Coverage of gun liability limitation- liberal slander or Ryan cluelessness?

[minty_green]

*Originally posted by The Ryan *
So the phrase “negligence per se” has no meaning?

Sure it does. But do you understand that the mere violation of a statute does not make an action “negligence per se”? Seriously, go look it up in a legal dictionary. Negligence per se is an extremely limited theory when it comes to tort law.

And what about negligent acts that don’t involve the acts of third parties?

What about 'em?

So that part about “knowingly and willfully violated a State or Federal statute” just doesn’t matter?

Matters tremendously, since that’s the standard for being able to assert a claim against gun manufacturers, and since that’s so far different from current law.

Then what does this mean?

Exactly what it says: “By definition, one does not act ‘knowingly and willfully’ if one’s conduct is merely ‘negligent,’ even if that negligent conduct violates a state or federal law.” That bears no resemblance whatsoever to your Ryan-ized paraphrase, “that once the negligence has been qualified, it is no longer mere negligence.”

Sorry if that doesn’t help, but an English-to-Ryan dictionary has yet to be written.

What is you definition of “merely negligent”?

For purposes of this discussion, negligence that does not rise to the level of knowing or willful conduct.

Ah, now you’ve gone from “merely” to “only”.

What on earth is that supposed to mean? So I have to explain the concept of “synonyms”?

This law won’t immunize people “only” being negligent, because they are already safe.

Wrong. Under current law, a gun manufacturer will be liable in civil damages for negligent marketing if that marketing is the cause in fact and proximate cause of a plaintiff’s damages. Under the proposed act, a gun manufacturer will be fully immunized from liabilit forr negligent marketing, even if that negligent marketing is the cause in fact and proximate cause of a plaintiff’s damages, unless the defendant knowingly and willfully violated a state or federal statute in marketing its product(s).

Night and day.

So you agree that only negligence is already not actionable?

Not at all. Negligence may or may not be actionable. The point, since you’ve failed to grasp it, is that negligence alone is not actionable, but that negligence accompanied by causation, proximate cause, and harm to the claimant is actionable.

There’s nothing in the definition of “manufacturer” which provides immunization.

Yes, but that’s not the bloody point now, is it? Smith & Wesson is a “manufacturer” as defined by the act, and “manufacturers” are broadly immunized from their conduct under the act. If you can think back to the beginning of your tapdance on this particular issue, the point was that under the proposed law, only “sellers,” and NOT “manufacturers,” would be subject to claims “for negligent entrustment or negligence per se.” That’s right there in section 4(5)(A)(ii). Check it out.

[The_Ryan]

*Originally posted by minty green *
Sure it does. But do you understand that the mere violation of a statute does not make an action “negligence per se”? Seriously, go look it up in a legal dictionary. Negligence per se is an extremely limited theory when it comes to tort law.

But isn’t it something in addition to negligent entrustment?

What about 'em? [negligent acts that don’t involve the acts of third parties]

Aren’t they unaffected by the act?

Matters tremendously, since that’s the standard for being able to assert a claim against gun manufacturers, and since that’s so far different from current law.

So why did you imply that negligent entrustment is the only such standard?

For purposes of this discussion, negligence that does not rise to the level of knowing or willful conduct.

So earlier when I asked you what that sentence meant, a more informative answer would have been “By definition, one does not act ‘knowingly and willfully’ if one’s conduct is negligence that does not rise to the level of knowing or willful conduct, even if that negligent conduct violates a state or federal law.” IOW, a tautology. I don’t see why you thought it necessary to point out that any act which is not willful and knowing is not willful and knowing.

Under the proposed act, a gun manufacturer will be fully immunized from liabilit forr negligent marketing, even if that negligent marketing is the cause in fact and proximate cause of a plaintiff’s damages, unless the defendant knowingly and willfully violated a state or federal statute in marketing its product(s).

If by “fully immunized” you mean “immunized under some circumstances”, then yes, you are correct.

The point, since you’ve failed to grasp it, is that negligence alone is not actionable, but that negligence accompanied by causation, proximate cause, and harm to the claimant is actionable.

