WERDEGAR, J. I respectfully dissent. I cannot accept the majority’s conclusion that plaintiffs are statutorily barred from suing the maker of the semiautomatic assault weapon used to massacre the victims in this case. Neither the letter of Civil Code section 1714.4 nor the legislative policy it embodies bars this action for negligence in the marketing of a firearm.
[493]Complex though some of the issues in this case are, the statutory question addressed by the majority can be resolved simply. Civil Code section 1714.4 bars product liability actions against gunmakers based on the risk-benefit theory of product defect. The legislative policy behind the statute might, at most, be deemed also to encompass negligence claims that are substantially identical to risk-benefit product defect claims. Plaintiffs’ claim is neither. Plaintiffs’ claim of negligence is, at bottom, that defendant Navegar, Inc. (Navegar) acted without due care in distributing the TEC-9/DC9—a semiautomatic handgun combining portability and ease of use with an extraordinary rapidity and capacity for lethal firepower—to the general civilian public rather than restricting its sales to police and military units that might have a legitimate call for such a military-style assault pistol. Plaintiffs do not claim that the TEC-9/DC9 is defective; nor do they even claim that defendant acted negligently simply by making the TEC-9/DC9. Plaintiffs allege negligence, rather, in Navegar’s selling that firearm on the general civilian market knowing it would attract purchasers likely to misuse it, rather than restricting sales to buyers with a lawful use for the tools of assaultive violence, such as police and military units. This theory of negligence, resting on the allegation that particular marketing choices by Navegar were imprudent, is not substantially identical to a claim of product defect and thus is within neither the letter nor the spirit of Civil Code section 1714.4.
The majority insists plaintiffs’ negligent distribution claim is really one of product defect because plaintiffs’ claim depends, in part, on certain of the TEC-9/DC9’s features and technical characteristics. But not all claims involving a product’s features are claims of defect. Here, the TEC-9/DC9’s characteristics are important not to show defect but to demonstrate the foreseeability of injury from, and the consequent imprudence of, distributing this gun in a way that allows its purchase by violent criminals and the mentally deranged. Navegar’s conduct was allegedly negligent not because its gun was defective but because, in light of the gun’s known attractiveness to violent users and the lack of a compelling need for its availability in the civilian market, a reasonably careful distributor would have restricted sales to groups unlikely to misuse the firearm. Civil Code section 1714.4 simply does not address such a negligent distribution claim.
Before considering Civil Code section 1714.4, I address, and reject, Navegar’s more fundamental claim that it should bear no liability for its allegedly negligent marketing because at the time it made and sold the weapons at issue their manufacture and distribution outside the state was not illegal and it had no special relationship with the massacre’s perpetrator. A gunmaker, no less than anyone else manufacturing and distributing a consumer product, is subject to the general duty of due care (Civ. Code, § 1714, [494]subd. (a)) toward those foreseeably affected by its business activities. While this court has created exemptions from the general rule of liability for foreseeable injuries caused by one’s negligent conduct in circumstances where recognizing a duty of due care running from the defendant to the plaintiff would result in unwarranted interference with activities valuable to the community, or otherwise contravene the state’s established public policy (see Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472-475 [63 Cal.Rptr.2d 291, 936 P.2d 70]), no such policy justifies an exemption for the manufacture and distribution of semiautomatic pistols restricted under California’s Roberti-Roos Assault Weapons Control Act of 1989 (AWCA). (See Pen. Code, §§ 12275.5, 12276.)
As will be seen, moreover, the generalized foreseeability required for existence of a duty was also present here. Violent criminal use of the TEC-9/DC9 was highly predictable to a person in the circumstances of Navegar’s management. Indeed, the evidence presented on summary judgment in this case demonstrated that Navegar’s management not only should have known, but actually did know, that the technical and aesthetic characteristics of the TEC-9ZDC9, together with its price, the manner of its promotion, and Navegar’s instructions for its use, attracted criminal and mentally ill segments of the civilian gun market, foreseeably leading to the kind of mayhem that has produced this lawsuit.
Other than duty, the only element of the negligence cause of action on which defendant claims entitlement to summary judgment is cause in fact. I would hold that plaintiffs have presented substantial evidence, creating a triable issue of fact, that Navegar’s distribution of the TEC-9/DC9 in the general civilian market increased the risk and degree of harm to plaintiffs. The trial court thus erred in granting summary judgment for defendant.
Facts
Among the weapons Navegar has manufactured and marketed are two semiautomatic assault pistols,1 the TEC-9 and the TEC-DC9. Two Navegar guns, TEC-DC9 serial Nos. D026484 and D032026, were used in the homicides leading to this lawsuit.
In 1992, Navegar renamed the TEC-9 as the TEC-DC9, but initially made no changes in its design or materials. In 1993, beginning with serial No. [495]D036673 (that is, after manufacture of the guns used here), the TEC-DC9 was slightly modified in design: the two sling catches on the side of the gun were removed and replaced with a single catch on the rear of the gun, altering the way it hung when carried on a shoulder sling.2 Like the majority, I refer to the weapons involved here interchangeably as TEC-9’s, TECDC9’s, or TEC-9/DC9’s.
During early 1993, Gian Luigi Ferri, a Southern California resident, bought two TEC-DC9’s in Nevada. On July 1, 1993, Ferri took these weapons, as well as a .45-caliber Norinco Model 1911A1 pistol, into 101 California Street, a high-rise office building in San Francisco, carrying his guns and ammunition in a large briefcase and another bag on an airline-type luggage cart. He went to the 34th-floor offices of a law firm against which he sought revenge for perceived ill treatment. There, his TEC-DC9’s carried on slings around his neck, and equipped with hundreds of rounds of ammunition loaded into 40- to 50-round magazines, Ferri moved through offices on this and two lower floors, firing in rapid bursts, ultimately killing eight men and women and wounding six others, before fatally shooting himself in a stairwell.
San Francisco Police Inspectors Napoleon Hendrix and Prentice Earl Sanders led the investigation of the crimes committed by Ferri at 101 California Street. Based on his interviews and inspection of the physical evidence at the scene of the killings, Hendrix believed “Mr. Ferri had a very specific strategy in mind for the use of the weapons. During the assault, particularly while on the 34th floor, he used the two TEC-DC9’s to maximum advantage by relying on their high firepower. He used these weapons to lay down a field of fire that would either wound or immobilize his victims before using the .45 caliber pistol [to] finish them off in a more direct and personal manner.” Inspector Sanders agreed that the “extended magazines” of the TEC-9/DC9, which held up to 50 rounds, “gave [Ferri] an opportunity to fire a much longer period of time of many more shots than he would have been capable of with . . . what might be determined to be a standard semiautomatic pistol.” These extended magazines enabled Ferri “to lay down a blanket of fire rather than fire one individual shot, recover and then [496]fire another individual shot, with the TEC-DC9. He was able to lay down what, in essence, would be a blanket of fire which would cover a large area, thus cutting the chances of intended targets to escape.”
The TEC-9/DC9 is a semiautomatic descendent of a class of firearms called machine pistols, automatic weapons that are themselves derived from submachine guns. According to Leonard J. Supenski, a police chief and broadly experienced firearms expert, machine pistols are “typically issued to specialized forces such as security personnel, special operations forces, or border guards.” They “offer an individual soldier maximum firepower in a small, light-weight, easily maneuverable package, and are especially effective on multiple adversaries in close quarters where precisely aimed shots are not as important as a lot of approximately placed shots.” The TEC-9/ DC9 differs from a machine pistol only in that it fires semiautomatically; even so firing, however, the gun’s standard 32-round magazine “can be emptied in seconds.” San Francisco Police Inspector Hendrix noted that with the commercially available trigger modification Ferri had installed, the rate of fire approaches that of an automatic weapon, i.e., hundreds of rounds per minute.
