Copier By and Through Lindsey v. Smith & Wesson Corp., s. 96-4051

Decision Date10 March 1998
Docket NumberNos. 96-4051,97-4187,s. 96-4051
Citation138 F.3d 833
Parties98 CJ C.A.R. 1247 Tanya COPIER, deceased, By and Through Bree Renee LINDSEY, her personal representative, Plaintiff-Appellant, v. SMITH & WESSON CORP., Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Russell C. Fericks of Richards, Brandt, Miller & Nelson, Salt Lake City, UT (John J. Flynn, Salt Lake City, UT, with him on the brief), for Plaintiff-Appellant.

Anne G. Kimball of Wildman, Harrold, Allen & Dixon, Chicago, IL (Kenneth M. Gorenberg of Wildman, Harrold, Allen & Dixon, Chicago, IL, and H. James Clegg of Snow, Christensen & Martineau, Salt Lake City, UT, with her on the brief,) for Defendant-Appellee.

Before EBEL, HOLLOWAY, and MURPHY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-Appellant, Tanya Copier, by and through her daughter, Bree Renee Lindsey, 1 appeals from the district court's final order denying her motion to amend and confirming dismissal of her complaint. She also asserts as a major part of her appeal that error occurred in the district judge's denial of her motion to certify a question of state law to the Utah Supreme Court--specifically, whether Utah law would include the manufacturing of firearms within the class of activities constituting ultrahazardous activities. She also moves this court to certify the question directly to the Utah Supreme Court. The district judge's views on the insufficiency of the complaint were expressed in his unpublished Memorandum Opinion and Order. App. at 125-135. We affirm the judgment of the district court and decline to certify the question.


The relevant facts of this case are not in dispute. Ms. Copier's ex-husband shot her on March 21, 1991, with a .38 caliber firearm manufactured by defendant-appellee, Smith & Wesson Corp. The shooting, which led to Eldon Copier's conviction for attempted criminal homicide, left Ms. Copier a paraplegic. Appendix ("App.") at 2 (complaint); id. at 12-13 (Smith & Wesson's Memorandum of Law in Support of Defendant's Motion to Dismiss).

Ms. Copier filed her original complaint herein on March 20, 1995 in Utah state court against Smith & Wesson. Her theory of legal liability was based on the tort doctrine of ultrahazardous activity, arguing in particular that since handguns are manufactured to injure or kill people, and since it is a statistical certainty that some handguns are actually used to injure or kill people, the handgun manufacturer should bear strict liability for the resulting damages. Id. at 3 (complaint). She invoked the doctrine of ultrahazardous activity articulated in the Restatement (Second) of Torts §§ 519 and 520.

Following the filing of her complaint in March 1995 in state court, Ms. Copier died as a result of her injuries on June 24, 1995. Id. at 125; Aplt. Status Memorandum at Tab 2, p. 2. Smith & Wesson subsequently removed the case to federal court on August 7, 1995. App. at 5 (notice of removal). However, no attempt was made to seek an order substituting a party for Ms. Copier pursuant to Fed.R.Civ.P. 25(a).

On motion of Smith & Wesson, the district court dismissed Ms. Copier's complaint on December 13, 1995, reasoning that its role was to follow, not expand, Utah law, and that Ms. Copier's cause of action was not viable under current Utah law. App. at 128-29 (district court's Memorandum Opinion and Order). The district court denied Ms. Copier's request for certification to the Utah Supreme Court. Id. at 134. The judge additionally noted in his order that counsel for plaintiff had alerted the court to Ms. Copier's death and that counsel further indicated that if the court denied the motion to dismiss, the complaint would be amended to add a claim for wrongful death and to substitute Ms. Copier's daughter as the party-plaintiff. Id. at 125 (Memorandum Opinion and Order, p. 1, n. 1).

Following dismissal and then the denial of plaintiff's motion for amendment or for relief from order, Ms. Copier's counsel filed a notice of appeal to this court in February 1996. Id. at 163. Ms. Copier's death was not addressed in the parties' appellate briefs nor was her death discussed during oral argument. Discovering Ms. Copier's death after the case was submitted, we entered an order sua sponte on March 13, 1997, abating the appeal to permit proper substitution of a party for Ms. Copier, pursuant to Fed. R.App. P. 43(a). Ms. Copier's counsel then filed in this court a motion for substitution of party and for remand. On April 22, we entered an order substituting Bree Renee Lindsey, daughter and personal representative of Ms. Copier, as plaintiff-appellant. Our order also vacated the district court's judgment dismissing Ms. Copier's complaint and remanded the case to the district court for consideration of a motion to amend the complaint to include a wrongful death claim, which counsel had indicated would be made.

