Merrill v. Navegar, Inc.

28 P.3d 116, 110 Cal. Rptr. 2d 370, 26 Cal. 4th 465, 2001 Cal. Daily Op. Serv. 6704, 2001 Daily Journal DAR 8171, 2001 Cal. LEXIS 4945

• Court: California Supreme Court
• Decided: August 6, 2001
• Docket: S083466
• Status: Published

Opinions

Opinion

CHIN, J.

On July 1, 1993, Gian Luigi Ferri killed eight people and wounded six—and then killed himself—during a shooting rampage at 101 California Street, a high-rise office building in San Francisco. Survivors and representatives of some of Ferri’s victims (plaintiffs) sued defendant Nave-gar, Inc. (Navegar), which made two of the three weapons Ferri used.

We granted review to determine whether plaintiffs may hold Navegar liable on a common law negligence theory. We hold they may not, because the Legislature has declared as a matter of public policy that a gun manufacturer may not be held liable “[i]n a products liability action ... on the basis that the benefits of [its] product do not outweigh the risk of injury posed by [the product’s] potential to cause serious injury, damage, or death when discharged.” (Civ. Code, § 1714.4, subd. (a).)¹ That, in essence, is plaintiffs’ theory of recovery here: that Navegar defectively designed the weapons Ferri used because, given their particular characteristics, the benefits of making them available to the general public—which were nonexistent—did not outweigh the risk they might inflict serious injury or death when discharged. The public policy the Legislature established in section 1714.4 precludes plaintiffs from proceeding on this theory. We therefore conclude the trial court correctly granted Navegar summary judgment, and we reverse the judgment of the Court of Appeal, which reversed the trial court’s decision.

Factual Background²

Navegar is a gun manufacturer located in Miami, Florida. Doing business as Intratec, it manufactured the TEC-9, a semiautomatic assault pistol, from 1988 to 1992.³ In 1992, Navegar renamed the firearm the TEC-DC9 but did not alter its design or materials. Because Ferri used two of these unmodified TEC-DC9’s at 101 California Street, we will refer to them interchangeably as TEC-9’s, TEC-DC9’s, or TEC-9/DC9’s.

Navegar advertised the TEC-9/DC9 in a number of gun-related magazines and annuals, including Guns, Guns & Ammo, Combat Handguns, Petersen’s Handguns, Heavy Metal Weapons, and Soldier of Fortune. A typical advertisement claimed that in light of the TEC-9/DC9’s design features—including “32 rounds of firepower,” a “ ‘TEC-KOTE’ finish” and “two-step disassembly for easy cleaning”—the weapon is “ideal for self-defense or recreation,” “stands out among high capacity 9mm assault-type pistols,” and “deliver[s] more gutsy performance and reliability than Any other gun on the market.” Navegar also distributed an advertising brochure or catalog describing its guns and accessories, which it mailed to anyone interested and, on at least one occasion, printed in special issue magazines. In a page describing the TEC-KOTE finish, Navegar claimed the finish provided “natural lubicity [sic] to increase bullet velocities, excellent resistance to finger prints, sweat rust, petroleum distillates of all types, gun solvents, gun cleaners, and all powder residues. Salt spray corrosion resistance, expansion and contraction of the metal will not result in peeling of finish.” A different brochure advertising to retailers used the slogan, “Intratec: Weapons that are as tough as your toughest customer.”

Navegar included a manual with each TEC-9ZDC9 it sold. The 1993 manual contained safety warnings, technical information, and operating instructions. It also claimed the gun was “a radically new type of semiautomatic pistol,” which was “designed to deliver a high volume of firepower” and, “[t]hanks to its dimensions and designs,” could “be used in modes of fire impossible with most handguns.” Regarding the latter claim, the manual described and illustrated several recommended shooting positions, including “[h]ipfire at shortest range,” a two-handed hold with the nontrigger hand placed on the upper part of the magazine well.

In early 1993, Ferri, a Southern California resident, bought a TEC-9 from the Pawn & Gun Shop in Henderson, Nevada, after several earlier information-gathering trips to the same store. According to the salesperson, Ferri looked at a wide variety of handguns, but seemed mainly interested in a “high capacity type” gun, “something relatively compact that holds a lot of rounds.” He gave no indication he had previously heard of the TEC-9 or the Intratec brand. Despite the employee’s efforts to steer him toward better made, more expensive models, Ferri ultimately purchased a used TEC-9. Later that day, he returned the weapon, stating that he wanted a new gun instead.

On April 25, 1993, Ferri bought a new TEC-DC9 from Super Pawn, a gun store in Las Vegas, Nevada. Super Pawn had purchased the weapon from a gun distributor in Arizona, which had purchased it from Navegar. Ferri told the salesperson and another customer he wanted a gun for informal target shooting, or “plinking.” The salesperson showed Ferri only the TEC-DC9 and a gun manufactured by Clock. Although Ferri did not initially ask for a TEC-DC9 by name or indicate he recognized the names Intratec or TEC-9, he did not appear interested in any other guns. Ferri questioned the other customer about the TEC-DC9 and the Clock. The customer said that people at a shooting range would “probably laugh at” Ferri if he used a TEC-DC9 “because it wasn’t really an accurate weapon” and that a .22-caliber gun was better for “plinking” than a nine-millimeter gun because ammunition for the former was much cheaper. Ferri nevertheless chose the TEC-DC9.

Ferri purchased another TEC-DC9 on May 8, 1993, at a Las Vegas gun show from a Utah dealer. The dealer had purchased it from an Ohio distributor, which had purchased it from Navegar. As federal law required, the dealer transferred the gun to a Nevada retailer, who then delivered it to Ferri. The TEC-DC9 Ferri bought was the only handgun the Utah dealer displayed at the show, and the dealer’s price ($210) was the lowest at the show for a TEC-DC9. The dealer recalled Ferri saying he already owned a TEC-9.

To purchase the new weapons, Ferri showed an apparently valid Nevada driver’s license and answered required questions about his criminal history and residency. All of the distributors and retailers were licensed by the federal Bureau of Alcohol, Tobacco and Firearms, and, so far as the record shows, all of the transactions were legal under applicable federal and state gun control laws, other than Ferri’s misrepresentations as to his state of residence.

On July 1, 1993, Ferri entered 101 California Street carrying the TEC-9/ DC9’s and a .45-caliber Norinco Model 1911A1 pistol in a large briefcase and another bag. He had added to the TEC-DC9’s Hell-Fire brand trigger systems that made the weapons fire in rapid bursts, and he was equipped with hundreds of rounds of ammunition preloaded into 40- to 50-round magazines. He went to the 34th floor, to the office of a law firm he held a grudge against, and started shooting. During his rampage, he killed eight people and wounded six on three different floors, and then killed himself.