The TEC-9/DC9 differs from conventional handguns in several ways, many of which tend to make it particularly attractive to criminals and unsuitable for lawful civilian uses:
(1) Navegar sold the TEC-9/DC9 with a large capacity (32-round) detachable magazine, designed, according to Supenski, “to deliver maximum firepower by storing the largest number of cartridges in the smallest . . . space,” providing a level of firepower “associated with military or police, not civilian, shooting requirements.” The typical home self-defense scenario requires no more ammunition than is available in a standard six-shot revolver or six- to 10-round pistol. Because of a defender’s tendency to keep firing until the magazine is empty, and given the TEC-9’s relative inaccuracy and difficulty of aiming, the gun’s high capacity is a threat to bystanders, and hence more of a hazard than a benefit in ordinary civilian self-defense. On the other hand, for those contemplating aggressive violence the TEC-9’s extraordinary firepower, concealability, and modest price (less than $300 retail before the federal ban) were attractive features.
(2) The TEC-9/DC9 has a barrel shroud, also peculiar to military-patterned weapons, which disperses the heat generated by the rapid firing of numerous rounds of ammunition and allows the user to grasp the barrel and hold the weapon with two hands, facilitating spray firing. The gun’s paramilitary look, in which the barrel shroud is a prominent feature, makes it and [497]similar guns especially intimidating, an aesthetic feature Supenski notes is “not lost on certain criminals, gang members, drug dealers, and some with psychological problems.” As Navegar’s owner, Carlos Garcia, explained, the barrel shroud makes the TEC-9 “look more like a machine gun.”
(3) The TEC-9/DC9’s barrel is threaded, allowing the attachment of silencers and flash suppressors, which are restricted under federal law (18 U.S.C. § 921(a)(24) & (30)(C)(ii)) and are primarily of interest to criminals. The threaded barrel also permits the attachment of a barrel extension (which Navegar sold as an accessory), enabling the weapon to be fired with higher velocity and at greater distances, and extending the length of barrel with which the shooter can hold the gun, while still allowing the gun to be broken down into smaller cancelable parts. The TEC-9, unlike assault rifles with similar firepower (e.g., AK-47’s and AR-15’s), is, as Supenski stated, “capable of being hidden under a car seat, in a duffel bag, or slung under a jacket.” The barrel extension also has the effect of extending the barrel shroud, adding to the pistol’s machine-gun-like appearance.
(4) Prior to the 1993 design change described earlier, the TEC-9/DC9 (including the two guns Ferri bought and used) came with two side sling catches, allowing the gun (which is too large for a holster) to hang horizontally at the hip when slung from the shoulder or neck. This configuration, which Navegar, in disóovery, characterized as a “military-like” hanging position, holds the TEC-9/DC9 ready for firing from the hip and permits two of the guns to be carried and used while on the move, as was done by Ferri in this case.
Chief Supenski stated that the TEC-9, which is relatively inaccurate and had poor sights, is “completely useless” for hunting and is not used by competitive shooters. The weapon is designed to engage multiple targets during rapid, sustained fire. It has little, if any, practical value for self-defense and is hazardous when used for that purpose due to its weight and forward balance (making it hard to fire with one hand), inaccuracy, and firepower, he stated. Although guns like the TEC-9 are typically promoted as “fun guns” because of the large number of rounds they can shoot in a short time, and as “plinkers” because they can be used to shoot informal targets such as bottles and cans, because the nine-millimeter parabellum ammunition the TEC-9 uses is relatively expensive (between $10 and $15 per box of 50 rounds), “the ‘fun’ can get quite expensive in short order.” Navegar owner Garcia identified plinking as the TEC-9’s only recreational use and agreed that a TEC-9 user could “spend[] a fortune” plinking (a fact Garcia hoped would spur TEC-9 owners to also purchase one of Navegar’s TEC-22 guns, which use much cheaper .22-caliber ammunition).
[498]Supenski’s research for an association of police chiefs of large American cities found that the TEC-9 was “far and away” the leading assault weapon seized by law enforcement agencies in such cities in 1990 and 1991, “accounting for 24% of all assault weapons seized, and 42% of all assault pistols seized.” A 1989 study by Cox Newspapers, using previously unanalyzed gun-trace data from the Bureau of Alcohol, Tobacco and Firearms (BATE) (that is, information on guns that had been used in crimes and whose chain of ownership was traced by the BATE at the request of law enforcement agencies), found that the use of assault weapons in crime rose dramatically between 1987 and 1988, that assault weapons are 20 times more likely to be used for criminal purposes than are conventional weapons, and that of the assault weapons traced, one in five was a TEC-9. The Cox study concluded the TEC-9 was “the nation’s No. 1 assault weapon of crime” and “the favorite of drug dealers, apparently because it is inexpensive . . . easily concealed and is available with a 36-round magazine.” A 1994 BATE report on the TEC-9 found it was among the 10 most frequently traced guns in 1991 through 1993. Total traces for the TEC-9/DC9 and TEC-22 in 1990 through 1993 numbered 3,710, including 319 murder cases and 234 cases of assault.
Trace requests from the BATE came by phone or fax and were individually answered by Navegar employees. Garcia, Navegar’s owner and sometime president, was aware that the Cox Newspapers study had found the TEC-9 was traced “quite a bit,” but he changed nothing in his design or marketing of the gun as a result of that knowledge. Garcia explained to the Cox Newspapers reporter, “The only reason it’s No. 1 on your list is because mine is the lowest price. The next highest-priced gun of the assault weapons is two and a half times my cost.” Garcia also stated, “I know some of the guns going out of here end up killing people, but I’m not responsible for that.”
Michael Solodovnick, the company’s national sales and marketing director from 1989 to 1993, was also aware of trace requests and of media reports that the TEC-9 was favored by drug dealers, but he did not take or discuss with Garcia any measures to keep the gun out of criminal hands, because as a manufacturer Navegar “ha[d] no control over that.” In fact, Solodovnick (who is also known as Mike Solo) believed that news reports of the TEC-9 being used in a sensational murder or other crime, and condemnation of the weapon by law enforcement and other government officials, simply helped sales. He acknowledged having been correctly quoted in a 1992 New York Times article, as follows: “ ‘I’m kind of flattered,’ Mr. Solo said when he was asked about condemnations of the TEC-9. ‘It just has that advertising tingle to it. Hey, it’s talked about, it’s read about, the media write about it. [499]That generates more sales for me. It might sound cold and cruel, but I’m sales oriented.’ ” He also acknowledged saying, with reference to well- ■ publicized violent incidents involving assault weapons, that “whenever anything negative has happened, sales have gone tremendously high.”
Navegar advertised the TEC-9/DC9 in a number of nationally distributed gun-related magazines. A typical advertisement, from the October 1991 issue of Soldier of Fortune, was titled “Higher TEC.” The ad showed a photograph containing several versions of the TEC-9, accompanied by the following text: “At two-thirds the weight (and price) of an Uzi, the TEC 9 series clearly stands out among high capacity 9mm assault-type pistols. fl[] Ounce for ounce they deliver more gutsy performance and reliability than Any other gun on the market, [f] TEC-9’s are built tough for rugged weather and terrain. And they’re built comfortable with an ergonomically designed grip and frame—32 rounds of firepower make them ideal for self-defense or recreation. Simple, two-step disassembly for easy cleaning makes them convenient. [^[] In Standard or Mini version, blued, stainless steel, or our new ‘TEC-KOTE’ finish, the TEC-9’s offer rugged, reliable, affordable technology.”
Navegar also gave, sold or loaned TEC-9/DC9’s to the producers of violent films, such as RoboCop (Orion Pictures Corp. 1987) and Freejack (Warner Brothers 1992), and television programs, such as Miami Vice, who wanted a weapon with a “menacing” or “intimidating” look. In Solodovnick’s opinion, use of the weapon in such films and television programs was beneficial to sales.
In the manual distributed with the TEC-9/DC9, Navegar described it as “a radically new type of semi-automatic pistol, designed to deliver a high volume of firepower.” The gun could be used in “modes of fire impossible with most handguns” and could be fired from many positions, including a two-handed hold described as “[hjipfire at shortest range.”
