United States District Court, E.D. New York
February 3, 2004.
JAQUIONE JOHNSON, Plaintiff, -against- BRYCO ARMS, et al., Defendants
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge Page 2
MEMORANDUM JUDGMENT & ORDER
[EDITORS' NOTE: THIS PAGE CONTAINED "TABLE OF CONTENTS"]
While working at a Wendy's restaurant in Flushing, New York in May
2001, eighteen-year-old Jaquione Johnson was shot in the head in the
course of an attempted robbery. The weapon used was an illegally
acquired semi-automatic pistol,
The two perpetrators ordered Wendy's employees to go down to the
basement. There they were lined up, their heads covered with plastic
bags, and, one by one, they were shot in the head. Five were killed.
Johnson and one other were severely injured. The incident acquired the
appellation "The Wendy's Massacre."
Johnson sues the gun's manufacturer (Bryco Arms), the wholesaler (B.L.
Jennings), the distributor (Acusport Corp.), and the retailer (Atlantic
Gun & Tackle, Inc.). Causes of action for public nuisance,
negligence, design defect, breach of warranty, and strict liability are
Atlantic Gun & Tackle moves to dismiss for failure to state a claim
upon which relief can be granted and for lack of personal jurisdiction.
Acusport moves to dismiss for failure to state a claim upon which relief
can be granted. Bryco Arms and B.L. Jennings have filed a suggestion of
bankruptcy automatically staying these proceedings as to them.
See 11 U.S.C. § 362(a).
For the reasons set out below the motion to dismiss the products
liability claims is granted. Discovery will proceed on the public
nuisance and negligence claims and on the issue of personal jurisdiction.
Normally an examination of evidence is not useful in deciding a motion
to dismiss. Courts limit themselves to considering the legal bases for
the causes of action alleged and assume the plaintiffs version of facts
to be true, hi evaluating the legal sufficiency of this plaintiffs
claims, however, it is desirable to briefly review Bureau of Alcohol,
Tobacco, Firearms and
Explosives ("ATF") crime-gun trace data and the marketing practices
of the gun industry. Preliminary examination of this material is prudent
in light of recent cases interpreting New York law as requiring specific
factual backgrounds in order to state a cause of action for public
nuisance and negligence against the firearms industry. See Hamilton
v. Beretta U.S.A. Corp., 750 N.E.2d 1055, 96 N.Y.2d 222, 233-39
(N.Y. 2001) (requiring a "tangible showing" of certain facts in order to
impose a duty on members of the firearms industry to exercise reasonable
care in the marketing and distribution of their handguns); People v.
Sturm, Ruger & Co., Index No. 402586/00, at 26-27 (N.Y. Sup, Ct.
Aug. 10, 2001) (specifically noting facts which, if alleged, might be
sufficient to state a cause of action for public nuisance against members
of the firearms industry), aff'd, 761 N.Y.S.2d 192 (N.Y.
A.D. 2003), leave to appeal denied. 100 N.Y.2d 514(2003).
II. Factual Allegations
Plaintiff was shot with a .380 caliber semiautomatic pistol by one of
the robbers, John Taylor or Craig Godineaux. The gun allegedly was
acquired by Taylor or Godineaux following a trail of possession during
which the weapon repeatedly changed hands, both legally and illegally. It
is contended that the firearm was (1) manufactured by Bryco Arms in
California; (2) sold to B.L. Jennings in Nevada; (3) sold to Acusport in
Ohio; (4) sold to Atlantic Gun & Tackle in Ohio; (5) sold to Angela
Freeman, a resident of Ohio, with the retailer's knowledge that she was
purchasing it on behalf of Bernard Gardier because he could not legally
purchase it himself; (6) illegally transported by Gardier and one Jamal
Gales to New York City, and there illegally sold by them to an unknown
individual; and (7) sold twice more before coming into the possession of
Taylor or Godineaux.
Plaintiff alleges that defendants' sales and distribution practices
created, contributed to and maintained the illegal secondary gun market
through which this handgun moved until it did its deadly work. This
underground market, it is contended, depended upon defendants'
irresponsible business practices, such as multiple firearms sales and
straw purchases. It is argued that defendants knew or should have known
that their guns were being sold on the underground market and repeatedly
used in the commission of crimes, but, because they gained significant
revenue from illegal firearms sales, they failed to adopt basic policies
and practices that would greatly decrease the number of guns reaching
criminals; and that the defendants created and contributed to this
illegal secondary market despite the knowledge that it was reasonably
foreseeable that individuals like the plaintiff and the public at large
would be harmed. Plaintiffs conclusions rest, in part, upon ATF data
indicating that a high proportion of guns distributed by Acusport and
subsequently sold by Atlantic Gun & Tackle have been traced to
crimes. The gun in question, it is alleged, was sold by Acusport to
Atlantic Gun & Tackle, which in turn sold it to a straw purchaser,
and was ultimately used to severely injure the plaintiff. Defendants'
conduct, the plaintiff concludes, caused his injuries the kind of
harm reasonably foreseeable from these gun companies' delicts.
