[38] Calabresi, Circuit Judge, dissenting:

I.

This case is less about bullets than about federal/state relations. It raises important questions of when it is appropriate for this court to certify issues of New York law to the New York Court of Appeals. I believe that federal courts in general, and this circuit in particular, have tended to be far too reluctant to certify questions to the state courts. See, e.g., Martin Flumenbaum Brad S. Karp, Certification of Unsettled Law Issues, N.Y.L.J., Jan. 29, 1992, at 3 (noting that the procedure for certification to the New York Court of Appeals "has been used only sparingly by the Second Circuit," which in 1992 had certified only five issues over the preceding six-year period). Specifically, federal courts have all too often refused to certify when they can rely on state lower court opinions to define state law. I view this reluctance as both wrong and unjust.

Reluctance to certify is wrong because it leads to precisely the kind of forum shopping that Erie R.R. Co. v. Tompkins, 304 U.S. 64, 73-77 (1938), was intended to prevent. See Hanna v. Plumer, 380 U.S. 460, 468 (1965) (noting that one of the aims of the Erie decision was "discouragement of forum-shopping"). This is especially so in situations where there is some law in the intermediate state courts, but no definitive holding by the state's highest tribunal. In such cases, and in the absence of certification, the party that is favored by the lower court decisions will almost invariably seek federal jurisdiction. It will do this in order to prevent the state's highest court from reaching the issue, in the expectation that the federal court — unlike the state's highest court — will feel virtually bound to follow the decisions of the intermediate state courts. See In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 850 (2d Cir. 1992) (suggesting that "lower state court decisions . . . have great weight in informing" the decisions of the federal courts) (citation and internal quotation marks omitted). The result is to "funnel all similar litigation [in]to federal court." Todd v. Societe BIC, S.A., 9 F.3d 1216, 1222 (7th Cir. 1993) (en banc). If the federal court treats the plaintiff more favorably than the state tribunal would, then the plaintiff always files in federal court; similarly any departure in the manufacturer's favor leads the defendant to remove any suit filed in state court. In either case, the state loses the ability to develop or restate the principles that it believes should govern the category of cases. Certification then ensures that the law we apply is genuinely state law. Id.

When federal courts, in effect, prevent state courts from deciding unsettled issues of state law, they violate fundamental principles of federalism and comity. As the Supreme Court has noted, while certification may cause delay in any given case, "[i]t does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism." Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974); see also Arizonans For Official English v. Arizona, 117 S.Ct. 1055, 1073 (1997). Federal courts that refuse to certify end up "mak[ing] important state policy, in contravention of basic federalism principles." Hakimoglu v. Trump Taj Mahal Assocs., 70 F.3d 291, 302 (3d Cir. 1995) (Becker, J., dissenting); see also Richard Alan Chase, Note, A State Court's Refusal to Answer Certified Questions: Are Inferences Permitted?, 66 St. John's L. Rev. 407, 415 (1992) ("A federal court demonstrates respect for state sovereignty when it certifies a question to the state's highest court and defers to its judgment on unresolved issues of state law.").

Reluctance to certify is unjust because, as has happened with some frequency, the federal court, having refused to certify, may decide an issue of state law one way, only to discover that the state's highest court, when presented with the issue in a later case, reaches the opposite result. In such a situation, the party who lost in federal court has been unjustly denied her state-law rights, and often has been left with no means of effective redress.

The case of DeWeerth v. Baldinger provides a striking example. In that case, the plaintiff, DeWeerth, had originally prevailed in the federal district court, which ruled that as a matter of New York law she had established ownership of a valuable impressionist painting that had been stolen from her forty years earlier. See DeWeerth v. Baldinger, 658 F. Supp. 688 (S.D.N Y 1987). On appeal, this court reversed the district court's judgment, finding that New York limitations law requires a showing of reasonable diligence in locating stolen property, and that DeWeerth had failed to make such a showing. See DeWeerth v. Baldinger, 836 F.2d 103, 108-12 (2d Cir. 1987). We elected not to certify this question of New York law to the New York Court of Appeals, endeavoring instead to resolve the issue on or own. See id. at 108 n. 5.

Three years later, the New York Court of Appeals was presented with precisely the same issue, and held that the statute of limitations does not require a showing of reasonable diligence. See Solomon R. Guggenheim Found. v. Lubell, 569 N.E.2d 426, 429-30 (N.Y. 1991). The Court of Appeals remarked, somewhat acidly: Although the [Second Circuit in DeWeerth] acknowledged that the question posed by the case was an open one, it declined to certify it to this Court, stating that it did not think that it "[would] recur with sufficient frequency to warrant use of the certification procedure." Actually, the issue has recurred several times in the three years since DeWeerth was decided, including the case now before us. We have reexamined the relevant New York case law and we conclude that the Second Circuit should not have imposed a duty of reasonable diligence on the owners of stolen art work for purposes of the Statute of Limitations.

Id. (citations omitted).

