Legislature(1999 - 2000)
03/22/1999 01:08 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 103 - LIABILITY RELATING TO FIREARMS
CHAIRMAN-DESIGNEE GREEN announced the next order of business is HB
103, "An Act relating to civil actions by municipalities and
certain public corporations and prohibiting certain civil actions
by them against firearms or ammunition manufacturers and dealers."
CHAIRMAN-DESIGNEE GREEN indicated that the committee will take up
CSHB 103(CRA), and called on Representative Fred Dyson, sponsor of
the bill.
Number 0111
REPRESENTATIVE FRED DYSON, Alaska State Legislature, stated HB 103
is an Act that will prohibit political subdivisions from suing
firearm manufacturers for the misuse of legally manufactured and
distributed firearms. Six to seven cities have sued firearm
manufacturers and are seeking judgment to cover the cost of the
misuse of firearms. House Bill 103 is virtually the same as SB 77
which is on the way to the Senate floor. House Bill 103 will get
to the House floor at roughly the same time, if this committee
concurs with it.
Number 0173
VICTOR GUNN, Legislative Administrative Assistant to Senator Pete
Kelly, Alaska State Legislature, noted that HB 103 and SB 77 are
companion bills. They are identical in language and mirror each
other. They were created in response to the lawsuits brought by
municipalities throughout the United States against gun
manufacturers to recoup damages from the illegal use of their
products. Enfolded by recent tobacco lawsuits, municipalities are
attempting to supplement their general fund with lawsuits directed
at deep pockets - the manufacturers - for what they consider
politically incorrect products. They claim that manufacturers
allegedly have conspired to flood markets outside the cities with
strict gun laws knowing that they will reach the cities through a
black market. Further, the manufacturers are supposedly producing
more powerful guns in order to increase their sales. It is obvious
that the aim is to bankrupt the gun company by suing them for
medical costs and monetary damages of gun related crimes. This
litigation circumvents constitutional limits as well as democratic
debate. The gun control movement thinks it can win without passing
laws or winning elections. By using litigation to raise prices and
to drive manufacturers out of business, gun controllers can reduce
access to firearms without confronting the Second Amendment.
Reasonable people see the clear intent in using the court to
accomplish what any gun lobbyist has been unable to achieve in
federal and state legislatures. This clear abuse of the tort
liability system seeks to use potentially bankrupting lawsuits to
force makers of legal, but politically incorrect, products to quit.
The intent of this legislation is to prevent local governments from
seeking reimbursements for the cost of gun related violence from
businesses engaged in the lawful manufacture, sale, design or
marketing of firearms or ammunition. It is not the intent of this
legislation to prevent bringing an action for breach of contract or
warranty purchased by a political subdivision or local government
authority. Gun related manufacturing is a legal enterprise
producing quality products that are lawfully and safely used by
thousands of Alaskan for hunting, sport, recreation and protection.
It really has more to do with the people than the guns. It's
easier to blame the manufacturer than to have people take
responsibility for their actions. In a nationwide survey of
registered voters conducted by the American Firearms Council, 92
percent say that cities or states should not sue gun makers as a
means to stop violence; and, 67 percent say that enforcing current
laws against using firearms is more effective in addressing
criminal violence than limiting the number of firearms an
individual may purchase. He noted that the survey was done in
October of 1998 with a margin of error of plus or minus 3 percent.
Number 0341
REPRESENTATIVE CROFT referred to Representative Dyson's amendment
and stated he is concerned that it would prohibit a lawsuit for a
manufacturing defect such as shoddy metal.
REPRESENTATIVE DYSON stated he was told by the bill drafter that
poor workmanship is covered under breach of warranty. The
amendment makes it clear.
Number 0396
REPRESENTATIVE ROKEBERG asked whether there was a case with a
judgment against a gun manufacturer in Connecticut.
REPRESENTATIVE DYSON replied there was a case with judgment in
Brooklyn. It is subject to appeal.
REPRESENTATIVE ROKEBERG asked what was the amount of damages.
MR. GUNN replied $550,000 against 15 manufacturers.
Number 0423
REPRESENTATIVE CROFT is concerned about unintended consequences.