A. Motion to Dismiss
1. Statement of a Claim
a. Standard and Scope of Review
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may
move to dismiss for "failure to state a claim upon which relief may be
granted." Defendant has the burden of
proving "beyond doubt that the plaintiff can prove no set of facts
in support of his claim [that] would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957). "The issue is
not whether a plaintiff will ultimately prevail but whether the claimant
is entitled to offer evidence to support the claims." Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974).
In reviewing a Rule 12(b)(6) motion, the task of the court "is merely
to assess the legal feasibility of the complaint, not to assay the weight
of the evidence which might be offered in support thereof." Geisler
v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). A court must accept
the plaintiffs factual allegations as true, drawing all reasonable
inference in plaintiffs favor. Bernheim v. Litt, 79 F.3d 318,
321 (2d Cir. 1996). Materials de hors the complaint are generally not
considered on a motion to dismiss unless the court treats it as one for
summary judgment, giving all the parties a reasonable opportunity to
present relevant evidence under Rule 56. See Fed.R.Civ.P.
12(b)(6); Cortec Industries, Inc. v. Sum Holding L.P.,
949 F.2d 42, 48 (2d Cir. 1991) ("[T]he problem that arises when a court
reviews statements extraneous to a complaint generally is the lack of notice
to the plaintiff that they may be so considered; it is for that
reason-requiring notice so that the party against whom the motion to
dismiss is made may respond-that Rule 12(b)(6) motions are ordinarily
converted into summary judgement motions."); see also Festa v. Local
3 Int'l Bhd. Of Elec. Workers. 905 F.2d 35, 38 (2d Cir. 1990)
(court's consideration of affidavits filed with motion to dismiss was
improper without converting motion to one for summary judgment). The
purpose of this practice is to give the non-moving party proper notice,
1. Public Nuisance
A public nuisance under New York law exists when there is a substantial
interference with a public right. See Copart Indus., Inc. v. Consol.
Edison Co. of New York. 362 N.E.2d 968, 41 N.Y.2d 564, 569 (N.Y.
1977). In order for a private party to establish a defendant's liability
for this tort, a plaintiff must allege: (1) the existence of a public
nuisance; (2) conduct or omissions by a defendant that create, contribute
to, or maintain that public nuisance; and (3) particular harm suffered by
plaintiff different in kind from that suffered by the community at large.
National Association for the Advancement of Colored People v.
Acusport. Inc., 271 F. Supp.2d 435, 482 (E.D.N.Y. 2003)
Under New York law, a claim for public nuisance may lie against members
of the gun industry whose marketing and sales practice lead to the
diversion of large numbers of firearms into the illegal secondary gun
market. See id. at 449-51. In NAACP extensive
discovery and detailed expert testimony demonstrated that gun
manufacturers, importers and distributors were responsible for the
creation of a public nuisance and that they could, voluntarily and
through easily implemented changes, substantially reduce the harm
occasioned by the illegal possession and use of handguns. Id.
at 446; cf. People v. Sturm. Ruger & Co., Index No.
402586/00, at 26-27 (N.Y.Sup.Ct. Aug. 10, 2001) (dismissing public
nuisance claim before answers were filed or discovery was taken, but
specifically noting facts which, if alleged, might be sufficient to state
a cause of action), aff'd. 761 N.Y.S.2d 192 (N.Y. App. Div.
2003), leave to appeal denied, 100 N.Y.2d 514 (2003). For other
federal and state cases approving public nuisance claims against members
of the firearms industry, see e.g., Ileto v. Glock,
349 F.3d 1191 (9th Cir. 2003); White v. Smith & Wesson Corp.,
97 F. Supp.2d 816 (N.D. Ohio 2000); Chicago v. Beretta U.S.A.
Corp., 785 N.E.2d 16 (Ill.App. Ct. 2003); Young v. Bryco
Arms, 765 N.E.2d 1 (Ill.App. Ct.
2001); Gary v. Smith & Wesson. Corp., 2003 WL
23010035 (Ind. Dec. 23, 2003); Boston v. Smith & Wesson
Corp., 2000 WL 1473568 (Mass. Super. Ct. July 13, 2000); James
v. Arms Tech. Inc., 820 A.2d 27 (N.J. Super. Ct. App. Div. 2003);
Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136 (Ohio
Persons who join or participate in the creation or maintenance of a
public nuisance are liable jointly and severally for the wrong and
resulting injury. Simmons v. Everson. 26 N.E. 911, 124 N.Y. 319
(N.Y. 1891); Irvine v. Wood. 51 N.Y. 224 (N.Y. 1872); 81
N.Y. Jur.2d, Nuisances, § 59. Nuisance damages are capable of
apportionment among multiple tortfeasors where a reasonable basis can
be found for dividing the harm on the basis of the extent of the
contribution of each party. Restatement (Second) of Torts, § 840 E
"[C]reation of a public nuisance in the aggregate arises where it is
difficult or impossible to separate the injury done by one contributing
actor from that done by another and where the injury imposed by each
contributing actor individually does not constitute a substantial
interference with a public right." NAACP. 271 F. Supp.2d at 493.
"In a public nuisance claim brought by a private plaintiff seeking
damages, causation that a defendant created, contributed to or
maintained the alleged public nuisance cannot be based on conduct
creating only in the aggregate a public nuisance." Johnson v.
