## Facts

- Victims of the April 19, 1995 Oklahoma City bombing sued manufacturers and related entities that made and distributed ammonium nitrate (AN) sold into the fertilizer market.
- The bomb used was an ANFO device (ammonium nitrate and fuel oil) built and detonated by Timothy McVeigh and Terry Nichols.
- Plaintiffs alleged defendants produced low-density, explosive-grade AN but sold and labeled it as fertilizer-grade AN.
- Plaintiffs alleged defendants knowingly placed explosive-grade AN into agricultural distribution channels, failed to use available additives to reduce detonability, and failed to warn downstream sellers or users about its potential bomb-making use.
- Plaintiffs asserted negligence, negligence per se, negligent entrustment, manufacturers’ products liability (design defect and failure to warn), and strict liability for ultrahazardous activity.
- The district court dismissed under Rule 12(b)(6), concluding plaintiffs failed to plead proximate cause because the bombing was a superseding criminal act and rejecting the other theories; plaintiffs appealed.

## Issues

1. Whether plaintiffs plausibly alleged proximate cause under Oklahoma law, or whether the bombing was an unforeseeable, independent criminal act constituting a superseding cause.
2. Whether plaintiffs stated viable claims for negligence and negligence per se despite the intervening criminal conduct.
3. Whether plaintiffs stated manufacturers’ products liability claims for defective design and failure to warn.
4. Whether negligent entrustment applies where a lawful product is sold into the stream of commerce without direct entrustment to a known incompetent or dangerous user.
5. Whether strict liability for ultrahazardous activity can be imposed on manufacturers or distributors of materials used by others to commit an ultrahazardous act.

## Decision

- The Tenth Circuit affirmed the Rule 12(b)(6) dismissal after de novo review, accepting well-pleaded allegations as true.
- Proximate cause was not adequately pleaded because the intentional bombing was an extraordinary, independent criminal act that Oklahoma law treats as a superseding cause absent reasonable foreseeability.
- Negligence and negligence per se failed because causation was dispositive; the cited statutes did not supply a viable negligence per se theory on these allegations (including lack of protected-class fit and/or lack of an alleged statutory violation).
- Products liability claims failed because the criminal misuse did not make the product unreasonably dangerous to ordinary consumers using it for intended purposes, and the superseding criminal act also defeated causation.
- Negligent entrustment was not stated because defendants did not directly entrust the product to McVeigh or Nichols and had no specific reason to know of their propensity to misuse it.
- Ultrahazardous-activity strict liability did not extend upstream to manufacturers/distributors who did not conduct the hazardous activity; the bombers’ conduct was the relevant ultrahazardous act.
- Any theories not argued on appeal were treated as waived.

## Legal Principles

- Under Oklahoma law, proximate cause turns on foreseeability; an intentional, extraordinary criminal act typically constitutes a superseding cause that breaks the causal chain unless it was reasonably foreseeable.
- Foreseeability focuses on the general type of harm to a reasonably prudent person, not hindsight reconstruction of a particular criminal plan; rare misuse by criminals may be insufficient to make such harm reasonably foreseeable.
- A manufacturer of a lawful product is generally not liable in tort for injuries caused by highly extraordinary criminal misuse of that product where the misuse is an unforeseeable, independent, intentional act.
- In manufacturers’ products liability, a product is not “unreasonably dangerous” merely because it can be used criminally; the inquiry centers on dangers beyond what ordinary consumers would contemplate for intended use.
- Negligent entrustment ordinarily requires entrustment to a specific person known or reasonably believed to be likely to misuse the item; distribution through ordinary commercial channels generally does not satisfy this element.
- Strict liability for ultrahazardous activity applies to those who engage in the abnormally dangerous activity (e.g., blasting), not merely to those who manufacture or distribute materials that others may use to perform that activity.

## Conclusion

The court held that plaintiffs’ tort and product-liability theories failed because the Oklahoma City bombing was an unforeseeable, superseding criminal act severing proximate causation, and the remaining theories (including negligent entrustment and ultrahazardous strict liability) did not fit the alleged upstream manufacturing and distribution conduct.


Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613 (10th Cir. 1998)