San Francisco police investigated Ferri’s crimes. Inspectors Napoleon Hendrix and Prentice Earl Sanders led the investigation and concluded that Ferri used the TEC-9/DC9’s firepower to “lay down” a field of fire that eliminated or reduced the opportunity of his intended victims to escape before he completed his attack. During a search of Ferri’s apartment, the police found two TEC-DC9 manuals, one Intratec catalog (brochure), and two price lists. The catalog and price lists had a single fold, which, according to Navegar’s customer service representative, was the invariable manner of folding catalogs for inclusion with TEC-9/DC9’s the company sold; in contrast, mailed catalogs were folded twice or not at all. The brochure in Ferri’s apartment did not state that the TEC-KOTE finish resisted fingerprints; instead, it stated, “excellent resistance to body perspiration, rust,” etc. The police also found “numerous magazines advertising weapons and paramilitary equipment,” including Soldier of Fortune and Guns. However, they preserved only a few of the magazines, none of which contained a Navegar advertisement. Inspector Sanders did “not recall” finding “any TEC-DC9 magazine advertisement in Ferri’s apartment,” and the inspectors found “no evidence” that any advertisement caused Ferri to travel to Nevada to purchase the TEC-DC9’s.

Procedural Background

Plaintiffs’ first amended complaint asserted a cause of action against Navegar for “common law negligence.” In this claim, plaintiffs alleged that Navegar knew or should have known that: (1) the TEC-9/DC9 is a “small, easily concealable military assault weapon[]”; (2) it has “no legitimate sporting or self-defense purpose and is particularly well adapted to a military-style assault on large numbers of people”; (3) it is “disproportionately associated with criminal activity”; (4) it is “more attractive to criminals” because of its “firepower” and “other features”; (5) its “firepower was likely to be enhanced by the addition of products such as high-capacity magazines” and “the Hell-Fire trigger system”; and (6) it “would be used to kill or injure innocent persons in violent criminal acts such as the mass killing committed by Ferri.” Plaintiffs also alleged that Navegar “acknowledges that publicity surrounding the [TEC-9/DC9’s] reputation as a weapon favored by criminals increases its sales.” Thus, plaintiffs alleged, Navegar “acted negligently by manufacturing, marketing, and making available for sale to the general public” the TEC-9/DC9.

The first amended complaint also asserted causes of action against Nave-gar for negligence per se and strict liability for an abnormally dangerous activity. As to the latter, plaintiffs alleged that Navegar was strictly liable because “making the [TEC-9/DC9] available for sale to the general public” was “an abnormally dangerous activity.” As to negligence per se, plaintiffs alleged that Navegar violated the Roberti-Roos Assault Weapons Control Act of 1989 (AWCA) (see Pen. Code, §§ 12275.5, 12276) by advertising the TEC-9/DC9 in California and that this advertising “was the direct and legal cause in bringing about plaintiffs’ injuries” because it “was a substantial factor in causing Ferri to acquire” the Navegar weapons he used.

Navegar moved for summary judgment. As to common law negligence, it argued it owed plaintiffs no duty not to advertise the TEC-9/DC9 and that plaintiffs had no evidence Ferri saw or was affected by a Navegar advertisement.

In opposing the motion, plaintiffs argued that Navegar had misconstrued the ordinary negligence claim. They explained that, contrary to Navegar’s assertion, their negligence claim did “not depend on whether” Navegar had a “duty . . . not to advertise” or “whether there is a causal link between Navegar’s advertising and plaintiffs’ injuries. RO From the start, plaintiffs have made clear their ordinary negligence claim is not based on Navegar’s negligent advertising but rather its decision to ‘make available for sale to the general public guns . . . which [it] knew or should have known have “no legitimate sporting or self-defense purpose” and which are “particularly well-adapted to a military-style assault on large numbers of people.” ’ [Citation.] Simply put, Navegar breached a duty of care by making the TEC-9 available to the general public,” i.e., “by releasing the weapons for sale to the general public even though it knew or should have known that the TEC-9 was particularly attractive to criminals and particularly suited for mass killings.” Plaintiffs concluded their argument regarding duty by asserting that “Navegar breached a legal duty to forebear [sic] distributing the TEC-9 to the general public given the likelihood that doing so would lead to the sort of violent criminal act that occurred at the 101 California Street Building.”

As to causation, plaintiffs also argued that in light of their negligence theory, “whether Ferri actually saw or was influenced by any particular Navegar advertising is immaterial. [Fn. omitted.]” They explained: “[T]he ordinary negligence claim is directed to Navegar’s conduct in making the TEC-9 available to the public. It is that unreasonable conduct that was a substantial factor in causing plaintiffs’ injuries, not Navegar’s marketing efforts.” “Navegar’s advertising is only material to the ordinary negligence claim in that it underscores that the criminal use of the weapon was foreseeable to Navegar. . . . R[] Plaintiffs are not alleging that Ferri was induced to purchase the TEC-DC9’s or to commit the 101 massacre by any particular advertisements. The significance of the advertisements is what they say about [Navegar’s] knowledge of [its] market.”

In reply, Navegar argued that section 1714.4 barred plaintiffs’ “benefit-risk” theory of negligence, which plaintiffs premised on the allegation that TEC-9/DC9’s “are used disproportionately to commit crimes and have no sporting or self-defense utility.” Navegar also reasserted its argument that plaintiffs had no evidence Ferri saw or was affected by a Navegar advertisement.

The trial court granted Navegar’s motion. As to common law negligence, it first observed that negligence liability does not exist absent a duty of care, and that plaintiffs claimed Navegar owed them a duty of care in part because the TEC-9ZDC9 has “no legitimate use other than the killing and maiming of human beings, i.e., [its] potential for harm substantially outweighs any possible benefit to be derived from [it].” The trial court also observed that plaintiffs’ negligence claim was not, as Navegar initially asserted, based on a duty not to advertise, but was “based on Navegar’s decision to make available for sale to the general public assault-type guns which it knew or reasonably should have known have ‘no legitimate sporting or self-defense purpose,’ and which are ‘particularly well-adapted to a military-style assault on large numbers of people.’ ” Emphasizing that Navegar had “legally manufactured and sold” the TEC-9ZDC9’s Ferri used, the trial court then held that California common law did not impose on Navegar a duty “not to manufacture or sell assault weapons.” The court explained that “[i]n case after case, jurisdiction after jurisdiction, courts have refused to impose a duty upon manufacturers of firearms not to sell their products merely because of the potential misuse of the product by a third party. [Fn. omitted.]” In a footnote, the court rejected Navegar’s reliance on section 1714.4, finding the statute inapplicable because plaintiffs were not asserting a “products liability theory.”