Beemiller, 2003 WL 21697025, *1 (E.D.N.Y. July 21, 2003) (citing
Chipman v. Palmer. 77 N.Y. 51, 54-57 (N.Y. 1879); Restatement
(Second) of Torts, § 840E); see also NAACP. 271 F. Supp.2d
In Johnson v. Beemiller. this court dismissed a case brought
against various firearms manufacturers and distributors because causation
was predicated on conduct creating a public
nuisance only in the aggregate. 2003 WL 21697025 (E.D.N.Y. July 21,
2003). Since the gun used in the Beemiller shooting was never
recovered, plaintiff sued those companies responsible for manufacturing
or distributing .380 caliber semi-automatic pistols, the same type of gun
used to shoot and kill the victim. See Complaint, Johnson
v. Beemiller. 2003 WL 21697025 (E.D.N.Y. July 21, 2003) (No.
03-0066). In contrast, private plaintiffs claiming a public nuisance have
been permitted to seek damages when it has been possible to identify the
source or sources of the particular firearm that caused special harm to
the plaintiff. See Ileto v. Glock. 349 F.3d 1191, 1216 (9th
Cir. 2003) (approving public nuisance claim against manufacturers and
distributors of guns used during shooting but dismissing claim as to
those defendants whose guns were part of the shooter's arsenal but were
not fired); Young v. Bryco Arms. 765 N.E, 2 d 1, 19-20
(Ill.App. Ct. 2001) (plaintiffs permitted to assert public nuisance claim
only against those defendants who manufactured, distributed or sold one
of the guns identified in the killings).
B. Special Harm
A private plaintiff does not have standing to bring a public nuisance
cause of action unless he or she shows some harm different from that
suffered by the public generally. 532 Madison Ave. Gourmet Foods.
Inc. v. Finlandia Center, Inc., 750 N.E.2d 1097, 96 N.Y.2d 280, 292
(N.Y. 2001). The harm must be different in kind, not just in degree.
NAACP. 271 F. Supp.2d at 498 (citing Graceland Corp. v. Consol.
Laundries Corp., 180 N.Y.S.2d 644 (N.Y. App. Div. 1959)). "When the
injury claimed to be peculiar is of the same kind suffered by all who are
affected, when it is common to the entire community, or . . . becomes
so general and widespread as to affect a whole community, the injury is
not peculiar and the action cannot be maintained." Burns Jackson
Miller Summit & Spitzer v. Lindner. 451 N.E.2d 459, 59 N.Y.2d 314,
334-35 (N.Y. 1983) (internal quotations and citations
omitted). This principle recognizes the need to avoid the multiplicity of
lawsuits that would result if everyone were permitted to bring suit for
the invasion of general rights common to all of the public. Restatement
(Second) of Torts, § 821C cmt b.
The fact that multiple persons are injured does not make the nuisance
such a common one as to exclude redress by a private individual; an
action may be maintained by one who is not the sole sufferer when the
grievance is not common to the whole public, but is shared by a number or
even a class of persons. Lansing v. Smith. 4 Wend. 9 (N.Y,
1829); 81 N.Y. Jur.2d, Nuisances, § 57. As long as they have
sustained a special injury, each no matter how numerous
is entitled to compensation. Francis v. Schoellkopf, 53 N.Y. 152,
154-55 (N.Y. 1873); 81 N.Y. Jur.2d, Nuisances, § 57.
i. Physical and Emotional Injury
Physical injuries to particular persons are generally sufficient to
constitute harm different in kind under New York law. See Anderson
v. Univ. of Rochester. 458 N.Y.S.2d 404 (N.Y. App. Div. 1982); 81
N.Y. Jur.2d, Nuisances, § 58; see generally Overcash v. South
Carolina Electric & Gas Co., 588 S.E.2d 116, 122-23 (S.C. 2003)
(listing numerous state court decisions in which physical injuries have
been held to be harm different in kind for the purpose of maintaining a
public nuisance claim); Restatement (Second) of Torts, § 821C cmt. d
("When the public nuisance causes personal injury to the plaintiff,
. . . the harm is normally different in kind from that suffered by
other members of the public and the tort action may be maintained.");
Prosser, Private Action for Public Nuisance. 52 Va. L.Rev.
997, 1012 (1966) ("[T]here can be no doubt that the nuisance action can
be maintained where a public nuisance causes physical
injury."). For cases finding that emotional injuries can constitute
special injury see e.g., Corgan v. Muehling, 522 N.E.2d 153
(Ill. 1988) (patient's emotional trauma resulting from psychologist's
negligent treatment of her was harm different in kind); Wilson v.
Parent. 365 P.2d 72 (Or. 1961) (woman who was subject of obscene
words in public street experienced harm different in kind).
The Court of Appeals for the Ninth Circuit has held that, under
California law, the physical and emotional trauma suffered by gunshot
victims is different in kind from "the danger, fear, inconvenience, and
interference with the use and enjoyment of public places that affect the
tenor and quality of everyday life" experienced by the general public as
a result of gun violence. Ileto v. Glock. 349 F.3d 1191, 1212
(9th Cir. 2003) (internal quotations omitted). It also found that the
physical and emotional injuries suffered by a witness to the shootings
were different in kind from those suffered by the general public.
