Pell, Cudahy, and Posner, Circuit Judges. Cudahy, Circuit Judge, concurring.
During January of 1981, Donovan and James Barnes shot and killed Larry Martin and wounded Kenneth Jackson. Plaintiffs seek to recover for the injuries suffered by the two men, but not from the Barnes brothers, who have little or no money. Plaintiffs have instead filed this diversity action against Harrington and Richardson (H & R), the manufacturer of the gun used by the Barnes's, alleging that the gun was an unreasonably dangerous product and that H & R was therefore strictly liable for the damage caused by the weapon. The district court found no support for plaintiffs' theory in Illinois law and dismissed the suit for failure to state a cause of action.
Before examining the district court's conclusion we should clarify the nature of plaintiffs' claim, which is not clear from either the complaint or the briefs filed in this court. Although plaintiffs refer to the gun as an unreasonably dangerous instrument and complain of H & R's conduct in selling the gun to the public, it becomes clear from examining plaintiffs' arguments that they do not, and cannot, seek recovery under products liability or negligence.*fn1 Products liability requires a defect of some sort in the gun, a claim that plaintiffs expressly disavow. Plaintiffs instead claim that H & R's liability stems solely from "the manufacture of an inherently dangerous, nondefective instrument." Plaintiffs' claim, in essence, is that manufacturing and selling handguns to the public is an ultrahazardous activity that gives rise to strict liability for any damage done by the guns. The district court dismissed plaintiffs' claim after finding:
There is no case or statutory law demonstrating that such a cause of action exists in Illinois, and we decline to create such a new cause of action. In the present state of law, a manufacturer of a nondefective handgun is not liable for injury caused by use of the gun, whether that use be lawful or unlawful. Accord Bennet v. The Cincinnati Checker Cab Co., Inc., 353 F. Supp. 1206, 1210 (E.D. Ky. 1973) (holding that a firearms dealer was under no duty to protect plaintiff, who was shot by a gun imported by dealer, from criminal attack). If a cause of action such as the one proposed by plaintiffs is to become recognized in Illinois, it must be done by the Illinois legislature or the Illinos courts, not by a federal court in a diversity action.
Plaintiffs claim that the district court shirked its responsibility to decide the case presented to it as an Illinois court and that, had the district court fulfilled this responsibility, it would have concluded that a cause of action exists. Plaintiffs ask that we either reverse the district court's finding that no cause of action exists or at least remand the case to the district court with instructions to determine whether such an action would be recognized by an Illinois court.
Although the district court's opinion, which we have quoted in its entirety, may be Spartan, we do not think that it reflects a failure to determine how an Illinois court would decide the issue. The duty of a district court sitting in diversity faced with a novel claim such as plaintiffs' is to predict, as best as possible, how an Illinois court would decide the issue. City of Northglenn v. Chevron, U.S.A., Inc., 519 F. Supp. 515 (D. Colo. 1981); Indiana Harbor Belt Railroad v. American Cyanamid Co., 517 F. Supp. 314, 317 (N.D. Ill. 1981). The district court here indicated that it could find no support for plaintiffs' claims in Illinois law, and that at least one other jurisdiction had rejected an identical claim. Examining decisions from other jurisdictions in the absence of Illinois cases is a legitimate means of predicting how an Illinois court would rule on plaintiffs' claims. Indiana Harbor Belt Railroad, 517 F. Supp. at 317. We cannot agree, then, that the district court did not discharge its duty to predict how an Illinois court would decide plaintiffs' claim. We turn now to examine the accuracy of that prediction.
Illinois recognizes strict liability under two theories: unreasonably dangerous defective products and ultrahazardous activities. Strict products liability in Illinois follows the formulation set forth in section 402A of the Restatement (Second) of Torts (1965), which imposes strict liability upon one "who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property." See Rios v. Niagara Machine & Tool Works, 59 Ill. 2d 79, 319 N.E.2d 232 (1974) (relying on 402A formulation). Under Illinois law, a product is "unreasonably dangerous" when it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Palmer v. Avco Distributing Corp., 82 Ill. 2d 211, 412 N.E.2d 959, 45 Ill. Dec. 377 (1980) (quoting Restatement (Second) of Torts section 402A, comment i (1965)). A product may be unreasonably dangerous because of a design or manufacturing defect or because of failure to warn of a danger posed by the product of which the average consumer would not already be aware. A nondefective product that presents a danger that the average consumer would recognize does not give rise to strict liability. Garrison v. Heublein, Inc., 673 F.2d 189 (7th Cir. 1982) (Illinois law does not require warnings on alcoholic beverages as dangers posed by alcohol are common knowledge); Hunt v. Blasius, 74 Ill. 2d 203, 384 N.E.2d 368, 23 Ill. Dec. 574 (1978) (danger posed by solid sign post obvious to any motorist).
Plaintiff has not directly pursued a products liability approach here because the gun involved in the shootings was not defective and posed an obvious danger that required no warning, and thus was not unreasonably dangerous. A second obstacle to recovery under products liability is the Illinois products liability statute of limitations, which plaintiffs appear to concede would bar a suit based upon the sale of this gun under the theory of products liability as the gun apparently was sold during the 1930's. See Ill. Rev. Stat. ch. 110 para. 13-213. As we shall discuss later, this statute may present an obstacle to plaintiffs' claim that the sale of the gun was an ultrahazardous activity.
Plaintiffs attempt to circumvent the problems posed by products liability by urging that the sale of handguns to the public is an ultrahazardous activity. Under section 519 of the Restatement (Second) of Torts: "One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm." Section 520 of the Restatement sets forth the following factors to be considered in determining whether an activity is abnormally dangerous:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of ...