City of Cincinnati v. Beretta U.S.A. Corporation, No. 2000-1705

Decision Date12 June 2002
Docket NumberNo. 2000-1705
Citation95 Ohio St.3d 416,768 N.E.2d 1136
PartiesCITY OF CINCINNATI, APPELLANT, v. BERETTA U.S.A. CORPORATION ET AL., APPELLEES.
CourtOhio Court of Appeals

[19]

[20]

CITY OF CINCINNATI, APPELLANT,

v.

BERETTA U.S.A. CORPORATION ET AL., APPELLEES.

[21]

No. 2000-1705

[22]

THE SUPREME COURT OF THE STATE OF OHIO

[23]

Appeal from the Court of Appeals for Hamilton County, Nos. C-990729, C-990814 and C-990815.

[24]

June 12, 2002

[25] Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley Paul M. DeMarco and Jean M. Geoppinger; Barrett & Weber and Michael R Barrett; Fay D. Dupuis, Cincinnati City Solicitor, W. Peter Heile, Deputy City Solicitor, Richard Ganulin, Assistant City Solicitor; Dennis A Henigan and Jonathan E. Lowy, Legal Action Project, Center to Prevent Handgun Violence, for appellant. [26] Calfee, Halter & Griswold, L.L.P., Thomas I. Michals and Mark L Belleville; Gordon, Feinblatt, Rothman, Hoffberger & Hollander, L.L.C., and Lawrence S. Greenwald, for appellees Beretta U.S.A. Corp. [27] Janik & Dorman and William J. Muniak; and Harold Mayberry, Jr., for appellee American Shooting Sports Council, Inc. [28] Janik & Dorman and William J. Muniak; and Douglas Kliever, for appellees National Shooting Sports Foundation, Inc., and Sporting Arms and Ammunition Manufacturers' Institute, Inc. [29] Brown, Cummins & Brown Co., L.P.A., and James R. Cummins; Jones, Day Reavis & Pogue and Thomas E. Fennell, for appellee Colt's Manufacturing Co., Inc. [30] Renzulli & Rutherford and John Renzulli, for appellee H & R 1871, Inc. [31] Rendigs, Fry, Kiely & Dennis, L.L.P., and W. Roger Fry; Renzulli & Rutherford and John Renzulli, for appellee Hi-Point Firearms. [32] Buckley, King & Bluso and Raymond J. Pelstring; Beckman & Associates and Bradley T. Beckman, for appellee North American Arms, Inc. [33] Thompson, Hine & Flory, L.L.P., Bruce M. Allman, Robert A. McMahon and Laurie J. Nicholson; Wildman, Harrold, Allen & Dixon, James P. Dorr and Sarah L. Olson, for appellee Sturm & Ruger Co., Inc. [34] Taft, Stettinius & Hollister and Thomas R. Schuck; Shook, Hardy & Bacon, L.L.P., Gary R. Long and Jeffrey S. Nelson, for appellee Smith & Wesson Corp. [35] Porter, Wright, Morris & Arthur, L.L.P., Mark E. Elsener and Michael E. McCarty; Bruinsma & Hewitt and Michael C. Hewitt, for appellees Bryco Arms, Inc., and B.L. Jennings, Inc. [36] Porter, Wright, Morris & Arthur, L.L.P., Mark E. Elsener and Michael E. McCarty; Tarics & Carrington, P.C., and Robert C. Tarics, for appellee Phoenix Arms. [37] Porter, Wright, Morris & Arthur, L.L.P., Mark E. Elsener and Michael E. McCarty; Budd, Larner, Gross, Rosenbaum, Greenberg & Sade and Timothy A. Bumann, for appellee Taurus International Manufacturing, Inc. [38] Barbara E. Herring, Toledo Director of Law, and John T. Madigan, Toledo General Counsel, urging reversal for amicus curiae city of Toledo. [39] Robert B. Newman, urging reversal for amici curiae American Association of Suicidology, American Jewish Congress, National Association of Elementary School Principals, National Association of School Psychologists, Ohio Public Health Association, Inc., and Physicians for Social Responsibility. [40] Cornell P. Carter, Cleveland Director of Law, Climaco, Lefkowitz, Peca, Wilcox & Garofoli Co., L.P.A., John R. Climaco, Jack D. Maistros and Keith T. Vernon, urging reversal for amici curiae city of Cleveland and its former Mayor, Michael R. White, Educational Fund to Stop Handgun Violence, and Ohio Coalition Against Gun Violence. [41] Pepper Hamilton, L.L.P., and James M. Beck, urging affirmance for amicus curiae Product Liability Advisory Council, Inc. [42] Stanton G. Darling II, urging affirmance for amici curiae National Association of Manufacturers and Ohio Manufacturers' Association. [43] Vorys, Sater, Seymour & Pease, L.L.P., Daniel J. Buckley, Rebecca J. Brinsfield and Margaret A. Nero, urging affirmance for amici curiae Amateur Trapshooting Association, Fairfield Sportsmen's Association, Inc., Hidden Haven, Inc., Shooting Preserve & Sporting Clays, National Wild Turkey Federation, Whitetails Unlimited, and Wildlife Conservation Fund of America. [44] The opinion of the court was delivered by: Francis E. Sweeney, Sr., J. [45] Civil procedure - Court of appeals' dismissal of complaint pursuant to Civ.R. 12(B)(6) against handgun manufacturers, trade associations, and handgun distributor under nuisance, negligence, and product liability theories of recovery reversed and remanded to trial court, when. [46] Submitted October 2, 2001 [47] ¶1. On April 28, 1999, plaintiff-appellant, the city of Cincinnati, filed a complaint against fifteen handgun manufacturers, three trade associations, and one handgun distributor, seeking to hold them responsible under nuisance, negligence, and product liability theories