A bit more than four years ago, Michael Soe, 14, replaced the loaded magazine in his father's Beretta 92 Compact L handgun with an empty one and pointed the gun at his friend, Kenzo Dix, 15.
As Kenzo fired a pellet gun at birds out of Michael's bedroom window in Berkeley, Calif., Michael pulled the trigger, expecting to hear a click. Instead, he heard an explosion that would reverberate more than 3,000 miles to Beretta USA's Accokeek, Md., headquarters.
Kenzo Dix died, the victim of an undetected bullet in the gun's firing chamber. Friday, a month after what would have been Kenzo's 20th birthday, an Oakland, Calif., court will begin deciding, in what could be a landmark case, whether Beretta bears any responsibility for the death.
In their suit against Beretta, Kenzo's parents, Lynn and Griffin Dix, maintain that the gun should have been designed to prevent use by unintended users such as children. Lynn Dix said the suit is an attempt to make something good come out of their tragedy.
"When something like this happens, the bullet doesn't stop," said Kenzo's mother. "It just keeps going."
Beretta USA, the U.S. subsidiary of the Italian company that has been producing firearms since 1526, says the fault lies with the Soe family, not the gun, which has a device that warns users of a bullet in the chamber.
"There's no gun that can't be locked," said Jeff Reh, general counsel for Beretta USA.
Reh said Michael Soe's father had left the gun unlocked and loaded, and that Michael knew he shouldn't point the gun, disengage its safety or touch the trigger.
"He knew how to pull back on the slide of the pistol and check to make sure that the chamber was unloaded," Reh said. "He knew all these things and did not do them. His carelessness and that of his father led to the death of Kenzo Dix, not the design of the pistol."
Dix vs. Beretta could help shape the way guns are designed and secured. The case, which Beretta unsuccessfully tried twice to get dismissed, may mark the first jury trial to test gun manufacturers' accountability for failing to "child-proof" guns, said Dennis Henigan, legal director of the Center to Prevent Handgun Violence in Washington.
The trial comes as some states are moving toward requiring handguns to be child-proofed or "personalized" so that only the intended user can shoot it. Last week, Maryland Gov. Parris N. Glendening became the first gover-
nor in the nation to endorse legislation that would ban the sale of all but so-called "smart" weapons.
"This is an important case," said David Kairys, a Temple University law professor who has served as an adviser to officials in Philadelphia, which is considering its own lawsuit against gun manufacturers.
"It's hard to figure exactly which case or what issue is going to move things ahead," Kairys said. "But there's no doubt that courts, legislatures and the population generally is moving toward understanding responsibility of gun manufacturers as being a lot like that of tobacco or asbestos" manufacturers."
"Just that it's going to trial is an event," Kairys said. "The courts have not been hospitable to claims against gun manufacturers."
At the time Kenzo Dix was killed, the Center to Prevent Handgun Violence was searching for a case to test the notion that gun makers have a responsibility to design guns to protect against unintended use.
Previous "product liability" lawsuits against the industry, which mainly cited the use of handguns in crimes as evidence of their defectiveness, mostly failed, Henigan said.
Now the idea was to equate the responsibilities of gun manufacturers to those of car makers. The reasoning: Just as automakers had to install air bags and seat belts to make cars safer, gun makers would have to use locks, magnets, computer chips or other technology to make firearms safer.
The center said a person dies every day on average because someone fails to recognize that a bullet is present in a gun's chamber. "We just saw enormous potential to save lives," Henigan said.
At the same time, the Dixes were trying to make sure that their son's life had a purpose. "I was thinking that it can't end here," said Lynn Dix.
She contacted Henigan's organization to volunteer her efforts. Henigan liked her case. California's "product liability" standard, which calls for courts to weigh the risks of a product's design against its benefits, was favorable. The state's history also presented the prospect of a sympathetic jury.
"California has just been ravaged by gun violence of many kinds," Henigan said. "It was definitely the right state to bring this case."
In their April 1995 lawsuit filed in Superior Court in Alameda County, the Dixes argued that Beretta's warning device -- an "extractor" on the handgun barrel that raises slightly at one end if a bullet is in the chamber -- is too subtle for children.
Beretta, the suit said, was negligent in "failing to design the gun so that it could not be fired by a foreseeable, unauthorized user like Michael Soe."
The suit also named the youth's parents as defendants for allowing him access to the gun. The parents settled those claims for $100,000, and Michael Soe was convicted of involuntary manslaughter.
The Dix family, which is seeking unspecified punitive and compensatory damages, has received no settlement offers, and no talks are planned, Henigan said.
Beretta said it didn't have a duty to make its semi-automatic pistol safe for unintended adolescent users. The company argued in court documents that the gun is "flawlessly constructed, "legally sold only to adults," and comes with the warning: "Store firearms and ammunition separately, beyond the reach of children."
"It defies public policy, logic and common sense to hold a distributor of handguns liable for damages that result when an adult imprudently provides an adolescent unsupervised access to a loaded firearm and the adolescent thereafter uses the firearm in the commission of a felony," the company said in court records.
A judge denied Beretta's motion for dismissal in May -- a decision upheld by an appeals court in August -- clearing the way for a trial that will be closely watched not only by the industry but by public health officials. "If manufacturers are given financial incentives in the form of litigation, and they do personalize handguns, lives will be saved," said Jon Vernick, associate director of the Johns Hopkins University Center for Gun Policy and Research.
Proponents of "personalized guns" say they are encouraged by movement within the gun industry toward making firearms more secure. Last October, eight firearms companies -- including Beretta USA -- pledged to install child safety locks on handguns.
Colt Manufacturing Co. in Connecticut is using a federal grant to develop a gun that would not discharge unless the user is wearing an encoded ring or bracelet. But Reh said technology for personalized guns is problematic. Among his complaints: Gun shops are hardly equipped to customize computer chips. Guns intended to be unlocked with special magnets might be vulnerable to other magnets. A system that relies on a user's ring with a magnetically encoded chip might require an owner of several guns to wear several rings.
"In a system that relies on batteries, what is the failure mode if the batteries go out?" Reh asked. "Does the gun unlock? Or does it fall into the locked mode?"
It's even possible, Reh said, that "smart gun" technology might make firearms more dangerous. "We have a grave concern that if people think a gun is child-proof, that will cause them to keep the gun loaded, relying on the lock to prevent child access."
Dix acknowledged the need for personal responsibility, but said that's not enough. "To me the greater onus is on the gun manufacturer because of the number of deaths."
Pub Date: 10/04/98