Merrill v. Navegar, Inc.

• Decision Date: 06 August 2001
• Docket Number: No. S083466.,S083466.
• Citation: 28 P.3d 116,110 Cal.Rptr.2d 370,26 Cal.4th 465
• Court: California Supreme Court
• Parties: Marilyn MERRILL et al., Plaintiffs and Appellants, v. NAVEGAR, INC., Defendant and Respondent.

110 Cal.Rptr.2d 370

26 Cal.4th 465

28 P.3d 116

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

No. S083466.

Supreme Court of California.

August 6, 2001.

Center to Prevent Handgun Violence, Dennis A. Henigan, Brian J. Siebel and Allen K. Rostron for Plaintiffs and Appellants.

McCutchen, Doyle, Brown & Enersen, Jane Elizabeth Lovell, San Francisco, Frank N. Hinman, Philip A. Ferrari; Vaca, Vaca & Ritter, Werner & Burke and Christopher G. Ritter for Plaintiffs and Appellants Marilyn Merrill, Donald Michael Merrill, Kristin Merrill and Michael Merrill.

Alper & McCulloch and Dean A. Alper, San Francisco, for Plaintiff and Appellant Charles Lewis Ross.

Cotchett & Pitre, Frank M. Pitre and Mark Molumphy, Burlingame, for Plaintiff and Appellant Michelle Scully.

Law Offices of Mitchell J. Green and Mitchell J. Green for Plaintiffs and Appellants Deanna L. Eaves and Roy B. Eaves.

Jaffe, Trutanich, Scatena & Blum and Fred M. Blum, San Francisco, for Plaintiffs and Appellants Carol Marie Kingsley, Zachary Kingsley Berman and Jack Berman.

Morrison & Foerster, James B. Bennett, Cam Baker and Kimberly Echardt for Plaintiffs and Appellants Stephen Sposato, Jody Jones Sposato and Meghan Sposato.

Orrick, Herrington & Sutcliffe, Frederick Brown and Carl W. Chamberlain for Plaintiffs" and Appellants Carol Ernsting and David Sutcliffe.

LeBoeuf, Lamb, Greene & MacRae, Charles Ferguson, San Francisco, and Michael B. Schwarz for the Educational Fund to End Handgun Violence as Amicus Curiae on behalf of Plaintiffs and Appellants.

Latham & Watkins, Ernest J. Getto, Karen R. Leviton, Los Angeles, and Tanya M. Acker for Defendant and Respondent.

John H. Findley, Sacramento, and Stephen R. McCutcheon for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and Respondent.

Hugh F. Young, Jr., and Harvey M. Grossman for the Product Liability Advisory Council, Inc., as Amicus Curiae on behalf of Defendant and Respondent.

CHIN, J.

On July 1, 1993, Gian Luigi Ferri killed eight people and wounded six—and then killed himself—during a shooting rampage at 101 California Street, a high-rise office building in San Francisco. Survivors and representatives of some of Ferri's victims (plaintiffs) sued defendant Navegar, Inc. (Navegar), which made two of the three weapons Ferri used.

We granted review to determine whether plaintiffs may hold Navegar liable on a common law negligence theory. We hold they may not, because the Legislature has declared as a matter of public policy that a gun manufacturer may not be held liable "[i]n a products liability action . . . on the basis that the benefits of [its] product do not outweigh the risk of injury posed by [the product's] potential to cause serious injury, damage, or death when discharged." (Civ.Code, § 1714.4, subd. (a).)¹ That, in essence, is plaintiffs' theory of recovery here: that Navegar defectively designed the weapons Ferri used `because, given their particular characteristics, the benefits of making them available to the general public—which were nonexistent— did not outweigh the risk they might inflict serious injury or death when discharged. The public policy the Legislature established in section 1714.4 precludes plaintiffs from proceeding on this theory. We therefore conclude the trial court correctly granted Navegar summary judgment, and we reverse the judgment of the Court of Appeal, which reversed the trial court's decision.

FACTUAL BACKGROUND²

Navegar is a gun manufacturer located in Miami, Florida. Doing business as Intratec, it manufactured the TEC-9, a semiautomatic assault pistol, from 1988 to 1992.³ In 1992, Navegar renamed the firearm the TEC-DC9 but did not alter its design or materials. Because Ferri used two of these unmodified TEC-DC9's at 101 California Street, we will refer to them interchangeably as TEC-9's, TEC-DC9's, or TEC-9/DC9's.

