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Whitfield v. Heckler & Koch8/9/2000
r-in-fact, whether foreseeable or not, outweighs the utility of the product. There are three primary reasons for so concluding: (1) the harmful consequences in fact from intended and reasonably foreseeable uses resulting from the way the product was designed and marketed up to the time of plaintiff's injury outweighed the benefits in terms of wants, desires, and human needs served by the product; (2) although the harmful consequences in fact did not exceed the benefits, alternative products were available to serve the same needs or desires with less risk of harm; (3) although the harmful consequences did not outweigh the benefits, there was a feasible way to design the product with less harmful consequences." (Prosser & Keeton, Torts (5th ed. 1984) § 99, p. 699, fn. omitted.)
Civil Code section 1714.4 precludes us from analyzing weapons or ammunition under the first or second test. This means that we cannot reach the conclusion urged by appellant: that the HK .308 has no real beneficial purpose in terms of human needs served by the product or that any beneficial purpose it does serve could be just as easily met by an ordinary handgun or rifle. Under subdivision (c), however, courts can consider whether a feasible design alternative existed which would have prevented the harm that befell the victim. "An alternative design that was not utilized is to be considered as feasible when a reasonable person would conclude that the (1) magnitude of the danger-in-fact that could have been avoided by such alternative design in the (2) utilization of the scientific technological know-how reasonably available to the defendant outweighed the (1) financial costs of guarding against such avoidable danger, (2) the impairment of the benefits, and (3) any new danger-in-fact that would have been created by the alternative design." (Prosser & Keeton, Torts, supra, § 99, p. 700; accord, Buccery v. General Motors Corp. (1976) 60 Cal.App.3d 533, 547 [" ny product so designed that it causes injury when used or misused in a foreseeable fashion is defective if the design feature which caused the injury created a danger which was readily preventable through the employment of existing technology at a cost consonant with the economical use of the product."]; Baker v. Chrysler Corp. (1976) 55 Cal.App.3d 710, 716 [" he reasonableness of an alternative design --whether the design can actually be produced, the materials for production are available, the costs are not prohibitive, etc. -- is a factor to be considered in determining whether the design which was actually used can be characterized as defective. [Citation.]"].)
Put another way, as long as we avoid undertaking a risk-benefit analysis based on the potential of a particular weapon or particular kind of ammunition to cause serious injury , damage, or death, courts can examine whether some novel technological advancement exists which would allow for a safer alternative design. As we have said, however, appellant has not described in his complaint, and we are not aware of, any available safety device which would prevent this type of purposeful criminal activity by persons who lawfully purchased the weapons. Thus, the exception in subdivision (c) is of no benefit to appellant.
C. NEGLIGENCE
Because of these obstacles to a product liability claim, appellant asks us to analyze respondent's culpability under ordinary principles of negligence.
"Actionable negligence is traditionally regarded as involving the following: (a) a legal duty to use due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting injury. [Citations.]" (6 Witkin, Summary of Cal. Law, supra, § 732, p. 60.) The questio
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