Parsons v. Colts Mfg. Co.
| Decision Date | 02 December 2021 |
| Docket Number | No. 81034,81034 |
| Citation | 499 P.3d 602 |
| Parties | James PARSONS, individually and as Special Administrator of the Estate of Carolyn Lee Parsons; and Ann-Marie Parsons, Appellants, v. COLTS MANUFACTURING COMPANY LLC; Colt Defense LLC; Daniel Defense Inc.; Patriot Ordnance Factory; FN America; Noveske Rifleworks LLC ; Christensen Arms; Lewis Machine & Tool Company; LWRC International LLC; Discount Firearms and Ammo LLC; DF&A Holdings, LLC; Maverick Investments, LP; Sportsman's Warehouse; and Guns and Guitars Inc., Respondents. |
| Court | Nevada Supreme Court |
Friedman Rubin PLLC and Richard H. Friedman, Bremerton, Washington; Koskoff, Koskoff & Bieder, PC, and Joshua D. Koskoff and Alinor C. Sterling, Bridgeport, Connecticut; Matthew L. Sharp, Ltd., and Matthew L. Sharp, Reno, for Appellants.
Hejmanowski & McCrea LLC and Paul R. Hejmanowski, Las Vegas; Williams Mullen, PC, and Camden R. Webb and Robert Van Arnam, Raleigh, North Carolina; Williams Mullen, PC, and Turner A. Broughton and Justin S. Feinman, Richmond, Virginia; Spencer Fane LLP and John H. Mowbray, Mary E. Bacon, and Jessica E. Chong, Las Vegas, for Respondent FN America.
Snell & Wilmer, L.L.P., and Kelly H. Dove, Patrick G. Byrne, V.R. Bohman, and Gil Kahn, Las Vegas, for Respondents Daniel Defense Inc. and Sportsman's Warehouse.
Renzulli Law Firm, LLP, and John F. Renzulli, Christopher Renzulli, and Scott C. Allan, White Plains, New York; Evans Fears & Schuttert LLP and Jay J. Schuttert and Alexandria L. Layton, Las Vegas, for Respondents Colt's Manufacturing Company LLC; Colt Defense LLC; Patriot Ordnance Factory; Christensen Arms; Lewis Machine & Tool Company; and LWRC International LLC.
Pisciotti Malsch and Anthony Pisciotti, Ryan Erdreich, and Danny C. Lallis, Florham Park, New Jersey; Lincoln, Gustafson & Cercos, LLP, and Loren S. Young, Las Vegas, for Respondent Noveske Rifleworks LLC.
The Chiafullo Group, LLC, and Christopher M. Chiafullo, New York, New York; The Amin Law Group, Ltd., and Ismail Amin and Jessica S. Guerra, Las Vegas, for Respondents Discount Firearms and Ammo LLC; DF&A Holdings, LLC; and Maverick Investments, LP.
Hejmanowski & McCrea LLC and Paul R. Hejmanowski, Las Vegas, for Respondent Discount Firearms and Ammo LLC.
Swanson, Martin & Bell LLP and James B. Vogts, Chicago, Illinois; Murchison & Cumming, LLP, and Michael J. Nunez, Las Vegas, for Respondent Guns and Guitars Inc.
Fennemore Craig, P.C., and Therese M. Shanks, Reno; Claggett & Sykes Law Firm and Micah Echols, Las Vegas, for Amicus Curiae Nevada Justice Association.
Shook, Hardy & Bacon, L.L.P., and Victor E. Schwartz, Washington D.C.; Shook, Hardy & Bacon L.L.P., and Jennifer N. Hatcher, Kansas City, Missouri, for Amicus Curiae National Shooting Sports Foundation.
BEFORE THE SUPREME COURT, EN BANC.
NRS 41.131(1) provides that "[n]o person has a cause of action against the manufacturer or distributor of any firearm or ammunition merely because the firearm or ammunition was capable of causing serious injury, damage or death." Currently pending in Nevada's federal district court is a suit brought by the parents of a victim of the Route 91 Harvest Festival massacre against the manufacturers and distributors of the AR-15 rifles the gunman used. The federal court has determined that the complaint plausibly alleges that the AR-15s violated state and federal machinegun prohibitions. It now asks this court to decide whether the allegation of illegality allows the parents’ wrongful death and negligence per se claims to proceed, despite the immunity NRS 41.131(1) declares. We hold that it does not and that, as written, NRS 41.131 provides the gun manufacturers and distributors immunity from the claims asserted against them under Nevada law in this case.
