The Tortious Marketing of Handguns: Strict Liability is Dead, Long Live Negligence

44 Pages Posted: 2 Jul 2010 Last revised: 15 Oct 2012

Andrew Jay McClurg

University of Memphis Cecil C. Humphreys School of Law

Date Written: 1995

Abstract

The author is credited by legal scholars for helping create the tort theory of “negligent marketing” claims against handgun manufacturers. In this article, arguing that strict liability was a failed theory, he asserts that victims of gun violence should refocus their sights on the more prosaic liability theory of common law negligence. In his words, it is time to “go back to basics.”

The article advances three different negligent marketing theories for suing handgun manufacturers: (1) negligence in marketing unusually dangerous weapons such as assault weapons and Saturday Night Special-type handguns; (2) negligence in promoting the sale of handguns to criminal consumers; and (3) negligence in failing to take reasonable precautions to minimize the risk of handguns being sold to those likely to misuse them. The strengths and weaknesses of each theory are extensively analyzed.

Suggested Citation

McClurg, Andrew Jay, The Tortious Marketing of Handguns: Strict Liability is Dead, Long Live Negligence (1995). Seton Hall Legislative Journal, Vol. 19, 9. 777, 1995; University of Memphis Legal Studies Research Paper No. 38. Available at SSRN: https://ssrn.com/abstract=1633956

Andrew Jay McClurg (Contact Author)

University of Memphis Cecil C. Humphreys School of Law ( email )

1 Front Street
Memphis, TN 38103
United States

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