Following the New York Court of Appeals' decision in Guggenheim, DeWeerth attempted to reopen her case in order to have her dispute decided in accordance with the actual law of New York. See DeWeerth v. Baldinger, 804 F. Supp. 539 (S.D.N Y 1992). Understandably, however, this court ruled that the subsequent clarification of state law did not justify disturbing a final judgment. See DeWeerth v. Baldinger, 38 F.3d 1266, 1272-73 (2d Cir. 1994). Thus, despite the fact that "the DeWeerth panel's prediction was wrong," id. at 1273, and that DeWeerth was, in fact, entitled to the painting under New York law, she was left without a remedy. This happened not because of any decision by the highest court of New York, but rather because of the will of the federal courts.

Before the advent of the certification procedure, this court had little choice but to "do [its] best to predict what the highest state court w[ould] do." Cooper v. American Airlines, Inc., 149 F.2d 355, 359 (2d Cir. 1945). But now, "[c]ertification is an alternative to prognostication," Todd, 9 F.3d at 1222 — an alternative that respects the right of the state courts to define their own substantive law, deters forum shopping, and ensures that litigants like Gerta DeWeerth (and Carolyn McCarthy) will have their state-law created rights determined by "the only judges who can give definitive answers" as to those rights. Todd, 9 F.3d at 1222. It is, moreover, an alternative that does this without in any way requiring state courts to decide anything they do not wish to take on.

This last is why the statement quoted by the majority, ante Draft Op. at 9, that the certification "procedure must not be a device for shifting the burdens of this Court to those whose burdens are at least as great," Dorman v. Satti, 862 F.2d 432, 435 (2d Cir. 1988) (citation and internal quotation marks omitted), while true enough, can rarely be determinative. In the first place, it is well known that state court judges have expressed both publicly and privately their desire for certification and their irritation with the fact that federal courts often decide interesting and important questions rather than certifying them to the courts that should be deciding them. More importantly, a state court that feels overburdened, or that for any other reason does not wish to decide the certified question, is always free to refuse to answer it. See, e.g., N Y Comp. Codes R. Regs. tit 22, Section(s) 500.17(d) (noting that the New York Court of Appeals "will examine the merits presented by the certified question . . . to determine whether to accept the certification"); Ira P. Robbins, The Uniform Certification of Questions of Law Act: A Proposal for Reform, 18 J. Legis. 127, 137 (1992) ("[T]he ultimate power to accept or reject a certified question rests exclusively in the discretion of the answering court. Th[is] procedural safeguard more than protect[s] the answering court from a surfeit of certification cases because as a practical matter that court completely controls its docket and may reject certified-question cases if the number becomes overwhelming. The answering court need not even offer a reason for declining to answer . . . .") (footnotes omitted).

Just as the Supreme Court of the United States can decide for itself whether it wishes to grant certiorari, so too can state courts make analogous decisions as to certification. If anything, it is the failure to certify when certification is plausible that burdens state courts, because such a failure puts pressure on the state courts to accept direct appeals in subsequent cases in order to rectify a federal court error and to do this even at times when it might be inconvenient for them to do so.

This is not to say that certification should be used indiscriminately. As Judge Cabranes has explained, federal courts must be careful to certify only in appropriate cases. See L. Cohen Co., Inc. v. Dun Bradstreet, Inc., 629 F. Supp. 1419, 1422-24 (D. Conn. 1986); see also Barnes v. Atlantic and Pac. Life Ins. Co., 514 F.2d 704, 705 n. 4 (5th Cir. 1975) ("[W]e use much judgment, restraint and discretion in certifying. We do not abdicate."). But "appropriate" must mean virtually any case in which 1) a significant and dispositive issue of state law is in genuine doubt (despite the existence of non-binding lower court decisions, especially where those decisions — like the ones relied upon by the majority — were never appealed to the state's highest court), and 2) certification is specifically requested by the party that did not invoke federal court jurisdiction. By such a standard, I believe that certification is not used enough, and that cases like the one before us are especially suited to its use.

II.

In cases that are dramatic and involve "hot" issues, there is a tendency for the parties to describe themselves as raising new issues that are remarkable in their legal context. But in fact, such cases are usually best looked at in the most traditional of ways. Courts must see how these cases fit into old categories before considering whether it is either necessary or proper to expand those old categories or to create new ones. And so it is with the case before us. For this reason, I begin with the most traditional of the causes of action that the plaintiffs have raised — negligence — and address it in its most "black letter" terms. Cf. Andrew Jay McClurg, The Tortious Marketing of Handguns: Strict Liability is Dead, Long Live Negligence, 19 Seton Hall Legis. J. 777, 778 (1995) ("[V]ictims of gun violence and their lawyers should refocus their sights on the more prosaic liability theory of common law negligence. In other words, it is time to go back to basics."). In doing this I do not, of course, seek to determine whether liability for negligence lies in a case like this one in New York. I examine the issue only to discern whether the question is sufficiently open to warrant certification.

