Stray Guns and Stray Animals–Strict Liability

No-Fault Insurance is quite similar to the legal doctrine of strict liability.  When strict liability applies it is not necessary for the injured person to prove negligence or fault to hold a person responsible for damage from a certain cause.  It is often applied in Product Liability cases where it usually holds if the injured person can prove the product is defective, the product proximately caused the injury and the product was unreasonably dangerous.  After years of attempts to apply this to gun manufacturers where it generally did not apply because product was not found to be defective, Congress passed a law (Public Law 109-92), which among other things forbids suits against manufacturers even if the product is found to be defective and the injury is the result of a criminal act of a third party.   This law allows suits for negligent entrustment meaning “the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.”

The insurance system supported by this blog envisions a no-fault type of insurance, where responsibility is retained by each insurer until it is passed on by acceptance of responsibility by a subsequent insurer.  In the case of lost, stolen or diverted weapons, the insurer would be covering a weapon which is supplied, by the improper transfer, to a person who should be defined in the legislation and likely to use the product with unreasonable risk.

A most interesting aspect of the doctrine of strict liability as it could be applied to guns is the parallel to strict liability for stray animals.  Wild animals and domestic animals known to have dangerous propensities are objects that usually are handled with strict liability.  While if the courts have not been finding that “stray guns” should be treated like “stray animals,” the similarities suggest that such a parallel would be reasonable for the purposes of requiring insurance.

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