California ruling creates new duty for gun manufacturers.

When a California appellate court recently ruled that a gun manufacturer's marketing of TEC-9 semiautomatic machine guns contributed to the 1993 killing of eight people in a San Francisco law firm, the court's opinion created a new duty for manufacturers and bolstered claims in lawsuits brought by more than two dozen cities against gun manufacturers.

"This court went farther than 18 other appellate courts did," said attorney Ernest Getto of Los Angeles, who represents Navegar, Inc., maker of the TEC-9. "This court created a new duty, a new tort."

Navegar is appealing the California First District Court of Appeal's 3-2 ruling. The decision overturned the lower court's grant of summary judgment on an ordinary negligence claim. The ruling revives Merrill v. Navegar, Inc. (No. AO79863, 89 Cal. Rptr. 2d 146 (Ct. App. Sept. 29, 1999).)

Appellate Judge Anthony Kline wrote, "Fundamental fairness requires that those who create and profit from commerce in a potentially dangerous instrumentality should be liable for conduct that unreasonably increases the risk of injury above and beyond that necessarily presented by their enterprise....

"We make no suggestion (nor do appellants) that the manufacture of the TEC-DC9, even with all the features supplying its military combat style and appeal to a criminal element, alone could be found to constitute negligence. Rather, it is the combination of such manufacture with distribution of the weapon to the general public and marketing targeted to persons most likely to misuse it that supports a cause of action for negligence," Kline wrote.

The appellate court, however, upheld the lower court's dismissal of an ultrahazardous-activity claim against Navegar.

The lawsuit stems from a July 1, 1993, shooting by gunman Gian Luigi Ferri. Ferri--carrying a TEC-9, a TEC-DC9, and a .45 handgun--shot workers at the law offices of Petitt & Martin, located at 101 California Street in San Francisco. Eight people were killed, and six other people were wounded.

The Merrill plaintiffs, consisting of survivors and relatives of the slain victims, filed suit in 1994. Discovery stopped in May 1997, when the trial court granted Navegar's motion for summary judgment.

But the plaintiffs' investigation had uncovered evidence that the appellate court found helpful, including Navegar's print advertisements published in militia magazines that claimed the TEC-9 models are fingerprint resistant. The plaintiffs also learned that Navegar's national sales and marketing director violated federal laws by distributing literature that instructed gun owners on how to modify the TEC-9 to increase firepower. The marketing director also commissioned a study that revealed the TEC-9 was the leading weapon seized from criminals by police. Both Navegar guns used by Ferri are banned by federal and state laws.

Brian Siebel, a senior attorney at the Washington, D.C.-based Center to Prevent Handgun Violence and one of several lawyers representing the plaintiffs, said the appellate opinion reinforces a nationwide effort by 29 cities, including San Francisco and Los Angeles, to hold gun manufacturers liable for gun-related violence. Among the cities' allegations is the claim that gun manufacturers are negligently marketing guns.

Siebel said the opinion was read from "liberally" at a summary judgment hearing in October in Atlanta's suit against gun manufacturers.