As to negligence per se, the court found that plaintiffs’ evidence failed to create a triable factual issue as to whether the advertisements influenced Ferri to purchase TEC-9/DC9’s or to undertake his attack at 101 California Street. The court explained that “the links that plaintiffs seek to establish between advertisements and carnage amount to little more than guesswork.” Finally, as to strict liability for an ultrahazardous activity, the court held that as a matter of law, the manufacture and distribution of a firearm, even an assault weapon, is not inherently dangerous.

Plaintiffs appealed the trial court’s decision as to the common law negligence and ultrahazardous activity claims. The Court of Appeal unanimously affirmed as to ultrahazardous activity but, by a divided vote, reversed as to negligence. Regarding negligence, the majority first stated that because “the risk of harm from the criminal misuse of firearms is always present” in our society, “the manufacturer and distributor of a legal and nondefective firearm may not be found negligent merely because it manufactured and/or distributed the weapon.” Nevertheless, the majority concluded that Navegar had “a legal duty not to manufacture, market and distribute this weapon in a manner that increases the risk of harm inherent in the presence of handguns in society.” The majority based imposition of this duty on “the strength of the evidence that the harm appellants suffered was or should have been foreseeable, the equally strong evidence Navegar’s marketing increased the risk of such harm, and the evidence that there is no legitimate civilian use for the TEC-DC9.” The majority also found triable factual issues as to whether the TEC-9/DC9 was “commonly used for illegal and injurious purposes, and whether [Navegar] knew or should have known that its targeted marketing of that product increased the likelihood of such harm.” The majority also found triable factual issues as to causation. In reaching its conclusion, the majority agreed with the trial court that section 1714.4 was inapplicable because “this is riot a ‘products liability action.’ ”

The dissenting Court of Appeal justice disagreed with the majority on virtually all of these points, arguing that the majority substituted its own theory of duty for the theory plaintiffs had consistently urged, disregarded precedent declining to impose a duty to guard against third parties’ criminal acts, ignored or mischaracterized other decisions declining to impose a duty not to make or sell a gun, and relied on speculation to support its holding on causation.

We granted Navegar’s petition for review. Plaintiffs did not petition for review and have not otherwise asked us to consider the Court of Appeal’s holding regarding their ultrahazardous activity claim, Therefore, the only question before us is whether plaintiffs may proceed on their common law negligence claim.

Discussion

A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612 [76 Cal.Rptr.2d 479, 957 P.2d 1313].) In the trial court, once a moving defendant has “shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,” the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff “may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .” (Code Civ. Proc., § 437c, subd. (o)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 [107 Cal.Rptr.2d 841, 24 P.3d 493].)

To prevail on their negligence claim, plaintiffs must show that Navegar owed them a legal duty, that it breached the duty, and that the breach was a proximate or legal cause of their injuries. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188 [91 Cal.Rptr.2d 35, 989 P.2d 121].) The only elements we consider here are duty and causation.

“To say that someone owes another a duty of care ' “is a shorthand statement of a conclusion, rather than an aid to analysis in itself. . . . ‘[D]uty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” [Citation.]’ [Citation.] ‘[L]egal duties are not discoverable facts of nature, but merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.’ [Citation.]” (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 933 [80 Cal.Rptr.2d 811, 968 P.2d 522].)

The existence and scope of duty are legal questions for the court. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137, 863 P.2d 207].) In determining those questions, we “begin always with the command of . . . section 1714, subdivision (a): ‘Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person . . . .’ ” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 885 [2 Cal.Rptr.2d 79, 820 P.2d 181].) There are, however, exceptions to this rule. Some are established by the Legislature through enactment of statutes. Others are judicially established where “clearly supported by public policy. [Citations.]” (Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496] (Rowland).) Before judicially establishing an exception based on public policy, courts consider a variety of factors; “the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]” (Id. at p. 113.)

As we have explained, in the trial court, Navegar argued in effect that the Legislature, through section 1714.4, established an exception that applies in this case. Section 1714.4 provides: “(a) In a products liability action, no firearm or ammunition shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged. [II] (b) For purposes of this section: [1[] (1) The potential of a firearm or ammunition to cause serious injury, damage, or death when discharged does not make the product defective in design. [H] (2) Injuries or damages resulting from the discharge of a firearm or ammunition are not proximately caused by its potential to cause serious injury, damage, or death, but are proximately caused by the actual discharge of the product. [^] (c) This section shall not affect a products liability cause of action based upon the improper selection of design alternatives, [ftj (d) This section is declaratory of existing law.” Navegar argues that this statute, by establishing a state policy of exempting manufacturers of legal, nondefective firearms “from liability for their criminal use,” bars plaintiffs’ negligence claim.

Plaintiffs respond that section 1714.4 “has no application to this case because it is not a product[s] liability action.” Plaintiffs assert that they “seek to hold Navegar liable for its negligent conduct, not for making a defective product,” and that they “make no assertion that Navegar should be liable because the risks posed by the TEC-9 outweigh its benefits.” More specifically, plaintiffs assert Navegar is liable because of the TEC-9/DC9’s “negligent design, distribution, and marketing,” or, as plaintiffs alternatively state, because Navegar “negligently designed, distributed, and marketed” the weapon.

In resolving these conflicting claims, we begin with basic tort principles. As Professors Prosser and Keeton explain, “Products liability is the name currently given to the area of the law involving the liability of those who supply goods or products for the use of others to purchasers, users, and bystanders for losses of various kinds resulting from so-called defects in those products.” (Prosser & Keeton, Torts (5th ed. 1984) § 95, p. 677.) As relevant here, a plaintiff may seek recovery in a “products liability case” either “on the theory of strict liability in tort or on the theory of negligence.” (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387 [93 Cal.Rptr. 769, 482 P.2d 681, 52 A.L.R.3d 92] (Jiminez); see also Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 474 [85 Cal.Rptr. 629, 467 P.2d 229] (Pike) [“ ‘the negligence principle has been widely accepted in products liability cases’”]; Lambert v. General Motors (1998) 67 Cal.App.4th 1179 [79 Cal.Rptr.2d 657] (Lambert); Prosser, Strict Liability to the Consumer (1966) 18 Hastings L.J. 9, 10-21.) The rules of products liability “focus responsibility for defects, whether negligently or nonnegligently caused, on the manufacturer of the completed product.” (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 261 [37 Cal.Rptr. 896, 391 P.2d 168] (Vandermark).) Thus, under either a negligence or a strict liability theory of products liability, to recover from a manufacturer, a plaintiff must prove that a defect caused injury. (Jiminez, supra, 4 Cal.3d at p. 383; Prosser, Strict Liability to the Consumer, supra, 18 Hastings L.J. at pp. 50-51.) Under a negligence theory, a plaintiff must also prove “an additional element, namely, that the defect in the product was due to negligence of the defendant.” (Prosser, Strict Liability to the Consumer, supra, 18 Hastings L.J. at pp. 50-51; see also Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 128 [104 Cal.Rptr. 433, 501 P.2d 1153] [strict liability theory “dispense[s] with negligence as the basis of recovery in defective products cases”].)