According to Garcia and Solodovnick, Navegar’s target market for advertising of the TEC-9/DC9 included “gun enthusiast[s] . . . people that enjoy shooting” as well as “Walter Mitty” types, who would use the gun to “play military.” Such a person “dresses up in a military outfit, and goes there [to a gun show] like he’s a soldier, but he’s not really, but he plays this game, and he likes it.” Also in the customer base was the “survivalist community” and people who believed the weapon would be effective protection against a government “takeover” by “Communists” who might “corrupt our law enforcement agencies.”
Although he believed any gun could be an “assault weapon,” Garcia agreed that Navegar’s advertising of the TEC-9/DC9 as an “assault-type” [500]gun conveyed the idea that it could be used to initiate fire in an “offensive-type situation.” Garcia acknowledged that the threaded barrel, which allowed attachment of silencers and flash suppressors (as well as barrel extensions), was one of the features of the TEC-9/DC9 emphasized in Navegar’s advertising. Garcia could think of no reason a law-abiding citizen using the TEC-9/DC9 would be interested in a sound suppressor; that would suggest “a criminal purpose.” Navegar sold an accessory it called a “recoil compensator” but which it advertised would reduce muzzle flash as well.
Plaintiffs’ first amended complaint included three causes of action against Navegar: negligence per se (alleging Navegar violated the AWCA by advertising the TEC-9/DC9 in California); strict liability for an abnormally dangerous activity (making and selling the TEC-9/DC9); and “common law negligence.”
As to common law negligence, plaintiffs alleged that Navegar knew or should have known that the TEC-9/DC9 was “particularly well adapted to a military-style assault on large numbers of people”; that it is “disproportionately associated with criminal activity”; that the gun’s firepower and other features, as well as the reputation created by publicity surrounding the gun, “make the weapon more attractive to criminals”; and that the gun “would be used to kill or injure innocent persons in violent criminal acts such as the mass killing committed by Ferri.” Navegar acted negligently “by manufacturing, marketing, and making available for sale to the general public” the TEC-9/DC9.
The trial court granted Navegar’s motion for summary judgment on all causes of action. Plaintiffs appealed the grant of summary judgment only as to the common law negligence and ultrahazardous activity causes of action. A divided Court of Appeal reversed as to negligence, and this court granted Navegar’s petition for review.
Discussion
The elements of an action for negligence are the existence of duty (the obligation to other persons to conform to a standard of care to avoid unreasonable risk of harm to them); breach of duty (conduct below the standard of care); causation (between the defendant’s act or omission and the plaintiff’s injuries); and damages. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614 [76 Cal.Rptr.2d 479, 957 P.2d 1313].) The only issues contested at the present stage of these proceedings are the existence and scope of Navegar’s duty and the sufficiency of the evidence that its allegedly negligent activities were a cause in fact of plaintiffs’ injuries.
[501]Summary judgment is proper where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Two of the issues on review here—the existence of a duty and the effect of Civil Code section 1714.4—are purely legal. The third, causation, is factual, the question being whether plaintiffs have brought forward sufficient evidence to justify a trial on the causation issue.
I. Existence of Duty
Navegar contends a gun manufacturer owes no duty of care to persons injured by the criminal misuse of its product by a remote purchaser. The gunmaker urges us to hold that there is no basis “for the imposition of any duty on Navegar for engaging in the lawful manufacture, distribution and sale of its products.” Plaintiffs, phrasing the same issue in inverse terms, ask us to decide whether “gun manufacturers enjoy a complete exemption from tort liability regardless of how negligently and dangerously they act in designing, distributing, and marketing their products.” They argue for the conclusion that “Navegar owed [plaintiffs] a legal duty to exercise due care in designing, distributing, and marketing firearms.” The first question to be addressed, therefore, is whether Navegar owed plaintiffs—members of the public killed or injured by another person’s criminal use of a Navegar firearm—any duty of care. Did Navegar, in the conduct of its gunmaking and gun selling business, have an obligation to use reasonable care to avoid injuries and deaths from the criminal use of its TEC-9/DC9 firearms?
The existence of a duty is a question of law to be determined by the court alone. (Artiglio v. Corning Inc., supra, 18 Cal.4th at p. 614; Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 472 (Parsons).) Although duty must be determined individually as to each class of cases, and has been described as “ ‘ “ ‘only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection’ ” ’ ” (Parsons, supra, at p. 472, italics omitted), the court nonetheless should be guided by certain general principles.
The first touchstone has been set by the Legislature, with the fundamental precept that “[e]very one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person . . . .” (Civ. Code, § 1714, subd. (a).) This court has, naturally, been chary of exceptions to the legislative rule: “Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exemption to the fundamental [502]principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy.” (Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496] (Rowland).)
We have, in several cases, outlined the considerations employed in various contexts to determine the existence and scope of duty (sometimes referred to as the Rowland factors): “ ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ ” (Parsons, supra, 15 Cal.4th at p. 473; Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6 [224 Cal.Rptr. 664, 715 P.2d 624]; Rowland, supra, 69 Cal.2d at p. 113.) We have, moreover, explained that while foreseeability plays a “very significant” role in this analysis, the question before a court on the issue of duty is not the specific foreseeability of the particular plaintiff’s injuries, but, rather, “whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” (Ballard, supra, at p. 573, fn. 6.)
Apart from foreseeability, the chief factor in determining whether deliberate conduct may give rise to negligence liability is “ ‘the social value of the interest which the actor is seeking to advance.’ ” (Parsons, supra, 15 Cal.4th at p. 473, italics omitted; Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 237, fn. 3 [60 Cal.Rptr. 510, 430 P.2d 68].) A duty of care will not be held to exist even as to foreseeable injuries, in other words, where the social utility of the activity concerned is so great, and avoidance of the injuries so burdensome to society, as to outweigh the compensatory and cost-intemalization values of negligence liability. (Elden v. Sheldon (1988) 46 Cal.3d 267, 274 [250 Cal.Rptr. 254, 758 P.2d 582]; Parsons, supra, at p. 476.)
Foreseeability
Considering foreseeability first, the record leaves no doubt that the use of the TEC-9/DC9 in criminal violence was, as a general matter, foreseeable to Navegar. BATE trace requests, as well as media reports of systematic studies and specific violent incidents, all put Navegar’s officers on clear notice the TEC-9/DC9 was widely favored for violent criminal uses. More generally, the growing numbers of semiautomatic assault weapons on the nation’s [503]streets, and their well-publicized use against both police officers and civilians, was a major subject of legal and political notice in the 1980’s and early 1990’s, leading to the AWCA in 1989 and federal restrictions in 1994. (See Diaz, Making a Killing: The Business of Guns in America (1999) pp. 120-133.) The TEC-9, a prominent member of this growing group of guns, was among the 10 most frequently traced guns of any type each year from 1989 through 1993. (Id. at pp. 27-28.)
Indeed, the record in this case shows not only foreseeability but foresight itself. Navegar’s owner, Carlos Garcia, candidly acknowledged that the TEC-9/DC9’s low price, relative to other assault weapons, led to its favored status among criminals; he further acknowledged that, “I know some of the guns going out of here end up tilling people,” though he denied he was “responsible” for such fatal uses. Similarly, Michael Solodovnick, the company’s national sales and marketing director during the period relevant here, was aware of the BATE trace requests and of media reports that the TEC-9/DC9 was favored by drug dealers. He disregarded these reports, he stated; not because he disbelieved them, but because Navegar had “no control” over criminal users of its guns. Solodovnick, indeed, celebrated government condemnations of the TEC-9/DC9 for its reported use in violent crime, rather than disputing or minimizing such reports, because he believed the gun’s association with criminal violence was good for sales. Navegar, understandably, has not argued to this court that criminal use of the TEC-9/ DC9 was unforeseeable.
