119 F.3d 148 (2nd Cir. 1997), 458, McCarthy v. Olin Corp.

Docket Nº:458, Docket 96-7320.
Citation:119 F.3d 148
Party Name:Carolyn McCARTHY, individually and as Executrix of the Estate of Dennis McCarthy; Kevin McCarthy; MaryAnne Phillips; and Robert C. Phillips, Plaintiffs-Appellants, v. OLIN CORPORATION, Defendant-Appellee.
Case Date:July 16, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 148

119 F.3d 148 (2nd Cir. 1997)

Carolyn McCARTHY, individually and as Executrix of the

Estate of Dennis McCarthy; Kevin McCarthy;

MaryAnne Phillips; and Robert C.

Phillips, Plaintiffs-Appellants,

v.

OLIN CORPORATION, Defendant-Appellee.

No. 458, Docket 96-7320.

United States Court of Appeals, Second Circuit

July 16, 1997

Argued Oct. 24, 1996.

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Leon Segan, New York City (Fred J. Hirsh, New York City, on the brief), for Plaintiffs-Appellants.

Daniel P. Jaffe, St. Louis, MO (Arthur L. Smith, Jeanine R. Bermel, Husch & Eppenberger, St. Louis, MO, Edward P. Dunphy, Armienti Brooks DeBellis & Dunphy, New York City, of counsel), for Defendant-Appellee.

Before: MESKILL, CALABRESI and CABRANES, Circuit Judges.

MESKILL, Circuit Judge:

Plaintiffs include two surviving victims and the estate of one deceased victim of the December 7, 1993 assault on the 5:33 p.m. Long Island Railroad commuter train. 1 The bullets used in the shootings were Winchester "Black Talon" hollowpoint bullets, designed to enhance the injuries of their victims. This action was brought in New York State Supreme Court against, inter alios, Olin Corporation, the manufacturer of the bullets. The complaint asserted causes of action in the negligent manufacture, advertising and marketing of a product that was unreasonably designed and ultrahazardous, the making of an unreasonably dangerous product and strict liability in tort. Defendants removed the case to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1441(a), on the grounds that the district court had original jurisdiction due to diversity of citizenship of the parties under 28 U.S.C. § 1332(a)(1). Olin then moved to dismiss the complaint in its entirety pursuant to Fed.R.Civ.P. 12(b)(6). The district court, Baer, J., granted the motion, finding that the complaint failed to state any claim under New York law upon which relief could be granted. McCarthy v. Sturm, Ruger and Co., 916 F.Supp. 366 (S.D.N.Y.1996). Plaintiffs appeal from the order dismissing their suit, or in the alternative ask us to certify the question of ammunition manufacturer liability to the New York Court of Appeals. Finding sufficient precedents in New York law to evaluate the merits of plaintiffs' claims, we decline to grant certification and affirm the judgment of the district court.

BACKGROUND

On December 7, 1993, Colin Ferguson boarded the Long Island Railroad's 5:33 p.m. commuter train departing from New York City and opened fire on the passengers. Six people, including Dennis McCarthy, were killed and nineteen others, including Kevin McCarthy and Maryanne Phillips, were wounded in the vicious attack. Ferguson was armed with a 9mm semiautomatic handgun, which was loaded with Winchester "Black Talon" bullets (Black Talons). The injuries to Dennis and Kevin McCarthy and Maryanne Phillips were enhanced by the ripping and tearing action of the Black Talons because, unfortunately, the bullets performed as designed.

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The Black Talon is a hollowpoint bullet designed to bend upon impact into six ninety-degree angle razor-sharp petals or "talons" that increase the wounding power of the bullet by stretching, cutting and tearing tissue and bone as it travels through the victim. The Black Talon bullet was designed and manufactured by Olin Corporation (Olin) through its Winchester division and went on the market in 1992. Although the bullet was originally developed for law enforcement agencies, it was marketed and available to the general public. In November 1993, following public outcry, Olin pulled the Black Talon from the public market and restricted its sales to law enforcement personnel. Colin Ferguson allegedly purchased the ammunition in 1993, before it was withdrawn from the market.

