Merrill v. Navegar, Inc.

• Citation: 75 Cal.App.4th 500,89 Cal.Rptr.2d 146
• Decision Date: 29 September 1999
• Docket Number: No. A079863.,A079863.
• Parties: Marilyn MERRILL et al., Plaintiffs and Appellants, v. NAVEGAR, INC., Defendant and Respondent.
• Court: California Court of Appeals

89 Cal.Rptr.2d 146

75 Cal.App.4th 500

Marilyn MERRILL et al., Plaintiffs and Appellants, v. NAVEGAR, INC., Defendant and Respondent.

No. A079863.

Court of Appeal, First District, Division 2.

September 29, 1999.

As Modified October 28, 1999.

Review Granted January 19, 2000.

Orrick, Herrington & Sutcliffe, Frederick Brown, Carl W. Chamberlin, Center to Prevent Handgun Violence, Dennis A. Henigan, Brian J. Siebel, Wash., D.C., Morrison & Foerster, James B. Bennett, Cam Baker, San Francisco, Cotchett & Pitre, Frank M. Pitre, Mark Molumphy, Burlingame, McCutchen, Doyle, Brown & Enersen, Jane Lovell, San Francisco, Vaca, Vaca & Ritter, Christopher G. Ritter, San Francisco, Law Offices of Mitchell J. Green, Mitchell J. Green, Jaffe, Trutanich, Scatena & Blum, San Francisco, Fred M. Blum, Alper & McCulloch, Dean A. Alper, San Francisco, for Plaintiffs and Appellants.

Latham & Watkins, Ernest J. Getto, Los Angeles, for Defendants and Appellees.

KLINE, J.

INTRODUCTION

On July 1, 1993, Gian Luigi Ferri (Ferri) entered 101 California Street, a high-rise office building in San Francisco, armed with two semiautomatic assault weapons manufactured and distributed by respondent Navegar, Inc. (Navegar), 250 rounds of 9-millimeter ammunition, as well as a third weapon, a .45-caliber semiautomatic pistol. Proceeding to the 34th floor premises of a law firm against which he held a grudge, Ferri cold-bloodedly opened fire on persons in the offices and hallways of this and two lower floors, ultimately killing eight men and women and wounding six others before fatally shooting himself in a stairwell.

Appellants, the survivors and representatives of some of those who died, brought suit against Navegar on three theories of liability: common law negligence, negligence per se, and strict liability for ultrahazardous activities. Their complaints survived Navegar's demurrers but, on May 6, 1997, the trial court granted Navegar's motion for summary judgment as to all three causes of action. Appellants appeal this ruling as to their claims of ordinary negligence and ultrahazardous activity, but not as to their claim for negligence per se.

We conclude Navegar owed appellants a duty to exercise reasonable care not to create risks above and beyond those inherent in the presence of firearms in our society and that there are triable issues of fact as to whether it breached that duty. Accordingly, we reverse the judgment insofar as it relates to the cause of action for ordinary negligence. We affirm the grant of summary judgment, however, as to the cause of action alleging an ultrahazardous activity.

FACTS

Navegar is a gun manufacturer located in Miami, Florida.¹ Among the weapons it manufactures are two semiautomatic assault weapons,² the TEC-9 and the TEDC9,³ the manufacture, distribution and sales of which are restricted in California under the Roberti-Roos Assault Weapons Control Act of 1989 (AWCA). (Pen.Code, § 12275 et seq., see especially § 12276, subds. (b)(4), (e) and (f).)

During January and February 1993, Ferri, a Southern California resident, made three or four visits to the Pawn and Gun Shop in Henderson, Nevada. During these visits he examined and made inquiries about "a wide variety of guns" available for purchase. The salesman understood Ferri wanted to purchase a weapon for "home protection." Sometime later Ferri paid another visit to the same store. He spent several hours examining and discussing guns before purchasing a used TEC-9. Later that day he returned the weapon, stating he had decided he wanted a new rather than a used gun. The salesperson testified he discussed "maybe 10" guns with Ferri overall.

Ferri bought a new TEC-DC9 at Super Pawn, a gun store in Las Vegas, Nevada, on April 25, 1993. Ferri told the salesperson and another customer (Ward Messing) that he wanted to buy a gun for target practice, or "plinking." The salesperson showed Ferri only the TEC-DC9 and a more expensive gun manufactured by Glock. Ferri did not appear interested in any other guns. She could not recall whether she or he first pointed out the Glock, but acknowledged she tended to steer customers towards better quality weapons. She could not recall a single instance where she had suggested a TEC-9 to a customer. Ferri questioned Messing about the TEC-9 or TEC-DC9 and the Glock. Messing told Ferri if he took a TEC-9 or TEC-DC9 to a shooting range, "they'd probably laugh at him because it wasn't really an accurate weapon" and that "it would be a waste of his time [to use the gun on a target range] because it's not made for that." Messing also told Ferri that if Messing were going "plinking" he wouldn't buy a 9-millimeter gun because "I couldn't afford to shoot it." Ferri chose the TEC-DC9.