A plaintiff may base a products liability claim on a defect in either the design or manufacture of a product. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560 [34 Cal.Rptr.2d 607, 882 P.2d 298].) In a strict liability action based on defective design, “a product is defective . . . either (1) if the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if . . . the benefits of the challenged design do not outweigh the risk of danger inherent in such design.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 418 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1] (Barker).) In applying the latter standard—which we will refer to as a risk/benefit test—“a jury may consider, among other relevant factors, the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.” (Id. at p. 431.)

Similarly, in a products liability action based on negligence in the design of a product “placed on the market,” the test of negligent design “involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm.” (Pike, supra, 2 Cal.3d at p. 470.) As Professors Prosser and Keeton explain in the Products Liability chapter of their treatise: “A manufacturer or other seller can be negligent in marketing a product because of the way it was designed. In short, even if a seller had done all that he could reasonably have done to warn about a risk or hazard related to the way a product was designed, it could be that a reasonable person would conclude that the magnitude of the reasonably foreseeable harm as designed outweighed the utility of the product as so designed.” (Prosser & Keeton, Torts, supra, § 96, p. 688.) Thus, “most of the evidentiary matters” relevant to applying the risk/benefit test in strict liability cases “are similar to the issues typically presented in a negligent design case.” (Barker, supra, 20 Cal.3d at p. 431.) This similarity is not surprising, because to say that a product was “ ‘negligently designed’ ” is to say it “ ‘was defective, for purposes of establishing liability under a theory of negligence.’ [Citation.]” (Lambert, supra, 67 Cal.App.4th at p. 1184.) This similarity also is not accidental; over the years, we have incorporated a number of negligence principles into the strict liability doctrine, including Barker’s risk/benefit test. (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1005-1006 [281 Cal.Rptr. 528, 810 P.2d 549].)

Under these principles, we reject plaintiffs’ argument that section 1714.4 is inapplicable because this case “is not a produces] liability action.” As noted, the basis of their argument, which the dissent essentially adopts (see dis. opn. of Werdegar, J., post, at pp. 493-494, 513-517), is that they seek to hold Navegar liable for “negligent conduct, not for making a defective product,” and that they “make no assertion that Navegar should be liable because the risks posed by the TEC-9 outweigh its benefits.” However, that plaintiffs rely on “negligent conduct” is not determinative; as we have explained, a plaintiff may, in fact, premise a “products liability case” on the “negligence of the defendant.” (Jiminez, supra, 4 Cal.3d at p. 383.) As our discussion also demonstrates, in asserting that the TEC-9/DC9 had a “negligent design” and that Navegar “negligently designed” it, plaintiffs have in fact alleged that the TEC-9/DC9 is, in the words of section 1714.4, subdivision (a), “defective in design.”

Moreover, contrary to the assertion of plaintiffs and the dissent (see dis. opn. of Werdegar, J., post, at p. 515), the record demonstrates that plaintiffs do, in fact, seek to hold Navegar liable precisely because, as the trial court stated, the TEC-9/DC9’s “potential for harm substantially outweighs any possible benefit to be derived from [it].” In their brief, plaintiffs assert that Navegar is liable because it “designed and widely distributed a weapon uniquely suited for mass killing and lacking legitimate civilian uses.” Plaintiffs further assert: “While the record contains abundant evidence of the disproportionately criminal use of the TEC-9, it is utterly ‘bereft of any persuasive evidence that it is suitable or commonly employed for any other civilian use.’ [Citation.] Underscoring what the evidence here confirms, the California Legislature enacted the AWCA to ban the gun. It expressly declared [in Penal Code section 12275.5] that TEC-9’s and other assault weapons are particularly attractive for violent criminal use, ‘serve no . . . sporting purpose for honest citizens,’ and the proliferation of these guns ‘poses a threat to the health, safety and security of all citizens of this state.’ ” Thus, plaintiffs argue, “[t]he Legislature has restricted the [TEC-9] based upon a finding that [it] has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is outweighed by the danger that it can be used to kill or injure human beings.” As our previous discussion shows, these allegations squarely fit within the risk/ utility test for defective design that applies in a products liability action under both negligence and strict liability theories. Using the words of the risk/utility test for both products liability theories, plaintiffs essentially allege, argue and hope to prove that the TEC-9/DC9 is defective in design. Thus, despite the contrary view of plaintiffs and the dissent (dis. opn. of Werdegar, J., post, at pp. 492-493, 515), this is a products liability action based on negligence, which asserts that the TEC-9/DC9 was defective in design because the risks of making it available to the general public outweighed the benefits of that conduct, and that defendants knew or should have known this fact. Plaintiffs may not avoid this conclusion, or the legislative policy section 1714.4 reflects, simply by declining to use the word “defect” or “defective.”

Nor, contrary to the view of plaintiffs and the dissent, may plaintiffs avoid section 1714.4 simply by reformulating their claim as one for negligent distribution to the general public. As our previous discussion demonstrates, implicit in both the negligence and strict liability theories of products liability is that the defendant manufacturer was “engaged in the business of distributing goods to the public.” (Vandermark, supra, 61 Cal.2d at p. 262; see also Pike, supra, 2 Cal.3d at p. 470 [defining manufacturer’s duty in designing products “placed on the market”].) Thus, plaintiffs’ allegation that Navegar made the TEC-9/DC9 available to the general public adds nothing to the standard products liability action. Plaintiffs’ claim that Navegar’s decision to distribute the TEC-9/DC9 to the general public was negligent given the weapon’s particular design features is therefore simply a reformulated claim that the weapon, as designed, fails the risk/benefit test. The same is true of the dissent’s negligence theory, which evaluates Navegar’s conduct based on a weighing of the risks (known attractiveness to violent users) and benefits (lack of legitimate civilian use) of the TEC-9/DC9 in light of its design. (Dis. opn. of Werdegar, J., post at pp. 493-494, 515.) This conclusion is fully consistent with the “tendency among courts,” as reported in one of the law review articles the dissent cites (dis. opn. of Werdegar, J., post, at p. 513, fn. 11), “to view” claims of negligent distribution to the general public “as being essentially design defect claims in disguise . . . .” (Lytton, Halberstam v. Daniel and the Uncertain Future of Negligent Marketing Claims Against Firearms Manufacturers (1998) 64 Brook. L.Rev. 681, 684; see also Prosser & Keeton, Torts, supra, § 96, p. 688 [products liability includes manufacturer’s negligence “in marketing a product because of the way it was designed” where “a reasonable person would conclude that the magnitude of the reasonably foreseeable harm as designed outweighed the utility of the product as so designed”].) We therefore reject the view of plaintiffs and the dissent that plaintiffs’ claim for negligent distribution to the general public falls outside of section 1714.4’s scope.