Id. In reaching this decision the court followed an analysis
consonant with New York law. It made clear that it was referring to the
severe physical and emotional trauma suffered from the actual firing of
the gun, not simply the fear or inconvenience of gun violence. See
id. at 1216 ("[U]nder a nuisance claim, the requirement that
plaintiffs allege injuries different in kind from those suffered by the
general public, could not be met under . . . circumstances when the
gun at issue was not actually fired."); see also Young v. Bryco
Arms, 765 N.E.2d 1, 20 (Ill, App. Ct. 2001) (survivors of
individuals shot and killed by juvenile gang members had standing to
assert public nuisance claim only against those defendants who
manufactured, distributed or sold the firearms used in the killings).
Dismissal of the public nuisance suit in NAACP was based on
the finding that the organization failed to prove it suffered harm
different in kind from the general population in New
York as a result of the imprudent marketing practices of the
defendant gun manufacturers and distributors. 271 F. Supp.2d at 526. The
special injuries alleged by the plaintiff included testimony that some
members of the organization were afraid to attend meetings because of the
high level of gun violence in their neighborhoods and that there is a
higher rate of fire-arm related deaths and injuries among the membership
of the NAACP and the African-American community whose interests it
represents. Id. at 508-09. These injuries could not be
classified as different in kind under New York law because the general
fear of and risk from handguns extends to all members of the public.
Id. Unlike the plaintiffs in Ileto. the NAACP did not
bring any claims arising out of the manufacture, distribution or sale of
a particular firearm alleged to have been illegally used in a shooting
causing harm to the plaintiff.
ii. Pecuniary Injury
Pecuniary injury may constitute harm different in kind so long as it is
not common to an entire community. 532 Madison Avenue Gourmet Foods.
Inc. v. Finlandia Center. Inc., 750 N.E.2d 1097, 96 N.Y.2d 280 (N.Y.
2001); Burns Jackson Miller Summit & Spitzer v. Lindner.
451 N.E.2d 459, 59 N.Y.2d 314 (N.Y. 1983); Leo v. General
Electric Co., 538 N.Y.S.2d 844 (N.Y. App. Div. 1989); Farmer v.
D'Agostino Supermarkets, Inc., 544N.Y.S.2d 943 (N.Y.Sup.Ct. 1989);
81 N.Y. Jur.2d, Nuisances, § 58; Restatement (Second) of Torts §
821C cmt h. Thus, commercial fishermen have been found to have standing
to sue a river polluter for a public nuisance because they had been
specially injured by a state ban on the sale of fish obtained from waters
polluted by the defendant. Leo. 538 N.Y.S.2d at 847
("Dimunition or loss of livelihood is not suffered by every person who
fishes in the Hudson River or waters of Long Island."). Similarly,
homeless people have been permitted to maintain a public nuisance action
various stores for refusing to redeem large quantities of
returnable cans and bottles per day on the ground that they suffered an
impairment to their livelihood. Farmer, 544 N.Y.S.2d at 947
("Plaintiffs have alleged a harm different from that suffered by other
persons who return containers casually, simply to recover the refund
value."). In contrast, increased expenses or lost business profits
resulting from a nuisance, although they may be different in degree, do
not constitute harm different in kind to that suffered by the public.
See, e.g., 532 Madison Avenue Gourmet Foods. Inc., 96 N.Y.2d at
293-94 (lost profits of various businesses due to building collapse did
not constitute injury different from that suffered by the public at
large); Burns Jackson Miller Summit & Spitzer. 59 N.Y.S.2d
at 334 (law firms' lost profits resulting from closure of New York City
transit system during a strike did not constitute injury different from
that suffered by the public at large).
To prevail on a negligence claim, a plaintiff must establish the
following elements under New York law: (1) that the defendant owed him or
her a duty of care; (2) that the defendant breached this duty by engaging
in conduct posing an unreasonable risk of harm and (3) that defendant's
breach proximately resulted in damage to the plaintiff. See, e.g.,
Akins v. Glens Falls City Sch. Dist. 424 N.E.2d 531, 53 N.Y.2d 325,
333 (N.Y. 1981).
"A defendant generally has no duty to control the conduct of third
persons so as to prevent them from harming others, even where as a
practical matter defendant can exercise such control." D'Amico v.
Christie, 518 N.E.2d 896, 71 N.Y.2d 76, 88 (N.Y. 1987). This duty
arises when "the defendant's relationship with either the tortfeasor or
the plaintiff places the defendant
in the best position to protect against the risk of harm,"
Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055, 96 N.Y.2d 222,
233 (N.Y. 2001).
In Hamilton v. Beretta, the New York Court of Appeals held
that persons killed by illegally obtained handguns are not owed a duty by
handgun manufacturers to exercise reasonable care in the marketing and
distribution of their handguns. Id. at 240. The court, however,
did not bar all such negligence claims, stating, "Tort law is ever
changing; it is a reflection of the complexity and vitality of daily
life . . . Whether in a different case, a duty may arise remains a
question for the future." Id. at 242. Rather, it predicated
its decision in Hamilton on plaintiffs' inability to make a
tangible showing that: (1) "defendants were a direct link in the causal
chain that resulted in plaintiffs' injuries"; (2) "defendants were
realistically in a position to prevent the wrongs;" or (3) there was any
"statistically significant relationship between particular classes of
dealers and crime guns." See id. at 234, 236; cf. Ileto
v. Glock. 349 F.3d 1191, 1204-05 (9th Cir. 2003) (plaintiffs'
allegations that defendants' marketing and distribution strategies were
designed to increase firearms sales to illegal buyers were sufficient
to meet the requirements for establishing a duty of care).