A. Liability for negligence

To hold a defendant liable in negligence in New York, a plaintiff must show: 1) a duty on the part of the defendant; 2) a breach of that duty by conduct involving an "unreasonable risk of harm," W. Page Keeton, Dan B. Dobbs, Robert E. Keeton David G. Owen, Prosser and Keeton on the Law of Torts, Section(s) 53 at 358 (5th ed. 1984) [hereinafter Prosser Keeton]; 3) damages suffered by the plaintiff; and 4) causation, both in fact and proximate, between the breach and the plaintiff's harm. See, e.g., Febesh v. Elcejay Inn Corp., 555 N.Y.S.2d 46, 47 (N.Y. App. Div. 199 0); Stagl v. Delta Airlines, Inc., 52 F.3d 463, 467 (2d Cir. 1995). So viewed, three of the four elements of a cause of action for negligence — damages, causation, and conduct involving an unreasonable risk of harm — are either readily present or sufficiently cognizable under New York law on the facts of this case that a federal court would err mightily to hold on its own to the contrary. The fourth, the existence of a duty, is a more difficult question. But it is one that, I submit, only the New York Court of Appeals (or the New York Legislature) can answer.

1. Conduct involving an unreasonable risk of harm

The plaintiffs alleged in their complaint that the defendant created an unreasonable risk of harm both by manufacturing Black Talons and by marketing them to the general public. On appeal, the plaintiffs have pursued only their negligent marketing claim.

Could a New York jury find that there was an undue risk of harm, if not in producing Black Talons, then in advertising them for use by (and selling them to) the general public? Put differently, could a jury find that the benefit gained by making Black Talons available to the public was outweighed by their potential harm. I believe that a reasonable jury could so find.

The distinctive feature of the Black Talon bullet is that it "is designed to expand upon impact exposing razor-sharp edges at a 90-degree angle to the bullet. This expansion dramatically increases the wounding power of the bullets." McCarthy v. Sturm, Ruger and Co., 916 F. Supp. 366, 368 (S.D.N.Y. 1996); see also Winchester Halts Sale of Disintegrating Bullet to Public, Salt Lake Trib., Nov. 23, 1993, at A4 [hereinafter Winchester Halts Sale] ("The 9mm bullets disintegrate upon impact into tiny razor-like claws that tear up tissues and organs."); Wendell Jamieson, Winchester Disarms a Killer Bullet, Newsday (New York), Nov. 23, 1993, at 5 (noting that "the devastating bullets . . . bloom into claw-like prongs on impact and cause hideous, gaping wounds"). The defendant marketed the product to civilian consumers in a slick black box bearing the words "BLACK TALON" surrounded by the sharp, gleaming claws of a bird of prey. It is certainly possible that a fact-finder would conclude that any benefit that comes from marketing and selling bullets with this additional destructive feature to private citizens is outweighed by their potential for significant harm.

There is nothing novel in finding negligence on these grounds. New York law recognizes that a defendant can be held liable for negligently marketing a product. See, e.g., Kaufman v. Eli Lilly and Co., 482 N.E.2d 63, 68 (N.Y. 1985); Bikowicz v. Sterling Drug, Inc., 557 N.Y.S.2d 551, 552 (N.Y. App. Div. 1990). And there is no reason why that principle should not allow recovery against a manufacturer who introduces a harmful product into general circulation, where the social utility of marketing that product to the public is outweighed by its risk of harm. See McClurg, supra; Joseph A. Page, Liability for Unreasonably and Unavoidably Unsafe Products: Does Negligence Doctrine Have a Role to Play?, 72 Chi.-Kent. L. Rev. 87 (1996); see also Ezagui v. Dow Chem. Corp., 598 F.2d 727, 736 (2d Cir. 1979) (applying New York law) (finding a prima facie case of negligence because "Parke-Davis, as a matter of law, owed plaintiff a duty to exercise reasonable care in the design and in the decision to market Quadrigen") (emphasis added).

The fact that the New York legislature has not chosen to forbid the distribution of Black Talons in no way alters the conclusion that the defendant may have been negligent in marketing them to the general public. There are all sorts of situations in which the general distribution of an object is legal, but the decision to market and sell it to certain persons is nonetheless negligent because it poses an undue risk of harm. When fireworks were legal, it was still negligent to market and sell them to children. See Erwin v. Dunn, 201 S.W.2d 240, 242 (Tex. Civ. App. 1947). Similarly, even in the absence of a statute, serving alcohol to intoxicated adults is negligent. And this is so despite the fact that serving alcohol to sober ones is not. See Morrissey v. Sheedy, 272 N.Y.S.2d 430, 431-32 (N.Y. App. Div. 196 6); Tyrrell v. Quigley, 60 N.Y.S.2d 821, 822 (N.Y. Sup. Ct. 1946). Selling tanks to the armed forces is fine; selling them to the general public is, I would think, clearly negligent.

I therefore conclude that there is little doubt that if the New York Court of Appeals chooses not to allow this type of negligent marketing claim to go forward, it will do so not because it holds, as a matter of law, that the defendant's actions did not create an unreasonable risk of harm, but rather because it finds no duty, that is, because it believes that sound public policy does not dictate the imposition of liability, despite the fact that the defendant may have acted negligently. See infra Part II.A.4; McClurg, supra, at 795-99; Page, supra, at 98-99.

