Merrill v. Navegar

On July 1, 1993, Gian Luigi Ferri walked into the 101 California St. building in San Francisco, armed with two TEC-DC9 assault weapons, a handgun and hundreds of rounds of ammunition.  Ferri, a disgruntled former client of the law firm Pettit and Martin, proceeded to that firm and began a shooting rampage that continued on two lower floors.  Within minutes he had killed eight people and injured six others (one of the injured later died).  Ferri then fatally shot himself.

Survivors of the shooting, together with representatives of some of those who died, filed suit against Navegar, Inc., manufacturer of the assault weapons used in the massacre, alleging negligence and other claims.  Ferri, a California resident, had purchased the TEC-DC9s in Nevada at a gun show and retail gun store using a falsified Nevada driver’s license.  At the time, California law specifically banned Navegar’s TEC-9 assault weapon and impliedly banned the TEC-DC9, which was identical.  (According to Navegar’s sales and marketing director, the name of the weapon had been changed in an attempt to avoid liability under an assault weapons ban in the District of Columbia.)

On September 29, 1999, the First Appellate District of the Court of Appeal ruled that plaintiffs could pursue their negligence claim against Navegar, holding that gun manufacturers have a duty of care not to increase the inherent risk of danger posed by the presence of their products in society.  The court rejected Navegar’s argument that it could not be held liable for Ferri’s criminal use of the TEC-DC9s, noting that such use was foreseeable in light of the company’s advertising, which called attention to features that would be of primary interest to criminals, e.g., the threaded barrel that can accommodate silencers and flash suppressors, and a surface with “excellent resistance to fingerprints.”  The court also found that Navegar’s officers were aware that the weapon’s high firepower, low price and concealability made it the “weapon of choice” for certain criminals.  The court found the record bereft of any evidence showing that the TEC-DC9s had any legitimate civilian use whatsoever.

On August 6, 2001, the California Supreme Court reversed the Court of Appeal decision, holding that Civil Code Section 1714.4 immunized Navegar from the action.  Merrill v. Navegar (2001) 26 Cal. 4^th 465.  Section 1714.4 provides that “in a products liability action, no firearm or ammunition shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risks of injury posed by its potential to cause serious injury, damage or death when discharged.”

In a dissenting opinion, Justice Werdeger stated that Section 1714.4 was inapplicable because plaintiffs did not allege that the assault weapons were defective (indeed, the weapons  performed precisely as intended), but that Navegar was negligent in distributing them to the general public, rather than to military and law enforcement units alone.  Werdeger invited the Legislature to amend or repeal Section 1714.4, noting that “until such action is taken, gunmakers, including makers of assault weapons, will apparently enjoy absolute immunity from the consequences of their negligent marketing decisions.”