City of Cincinnati v. Beretta U.S.A. Corp., Bryco Arms, Inc., Colt's Manufacturing Co., Inc., Fabrica D'armi Pietro Beretta, S.P.A., H. & R. 1871, Inc., Hi-Point Firearms, B.L. Jennings, Inc., Lorcin Engineering Co., Inc., North American Arms, Inc., Phoenix Arms, Smith & Wesson Corp., Sturm & Ruger Co., Inc., Taurus International Manufacturing, Inc., American Shooting Sports Coalition, Inc., National Shooting Sports Foundation, Inc., and Sporting Arms and Ammunition Manufacturers' Institute, Inc.

Decision Date11 August 2000
Docket NumberC-990814,C-990815,00-LW-3505,C-990729
PartiesCITY OF CINCINNATI, Plaintiff-Appellant v. BERETTA U.S.A. CORP., BRYCO ARMS, INC., COLT'S MANUFACTURING CO., INC., FABRICA D'ARMI PIETRO BERETTA, S.p.A., H & R 1871, INC., HI-POINT FIREARMS, B.L. JENNINGS, INC., LORCIN ENGINEERING CO., INC., NORTH AMERICAN ARMS, INC., PHOENIX ARMS, SMITH & WESSON CORP., STURM & RUGER CO., INC., TAURUS INTERNATIONAL MANUFACTURING, INC., AMERICAN SHOOTING SPORTS COALITION, INC., NATIONAL SHOOTING SPORTS FOUNDATION, INC., and SPORTING ARMS AND AMMUNITION MANUFACTURERS' INSTITUTE, INC., Defendants-Appellees. APPEAL
CourtOhio Court of Appeals

Waite, Schneider, Bayless & Chesley, Co., LPA, Stanley M. Chesley, Paul M. DeMarco, and Jean M. Geoppinger; Fay D. Dupuis, City Solicitor, W. Peter Heile, Donald B. Lewis, and John J. Williams; Legal Action to Project Center to Prevent Handgun Violence, Dennis A. Henigan, Jonathan E. Lowy, Brian J. Siebel, and Rachana Bhowmik; and Barrett & Weber and Michael R. Barrett, for Plaintiff-Appellant

Calfee, Halter & Griswold, LLP, Thomas I. Michals, and Mark L. Belleville, and Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC, Lawrence S. Greenwald, and Robert C. Gebhardt, for Defendants-Appellees Beretta U.S.A. Corp. and Fabrica D'Armi Pietro Beretta, S.p.A.,

Brown, Cummins & Brown, Co., LPA, and James R. Cummins, and Jones, Day, Reavis & Pogue and Thomas E. Fennell, for Defendant-Appellee Colt's Manufacturing Co., Inc.,

Rendigs, Fry, Kiely & Dennis, LLP, and W. Roger Fry, and Renzulli & Rutherford, LLP, and John Renzulli, for Defendants-Appellees H & R 1871, Inc., and Hi-Point Firearms,

Buckley, King & Bluso and Raymond J. Pelstring, and Beckman & Associates and Bradley T. Beckman, for Defendant-Appellee North American Arms, Inc.,

Taft, Stettinius & Hollister, Thomas R. Schuck, and Ross A. Wright, for Defendant-Appellee Smith & Wesson Corp.,

Thompson, Hine & Flory, Bruce M. Allman, and Robert A. McMahon, and Wildman, Harrold, Allen & Dixon, James P. Dorr, and Sarah L. Olson, for Defendant-Appellee Sturm & Ruger Co., Inc.,

Porter, Wright, Morris & Arthur, LLP, Mark E. Elsener, and Michael E. McCarty, for Defendants-Appellees Bryco Arms, Inc., B.L. Jennings, Inc., and Taurus International Manufacturing, Inc.,

James C. Sabalos, for Defendants-Appellees Bryco Arms, Inc., and B.L. Jennings, Inc.,

Budd, Larner, Gross, Rosenbaum, Greenberg & Sade, Timothy A. Bumann, and Dana S. Mancuso, for Defendant-Appellee Taurus International Manufacturing, Inc.

Harold Mayberry, Jr., for Defendant-Appellee American Shooting Sports Council, Inc.,

Douglas E. Kliever, for Defendants-Appellees National Shooting Sports Foundation, Inc., and Sporting Arms and Ammunition Manufacturers' Institute, Inc.,

OPINION

Winkler Judge.

The city of Cincinnati appeals from the trial court's dismissal of its complaint against fifteen firearms manufacturers, a firearms distributor, and three firearms trade associations. For the reasons that follow, we affirm the court's judgment that the complaint failed to state a claim upon which relief could be granted.