Navegar advertised the TEC-9/DC9 in a number of gun-related magazines and annuals, including Guns, Guns & Ammo, Combat Handguns, Petersen's Handguns, Heavy Metal Weapons, and Soldier of Fortune. A typical advertisement claimed that in light of the TEC-9/DC9's design features—including "32 rounds of firepower," a "`TEC-KOTE' finish" and "two-step disassembly for easy cleaning"—the weapon is "ideal for self-defense or recreation," "stands out among high capacity 9mm assault-type pistols," and "deliver[s] more gutsy performance and reliability than ANY other gun on the market." Navegar also distributed an advertising brochure or catalog describing its guns and accessories, which it mailed to anyone interested and, on at least one occasion, printed in special issue magazines. In a page describing the TEC-KOTE finish, Navegar claimed the finish provided "natural lubicity [sic] to increase bullet velocities, excellent resistance to finger prints, sweat rust, petroleum distillates of all types, gun solvents, gun cleaners, and all powder residues. Salt spray corrosion resistance, expansion and contraction of the metal will not result in peeling of finish." A different brochure advertising to retailers used the slogan, "Intratec: Weapons that are as tough as your toughest customer."

Navegar included a manual with each TEC-9/DC9 it sold. The 1993 manual contained safety warnings, technical information, and operating instructions. It also claimed the gun was "a radically new type of semi-automatic pistol," which was "designed to deliver a high volume of firepower" and, "[t]hanks to its dimensions and designs," could "be used in modes of fire impossible with most handguns." Regarding the latter claim, the manual described and illustrated several recommended shooting positions, including "[h]ipfire at shortest range," a two-handed hold with the nontrigger hand placed on the upper part of the magazine well.

In early 1993, Ferri, a Southern California resident, bought a TEC-9 from the Pawn & Gun Shop in Henderson, Nevada, after several earlier information-gathering trips to the same store. According to the salesperson, Ferri looked at a wide variety of handguns, but seemed mainly interested in a "high capacity type" gun, "something relatively compact that holds a lot of rounds." He gave no indication he had previously heard of the TEC-9 or the Intratec brand. Despite the employee's efforts to steer him toward better made, more expensive models, Ferri ultimately purchased a used TEC-9. Later that day, he returned the weapon, stating that he wanted a new gun instead.

On April 25, 1993, Ferri bought a new TEC-DC9 from Super Pawn, a gun store in Las Vegas, Nevada. Super Pawn had purchased the weapon from a gun distributor in Arizona, which had purchased it from Navegar. Ferri told the salesperson and another customer he wanted a gun for informal target shooting, or "plinking." The salesperson showed Ferri only the TEC-DC9 and a gun manufactured by Glock. Although Ferri did not initially ask for a TEC-DC9 by name or indicate he recognized the names Intratec or TEC-9, he did not appear interested in any other guns. Ferri questioned the other customer about the TEC-DC9 and the Glock. The customer said that people at a shooting range would "probably laugh at" Ferri if he used a TEC-DC9 "because it wasn't really an accurate weapon" and that a .22 caliber gun was better for "plinking" than a nine-millimeter gun because ammunition for the former was much cheaper. Ferri nevertheless chose the TEC-DC9.

Ferri purchased another TEC-DC9 on May 8, 1993, at a Las Vegas gun show from a Utah dealer. The dealer had purchased it from an Ohio distributor, which had purchased it from Navegar. As federal law required, the dealer transferred the gun to a Nevada retailer, who then delivered it to Ferri. The TEC-DC9 Ferri bought was the only handgun the Utah dealer displayed at the show, and the dealer's price ($210) was the lowest at the show for a TEC-DC9. The dealer recalled Ferri saying he already owned a TEC-9.

To purchase the new weapons, Ferri showed an apparently valid Nevada driver's license and answered required questions about his criminal history and residency. All of the distributors and retailers were licensed by the federal Bureau of Alcohol, Tobacco and Firearms, and, so far as the record shows, all of the transactions were legal under applicable federal and state gun control laws, other than Ferri's misrepresentations as to his state of residence.

On July 1, 1993, Ferri entered 101 California Street carrying the TEC-9/DC9's and a .45-caliber Norinco Model 1911A1 pistol in a large briefcase and another bag. He had added to the TEC-DC9's Hell Fire brand trigger systems that made the weapons fire in rapid bursts, and he was equipped with hundreds of rounds of ammunition preloaded into 40- to 50-round magazines. He went to the 34th floor, to the office of a law firm he held a grudge against, and started shooting. During his rampage, he killed eight people and wounded six on three different floors, and then killed himself.

San Francisco police investigated Ferri's crimes. Inspectors Napoleon Hendrix and Prentice Earl Sanders led the investigation and concluded that Ferri used the TEC-9/DC9's firepower to "lay down" a field of fire that eliminated or reduced the opportunity of his intended victims to escape before he completed his attack. During a search of Ferri's apartment, the police found two TEC-DC9 manuals, one Intratec catalog (brochure), and two price lists. The catalog and price lists had a single fold, which, according to Navegar's customer service representative, was the invariable manner of folding catalogs for inclusion with TEC-9/DC9's the company sold; in contrast, mailed catalogs were folded twice or not at all. The brochure in Ferri's apartment did not state that the TEC-KOTE finish resisted fingerprints; instead, it stated, "excellent resistance to body perspiration, rust," etc. The police also found "numerous magazines advertising weapons and paramilitary equipment,"...