While no manufacturer should be liable for simply selling a lawful
product that somebody misuses, there are appropriate legal theories
for selling something for specific illegal purposes. The seller of
a car is generally not liable in the case of a hit-and-run, but if
that car is sold for a specific illegal purpose, the seller could
be held liable. It almost crosses the line into criminal
conspiracy. He said, "You cannot just hold Ruger liable for the
fact that some criminals use Ruger, but if I come to a gun dealer
and say, 'I want to kill the Pope.' Is that special
Popemobile--what armaments can I--exactly do I use and what armor
are piercing. And, they sell me exact tailored things that are
only appropriate for a specific purpose with full knowledge of that
purpose, you're not only criminally liable, but I think you
probably should be civilly liable." It is a lawful sale, but the
ultimate purpose was unlawful. It is related to the lawful sale,
manufacture, design, or marketing of firearms, but it is not
related to a negligent design, breach of contract, or breach of
warranty. He asked Representative Dyson why the bill says "a
person", if it is meant to stop municipal or governmental lawsuits.
Number 0521
REPRESENTATIVE DYSON replied it seems that knowingly supplying
equipment for a crime is accessory before the fact which is covered
in other parts of state and probably federal law.
Number 0539
REPRESENTATIVE CROFT noted that Representative Dyson is right. A
person on those facts could be criminally liable, but would be
immune under this section from civil liability.
REPRESENTATIVE DYSON stated that person would be prosecuted under
different sections.
MR. GUNN noted the bill was heard in two other committees that both
amended it to include other than municipalities such as a person.
It was felt that the word "lawful" covered a conspiracy to sell a
product for unlawful means. It isn't the intent to encourage
unlawful acts by gun manufacturers. There is no "smoking gun" like
in the tobacco suits. In those suits, there were misleading
memorandums and intent by the manufacturers to mislead the public
to believe that their product was not harmful. There hasn't been
anything like that in this legislation. In fact, "it" says that
the product is designed to be dangerous, but it is designed for
lawful purposes: sport, recreation and protection. The intent of
the bill is to prevent frivolous lawsuits against firms that
manufacture a lawful product.
Number 0658
REPRESENTATIVE ROKEBERG asked whether it is correct that a number
of suits have been filed because of the Brooklyn case on behalf of
municipalities.
REPRESENTATIVE DYSON cited: New Orleans, Chicago, Atlanta,
Bridgeport, and Miami Dade. Los Angeles, Boston, Philadelphia, St.
Louis, and San Francisco are coming. Several states are starting
to limit the liability suits like Alaska.
Number 0709
CHAIRMAN-DESIGNEE GREEN asked Representative Dyson whether any of
those cases have gone to settlement.
REPRESENTATIVE DYSON replied the Brooklyn case has been awarded and
is now under appeal.
CHAIRMAN-DESIGNEE GREEN called for a motion to adopt Representative
Dyson's amendment.
Number 0709
REPRESENTATIVE CROFT made a motion to adopt Amendment 1
[1-LS0503\D.1, Ford, 3/19/99]. There being no objection, it was so
adopted. It reads as follows:
Page 1, lines 9-10
Delete "for negligent design"
Insert "resulting from a negligent design, a
manufacturing defect"
Number 0764
REPRESENTATIVE CROFT stated he continues to worry about unintended
consequences because the bill is drawn so broadly.
Number 0848
REPRESENTATIVE ROKEBERG asked Representative Dyson whether this is
based on handguns and not other firearms.
REPRESENTATIVE DYSON replied he is not sure that handguns were
specifically selected. The inference that many of the crimes are
created by handguns is logical, but in times past it was
traditional to use shotguns and Tommy guns, for example.
Number 0883
REPRESENTATIVE ROKEBERG asked Representative Dyson and/or Mr. Gunn
whether they have read any pleadings in court cases specifically
directed at handguns or are they directed at firearms in general.
REPRESENTATIVE DYSON replied the manufacturers that were being sued
produced firearms not just handguns. He doesn't believe that the
suits were specific to handgun.
REPRESENTATIVE ROKEBERG said he is concerned that including the
manufacturer and seller brings liability problems. What about a
situation where a youth picks up a weapon in a gun shop and
inadvertently shots someone? There would be immunity in that case
which is not the intent of the bill.
Number 0940
CHAIRMAN-DESIGNEE GREEN wondered whether the language "lawful sale"
is the seller.
REPRESENTATIVE KERTTULA stated it is being limited to the negligent
design or manufacturing defect. According to her research,
one-third of unintended shootings are when a child fires a loaded
gun or when somebody discharges a gun believing that it wasn't
loaded.
CHAIRMAN-DESIGNEE GREEN said that is negligence of the parent.
Number 1016
REPRESENTATIVE ROKEBERG asked what is "lawful marketing".
CHAIRMAN-DESIGNEE GREEN stated, if the owner of a shop loads a gun
and something happens, then there is negligence, but it shouldn't
fall back on the manufacturer of the firearm.
REPRESENTATIVE ROKEBERG noted the bill says "or seller".
CHAIRMAN-DESIGNEE GREEN noted a seller would not be exonerated, if
that seller negligently loads a gun and allows somebody to shot it.
