enhances injuries initially caused by another force. Bolm involved a parcel grid detectively placed on a motorcycle such that it aggravated the injuries sustained by the rider in a collision with a car. Here, the Black Talon ammunition allegedly caused more damage than ordinary, non-expanding ammunition would have caused. In addition, large capacity magazines allow users to fire more bullets before they need to reload, thus potentially prolonging a criminal shooting spree.
Bolm is inapposite, however, because the Black Talon ammunition was, like all ammunition, designed to cause injuries. To hold Olin strictly liable for aggravation of injury potentially would subject all ammunition manufacturers to similar liability. The amount of damage caused by a bullet is directly related to, among other variables, its size, and thus its design. Under plaintiffs' theory, every person injured by a bullet would be able to claim that if the bullet had been smaller, there would have been less damage and accordingly, the manufacturer should be strictly liable based on that design defect.
Plaintiffs next argue that the Black Talon ammunition fails the risk/utility analysis applied by the Court of Appeals to determine whether a design is defective. See Robinson, 49 N.Y.2d at 479, 403 N.E.2d at 443 (citing Restatement (Second) of Torts § 402A). In Robinson, however, the court noted that certain products, such as knives, are inherently dangerous and "must by there very nature be dangerous in order to be functional." Robinson, 49 N.Y.2d at 479, 403 N.E.2d at 443. I find that this exception applies to the Black Talon ammunition. Risk/utility analysis is inappropriate because the risks arise from the function of the product, not any defect in the product. See Forni, slip op. at 9.
Plaintiffs' design defect arguments are better addressed to the Legislature, which has primary regulatory authority over the manufacture and sale of ammunition. As long as the Legislature permits the manufacture of ammunition, a common law court should not distinguish between different designs and the amount of injury particular bullets cause in judging whether they are defectively designed.
Plaintiffs have failed to allege the existence of any defect in the Black Talon ammunition. Accordingly, their design defect claim must be dismissed.
B. Ultrahazardous Activity
Plaintiffs allege that Olin's design and manufacture of the Black Talon ammunition constituted an abnormally dangerous and ultrahazardous activity because the ammunition is an inherently dangerous product. Complaint, PP 261, 263, 265. Defendant argues that the doctrine of ultrahazardous activity does not apply to products; rather, it is limited to activities involving the use of land. Def. Mem. at 13-15 (citing, e.g., Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440, 368 N.E.2d 24, 398 N.Y.S.2d 401 (1977)). This theory appears to be correct, see Forni, slip op. at 10 ("Courts have imposed absolute liability almost exclusively for ultrahazardous activity involving the use of land."), and plaintiffs do not contest it. Instead, plaintiffs argue that the ammunition is unreasonably dangerous per se. Pl. Mem. at 21-23.
In Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110, 114 (La. 1986), the Supreme Court of Louisiana held that a product is unreasonably dangerous per se "if a reasonable person would conclude that the danger-in-fact of the product, whether foreseeable or not, outweighs the utility of the product.
This is essentially a risk/utility analysis. As discussed above, I do not believe that the New York Court of Appeals would apply risk/utility analysis to the Black Talon ammunition. Therefore, plaintiffs' claim based on a theory that the ammunition is unreasonably dangerous per se must be rejected.
To state a claim in either negligence or strict liability a plaintiff must demonstrate that the defendant's breach was the proximate cause of her injuries. See Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 414 N.E.2d 666, 434 N.Y.S.2d 166 (1980) (negligence); Voss, 59 N.Y.2d at 109, 450 N.E.2d at 209 (strict liability). Defendant argues that plaintiffs' claims must be dismissed for the separate reason that Ferguson's actions constitute the proximate cause of plaintiffs' injuries. Plaintiffs argue that Ferguson's acts were foreseeable, and thus the issue of proximate causation should be left for the finder of fact to resolve. Pl. Mem. at 14-16.
In general, questions of whether an intervening act severs the chain of causation depend on the foreseeability of the intervening act and should be determined by the finder of fact. See Derdiarian, 51 N.Y.2d at 312, 315, 414 N.E.2d at 668, 670. However, in appropriate circumstances, the court may resolve the issue as a matter of law. Id., 51 N.Y.2d at 315, 414 N.E.2d at 670. "Those cases generally involve independent intervening acts which operate upon but do not flow from the original" breach. Id. In Jantzen v. Leslie Edelman of New York, Inc., 206 A.D.2d 406, 614 N.Y.S.2d 744 (2d Dep't 1994), the Appellate Division held that the seller of a shotgun could not be liable in a wrongful death action because the acts of the killer were the sole proximate cause of the injuries. "The sale of a shotgun merely furnished the condition for the unfortunate occurrence." Id., 206 A.D.2d at 406-07, 614 N.Y.S.2d at 745. Here, as the Forni court found, "Ferguson's conduct was an extraordinary act which broke the chain of causation." Forni, slip op. at 14. Therefore, plaintiffs' complaint fails to state a claim in either negligence or strict liability.
Plaintiffs candidly argue that I should expand existing tort doctrines to cover this case, thus implicitly recognizing that as the law stands today they have failed to state a claim. See Pl.'s Mem. at 10. As noted above, however, their claims seek legislative reforms that are not properly addressed to the judiciary. Like Justice Schlesinger wrote in Forni, slip op. at 14, I too would work to ban ammunition like the Black Talon if I was a member of the New York legislature. As judges, though, we both are constrained to leave legislating to that branch of government.
For the reasons discussed above, defendant Olin's motion to dismiss the complaint is GRANTED.
New York, New York
March 4, 1996
Harold Baer, Jr.