Following the tragic shooting on Danforth Avenue in Toronto in 2018, two people injured in the shooting, along with family members, began a class action claim against the manufacturer of the gun used in the shooting.

Among other damages, the plaintiffs are seeking $50 million in aggregate general damages and $100 million in aggregate punitive damages.

Danforth Shooting Leads to Class Action

The incident giving rise to the class action occurred on Sunday July 22, 2018 when a shooter walked along Danforth Avenue in Toronto, Ontario and randomly shot and killed two persons (aged 10 and 18), shot and injured 13 others, and caused injuries to dozens of people as they fled the active-shooter scene. The shooting ended when, after exchanging gunfire with police officers, the shooter used the gun to kill himself.

The shooter used a stolen gun. Specifically, he used an M&P®40 handgun, which did not utilize “authorized user” or “smart gun” technology.

The plaintiffs filed an action against Smith & Wesson Corp., the manufacturer of the M&P®40 semi-automatic handgun, claiming:

(a) negligent design, manufacturer, and/or distribution;

(b) public nuisance; and

(c) strict liability.

The plaintiffs were comprised of six people, including two of those injured in the shooting and members of the family of one of the victim. One of the injured plaintiffs, who was 18 years’ old at the time of the shooting, was the named plaintiff in the proposed class action against Smith & Wesson.

The plaintiffs sought to be representative plaintiffs for the following three classes:

  • Class 1: Persons Shot and Injured or Killed: All persons (or their estates), except the shooter, who were shot and injured or killed on or near Danforth Avenue in Toronto on 22 July 2018 by a Smith & Wesson M&P40 handgun.
  • Class 2: Other Injured Persons: All persons who do not fall within Class 1, except the shooter, who were injured on or near Danforth Avenue in Toronto on 22 July 2018 as a result of the use of a Smith & Wesson M&P40 handgun.
  • Class 3: Family Members: Family members of all persons in Classes 1 and 2.

Smith & Wesson submitted that it had no civil liability for the shooting, and it moved to have the plaintiffs’ action dismissed pursuant to Rule 21 of the Rules of Civil Procedure.

The plaintiffs resisted the motion to dismiss and submitted that they had met the test for pleading a reasonable cause of action, which, in turn, meant that they also had satisfied the first criterion for certification of their action as a class proceeding.

Parties’ Arguments

In support of their claim for negligence, the plaintiffs’ statement of claim set out, in part:

“Defendant owed a duty of care to the Class to ensure that the ultra-hazardous handguns it designed, manufactured, and made available for sale in Canada included safe gun technology so as to avoid, prevent, or deter substantial and foreseeable harm. The foreseeable harm included death and injury of innocent victims like Class Members. Instead, Defendant designed, manufactured, and made available for sale in Canada weapons, including the Handgun used in the Danforth Shooting, which Defendant knew were deficient and inherently and unnecessarily dangerous. It was reasonable for Defendant to foresee injury and harm to third parties, including Class Members, given the Defendant’s knowledge of widespread handgun diversion and use of diverted handguns to cause injury and death.”

The plaintiffs also submitted that Smith & Wesson had been negligent in the gun’s design and breached its duty of care. Finally, they claimed public nuisance and strict liability.

Smith & Wesson argued that there was no cause of action in negligence because the relationship between a firearms manufacturer and a victim of a shooting does not fall within an established category of duty of care relationships. It also argued that the relationship between a firearms manufacturer and a victim of a shooting does not satisfy a duty of care analysis and would recognize a novel negligence claim. It submitted that there was no novel claim because:

(a) the events were not foreseeable in the requisite legal sense;

(b) the parties were not sufficiently proximate to give rise to a duty of care; and

(c) in any event, public policy considerations would negate any prima facie duty of care.

It also submitted that no material facts had been submitted to support a claim for negligent design. It further argued that the negligence claims were doomed to fail because the plaintiffs could not establish causation. Finally, it stated that there was no basis for a claim for public nuisance or for strict liability.

Court Allows Class Action Certification to Proceed 

The court began by explaining that the first criterion for certification is that the plaintiff’s pleading discloses a cause of action and a “plain and obvious” test for disclosing a cause of action is used to determine whether a proposed class proceeding discloses a cause of action for the purposes of s. 5(1)(a) of the Class Proceedings Act, 1992.

The court held that the plaintiffs’ cause of action for negligence fell within two established categories for negligence claims: (1) the goods dangerous per se category; and (2) the products liability category, particularly the negligent design genre.

Regarding the goods dangerous per se category, the court stated:

“The difficulty […] for Smith & Wesson in advancing [their] argument is that in the immediate case, there was a precaution that could have been taken to avail itself against the volition of [the shooter] shooting those innocents on the Danforth. The precaution that could have been taken is the implementation of authorized user technology. It is thus not plain and obvious that the Plaintiffs’ negligence claim based on a duty of care in relation to the manufacturing and distribution of a product that is dangerous as such is doomed to fail. It may fail but not necessarily so; there are issues to be tried and the putative Class Members should not be instantly denied a day in court.

I wish to be clear that in no event should Smith & Wesson be blamed for the shooting on the Danforth. The thrust of the ancient cause of action identified in Donoghue v. Stevenson is that Smith & Wesson send forth an article that was dangerous per se and it did not take precaution; i.e. it was careless, when it is necessarily the case that innocent parties would come within proximity of that dangerous article. I also wish to be clear that all that is presently being decided is that there is an established duty of care relationship in the immediate case and it remains to be determined whether or not there was culpable carelessness.”

Similarly, the court held that the plaintiffs had pled a reasonable cause of action in design negligence that was not doomed to fail.

However, the court held that the plaintiffs’ claims for public nuisance and strict liability were doomed to fail. Regarding the strict liability claim, the court stated:

“A manufacturer of a product cannot be made liable in nuisance for simply distributing its product in its course of business because the product is then misused by others causing harm to the plaintiffs.”

As a result, the court dismissed Smith & Wesson’s motion and ordered that the class action certification would continue to the second phase.

For Help

The manufacturers, designers and retailers of consumer goods are obligated to ensure that their products meet safety standards and will not cause harm to consumers when put to their intended use. If you have suffered an injury as a result of a faulty or defective product, it is important to seek legal guidance as soon as possible, in order to preserve evidence for a possible lawsuit.

At Petker Campbell Postnikoff, our lawyers are experienced and effective litigators who will work to represent your interests against the providers, creators and retailers of defective or faulty products. Call us today at 519-886-1204 or contact us online to arrange a no-obligation consultation with our knowledgeable and experienced personal injury lawyers.