2. Damages

No one questions that the plaintiffs suffered harm of the most serious sort on the evening of December 7, 1993. Carolyn McCarthy lost her husband, who was shot in the head with a Black Talon bullet. Kevin McCarthy was shot in the head and hand, and now suffers paralysis. Maryanne Phillips was shot in her left arm, which was nearly destroyed by a Black Talon bullet. Whether these damages can be said to have resulted from the defendant's decision to market Black Talons is a question of causation, and is considered immediately below.

3. Causation

Under New York law, a plaintiff alleging negligence must prove that the defendant's breach of duty was a cause of the plaintiff's injury. Generally, there must be cause in fact, a causal tendency (that is, a "causal link"), and proximate cause. See Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. Chi. L. Rev. 69, 71-73 (1975) [hereinafter Calabresi, Concerning Cause].

The first of these, the requirement that the defendant's negligent act was a but for cause of the injury, see, e.g., Saulpaugh v. State, 517 N.Y.S.2d 328, 329 (N.Y. App. Div. 1987), is readily met. To establish cause in fact, plaintiffs must generally prove that the specific damages they suffered resulted from the defendant's unduly risky conduct, and would not have occurred in the absence of the defendant's negligence. In this case, cause in fact necessitates a showing that the damages complained of resulted from the uniquely destructive nature of the Black Talons. This is so because it is the marketing of bullets of this sort, with these uniquely destructive characteristics, that the plaintiffs allege to be unduly risky.

The plaintiffs have clearly made such a showing here. Their allegations, if true, will support a finding that, but for the defendant's marketing of its product to persons like Colin Ferguson, the plaintiffs would not have suffered such extensive injuries. Indeed, the majority concedes that "[t]he injuries to Dennis and Kevin McCarthy and Maryanne Phillips were enhanced by the ripping and tearing action of the Black Talons." Ante, Draft Op. at 3; cf. Bolm v. Triumph Corp., 305 N.E.2d 769, 771-72 (1973) (holding that a manufacturer can be held liable in negligence "for defects in design which do not cause accidents but do enhance or aggravate injuries").

Similarly there can be no doubt that a causal tendency was shown. Knowing what we know now, we can surely say that the negligent marketing of bullets like the Black Talon increases the chances of such injuries occurring. Cf. Martin v. Herzog, 126 N.E. 814, 816 (N.Y. 1920) ("[E]vidence of a collision occurring more than an hour after sundown between a car and an unseen buggy, proceeding without lights, is evidence from which a causal connection may be inferred between the collision and the lack of signals.").

The existence of proximate cause is more of a question, but under New York law it too could properly be found by a jury. Despite the fact that the question of proximate cause is normally one for the fact finder, see Derdiarian v. Felix Contracting Corp., 414 N.E.2d 666, 668 (N.Y. 1980), the district court in the instant case concluded that, as a matter of law, the defendant's alleged negligence was not a proximate cause of the plaintiffs' injuries. See McCarthy, 916 F. Supp. at 372. This holding was erroneous.

While it is true "that an intervening intentional or criminal act will generally sever the liability of the original tort-feasor," New York law is clear that "[t]hat doctrine has no application when the intentional or criminal intervention of a third party or parties is reasonably foreseeable." Kush v. City of Buffalo, 449 N.E.2d 725, 729 (N.Y. 1983). Moreover, "[a]n intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent." Derdiarian, 414 N.E.2d at 671. It cannot be said that criminal acts like Colin Ferguson's were, as a matter of law, not foreseeable. And it is precisely the unreasonable risk of this type of criminal activity that forms the basis of the plaintiffs' negligence claim. Accordingly, whether the defendant's alleged breach was a proximate cause of the plaintiffs' injuries is a question for the jury in this case.

4. Duty

Three of the four elements of negligence liability have, without question, been sufficiently alleged under New York law. The only aspect of this case — viewed as a negligence action — that is problematic is the existence of a duty. "In order to establish a prima facie case of negligence under New York law, a claimant must show that . . . the defendant owed the plaintiff a cognizable duty of care . . . ." Stagl, 52 F.3d at 467; see also Strauss v. Belle Realty Co., 482 N.E.2d 34, 36 (N.Y. 1985). In this case, the plaintiffs must show that the defendant was under a duty to protect them from the harm caused by foreseeable criminal intervenors, and that such a duty entailed refraining from aggressively marketing its product to the general public.

In many jurisdictions, the existence of a duty depends primarily on 1) the foreseeability of harm to the plaintiff that would flow from the defendant's negligent acts, and 2) the absence of actions on the part of the plaintiff — like trespass or assumption of risk — that either destroy or lessen the defendant's liability. In those jurisdictions, it is rarely worthwhile discussing duty separately from the existence of negligence, proximate cause, and special plaintiff attributes. In the absence of such plaintiff-based defenses, a general duty to refrain from causing foreseeable and unreasonable harm is assumed to exist.

