Tort Law and Criminal Behavior (Guns)
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Description
As history shows, tort actions based on the defendant's criminal conduct are not controversial. A more controversial issue is whether tort liability should be based on crimes committed by someone else. If a third-party criminal caused the plaintiff's injury, should the plaintiff be able to recover from a noncriminal defendant whose conduct facilitated or enabled the crime? Whatever the normative resolution of this matter, noncriminal defendants have incurred liability for these “enabling torts” in a variety of contexts, including the negligent distribution of guns. Enabling torts have been recognized by the tort system for a long period, and courts have exhibited an increasing tendency to hold a defendant liable for the negligent or criminal acts of a third person. Nevertheless, the enabling torts have not been adequately analyzed, which may explain why courts have not taken a consistent approach to unlawful behavior. When applying the enabling torts, courts recognize that some individuals (the third-party criminals) act unlawfully despite the threat of criminal and tort sanctions. When applying the rule of strict liability for abnormally dangerous activities, courts assume the threat of negligence liability induces all individuals to act lawfully, even the criminally predisposed. The courts adopt a concept of unlawful behavior for the enabling torts that is inconsistent with the behavioral assumption they make when applying the rule of strict liability for abnormally dangerous activities. Courts should eliminate the inconsistency by applying the rule of strict liability in a manner that accounts for unlawful behavior. The superiority of this approach is illustrated by the tort litigation involving handgun manufacturers. The approach to strict liability currently used by courts obfuscates the real issue posed by these cases. By assuming that negligence liability induces everyone to exercise reasonable care, courts unrealistically assume that there is no criminal misuse of handguns and therefore never address the social problem created by the manufacture and distribution of handguns-the foreseeable likelihood that criminals will obtain handguns and shoot people. To address this problem appropriately, courts must account for the social fact of unlawful behavior when applying the rule of strict liability. Part II describes the enabling torts. Part III analyzes these torts, concluding that they often will be ineffective because of an inherent limitation of negligence liability. For situations in which negligence liability is ineffective, strict liability is the obvious alternative. Part IV argues that the rule of strict liability should account for unlawful behavior. Part V applies this rule of strict liability to the manufacture and distribution of handguns, identifying a persuasive rationale for not applying strict liability that is far superior to the rationales previously relied upon by the courts. Although courts may have reached a defensible result in these cases, their poorly reasoned decisions have substantially undermined an important role of strict liability to enforce the duty of care. Even tort doctrine, it seems, has been harmed by handguns.
Source Publication
Guns, Crime, and Punishment in America
Source Editors/Authors
Bernard E. Harcourt
Publication Date
2003
Recommended Citation
Geistfeld, Mark A., "Tort Law and Criminal Behavior (Guns)" (2003). Faculty Chapters. 718.
https://gretchen.law.nyu.edu/fac-chapt/718
