The opinion of the court was delivered by: BAER
HAROLD BAER, JR., District Judge:
This action arises from Colin Ferguson's highly publicized murderous shooting spree on a Long Island Railroad passenger train on December 7, 1993. Plaintiffs seek to hold defendant Olin Corporation liable based on its design, manufacture, marketing and sale of "Black Talon" ammunition, which was allegedly used by Ferguson. Black Talon ammunition incorporates a hollow-point bullet that is designed to expand upon impact exposing razor-sharp edges at a 90-degree angle to the bullet. This expansion dramatically increases the wounding power of the bullets. Unfortunately, it appears that the Black Talon ammunition functioned exactly as designed in this tragic occurrence.
Plaintiffs base their complaint on various theories of negligence and strict liability. Olin moves to dismiss the complaint in its entirety pursuant to Rule 12(b)(6). Two decisions by the New York Supreme Court recently addressed similar claims and held that they did not state a cause of action. See Pekarski v. Donovan, No. 95-1176, slip. op. (N.Y. Sup Ct. Oneida County Sept. 27, 1995); Forni v. Ferguson, No. 132994/94, slip op. (N.Y. Sup. Ct. New York County Aug. 2, 1995). For the reasons that follow, I agree and grant Olin's motion.
A motion to dismiss pursuant to Rule 12(b)(6) should be granted only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Furthermore, the Court must "accept as true the factual allegations of the Complaint" and "read the Complaint liberally, drawing all inferences in favor of the pleader." IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993), cert. denied, 130 L. Ed. 2d 38, 115 S. Ct. 86 (1994).
Plaintiffs first claim that Olin negligently manufactured and marketed the Black Talon ammunition. Complaint, P 117. To state a claim for negligence under New York law, a plaintiff must demonstrate that the defendant owed her a duty of care. Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402, 482 N.E.2d 34, 36, 492 N.Y.S.2d 555 (1985); Pulka v. Edelman, 40 N.Y.2d 781, 782, 358 N.E.2d 1019, 1020, 390 N.Y.S.2d 393 (1976). "In the absence of a duty, there is no breach and without a breach there is no liability." Id. The existence of a legal duty is a question of law for the court to determine. Purdy v. Public Administrator, 72 N.Y.2d 1, 8, 526 N.E.2d 4, 6-7, 530 N.Y.S.2d 513 (1988). Both of plaintiffs' negligence theories fail because defendant owed no duty to the plaintiffs to protect them from criminal misuse of the Black Talon ammunition.
A. Negligent Manufacturing
Plaintiff's negligent manufacturing claim alleges that Olin breached a duty because it was foreseeable that criminals would use the Black Talon ammunition to injure innocent people such as the plaintiffs. Complaint, P 117. While this factual allegation of foreseeability may be true, and for purposes of this motion it must be treated as such, the legal conclusion of negligence does not follow. The New York Court of Appeals has held that foreseeability must be distinguished from duty. Pulka, 40 N.Y.2d at 785, 358 N.E.2d at 1022 ("Foreseeability should not be confused with duty."). The issue of foreseeability is only relevant in determining the scope of a preexisting duty; it is not normally used to create a duty. Id.; see also Strauss, 65 N.Y.2d at 402, 482 N.E.2d at 36 ("Duty in negligence cases is defined neither by foreseeability of injury nor by privity of contract.") (citation omitted).
Plaintiffs' argue that because Olin could have foreseen criminal misuse of its product, it should not have manufactured the ammunition. Plaintiffs do not allege, however, that any special relationship existed between Olin and Ferguson that would give Olin the authority and ability to control Ferguson's actions. In the absence of such a relationship, New York courts do not impose a duty to control the actions of third parties. Purdy, 72 N.Y.2d at 8, 526 N.E.2d at 7; Pulka, 40 N.Y.2d at 783-85, 358 N.E.2d at 1021-22. Furthermore, in determining the existence of a duty, New York courts attempt to limit the scope of potential liability to a controllable degree in an effort to protect defendants from infinite liability exposure. See Strauss, 65 N.Y.2d at 402, 482 N.E.2d at 36; Pulka, 40 N.Y.2d at 786, 358 N.E.2d at 1023. To impose a duty on Olin to prevent criminal misuse of its products would make it an insurer against such occurrences. Such liability exposure would be limitless and thus to impose a duty here would be inappropriate.
I am sympathetic to plaintiffs implications that Olin was under a moral duty not to produce ammunition with the destructive capabilities of the Black Talon bullets. In setting the scope of legal duty, however, the New York Court of Appeals has held that "[a] person may have a moral duty to prevent injury to another, but no legal duty." Pulka, 40 N.Y.2d at 786, 358 N.E.2d at 1022. As I can find no grounds upon which to base a legal duty, plaintiffs' negligent manufacturing claim must be dismissed.
Plaintiffs allege that defendant was negligent in marketing the Black Talon ammunition to the general public. Complaint, P 117. Plaintiffs argue that sales of the ammunition should have been limited to law enforcement agencies, ...