Sturm, Ruger & Co. v. City of Atlanta
| Decision Date | 13 February 2002 |
| Docket Number | No. A01A2521.,A01A2521. |
| Citation | 253 Ga. App. 713,560 S.E.2d 525 |
| Parties | STURM, RUGER & COMPANY, INC. et al. v. CITY OF ATLANTA. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
King & Spalding, William R. Bassett, Jr., Jennifer N. Stephens, Richard A. Schneider, Rogers & Hardin, Tony G. Powers, Cofer, Beauchamp & Butler, Frank R. Seigel, Smith, Gambrell & Russell, David M. Brown, Jones, Day, Reavis & Pogue, David J. Bailey, Budd, Larner, Gross, Rosenbaum, Greenberg & Sade, Timothy A. Bumann, Dennis, Corry, Porter & Gray, R. Clay Porter, Alisa W. Terry, Drew, Eckel & Farnham, James M. Poe, Atlanta, for appellants.
Moraitakis, Kushel & Pearson, Nicholas C. Moraitakis, Cochran, Cherry, Givens, Smith & Sistrunk, Hezekiah Sistrunk, Jr., Greenberg & Traurig, Ernest L. Greer, Susan P. Langford, William H. McLean IV, Atlanta, for appellee.
Thurbert E. Baker, Atty. Gen., Dennis R. Dunn, Deputy Atty. Gen., Alfred L. Evans, Jr., Asst. Atty. Gen., amici curiae. ANDREWS, Presiding Judge.
This case is before us on appeal from the trial court's denial of appellants' motion to dismiss in full the City of Atlanta's (City's) suit against 17 defendants that manufacture, distribute, sell, and promote the use of firearms. Because the State has preempted the field of gun regulation and also because this suit is barred by OCGA § 16-11-184, the trial court erred in not granting appellants' motion to dismiss all claims.
Procedural History
On February 4, 1999, the City filed a complaint alleging that it had suffered harm and incurred significant expenses because the defendants, fourteen gun manufacturers and three trade associations (gun manufacturers), had manufactured, distributed, marketed, promoted, and sold firearms which were defective, unreasonably dangerous, and negligently designed. The complaint alleged, for example, that the firearms were unreasonably dangerous because they could be fired by unauthorized users, including children, criminals, and mentally unstable persons, because they were not distributed with adequate warnings as to the risks or instructions for proper storage, and because they failed to adequately warn all foreseeable users, including unintended users, that an undetectable round of ammunition could be housed in the firing chamber, thus allowing the gun to be fired even when the magazine had been removed.
The City alleged three counts against the manufacturers: defective and negligent design, failure to include safety devices, and failure to warn. The complaint also alleged negligence against the trade associations for failing to discourage unauthorized use, failing to develop and implement safety features, and failing to issue adequate warnings. The City claimed it was damaged because it had been forced to pay out large sums of money to provide police and emergency services, police pension benefits and related expenditures, as well as losing substantial tax revenues because of lost productivity. Neither the complaint nor the subsequently filed amended complaint contained any references to a specific victim of defects in a specific firearm, a specific type of safety device which should have been installed, or a specific instance of an inadequate failure to warn.
Five days after the complaint was filed, the General Assembly passed House Bill 189, amending OCGA § 16-11-184. The original version of OCGA § 16-11-184, in existence at the time the City filed its Complaint, provided:
(a) It is declared by the General Assembly that the regulation of firearms is properly an issue of general, state-wide concern, (b) No county or municipal corporation, by zoning or by ordinance, resolution, or other enactment, shall regulate in any manner gun shows, the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms, components of firearms, firearms dealers, or dealers in firearms components. (c) A county or municipal corporation may regulate the transport, carrying, or possession of firearms by employees of the local unit of government in the course of their employment with that local unit of government. (d) Nothing contained in this Code section shall prohibit municipalities or counties, by ordinance, resolution, or other enactment, from requiring the ownership of guns by heads of households within the political subdivision. (e) Nothing contained in this Code section shall prohibit municipalities or counties, by ordinance, resolution, or other enactment, from reasonably limiting or prohibiting the discharge of firearms within the boundaries of the municipal corporation.
Code 1981, § 16-11-184, enacted by Ga. L.1995, p. 139, § 2.