But if there’s causation, proximate cause, and harm to the claimant, then there isn’t only negligence. There’s negligence and causation, proximate cause, and harm to the claimant. “Negligence alone is not actionable”, “only negligence is nonactionable”, and “mere negligence is not actionable” mean the same thing.

[minty_green]

Why, oh why didn’t I listen to that inner voice? The one that said “Don’t get involved. It can only end in massive amounts of semantic nitpicking and complete avoidance of the point”? Feh.

[The_Ryan]

The point of this thread was to discuss whether the Chronicle’s statement’s were accurate. You insisted on discussing another issue, and on introducing the weasel word “mere”. If you wish to avoid semantic nitpicking and avoidance of the point, then the obvious solution is to not engage in those behaviors. Your posts have been full of falsehoods, and you have responded to my pointing them out by simply pretending you don’t see the error and diverting the discussion.

FACT: you have been avoiding the point of the OP
FACT: negligence can lead to liability
FACT: you have been nitpicking on the previous point by insisting on discussing “mere negligence” rather than negligence itself
FACT: your complaining about semantic nitpicking and avoidance of the point is hypocritical

[SPOOFE]

What is unusual is the requirement that the defendant must have “knowingly and willfully” violated a state or federal statute. This provides blanket protection for defendants whose condict is only negligent or even grossly negligent.

A question, Mr. Green… wouldn’t this concern of yours be eased by the usage of the term “qualified product”? Technically, if the manufacturer was negligent in the making of a particular gun - assuming that such negligence results in a gun that, say, has a non-functional safety - wouldn’t that then mean that the gun in question is NOT a “qualified product”, and thus wouldn’t protect the manufacturer from lawsuit?

[Mtgman]

The usage of “qualified product” in this bill has a specific definition which links it to subparagraph (A) or (B) of section 921(a)(3) of title 18, United States Code. Didn’t see anything in there which would exclude faulty weapons from still being “qualified products”.

Enjoy,
Steven

[minty_green]

Status as a “qualified product” doesn’t have anything to do with defective design of a firearm (and in products liability, defective design is essentially a negligence standard). Section 4(5)(iv) exprressly permits suits “for physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended.” Of course, defective design cases are not marketing claims, and marketing claims are the subjet of both the proposed statute and the newspaper story Ryan is whining about.

FTR, I am unaware of any significant design defect claims involving firearms manufacturers. The quality of modern firearms is such that very, very few people are injured due to design or manufacturing defects in their guns.

[The_Ryan]

*Originally posted by SPOOFE *
A question, Mr. Green… wouldn’t this concern of yours be eased by the usage of the term “qualified product”? Technically, if the manufacturer was negligent in the making of a particular gun - assuming that such negligence results in a gun that, say, has a non-functional safety - wouldn’t that then mean that the gun in question is NOT a “qualified product”, and thus wouldn’t protect the manufacturer from lawsuit?

The manufacturer would not be protected by such a lawsuit, anyway, because that manufacturer would be sued for its own actions, and this law only protects manufacturers being sued for someone else’s actions. Did you somehow get the impression from minty green’s posts that this act would provide protection from such a suit? Gee, I’m sure it’s not because minty green has been posting misleading statements. No, we just don’t know how to read. Imagine reading the sentence “This provides blanket protection for defendants whose condict is only negligent or even grossly negligent” and thinking that it means that all negligent conduct is protected. What were we thinking.

minty green

Of course, defective design cases are not marketing claims, and marketing claims are the subjet of both the proposed statute and the newspaper story Ryan is whining about.

Gee, suddenly you care about the contents of the OP. More specifically, the Chronicle mentions “marketing illegal weapons”. What, are you concerned that someone might claim that acquiring and then selling illegal weapons is “mere negligence”?

Oh, and it says quite a bit about your rationality that you consider an honest question to be “whining”. I thought about putting this in the Pit, but considering that two different sources made claims opposed to what seemed like an obvious reading of the act, and not being so absolutely certain of my rightness that I would not be willing to listen to arguments to the contrary (hint, hint), I asked for an explanation for the Chronicle’s position.