McCarthy v. Sturm, Ruger and Co., Inc.

• Decision Date: 04 March 1996
• Docket Number: No. 95 Civ. 4576(HB).,95 Civ. 4576(HB).
• Citation: 916 F. Supp. 366
• Parties: Carolyn McCARTHY, Individually and as Executrix of the Estate of Dennis McCarthy, Kevin McCarthy, Mary Anne Phillips and Robert C. Phillips, Plaintiffs, v. STURM, RUGER AND CO., INC., Olin Corporation, and Ram Line, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

916 F. Supp. 366

Carolyn McCARTHY, Individually and as Executrix of the Estate of Dennis McCarthy, Kevin McCarthy, Mary Anne Phillips and Robert C. Phillips, Plaintiffs, v. STURM, RUGER AND CO., INC., Olin Corporation, and Ram Line, Inc., Defendants.

No. 95 Civ. 4576(HB).

United States District Court, S.D. New York.

March 4, 1996.

COPYRIGHT MATERIAL OMITTED

Leon Segan, New York City, Laurence Shanahan, Lon Seidman, Newman & Harrington, P.C. (of counsel), for Plaintiffs.

Daniel P. Jaffe, Jeanine R. Bermel, Husch & Eppenberger, St. Louis, MO, Alphonso D. Brooks, Francesca A. Sabbatino, Armienti, Brooks, DeBellis & Dunphy, New York City, for Defendant Olin Corp.

OPINION AND ORDER

BAER, District Judge:

This action arises from Colin Ferguson's highly publicized murderous shooting spree on a Long Island Railroad passenger train on December 7, 1993. Plaintiffs seek to hold defendant Olin Corporation liable based on its design, manufacture, marketing and sale of "Black Talon" ammunition, which was allegedly used by Ferguson. Black Talon ammunition incorporates a hollow-point bullet that is designed to expand upon impact exposing razor-sharp edges at a 90-degree angle to the bullet. This expansion dramatically increases the wounding power of the bullets. Unfortunately, it appears that the Black Talon ammunition functioned exactly as designed in this tragic occurrence.

Plaintiffs base their complaint on various theories of negligence and strict liability. Olin moves to dismiss the complaint in its entirety pursuant to Rule 12(b)(6). Two decisions by the New York Supreme Court recently addressed similar claims and held that they did not state a cause of action. See Pekarski v. Donovan, No. 95-1176, slip op. (N.Y.Sup.Ct. Oneida County Sept. 27, 1995); Forni v. Ferguson, No. 132994/94, slip op. (N.Y.Sup.Ct. New York County Aug. 2, 1995). For the reasons that follow, I agree and grant Olin's motion.

Discussion

A motion to dismiss pursuant to Rule 12(b)(6) should be granted only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Furthermore, the Court must "accept as true the factual allegations of the Complaint" and "read the Complaint liberally, drawing all inferences in favor of the pleader." IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir.1993), cert. denied, ___ U.S. ___, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994).

I. Negligence

Plaintiffs first claim that Olin negligently manufactured and marketed the Black Talon ammunition. Complaint, ¶ 117. To state a claim for negligence under New York law, a plaintiff must demonstrate that the defendant owed her a duty of care. Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402, 492 N.Y.S.2d 555, 557, 482 N.E.2d 34, 36 (1985); Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 394, 358 N.E.2d 1019, 1020 (1976). "In the absence of a duty, there is no breach and without a breach there is no liability." Id. The existence of a legal duty is a question of law for the court to determine. Purdy v. Public Administrator, 72 N.Y.2d 1, 8, 530 N.Y.2d 513, 515-516, 526 N.E.2d 4, 6-7 (1988). Both of plaintiffs' negligence theories fail because defendant owed no duty to the plaintiffs to protect them from criminal misuse of the Black Talon ammunition.

A. Negligent Manufacturing

Plaintiff's negligent manufacturing claim alleges that Olin breached a duty because it was foreseeable that criminals would use the Black Talon ammunition to injure innocent people such as the plaintiffs. Complaint, ¶ 117. While this factual allegation of foreseeability may be true, and for purposes of this motion it must be treated as such, the legal conclusion of negligence does not follow. The New York Court of Appeals has held that foreseeability must be distinguished from duty. Pulka, 40 N.Y.2d at 785, 390 N.Y.S.2d at 396, 358 N.E.2d at 1022 ("Foreseeability should not be confused with duty."). The issue of foreseeability is only relevant in determining the scope of a preexisting duty; it is not normally used to create a duty. Id.; see also Strauss, 65 N.Y.2d at 402, 492 N.Y.S.2d at 557, 482 N.E.2d at 36 ("Duty in negligence cases is defined neither by foreseeability of injury nor by privity of contract.") (citation omitted).