This Code section was amended as follows: XX-XX-XXX. Regulatory authority of political subdivisions; limitations. (a)(1) It is declared by the General Assembly that the regulation of firearms is properly an issue of general, state-wide concern. (2) The General Assembly further declares that the lawful design, marketing, manufacture, or sale of firearms or ammunition to the public is not unreasonably dangerous activity and does not constitute a nuisance per se. (b)(1) No county or municipal corporation, by zoning or by ordinance, resolution, or other enactment, shall regulate in any manner gun shows, the possession, ownership, transport, carrying, transfer, sale, purchase, licensing, or registration of firearms, components of firearms, firearms dealers, or dealers in firearms components. (2) The authority to bring suit and right to recover against any firearms or ammunition manufacturer, trade association, or dealer by or on behalf of any governmental unit created by or pursuant to an Act of the General Assembly or the Constitution, or any department, agency, or authority thereof, for damages, abatement, or injunctive relief resulting from or relating to the lawful design, manufacture, marketing, or sale of firearms or ammunition to the public shall be reserved exclusively to the state. This paragraph shall not prohibit a political subdivision or local government authority from bringing an action against a firearms or ammunition manufacturer or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision or local government authority.
Section 2 of the Act, not codified by the General Assembly, provides that "The General Assembly intends that paragraph (2) of subsection (a) of Code Section 16-11-184 as enacted by this Act shall embrace the rule of law in Division 1 of Rhodes v. R.G. Industries, Inc., 173 Ga.App. 51, 325 S.E.2d 465 (1984)." Ga. L.1999, p. 3, § 2.
Section 3, also not codified by the General Assembly, provides that "This Act shall apply to any action pending on or brought on or after the date this Act becomes effective." Ga. L.1999, p. 3, § 3.
After the gun manufacturers moved to dismiss, claiming the suit was barred under both the original and amended OCGA § 16-11-184, the City filed its first amended complaint, adding claims of nuisance, fraud, fraudulent concealment, unjust enrichment, negligent marketing and distribution, and civil conspiracy. Five days later, the gun manufacturers filed a renewal and restatement of their motion to dismiss to include the amended complaint. The City responded, claiming that amended Code section 16-11-184 could not be applied retroactively so as to bar its suit.
The court held a hearing on the motion to dismiss at which the gun manufacturers argued that both the complaint and amended complaint should be dismissed for the reasons previously stated. The court granted the motion to dismiss the claims of strict liability, but refused to dismiss the claims of negligence. Although the arguments at the hearing, the restated motion to dismiss, the reply brief filed by the gun manufacturers, as well as the proposed order submitted by the gun manufacturers, all clearly stated that the arguments applied to all claims in both the complaint and the amended complaint, the trial court nevertheless refused to consider dismissing the claims in the City's amended complaint, stating that these claims were "not addressed in Movants' Motions to Dismiss."
The court also refused to consider Count 4 of the complaint, the claim of negligence against the trade associations, stating that the claim was inapplicable to movants (Smith & Wesson and Beretta) and directed only to the trade association defendants. The trial court held this despite having heard and acknowledged the statement made by counsel for the trade associations at the hearing that the trade associations adopted the position of the gun manufacturers in its entirety and had nothing to add.
The gun manufacturers requested a certificate of immediate review under OCGA § 5-6-34(b); but, the trial court refused to certify that the partial denial of the motion to dismiss was of such importance to the case that immediate review should be had by this Court. The gun manufacturers then filed a declaratory judgment action, request for injunction, and petitions for writs of mandamus and prohibition against the trial court judge in the Superior Court of Fulton County. The Fulton County Superior Court denied all claims for relief and the issues were appealed to the Supreme Court of Georgia.
The Supreme Court affirmed the superior court, holding that these were issues which must be determined through the statutory appeal process. Smith & Wesson Corp. v. City of Atlanta, 273 Ga. 431, 432, 543 S.E.2d 16 (2001).1 Shortly after the Supreme Court issued this opinion, the legislature amended OCGA § 5-6-34(a) to permit a direct appeal of "[a]ny ruling on a motion which would be dispositive if granted with respect to a defense that the action is barred by Code Section 16-11-184." OCGA § 5-6-34(a)(5.1). This appeal followed.
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