On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication November 18, 1996.
Before Judges Muir, Jr., Kleiner and Coburn. Kleiner, J.A.D., Concurring.
The opinion of the court was delivered by: Coburn
COBURN, J.S.C. (temporarily assigned).
In this products liability case, the Law Division granted summary judgment to the remaining defendants Glock, Ges.m.b.H., and Glock, Inc., the manufacturer and distributor, respectively, of the Glock semi-automatic, 9mm pistol in question. Plaintiffs appeal. We reverse.
The accident giving rise to this action occurred when a young girl, believing the pistol to be unloaded, pulled the trigger causing a bullet to enter the head of her friend, plaintiff Tyrone Hurst. Had the pistol contained a safety device known as a magazine disconnect, it would not have fired because the magazine had been removed. Defendants assert the absolute defense provided by Section 3a(2) of the New Jersey Products Liability Act of 1987 (the Act), N.J.S.A. 2A:58C-1 to -7, contending the harm was caused by an unsafe but inherent aspect of the product (its ability to fire a bullet after the magazine but not the chambered bullet has been removed) which would be recognized by an ordinary user. Plaintiffs rely on the second exception set forth in Section 3a(2) which precludes use of the defense when the danger "can feasibly be eliminated without impairing the usefulness of the product." On this record, we believe plaintiffs have established a question of fact to be determined by a jury.
Fifteen year old Tyrone Hurst was about to go to school on the morning of December 12, 1989, when his fourteen year old friend, defendant Aishah Dukes, arrived so they could walk together. As she stood in the kitchen of the Hurst home, Tyrone entered, carrying the Glock semi-automatic, 9mm pistol owned by his mother's boyfriend, defendant Bryce Dowers. Dowers, a police officer, had gone out earlier that morning, leaving behind the fully loaded pistol in its holster, completely unsecured. With Aishah watching, Tyrone removed the magazine from the pistol. He then took the bullets from the magazine and began lining them up on the kitchen table. Aishah picked the pistol up, pointed it at Tyrone, and pulled the trigger. A bullet entered Tyrone's head, causing catastrophic injuries. Until that tragic moment, Aishah believed the weapon was unloaded.
The Glock pistol had been issued to defendant Dowers by the Lawrence Township Police Department. This particular weapon was chosen for the department in 1988 on the recommendation of a committee of police officers appointed by the Chief of Police. It was to replace the revolvers then in use. The Committee cited the following reasons for its choice: "l. Higher round capacity in the weapon. 2. Speed in reloading. 3. Easy to reload. 4. Carry more rounds in extra magazines." The lack of a magazine safety was not mentioned in the report. At most, defendants proved that it was a feature which the Committee had "taken into consideration." On the other hand, Officer Dowers did suggest during his deposition the following purpose for purchasing a semi-automatic pistol without a magazine disconnect:
Q. Which type of pistol did you prefer?
Q. Is that to say you preferred a pistol design that would still permit you to fire a round in the chamber even though the magazine for whatever reason, is removed?
A. For one simple reason: if you have a suspect at bay and he is armed, you can drop your magazine and still be able to fire at this guy with this one round that is left. With the other weapons you drop the ...