Upon a showing that a specific class of manufacturers or dealers play a
disproportionate role in supplying the criminal gun-trafficking market,
the Hamilton court suggested that a duty may be imposed. It
discussed doing so under the negligent entrustment theory: "[This]
doctrine might well support the extension of a duty to manufacturers to
avoid selling to certain distributors in circumstances where the
manufacturer knows or has reason to know those distributors are engaging
in substantial sales of guns into the gun-trafficking market on a
consistent basis." Id. at 237. Under the negligent entrustment
doctrine, "[t]he possessor of a
dangerous instrument is under a duty to entrust it to a responsible
person whose use will not create an unreasonable risk of harm to others.
The duty may extend through successive, reasonably anticipated
entrustees." Id at 236-37 (citing Rios v. Smith.
744 N.E.2d 1156, 95 N.Y.2d 647 (N.Y. 2001); Splawnik v. DiCaprio,
540N.Y.S.2d 615 (N.Y. App. Div. 1989); Restatement (Second) of Torts
The defendant's acts or omissions must have been the proximate cause of
the plaintiffs injury. To satisfy this element, a plaintiff must
establish that the defendant's negligence was a substantial foreseeable
factor in bringing about his or her injury. See, e.g., Nallan v.
Helmsley-Spear, Inc., 407 N.E.2d 451, 50 N.Y.2d 507, 520 (N.Y.
1980); Derdiarian v. Felix Contracting Corp., 414 N.E.2d 666,
51 N.Y.2d 308, 315 (N.Y. 1980). The issue of proximate cause is generally
a question of fact for the jury, see, e.g., Mercado v. Vega.
572 N.E.2d 36, 77 N.Y.2d 918 (N.Y. 1991); Derdiarian. 51 N.Y.2d
at 315, unless only one conclusion may be drawn from the established
facts and the question of legal cause may be decided as a matter of law.
See Alexander v. Eldred, 472 N.E.2d 996, 63 N.Y.2d 460, 468
An intervening act by a third party does not necessarily break the
causal connection between the defendant's negligence and a plaintiff s
injury. Derdiarian. 51 N.Y.2d at 315. To break the legal chain,
the intervening act must have been "of such an extraordinary nature or so
attenuated from the defendants' conduct that responsibility for the
injury should not reasonably be attributed to them." Gordon v.
Eastern Ry. Supply, Inc., 626 N.E.2d 912, 82 N.Y.2d 555, 562 (N.Y.
1993). If the intervening act was a foreseeable consequence of the
defendant's negligence, he will be held liable. Derdiarian, 51
N.Y.2d at 315. Failure to take reasonable steps to guard
against a foreseeable criminal act is negligent. See, e.g.,
Bell v. Board of Educ. of the City of New York. 687 N.E.2d 1325,
90 N.Y.2d 944, 946 (N.Y. 1997); Kush v. City of Buffalo.
449 N.E.2d 725, 59 N.Y.2d 26, 33 (N.Y. 1983), Whether a superseding cause
exists and whether it was foreseeable is ordinarily decided by the
factfinder. Derdiarian. 51 N.Y.2d at 315.
In Hamilton the New York Court of Appeals left open the
possibility that, despite subsequent legal purchasers or even thieves, a
causal connection might be shown between the harm suffered by gunshot
victims and the conduct of members of the gun industry. 96 N.Y.2d at 234
(liability could not be imposed "without a more tangible showing that
defendants were a direct link in the causal chain that resulted in
plaintiffs' injuries, and that defendants were realistically in a
position to prevent the wrongs"); see also Ileto v. Glock.
349 F.3d 1191, 1206 (9th Cir. 2003) (finding that the negligence claim was
distinguishable from Hamilton on the basis that it sufficiently alleged a
direct link between the manufacturer's distribution practices and the
illegal sale of the gun used to kill the plaintiff).
3. Products Liability
Under New York law a design defect results when the product as designed
is unreasonably dangerous for its intended use, Micallef v. Miehle
Co., 348 N.E.2d 571, 39 N.Y.2d 376, 385 (N.Y. 1976). "This rule,
however, is tempered by the realization that some products, for example
knives, must by their very nature be dangerous in order to be
functional." Robinson v. Reed-Prentice Division.
403 N.E.2d 440, 49 N.Y.2d 471, 479 (N.Y. 1980). Breach of warranty occurs
when the absence or inadequacy of a warning for a reasonably foreseeable
risk accompanying a product causes harm. Torrogrossa v. Towmotor
Co., 376 N.E.2d 920, 44 N.Y.2d 709 (N.Y. 1978).
"The mere act of manufacturing and selling a handgun does not give rise
to liability absent a defect in the manufacture or design of the product
itself." Hamilton v. Accu-tek, 935 F. Supp. 1307, 1323 (E.D.N.Y.
1996), rev'd on other grounds sub nom. Hamilton v. Beretta USA
Corp., 264 F.3d 21 (2d Cir. 2001). "For a viable New York tort law
design defect claim against a handgun manufacturer, a plaintiff must
allege that a particular model in question is unreasonably dangerous."
