762 F.2d 1250 (5th Cir. 1985), 83-3451, Perkins v. F.I.E. Corp.

Docket Nº:83-3451, 83-3591.
Citation:762 F.2d 1250
Party Name:Joseph PERKINS, Plaintiff-Appellant, v. F.I.E. CORPORATION, Defendant-Appellee. Judie RICHMAN, Individually and as Personal Representative of the Estate of Kathy Newman, Deceased, Plaintiff-Appellee, v. CHARTER ARMS CORPORATION, Defendant-Appellant.
Case Date:June 17, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1250

762 F.2d 1250 (5th Cir. 1985)

Joseph PERKINS, Plaintiff-Appellant,


F.I.E. CORPORATION, Defendant-Appellee.

Judie RICHMAN, Individually and as Personal Representative

of the Estate of Kathy Newman, Deceased, Plaintiff-Appellee,



Nos. 83-3451, 83-3591.

United States Court of Appeals, Fifth Circuit

June 17, 1985

Rehearing and Rehearing En Banc Denied in No. 83-3591 July 15, 1985.

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Talbot, Sotile, Carmouche, Marchand & Marcello, Victor L. Marcello, Donaldsonville, La., for Perkins.

Bienvenu, Foster, Ryan & O'Bannon, Ernest L. O'Bannon, John C. Tollefson, Robert N. Ryan, New Orleans, La., for F.I.E. Corp.

Henry B. Bruser, III, Bangor Punta Corp., John B. Glendon, Greenwich, Conn., for amicus-Bangor Punta.

David R. Frohn, Geralyn P. Garvey, Brian G. Meissner, Lake Charles, La., for Charter Arms Corp.

Mark K. Benenson, New York City, for amicus-Second Amendment Foundation.

Frank G. Jones, James B. Sales, Houston, Tex., for amicus-R.G. Industries.

Richard E. Gardiner, Robert J. Dowlut, Washington, D.C., for amicus-National Rifle.

Nicholas E. Calio, Washington, D.C., Paul D. Kamenar, Wash. Legal Found., Donald E. Santarelli, M. Stuart Madden, Washington, D.C., for amicus-Washington Legal.

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John J. Gunther, Exec. Dir., U.S. Conference of Mayors, Stephen Chapple, Gen. Counsel, Washington, D.C., Salvador Anzlemo, City Atty., Daniel Zimmerman, Asst. City Atty., City of New Orleans, New Orleans, La., for amicus-The U.S. Conference of Mayors, et al.

Windle Turley, Dallas, Tex., for Richman.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WISDOM, WILLIAMS, and HILL, Circuit Judges.

WISDOM, Circuit Judge:

The plaintiffs in this consolidated appeal seek to recover damages from the manufacturers of small caliber handguns that caused severe injury during the perpetration of one crime and the death of the victim in another crime. The plaintiffs present two theories of recovery. First, they argue that the marketing of a dangerous weapon to the general public is an ultrahazardous activity giving rise to absolute liability under Louisiana law. Second, they argue that the handgun used in the two crimes is an unreasonably dangerous product giving rise to strict products liability, 1 because of its small size, enabling it to be easily concealed, coupled with marketing of it to the general public. The district court in No. 83-3451 granted summary judgment in favor of the defendant on both theories; we affirm. The district court in No. 83-3591 granted summary judgment in favor of the defendant on the products liability theory, but refused summary judgment in favor of the defendant on the ultrahazardous activity theory. We affirm the judgment in favor of the defendant on the products liability issue; we reverse the summary judgment in favor of the plaintiff on the ultrahazardous activity issue and remand with instructions to enter summary judgment in favor of the defendant on both theories.



This consolidated appeal presents two cases in each of which a criminal using a small caliber handgun shot an innocent victim. On September 18, 1981, Claude Nichols shot Joseph Perkins at the Cut Rate Lounge in Tangipahoa Parish, Louisiana. Nichols entered the lounge after participating in a fight in the barroom's parking lot. He began senselessly firing a .25 caliber automatic pistol at the individual with whom he had been fighting. The barroom was crowded, and two innocent patrons, including Perkins, were wounded. Perkins was struck in the spine and is now permanently paralyzed from the waist down. Nichols pleaded guilty to the crime of aggravated battery and was sentenced to five years of hard labor.