Social Burden of Potential Liability
Turning to social utility, neither the record nor the briefs demonstrate that the manufacture and sale of the TEC-9/DC9 or similar weapons are activities of such value to society that Navegar and its fellow makers of assault weapons must be protected against the threat of liability for their negligent acts in designing, marketing and distributing such firearms. Here the potential for negligence liability does not, for example, threaten a wide range of socially vital industrial activities (see Parsons, supra, 15 Cal.4th at pp. 473-475), tend to prevent exercise of a constitutional right (see Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814 [59 Cal.Rptr.2d 756, 927 P.2d 1260]), or pose a risk of disrupting the government’s response to a public emergency (see Macias v. State of California (1995) 10 Cal.4th 844, 856-859 [42 Cal.Rptr.2d 592, 897 P.2d 530]). To the contrary, at stake is nothing more than a gunmaker’s ability to make and sell on the civilian market, unfettered by potential negligence liability, a type of firearm that Congress and our own Legislature have found highly dangerous to public safety and of relatively little value for recreation, hunting, and other [504]legitimate uses. Society, it seems clear, assigns a low utility to unrestricted distribution of the TEC-9/DC9.
The Supenski declaration and the deposition testimony of Navegar officers Garcia and Solodovnick lend independent support to the same conclusion. The only recreational use Garcia identified for the TEC-9/DC9 was “plinking,” i.e., informal target shooting, certainly a lawful activity but hardly a vital social function or one for which the TEC-9/DC9, with its high ammunition cost, is especially well suited. Neither armed resistance to law enforcement nor “play[ing] military,” other intended uses Garcia and Solodovnick identified for the TEC-9/DC9, are of recognized high social utility. The defense of self and home is an important social value and right (see, e.g., Cal. Const., art. I, § 1), but, as Supenski opined and Solodovnick agreed in part, the TEC-9/DC9 is not particularly well suited for that use, considering the caliber and type of ammunition it fires, its extraordinarily high capacity, and its inaccuracy (in Garcia’s words, the gun “has a tendency to sort of dance on you,” when fired with one hand). Recognizing potential negligence liability for the manufacture and distribution of assault pistols like the TEC-9/DC9 could not be expected to substantially interfere with Californians’ ability to protect themselves and their families against criminal violence.
Navegar contends such value judgments are not for the courts to make at all, but are purely a legislative matter. The Legislature, of course, has in some respects limited gunmakers’ liability in Civil Code section 1714.4, as I discuss hereafter. But at this stage of the analysis the question is only whether Navegar is immune from all potential negligence liability based on the manufacture and distribution of the TEC-9/DC9. In answering this question the court may—indeed, must—make a set of judgments about, inter alia, the “consequences to the community of imposing a duty to exercise care with resulting liability for breach.” (Rowland, supra, 69 Cal.2d at p. 113; see Moning v. Alfono (1977) 400 Mich. 425 [254 N.W.2d 759, 763] [reversing directed verdict for the manufacturer in negligent marketing action by a child injured through a playmate’s use of a slingshot: “The interest of children in ready-market access to slingshots is not so clearly entitled to absolute protection in comparison with the interest of persons who face the risk thereby created as to warrant the Court in declaring, as a rule of common law, that the risk will be deemed to be reasonable”].) To hold here on grounds of social utility that Navegar owed plaintiffs no duty would be to make the judgment that manufacture and sale of the TEC-9/DC9 and other assault pistols are of such value to society as to require total immunity from negligence liability. No basis appears for such a judgment.
The Legislature, moreover, has considered the social utility of the TEC-9/DC9 and like weapons in detail and has stated its view unequivocally in [505]the AWCA: “The Legislature has restricted the assault weapons specified in Section 12276 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings.” (Pen. Code, § 12275.5.) Though (he Legislature also recognized that many semiautomatic firearms, including some semiautomatic assault weapons, have legitimate uses (see In re Jorge M. (2000) 23 Cal.4th 866, 883-884 [98 Cal.Rptr.2d 466, 4 P.3d 297]), it believed the danger they posed greatly outweighed the social utility of their continued unrestricted sale and ownership. In Kasler v. Lockyer (2000) 23 Cal.4th 472, 481-491 [97 Cal.Rptr.2d 334, 2 P.3d 581], we held the legislative scheme, albeit perhaps imperfect, was a rational response to a pressing public safety problem.
That federal law in 1993 did not yet prohibit manufacture of the TEC-9/ DC9 does not reflect a national policy favoring or protecting assault pistols. A year after the killings here, Congress responded to this and other incidents with restrictions on manufacture and interstate sale of the TEC-9 and other semiautomatic assault weapons. (18 U.S.C. §§ 921(a)(30), 922(v)(1), added by Pub.L. No. 103-322 (Sept. 13, 1994) 108 Stat. 1796.) The reporting congressional committee noted that “[a] series of hearings over the last five years on the subject of semiautomatic assault weapons has demonstrated that they are a growing menace to our society . . . .” (H.R.Rep. No. 103-489, 2d Sess., p. 13 (1994).) During that time “evidence continue[d] to mount” that such firearms were favored by drug dealers, gangs, and other criminals (ibid.), and “[p]ublic concern about semiautomatic assault weapons has grown because of shootings in which large numbers of innocent people have been killed and wounded, and in which law enforcement officers have been murdered” (id. at p. 14). That Congress took several years to respond to the growing public safety problem posed by assault weapons does not suggest prior legislative approval of such weapons.
Connection Between Conduct and Injury
No Navegar agent, of course, participated with Ferri in the 101 California Street massacre. Indeed, Navegar, which generally sold only to wholesale distributors, did not directly provide Ferri with any weapons. Thus Navegar, stressing that Ferri, rather than itself, directly caused the deaths and injuries at 101 California Street, argues that “liability for third party criminal conduct generally may be imposed only where there exists a special relationship between the defendant and either the victim or the third party actor, a requirement which is indisputably not present here.”
We rejected a similar no-duty claim in Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40 [123 Cal.Rptr. 468, 539 P.2d 36] (Weirum). The [506]defendant radio station had, by a heavily advertised mobile giveaway contest, foreseeably incited a race along Los Angeles freeways. One of the drivers racing to the giveaway site negligently forced the car of the plaintiffs’ decedent off the road, causing a fatal accident. (Id. at pp. 43-45.) To the defendant’s contention, based on section 315 of the Restatement Second of Torts,3 that it owed the decedent no duty of care because of the lack of a special relationship, we answered that “this rule has no application if the plaintiff’s complaint, as here, is grounded upon an affirmative act of defendant which created an undue risk of harm.” (Weirum, supra, at p. 48.)
We continued: “The rule stated in section 315 [of the Restatement Second of Torts] is merely a refinement of the general principle embodied in section 314 that one is not obligated to act as a ‘good Samaritan.’ [Citations.] This doctrine is rooted in the common law distinction between action and inaction, or misfeasance and nonfeasance. Misfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. As section 315 illustrates, liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care discussed above. flO Here, there can be little doubt that we review an act of misfeasance to which section 315 is inapplicable. Liability is not predicated upon defendant’s failure to intervene for the benefit of decedent but rather upon its creation of an unreasonable risk of harm to him.” (Weirum, supra, 15 Cal.3d at p. 49, fn. omitted.)4
Here, as in Weirum, plaintiffs seek not imposition of a duty of rescue or prevention, but rather, application of the ordinary duty (Civ. Code, § 1714, [507]subd. (a)) to conduct one’s activities with reasonable care for the safety of others. Plaintiffs’ complaint is not that Navegar neglected to take actions that would have averted or alleviated a danger of attack from Ferri to which plaintiffs were already subject, but that Navegar’s acts in making and marketing the TEC-9/DC9 unreasonably increased plaintiffs’ risk of harm from such an attack.
