## Facts

- Colin Ferguson shot passengers on a Long Island Railroad commuter train on December 7, 1993, killing six and wounding nineteen.
- Ferguson used a 9mm semiautomatic handgun loaded with Winchester “Black Talon” hollow-point bullets manufactured by Olin Corporation.
- Plaintiffs were two surviving victims and the estate of a deceased victim of the shooting.
- Plaintiffs alleged the bullets were engineered to cause especially severe injuries and that Olin negligently manufactured, advertised, and marketed the ammunition to the general public.
- Plaintiffs sued under negligence and strict products liability theories, including design defect and strict liability for allegedly ultrahazardous activity.
- The case was removed to federal court on diversity grounds.
- The district court dismissed the complaint under Rule 12(b)(6) for failure to state a claim under New York law.
- Plaintiffs appealed and alternatively sought certification to the New York Court of Appeals.

## Issues

1. Whether, under New York law, an ammunition manufacturer owes a duty of care to persons injured by a third party’s criminal misuse of the manufacturer’s nondefective product.
2. Whether hollow-point ammunition that performs as intended can be “defectively designed” or “unreasonably dangerous” for strict products liability purposes.
3. Whether manufacturing and marketing ammunition constitutes an ultrahazardous (abnormally dangerous) activity supporting strict liability.
4. Whether the federal appellate court should certify these questions to the New York Court of Appeals.

## Decision

- The Second Circuit affirmed the dismissal for failure to state a claim.
- The court held the bullets were not defectively designed under New York law because they performed as designed and the alleged hazard was tied to their intended function.
- The court held Olin owed no duty to plaintiffs to protect them from a criminal assailant’s misuse of the ammunition, and had no general legal obligation to control distribution to prevent third-party crimes.
- The court rejected strict liability based on ultrahazardous activity, concluding that manufacturing and selling ammunition is not treated as abnormally dangerous in this context under New York law.
- The court declined to certify questions to the New York Court of Appeals, finding existing New York precedents sufficient to decide the case.
- A dissent would have allowed the negligent marketing theory to proceed, viewing marketing choices as potentially actionable even if design defect was not.

## Legal Principles

- Under New York products-liability law, a design-defect claim requires a defect in the product’s condition; a product is not defective merely because its intended function is dangerous and it performs as intended.
- A manufacturer generally has no duty to protect the public from criminal misuse of a nondefective product by third parties absent a recognized special basis for imposing such a duty.
- Foreseeability of criminal misuse, without more, does not by itself create a general duty that would expose manufacturers of lawful but dangerous products to open-ended liability.
- Strict liability for ultrahazardous activity is limited and does not automatically extend to the manufacture and sale of ammunition.
- Federal courts applying state law may deny certification when state-law doctrine supplies a sufficient framework to resolve the dispute.

## Conclusion

The Second Circuit held that, under New York law, an ammunition manufacturer was not liable for injuries caused by a criminal shooter’s misuse of nondefective hollow-point bullets, rejecting negligence, design-defect strict liability, and ultrahazardous-activity theories, and affirming dismissal at the pleading stage.


McCarthy v. Olin Corp., 119 F.3d 148 (2d Cir. 1997)