The relevant legislative history supports our conclusion that section 1714.4 bars plaintiffs’ negligence claim. The Legislature enacted section 1714.4 in 1983 by passing Assembly Bill No. 75 (1983-1984 Reg. Sess.) (Assembly Bill No. 75). The bill originated as a legislative response to the filing of numerous “ ‘product liability’ lawsuits by victims of handguns who [were] seeking damages from firearms manufacturers and dealers.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.), as amended May 11, 1983, p. 1.) According to an analysis of the Senate Judiciary Committee (Senate Analysis), the plaintiffs in these cases argued that the firearms were “ ‘inherently defective products because the danger posed by such items f[a]r outweighs any social benefits.’ ” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.) as amended May 25, 1983, p. 7.) More specifically, they asserted that “the availability of ‘Saturday Night Special’ handguns to the general public causes widespread damage and severe harm without conferring any substantial social benefit.” (Id. at p. 9.) The Senate Analysis described the bill’s “purpose” as follows: (1) “to protect manufacturers and sellers of firearms from being held liable in tort for selling or furnishing a firearm that was used to cause an injury or death”; (2) “to preclude courts from using products liability theories to hold firearm manufacturers and dealers civilly liable to victims of firearms usage”; (3) “to prevent the courts from extending products liability laws to hold a supplier of a firearm liable in tort to persons injured by use of the weapon”; and (3) “to ‘stop at birth’ the notion that manufacturers and dealers are liable in products liability to victims of handgun usage.” (Id. at pp. 2, 3, 7.) It would obviously frustrate these legislative purposes to permit plaintiffs to proceed with their claim that Navegar is liable because the risks of selling the TEC-9/DC9 to the general public outweighed the benefits.

According to plaintiffs and the dissent (dis. opn. of Werdegar, J., post, at pp. 515-516), revisions to the original language of Assembly Bill No. 75 during the process that led to section 1714.4’s enactment confirm the statute’s inapplicability. As introduced, Assembly Bill No. 75 proposed adding a subdivision to section 1714 that stated in part: “The furnishing of firearms or ammunition, with or without consideration, is not the proximate cause of injuries resulting from the use of firearms or ammunition, but rather the wrongful misuse of firearms or ammunition is the proximate cause of injuries inflicted upon another by the use or a firearm or ammunition.” (Assem. Bill No. 75 (1983-1984 Reg. Sess.) as introduced Dec. 8, 1982.) Plaintiffs argue that this language, which would have established “a broader exemption,” was “amended during the legislative process to make clear that it only limited the application of certain product liability theories and did not create any immunity from negligence liability.”

For several reasons, we disagree. First, plaintiffs incorrectly assume that an action based on negligence is necessarily not a products liability action. Plaintiffs correctly recognize that, according to section 1714.4’s legislative history, the Legislature intended to bar not just one theory of products liability, but to bar certain “products liability theories.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.) as amended May 25, 1983, p. 2.) However, they fail to recognize that, as we have explained, negligence is one of the theories on which a products liability action may be based. As we have also explained, in products liability actions based on a design defect, both the negligence theory and the strict liability theory involve a risk/benefit analysis (unless the plaintiff asserts a strict liability claim based on the consumer expectation theory). It is logical to conclude that these were the “products liability theories” that, according to the Senate Analysis, the Legislature intended to foreclose in passing section 1714.4. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.) as amended May 25, 1983, p. 2.)

Second, the legislative history suggests the Legislature revised the bill during the enactment process to .preserve claims far different from the claim plaintiffs assert. The Senate Analysis noted concern that the original language would preclude claims for “negligent entrustment” and other, unidentified “form[s] of negligent furnishing.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.) as amended May 25, 1983, p. 3.) Specifically, “opponents of th[e] bill claim[ed] that Assembly Bill No. 75 would eliminate any responsibility for the consequences when a merchant sells a firearm to a customer who is obviously drunk or insane or who is a minor.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.) as amended May 5, 1983, p. 3.) As enacted, section 1714.4 may not affect such claims. However, as plaintiffs asserted in the trial court, they “have not brought a negligent entrustment claim .... [Tjheir negligence claim is based on [Navegar’s] decision to make available to the general public (not a specific individual) [its] highly dangerous products.” (Cf. Coulter v. Superior Court (1978) 21 Cal.3d 144, 147 [145 Cal.Rptr. 534, 577 P.2d 669] [furnishing alcohol to an “obviously intoxicated” person]; Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 116 [11 Cal.Rptr.2d 468] [discussing liability for “negligent entrustment of a dangerous instrumentality to a person who the supplier knows, or has reason to know, is a danger to himself or herself, or others”].)

To the extent plaintiffs argue the Legislature revised the original language to preserve some other, unidentified and undefined form of “negligent furnishing,” we cannot properly conclude, as does the dissent, that the Legislature intended to preserve a claim based on a manufacturer’s alleged negligence in “selling” its firearm “to the general public.” (Dis. opn. of Werdegar, J., post, at p. 515.) That interpretation would preserve precisely the type of lawsuit that, according to the legislative history, the Legislature intended to foreclose, in which the plaintiffs “asserted that the availability of ‘Saturday Night Special’ handguns to the general public cause[d] widespread damage and severe harm without conferring any substantial social benefit.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.) as amended May 25, 1983, p. 9, italics added.) It would also render section 1714.4 useless; in every case involving injuries from firearms, the plaintiffs could avoid the statute simply by adding to their risk/utility analysis the allegation that the manufacturer was negligent in making the weapon available to the general public. Finally, to address the concern about negligent furnishing, the Senate Analysis proposed limiting the statute “to products liability.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.) as amended May 25, 1983, p. 3.) That, of course, is precisely what the Legislature did. As we have already explained, implicit in the doctrine of products liability is that the defendant manufacturer distributed goods to the public, so plaintiffs’ allegation that Navegar made the TEC-9/DC9 available to the general public adds nothing to the standard products liability action. Accordingly, any revisions the Legislature made to preserve “negligent entrustment” or “negligent furnishing” claims did not render section 1714.4 inapplicable to plaintiffs’ claim.