Plaintiffs' argue that because Olin could have foreseen criminal misuse of its product, it should not have manufactured the ammunition. Plaintiffs do not allege, however, that any special relationship existed between Olin and Ferguson that would give Olin the authority and ability to control Ferguson's actions. In the absence of such a relationship, New York courts do not impose a duty to control the actions of third parties. Purdy, 72 N.Y.2d at 8, 530 N.Y.S.2d at 516, 526 N.E.2d at 7; Pulka, 40 N.Y.2d at 783-85, 390 N.Y.S.2d at 395-96, 358 N.E.2d at 1021-22. Furthermore, in determining the existence of a duty, New York courts attempt to limit the scope of potential liability to a controllable degree in an effort to protect defendants from infinite liability exposure. See Strauss, 65 N.Y.2d at 402, 492 N.Y.S.2d at 557, 482 N.E.2d at 36; Pulka, 40 N.Y.2d at 786, 390 N.Y.S.2d at 397, 358 N.E.2d at 1023. To impose a duty on Olin to prevent criminal misuse of its products would make it an insurer against such occurrences. Such liability exposure would be limitless and thus to impose a duty here would be inappropriate.

I am sympathetic to plaintiffs implications that Olin was under a moral duty not to produce ammunition with the destructive capabilities of the Black Talon bullets. In setting the scope of legal duty, however, the New York Court of Appeals has held that "a person may have a moral duty to prevent injury to another, but no legal duty." Pulka, 40 N.Y.2d at 786, 390 N.Y.S.2d at 396, 358 N.E.2d at 1022. As I can find no grounds upon which to base a legal duty, plaintiffs' negligent manufacturing claim must be dismissed.

B. Negligent Marketing

Plaintiffs allege that defendant was negligent in marketing the Black Talon ammunition to the general public. Complaint, ¶ 117. Plaintiffs argue that sales of the ammunition should have been limited to law enforcement agencies, as was allegedly Olin's original plan. Pl.'s Mem. at 20.

First, plaintiffs contend that advertisements for the Black Talon bullets high-lighted their destructive capabilities and therefore made them attractive to criminals. Pl.'s Mem. at 20. The advertisements do emphasize symbolically those qualities of the Black Talon ammunition that distinguish it from other products on the market. Plaintiffs, however, do not allege that these advertisements are false or misleading. Therefore, to hold that the advertisements were negligent would in effect hold defendant liable for the manufacture of the product with these distinguishing characteristics. This I have already refused to do.

Next, plaintiffs claim that the act of marketing a product creates a duty running from the manufacturer to all those affected by the use of the product marketed. Pl.'s Mem. at 20-21. Quoting the Michigan Supreme Court in Moning v. Alfono, 400 Mich. 425, 433, 254 N.W.2d 759, 762 (1977), plaintiffs argue that "`it is now well established that the manufacturer and wholesaler of a product, by marketing it, owe a legal duty to those affected by its use.'" Pl.'s Mem. at 21. Moning held that a manufacturer of slingshots may be liable to a child who lost an eye due to the negligence of his playmate.

Plaintiffs' reliance on Moning, however, is misplaced because that case is distinguishable both legally and factually. Legally, the Moning court followed a different rule on the issue of duty than is applied in New York. Under Michigan law, the question of the existence of a duty depends in part on foreseeability. Moning, 400 Mich. at 439, 254 N.W.2d at 765. In contrast, as noted above, New York law considers issues of duty and foreseeability as distinct inquiries in negligence cases. As I must apply New York law, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), Moning's finding of a duty based on considerations of foreseeability fails to carry the day.

Factually, Moning is also distinguishable because central to the court's analysis was the fact that the plaintiff was a child. The court specifically noted that the common law had long recognized special rules applicable to children. Moning, 400 Mich. at 443-45, 254 N.W.2d at 767-69. The plaintiff there did not "contend that manufacturing and marketing slingshots is negligence per se. His contention, rather, was that marketing them directly to children creates an unreasonable risk of harm." Moning, 400 Mich. at 443, 254 N.W.2d at 767. The Moning court agreed, relying on the doctrine of negligent entrustment as stated in Restatement (Second) of Torts § 390.¹ Here, plaintiffs argue that marketing Black Talon ammunition to the general public breached a duty flowing from manufacturers to those affected by use of the ammunition. Restatement (Second) § 390, however, limits the negligent entrustment theory to those people a reasonable person would consider lacking in ordinary prudence. To extend this theory to the general public would be a dramatic change in tort doctrine. It would imply that the general public lacks ordinary prudence and thus undermine the reasonable person concept so central to tort law. The common law has not yet adopted a negligent entrustment rule for the protection of the general public. I decline to adopt one here.

II. Strict Liability

Plaintiffs also argue that Olin should be held strictly liable for their injuries because the Black Talon ammunition was defectively designed and the design and manufacture of the bullets was an ultrahazardous activity.

A. Design Defect

To state a claim for strict products liability, a plaintiff must show that the product was defective. See ...