Hamilton. 935 F. Supp. at 1323. A gun, whose very function is to
cause injury or to kill, is not defective simply because it accomplishes
that purpose. See, e.g., McCarthy v. Olin Corp., 119 F.3d 148,
155 (2d Cir. 1997) (design of hollow-point bullets not defective);
DeRosa v. Remington Arms Co., Inc., 509 F. Supp. 762, 767
(E.D.N.Y. 1981) (design of trigger pull on shotgun not defective);
Foni v. Ferguson, 648 N.Y.S.2d 73, 74 (N.Y. App. Div, 1996)
(design of pistol, ammunition and magazine of semi-automatic handgun not
defective). The absence of an anti-theft or other safety device does not
make a firearm unreasonably dangerous. See McCarthy, 119 F.3d
at 155; Hamilton. 935 F. Supp. at 1324 (quoting Robinson v.
Reed-Prentice Division, 403 N.E.2d 440, 49 N.Y.2d 471, 481 (N.Y.
1980) ("A manufacturer need not incorporate safety features into its
product so as to guarantee that no harm will ever come to any user [or
bystander] no matter how careless or reckless [the user may be].").
Those who carry on abnormally dangerous activities are strictly liable
for the harm inflicted by that activity. Spano v. Perini,
250 N.E.2d 31, 25 N.Y.2d 11, 15 (N.Y. 1969); Restatement (Second) of Torts
§ 519(1). Strict liability, however, does not attach to injuries
resulting merely from the use of a dangerous instrumentality such as a
firearm. McCarthy. 119 F.3d at 156; Hamilton.
935 F. Supp. at 1324.
2. Personal Jurisdiction
a. Standard of Review
A defendant may move for lack of jurisdiction over his or her person
pursuant to Federal Rule of Civil Procedure 12(b)(2). If a defendant does
not object to the assertion of personal jurisdiction in the first
Rule 12 motion or in the responsive pleading, it is deemed waived. Fed.R. Civ.
P.12(h)(1), The burden of proving jurisdiction is on the party asserting
it. Metropolitan Life Ins. Co. v. Robertson-Ceco Corp.,
84 F.3d 560, 566 (2d Cir. 1996). If, however, a defendant brings a motion to
dismiss for lack of personal jurisdiction before any discovery has been
conducted, plaintiff "need only allege facts constituting a prima facie
showing." PDK Labs. Inc. v. Friedlander, 103 F.3d 1105, 1108
(2d Cir. 1997). As with a motion to dismiss for failure to state a claim,
plaintiff's jurisdictional allegations are accepted as true and any
factual disputes are resolved in plaintiffs favor. See Metropolitan
Life Ins. Co., 84 F.3d at 566.
b. New York Long Arm Statute
Personal jurisdiction in diversity cases is determined in accordance
with the law of the forum state. Arrowsmith v. United Press
Int'l, 320 F.2d 219, 223 (2d Cir. 1963). Jurisdiction in this case
is asserted pursuant to the New York long arm statute. It provides:
[A] court may exercise personal jurisdiction over
any non-domiciliary . . . who in person or
through an agent . . . commits a tortious act
without the state causing injury to person or
property within the state . . . if he (i)
regularly does or solicits business, or engages in
any other persistent course of conduct, or derives
substantial revenue from goods used or consumed or
service rendered, in the state. . . .
N.Y. C.P.L.R. § 302(a)(3).
In addition to demonstrating that all requirements for jurisdiction
under this subsection are met, plaintiff must establish that an exercise
of jurisdiction would comport with federal due
process. Due process requires that: (1) the defendant has
sufficient "minimum contacts" with the State of New York to justify the
exercise of personal jurisdiction; and (2) the assertion of jurisdiction
is reasonable under the circumstances. Int'l Shoe Co. v.
Washington. 326 U.S. 310, 316, 66 S.Ct. 154 (1945);
Metropolitan Life Ins. Co., 84 F.3d at 567.
c. Criteria for Claims Involving Firearms Sales
The NACCP case, noting that the harm alleged went beyond that
of simply placing firearms into the stream of commerce, developed
criteria "to serve as guideposts" in analyzing the appropriateness of the
exercise of jurisdiction over gun manufacturers and distributors in a
public nuisance case. NAACP v. A.A. Arms. Inc., 2003 WL
21242939, at *3-5 (E.D.N.Y. Apr. 1, 2003). They include:
1) crimes committed in New York with the
2) total number of handguns that defendant
manufactured or sold in the United States; 3)
number of handguns sold by the defendant in New
York; 4) value of gun-related products sold by the
defendant in New York; 5) number of "trace"
handguns linked to criminal investigations in New
York that are attributable to the defendant; 6)
sales prices of the defendant's handguns . . .
7) type of gun and its intended use . . . 8)
connection with the defendant's related companies;
9) distribution methods and their possible effects
on crimes in New York; and 10) the defendant's
total revenue from the United States and New York
Id. at *4. Total number of handguns manufactured, sold
and traced in New York and the United States and distribution practices
with a possible effect on crime in New York were found to be
"particularly salient." Id. at *5.