That is not, however, the law in New York. Under New York law, the question of the existence of a "[d]uty in negligence cases is [not] defined . . . by foreseeability of injury." Strauss, 482 N.E.2d at 36; see also Pulka v. Edelman, 358 N.E.2d 1019, 1022 (N.Y. 1976) ("Foreseeability should not be confused with duty. . . . [Foreseeability] is applicable to determine the scope of duty — only after it has been determined that there is a duty."). Rather, the determination of the existence of a duty is a decision of public policy that the New York Court of Appeals has expressly retained for itself (and the courts generally): The question of the scope of an alleged tort-feasor's duty is, in the first instance, a legal issue for the court to resolve. In this analysis, not only logic and science, but policy play an important role. The common law of torts is, at its foundation, a means of apportioning risks and allocating the burden of loss. While moral and logical judgments are significant components of the analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that the legal consequences of wrongs are limited to a controllable degree.

Waters v. New York City Housing Auth., 505 N.E.2d 922, 923-24 (N.Y. 1987) (citations, brackets, and internal quotation marks omitted).

Unlike foreseeability and causation, which are issues generally and more suitably entrusted to fact finder adjudication, the definition of the existence and scope of an alleged tortfeasor's duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration. Common-law experience teaches that duty is not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility. These sources contribute to pinpointing and apportioning of societal risks and to an allocation of burdens of loss and reparation on a fair, prudent basis.

. . . .

. . . Courts traditionally and as part of the common-law process fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.

Palka v. Servicemaster Management Servs. Corp., 634 N.E.2d 189, 192-93 (N.Y. 1994).

This does not mean that the court is required — or even permitted — to weigh such policy considerations to determine the existence of a duty in each individual New York negligence case. Once the New York Court of Appeals has established that the relationship between plaintiffs and defendants in certain circumstances or categories of cases suffices to establish a duty of due care, all cases of like kind are covered by that finding, and there is no warrant to take a case from the jury for a separate judicial examination of duty.

It follows that, before we can be confident that there is a jury question as to negligence in this case, we must find precedents that establish a duty between the parties in cases akin to this one. I am not prepared to make such a finding. Nor, however, am I prepared to say that the New York Court of Appeals would not find that such a precedent exists or create one in this case. I am not, in other words, satisfied that the New York Court of Appeals has made a policy determination, one way or the other, in circumstances akin to those here.

The majority, instead, has no difficulty concluding that New York courts have determined that there is no duty here. It relies on the New York Court of Appeals' statement that [i]n the ordinary circumstance, common law in the State of New York does not impose a duty to control the conduct of third persons to prevent them from causing injury to others; liability for the negligent acts of third persons generally arises when the defendant has authority to control the actions of such third persons. This is so, we have said, even where "as a practical matter" defendant could have exercised such control.

Purdy v. Public Adm'r of Westchester, 526 N.E.2d 4, 7 (N Y 1988) (citations omitted).

But the issue is nowhere near as simple as that. New York law is, in fact, quite clear that the defendant in many circumstances can be under a duty to the plaintiff that makes him liable for the harm caused by the intervening negligent acts of a third party. See, e.g., Modave v. Long Island Jewish Med. Ctr., 501 F.2d 1065, 1072 (2d Cir. 1974) (Friendly, J.) (reciting "the unassailable proposition of New York law 'that a wrongdoer is liable for the ultimate result, though the mistake or even negligence of the physician who treated the injury may have increased the damage which would otherwise have followed from the original wrong'") (quoting Milks v. McIver, 190 N.E. 487, 488 (N.Y. 1934)).

Moreover, in cases such as this one involving the introduction of goods into the stream of commerce, New York courts have had little difficulty in holding the original seller to have a duty not only to the purchaser and parties having a direct relationship with the purchaser, but also to third-party bystanders. Thus, in the celebrated case of Codling v. Paglia, 298 N.E.2d 622 (N.Y. 1973), the New York Court of Appeals found a duty to a bystander injured by the defendant's product (an automobile) even though the defendant seller had been found to be free from negligence by a jury and even though the negligence of the user/purchaser of the car was in part the cause of the bystander's injuries. See id. at 622 (holding that, despite the negligent intervenor, "the manufacturer of a defective product may be held liable to an innocent bystander . . . for damages sustained in consequence of the defect").

In fact, under appropriate conditions, a defendant can even be held liable for the intervening criminal acts of a third party. See, e.g., Stagl, 52 F.3d at 467; Nallan v. Helmsley-Spear, Inc., 407 N.E.2d 451, 457-58 (N.Y. 1980) (holding that a commercial landlord has a duty to take reasonable precautionary measures to minimize the risk of foreseeable criminal activity and to make the premises safe for the visiting public); Stevens v. Kirby, 450 N.Y.S.2d 607, 610 (N.Y. App. Div. 1982) ("A tavern owner owes a duty to his patrons to protect them from personal attack when he has reasonable cause to anticipate conduct on the part of third persons which is likely to endanger their safety.").

What then does the New York Court of Appeals mean when it says that it has imposed a duty to control the conduct of others where there is a special relationship: a relationship between defendant and [an intervenor] whose actions expose plaintiff to harm such as would require the defendant to attempt to control the third person's conduct; or a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others[?]

Purdy, 526 N.E.2d at 7.