Plaintiffs brought this action against Olin, Sturm, Ruger & Company Inc., the manufacturer of the handgun used by Ferguson, and Ram-Line Inc., the manufacturer of the fifteen round capacity magazine used with the handgun, in New York State Supreme Court to recover for the injuries of Kevin McCarthy and Maryanne Phillips and the death of Dennis McCarthy. The complaint was based on various theories of negligence and strict liability. Defendants removed the case to the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. § 1441(a), on the grounds that the district court had original jurisdiction based on diversity of citizenship of the parties under 28 U.S.C. § 1332(a)(1). The action was subsequently discontinued with prejudice against Sturm, Ruger and Ram-Line.

Olin moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The district court granted the motion. First addressing the issue of negligence, the court held that plaintiffs' negligence theories must fail because Olin owed no duty to plaintiffs to protect them from criminal misuse of the Black Talon ammunition. McCarthy, 916 F.Supp. at 368-70. With respect to the strict liability claims, the court held that plaintiffs failed to allege the existence of a design defect in the Black Talon because the ammunition must by its very nature be dangerous to be functional. Id. at 370-71. The risk of the Black Talon arises from the function of the product, not from a defect in the product. Id. at 371. The court noted that to state a claim in either negligence or strict liability, plaintiff must demonstrate that defendant's breach was the proximate cause of their injuries. Here, Ferguson's conduct was an extraordinary act which broke the chain of causation. Id. at 372. The district court also pointed to two recent decisions by the New York Supreme Court addressing almost identical claims and holding that they did not state a cause of action. Id. at 368. See Pekarski v. Donovan, Nos. 95-11161, 95-1175, 95-1187, slip op. (N.Y.Sup.Ct. Oneida County Sept. 27, 1995) (victims of shooting by ex-police officer brought suit against Olin Corp.); Forni v. Ferguson, No. 132994/94, slip. op. (N.Y.Sup.Ct. New York County Aug. 2, 1995), aff'd, 232 A.D.2d 176, 648 N.Y.S.2d 73 (1st Dep't 1996) (action by victim of Long Island Railroad shooting against Olin Corp.). 2

Plaintiffs appeal the dismissal of their complaint, claiming that the issue of whether they will ultimately prevail is a matter to be determined on a factual basis and not merely on the pleadings. In the alternative, plaintiffs request that because the complaint is based on novel theories of liability under New York law, we certify the questions raised in this case to the New York Court of Appeals.

DISCUSSION

We review de novo the district court's dismissal of the complaint under Fed.R.Civ.P. 12(b)(6) and draw all reasonable inferences in the plaintiffs' favor. Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir.1994). The complaint may be dismissed only if "it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim[s] which would entitle [them] to relief." Conley

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v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

A federal court sitting in a diversity case will apply the substantive law of the forum state on outcome determinative issues. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir.1994). We determine de novo what the law of New York is. Bank of New York v. Amoco Oil Co., 35 F.3d 643, 650 (2d Cir.1994) (citing Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991)). In making this determination, we afford the greatest weight to decisions of the New York Court of Appeals. Id. "Where the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity." Travelers Ins. Co., 14 F.3d at 119. "Where the high court has not spoken, the best indicators of how it would decide are often the decisions of lower [New York] courts." In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 850 (2d Cir.1992). We may also consider relevant cases from jurisdictions other than New York. Bank of New York, 35 F.3d at 650.

Appellants argue that in New York, there is no definite rule of law as to liability for ammunition manufacturers, especially ammunition designed to cause enhanced injuries beyond ordinary bullets, and therefore the district court erred in dismissing their complaint. Appellants reason that because they raise "novel" theories of liability, discovery should be allowed so that the issues may be explored in "light of actual facts rather than pleading suppositions." As an alternative to their argument for remand, appellants ask us to certify the questions raised in this case to the New York Court of Appeals. We address appellants' arguments in reverse order, first discussing the standard applied to determine suitability for certification. Because we hold that certification is not warranted, we will then address the merits of the substantive issues raised in this appeal.

I. Certification to the New York Court of Appeals

The procedure for certifying a question of law to the New York Court of Appeals is governed by Second Circuit Rule 0.27 and New York Court of Appeals Rule 500.17. See also N.Y. Const. art. VI, § 3(b)(9). "Certification is a discretionary device, both for the certifying court and for the court requested to answer the certified question[s]." Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 51 (2d Cir.1992). See 2d Cir. R. 0.27...

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