The Senate Analysis also noted concern that the original language would preclude liability where the product was “unsafe because the design failed to incorporate some safety measures . . . .” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.) as amended May 25, 1983, p. 6.) This concern perhaps led to addition of subdivision (c) of section 1714.4, which provides that the statute “shall not affect a products liability cause of action based upon the improper selection of design alternatives.” However, plaintiffs have disavowed any claim under this subdivision. They do not argue that the TEC-9/DC9 was unsafe because it failed to have certain safety measures, or that Navegar should have designed the TEC-9ZDC9 in some other way. They claim only that Navegar should not have made it available to the general public because, given its particular features, the risks that someone would use it criminally as Ferri did outweighed its nonexistent legitimate benefits. Construing the exception in subdivision (c) to encompass this claim would eviscerate section 1714.4’s primary purpose.

The Senate Analysis also noted concern the original language would foreclose strict liability based on Barker's consumer expectation test for product defect, which is an alternative to the risk/benefit test. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.) as amended May 25, 1983, p. 7; see also Barker, supra, 20 Cal.3d at p. 416.) The Senate Analysis explained that the lawsuits the proposed legislation intended to foreclose were “not based on the consumer expectancy test, which is generally used in actions involving accidental injury, and it would appear unnecessary, if not undesirable, to require proof of a malfunction in cases where the product failed to perform as safely as expected.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.) as amended May 25, 1983, p. 7.) This concern may explain why the Legislature amended the bill’s language to focus precisely on the risk/benefit test for a product defect. Notably, when it made this change, the Legislature did not use the term “strict liability,” which on its face would not have included use of the risk/benefit analysis in a negligence action. Instead, it referred more broadly to “products liability actions” (§ 1714.4, subd. (a)), which, as we have explained, includes both negligence and strict liability theories of recovery for a design defect based on a risk/benefit analysis (unless the plaintiff asserts only a strict liability claim based on the consumer expectation theory). In summary, the revisions that occurred during section 1714.4’s enactment process do not persuade us the Legislature either intended to exclude or in fact excluded plaintiffs’ negligence claim from the statute’s reach.⁴

In any event, even were plaintiffs correct that section 1714.4 applies by its terms only to the strict liability theory of products liability, given the overlap between the strict liability and negligence theories of products liability, we would find that the policy the statute establishes bars plaintiffs’ claim. As we have explained, under both theories, a plaintiff must show that a product defect caused injury. (Jiminez, supra, 4 Cal.3d at p. 383.) However, “[sjtrict products liability differs from negligence in one key respect: it obviates the need for a plaintiff to show a manufacturer knew or should have known of the risk posed by his product—i.e., whether the manufacturer acted reasonably.” (Kearl v. Lederle Laboratories (1985) 172 Cal.App.3d 812, 822 [218 Cal.Rptr. 453].) Plaintiffs’ counsel recognized this overlap at oral argument, explaining that by proceeding on a negligence theory, plaintiffs “are assuming an additional burden here; that is the burden of showing fault. And [plaintiffs are] not contending that there isn’t some element of balancing risks versus benefits in a fault-based case. That kind of weighing is inherent in the Rowland v. Christian factors. The point is that the weighing has to rise to the level that the risks so outweigh the benefits, taking into account all the other Rowland factors, that it can be said that the activity of the defendant violates a standard of reasonable care.” We find no indication that in enacting section 1714.4, the Legislature intended to prohibit a jury from weighing the risks and benefits of a firearm in considering strict liability while allowing it to perform the same task in a negligence action to determine whether the risks so outweighed the benefits that the manufacturer breached a duty of care.

The absence of any such indication is not surprising, given that the availability of such negligence liability would effectively render section 1714.4 useless. As the Court of Appeal majority observed, “the risk of harm from the criminal misuse of firearms is always present in a society such as ours, in which the presence of firearms is fairly widespread and many individuals possess the capacity to criminally misuse them.” Thus, virtually every person suing for injuries from firearm use could offer evidence the manufacturer knew or should have known the risk of making its firearm available to the public outweighed the benefits of that conduct, and could therefore raise a triable issue of fact for the jury. In each of these cases, the jury would be asked to do precisely what section 1714.4 prohibits: weigh the risks and benefits of a particular firearm. The result would be to resurrect the very type of lawsuit the Legislature passed section 1714.4 to foreclose, in which the plaintiffs “asserted that the availability of ‘Saturday Night Special’ handguns to the general public cause[d] widespread damage and severe harm without conferring any substantial social benefit.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.) as amended May 25, 1983, p. 9.) Because the Legislature, in section 1714.4, has precluded a weighing of the risks and benefits of selling a firearm to the general public in determining whether the firearm is defective, we conclude that neither a court nor a jury may undertake this same task simply because a plaintiff alleges and offers evidence the manufacturer knew or should have known the risks outweighed the benefits.⁵

In finding section 1714.4 inapplicable, the Court of Appeal majority relied in part on policy statements in the AWCA. According to the Court of Appeal majority, “[t]he statements in the AWCA that the TEC-9, like other assault weapons, ‘has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings’ (Pen. Code,. § 12275.5), and that such weapons ‘are particularly dangerous in the hands of criminals and serve no necessary hunting or sporting purpose for honest citizens’ (Stats. 1989, ch. 19, § 5, pp. 69-70), amount to a legislative rislc/benefit analysis. Nothing in section 1714.4 suggests that the judiciary must blind itself to such a legislative declaration when it reflects a policy relevant to determination of the duty to exercise due care in a negligence action.”

Unlike the Court of Appeal, we find that the AWCA does not render section 1714.4 inapplicable. The Court of Appeal majority effectively read the AWCA policy statements as an implied repeal of section 1714.4 as it applies to any of the firearms the AWCA specifies. However, “‘[a]ll presumptions are against a repeal by implication. [Citations.]’ [Citation.] Absent an express declaration of legislative intent, we will find an implied repeal ‘only when there is no rational basis for harmonizing the two potentially conflicting statutes [citation], and the statutes are “irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.” ’ [Citation.]” (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476-477 [66 Cal.Rptr.2d 319, 940 P.2d 906].) The AWCA contains no express declaration of legislative intent to repeal section 1714.4 or to affect it in any way. Nor does anything in the AWCA’s legislative history suggest that one of its purposes was to establish an exception to section 1714.4 for the listed weapons. Nor are the statutes so inconsistent that they cannot concurrently operate; that the AWCA imposes restrictions and criminal penalties based on a legislative assessment of risks and benefits is not irreconcilable with prohibiting civil liability based on such an assessment. We would read too much into the AWCA if we found in it the expression of a state policy that manufacturers of specified assault weapons may be civilly liable based on an assessment of the risks and benefits of making their product available to the general public, at least when they comply with the AWCA.⁶

