The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
Plaintiff sues AcuSport Corporation ("AcuSport"), the
distributor, and Atlantic Gun & Tackle, Inc. ("Atlantic"), the
retailer, of a handgun used to kill an employee in a Wendy's food
store. The basic issue is whether careless marketing techniques
of defendants led to the killing. The case depends on plaintiff's
charge of a "straw sale," i.e. the selling of a gun to an
apparent purchaser when the real purchaser cannot acquire the gun
legally, that led to a diversion of the gun into the criminal
underworld of New York where it was repeatedly resold until it
was used to murder.
Defendants move for summary judgment. For the reasons stated
below the motion is granted in part.
Plaintiff's nuisance claims are dismissed.
Plaintiff cannot establish particular danger to this plaintiff,
as distinguished from all other New York City residents, from the
alleged nuisance prior to the actual killing. See NAACP v.
Acusport, Inc., 271 F. Supp. 2d 435, 497-99 (E.D.N.Y. 2003).
But cf. Johnson v. Bryco Arms, 304 F. Supp. 2d 383, 392, 399
The negligence component of the nuisance claim is essentially
the same as that for pure negligence. See NAACP,
271 F. Supp. 2d at 448. Allowing the nuisance claim to be prosecuted would extend evidentiary inquiries far beyond those needed for
what is a relatively simple case of negligence. See id. The
chance of prejudice and confusion of jurors would be enhanced
were the nuisance claim to be tried.
III. Negligence Claim Against Retailer
Summary judgment is denied as to plaintiff's claim of
negligence against Atlantic, the retailer of the gun.
The evidence of a straw sale by the defendant and Atlantic's
relatively large number of alleged illegal or careless sales
sufficiently supports a possible finding of negligence leading to
a foreseeable death by shooting. See Hamilton v. Beretta U.S.A.
Corp., 750 N.E.2d 1055 (N.Y. 2001) (holding that handgun
manufacturers do not owe a duty of reasonable care in the
marketing and distribution of their handguns to persons injured
or killed through the use of illegally obtained handguns, but
leaving open the question of retailers' liability).
The retailer is much closer to the illegal use than the
manufacturer, so that the proximate cause issue is not decisive.
Hamilton does not bar this claim. Compare id. at 1062
("[B]road liability [of manufacturers of guns], potentially
encompassing all gunshot crime victims, should 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."). Evidence of a knowing straw sale by the retailer
supports a finding of its liability for a killing using a gun it
sold wielded by the purchaser or another. See Johnson v. Bryco
Arms, 304 F. Supp. 2d 383, 399 (E.D.N.Y. 2004) ("[Plaintiff
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.").
IV. Negligence Claim Against Distributor
Summary judgment is granted as to plaintiff's claim of
negligence against defendant AcuSport.
The distributor is closer to the illegal use than the
manufacturer so that Hamilton does not necessarily control on
proximate cause. See Hamilton, 750 N.E.2d at 1062. In the
instant case, however, the evidence of knowledge attributed to
the distributor came after the ...