Hamilton v. Beretta U.S.A. Corp.

Decision Date01 August 1999
Docket NumberACCU-TE,99-7787,RAM-LINE,AMERICAN,Docket Nos. 99-7753,99-7785,ASTRA-UNCERA,SLADE-LEWIS
Parties(2nd Cir. 2000) FREDDIE HAMILTON, Administratrix of the Goods, Chattels, and Credits of Njuzi Ray, Deceased, and Individually, KATINA JOHNSTONE, Administratrix of the Goods, Chattels, and Credits of David Johnstone, Deceased, and Individually, DIANE BENJAMIN, as Administratrix of the Estate of Donald Boyd, Deceased, and Individually, DELORES BOYD, as Administratrix of the Estate of Donald Boyd, Deceased, and Individually, ANNE CARGILL, as Administratrix of the Estate of David Cargill, Deceased, and Individually, VERONICA COSTA, as Administratrix of the Estate of Christopher Malachi, Deceased, and Individually, FRANCES DAVIS, as Administratrix of the Estate of Frankie Davis, Deceased, and Individually, MARY KONAPACKI, as Independent Administrator of the Estate of Amy Elizabeth Merkes, Deceased, and Individually, SHUJI MATSUURA, as Personal Representative of the Estate of Go Matsuura, Deceased, and Individually, ALICE NORRIS, as Independent Administrator of the Estate of Rolanda Lakesia Marshall, Deceased, and Individually, YVONNE POPE as Administratrix of the Estate of Stepfone Herbin, Deceased, and Individually, MICHAEL ROBBINS, MARIA SANTANA, as Administratrix of the Estate of Robert Robles, Deceased, and Individually, ANDREA, as Administratrix of the Estate of Damon Slade, Deceased, and Individually, ADRIENNE STANFORD, as Administrator to Collect of the Estate of Damien Anthony Stanford, Deceased, and Individually, KOICI SUNADA, as Representative of the Estate of Kei Sunada, Deceased, and Individually, VERONICA TROTT, as Administratrix of the Estate of Leroy Michael Sabb, Deceased, and Individually, THOMAS VANDENBERK, as Administrator to Collect the Estate of Thomas C. Vandenberk II, Deceased, and Individually, and DIANE ZARETSKY, as Administratrix of the Estate of Marvin Zaretsky, Deceased, and Individually, Plaintiffs, GAIL FOX and STEPHEN FOX, Plaintiffs-Appellees, v. BERETTA U.S.A. CORP., TAURUS INTERNATIONAL MANUFACTURING, INC., AMERICAN ARMS, INC., and COLT'
CourtU.S. Court of Appeals — Second Circuit

Defendants Beretta U.S.A. Corp., American Arms, Inc., and Taurus International Manufacturing, Inc., appeal from a judgment entered after a jury found that their negligence in marketing and distributing handguns caused plaintiffs' injuries. Defendants contend that as a matter of law they cannot be held liable for plaintiffs' injuries because under New York state law, they have no duty to exercise reasonable care in the marketing and distribution of handguns. Defendants further contend that under New York state law any liability in this case may not be apportioned on a market share basis. Questions certified to the New York Court of Appeals.

Defendant Colt's Manufacturing Co., Inc., which was held not liable for plaintiffs' injuries, seeks standing to join in an appeal from the district court's judgment. In a separate order filed herewith, we deny standing to Colt's.

LAWRENCE S. GREENWALD, Baltimore, Maryland (Nancy E. Paige, Catherine A. Bledsoe, Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC, Baltimore, Maryland; Lawrence G. Keane, Pino & Associates, White Plains, New York; Daniel T. Hughes, Erin A. O'Leary, Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, New York, New York, of counsel), for Defendants-Appellants Beretta U.S.A. Corp. and American Arms, Inc.

TIMOTHY A. BUMANN, Budd Larner Gross Rosenbaum Greenberg & Sade, Atlanta, Georgia (Geoffrey Gaulkin, Dana S. Mancuso, Budd Larner Gross Rosenbaum Greenberg & Sade, Short Hills, New Jersey; Barry R. Ostrager, Mary Beth Forshaw, Gerald E. Hawxhurst, Simpson Thacher & Bartlett, New York, New York; Andrew Zajac, Fiedelman & McGaw, Jericho, New York, of counsel), for Defendants-Appellants Taurus International Manufacturing, Inc. and Colt's Manufacturing Co., Inc.

BARRY R. OSTRAGER, New York, New York (Mary Beth Forshaw, Gerald E. Hawxhurst, Simpson Thacher & Bartlett, New York, New York; Andrew Zajac, Fiedelman & McGaw, Jericho, New York, of counsel), for Defendant-Appellant Colt's Manufacturing Co., Inc.

MARC E. ELOVITZ, New York, New York (Michael S. Feldberg, Kefira R. Wilderman (admission pending), Schulte Roth & Zabel LLP, New York, New York; Elisa Barnes, New York, New York; Denise Dunleavy, Weitz & Luxenberg, New York, New York, of counsel), for Plaintiffs-Appellees Gail Fox and Stephen Fox.

ELISA BARNES, New York, New York, for Plaintiffs-Appellees Gail Fox and Stephen Fox.

