As we have seen many times throughout this text, the law is a balancing act. We have just examined how the courts have been willing (eager?) to use strict liability to hold manufacturers and distributors liable for injuries caused by unsafe products without any reference to negligence or warranties. Just how far will the courts go in this regard? What is the ultimate limit of strict liability as a coercive strategy of public policy? One answer to this question might be that there is no limit, that dangerous products, period, must be targeted by the law, at all cost no matter what. This is known as a per se rule.
Literally translated from the Latin, per se means “in and of itself” and a rule that labels a product dangerous per se would assert that the product is dangerous in and of itself. In other words, such a product cannot be made “safe” because to make it “safe” would remove its basic function and render it useless.
The prime target of the suggested “dangerous per se ” rule has been handguns. However, the rule could apply to any firearm or explosive device (read “bomb”). The argument goes something like this. Handguns other firearms, and explosive devices are dangerous per se because their function is to kill. When a manufacturer designs, makes, and sells a handgun any other firearm or explosive device, that manufacturer knows that the product is designed to kill. Moreover, the only way to make a handgun safe is to render it unworkable, which makes it useless, and which, therefore, is not an option. Moreover, there is no social benefit to the firearm or the explosive device that outweighs the potential harm that it can cause. Therefore, when a manufacturer places a firearm or explosive device in circulation, he or she is well aware of its potential (inevitable?) criminal use and, when such an event occurs, that manufacturer must be held strictly liable for the injuries and the harm that results—period. Now there are counterarguments to this position which we will see later in the text. For now, however, consider the “dangerous per se ” rule and answer the following questions. (See Donald E. Santarelli and Nicholas E. Calio, “Turning the Gun on Tort Law: Aiming at Courts to Take Products Liability to the Limit,” St. Mary’s Law Journal 14:3 (1983), pp. 471–508.)

Question

1. Is the function of a firearm or explosive device to kill? If you believe that the function is to kill, then, what socially justifiable reason is there for continuing to manufacture them?
2. If you believe that the function is not to kill, then what other socially redeeming functions does a firearm or explosive device possess? Explain.
3. Max Weber believes that the law can be used to coerce the members of a society into conforming to the general consensus. Will the “dangerous per se” rule eliminate killing and, thus, create crime-free neighborhoods? Explain.
4. The very first element of strict liability is that the plaintiff must prove that the manufacturer or seller sold the product in a defective condition. What is the defective condition of a firearm or explosive device that works exactly as it should? Explain.
5. What other products might be outlawed using the “dangerous per se” rule? Explain.