On Sunday, July 22, 2018, a man with a stolen handgun walked along Toronto’s Danforth Avenue shooting random strangers. The murderer shot and killed 18-year-old Reese Fallon, 10-year-old Julianna Kosis, and injured 13 other individuals.
Samantha Price is one of those injured on that tragic night.
On December 16, 2019, Samantha Price, Skye McLeod, Kenneth Price, Claire Smith, Patrick McLeod, and Jane McLeod filed a class-action lawsuit against Smith & Wesson.[i]
“The foundation of her case is that Smith & Wesson, as the manufacturer of an article intended for use as a weapon, owed a duty to her as person who could be harmed by that weapon to take care that the weapon had authorized user technology, that it neglected such duty and is consequently liable for the damage caused by such neglect.”[ii]
“Authorized User Technology” aka the so-called smart gun technology, Ms. Price claimed, would have prevented the man who shot her from firing the handgun. Because this technology was not used in the Smith & Wesson M&P®40, her case is based on the idea that the company’s design of the handgun was negligent.
Setting aside the argument whether this technology is functional or effective, the handgun in question is manufactured for the military and police markets.
The “reasonableness” of the M&P®40’s design depends on the needs of its intended users—in this case, members of the military and police trained in the use of handguns.
While the M&P®40 can be and is purchased by civilians, they are not its intended users.
“While the plaintiffs’ negligent design claim survived pleadings scrutiny, Justice Perell found that the plaintiffs’ evidence in support of that claim did not meet the ‘some basis in fact’ standard applied at the certification stage.”[iii]
“[T]he Plaintiffs do not satisfy the Common Issues Criterion and the Preferable Procedure Criterion. Accordingly, with two unsatisfied certification criteria, I must dismiss the Certification Motion.”[iv]
From Bennett Jones LLP’s critique of this decision:[v]
“This decision[vi] sets clear and specific guidelines for the evidence that courts will expect from plaintiffs before certifying a negligent design claim. It also shows that any ‘information deficit’ of plaintiffs relative to defendants about design decisions and other details—often highlighted by plaintiffs in products liability cases—does not relieve plaintiffs of the onus of proving some basis in fact for their design negligence claims, including through expert evidence.
“This decision also reinforces the now well-established principle that proving some basis in fact for common issues requires not only some basis in fact that the proposed issues can be answered in common across the class, but also some basis in fact that the proposed common issues actually exist.
Justice Perell rightfully held that a “design negligence case ultimately requires evidence from an expert in design”.
“However, the plaintiffs led no evidence that a prototype of their proposed safer design had ever been tested. Indeed, the record before the court contained no evidence about the testing of any form of authorized user technology.”
“The Plaintiffs offered polemic but not proof of the Common Issues Criterion and the Preferable Procedure Criterion.”
“The Plaintiffs [may] have a public policy argument that all handguns should have authorized user technology as a product standard,” Justice Perrel wrote, ‘but a public policy argument is not the same thing as a design negligence cause of action against a handgun manufacturer who made design decisions to not incorporate authorized user technology in a handgun that it was manufacturing as a military and police weapon.”
Justice Perrell noted that Smith & Wesson did not offer expert evidence on handgun design, a “remarkable feature” of their defense, “but this aspect of the case does not alter the circumstance that the Plaintiffs did not satisfy the very low standard of establishing some basis in fact for the Common Issues Criterion and for satisfying the Preferable Procedure Criterion.”
When a criminal uses a gun to commit their atrocities, there is an urge to treat firearms manufacturers differently than anyone else.
We, as a society, do not sue knife manufacturers when a stolen knife is used to harm or kill someone. Nor do we sue vehicle manufacturers when a criminal steals a car and uses it to kill someone.
With this decision, Justice Perrell ensured a level playing field for all manufacturers, regardless of the products they create.
CSSA encourages you to read the entire decision, as it explains the class action process thoroughly, what constitutes negligent design, the factual background of the Danforth shooting, handgun use and regulation, and handgun misuse in Canada.
[i] https://globalnews.ca/news/7638417/danforth-shooting-class-action-suit/
[ii] https://canlii.ca/t/jd65c
[iii] https://www.lexology.com/library/detail.aspx?g=588e43c7-707f-4bbe-9ed2-5e51ae4b7f3d
[iv] https://canlii.ca/t/k51tk
[v] https://www.lexology.com/library/detail.aspx?g=588e43c7-707f-4bbe-9ed2-5e51ae4b7f3d
[vi] https://www.canlii.org/en/on/onsc/doc/2024/2024onsc1368/2024onsc1368.html