B. Amending the Complaint
The Federal Rules of Civil Procedure encourage allowing amendment of a
complaint. Rule 15(a) reads:
A party may amend the party's pleading once as a
matter of course at any time before a responsive
pleading is served. . . .Otherwise a party may
amend the party's pleading only by leave of court
or by written consent of the adverse party; and
leave shall be freely given when justice so
In exercising discretion to grant leave to amend, courts "should be
guided by the underlying purpose of allowing amendment to facilitate a
decision on the merits." 3 Moore's Federal Practice § 15.14;
see also Foman v. Davis. 371 U.S. 178
, 182, 83 S.Ct 227 (1962)
("If the underlying facts or circumstances relied upon by a plaintiff may
be a proper subject of relief, he ought to be afforded an opportunity to
test his claim on the merits,").
Courts may deny a motion to amend on the basis of undue delay, bad
faith or dilatory motive, undue prejudice to the opposing party, or
futility of the amendment. Id. "The Rule in this Circuit has
been to allow a party to amend its pleadings in the absence of a showing
by the non-movant of prejudice or bad faith." Block v. First Blood
Associates. 988 F.2d 344, 350 (2d Cir. 1992) (citing State
Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.
1981)). In determining whether prejudice is undue, the court considers
whether the amendment "would: (i) require the opponent to expend
significant additional resources to conduct discovery and prepare for
trial; (ii) significantly delay the resolution of the dispute;
or (iii) prevent the plaintiff from bringing a timely action in
another jurisdiction." Block. 988 F.2d at 350 (emphasis added).
IV. Application of Law to Facts
A. Motion to Dismiss
1. Statement a Claim
a. Public Nuisance
Plaintiff alleges that defendants' marketing, distribution and sales
practices create a secondary illegal gun market, leading to a public
nuisance in New York. He is a private litigant seeking monetary damages
for injury to himself. He does not seek injunctive or any other equitable
Alleged are facts sufficient to make out a prima facie claim of public
nuisance. Plaintiff states that the defendants' marketing, distribution
and sales practices unreasonably interfere with the property, health,
safety and comfort of the general public by facilitating the diversion of
large numbers of firearms from the legal primary market to the illegal
underground market. Such business practices include straw purchases
(sales to a person authorized to buy firearm but buying on behalf of
someone not so authorized such as a felon or youth); multiple purchases
(sales of a number of guns to the same consumer at the same time); and
repeat sales (sale of a number of guns to the same person over a
relatively short period of time). Plaintiff contends that defendants
continued to engage in these practices despite knowledge, through ATF
crime-gun traces and other sources, that their firearms were
disproportionately being diverted into the illegal market and that one of
the guns moving through that illicit channel caused his injuries.
Plaintiff does not allege that the defendants created and contributed
to this public nuisance in the undifferentiated aggregate; rather, he
argues they should be held jointly and severally liable. Instead of suing
multiple members of the firearms industry, plaintiff limits his suit to
those companies present in the chain of distribution by which the
particular gun causing him harm made its way into the hands of his
attackers who foreseeably used it to shoot him. Since the gun used to
injure him has been recovered, plaintiff has been able to identify the
manufacturer, wholesaler, distributor and retailer of that firearm; he
alleges tortious conduct as to
each defendant. This is not a situation in which plaintiff is
unable to separate and quantify the contribution of each party to the
public nuisance. Nor is it a case in which each defendant contributed to
the public nuisance, thus causing the particular harm to such a slight
extent that its participation taken by itself would not be a substantial
interference with a public right.
The injuries claimed are different in degree and in kind from those
suffered by the general public. Plaintiff alleges that he has suffered
permanent physical and emotional injuries as a result of the shooting.
His physical injuries include permanent brain damage and paralysis.
Psychologically, he has suffered severe emotional trauma as a result of
the execution-style shootings he was forced to witness, as well as
survivor's guilt due to the fact that he was only one of two people to
survive while five of his colleagues were killed. He further claims loss
of livelihood, alleging that he will never be able to hold meaningful
employment, complete his education, or live on his own. Plaintiffs
injuries from the shooting, while clearly different in degree, are also
different in kind from the danger, fear, inconvenience, and interference
with the use and enjoyment of public places that affect the tenor and
quality of everyday life experienced by the general public as a result of
the threat of gun violence,
Since plaintiff states facts that establish a duty on the part of gun
companies to exercise reasonable care in the marketing and sales of their
product, it is premature to dismiss his negligence claim. The claim
involves the sort of factual scenario envisioned in Hamilton by
the New York Court of Appeals. In particular, plaintiff alleges that
defendants were a direct link in the causal chain that resulted in his
injuries and that they were in the best position to prevent the
foreseeable harm he suffered. Discovery is needed to determine whether he
should be allowed to
proceed on this theory.
Because the firearm used in the Wendy's massacre was recovered,
plaintiff can identify the manufacturer, wholesaler, distributer and
retailer of the gun. He contends that the distributor, Acusport,
negligently entrusted the firearm in question to the retailer, Atlantic
Gun & Tackle, despite the knowledge that it was consistently engaging
in sales that diverted guns into the illegal, underground firearms
market. He further alleges that Atlantic Gun & Tackle sold the gun in
question to Angela Freeman although it knew or should have known that she
was a straw purchaser who was buying the gun on behalf of Bernard Gardier
who could not legally purchase it himself. Although the firearm
subsequently changed hands illegally a number of times before ultimately
coming into the possession of plaintiff's attackers, it is alleged that
defendants were put on notice that this kind of transfer would
foreseeably occur. He relies upon ATF data establishing that a high
proportion of defendants' guns were the subject of crime-gun traces.
