(October 2005) Brian Tarver was drunk. He was impaired enough that a convenience store clerk refused to sell him beer that night in Knoxville, TN. So he bought $3 worth of gas at an Exxon station and hit the road – then hit two other motorists. He pleaded guilty to the sorts of traffic offenses you expect, but the legal story doesn’t stop there. Attorneys for the victims successfully sued Exxon for its role in the accident – selling Tarver gas. This judgement was recently affirmed by Tennessee’s Supreme Court, making heads shake in disbelief. It bodes well for America’s trial lawyers, whose never-ending hunt for ‘deep pockets’ just took a key step in their stalk of one of America’s largest industries.
This case is noteworthy because it comes on the 20th anniversary of a ‘first step’ against another industry: guns. It was October 1985 when the Court of Appeals affirmed judgement against a gun manufacturer in the case of Kelly v. RG Industries. Known as the Kelley decision, this ruling advanced the pioneering notion which held companies – not consumers – accountable for how consumers chose to use products, very much as Tarver’s case affects Exxon.
The genie of corporate liability for consumer acts got out of its bottle in Maryland, the first legal action of its kind. After being shot during an armed robbery, Mr. Kelley and his wife sued the manufacturer of a gun allegedly used in the crime. Some called it a ‘Saturday night special.’ When legal wrangling was through, the court’s decision held that the companies involved were liable. The immediate impact in Maryland was blunted since industry, through ties with gun groups, quickly overturned the decision legislatively, even if at the cost of accepting the famous handgun ban. (The Roster Board was born in a 1988 deal to protect firearm manufacturers from liability for how their customers use guns.) Too late. The genie was out of the bottle and it paved the way for legal action elsewhere, establishing the legal foundation for activists to launch assaults on other industries too. Once again our Second Amendment was the ‘canary in the mine’ – an early warning of danger. Assaults on gun rights preceded and foretold of more audacious assaults on the rest of our rights.
The years since Kelley were hard for the gun industry. Anti’s wanted company coffers drained (trial lawyers wanted them drained into law firm pockets.) Some companies went out of business, and you see the effect on the rest as increased prices on products, since costs are passed to consumers. Now 20 years after the genie escaped its bottle in Maryland, Congress may put it back by passing S.397, the Protection of Lawful Commerce Act (PLCA): “A bill to prohibit civil liability actions from being brought or continued against manufacturers, distributors, dealers, or importers of firearms or ammunition for damages, injunctive or other relief resulting from the misuse of their products by others.” The bill was passed in the Senate, and it awaits consideration in the House.
[Both Maryland Senators, Sarbanes and Mikulsky, voted against a PLCA amendment (which was adopted anyway) “To protect the rights of children who are victimized by crime to secure compensation from those who participate in the arming of criminals.” Then they voted against the bill itself. Genies don’t like going back into a bottle.]
This is an interesting cusp, where past, present and future briefly come in focus together as one. Kelly shows where an industry was 20 years ago, the PLCA fight shows what cost such policies exact on industry today, and Tarver signals where an industry may be in two decades. Trial lawyers are still a ways from indicting gasoline itself – in Tarver’s case the Exxon station was only held accountable for selling it – but the trend is there, and we need look no further than the gun industry to see where it is likely to go.