REPRESENTATIVE ROKEBERG stated the language is drafted
disjunctively. It sets up a separate criteria for sellers. It
doesn't read "and/or"; it reads "or".
REPRESENTATIVE JAMES noted "or" means both of them.
REPRESENTATIVE ROKEBERG noted "or" means either one of them. It is
disjunctive, not conjunctive.
CHAIRMAN-DESIGNEE GREEN said the fact that it reads "or" means that
there doesn't have to be all of those for a cause of action.
Number 1130
REPRESENTATIVE CROFT stated part of the difficulty is the wording
"related to" - Page 1, line 8. It is very broad. It doesn't say
"solely based on" or "primarily concerning". It could be written
with less comprehensive language to accomplish its primary goal.
The lawful sale of a lawful product without anything more can't
form the basis of liability for a car or gun or whatever. The fact
that a person might use it for an illegal activity is not a basis
of reliability against the seller or manufacturer. Anything
peripherally related to any of these things and anything otherwise
irresponsible can be immunized.
Number 1224
REPRESENTATIVE KERTTULA noted it is especially so because of the
exception sentence - lines 9-10. It tries to get the exemption to
the immunity back up to the seller.
Number 1253
REPRESENTATIVE ROKEBERG asked Representative Dyson why the seller
vis-a-vis a retailer is included when it seems the actions are
against manufacturers not retailers.
REPRESENTATIVE DYSON replied the huge retailers in the country are
considered to be deep pockets, and the small arms manufacturing
industry is not doing well. The totality of the business is around
$1.4 billion. He cited Fred Meyers, Sears and Roebuck, and K-Mart
as deep pockets. Traditionally, the trend in court is to go after
them, and they don't want to be improperly sued. When he bought a
firearm at Fred Meyers the clerk would not put the ammunition on
top of the counter and the firearm at the same time. The clerk
walked with him out to the parking lot and handed him separate
bags.
Number 1421
CHAIRMAN-DESIGNEE GREEN suggested changing the language "related
to" with "predicated on" - Page 1, line 8.
REPRESENTATIVE CROFT stated it depends on how substantial that
relationship has to be. "Related to" is 1 percent, "based solely
on" is 100 percent, "primarily" is... He doesn't want to slow the
bill down, but he wants it to reflect what the majority within the
committee wants it to do.
Number 1508
MR. GUNN stated the language is the exact wording of a Georgia law
that passed its legislature and was signed into law by its
governor.
REPRESENTATIVE CROFT noted it was passed without the amendment.
REPRESENTATIVE JAMES noted Alaska is different.
Number 1549
REPRESENTATIVE ROKEBERG understands that there is a public policy
demand to immunize the sellers as well. But, the language is a
little too broad as it relates to the retailer. He is not real
comfortable with it, but he is very supportive of the bill itself.
CHAIRMAN-DESIGNEE GREEN asked Representative Rokeberg whether the
word "predicated" relieves some of his concern.
REPRESENTATIVE ROKEBERG replied not really. It is the nexus
between the act of selling and marketing that a whole plethora of
different scenarios can come into play causing injury. Unless it
can be separated and replaced with a different standard such as a
higher level of negligence, there could be a lot of personal injury
cases.
Number 1649
CHAIRMAN-DESIGNEE GREEN asked are the sellers at risk of liability
when automobiles are recalled because of a defective design? "We
want to make sure that the seller, unbeknownst to a flaw in the
design, is not going to be held reliable because he's a deep
pocket."
REPRESENTATIVE ROKEBERG stated the seller shouldn't be responsible
for a manufacturer problem. "It is not the act of selling per se,
it's the act of being a merchandiser for manufactured merchandize
is what we're trying to get at."
Number 1700
REPRESENTATIVE JAMES stated it seems that Representative Rokeberg
is dwelling on the term "marketing". She wondered whether "faulty
marketing" could be included in the language just amended. That
might not be the best term, but something like that to relieve his
concern.
Number 1745
REPRESENTATIVE KERTTULA stated as the bill is written now she
thinks a loaded gun left on a counter that a child picks up would
be covered by this statute when it is clearly negligent behavior.
And, that's not the intent of the bill.
Number 1801
REPRESENTATIVE DYSON stated this doesn't preclude a seller from
being sued for negligence in leaving a loaded weapon where a child
could misuse it. This only immunizes a seller against being sued
through the business of selling it. He offered the language "based
on" as an alternative for the language "related to". In addition,
it wouldn't do a disservice to his intention to strike the word
"marketing" from the bill. "And, frankly, as a certifiable gun
nut, I am uncomfortable about some of the marketing that goes on in
the firearm manufacturer that tends to be the approach. If you
look at some of the quasi-underground books that are marketed on
how to get anybody and how to do urban sniper fire against your
enemies and convert your weapons into fully automatic, change you
identity and how to escape, you know. Some of that stuff makes me
uncomfortable." His suggestions are not an amendment, just
respectful suggestions.