When the salesperson asked for proof of residency, he claimed to be a Nevada resident and produced a fake or counterfeit Nevada driver's license. A week later Ferri returned to Super Pawn seeking to buy a sling for the gun. The salesperson told him they had none and could not get one.

On May 8, Ferri purchased a second TEC-DC9 at a gun show in Las Vegas, again providing a false Nevada address and showing an invalid Nevada driver's license.⁴

The weapon Ferri purchased from Super Pawn was sold by Navegar to a gun distributor in Prescott, Arizona. The second weapon was sent by Navegar to a gun distributor in Lebanon, Ohio, who then sent it to a Utah gun dealer, from whom Ferri bought it at the Las Vegas gun show. As required by federal law, the Utah dealer transferred the gun to a Nevada retailer who then delivered it to Ferri. All of the distributors and retailers just mentioned were apparently licensed by the BATF, and, so far as appears from the record, all of the transactions culminating in Ferri's acquisitions, which occurred outside California, were legal under applicable federal and state gun control laws,⁵ except that Ferri's use of false identification in purchasing both weapons violated federal law. (18 U.S.C. § 922(a)(6).)

On June 18, Ferri accepted an invitation from a Southern California friend to go to the Mojave Desert for "an early morning target shooting trip." The two of them, plus a third man, went to a "shooting range in the Mojave ... where Ferri fired one of his TEC 9's."

On June 25, six days before the 101 California Street shooting, Ferri returned to the Pawn and Gun Shop in Henderson and purchased a Norinco Model 1911A1 semiautomatic pistol and many rounds of "Black Talon" hollowpoint bullets for this weapon. He then brought all three guns with him into California. On July 1 Ferri took these weapons, together with hundreds of rounds of ammunition preloaded into 40-and 50-round magazines, into 101 California Street. There, with his TEC-DC9s equipped with "Hell-Fire" triggers that made them function like automatic weapons, and using separately purchased "combat slings" to hang the weapons from his neck, Ferri moved through offices on three floors, commencing a series of machine-gun like fusillades that in a few minutes killed or wounded the 14 victims of the tragedy.

The intensive discovery in this case focused upon the characteristics of the TEC-DC9. Appellants' experts provided deposition testimony and declarations establishing that the TEC-DC9 is a "military-patterned weapon" of the type "typically issued to specialized forces such as security personnel, special operations forces, or border guards." Even though it is nominally a semiautomatic, the standard 32-round magazine "can be emptied in seconds." According to the undisputed testimony of police chief Leonard J. Supenski, a nationally recognized firearms expert, the TEC-DC9 differs from conventional handguns in several ways. A large capacity detachable magazine, "designed to deliver maximum firepower by storing the largest number of cartridges in the smallest ... space," provides a level of firepower "associated with military or police, not civilian, shooting requirements." The TEC-DC9 has a "barrel shroud," also peculiar to military weapons, which disperses the heat generated by the rapid firing of numerous rounds of ammunition and allows the user to grasp the barrel and hold the weapon with two hands, which facilitates spray-firing. The barrel is threaded, allowing the attachment of silencers and flash suppressors, which are restricted under federal law (18 U.S.C. § 921(a)(24) and (a)(30)(C)(ii)), and are primarily of interest to criminals. The threaded barrel also permits the attachment of a barrel extension, enabling the weapon to be fired with higher velocity and at greater distances, while still allowing it to be broken down into smaller concealable parts. The weapon comes with a "sling swivel" that permits it to be hung from a shoulder harness, known as a "combat sling," when firing rapidly from the hip. The sling device also permits the rapid firing of two weapons simultaneously, as was done by Ferri in this case. The relatively compact size of the TEC-DC9 allows a shooter to transport maximum firepower with relative case, and with far greater concealability than almost any other weapon having similar firepower. The TEC-DC9 is also compatible with the "Hell-Fire" trigger system, which, when properly installed, permits the weapon to be fired virtually at full automatic rate— 300 to 500 rounds per minute. As noted, Ferri installed such trigger systems on the TEC-DC9s he used at 101 California Street, and he also used the unusually large 40- and 50-round magazines the weapons were designed to accommodate.

Chief Supenski stated that the TEC-DC9 is "completely useless" for hunting, is never used by competitive or recreational shooters and "has no legitimate sporting use." The weapon is designed to engage multiple targets during rapid sustained fire. It has no practical value for self-defense and is hazardous when used for that purpose due to its weight, inaccuracy and firepower, he stated. The fact that the TEC-DC9 is designed primarily for "spray fire"...