Navegar responds that misfeasance and nonfeasance are concepts too “malleable,” too subject to semantic manipulation, to serve as guides to duty. Though not sharply distinguishable in every case (see Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 288 [80 Cal.Rptr.2d 196] [police conduct toward suicidal gunman could be characterized as overly confrontational action or as failure to act sensitively]), misfeasance and nonfeasance do mark a significant conceptual border. In any event, recognition of a distinction between action and inaction operates in favor of defendants’, without such a distinction, all cases would fall within the ordinary rule that each person is responsible for his “want of ordinary care or skill in the management of his property or person” (Civ. Code, § 1714, subd. (a)) regardless of the existence of a special relationship between the defendant and the actor or victim. (See Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 435, fn. 5 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166] [special relationship requirement “derives from the common law’s distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter”].) Where, as here, the defendant’s positive conduct of its business is claimed to have created or increased the risk of danger to the plaintiffs from attack by a third person, liability is not barred simply because the defendant had no special relationship with the third party actor or the victims.
Nor does the fact that Navegar’s conduct and plaintiffs’ injuries are linked only through Ferri’s criminal act (a fact that could go either to duty or to proximate cause) necessarily bar liability; California follows the general tort law (see Rest.2d Torts, § 302B) in permitting responsibility for a third party’s negligent, intentionally tortious, or even criminal acts to be traced back to the defendant whose negligent conduct foreseeably created the risk of such acts. (See, e.g., Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58 [192 Cal.Rptr. 857, 665 P.2d 947]; Richardson v. Ham (1955) 44 Cal.2d 772, 777 [285 P.2d 269].) Although this court has not previously been called upon to address the duty those who make or sell firearms owe to victims of gun violence, we have recognized on the part of those controlling other [508]particularly dangerous instruments a duty of due care toward persons foreseeably injured by their misuse.5 Decisions in many other jurisdictions, moreover, have recognized that defendant gun dealers, even absent any special relationship, may owe a duty not to create or increase the risk of danger from a third person’s foreseeable negligent or criminal use of a firearm furnished or made available by the defendant.6 As these cases illustrate, providers of guns may, under some circumstances, be held accountable for the foreseeable third party misuse of the weapon. Navegar’s contention that its lack of a special relationship with Ferri, who misused defendant’s gun for criminal purposes, eliminates all duty of care toward plaintiffs must be rejected.
Degree of Moral Blameworthiness
The primary moral responsibility for plaintiffs’ injuries undoubtedly rests with the assailant, Ferri. At the same time, one may note that whereas Ferri [509]apparently acted in the emotional grip of an irrational obsession, Navegar’s president and marketing director apparently acted in the rational calculation of profit and market share. These corporate officers distributed in the general civilian market a menacing-looking handgun notable chiefly for its high firepower and relatively low price. Aware of the gun’s disproportionate use by and popular association with violent criminals, they made no attempt to limit distribution or redirect marketing, instead celebrating the increased sales that came with notoriety. Great as it is, Ferri’s blameworthiness does not completely eclipse Navegar’s.
Policy of Preventing Future Harm
Navegar argues that because it no longer makes (or, under the 1994 federal law, legally may make) the TEC-9/DC9, recognizing potential liability for harms inflicted by that gun “advances no legitimate policy concerns that are not already addressed by federal and state legislation,” rendering Rowland's “future harm” factor moot. (See Rowland, supra, 69 Cal.2d at p. 113.)
I disagree. Despite legislation restricting certain firearms, tort law may yet play a role in lessening gun violence. Whatever practical effect the California and federal laws restricting semiautomatic assault weapons may have, the gun industry will presumably continue to pursue innovation in search of new buyers and more sales. (While Navegar no longer makes or sells the TEC-9/DC9, it now makes and sells a similar nine-millimeter semiautomatic pistol called the AB (for “After Ban”)-10, which accepts, and was initially sold by Navegar with, the pre-ban 32-round magazines.)
Because firearms are very durable and markets for traditional hunting guns have been stable or declining in recent years, “innovation . . . has become central to virtually everything the industry has done over the last two decades.” (Diaz, Making a Killing; The Business of Guns in America, supra, at p. 93.) The search for innovative approaches to designing and selling firearms, according to Diaz, “could have taken any number of paths. The industry might, for example, have chosen to develop safer firearms— e.g., guns with passive safety devices such as childresistant locks and load indicators to show when they are loaded . . . . [¶] But gun industry executives deliberately chose to take exactly the opposite direction. . . . steadily increasing] the lethality of guns and ammunition. They have made guns to hold more rounds, increased the power of those rounds, and made guns smaller and more concealable.” (Id. at pp. 95-96.) While one cannot predict what precise effect recent legislation and the continuing cultural reaction to gun violence will have on these trends, there is no reason to assume that [510]applying traditional principles of negligence to gunmakers and sellers would not have the salutary effect of encouraging safer design and marketing decisions in the future.
Conclusion as to Existence of Duty
After consideration of the factors this court has previously held pertinent to the duty analysis, I would conclude that persons making and distributing semiautomatic assault weapons do owe the public, and hence those injured by the guns they supply, a duty of care in the conduct of their design, distribution and marketing activities. Considering, especially, the foreseeability of injury and the lack of significant social burden posed by potential liability, the circumstances simply do not call for a complete exemption from Civil Code section 1714’s fundamental command that everyone be responsible for lack of care in the management of his or her property.7
As one writer explains, “Disposing of negligence suits against gun manufacturers . . . through the ipse dixit that manufacturers owe no duty to gun victims is equivalent to saying to gun manufacturers: it is irrelevant how you conducted your deadly business. It is irrelevant whether you acted recklessly or by design to increase the risk of death and grievous bodily injury posed by your products. It is irrelevant whether reasonable, feasible means existed by which you could have substantially reduced this risk. No other product manufacturer gets the luxury of complete immunity from legal responsibility.” (McClurg, The Tortious Marketing of Handguns: Strict Liability Is Dead, Long Live Negligence (1995) 19 Seton Hall Legis. J. 777, 819 (The Tortious Marketing of Handguns).)
II. Scope of Duty
That Navegar owed the public a duty of care does not necessarily imply the scope of that duty is broad enough to encompass Navegar’s allegedly [511]negligent conduct. In some instances this court has recognized the existence of a duty of care running from the defendant to the plaintiff, but limited its scope for reasons of constitutional or statutory policy.8 In the case at bench, therefore, the first question is whether recognizing a duty of care in the marketing of a firearm the sale of which, at the time, was not barred by statute or regulation, would infringe a legislative prerogative. Second, consideration must be given to whether, in light of the legislative policy embodied in Civil Code section 1714.4, gunmakers’ duty of care must be limited in a manner that precludes plaintiffs’ claims of negligence.
In this part of the analysis, the focus is on plaintiffs’ claim that Navegar acted negligently in distributing the TEC-9/DC9 broadly in the civilian market rather than limiting sales to buyers at low risk for criminal misuse, such as police and military purchasers. In their complaint, plaintiffs alleged Navegar breached its duty of care by “making [the TEC-9/DC9] available for sale to the general public.” (Italics added.) In their opposition to the summary judgment motion in the trial court, plaintiffs likewise asserted Navegar “breached its duty to plaintiffs not to make a weapon of mass destruction available to the general public,” and that the company’s negligent conduct was in “sell[ing] the TEC-9 to the general public.” (Italics added.) Again, in the Court of Appeal, plaintiffs described Navegar’s negligent conduct as “selling to the general public a military-style assault pistol.” (Italics added.) They went on to explain that “if Navegar had restricted sales of the TEC-9 to the military and the police ... no tortuous conduct would be alleged.” (Italics added.) In their briefing before us, plaintiffs have continued to locate negligence in Navegar’s having “widely distributed a weapon uniquely suited for mass killing.” (Italics added.) At oral argument, plaintiffs’ attorney explained that Navegar should have restricted sales of the TEC-9/DC9 to the police, military, and possibly firing ranges.