John B. Glendon, Pepper Hamilton LLP, New York, New York (James M. Beck, Pepper Hamilton LLP, Philadelphia, Pennsylvania; Hugh F. Young, Jr., Product Liability Advisory Council, Inc., Reston, Virginia, of counsel), filed a brief for Product Liability Advisory Council, Inc. as Amicus Curiae in support of Defendants-Appellants.

Peter J. Romatowski, Washington, D.C. (Victor E. Schwartz, Mark A. Behrens, Christopher J. McGuire, Crowell & Moring LLP, Washington, D.C.; Robin S. Conrad, National Chamber Litigation Center, Inc., Washington, D.C., of counsel), filed a brief for Chamber of Commerce of the United States as Amicus Curiae in support of Defendants-Appellants.

Pierce Gore, New York, New York (Steven E. Fineman, Robert J. Nelson, Jonathan D. Selbin, Lieff, Cabraser, Heimann & Bernstein, LLP, New York, New York, of counsel), filed a brief for The Cities of Boston, Massachusetts, Camden, New Jersey, Chicago, Illinois, Los Angeles, The City and County of San Francisco, Sacramento, Oakland, Berkeley, East Palo Alto, Compton, Inglewood and West Hollywood and the Counties of Los Angeles, Alameda and San Mateo, California as Amici Curiae in support of Plaintiffs-Appellees.

Jeffrey R. White, Washington, D.C. (Richard H. Middleton, The Association of Trial Lawyers of America, Washington, D.C.; Misty Farris, Thomas Simms, Baron & Budd, P.C., Dallas, Texas, of counsel), filed a brief for The Association of Trial Lawyers of America as Amicus Curiae in support of Plaintiffs-Appellees.

Rachana Bhowmik, Washington, D.C. (Dennis A. Henigan, Jonathan E. Lowy, Brian J. Siebel, Allen Rostron, Center to Prevent Handgun Violence, Washington, D.C., of counsel), filed a brief for The Center to Prevent Handgun Violence, The American Academy of Pediatrics, The American Association of Suicidology, The American Jewish Congress Commission on Law and Social Action, Common Cause, The Educational Fund to End Handgun Violence, The National Association of Elementary School Principals, The National Association of School Psychologists, The National Association of Secondary School Principals, The National Spinal Cord Injury Association, and Trial Lawyers for Public Justice as Amici Curiae in support of Plaintiffs-Appellees.

Before: CARDAMONE, CABRANES, Circuit Judges, and TRAGER*, District Judge.

Judge Cabranes dissents in a separate opinion.

CARDAMONE, Circuit Judge:

Appellees Gail Fox and her son Stephen Fox among other plaintiffs sued defendants, 25 gun manufacturers, in the United States District Court for the Eastern District of New York (Weinstein, J.). A four-week jury trial resulted in a jury verdict finding 15 of the defendants negligent in the marketing and distribution of handguns. Although nine of these 15 defendants were found by the jury to have proximately caused injury to one or more...

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11 cases
  • City of Philadelphia v. Beretta U.S.A., Corp.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 20 Diciembre 2000
    ...the same dilemma when it needed to confront issues of gun manufacturer liability under New York negligence law. Hamilton v. Beretta U.S.A. Corp., 222 F.3d 36 (2nd Cir.2000). That court chose a path unavailable to me: it certified the question to the New York Court of Appeals. See id. at 46.......
  • Merrill v. Navegar, Inc.
    • United States
    • California Supreme Court
    • 6 Agosto 2001
    ...recognized the duties of reasonable care that accompany the distribution of other dangerous, but perfectly legal, products." (Hamilton, supra, 222 F.3d at p. 44.) Indeed, the duty to exercise reasonable care in one's manner of distributing and marketing a product has been recognized in its ......
  • De Kwiatkowski v. Bear Stearns & Co., Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • 29 Diciembre 2000
    ...care based on policy considerations unrelated to any contractual obligations binding particular parties. See Hamilton v. Beretta U.S.A. Corp., 222 F.3d 36, 41-42 (2d Cir.2000); McCarthy v. Olin Corp., 119 F.3d 148, 166 (2d Cir.1997); Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275 (1922); Ma......
  • City of New York v. Smokes-Spirits.Com, Inc.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 2 Septiembre 2008
    ...subscribers being harmed by a defendant's or defendants' violation of [GBL] § 349[are] too remote"); see also Hamilton v. Beretta U.S.A. Corp., 222 F.3d 36, 42 (2d Cir.2000) (certifying the question of whether gun manufacturers owe a duty to exercise reasonable care in marketing and distrib......
  • Request a trial to view additional results
1 books & journal articles
  • Beware of plaintiffs' new uses of old tort theories to avoid product identification.
    • United States
    • Defense Counsel Journal Vol. 68 No. 1, January 2001
    • 1 Enero 2001
    ...See 935 F.Supp. 1307 (1996); 13 F.Supp.2d 366 (1998); 1998 WL 903473; 47 F.Supp.2d 330 (1999); 62 F.Supp.2d 802, 821-22 (1999). (22.) 222 F.3d 36 (2000). See also 225 F.3d 645 (2d Cir. 2000) (denying Colt's, which was one of 25 defendants found not guilty by jury, right to join in appeal). ......

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