Product Liability Design Negligence Claims Allowed To Proceed In Mass Shooting Class Action

• Published date: 24 February 2021
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Product Liability & Safety, Class Actions, Professional Negligence
• Law Firm: Borden Ladner Gervais LLP
• Author: Mr Robert Love, Glenn Zakaib, Edona Vila and Samantha Bonanno

In Price v Smith & Wesson Corp., 2021 ONSC 1114, Justice Perrell of the Ontario Superior Court of Justice considered the viability of product liability claims advanced against a gun manufacturer in an action commenced by the victims of the Danforth shooting in Toronto and their families.

The plaintiffs alleged negligent design, manufacture and/or distribution, public nuisance and strict liability under the rule in Rylands v. Fletcher, which normally applies to the discharge of harmful material from real property. Justice Perrell found it was plain and obvious that the claims of public nuisance and strict liability could not succeed. The negligent manufacture and distribution claims suffered the same fate. However, the plaintiffs' design negligence claims were allowed to proceed.

Background

This action arises out of the Danforth shooting in Toronto on July 22, 2018. The plaintiffs are victims of the shooting and their families. The defendant, Smith & Wesson, is a gun manufacturer with its head office in Massachusetts, U.S.

The plaintiffs commenced this class action in December 2019. In July 2020, Justice Perrell ordered that the certification motion be heard in two stages. The first stage would determine whether the plaintiffs met the requirement of showing that their claim disclosed a cause of action. The Court also heard the defendant's motion to strike out the claim for failing to disclose a cause of action, under Rule 21 of the Rules of Civil Procedure. If the plaintiffs met the cause of action requirement, the second stage would address the remaining four certification criteria.

According to the defendant manufacturer, the gun used in the shooting was designed and manufactured for military and police use and was available for sale in Canada in 2013. In 2015, a Saskatchewan gun dealer reported the gun later used in the attack as missing. The gun did not utilize "authorized user" or "smart gun" technology, which is designed to prevent criminal use of weapons by unauthorized persons (i.e., through the use of fingerprint or palm print recognition, dynamic grip recognition, or voice identification).

While Smith & Wesson had been developing authorized user technology since at least 1998, in 2005 the United States Congress passed the Protection of Lawful Commerce in Arms Act, which shielded Smith & Wesson (and other manufacturers, dealers, and sellers of firearms and ammunition) from civil actions resulting from unauthorized or unlawful misuse of a firearm...