It cannot mean that a duty will be imposed only where there is privity between the defendant and the victim. See, e.g., Codling, 298 N.E.2d at 692-95 (finding that a defendant can be held liable to a third-party bystander). Nor can it mean that the defendant must actually be able to control the intervenor. See, e.g., Modave, 501 F.2d at 1072 (finding that a negligent doctor can be held liable for the harm caused by another negligent doctor at a different hospital). Rather, the cases in which New York courts have refused to find the requisite relationship are ones in which the defendant did not have much of an opportunity to prevent the harm, see Pulka, 358 N.E.2d at 1021, and in which imposing a duty would expose the defendant to liability "beyond sound public policy," Einhorn v. Seeley, 525 N.Y.S.2d 212, 216 (N.Y. App. Div. 198 8); see also Waters, 505 N.E.2d at 924. That is, they are the rather unusual cases where the allowance of liability would create "disproportionate risk and reparation allocation, and [would violate] public policies affecting the expansion or limitation of new channels of liability." Palka, 634 N.E.2d at 193. Thus, "'duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Prosser and Keeton, supra, Section(s) 53 at 358.

What of this case? On the one hand, it seems that the defendant could have substantially reduced the harm caused by these unusually destructive bullets by not marketing them to the general public. And the danger of exposing the defendant to liability beyond sound public policy might not be present here, especially if the New York courts were to conclude that marketing Black Talons to the general public causes more harm than benefit. On the other hand, this case may well involve "the expansion . . . of new channels of liability," Palka, 634 N.E.2d at 193, since it involves a criminal intervenor in a case where no direct relationship exists between the injured plaintiff and the defendant. In this respect it is different from Modave (negligent intervenor and direct relationship between plaintiff and defendant), Codling (negligent intervenor and no direct relationship), and Nallan and Stevens (criminal intervenor and direct relationship).

Under the circumstances, it is hard to know whether the New York Court of Appeals would find a duty. The fact that the foreseeable intervenor behaved in a criminal, rather than a negligent, manner does not change matters for the purposes of proximate cause. See Kush, 449 N.E.2d at 729 (noting that, although "an intervening intentional or criminal act will generally sever the liability of the original tort-feasor," New York law is clear that "[t]hat doctrine has no application when the intentional or criminal intervention of a third party or parties is reasonably foreseeable"). Does it do so for purposes of duty? That is a question to which the New York Court of Appeals has given us no answer (although it should be noted that Codling makes not even a hint of a suggestion that the result would have been different if the intervenor had been a criminal). Since the Court of Appeals has neither countenanced nor foreclosed liability in cases involving a criminal intervenor and the absence of a direct relationship, I believe that we are bound to allow that Court to make a policy determination of duty in the instant case.

In this respect, the argument that, because it is legal to sell and advertise Black Talons, there can be no liability, is misplaced. As Judge Gabrielli has noted, "[t]he common-law duty of reasonable care to those within the ambit of foreseeable danger requires no buttressing by legislative enactment; nor does the absence of such legislation in the present instance exclude the possibility of liability." Pulka, 358 N.E.2d at 1023-24 (Gabrielli, J., dissenting). There is all of the difference in the world between making something illegal and making it tortious. Making an activity tortious forces the people who derive benefit from it to internalize the costs associated with it, thereby making sure that the activity will only be undertaken if it is desired by enough people to cover its costs. It does not proscribe it altogether. As a result, very different policy considerations go into the decision of whether to forbid something and the decision of whether to find a duty that permits liability for the harm it causes. The fact that the New York legislature has failed to prohibit Black Talons is certainly one factor that the New York Court of Appeals is likely to consider in deciding the "policy-laden declaration reserved for Judges" that it must make in resolving whether a duty exists. Palka, 634 N.E.2d at 192. But the weight to be given to this factor is just the sort of thing that only the New York Court of Appeals itself can determine.

It is precisely because the public policy decision of whether to impose a legal duty is one that the New York Court of Appeals has retained for itself that we should be especially inclined to certify the question to that Court, rather than to endeavor to resolve it ourselves. Certification is particularly warranted when "the resolution of [the issue] requires a careful weighing of competing state policies and potentially could affect a large number of people." Jackson v. Johns-Manville Sales Corp., 757 F.2d 614, 615 (5th Cir. 1985). We are simply not entitled to make policy for the State of New York. Such is a task for the State's highest tribunal.

B. Strict products liability

The requirements for strict products liability in New York are not markedly dissimilar from those for negligent products liability. Once again: a) a duty is needed; b) that duty must be breached by the defendant's manufacture or sale of a defective product; c) the plaintiff must suffer an injury; and d) the defect must be the cause of the plaintiff's injury. The primary difference between the two causes of action is that a plaintiff may recover in strict products liability without showing that the defendant's conduct was wrongful, so long as its product was defective.

As to duty, damages, and causation, the same arguments made with respect to negligence apply here as well. And for those reasons, I believe that, in this case, the questions of damages and causation are for the jury, while the issue of duty should be certified to the New York Court of Appeals.

The additional problem with the claim of strict products liability is that the plaintiffs must establish the existence of a defect. The majority notes that the New York Court of Appeals has explained that "a defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer." Robinson v. Reed-Prentice Div. of Package Mach. Co., 403 N.E.2d 440, 443 (N.Y. 1980). Since the Black Talons performed in precisely the manner contemplated by Colin Ferguson, the majority concludes that under New York's "consumer contemplation" test, the Black Talon is not a defective product.