Carrie Parsons was killed in the October 1, 2017, mass shooting that occurred at the Route 91 Harvest Festival outdoor concert in Las Vegas, Nevada. In the 32nd-floor hotel room from which he fired, the shooter had amassed an arsenal of high-capacity magazines; bump stocks—a tool that replaces the standard stock of an AR-15 rifle and uses the firearm's recoil mechanism to enable continual (i.e., automatic) fire with a single trigger pull—; and 12 AR-15 semi-automatic rifles that respondents (collectively, the gun companies) manufactured and/or sold. The shooter replaced the standard stocks of his AR-15 rifles with those bump stocks and fired 1,049 rounds, in just 10 minutes, into the crowd of country music fans gathered below. The shooter killed 58 people that night, including Carrie, and injured hundreds more, then committed suicide.
James and Ann-Marie Parsons sued the gun companies in Nevada state court, alleging (1) wrongful death caused by the companies’ knowing violation of 18 U.S.C. § 922(b)(4) (2019) () and NRS 202.350(1)(b) (similar); (2) negligence per se under the same statutes; and (3) negligent entrustment. The gun companies timely removed the case to federal court, where they filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP). The motion argued that the complaint failed to state claims upon which relief could be granted and that the federal Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. §§ 7901 - 03 (2019), and NRS 41.131 bar the Parsonses’ claims as a matter of law.
The federal district court granted the motion to dismiss the negligent entrustment and negligence per se claims, but denied it as to the wrongful death claim based on the so-called "predicate exception" to the PLCAA. Enacted in 2005, the PLCAA's declared purpose is to "prohibit causes of action against manufacturers [and] distributors ... of firearms ... for the harm solely caused by the[ir] criminal or unlawful misuse by others when the product functioned as designed and intended." 15 U.S.C. § 7901(b)(1) (2019) ; see also id. §§ 7902(a)-(b), 7903(5)(A). But the PLCAA's predicate exception permits "action[s] in which a manufacturer or seller ... knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought." 15 U.S.C. § 7903(5)(A)(iii). Invoking the PLCAA's predicate exception, the Parsonses argued to the district court that the ease with which an AR-15 can be modified to enable full automatic fire brings the rifle within the federal and state definitions of "machinegun," see 26 U.S.C. § 5845(b) (2019) (); NRS 202.350(8)(c) (2015) () (recodified as NRS 202.253(6) (2021)), and the associated restrictions on their manufacture and sale. See 18 U.S.C. § 922(b)(4) ; NRS 202.350(1)(b).
After reviewing the Parsonses’ complaint, the federal district court provisionally credited their argument. It concluded that the complaint plausibly alleged that the gun companies "knowingly manufactured and sold weapons ‘designed to shoot’ automatically because they were aware their AR-15s could be easily modified with bump stocks to do so[,]" thereby violating federal and state machinegun prohibitions. Parsons v. Colt's Mfg. Co., LLC, No. 2:19-cv-01189-APG-EJY, 2020 WL 1821306, at *5-6 (D. Nev. April 10, 2020) () (citing 18 U.S.C. § 922(b)(4) and NRS 202.350(1)(b) ); Parsons v. Colt's Mfg. Co., LLC, No. 2:19-cv-01189-APG-EJY, 2020 WL 4059685, at *4 (D. Nev. July 20, 2020) (denying reconsideration); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (). On this basis, the district court held that "[t]he Parsons have alleged a wrongful death claim that is not precluded by the PLCAA." Parsons, supra , 2020 WL 41821306, at *6 ; see generally Anya Sanko & Dylan Lawter, Guns in the Sky: Nevada's Firearm Laws, 1 October, and Next Steps, 5 Nev. L.J.F. 34, 46-59 (2021).
This left the question whether the immunity NRS 41.131 declares is broader than that provided by the PLCAA in this case. The federal district court declined to decide this question of state law in the first instance, instead certifying two questions about NRS 41.131 ’s scope to this court under NRAP 5. The federal court later reconsidered its dismissal of the negligence per se claim and certified an additional question to us about Nevada's negligence per se doctrine. It reserved final ruling on the motion to dismiss the wrongful death and negligence per se claims pending our decision on the certified questions.
The certified questions the federal district court has forwarded are thus three:
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