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Another nuisance theory fails to fly.

Joining other courts in the same conclusion, the Third Circuit, applying New Jersey law, held that firearms makers are not liable under a public nuisance doctrine for the manufacture and sale of handguns.

In Camden County Board of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d 536 (3d Cir. 2001), a New Jersey county sued a raft of firearms manufacturers in federal court, alleging that the marketing and distribution of handguns created and contributed to the widespread criminal use of the weapons in the county. They relied on three theories of liability--negligence, negligent entrustment, and public nuisance--and sought several forms of relief, including compensation for additional costs to abate the alleged nuisance, an injunction, and compensatory and punitive damages.

The district court rejected all three of the bases asserted for liability, dismissing the negligence claims and finding that the public nuisance ploy was defective because the county did not allege the "required element that the defendants exercised control over the nuisance to be abated." 123 F.Supp.2d 245, 266 (D. N.J. 2000).

On appeal, the plaintiffs dropped their negligence contentions and argued only the public nuisance allegation. The Third Circuit rejected that on two grounds. First, the court adopted the Prosser-Keeton position that nuisance actions should be confined to claims connected to real property or infringement of a public right. "Whatever the precise scope of public nuisance law in New Jersey may be," the court stated, "no New Jersey court has ever allowed a public nuisance claim to proceed against manufacturers for lawful products that are lawfully placed in the steam of commerce.... If defective products are not a public nuisance as a matter of law, then the non-defective, lawful products at issue in this case cannot be a nuisance without straining the law to absurdity."

Second, the court held that even if public nuisance law could be stretched to encompass the distribution of lawful products, Camden County had failed to allege that the defendant firearms manufacturers exercised sufficient control over the source of the interference with a public right. "If independent third parties cause the nuisance," the court remarked, "parties that have not controlled or created the nuisance are not liable."

In another firearms case, Merrill v. Navegar Inc., 28 P.3d 116 (Cal. 2001), the manufacturer mounted a successful defense on the basis of a California statute.

In 1993, Gian Luigi Ferri killed nine people, including himself, and wounded six others during a shooting spree in a San Francisco office building. Survivors and personal representatives sued Navegar Inc., which manufactured the semiautomatic assault pistol Ferri used. They alleged common law negligence in that Navegar "acted negligently by manufacturing, marketing and making available for sale to the general public" the weapon Ferri used. They also asserted causes of action for negligence per se and strict liability for an abnormally dangerous activity.

Navegar defended on the ground that the California legislature had declared public policy in Section 1714.4 of the California Civil Code, which provides: "In a products liability action, no firearm or ammunition shall be deemed defective in design on the basis that the benefits of the product do not outweigh the risk of injury posed by its potential to cause serious injury, damage, or death when discharged." The plaintiffs countered that Section 1714.4 was not applicable because their suit was not a products liability action, not an action for making a defective product; rather, it was an action based on negligent conduct because of the weapon's "negligent design, distribution and marketing."

The majority of the California Supreme Court, in an opinion by Justice Chin, did not buy the plaintiffs' position. The plaintiffs' reliance on "negligent conduct," he stated, is not determinative. In stating that the weapon had a "negligent design" and that Navegar "negligently designed" it, the court added, the plaintiffs in fact alleged, in the words of Section 1714.4, "defective in design." The plaintiffs' allegation fitted squarely within the risk-utility test for defective design that applies in products liability actions under both negligence and strict liability theories, the court concluded, and therefore Section 1714.4 barred the claims asserted by the plaintiffs.

Justice Werdegar bought the plaintiffs' theory and dissented on the ground that Section 1714.4 did not apply because the action was bottomed on a claim of negligence that Navegar "acted without due care in distributing ... a semiautomatic handgun combining portability and ease of use with an extraordinary rapidity and capacity for lethal firepower to the general civilian public rather than restricting sales to police and military units that might have a legitimate call for such a military-style assault pictol."
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Publication:Defense Counsel Journal
Geographic Code:1USA
Date:Jan 1, 2002
Words:773
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