City can sue gun makers under public-nuisance theory.

Gun manufacturers and distributors can be sued under the public-nuisance doctrine for making guns available to criminals and minors, the Ohio Supreme Court has held. (City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136 (Ohio 2002).)

Dennis Henigan, director of litigation at the Brady Center to Prevent Gun Violence, called the June decision "the most important legal victory ever achieved against the gun industry."

The city of Cincinnati had alleged that the nation's leading gun manufacturers have created and maintained a public nuisance by manufacturing and selling firearms in ways that unreasonably interfere with public health, welfare, and safety. The city argued that the gun makers knew or reasonably should have known that their conduct would cause handguns to be possessed and used illegally. Beretta U.S.A., Smith & Wesson, Colt's, and several other manufacturers were named as defendants.

The defendants contended that public-nuisance law does not encompass injuries caused by product design and construction, but instead is limited to actions involving either dangerous premises or statutory or regulatory violations involving public health or safety.

But the state high court, reversing the lower court's decision, found that the definition of "public nuisance" is not that limited. According to the Restatement (Second) of Torts, the supreme court said, a public nuisance is "any unreasonable interference with a right common to the general public, which includes those acts that significantly interfere with public health, safety, peace, comfort, or convenience." Unlike a private nuisance, the court explained, a public nuisance does not necessarily involve interference with use and enjoyment of land.

The defendants had also argued that they could not be held liable for the harm alleged because they did not have control over the nuisances--the guns--at the time any injuries occurred. But, as the high court observed, the city had alleged that the defendants created a nuisance by continuing to sell firearms in a way that eased the flow of guns into the illegal market. Just as those who fire the guns are held accountable for the injuries they cause, the court reasoned, manufacturers and distributors can be held liable for creating an illegal, secondary market for the guns.

Finally, the defendants claimed that the city was too "remote" from any injuries caused by the firearms to have standing to sue. But the court found that since gun-related violence causes cities to spend more on police, emergency services, health care, prosecution, and incarceration, the cities are entitled to seek redress in court. The justices remanded the case to the trial court for pretrial discovery proceedings.

Henigan noted that the decision clears the way for a similar lawsuit filed by the city of Cleveland. (White v. Smith & Wesson, No. 1:99 CV 1134 (N.D. Ohio filed May 8, 1999).)