Price v. Smith & Wesson Corp. - Donoghue v. Stephenson and the snail that keeps rearing its (beautiful) head

In Price v. Smith & Wesson Corp., 2021 ONSC 1114, the Court provides an important reminder of the ongoing importance of historical case law to solve modern negligence problems. Despite the evolution of tort law since its early days, the starting point of Donoghue v. Stephenson remains relevant even outside the confines of the classroom, particularly with regard to ejusdem generis, or dangerous goods per se.

Citing extensively from cases such as Donoghue, Dominion Natural Gas Co., Ltd. v. Collins & Perkins, and Dixon v. Bell, Justice Perell’s reasons demonstrate that the law of negligence remains deeply rooted in its origins, such that it is still worth returning to those original decisions in response to modern problems.

THE FACTS

Price is a proceeding brought on behalf of individuals injured in the July 22, 2018, Danforth Avenue shooting, and their family members. The perpetrator shot and killed two children, shot and injured 13 others, and injured dozens of people as they fled the scene. The gun used to commit the assaults was a Smith & Wesson M&P®40 semi-automatic handgun (the “Gun”), which had been reported stolen from a Saskatchewan arms dealer in 2015.

“Smart gun” or “authorized user” technology has the intended effect of preventing use of a weapon by unauthorized persons – for example, using fingerprint or palm-print recognition, or voice identification. Like all other Smith & Wesson handguns, the Gun contained no authorized user technology.

The Plaintiffs plead that authorized user technology has existed since the 1970s, and that Smith & Wesson began developing its own authorized user technology in or around 1998, including filing at least 7 patent applications relating to authorized user technology in their gun products. Following the 2005 enactment of a U.S. federal law protecting it from (U.S.) civil lawsuits, Smith & Wesson allowed their authorized user technology patents to lapse, and no authorized user technology (nor any other safety measures) was ever adopted by Smith & Wesson in any of their gun products. Therefore, accepting the pleadings as true, Smith & Wesson had an established knowledge of the risks associated with gun theft and use by unauthorized individuals, but chose not to include authorized user technology in any of their gun products, including those offered for sale outside of the U.S.