Finally, we also conclude that the evidence in the record regarding Navegar’s promotional activities and the literature it distributed with the TEC-9/DC9 does not save plaintiffs’ negligence claim. As we have previously explained, in opposing Navegar’s summary judgment motion, plaintiffs insisted that “their ordinary negligence claim” was not “directed to” or “based on Navegar’s negligent advertising but rather its decision to make [the TEC-9/DC9] available for sale to the general public . . . .” Thus, they argued, their claim depends solely on “a legal duty to forebear [szc] distributing the TEC-9 to the general public,” and not on a “duty . . . not to advertise.” Plaintiffs also insisted that it was Navegar’s “unreasonable conduct” in “mating the TEC-9 available to the public . . . that was a substantial factor in causing [their] injuries, not Navegar’s marketing efforts.” Thus, they maintained, “whether Ferri actually saw or was influenced by any particular Navegar advertising is immaterial. [Fn. omitted.]” Plaintiffs further explained that under their negligence theory, “Navegar’s advertising is only material to the ordinary negligence claim in that it underscores that the criminal use of the weapon was foreseeable to Navegar. . . . [H] Plaintiffs are not alleging that Ferri was induced to purchase the TEC-DC9’s or to commit the 101 massacre by any particular advertisements. The significance of the advertisements is what they say about [Navegar’s] knowledge of [its] market.”

Plaintiffs have adhered to this position on appeal. In their briefs in the Court of Appeal, they explained that their “ordinary negligence claim has never hinged on proof that Ferri’s 101 California Street massacre was caused by him seeing or being influenced by a Navegar advertisement. [Fn. omitted.] Rather, causation flows from Navegar’s conduct in mating the high-firepower TEC-9 available to the public. It is that unreasonable conduct that was a substantial factor in causing [plaintiffs’] injuries, not Navegar’s advertising per se. [Fn. omitted.]” Plaintiffs also asserted in the Court of Appeal that Navegar’s advertising was relevant only to show that Navegar “foresaw that the TEC-9 would be used by persons like Ferri to commit violent acts.”⁷ Consistently, in their brief to this court, plaintiffs “disavow reliance on [the] ‘theory of negligent marketing per se,’ ” noting that they merely “ ‘place [Navegar’s] marketing within the context of the overall duty they assert Navegar breached.’ ” Given these assertions, it would be inappropriate to overturn the trial court’s decision on a “negligent marketing” theory. (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29 [21 Cal.Rptr.2d 104].)

In any event, the evidence in the record fails to raise a triable factual issue as to whether Navegar’s advertising and literature were substantial factors in causing plaintiffs’ injuries. Regarding this question, plaintiffs’ counsel asserted at oral argument that “Navegar’s liability does not depend on its telling the public, here’s a great gun to commit a crime,” but on its “communicating] a message that people who want above all else in their weapons firepower, the capacity to shoot many, many rounds without the need to reload, and to use that gun in a combat fashion, this is the gun for you.” Similarly, in their causation argument in their brief, plaintiffs focus on “Navegar’s promotion of the TEC-9 and glorification of its capabilities.” However, in light of section 1714.4, plaintiffs may not base negligence liability on materials that simply describe the physical and functional features of the TEC-9/DC9 (i.e., lightweight, inexpensive, high-capacity, nine-millimeter) or its manner of operation. Because section 1714.4 precludes recovery on the theory that, given the TEC-9/DC9’s particular features, Navegar should not have made it available to the general public, the statute necessarily also precludes recovery for simply telling the public and purchasers about those features.

To the extent plaintiffs rely on allegedly more inflammatory aspects of Navegar’s advertising, they fail to raise a triable factual issue regarding causation. For example, they offer no evidence, direct or circumstantial, that Ferri ever saw the promotional materials sent to dealers, which used the phrase “tough as your toughest customer,” or the early version of the TEC-KOTE product brochure description, which promised “excellent resistance to fingerprints.” Moreover, plaintiffs do not dispute that: (1) San Francisco police inspectors did “not recall” finding “any TEC-DC9 magazine advertisement in Fern’s apartment” and found “no evidence” that any advertisement caused Ferri to travel to Nevada to purchase the TEC-DC9’s; (2) “[t]here is otherwise no Navegar magazine advertisement in the possession of the City and County of San Francisco as evidence collected in the 101 California Street shootings”; (3) the salesperson at the Pawn & Gun Shop in Henderson, Nevada, where Ferri bought the used TEC-9, “never” saw Ferri in possession of any advertisement or literature for the TEC-9 or TEC-DC9, and never heard Ferri mention he had seen any advertisement for the TEC-9 or TEC-DC9; (4) when Ferri bought the first new TEC-9/DC9, he had no firearms advertisement or other type of literature in his possession and did not ask for the TEC-9/DC9 by name; and (5) when Ferri bought the second new TEC-9/DC9, he indicated he already owned another TEC-9/ DC9. Plaintiffs have failed to produce, or show that they will be able to produce at trial, substantial evidence “that Navegar’s marketing style was ‘a factor’ in” Fern’s conduct. (Bubalo v. Navegar, Inc. (N.D.Ill., June 13, 1997, No. 96 C 3664) 1997 WL 337218, at p. *9; see also Casillas v. Auto-Ordnance Corp. (N.D.Cal., May 17, 1996, No. C 95-3601 FMS) 1996 WL 276830, at p. *3 [granting summary judgment for gun manufacturer on negligent marketing claim in part because no evidence was presented the defendant’s advertisements “were seen by [the assailant], or were somehow the cause of [the assailant’s] violent behavior”]; Lytton, Halberstam v. Daniel and the Uncertain Future of Negligent Marketing Claims Against Firearms Manufacturers, supra, 64 Brook. L.Rev. 681, 696-698 [jury returned special defense verdict on causation in negligent marketing case where assailant testified he never saw the defendants’ advertising and their marketing conduct did not otherwise influence him].)

In arguing to the contrary, plaintiffs cite evidence that Ferri went to Nevada, where the TEC-9/DC9 was available, to buy guns for his planned attack and that the two stores where he bought TEC-9/DC9’s had Las Vegas Yellow Pages advertisements picturing, among other guns, assault weapons. Although this evidence does tend to show Ferri sought to purchase high-firepower guns, it does not tend to show Ferri went to Nevada or the stores in search of a TEC-9/DC9 or other assault pistol in response to Navegar’s marketing efforts. The existence of various high-firepower rifles and pistols would have been so widely known from other sources (especially to a reader of gun magazines as, apparently, Ferri was) as to render unjustified any inference that Navegar’s marketing efforts were a substantial factor in motivating Fern’s decision to seek such a gun. Thus, we agree with the trial court that “the links plaintiffs seek to establish between advertisements and carnage amount to little more than guesswork.” Although evidence of causation may be circumstantial, “it must be substantial”; it is insufficient where, as here, it leaves the question of causation “in the realm of mere speculation and conjecture . . . .” (Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 471 [106 P.2d 895].)