Plaintiff also contends that defendants are part of a small group of
corrupt or negligent gun companies which play a disproportionate role in
supplying the illegal gun market. He alleges that defendants' marketing
and distribution practices result in guns moving more readily into the
illegal market than do those of other distributors or retailers and that
defendants had the power to stop the flow of their guns into the illegal
market but did not do so. In support of his assertion, he quotes an ATF
report which cites Atlantic Gun & Tackle as the second highest
offender among gun dealers whose firearms account for an unusually large
proportion of crime-guns. Bureau of Alcohol, Tobacco and Firearms,
Commerce in Firearms in the United States 23-24 (Feb. 2000).
The New York Court of Appeals decision in Hamilton was, in
part, predicated on the
inability in that case to determine whether a high incidence of
traces was attributable to irresponsible conduct on the part of certain
members of the gun industry. Nearly three years later, significantly more
evidence is available. In NAACP, extensive discovery and
detailed expert testimony based upon ATF data and other material
demonstrated that it could be concluded that the defendant gun companies
had engaged in irresponsible marketing, distribution and sales practices
and that they could, voluntarily and through easily implemented changes,
keep thousands of handguns from diversion into criminal use in New York.
Acusport was one of the defendants in that case. Another study, using
research obtained and analyzed in the course of the NAACP case,
reports that, from 1996-2000, Atlantic Gun & Tackle had 909 gun
traces with trafficking indicators. (Trafficking indicators include guns
with obliterated serial numbers, multiple purchases in which more than
one gun was sold to one individual, guns recovered in a state other than
where they were bought, and guns traced back to a store that repeatedly
reports firearm thefts.) See Americans for Gun Safety Research,
Selling Crime: High Crime Gun Stores Fuel Criminal 6-7, 9 (Jan,
2004). The evidence provided by NAACP expert testimony and
other authoritative reports lends support to plaintiffs allegations and,
in conjunction with the direct causal connection alleged between
defendants' business practices and plaintiffs injuries, is sufficient to
sustain the negligence claim against a Rule 12(b)(6) motion.
c. Products Liability
Plaintiff alleges that defendants distributed and sold a defective
firearm because it was designed without a safety or anti-theft device. He
further claims breach of the warranty of merchantability because of the
lack of proper safety devices. Finally, he alleges defendants should be
strictly liable because firearms constitute ultrahazardous activities.
This is not a valid claim upon which relief can be granted. Plaintiff
has not alleged that the gun used was in defective condition. Under New
York law the absence of a safety device does not give rise to liability
under a design defect or breach of warranty theory. Plaintiff, however,
argues that the law warrants reconsideration in light of the fact that
the technology to make guns safer is now available. To do so, however,
would require a balancing of the risk versus the utility of incorporating
safety devices into the design of firearms, an approach thus far
expressly rejected by the courts.
Plaintiffs products liability claims fail as a matter of law. They are
2. Personal Jurisdiction
Plaintiff has made a prima facie showing sufficient to establish
personal jurisdiction over Atlantic Gun & Tackle pursuant to New
York's long arm statute. He alleges it has committed the torts of public
nuisance and negligence outside this state, causing him severe physical
and emotional injury within New York, and that it has regularly done
business or engaged in other persistent conduct in New York and derives
substantial revenue from goods used in this state. Such conduct satisfies
criteria previously determined to support a court's exercise of
jurisdiction over gun companies. See NAACP. 2003 WL 21242939,
at *3-5. It includes allegations that there have been crimes committed in
New York with the defendant's guns; that there are a significant number
of traces linked to criminal investigations in New York that are
attributable to the defendant's conduct; and that defendant's
distribution practices have a substantial effect on crime in New York.
Finally, plaintiff claims that further discovery will allow him to
acquire evidence establishing even more of the factors for determining
personal jurisdiction set forth in NAACP.
Because the elements for determining personal jurisdiction in a
case such as this are fact-intensive, it is appropriate to deny the
motion to dismiss for lack of personal jurisdiction pending further
B. Amending the Complaint
There are no circumstances warranting denial of the motion to amend the
complaint. Since Atlantic Gun & Tackle has not yet filed a responsive
pleading, plaintiff may amend his complaint as of right as to that
defendant. Although Acusport has filed an answer, it would not be
prejudiced by plaintiffs proposed amendments. The amended complaint
simply advances additional details; it does not include new claims or any
other information that could not have been deduced from the original
complaint. No additional resources, beyond those already contemplated,
are required to proceed with discovery. Although plaintiff moved to amend
his complaint subsequent to the filing of defendants' motion to dismiss,
the proposed amendments have no prejudicial effect on the motion.
The motion to dismiss for failure to state a claim is denied except
that plaintiffs products liability claims are dismissed. The motion to
dismiss for lack of personal jurisdiction is denied with leave to renew
after further discovery. The motion to amend the complaint is granted.
Discovery will proceed on an expedited basis under the direction of the
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