design of the firearm.
- Team of lawyers. These kinds of cases call for a team of lawyers–sometimes that is a team of lawyers working within the same firm. However, my general approach would be to associate with other attorneys around the nation, especially those attorneys that have had success against that same gun manufacturer. It is a good idea to share expertise and pull from a national talent pool–not just Wyoming.
- Lengthy. These kinds of lawsuits have the potential to take more than a year to resolve. Nothing about litigation is fun.
Thoughts on gun owners, lawyers, and Wyoming juries
This is not legal analysis, but I do have a couple of thoughts about gun owners and lawyers. In general gun owners love the Constitution as much as lawyers. Gun owners understand their rights under the 2nd Amendment and often are history buffs with an interesting take on the US Government. Lawyers, especially trial lawyers, love the 7th Amendment, which guarantees the right to a jury trial.
Lawyers and gun owners should be natural allies. But we’re not always and I don’t know why. Maybe it’s because there has been a lot of lobbying about frivolous lawsuits. Gun owners are independent folks and there is some suspicion about how the legal system can be misused. But just like gun owners don’t misuse a gun or the 2nd Amendment, I don’t misuse the legal system or the 7th Amendment.
The other thought I have is that Wyoming has got to be one of the best places in the country for this kind of lawsuit. Folks in Wyoming have an up close and nuanced understanding of guns. There is a high level of knowledge in Wyoming about firearm safety. What’s interesting about these cases–especially the Taurus case above–is that the gun owners involved are experts. The gun owner in the Taurus case was a law enforcement range instructor. It was his son who died. There was zero chance that the gun was mishandled and I think the jury in his community would have understood that. I would trust a jury in Wyoming to understand a gun case.