In finding a triable factual issue regarding causation, the Court of Appeal majority relied heavily on Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51 [107 Cal.Rptr. 45, 507 P.2d 653, 94 A.L.R.3d 1059] (Stevens).8 There, the plaintiffs were the survivors of a woman who died from ingesting Chloromycetin, a toxic antibiotic. At trial, they succeeded on their claim against the drug’s manufacturer, Parke, Davis & Company (Parke, Davis), for negligent “overpromotion” of the drug that caused its prescription in inappropriate cases. (Id. at pp. 57-59.) The prescribing physician, Dr. Beland, testified he had received visits from drug salesmen and read medical journals in which Parke, Davis advertised the drug, but he “could not remember specific instances in which he received any information, promotional or otherwise, directly from Parke, Davis . . . .” (Id. at p. 68, fn. 16.) Nevertheless, we found the evidence of causation sufficient to support the verdict: “Like many others of the profession, [Dr. Beland] had been exposed to the promotional tactics employed by Parke, Davis. It is reasonable to assume that the company’s efforts consciously or subconsciously influenced him. In addition, plaintiff introduced expert testimony by a physician that the advertising and promotion of the drug ‘played a role’ in inducing physicians to prescribe it when it was not sound practice to do so. The jury could reasonably infer from the above circumstantial evidence that Dr. Beland was induced by the manufacturer’s activities to prescribe the drug and were entitled to reject Dr. Beland’s testimony to the contrary. [Citation.]” (Id. at p. 68, fns. omitted.)

Unlike the Court of Appeal, we find the facts here materially distinguishable from those in Stevens. The physician in Stevens prescribed the drug Chloromycetin by name. The likely sources of any information he had specifically about Chloromycetin were the manufacturer’s advertising and visits from its sales representatives, and the evidence showed these sources negligently omitted or “ ‘water[ed] down’ ” warnings of the drug’s dangers. (Stevens, supra, 9 Cal.3d at p. 66.) From these facts, a jury could reasonably infer the drug maker’s negligent marketing had influenced the physician’s prescription choice. Here, in contrast, Ferri never asked for a TEC-9/DC9, or any other Intratec firearm, by name. Before purchasing any gun, he made a number of information-gathering visits to the Pawn & Gun Shop, during which he examined numerous firearms and asked questions of the sales staff. From this circumstantial evidence, a jury could not reasonably infer the information about the TEC-9/DC9 that ultimately influenced Ferri to choose it derived from Navegar’s magazine advertisements or catalogs. Thus, even had plaintiffs asserted a negligence theory based on Navegar’s TEC-9/DC9 advertising and literature, the record fails to raise a triable factual issue regarding causation.⁹

Accordingly, we conclude the trial court properly granted Navegar summary judgment. In reaching this conclusion, we are not insensitive to the terrible tragedy that occurred on July 1, 1993, or the devastating effect of Fern’s rampage on his victims and their loved ones. But, in section 1714.4, the Legislature has set California’s public policy regarding a gun manufacturer’s liability under these circumstances. Given that public policy, plaintiffs may not proceed with their negligence claim.

Disposition

The judgment of the Court of Appeal is reversed with directions to affirm the summary judgment for defendant.

George, C. J., Kennard, J., Baxter, J., and Brown, J., concurred.

1 All further statutory references are to the Civil Code unless otherwise indicated.

2 We draw the background facts in part from the lead opinion in the Court of Appeal. Neither party sought rehearing in the Court of Appeal.

3 We use the terms “assault weapon” and “assault pistol” because they have become widely accepted in law, popular usage, and within the gun industry. (See Pen. Code, § 12276, subd. (b)(4) [listing the “Intratec TEC-9” as an “ ‘assault weapon’ ”]; 18 U.S.C. § 921(a)(30)(A)(viii) [identifying the TEC-9 and TEC-DC9 as “semiautomatic assault weapons”]; Ladenheim & Ladenheim, Firearms and Ballistics for Physician and Attorney (1996) p. 143; Ahem, Intratec’s TEC-9 Assault Pistol (July 1988) Petersen’s Handguns 38, 40; Long, Assault Pistols, Rifles and Submachine Guns (Paladin Press 1986) p. 3.) Navegar itself advertised the TEC-9 as an “assault-type pistol” because, according to its marketing director at the time, “that’s how they’re classified [by] the industry.”

4 The Senate Analysis also refers to concern the original language might preclude liability based on “marketing circumstances,” and specifically mentions marketing a product without an adequate warning. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 75 (1983-1984 Reg. Sess.) as amended May 25, 1983, p. 8.) Plaintiffs do not assert a failure-to-wam claim. We have already considered “marketing circumstances” to the extent, if any, this term may be construed as referring simply to a manufacturer’s decision to make a firearm available to the general public. To the extent it may be construed as referring to advertising, we discuss that issue later in this opinion.

5 Given our conclusion that section 1714.4 bars plaintiffs’ negligence claim, we express no opinion regarding whether, in light of the Rowland factors, Navegar would otherwise have owed plaintiffs a duty of care.

6 Plaintiffs’ negligence per se claim based on Navegar’s alleged violation of the AWCA is not before us.

7 Plaintiffs’ counsel adhered to this position at oral argument in the Court of Appeal. He confirmed that plaintiffs’ negligence claim was not based on negligent advertising, but on Navegar’s decision to sell the TEC-9 to the general public. When asked what acts caused plaintiffs’ injuries, he responded: “selling to the general public a weapon designed precisely for the use it was put to at 101 California Street." He reiterated that the advertising was relevant as “evidence of the foreseeability that the basic conduct by this company would lead to this kind of tragedy.” Finally, he agreed with the court’s observation that plaintiffs were not alleging the advertising induced Ferri to commit the assault. He explained that plaintiffs instead were claiming that the “military features” of the TEC-9ZDC9 “were important to” Ferri and were a substantial factor in emboldening him to commit the kind of attack he committed.

8 The Court of Appeal also relied on the declaration of Dr. J. Reid Meloy, a forensic psychologist, who opined that the firepower, other technical capabilities and military appearance of the TEC-9/DC9 likely “emboldened” Ferri to undertake his assault. Although Meloy discussed Navegar’s advertising of the TEC-9/DC9, he was careful to note that he did not know whether Ferri had seen any of it, and he did not opine that the advertising, or any other aspect of Navegar’s marketing, contributed to Ferri’s actions. Meloy’s declaration thus does not create a triable factual issue as to a causal connection between plaintiffs’ injuries and Navegar’s marketing of the TEC-9/DC9.

9 Given this conclusion, we express no opinion as to whether a “negligent advertising” theory would otherwise be legally viable on a different evidentiary record.