of recovery, for the harm caused by the firearms they manufacture, sell, or distribute. *fn1 The gist of the complaint is that appellees *fn2 have manufactured, marketed, and distributed their firearms in ways that ensure the widespread accessibility of the firearms to prohibited users, including children and criminals. Thus, the complaint asserts, due to their intentional and negligent conduct and their failure to make guns safer, appellees have fostered the criminal misuse of firearms, helped sustain the illegal firearms market in Cincinnati, and have created a public nuisance. In its complaint, appellant sought both injunctive relief and monetary damages, including reimbursement for expenses such as increased police, emergency, health, and corrections costs. [48] ¶2. Rather than file an answer, fifteen of the defendants ("appellees") moved to dismiss the complaint pursuant to Civ.R. 12(B)(6). The trial court granted the motions to dismiss, finding, inter alia, that (1) the complaint failed to state a cause of action, (2) the claims were barred by the doctrine of remoteness, and (3) appellant could not recoup expenditures for public services. The trial court further ruled that there was no just cause for delay, and appellant appealed. The court of appeals affirmed on similar grounds. The cause is now before this court upon the allowance of a discretionary appeal. [49] ¶3. This case represents one of a growing number of lawsuits brought by municipalities against gun manufacturers and their trade associations to recover damages associated with the costs of firearm violence incurred by the municipalities. There is a difference of opinion as to whether these cases state a viable cause of action. While some courts have allowed this type of case to go forward against a Civ.R. 12(B)(6) motion to dismiss (White v. Smith & Wesson Corp. [N.D. Ohio 2000], 97 F.Supp.2d 816; Boston v. Smith & Wesson Corp. [50], 12 Mass.L.Rptr. 225, 2000 WL 1473568), other courts have dismissed or upheld the dismissal of similar lawsuits. See, e.g., Philadelphia v. Beretta U.S.A. Corp. (E.D.Pa.2000), 126 F.Supp.2d 882; Camden Cty. Bd. of Chosen Freeholders v. Beretta U.S.A. Corp. (C.A.3, 2001), 273 F.3d 536; Ganim v. Smith & Wesson Corp. (2001), 258 Conn. 313, 780 A.2d 98. After a thorough review of these cases, we agree with those decisions that permit this type of lawsuit to go beyond the pleadings stage. For the reasons that follow, we reverse the judgment of the court of appeals and remand the cause to the trial court. I. Sufficiency of Complaint [51] ¶4. The trial court granted appellees' Civ.R. 12(B)(6) motions to dismiss and the court of appeals affirmed. In determining whether the motions were properly granted, we must decide whether the complaint states a cause of action under Ohio law. [52] ¶5. The standard for determining whether to grant a Civ.R. 12(B)(6) motion is straightforward. In order for a complaint to be dismissed under Civ.R. 12(B)(6) for failure to state a claim, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to relief. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. Furthermore, "[i]n construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party." Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. We reiterated this view in York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 144, 573 N.E.2d 1063, and further noted that "as long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss." Id. at 145, 573 N.E.2d 1063. [53] ¶6. In addressing the sufficiency of the complaint, we will examine each claim separately. In particular, appellant maintains that it has stated viable causes of action for public nuisance, negligence, and product liability.
[54] A. Public Nuisance
[55] ¶7. Appellant alleged in its complaint that appellees have created and maintained a public nuisance by manufacturing, marketing, distributing, and selling firearms in ways that unreasonably interfere with the public health, welfare, and safety in Cincinnati and that the residents of Cincinnati have a common right to be free from such conduct. Appellant further alleged that appellees know, or reasonably should know, that their conduct will cause handguns to be used and possessed illegally and that such conduct produces an ongoing nuisance that has a detrimental effect upon the public health, safety, and welfare of the residents of Cincinnati. [56] ¶8. Appellees advance several reasons why the complaint does not state a cause of action for public nuisance. First, appellees maintain that Ohio's nuisance law does not encompass injuries caused by product design and construction, but instead is limited to actions involving real property or to statutory or regulatory violations involving public health or safety. We disagree. The definition of "public nuisance" in 4 Restatement of the Law 2d, Torts (1965) ("Restatement") ...

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