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Law Offices of Ronald W. Rutz
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March 7, 2000: Gun Manufacturers' Responsibility; Estate Plan Guidelines

Q: This answer is based on a number of recent questions asked me, ranging from why shouldn't gun manufacturers pay for the damages that their products cause to how can anyone possibly feel that gun manufacturers should be held financially responsible.

A: Now this is not a political column, only a legal one, so let's just look at what the courts have done so far. Most of the judicial focus has been on one product line hand guns. Two legal theories have been used, neither of which has produced significant positive results for those advocating liability. Also remember we are on the civil side of the Court, not the criminal side.

The traditional product liability theories, which range from a strict liability stance (the product is so dangerous that any harm it causes is automatically recoverable) to the argument that the product does not contain reasonable safety features, have all been "shot down" (sorry I couldn't resist) by the Courts.

A second legal theory has most recently been used by cities that have banned some types of guns and rests on a public nuisance argument. But the Courts have held that the lack of supporting state and federal laws in effect negate a city's ordinance as a foundation to be able to support this kind of theory and permit monetary recovery for damages and expenses.

A successful civil suit (now on appeal) is in Illinois and used the public nuisance theory but with a different twist an individual, not a government entity, sued and the argument was made that the marketing strategy of the manufacturers was to target and saturate the "underground [suburban] market where criminals freely buy and sell guns" (quote from an article in the March issue of the ABA Journal). Now this particular argument has failed when used by cities. Will it stand up on appeal? Who knows. Legal handicappers did not give the tobacco suits much of a chance.

In the law victory is often a matter of timing, with the right kind of facts to sway the appellate judges and with the precise narrow legal theory to make finding otherwise unthinkable or unfair. But there is a legal platitude that these kinds of decisions also can make "bad law" when the rules that are adopted are applied to a different and more normal setting.

Q: What should be included in a basic estate plan in Colorado?

A: Everyone needs a Will, even if a person is single and has little net worth. In Colorado if a living trust is proposed in lieu of a Will, before deciding, be sure that the lawyer explains why many of the significant advantages making the use of a living trust mandatory in some states are not applicable here in Colorado and a living trust may prove to be disadvantageous, hindering the estate settlement and greatly increasing costs. Living trusts are still done in Colorado but there is no right or wrong decision as in some other states.

Everyone should have a durable power of attorney, whether married or single. If someone gets sick, or is incapacitated, or is unavailable such as when traveling, or just does not want to deal with a particular issue or person, no one has the right to step forward and make legal decisions and sign legal documents binding another without a durable power of attorney, not even a spouse. On the other hand, a spouse that is OK may find his or her hands tied on a joint asset such as a house or car because the other can not sign. There are some exceptions, but the only alternative would be a conservatorship set up through the Courts.

If shutting off the "machines" is important under the guidelines of the Colorado statute, then a "living will" should be signed, even if a durable medical power has been signed. That way this very hard decision does not have to be made by your medical agent under the authority of the medical durable power of attorney or family and the person signing the living will knows that in fact the machines will be turned off.

Assets, advisers, and helpful information should be listed and all important documents should be kept together in a safe place. Much of the time and effort expended in settling an estate arises here. The better the list of assets and problem areas, and being able to locate the necessary legal documents, will make things much easier for the personal representative.

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