Defendant contends, first, that to recognize plaintiffs’ theory of negligence as legally viable would be to institute a “ban” on the TEC-9/DC9, a measure it argues is exclusively for Congress or the California Legislature. I disagree. Even a jury’s finding in a product defect action that a particular product is defective because the risks of injury arising from the design outweigh the design’s benefits (Campbell v. General Motors Corp. (1982) 32 [512]Cal.3d 112, 118-120 [184 Cal.Rptr. 891, 649 P.2d 224, 35 A.L.R.4th 1036]; Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 430 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1]) does not “ban” the product. While bearing strict liability for injuries arising from such a product, the defendant in such a case may legally continue to produce and distribute it. And even when such decisions will, in the long run, effectively drive a product from the market, California courts and juries are empowered to make them. Why, then, would a California jury not be permitted to determine whether, irrespective of product defect, a manufacturer’s decision to sell the product to the general public, rather than restrict sales to a subgroup of specialized users, was imprudent? Such a claim, of course, is more difficult for plaintiffs to prove than one of product defect; plaintiffs must show the manufacturer knew or should have known the risks of injury created by its conduct and that a reasonably careful person would have taken measures to limit or end such distribution. (See Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 383-387 [93 Cal.Rptr. 769, 482 P.2d 681, 52 A.L.R.3d 92] [though negligence liability requires proof of an element (negligence) in addition to defect and causation, plaintiff is entitled to instruction on negligence, as well as on strict liability for a defective product, when evidence supports both forms of liability].)
Courts in several jurisdictions have, in declining to recognize various theories of negligence against gunmakers, stated that the claims would require the judiciary to decide, in effect, what firearms may or may not be sold, a task seen as legislative by nature and tradition. As a New York court put it, “While there have been and will be countless debates over the issue of whether the risks of firearms outweigh their benefits, it is for [the] Legislature to decide whether manufacture, sale and possession of firearms is legal.” (Forni v. Ferguson (1996) 232 A.D.2d 176 [648 N.Y.S.2d 73].)9 To the extent these decisions confuse negligent marketing claims with proposals to judicially ban a product, they are unpersuasive for the reasons just discussed. To the extent they rely, implicitly, on notions of legislative preemption, they are inapplicable as well. Defendant has not asserted, nor has my research disclosed any evidence for, the claim that either Congress or [513]the California Legislature intended, in their regulation of firearms manufacture, to preclude imposition of common law negligence liability for a manufacturer’s imprudent decision to sell a particular model of firearm to civilians rather than only to military or police buyers. (See New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. (1995) 514 U.S. 645, 654 [115 S.Ct. 1671, 1676, 131 L.Ed.2d 695] [federal preemption is question of Congress’s manifest intent; analysis starts with presumption against preemption].)
Plaintiffs’ theory of negligence in the choice of distribution channels is neither unprecedented nor affected by the lack of a statutory prohibition on the distribution at issue. In Moning v. Alfono, supra, 254 N.W.2d 759, for example, the Michigan Supreme Court ordered a trial on a claim that the manufacturer and distributor of a slingshot were negligent in marketing it directly to children, though no statute prohibited such marketing. (Id. at pp. 763-764, 770-779.)10 “Not surprisingly, courts have routinely recognized the duties of reasonable care that accompany the distribution of other dangerous, but perfectly legal, products.” (Hamilton, supra, 222 F.3d at p. 44.) Indeed, the duty to exercise reasonable care in one’s manner of distributing and marketing a product has been recognized in its application to the distribution of firearms, including the TEC-9/DC9 itself. (See Bubalo v. Navegar, Inc. (N.D.Ill., June 13, 1997, No. 96 C 3664) 1997 WL 337218, [7] [recognizing, under Illinois law, a limited duty of care in manner of marketing the TEC-DC9].)11
Second, the possible effect of section 1714.4 of the Civil Code (hereafter section 1714.4) must be considered. In that statute, our Legislature set a [514]definite public policy against imposing liability on makers of guns and ammunition pursuant to the risk-benefit theory of product defect. The question is whether this statutory policy encompasses plaintiffs’ claim of negligent marketing. Contrary to the majority opinion, the answer is that it does not.
Section 1714.4 provides: “(a) In a products liability action, no firearm or ammunition shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged. [^] (b) For purposes of this section: fl[] (1) The potential of a firearm or ammunition to cause serious injury, damage, or death when discharged does not make the product defective in design. ft[] (2) Injuries or damages resulting from the discharge of a firearm or ammunition are not proximately caused by its potential to cause serious injury, damage, or death, but are proximately caused by the actual discharge of the product. [^] (c) This section shall not affect a products liability cause of action based upon the improper selection of design alternatives. [^] (d) This section is declaratory of existing law.”
On its face, as plaintiffs point out, section 1714.4 “has no application to this case,” because plaintiffs do not claim liability for manufacture of a defective product. Section 1714.4, in general, does not affect a cause of action against a gunmaker or seller alleging negligent conduct. For example, the statute would clearly have no application where a retailer allegedly sold «.a gun negligently to a mentally ill or intoxicated buyer (see fn. 6, ante, citing such cases). Similarly, plaintiffs’ claim that Navegar was negligent in distributing the gun widely through civilian channels—but would not have been negligent in selling the gun to low risk groups such as police and military buyers—appears readily distinguishable from the product defect actions that were the target of section 1714.4. A gun might be completely nondefective, and might even be particularly useful to a specialized group of legitimate users, although distribution of the same gun through unrestricted civilian commerce might be negligent because of the foreseeably high risk that a significant number in the general market will purchase the gun for violent use. (See City and County of San Francisco v. Philip Morris, Inc. (N.D.Cal. 1997) 957 F.Supp. 1130, 1140 [version of Civ. Code, § 1714.45 then in force, which barred product liability actions against manufacturers of tobacco products, did not apply to action alleging fraudulent marketing].)
An analogy may help convey the distinction. A Formula One racing car is not defective by virtue of its extraordinary maximum speed, high power-to-weight ratio, or gearing adapted to rapid acceleration. These are some of the characteristics that make it particularly suitable for a specialized group of [515]users. Yet a manufacturer’s decision to sell such racing cars to the general public through automobile dealerships everywhere, without imposing any special limitation on purchasers, might be deemed negligent because the use of such cars by untrained drivers on public roads would pose a foreseeably high risk of accidental injury.
Similarly, the evidence presented on summary judgment in this case tended to show that the TEC-9ZDC9 is designed to engage multiple targets at close range during rapid, sustained fire, making it, to quote Chief Supenski, well suited to combat with “multiple adversaries in close quarters.” Military and some police users (e.g., SWAT units) have a legitimate need for weapons with this capacity for assaultive violence. The civilian public does not. The evidence also tends to show that a significant segment of the gun-buying public purchased TEC-9/DC9’s for violent misuse and that Navegar executives knew or should have known that sales to the general public created a significant risk of violent misuse.
In claiming Navegar breached its duty of care by selling the TEC-9/DC-9 to the general public, as opposed to the smaller group of low-risk buyers for whom it may be well suited, plaintiffs are not claiming the gun is defective, that it should not have been made or sold at all, or, in the terms of section 1714.4, that the “benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged” (§ 1714.4, subd. (a)). Though plaintiffs’ claim does require a weighing of risks and benefits, the risks and benefits involved are not those of the product as such, but those created by defendant’s choice of distribution channels.
The legislative history of Assembly Bill No. 75 (1983-1984 Reg. Sess.) (hereafter Assembly Bill No. 75), by which the Legislature enacted section 1714.4 in 1983, confirms that, in the version finally enacted, it was not intended to preclude claims that a gunmaker’s strategic marketing choices were negligent.
Assembly Bill No. 75 originated as a legislative response to the filing of several lawsuits seeking to hold the manufacturers of certain guns, mainly inexpensive handguns (“Saturday Night Specials”), liable for injuries caused by the use of these guns in violent crimes on the ground that the guns were defective products. The plaintiffs in these cases were said to argue that the firearms were defective “because the danger posed by such items far outweighs any social benefits.” (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 75, as amended May 11, 1983, p. 1.)
