Cite as King v. R.G. Industries, Inc. 182 Mich.App. 343 (1990)

Freddie King, Sr., Personal Representative of the Estate of Sammie
Lee King, and Freddie King, Jr,, Plaintiffs-Appellants,

                               v.

          R.G. Industries, Inc., Defendants-Appellees.

                       Docket No. 108982.

                  Court of Appeals of Michigan.

                    Submitted Nov. 21, 1989.

                     Decided Feb. 20, 1990.

             Released for Publication March 7, 1990.

     Pecker & Van Cleef, P.C. by Frank G. Pecker, Southfield, for
plaintiffs-appellants.

     Plunkett & Gooney, P.C. by Robert G. Kamenec and Steven L.
Barney, Detroit, for defendants-appellees.

     Before WAHLS, P.J., and GRIBBS and SHEPHERD, JJ.

     SHEPHERD, Judge.

     Plaintiffs appeal as of right from the trial court's order
granting defendant's motion for summary disposition pursuant to MCR
2.116(C)(8).

     Defendant is the manufacturer and distributor of handguns
commonly known as "Saturday night specials." Plaintiff Freddie
King, Jr., was rendered a paraplegic after being shot by a person
wielding such a gun. Plaintiff Freddie King, Sr., is the personal
representative of the estate of Sammie Lee King, who was murdered
with the same gun used against her son. The perpetrator of these
crimes had prior criminal convictions and a history of
psychological problems.

     It is plaintiffs' contention that defendant may be held liable
for negligence and breach of implied warranty where Saturday night
specials are used by criminals to harm people. We disagree and
affirm the trial court's decision.

     Plaintiffs request that this Court adopt the Saturday night
special theory of liability as set forth in Kelly v. R.G.
Industries, Inc., 304 Md. 124, 497 A.2d 1143 (1985). The court in
Kelly held that manufacturers and marketers of Saturday night
specials may be held strictly liable for injuries inflicted by
criminal misuse of the firearm. The Kelly court found that the
Saturday night special is particularly attractive for criminal use
and is virtually useless for legitimate purposes.

     We decline to adopt the Kelly cause of action for several
reasons. The Michigan Legislature has enacted many statutes
regulating the use of firearms. M.C.L. section 28.421 et seq.;
M.S.A. section 28.91 et seq., M.C.L. section 750.224(1); M.S.A.
section 28.421(1), and M.C.L. section 750.22713; M.S.A. section
28.424(2). These statutes range from banning certain weapons to
requiring registration of firearms. We are unwilling to interfere
with the Legislature's exercise of authority in this area. To adopt
plaintiffs' theory of liability would be to create judicial
legislation.

     There are numerous policy arguments both for and against the
regulation of firearms and specifically the type of gun in question
in this case. These arguments involve economic, political, and
philosophical considerations, including whether placing the
economic burden of crime on those who market a product that may
lawfully be sold is likely to have a substantial impact on crime.
In some analogous situations similar issues have been resolved
against the merchants, e.g., sales of intoxicating beverages to
visibly intoxicated persons, M.C.L. section 436.22 et seq.; M.S.A.
section 18.993 et seq. However, in that situation the matter was
resolved by the Legislature. We believe that body is the more
appropriate forum in which to settle such questions.

     Additionally, Maryland itself has repudiated the holding in
Kelly through legislation. Md.Ann.Code, art. 27.36-I(h).
Furthermore, courts in other jurisdictions which have considered
this issue have consistently rejected the Kelly theory of
liability. See Delahanty v. Hinckley, 564 A.2d 758 (D.C.App.,
1989); Caveny v. Raven Arms Co., 665 F.Supp. 530 (SD Ohio, 1987),
aff'd. 849 F.2d 608 (CA 6, 1988); Armijo v. Ex Cam, Inc., 656
F.Supp. 771 (DNM, 1987), aff'd. 843 F.2d 406 (CA 10, 1988); Coulson
v. DeAngelo, 493 So.2d 98 (Fla. App.1986); Riordan v. International
Armament Corp., 132 Ill.App.3d 642, 87 Ill. Dec. 765, 477 N.E.2d
1293 (1985).

     We also find that plaintiffs have failed to state a cause of
action under recognized principles of Michigan products liability
law. Plaintiffs allege both a negligence and a breach of implied
warranty cause of action. Both causes of action require a showing
that the product was defective. Prentis v. Yale Mfg. Co., 421 Mich.
670, 683 (1984). Plaintiffs have failed to allege that the gun was
functioning improperly at the time of its discharge. Thus,
plaintiffs have failed to state a claim upon which relief can be
granted. MCR 2.116(C)(8).

     Plaintiffs' argument appears to be that products which work
properly may be defective given the foreseeable misuse of the
product. Plaintiffs rely on Moning v. Alfono, 400 Mich. 425 
(1977), for this proposition. However, in Moning the issue was a
manufacturer's liability for intentionally marketing sling shots
directly to children, thereby creating an unreasonable risk of
harm. Plaintiffs in this case have not alleged that defendants have
intentionally marketed Saturday night specials to known criminals.
Therefore, we find Moning to be distinguishable.

     Affirmed.