NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3928
SPONSOR: Colton (MS) TITLE OF BILL:
An act to amend the general obligations law, in relation to liability
for the manufacture, sale, leasing or other disposition of ammunition
feeding devices and compensation for damages
PURPOSE OR GENERAL IDEA OF BILL:
The legislation singles out ammunition devices that provide the capacity
for firing unreasonably large numbers of rounds,
SUMMARY OF SPECIFIC PROVISIONS:
Under the bill, manufacturers and dealers may be held liable for all
direct or consequential damages to any person injured in person, proper-
ty or means of support or killed due to the illegal discharge of large
capacity ammunition devices. Gun manufacturers and dealers would not be
liable if the person injured or killed was committing a crime; or if the
ammunition device was sold, leased or disposed of to or was discharged
by a member of the U.S. armed forces or an employee of a law enforcement
agency, when possession is authorized by law or regulation. Furthermore,
the bill provides that in the case of death of either party, the liabil-
ity or cause of action would survive to or against ones estate.
JUSTIFICATION:
Large capacity ammunition feeding devices pose a threat to society.
Certain notorious weapons are designed to accept these magazines. An Uzi
Carbine can accept a thirty round clip, An AK-47 can be outfitted with a
seventy-five round magazine that can be emptied in 20 seconds. The
2-gauge Street Sweeper shotgun can be fired to discharge twelve rounds
in less than three seconds. The Cobray pistol carries thirty-two rounds.
The possession of these magazine clips or devices which provide an indi-
vidual with the capacity to fire a large number of rounds at any one
time is not necessary for any purpose including sporting or hunting.
Excess capacity is already unlawful if one possesses a weapon for hunt-
ing purposes. Moreover, the large capacity magazines or feeding devices
often makes the firearm too heavy for sporting objectives. Strict
liability should be imposed as a logical extension of the industry's
social and economic toll on the general public. Hospital emergency rooms
report marked increases in the number of deaths and wounds caused by
weapons with large capacity ammunition feeding devices. Although the
cost of death and injury is borne, for the most part, by victims and
their families, ultimately much of the price is imposed on the rest of
society through the cost of private and government insurance, medical
care and law, enforcement. It has been estimated that the cost of treat-
ing persons harmed by weapons with large magazines or clips will place
an additional annual economic burden of $1 billion on our nation's
health care system. The expense is not borne by the manufacturers and
dealers who have made the calculated and highly profitable business
decision to market such ammunition devices. Law enforcement agents are
more likely to recover the ammunition feeding device than the firearm
thereby enabling victims to pursue the remedy under this measure.
Tort law requires individuals to be responsible for intentional or
negligent acts that cause injury to others. There are circumstances
where tort law recognizes that an activity or product may be so danger-
ous or hazardous, that those who engage in that activity or manufacture
the product roust be held strictly liable for any resulting damages even
if the injury could not have been avoided by the exercise of reasonable
care. Conceptually, strict liability permits high risk activities that
may produce an economic benefit to continue, while compensating individ-
uals who may be unintentionally harmed. In addition, strict liability
creates an incentive for those who engage in dangerous activities to
minimize risks and thus, minimize their potential liability.
Under New York law, manufacturers of products with an unreasonable risk
of halm are strictly liable for injuries resulting from the product
(Robinson v. Reed-Prentice 40 N.Y. 2d 471. 479 (1950)). A manufacturer
must exercise a degree of care which will avoid risk of harm to anyone
likely to be exposed to the danget in both intended and unintended, but
foreseeable, uses. (Micallef v. Michle Co., Div. of Miehle-Goss Dexter,
39 N.Y. 2d 376(1976)).
Just as certain products arc unreasonably dangerous, certain activities
are considered ultrahazardous and also result to strict liability
(see.e.g, RYLANDS V. FLETCHER. L.R. 1 Ex. 265). Moreover, the storage
and transportation of liquified natural gas is considered under New York
law an ultra-hazardous activity, and thus, strict liability is imposed
upon Those who engage in such activity. Either category of strict
liability can be applied here. Given their lethal potential, large
capacity ammunition magazines may create an inherently unreasonable risk
of hang when sold in a manner that allows their possession by known
criminals, and thus, their manufacturers should be held liable for any
injuries that their products cause. Similarly, those who sell ammunition
clips to criminals or others not permitted to own a weapon engage in an
ultra-hazardous activity. Under New York, a non-resident can be sued in
New York courts if that person "commits a tortuous act without the state
causing injury to person...within the state...if he...expects or should
reasonably expect the act to have consequences in the state and derives
substantial revenue from interstate or international commerce."