As passed by the Assembly, the bill was not limited to product defect claims. The Assembly-approved version provided, much more broadly, as [516]follows: “Except where there is a manufacturing or design defect which causes a firearm or ammunition to malfunction or where the furnishing of a firearm or ammunition is prohibited by statute, no person, organization, or public or business entity of any kind may be held legally accountable for damages of any type, whether to persons, property, or for the death of any person, suffered as the result of the furnishing, with or without consideration, of a firearm or ammunition.”
The Assembly-approved bill would clearly have precluded plaintiffs’ claims of negligence here, as well as many other claims of negligence in the furnishing of a firearm (although an exception for negligent “entrustment” had been added by amendment in the Assembly). But the Assembly language was eliminated in the Senate on August 24, 1983, and replaced with the very different language that now appears in section 1714.4. Thus, the Senate eliminated the bill’s broad grant of immunity for liability arising from “the furnishing of firearms,” together with its narrow exception for claims of defect causing “malfunction,” and replaced them with a threshold limitation of the bill’s application to “a products liability action,” as well as with more specific references to the risk-benefit theory of design defect outlined in Barker v. Lull Engineering, Co., supra, 20 Cal.3d 413.
Thus, an apparent purpose of the Senate amendments, which survived conference and were enacted into law, was to preserve possible actions based on negligent “furnishing” of firearms. Committee reports confirm this purpose. (See Sen. Com. on Judiciary, Rep. on Assem. Bill No. 75, as amended May 25, 1983, pp. 3-4; Assem. Com. on Judiciary, Conf. Rep. on Assem. Bill No. 75, Sept. 15, 1983, pp. 1-2.) The legislative history, therefore, confirms what the language of section 1714.4 itself states, that the statute’s subject matter was solely liability for defective products; the statute was not intended to affect liability for negligence in the manner and means by which firearms are distributed and marketed.
Isolating plaintiffs’ assertions that Navegar was negligent in its manufacture or design of the TEC-9ZDC9, the majority attempts to paint plaintiffs’ entire negligence claim as one of product defect. But plaintiffs have consistently asserted, as well, that Navegar acted negligently in distributing the TEC-9/DC9 to the civilian public. In their complaint, for example, plaintiffs alleged Navegar “acted negligently by manufacturing, marketing, and making available to the general public” the TEC-9/DC9. Similarly, in their briefing, plaintiffs assert Navegar “negligently designed, distributed, and marketed!’ the weapon. Even assuming section 1714.4 bars claims of negligent design, the statute clearly has no application to plaintiffs’ negligent distribution and marketing claims.
[517]Nor is the majority correct that unless plaintiffs’ claim of negligent marketing is deemed to be within the scope of section 1714.4, that statute will be too easily evaded by artful pleading. Plaintiffs have not merely pleaded that Navegar was negligent in marketing the TEC-9/DC9 “to the general public”; plaintiffs have identified both a nonnegligent market for the firearm and aspects of the TEC-9/DC9 and of Navegar’s actual marketing that a jury reasonably could find made the company’s decision not to restrict distribution to that market careless. They have not simply avoided the use of the term “defect”; rather, they have articulated, and presented sufficient evidence to support, a theory of negligence that rests in no respect upon a claim of defect. Section 1714.4 would not be rendered useless by the reading I urge, as it would remain applicable to the claims of product defect the Legislature intended to bar.
I conclude, therefore, that neither proper deference to legislative authority nor the legislative policy embodied in section 1714.4 precludes recognition of Navegar’s ordinary duty of due care in its choice of marketing strategies.
III. Cause in Fact
Focusing still on plaintiffs’ theory of negligence in the manner in which Navegar marketed the TEC-9/DC9, it must be asked, finally, whether plaintiffs put forward sufficient evidence to present a triable issue on causation. More specifically, is there substantial evidence that Navegar’s assertedly negligent conduct in distributing the TEC-9/DC9 to the general public was a substantial factor contributing to plaintiffs’ injuries? I believe the answer is yes.
First, since Gian Luigi Ferri did not have any known means of purchasing weapons restricted to police and military buyers, he would probably not have been able to purchase TEC-9/DC9’s had Navegar so restricted their sale. A reasonable juror, certainly, could so infer. Second, plaintiffs have put forward substantial evidence, creating a triable issue, that Ferri’s use of two TEC-9/DC9’s in the attack contributed as a substantial factor to plaintiffs’ personal injuries, at least in the sense of increasing the deaths and injuries Ferri inflicted beyond what he would likely have inflicted under the same circumstances and in the same time period with a conventional handgun.12 The declarations and testimony of Chief Supenski and Inspectors Hendrix and Sanders created at the least a triable issue as to whether the concealability, firepower, designed suitability for hipfire, and other features of the [518]TEC-9/DC9 allowed Ferri to kill and injure more victims than would have been possible without those features. Evidence was presented also that the TEC-9/DC9 was significantly less expensive than similar weapons of other makes, from which a jury could reasonably infer Ferri was thereby enabled to purchase two concealable assault weapons instead of one, further increasing his firepower. The record evidence thus presents a triable issue of fact as to whether Navegar’s allegedly negligent decision to sell the TEC-9/DC9 on the open civilian market, rather than restrict its purchase to firing ranges and police and military users, was a substantial factor in causing plaintiffs’ injuries.
Navegar’s duty of care being established by law, and evidence of causation being sufficient, I conclude the trial court erred in granting summary judgment for Navegar on plaintiffs’ cause of action for common law negligence. I would, therefore, affirm the judgment of the Court of Appeal.
The majority’s contrary decision has one virtue: it rests entirely upon application of section 1714.4. If, as I have argued, the majority misapprehends the scope and intent of that statute, the Legislature may remedy the mistake by amending or repealing section 1714.4. But until such action is taken, gunmakers, including makers of assault weapons banned in California, will apparently enjoy absolute immunity from the consequences of their negligent marketing decisions.
Both federal and California law define semiautomatic assault weapons by features and by make and model. The TEC-9 and TEC-DC9 are both specifically identified as “semiautomatic assault weapons” under federal law. (18 U.S.C. § 921(a)(30)(A)(viii).) California law also lists the TEC-9 as an assault weapon by name. (Pen. Code, § 12276, subd. (b)(4).)
The company’s reasons for renaming the gun are disputed: Carlos Garcia, the company’s owner and former president, testified at his deposition that “DC” stood for “Defensive Carry,” referring to the intended relocation of the sling catch. However, Navegar’s former national sales and marketing director, Michael Solodovnick, testified that the name change was unrelated to any design change. Garcia told him “DC” referred instead to the District of Columbia, which had passed a law imposing strict liability on manufacturers of specified assault weapons, including the TEC-9; the name change was an attempt to avoid prohibitions or liability under such laws. James Hodges, Jr., Solodovnick’s successor, confirmed Solodovnick’s explanation of the name change.
The cited section provides: “There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless [H] (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or [ID (b) a special relation exists between the actor and the other which gives to the other a right to protection.” (Rest.2d Torts, § 315.)
Accord, Coulter v. Superior Court (1978) 21 Cal.3d 144, 148, 155-156 [145 Cal.Rptr. 534, 577 P.2d 669], abrogated by Civil Code section 1714, subdivisions (b) and (c) (special relationship required only as to cause of action alleging host “permitted” person to drink before driving, not as to cause of action alleging host “furnished” person with alcoholic beverages); Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 209-210 [169 Cal.Rptr. 282] (special relationship not required where defendant allegedly not only failed to prevent her husband from molesting visiting children, but encouraged and invited the children to visit under circumstances making the molestation foreseeable). See also City of Boston v. Smith & Wesson Corp. (Mass.Super.Ct. 2000) 12 Mass.L.Rptr. 225 [2000 WL 1473568, [15]] (in city’s action to recover public costs of gun violence in the city, court rejected defendants’ contention that they bore no duty to protect against third parties’ criminal conduct: “Here, too, Defendants misconstrue the complaint. Plaintiffs do not allege that Defendants were negligent for failure to protect from harm but that Defendants engaged in conduct the foreseeable result of which was to cause harm to Plaintiffs”).
