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Whitfield v. Heckler & Koch8/9/2000
As modified August 25, 2000. There is no change in the judgment.
MARTIN WHITFIELD,
PLAINTIFF AND APPELLANT,
V.
HECKLER & KOCH, INC.,
DEFENDANT AND RESPONDENT.
(Super. Ct. No. EC023122)
McNicholas & McNicholas, John P. McNicholas and Matthew S. McNicholas for Plaintiff and Appellant. Holland & Knight, Charles L. Coleman III, Mark L. Venardi and Kimberly A. Gershon for Defendant and Respondent.
The opinion of the court was delivered by: Curry, J.
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County, David M. Schacter, Judge.
Affirmed.
Appellant Martin Whitfield is a Los Angeles police officer badly injured in a shootout with Emil Matasareanu and Larry Phillips, Jr., in front of the North Hollywood Branch of the Bank of America on February 28, 1997. Being heavily armed and attired in full body armor, Matasareanu and Phillips were able to hold off police officers for a considerable period of time while inflicting injury on police officers and civilians alike. Respondent Heckler & Koch, Inc., is one of ten named defendants alleged to have manufactured, distributed, marketed, or sold one or more of the weapons used by Matasareanu and Phillips in the shootout. The trial court sustained respondent's demurrer to the second amended complaint.
Although respondent's product was not defective in the usual sense, appellant asks that we adopt a new theory of liability to cover products which are unflawed in manufacture or design but which are so potentially dangerous that they should not be offered for sale to the general public unless the manufacturer is willing to internalize the cost of all injuries which result from the product's misuse. Failing that, appellant urges that traditional product liability and negligence theories be interpreted expansively to cover manufacture of certain types of legally produced firearms. We believe it would be unwise to adopt a broad new theory of recovery which would ultimately make courts and juries the arbiters of the merit of every consumer product in the market. We further believe such issues should be resolved by the appropriate legislative bodies. Accordingly, we affirm the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
The Allegations of the Complaint
For purposes of this appeal from an order sustaining a demurrer without leave to amend, we accept the allegations of the complaint as true. In his second amended complaint, the operative complaint for purposes of this appeal, appellant alleged that among the various weapons used by Matasareanu and Phillips was a "Heckler & Koch .308 caliber semiautomatic assault rifle, model 91, with drum magazine" (hereafter HK .308). The weapons were allegedly used in their attempted robbery of the bank and their attempt to escape, during which nine police officers and two civilians were shot. Appellant was one of the first officers to arrive at the scene. One of the two assailants, believed to be Phillips, fired at appellant using one of the assault weapons and armor piercing bullets. Appellant ducked behind his patrol car, but was nonetheless struck in the left forearm and left buttock, the bullet which injured his forearm having first traveled through the engine block, transmission, and body of the patrol car. After sustaining these injuries, appellant attempted to reposition himself behind a row of trees, and was shot in the right femur, the lesser trochanter, and the upper torso. As a result of t
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