Procedural History

The city's broad-ranging assertions included the following claims: (1) strict product liability for the defective condition of firearms; (2) strict product liability for failure to warn of the risks of firearms; (3) negligence; (4) negligent failure to warn; (5) unfair and deceptive advertising practices; (6) public nuisance; (7) fraud; (8) negligent misrepresentation; and (9) unjust enrichment. The city alleged that, as a result of the defendants' conduct in manufacturing or distributing handguns, the city had suffered a host of problems, ranging from the costs of responding to shootings to decreased property values and tax revenues, and to Cincinnatians' general fears resulting from criminal activity and injuries caused by firearms. The city sought injunctive relief, compensatory and punitive damages, restitution, and disgorgement of profits.

In its single assignment of error, the city claims that the trial court erred in granting the defendants' motions to dismiss. But the city contests only the dismissal of its claims for product liability, negligence, public nuisance, and unjust enrichment. The city has abandoned its claims for unfair and deceptive advertising practices, fraud, and negligent misrepresentation.

Civ.R. 12(B)(6)

To determine whether a complaint states a claim upon which relief may be granted, all factual allegations of the complaint must be presumed true.[1] A trial court may dismiss a complaint under Civ.R. 12(B)(6) only where it appears beyond doubt that the plaintiff can prove no set of facts warranting recovery.[2] Under the rules of notice pleading, the plaintiff must provide a short and plain statement of its claims and the grounds upon which they are based, so that the defendant has fair notice of what is at issue.[3]

Nowhere in its forty-three-page complaint does the city set forth facts that, if proved, would provide a basis for recovery.[4] The city claims that it has sustained significant expenses for medical, police, court, corrections, and emergency services as a result of shootings and the unauthorized possession of firearms. The city also claims that the manufacture and distribution of firearms has caused its citizens to be injured and fearful, and that it has suffered from decreased property values and tax revenues.

Using a shotgun approach in its complaint, the city has made its broad assertions without alleging a direct injury caused by a particular firearm model or its manufacturer. We hold that the city's attempts to stand in the shoes of its citizens and to recover its municipal costs must fail.

Strict Product Liability

All common-law claims for product liability survive the 1988 enactment of the Ohio Products Liability Act, R.C. 2307.71 et seq., unless they are specifically covered by the act.[5] The act "collects all product liability claims into a standard set of theories of recovery * * *."[6] In this case, the city's product-liability claims against the manufacturers include allegations of (1) defective condition and (2) failure to warn. Both of these claims are specifically covered by the act, so we look to the act to determine whether the city has stated claims upon which relief may be granted.[7]

1. The City is Not a Proper Plaintiff

Under R.C. 2307.71(M), the definition of a "product liability claim" includes one that seeks to recover compensatory damages arising from the following:

(1) the design, formulation, production, construction creation, assembly, rebuilding, testing, or marketing of a product; [or]
(2) any warning or instruction, or lack of warning or instruction associated with a product[.] * * *

One essential element of such a claim is the occurrence of "harm," which means "death, physical injury to person, serious emotional distress, or physical damage to property * * *." Economic loss is not itself compensable unless the injured party has also suffered one of the statutory forms of harm. In this case, it is clear from the complaint that the city, as a corporate entity, can prove no harm to itself in the form of death, physical injury, or emotional distress. Moreover, there is no allegation of any physical damage to the city's property. Under these circumstances, its product-liability claims under the act fail as a matter of law.

2. The City Cannot Recover for Economic Loss Alone

In each of its product-liability claims, the city has alleged merely that it has suffered "actual injury and damages including, but not limited to, significant expenses for police, emergency, health, corrections, prosecution and other services." These municipal costs are unrecoverable in this case because they are no more than economic loss, which is defined as "direct, incidental, or consequential pecuniary loss * * *." Economic loss is not "harm" under the act and is not compensable where, as here, the injured party has not separately suffered from death, physical injury to person, serious emotional distress, or physical damage to property.[8]

3. The City Has Failed to Identify a Particular Product, Defect, or Defendant

In order to state a product-liability claim for defective design, the plaintiff must allege (1) a defect in the product manufactured and sold by the defendant; (2) that the defect existed at the time the product left the manufacturer's hands; and (3) that the defect was the direct and proximate cause of the plaintiff's injuries or loss.[9] As long as there is a set of facts, consistent with the plaintiff's complaint, that would allow the plaintiff to recover, a trial court should not grant a motion to dismiss a claim predicated upon these elements.[10]

Nowhere in its forty-three-page complaint does the city identify a single defective condition in a particular model of gun at the time it left its particular manufacturer. In fact, out of the complaint's 162 counts, the city's sole assertion naming a single manufacturer and its gun does not even implicate any of the defendants, because the harm was caused by the intentional act of a criminal, not by the manufacturer:

In February, 1998, Cincinnati Police Officer Kathleen Conway was ambushed and shot four times in her lower abdomen and thigh with a Smith & Wesson .357 magnum.

Allowing the city to proceed on these indistinct allegations would fly in the face of fairness and the purposes of notice pleading. The complaint must contain some notice to show the defendant that the plaintiff is entitled to relief.[11] This concept of notice pleading, embodied in Civ.R. 8(A), serves "to simplify pleadings to a 'short and plain statement of the claim' and to simplify...

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