See Richardson v. Ham, supra, 44 Cal.2d at pages 775-777 (defendants left 26-ton bulldozer unlocked and unattended on top of mesa, where mischief-makers foreseeably started it and were unable to control it, causing property damage and personal injuries to those in its path); Hergenrether v. East (1964) 61 Cal.2d 440, 445 [39 Cal.Rptr. 4, 393 P.2d 164] (defendants left large truck unlocked, with key in ignition, in skid row area of city; truck thief, unable to control vehicle, collided with plaintiffs’ vehicle on highway); Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 184-186 [203 Cal.Rptr. 626, 681 P.2d 893] (large commercial truck left unlocked, with keys in it, in unsecured lot in high-crime area); Ballard v. Uribe, supra, 41 Cal.3d at pages 573-574 (defendant left aerial basket lift at construction sight in dangerous condition and with keys in ignition; duty of care owed to employee of another contractor injured while using it).
See, e.g., Knight v. Wal-Mart Stores, Inc. (S.D.Ga. 1995) 889 F.Supp. 1532, 1539 (firearm dealer has a duty of care, running to the public, to avoid selling a gun to a “mentally defective person,” where such sale “could easily result in irresponsible use of the firearm and thus injury to the buyer or third parties”); Cullum & Boren-McCain Mall v. Peacock (1980) 267 Ark. 479 [592 S.W.2d 442, 444] (evidence that gun buyer acted strangely and said he wanted a gun “that would make a big hole” supported finding of negligence on part of seller); Phillips as Tutrix of Phillips v. Roy (La.Ct.App. 1983) 431 So.2d 849, 852 (recognizing duty to “refrain from selling a weapon to an individual manifesting signs of instability”); City of Boston v. Smith & Wesson Corp., supra, 2000 WL 1473568, [15] (defendant gunmakers’ alleged conduct in creating an illegal secondary firearms market violated duty of care to avoid putting public at unreasonable risk of harm from foreseeable criminal misuse of firearms); Howard Bros, of Phenix City, Inc. v. Penley (Miss. 1986) 492 So.2d 965, 968 (“In this state, in this day and age we are simply not going to assert that there is no common law duty, aside from statute, for a dealer in firearms to have in effect . . . some safety precautions and procedures” to prevent sales to dangerous persons); Peek v. Oshman’s Sporting Goods, Inc. (Tex.App. 1989) 768 S.W.2d 841, 847 (recognizing duty of ordinary care not to sell gun to person whose behavior “put[s] the seller on notice that the purchaser, if possessed of a firearm, would for[e]seeably pose a danger to third persons”); Bernethy v. Walt Failor’s, Inc. (1982) 97 Wash.2d 929 [653 P.2d 280, 283] (recognizing duty not to furnish gun to intoxicated person). See contra, City of Cincinnati v. Beretta U.S.A. Corp. (Ohio Ct.App. 2000) 2000 WL 1133078, [5], appeal allowed, 740 N.E.2d 1111 (lead opinion finds municipal suit against gunmakers barred because “no special relationship” existed between defendants and perpetrators of gun violence).
Recently, in Hamilton v. Beretta U.S.A. Corp. (2001) 96 N.Y.2d 222 [727 N.Y.S.2d 7, 750 N.E.2d 1055, 2001 WL 429247] (Hamilton), the New York "Court of Appeals answered in the negative the duty question certified to it by the federal court in Hamilton v. Beretta U.S.A. Corp. (2d Cir. 2000) 222 F.3d 36. The New York court, however, expressly distinguished the present California case as involving a “different factual context[] and different theories of negligent marketing not relevant here.” (Hamilton, supra, 2001 WL 429247, at p. [7], fn. 6.) We agree that the two cases are distinguishable. Because the allegations in Hamilton involved gun manufacturers’ failure to control retailers, the New York court relied in large part on the general lack of a duty “ ‘to control the conduct of third persons so as to prevent them from harming others’ ” (id. at p. [3]), a principle that, as already discussed, has little or no application in our case, where negligence is claimed to lie in defendant’s affirmative misfeasance. In addition, the only questions certified to the New York Court of Appeals were the existence of duty and the viability of market-share liability apportionment (Hamilton, supra, 2001 WL 429247, at p.[2]), leading the New York court to fold into its duty analysis considerations more accurately addressed as deficiencies in the plaintiffs’ proof of causation. In contrast, I address the causation issue, below, separately from the question of duty.
See, e.g., Kentucky Fried Chicken of Cal., Inc. v. Superior Court, supra, 14 Cal.4th at pages 823, 829 (commercial proprietor’s duty of care toward patrons does not include duty to comply with a robber’s demand for money; such a duty would be inconsistent with constitutional and statutory policy protecting right to defend property); Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546-555 [25 Cal.Rptr.2d 97, 863 P.2d 167, 27 A.L.R.5th 899] (duty of pharmaceutical maker to warn of product’s dangers does not include duty to include label warnings in languages other than English, where state and federal law require only English-language labels).
See also, e.g., City of Philadelphia v. Beretta U.S.A. Corp. (E.D.Pa. 2000) 126 F.Supp.2d 882, 899-900 (manufacturers did not owe duty to public to police retail sales practices of licensed firearms dealers; such sales were already heavily regulated under federal and state law, and “public policy would seem to be opposed” to additional judicially created rules); Linton v. Smith & Wesson etc. (1984) 127 Ill.App.3d 676 [82 Ill.Dec. 805, 469 N.E.2d 339, 340] (“No Illinois decision has imposed a duty upon the manufacturer of a non-defective firearm to control the distribution of that product to the general public; such regulation having been undertaken by Congress, the Illinois General Assembly and several local legislative bodies”); Forni v. Ferguson, supra, 648 N.Y.S.2d at page 74 (manufacturer owes no duty “to refrain from the lawful distribution of a non-defective product”).
See also Hunnings v. Texaco, Inc. (11th Cir. 1994) 29 F.3d 1480, 1484-1487 (negligence for manufacturers and bulk shippers of poisonous mineral spirits to distribute and package in such a way as to allow foreseeable and dangerous repackaging in used milk containers by retailers); Suchomajcz v. Hummel Chemical Company (3d Cir. 1975) 524 F.2d 19, 24-25 (manufacturer and seller of chemicals used by purchaser to make illegal fireworks kits breached duty of due care in selling to a buyer that manufacturers knew or should have known would put the product to a dangerous use). For a negligent marketing claim more dependent on promotional activity, see Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 64-67 [107 Cal.Rptr. 45, 507 P.2d 653, 94 A.L.R.3d 1059] (pharmaceutical maker overpromoted its prescription drug through advertising and sales visits to physicians).
See also Lytton, Halberstam v. Daniel and the Uncertain Future of Negligent Marketing Claims Against Firearms Manufacturers (1998) 64 Brook. L.Rev. 681, 686-689 (federal district court, applying New York law, allowed suit against gunmaker to go to jury on allegations manufacturer negligently marketed pistol to customers especially likely to engage in criminal misuse of the weapon); McClurg, The Tortious Marketing of Handguns, supra, 19 Seton Hall Legis. J. at pages 809-814 (describing alleged incidents and patterns of negligent marketing of firearms, including alleged promotion of guns for criminal use and failure to institute “safe sales” programs designed to prevent retail sales to criminals and the mentally ill).
See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969 [67 Cal.Rptr.2d 16, 941 P.2d 1203] (conduct is a substantial factor in causing injury if it contributes more than nominally or theoretically to the injury; substantiality does not refer to the amount or proportion of the harm caused by the defendant’s conduct, an issue addressed, instead, through comparative negligence principles).