There is no doubt that, in order for strict products liability to apply, there must be a defect, i.e. "something wrong with the product, and if nothing is wrong there will be no liability." DeRosa v. Remington Arms Co., 509 F. Supp. 762, 769 (E.D.N Y 1981) (citation and internal quotation marks omitted). But a large number of jurisdictions have held that there is something wrong with any product that is unreasonably dangerous, "even though it comports in all respects to its intended [and obvious] design." Azzarello v. Black Bros. Co., 391 A.2d 1020, 1025 (Pa. 1978); see also Turner v. General Motors Corp., 584 S.W.2d 844, 850 (Tex. 1979). In other words, these jurisdictions employ a risk/benefit calculus to establish a design defect. "Under this approach, a product is defective as designed if . . . the magnitude of the danger outweighs the utility of the product," that is, if "the harmful consequences in fact from intended and reasonably foreseeable uses resulting from the way the product was designed and marketed up to the time of plaintiff's injury outweigh the benefits in terms of wants, desires, and human needs served by the product." Prosser Keeton, supra, Section(s) 99 at 699.

Historically, in determining whether a product is defectively designed, some courts have applied only the "risk/benefit test" while others have used only the "consumer contemplation test" alluded to by the majority. See id., Section(s) 99 at 698-700. But many courts have allowed a plaintiff to establish a defect, and hence liability, if the defendant's product fails either of these tests. See, e.g., Turner, 584 S.W.2d at 850; Barker v. Lull Eng'g Co., 573 P.2d 443, 454 (Cal. 1978).

In Robinson, the case upon which the majority relies, the New York Court of Appeals appeared to require that the plaintiff meet both tests: Where a product presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to detailed plans and specifications, it is said to be defectively designed. This rule, however, is tempered by the realization that some products, for example knives, must by their very nature be dangerous in order to be functional. Thus, a defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; that is one whose utility does not outweigh the danger inherent in its introduction into the stream of commerce.

Robinson, 403 N.E.2d at 443.

This dual requirement would be highly unusual. And more recently, the Court of Appeals, after quoting this passage from Robinson, went on to say that [i]n order to establish a prima facie case in strict products liability for design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injury.

Voss v. Black Decker Mfg. Co., 450 N.E.2d 204, 208 (N Y 1983). Significantly, this latter statement of what constitutes a prima facie case makes no mention at all of consumer expectations as a separate requirement additional to that imposed by the risk/benefit test.

Moreover, in Denny v. Ford Motor Co., 662 N.E.2d 730, 734-38 (N.Y. 1995), the Court of Appeals explained that, while the risk/benefit test is an essential element of a cause of action for design defect, the consumer contemplation test sounds more in commercial law than in torts, and is therefore an element of a claim of breach of an implied warranty. As a result, it is anything but clear whether, read in light of more recent developments in the jurisprudence of the New York Court of Appeals, Robinson in fact stands for the proposition that a plaintiff may not establish that a product was defectively designed for the purposes of attaching strict liability without proving that the product was in a condition not reasonably contemplated by the consumer.

Indeed, one recent commentator, after an extensive fifty-state survey, did not include New York on his list of the twenty-five "[s]tates which use consumer expectations as part of any test for strict liability design defects." John F. Vargo, The Emperor's New Clothes, 26 U. Mem. L. Rev. 493, 951 index 2 (1996). Instead, he noted that, while "the Robinson court mixed the consumer expectation test with a risk-utility test," id. at 822, that court may not have intended that result, see id. at 823, and, after Voss and Denny, "New York law . . . appears to relegate the consumer expectation test to the separate legal theory of warranty," id. at 837.

Significantly, the Restatement of Torts, upon which the Court of Appeals relied in Robinson, now takes the position that the existence of a design defect should be determined solely by the risk/benefit test. See Restatement (Third) of Torts: Products Liability Section(s) 2(b) cmts. c, f (Tentative Draft No. 2, 1995) [hereinafter, Restatement 3rd]. According to the most recent Restatement, the consumer contemplation test no longer applies. See id. at Section(s) 2 cmt. f (rejecting "conformance to consumer expectations as a defense" and declaring instead that "[t]he mere fact that a risk presented by a product design is open and obvious, or generally known, and that the product thus satisfies expectations, does not prevent a finding that the design is defective").

Since it is more than possible that the New York Court of Appeals would apply the risk/benefit test to determine whether the Black Talon is a defective product, and since, as discussed above, it cannot be said as a matter of law (especially by a federal court) that the benefits of the Black Talon outweigh its risks, I believe that the majority has erred in relying on the consumer expectations test to affirm the dismissal of the plaintiffs' strict liability claim.

