This Article will evaluate the concept of negligent marketing to see whether it ought to become a part of our legal jurisprudence or whether it should be discarded as doctrinally unsound, possibly harmful to important social and economic interests.
Part II of this Article provides an overview of the negligent marketing theory. Negligent marketing can be divided into three categories: (1) product designs that make the product more attractive to criminals; (2) advertising and promotional activities that target inappropriate users; and (3) product distribution practices that facilitate retail sales of dangerous products to vulnerable or unsuitable users. The first category of negligent marketing involves product design. Claims based on product design rest on the notion that the manufacturer has designed the product in such a way that it particularly appeals to those who are likely to misuse it. Claims that arise from negligent advertising or promotion typically involve targeting consumers that are more likely than the general population to misuse the product and thereby injure themselves or others. The third category of negligent marketing includes negligent distribution practices, which facilitate access to the product at the retail level by unsuitable or undesirable users. This category of negligent marketing also imposes liability upon manufacturers that fail to control retail sales practices in order to keep their products out of the hands of criminals and underage consumers.
Part III traces the history of negligent marketing in the courts. Negligent marketing made its first appearance in the mid-1980s in such cases as Linton v. Smith & Wesson, Riordan v. International Armament Corp., and Knott v. Liberty Jewelry & Loan, Inc. However, judicial reaction to negligent marketing claims was universally hostile until 1997, when a federal appeals court decided McCarthy v. Olin Corp. Although the court affirmed the lower court's dismissal of the case, Judge Guido Calabresi, in a dissenting opinion, presented a strong argument for the negligent marketing theory and urged the court to certify the question to the New York Court of Appeals. Since then, two courts have recognized negligent marketing claims. In the first case, Hamilton v. Accu-Tek, Judge Jack Weinstein allowed several victims of gun violence to present their negligent marketing claims to a jury. However, on appeal the negligent marketing issue was certified to the New York Court of Appeals, which concluded that New York law did not require a defendant to exercise due care with respect to the marketing of its products. In a second case, Merrill v. Navegar, Inc., a California intermediate appellate court also recognized a negligent marketing claim against a gun manufacturer. However, this decision was reversed by the California Supreme Court in 2001. Part III of the Article also discusses some of the lawsuits that have been brought against gun manufacturers by cities and other local governmental entities to recoup Medicaid and law enforcement costs.
Part IV discusses some of the doctrinal issues that must be addressed if the courts decide to impose liability upon product sellers for negligent marketing. These issues involve the standard of care, cause-in-fact, and duty. The traditional negligence standard of reasonable care provides little guidance to juries, particularly in cases where manufacturers are charged with targeting vulnerable or violent individuals. Problems also exist with applying the traditional standard of care in cases where the manufacturer is accused of failing to prevent its products from being sold illegally.
Causation issues are also troublesome in negligent marketing cases. Since plaintiffs would normally be unable to prove cause-in-fact using the traditional "but for" or "sine qua non" test, courts would have to allow other methods of proving causation, such as the "substantial factor" test or a probabilistic analysis if plaintiffs are to have any chance of winning. However, these approaches are highly controversial and arguably unfair to defendants. Another causation issue arises where a number of defendants manufacture similar products. Plaintiffs will seldom prevail in such cases unless the courts are willing to apply novel theories of causation, such as enterprise liability or market share liability.
Duty is the key doctrinal issue in most negligent marketing cases. For many courts, the distinction between nonfeasance and misfeasance is critical to the existence of a duty on the part of product manufacturers. Thus, a court is likely to conclude that a manufacturer owes a duty to a person who is injured by a non-defective product if it believes that the manufacturer's affirmative conduct created or increased the risk of harm. On the other hand, courts are less likely to conclude that such a duty exists if it characterizes the manufacturer's conduct as nonfeasance, that is, failure to protect the plaintiff against criminal attack by third parties. So far, the latter view seems to have prevailed.
Part V addresses a number of other issues. One concern is that private interest groups and government entities will bring negligent marketing suits against certain types of product manufacturers as a way of advancing their own regulatory agendas. For example, they may bring suit against a particular manufacturer or industry in order to obtain settlement terms that supplement existing regulatory measures with respect to the promotion, sale, or use of their products. In other cases, lawsuits may be brought for the sole purpose of obtaining judgments that will be substantial enough to bankrupt companies that produce products the plaintiffs do not approve of.
Another concern is that negligent marketing claims may unreasonably interfere with the constitutional right of commercial speech. This particular problem arises in cases where the seller's advertising provides factually correct information about a product or expresses an opinion about lifestyle choices, such as "women need handguns to protect themselves" or "smoking is cool." Imposing tort liability in such cases arguably inhibits the free flow of information about products to certain groups of consumers.
Finally, the negligent marketing theory of liability is inherently paternalistic and elitist. It assumes that some consumers are incapable of making rational decisions about what products to buy. This assumption, even if partly correct, is troublesome when it is invoked to punish advertising that is directed at women, minorities, or other "vulnerable" groups.
While acknowledging that imposing liability for negligent marketing would encourage product sellers to act more responsibly and would also provide a source of compensation for some accident victims, this Article concludes that doctrinal and policy concerns outweigh these benefits.
Richard C. Ausness, Tort Liability for the Sale of Non-Defective Products: An Analysis and Critique of the Concept of Negligent Marketing, 53 S. C. L. Rev. 907 (2002).