Plaintiff subsequently filed her motion to amend with the district court, seeking to add as a defendant Eldon Copier, the assailant, and to add a claim for wrongful death. Aplt. Status Memorandum at Tab 8, p. 2. The district court denied the motion to add a defendant, but granted plaintiff's request to add the wrongful death claim. Id. Smith & Wesson again filed a motion to dismiss pursuant to Rule 12(b)(6), which the district court granted on October 7, 1997, without a hearing. In its order dismissing the case, the judge noted that plaintiff acknowledged that the amended complaint raises the same legal issues as the original complaint and that plaintiff intended to file an immediate appeal. The judge relied upon the same reasons for dismissal which he previously detailed in his first order of dismissal.

Plaintiff again filed a notice of appeal. Because the legal issues remain the same as those initially argued, we denied plaintiff's request for further oral argument, but we provided the parties with the opportunity to submit supplemental briefs addressing these issues. Plaintiff states in her supplemental brief at 2 that no new controlling decisions have been rendered by the Utah Supreme Court or the Utah Court of Appeals regarding these issues since the original appellate briefs were filed, but that the general issue of liability "for the ultrahazardous conduct of manufacturing and marketing handguns to the general marketplace remain an important topic of public policy debate and advocacy around the country."


Plaintiff-appellant places heavy emphasis on her request for certification to the Utah Supreme Court, see Brief for Appellant at 2, in addition to the merits of her ultrahazardous activity theory of liability. Id. at 13. We treat the merits of her liability theory first. We review a dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) de novo. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 854 (10th Cir.1996). Moreover, "the obligation of responsible appellate review and the principles of a cooperative judicial federalism underlying Erie require that courts of appeals review the state-law determinations of district courts de novo." Salve Regina College v. Russell, 499 U.S. 225, 239, 111 S.Ct. 1217, 1225, 113 L.Ed.2d 190 (1991).

Utah law imposes strict liability on one who carries on an abnormally dangerous activity for harm resulting from the activity. Walker Drug Co., Inc. v. La Sal Oil Co., 902 P.2d 1229, 1233 (Utah 1995); Restatement (Second) of Torts § 519 (1976). 2 The factors to be considered in determining whether an activity is abnormally dangerous are:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

Walker Drug Co., Inc. v. La Sal Oil Co., 902 P.2d at 1233(citing Restatement (Second) of Torts § 520 (1976)). Consideration of these factors leads us to conclude that Utah law does not support Ms. Copier's theory of liability of Smith & Wesson.

None of the above factors is implicated by the manufacturing of handguns, as opposed to the use--or rather, the misuse--of handguns. For example, in Walker Drug, the plaintiffs brought suit because gasoline had leaked from the defendants' gas stations and contaminated the plaintiffs' property. In evaluating the six factors, the Utah Supreme Court considered the danger that would result from the operation of the gas stations--that is, the possibility of leakage of gasoline. It was held that the operation of the gas stations was not an abnormally dangerous activity; they were located in an area of the city where their operation was common, appropriate and of significant value to the community. Id. at 1233.

In Robison v. Robison, 16 Utah 2d 2, 394 P.2d 876, 877 (1964), the Utah Supreme Court held that the determination of whether the ultrahazardous activity doctrine applied as to injury caused by rock fragments hurled during use by the defendants of dynamite for blasting purposes depended on the circumstances. The court focused on the use of dynamite, and not its manufacture. In the instant case, however, Ms. Copier was harmed not by the manufacturing of the Smith & Wesson .38, but by the use of it to shoot her. This distinction is significant, because Ms. Copier's argument essentially collapses all uses of guns into one purpose, which she contends is to injure or kill people. However, Ms. Copier ignores a number of legitimate uses, including self-defense, home protection, and use by law enforcement officers.

We further note that the one case we have found that imposed strict liability upon a handgun manufacturer focused on the unique nature of the firearm in that case, a "Saturday Night Special," which the court characterized...

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