Nonetheless, the fact that a product fails the risk/utility test may not be sufficient to give rise to strict liability. This is so because, as the majority notes, New York law has appeared to require that the plaintiff also show a reasonable alternative design before she will be permitted to recover in strict liability for a defectively designed product. See Voss, 450 N.E.2d at 208. But see Vargo, supra, at 832-37 (suggesting that, despite Voss, a showing of a reasonable alternative design is no longer required in New York after Denny); Jerry J. Phillips, The Unreasonably Unsafe Product and Strict Liability, 72 Chi.-Kent L. Rev. 129, 159 (1996) (explaining that the Court of Appeals in Denny "noted that the strict tort claim was tried on a risk-utility standard, apparently without reasonable alternative design being a necessary factor"). Moreover, it has been noted (in a controversial comment in the latest tentative draft of the third Restatement of Torts) that this requirement applies even though the plaintiff alleges that the category of product sold by the defendant is so dangerous that it should not have been marketed at all. Thus common and widely distributed products such as alcoholic beverages, tobacco, firearms, and above-ground swimming pools may be found to be defective only upon proof [that] . . . reasonable alternative designs could have been adopted. Absent [such] proof . . . courts do not impose liability based on a conclusion that an entire product category should not have been distributed in the first instance. That is, courts have not imposed liability for categories of products that are generally available and widely used and consumed, solely on the ground that they are considered socially undesirable by some segments of society.

Restatement 3rd, supra, Section(s) 2 cmt. c.

In the instant case, however, a possible alternative design does exist. It consists of the elimination of the extra-destructive "talons." The proposed Restatement contains a remarkably relevant discussion: Several courts have suggested that the designs of some products are so manifestly unreasonable, in that they have low social utility and high degree of danger, that liability should attach even absent proof of a reasonable alternative design. In large part the problem is one of how the range of relevant alternative designs is described. For example, a toy gun that shoots hard rubber pellets with sufficient velocity to cause injury to children could be found to be defectively designed within the rule of Section(s) 2(b). Toy guns that do not produce injury would constitute reasonable alternatives to the dangerous toy. Thus, toy guns that project ping pong balls, soft gelatin pellets, or water might be found to be reasonable alternative designs to a toy gun that shoots hard pellets. However, if consideration is limited to toy guns that are capable of causing injury, then no reasonable alternative will, by hypothesis, be available. In that instance, the design feature that defines which alternatives are relevant — the capacity to injure — is precisely the feature on which the user places value and of which the plaintiff complains. If a court were to adopt this characterization of the product, it could conclude that liability should attach without proof of a reasonable alternative design. The court would condemn the product design as defective and not reasonably safe because the extremely high degree of danger posed by its use or consumption so substantially outweighs its negligible utility that no rational adult, fully aware of the relevant facts, would choose to use or consume the product.

Id., Section(s) 2 cmt. d.

It is worth noting that courts and commentators have been wrestling with the questions of what is a relevant safer alternative design, and whether entire categories of products can be deemed defective in the absence of an alternative design, with increasing frequency in recent years. See, e.g., Smith v. Keller Ladder Co., 645 A.2d 1269, 1271 (N.J. Super. Ct. App. Div. 1994) (noting that in some cases, a jury might justifiably conclude "that even though there is presently no alternative design which would make a product safer, the product is so dangerous and of such little use that under the risk-utility analysis the manufacturer should bear the cost of liability of harm to others") (citation, brackets, and internal quotation marks omitted); Wilson v. Piper Aircraft Corp., 577 P.2d 1322, 1328 n. 5 (Or. 1978) (in banc) ("There might be cases in which the jury would be permitted to hold the defendant liable on account of a dangerous design feature even though no safer design was feasible. . . . If, for example, the danger was relatively severe and the product had only limited utility, the court might properly conclude that the jury could find that a reasonable manufacturer would not have introduced such a product into the stream of commerce."); Carl T. Bogus, The Third Revolution in Products Liability, 72 Chi.-Kent L. Rev. 3, 11 (1996) ("[I]f strict liability attaches to products with unreasonably dangerous features how can it not reasonably attach to unreasonably dangerous products?"); Page, supra, at 101-04; id. at 122 ("If, by definition, a product can be deemed 'defective' in its design or labeling upon proof by plaintiff that the product as designed or labeled was unreasonably dangerous, conceptually it would seem logical to classify a decision to market a whole category of products as 'defective' because of the manufacturer's failure to make an alternative marketing decision that would have withheld the product from consumers. The manufacturer's option to market would be evaluated in the same way as her option to use one of several alternative designs, warnings, or instructions-for-use."). See generally Symposium on Generic Products Liability, 72 Chi.-Kent L. Rev. 1 (1996). The New York Court of Appeals has yet to confront the issue, and should be given the opportunity to do so here.

I therefore believe that the question of whether the defendant can be held strictly liable for the alleged defective design of the Black Talon, like the question of duty, is "a complex question of New York common law for which no [controlling] New York authority can be found." Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 51 (2d Cir. 1992). And that question, again like the question of duty, will turn in substantial part on considerations of public policy. See Azzarello, 391 A.2d at 1026 (noting that the question of whether "the utility of a product outweigh[s] the unavoidable danger it may pose" is "depend[ent] upon social policy"). Accordingly, I would certify both questions.

CONCLUSION

I do not know whether the New York Court of Appeals would allow a cause of action for negligence or strict liability to proceed in this case. Nor do I know whether that Court should allow such liability. What I do know is that these questions are not for this Court to decide. And for that reason, I respectfully dissent.