CHAIRMAN-DESIGNEE GREEN noted there is still the word "sale".
REPRESENTATIVE DYSON replied, and properly so.
Number 1960
REPRESENTATIVE JAMES stated is seems that the committee is trying
to separate the products from the actions. In other words, the
product itself is exempt, but what is done with the product is not.
Maybe, there is language that can separate the products and the
actions.
Number 1998
REPRESENTATIVE ROKEBERG stated that is precisely his point. It's
the manufactured item that he's been talking about. He suggested
language, "(indisc.) manufacturers or a retailer of that
manufactured firearm or ammunition". It would focus the act on
revolving around the handgun/firearm. It's not the act of selling
that's immunized. "You're only a conduit, if you're a wholesaler
or retailer. You're not the manufacturer. And, I think in the
theory here is the creation of and manufacture of firearms that's
causing the damage."
CHAIRMAN-DESIGNEE GREEN stated he would accept that, except the
word "dealer" is included in the title. If the intent is to keep
the dealer in the bill, he would suggest two paragraphs - one to
deal with the manufacturer and one to deal with the dealer. It is
too difficult to include both in one paragraph.
Number 2100
REPRESENTATIVE CROFT noted that typically a distributor is liable
for a defective product, even if there isn't any negligence. A
distributor has the right to go after a manufacturer in that case.
The language, "based on", suggested by Representative Dyson solves
most if not all of his concerns.
Number 2156
REPRESENTATIVE KERTTULA stated adding the language, "or to the
reckless endangerment by retailers", to line 8 would take care of
her concern, as well as Representative's James and Rokeberg. If
somebody put a loaded gun on a counter and a child picked it up,
there wouldn't be a bar from suing.
Number 2198
REPRESENTATIVE JAMES stated adding that language doesn't let them
go back to the manufacturer.
Number 2275
REPRESENTATIVE CROFT made a motion to delete the language "related
to" on line 8, and insert the language "based on". There being no
objection, it was so moved.
REPRESENTATIVE CROFT made a motion to include the language "or" on
line 8 between the words "manufacture," and "design,". There being
no objection, it was so moved.
CHAIRMAN-DESIGNEE GREEN asked whether there is still concern with
gross negligence of the seller, or is this enough to allow the
intention of the AS 09.65.155.
REPRESENTATIVE CROFT said he thinks so.
REPRESENTATIVE JAMES noted by taking "marketing" out...
Number 2448
REPRESENTATIVE MURKOWSKI noted the title still refers to dealers.
The committee is talking about two separate things.
CHAIRMAN-DESIGNEE GREEN stated, unless it is made very, very
cumbersome, would it be better to have two separate...
TAPE 99-17, SIDE A
Number 0001
CHAIRMAN-DESIGNEE GREEN continued. Can negligent endangerment
cover everything a seller might do? he asked. That's what the
committee is after.
Number 0014
REPRESENTATIVE KERTTULA noted that reckless endangerment is a
higher standard than just negligence. She would feel more
comfortable with just negligence because of that argument, but at
least it would cover some of the worst cases of somebody leaving a
loaded gun lying around.
Number 0069
MR. JARDELL stated using the language, "based on the lawful sale",
a cause of action wouldn't be based on the sale. There is an
argument of relating an action to the sale with using the language,
"related to the lawful sale". In the case of the language, "based
on the lawful sale", the cause of action would be based on the
negligent handling of the weapon. It would fix the problem of
ancillary negligence. General negligence would still be there as
long as it's not based on the actual sale. The New Orleans case
and several others have included the dealers in an attempt to get
them to stop selling the firearms through legal fees. Saying that
they should have known that these person were going to use the
weapons or they put an unusually large number on the street. There
are some reasons to include dealers, and there are some reasons to
preclude blanket immunity for negligent handling of firearms.
Number 0223
REPRESENTATIVE KERTTULA stated, with that testimony on the record
as the intent, she is comfortable with it.
Number 0241
MR. GUNN pointed out that one of the lawsuits in New Orleans
includes the people who sell firearms which is why marketing is
included in the bill.
Number 0270
REPRESENTATIVE CROFT made a motion to move CSHB 103(CRA), as
amended, from the committee with individual recommendations and the
attached fiscal note(s). There being no objection, CSHB 103(JUD)
was so moved from the House Judiciary Standing Committee.
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