McCarthy v. Olin Corp.
119 F.3d 148 (2d Cir. 1997)
A maniac named Fergurson randomly started shooting at
people in a New York subway. Many were wounded and injured. The injuries
were increased because Fergurson was using special hollow-point bullets
(Black Talon brand) that were specifically designed to cause extra damage
(and marketed that way).
Several victims (including McCarthy) sued the manufacturer
of the bullets (Olin) for product liability and wrongful death.
The Trial Court dismissed the complaint. McCarthy
The Appellate Court affirmed.
McCarthy argued that the bullets were defectively
designed because they were extra dangerous. But the Appellate Court
found that this dangerous aspect was an intentional and functional
element of the design.
In order to establish a cause of action for a design
defect, McCarthy had to allege that the bullet was unreasonably
dangerous for its intended use. But its intended use was for killing
people, so, almost by definition it could not be unreasonably dangerous
for its intended use.
McCarthy needed to allege that there was something wrong
with the bullets, but they functioned exactly according to design.
McCarthy unsuccessfully argued that under the risk-utility
test, the risk of harm posed by the bullets outweighs their utility.
However, under New York law, there must be something wrong with the
product before the risk-utility test can be applied.
The purpose of the risk-utility test is to
determine if a safer alternative was available. But since the purpose
of the bullet was to kill people, a safer alternative makes no sense.
McCarthy unsuccessfully argued that the bullets were
unreasonably dangerous per se. But under New York law, that's not a
cause of action.
New York does not impose a legal duty on manufacturers
to control the distribution of potentially dangerous products. Although
it was foreseeable that a maniac might shoot people with the
bullets, Olin could not control Fergurson's actions and cannot be held
The Appellate Court argued that holding Olin liable
would open the door to all sorts of litigation. For example, are
liquor companies liable when someone drinks too much and gets into a
Could you argue that a reasonable manufacturer would
never have produced a product like this in the first place? Perhaps the
alternative bullet is no bullet at all?
That's really more of a negligence argument. It
isn't strict liability, it's more that the decision to sell the
bullets is negligent.
Courts have not been willing to find for the plaintiff in
cases like this (aka product category liability) because it would
amount to a de facto ban on the product.
If McCarthy had won, then everybody who'd ever been shot
would be able to sue the company that made the bullets. and unlike cases where there was a design defect,
there would be no way to make a design change and keep the product on the
market, since it would be silly to try to sell bullets designed not to hurt people.
Courts have generally held that banning entire categories
of products is a job for the legislature, not the judiciary.