N.Y.(C.P.L.R. section 302 (a) (3) (ii)) Thus, manufacturers in Connecti-
cut or Georgia and dealers in Florida would be liable for damages in New
York if the ammunition devices they sold inflict injury in this state.
Enactment of the proposed law would transfer the economic cost of some
firearm violence to those entities responsible for placing the ammuni-
tion clips into the stream of commerce and profiting from that activity.
Consequently, damages would be paid by those who create a demand for
their product.
PRIOR LEGISLATIVE HISTORY:
2013-14: A.3942/Judiciary
2011-12: A.6854/Judiciary Committee
FISCAL IMPLICATIONS:
Substantial savings to the State could be inferred from the recoupment
of costs for medical care, law enforcement, and other costs associated
with illegal gun violence.
EFFECTIVE DATE:
This act shall take effect on the first of January next succeeding the
date on which it shall have become a law and shall apply to any cause of
action which accrues on or after such date.
STATE OF NEW YORK
________________________________________________________________________
3928
2023-2024 Regular Sessions
IN ASSEMBLY
February 8, 2023
___________
Introduced by M. of A. COLTON -- Multi-Sponsored by -- M. of A. RIVERA
-- read once and referred to the Committee on Judiciary
AN ACT to amend the general obligations law, in relation to liability
for the manufacture, sale, leasing or other disposition of ammunition
feeding devices and compensation for damages
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The general obligations law is amended by adding a new
2 section 11-108 to read as follows:
3 § 11-108. Liability for manufacture, sale, leasing or other disposi-
4 tion of ammunition feeding devices. 1. As used in this section the term:
5 (a) "large capacity ammunition feeding device" shall mean magazines,
6 belts, feedstrips, drums, clips, or similar devices capable of being
7 attached to or utilized with a rifle, shotgun or pistol as defined in
8 section 265.00 of the penal law and which, in the case of a rifle or
9 shotgun, has the capacity of, or can be readily restored or converted to
10 accept, more than five cartridges, or in the case of a pistol has the
11 capacity of, or can be readily restored or converted to accept, more
12 than fifteen cartridges. The term shall also include any combination of
13 parts from which such devices can be assembled;
14 (b) "manufacturer" shall mean any person, corporation, firm, partner-
15 ship or other entity that manufactures large capacity ammunition feeding
16 devices; and
17 (c) "dealer" shall mean any person, corporation, firm, partnership or
18 other entity that sells, leases or in any manner disposes of a large
19 capacity ammunition feeding device.
20 2. A manufacturer or dealer may be held strictly liable in tort, with-
21 out regard to fault or proof of defect, for all direct and consequential
22 damages to any person injured in person, property or means of support,
23 or killed, if the injury or death proximately results from the illegal
24 discharge of a firearm to which a large capacity ammunition feeding
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08949-01-3
A. 3928 2
1 device was affixed thereto and utilized. In case of the death of either
2 party, the liability established herein shall survive to or against his
3 or her executor or administrator, and the amount so recovered by either
4 spouse or child shall be his or her sole and separate property.
5 3. Notwithstanding the provisions of subdivision two of this section,
6 there shall be no basis for liability under this section if:
7 (a) The individual injured or killed was engaged in a criminal act at
8 the time of his or her injury or death;
9 (b) The manufacturer or dealer sold, leased, or otherwise disposed of
10 the large capacity ammunition feeding device to a person or entity who
11 was:
12 (i) a member of the armed forces of the United States, when possession
13 is authorized by law or regulation;
14 (ii) an employee of a federal, state, or local law enforcement agency
15 or other members of the criminal justice system, when possession is
16 authorized by law or regulation.
17 (c) The individual who discharged the firearm to which a large capaci-
18 ty ammunition feeding device was affixed thereto and utilized:
19 (i) is a member of the armed forces of the United States, whose
20 possession is authorized by law or regulation;
21 (ii) is an employee of a federal, state, or local law enforcement
22 agency or other member of the criminal justice system, whose possession
23 is authorized by law or regulation.
24 4. Any defense that is available in a strict liability tort action
25 shall be available as a defense under this section.
26 5. This section shall not operate to limit in scope any cause of
27 action, other than that provided by this section, available to a person
28 injured in person, property or means of support or killed by a firearm.
29 § 2. This act shall take effect on the first of January next succeed-
30 ing the date on which it shall have become a law and shall apply to any
31 cause of action which accrues on or after such date.