F.I.E. Corporation allegedly manufactured and distributed the handgun used by Nichols. Perkins filed suit against the defendant manufacturer in the 21st Judicial District Court for the Parish of Tangipahoa. The defendant removed the suit to federal court under diversity jurisdiction. The plaintiff alleged that the pistol manufactured by the defendant "is defective in that it is unreasonably dangerous in normal use, that the hazard of injury to human beings exceeds the utility of the pistol and this defect constitutes a proximate cause"

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of the injury. The plaintiff invoked as a basis for liability La.Civ.Code art. 2315, which provides, in essential part, "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." The plaintiff admitted in answers to interrogatories that there was no defect in the design of the gun, no defect in the manufacture or assembly of the component parts of the gun, no statutory prohibition to the manufacture or distribution of the gun, and that Claude Nichols was not at the time of the shooting an agent, employee, or servant of F.I.E. Corp. The district court granted the defendant's motion for summary judgment without a written opinion, and the plaintiff appealed.


On April 4, 1981, Willie Watson kidnapped Kathy Newman, a third-year medical student at Tulane University, from the parking lot of her apartment in the uptown university section of New Orleans. Watson was armed with a .38 caliber handgun allegedly designed, manufactured, and marketed by Charter Arms Corp. He forced Newman to drive to an isolated area in St. Charles Parish where he robbed her of her jewelry and raped her. Watson then instructed Newman to dress herself, and as she did so he shot her in the back of the head, killing her. Watson later confessed to the murder and stated that he shot Newman because he feared that she could identify him. The jury found Watson guilty of first degree murder, and he was sentenced to death. 2

Judie Richman, Newman's mother, brought suit against Charter Arms in three federal district courts for the wrongful death of her daughter. The cases were consolidated in the Eastern District of Louisiana. The complaints alleged that the murder weapon

was designed, manufactured, and marketed by Defendant in a defective condition unreasonably dangerous to consumers, bystanders, and the general public, because the risk of [foreseeable] harm associated with marketing the product, as designed, to the general public, greatly outweighs any socially acceptable utility, if any.... Therefore, Charter Arms Corporation is "strictly liable" to Plaintiff.

Richman v. Charter Arms Corp., E.D.La.1983, 571 F.Supp. 192, 194. The district court interpreted this statement in the complaint to allege that the defendant was liable to the plaintiff either on a traditional products liability theory or on an ultrahazardous activity theory. Id. The court ruled that "the plaintiff has no basis for recovery under the Louisiana law of products liability", id. at 198, but denied the defendant's motion for summary judgment under the ultrahazardous activity theory. In reaching its decision on the ultrahazardous activity theory, the court applied the factors listed as pertinent in the Restatement (Second) of Torts Secs. 519-520 (1977), and found that there were issues of material fact under several of those factors sufficient to "prevent[ ] the Court at this point from telling the plaintiff that she is without a legal remedy". Id. at 209.

The district judge immediately certified all questions of law in his ruling to this

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Court under 28 U.S.C. Sec. 1292(b), 3 and issued an order to stay the proceedings pending the appeal. We granted the defendant's petition to appeal. On October 4, 1984, we issued a per curiam opinion finding that these consolidated cases "present undecided issues of Louisiana state law that will be determinative of the causes independently of the issues in each case". Perkins v. F.I.E. Corp., 5 Cir.1984, 743 F.2d 262. We certified the following issues to the Louisiana Supreme Court under La.Rev.Stat.Ann. Title 13 Sec. 72.1:

1. Does the manufacture, sale, and marketing of handguns constitute an ultrahazardous activity giving rise to absolute or strict liability of the manufacturer under Louisiana law? See Kent v. Gulf States Utilities Company, 418 So.2d 493, 498 (La.1982).

2. Is a handgun an unreasonably dangerous product when marketed to the general public, giving rise to strict product liability of the manufacturer under Louisiana law? See Hunt v. City Stores, Inc., 387 So.2d 585, 589 (La.1980).

3. Even if the answer to either of the questions is in the affirmative, will the use, including the criminal misuse, of the handgun by an ultimate possessor that injures a victim be regarded as a superseding cause, although allegedly foreseeable; or, instead, will it be regarded as an actionable consequence of the release of the product into the stream of commerce?

743 F.2d at 265. On November 26, 1984, the Louisiana Supreme Court, with two Justices dissenting, declined to accept certification. Perkins v. F.I.E. Corp., La.1984, 460 So.2d 1039.

We now turn to the question whether the plaintiffs state a cause of action against the manufacturers of the handguns under either a products liability theory or an ultrahazardous activity theory. The parties agree that Louisiana law governs this case. Because the issues are the same in both of the cases that have been consolidated for this appeal, we shall not treat the arguments of the various plaintiffs and defendants separately, but shall simply refer collectively to the "plaintiffs" or the "defendants" when discussing arguments on a particular side of a given issue. Moreover, because there was no written opinion issued in No. 83-3451, all references to the "district court's opinion" shall mean the opinion issued in No. 83-3591...

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