Penelas v. Arms Technology, Inc.

• Decision Date: 14 February 2001
• Docket Number: No. 3D00-113.,3D00-113.
• Citation: 778 So.2d 1042
• Parties: Alexander PENELAS, and Miami-Dade County, Appellants, v. ARMS TECHNOLOGY, INC., et al., Appellees.
• Court: Florida District Court of Appeals

778 So.2d 1042

Alexander PENELAS, and Miami-Dade County, Appellants, v. ARMS TECHNOLOGY, INC., et al., Appellees.

No. 3D00-113.

District Court of Appeal of Florida, Third District.

February 14, 2001.

Certification Denied March 21, 2001.

Robert A. Ginsburg, County Attorney, Thomas A. Tucker Ronzetti, Javier Alberto Soto, Assistant County Attorneys; and Dennis A. Henigan, Washington, DC, for appellants.

Hardeman & Suarez, Miami; Friday, Eldredge & Clark and William M. Griffin, III, Little Rock, AR; Wilson, Elser, Moskowitz, Edelman & Dicker and James M. Kaplan and Sara J. Sanders; Fowler, White, Burnett, Hurley, Banick & Strickroot and David A. Friedman; Bilzin Sumberg Dunn Price & Axelrod and J. Ronald Denman; Shook, Hardy & Bacon and Thomas M. Sherouse; Angones, Hunter, McClure; Kenny Nachwalter, Seymour, Arnold, Critchlow & Spector, Miami; Gary R. Long and Jeffrey S. Nelson, Kansas City, MO; Paul T. Reid, Wendy Lumish and Carlton Fields, Miami, for appellees.

Lawrence S. Greenwald, Baltimore, MD, for Beretta U.S. Corp. and Fabbrica d'Armi Pietro Berretta as pro hac vice.

James P. Dorr, Chicago, IL, for Sturm, Ruger & Company, Inc., as pro hac vice.

Melissa Anne Maye, Yorkville, IL, for B.L. Jennings, Inc. and Bryco Arms, Inc. as pro hac vice.

Before GERSTEN, GREEN,¹ and FLETCHER, JJ.

FLETCHER, Judge.

Miami-Dade County and its Mayor, Alexander Penelas, [together "County"], filed a complaint against twenty-six federally licensed firearms manufacturers, three firearms trade associations, and two firearms retail dealers, alleging various theories, including negligence, strict liability for defective products, public nuisance, and ultra hazardous activity, in an effort to recover the County's costs of responding to firearms incidents. The County's complaint also seeks injunctive relief requiring manufacturers to implement life-saving features into their products, and to alter the method of firearm distribution and sale so as to better keep firearms out of criminal circulation. We affirm the trial court's dismissal of the County's action with prejudice.

We have been referred to and examined numerous appellate decisions of other jurisdictions. It appears that all of the appellate decisions but one² preclude relief similar to that requested here by the County. However, we do not need to look much, if at all, beyond Florida appellate decisions. In Trespalacios v. Valor Corp. of Fla., 486 So.2d 649 (Fla. 3d DCA 1986), a madman shot and killed eight individuals with a "riot and combat" shotgun. Trespalacios, as personal representative of the estate of one of the victims, brought suit against the seller of the weapon, the distributor, and the manufacturer, on theories of negligence and strict product liability. In affirming the trial court's dismissal as to the distributor and the manufacturer, this court stated:

"The complaint ... failed to state a claim on a strict liability theory because there was no allegation that the product was defective, i.e., that it failed to operate as the consumer expected, and that the defect was the proximate cause of injury.

For the reasons that the firearm was not defective, that manufacture or distribution of the weapon is not unlawful pursuant to either state law or the federal Gun Control Act of 1968, 18 U.S.C. §§ 921-928 (1982), and that neither the manufacturer nor distributor had a duty to prevent the sale of handguns to persons who are likely to cause harm to the public, there was no duty which had been breached by the manufacturer and distributor so as to support a cause of action based on negligence."

486 So.2d at 650 (citations omitted).

As to the contention that the appellees or some of them are engaged in an ultra hazardous activity for which they should be held liable, the Fourth District Court of Appeal concluded in Coulson v. DeAngelo, 493 So.2d 98, 99 (Fla. 4th DCA 1986):

"[T]he complaint alleged that the manufacturer should be held strictly liable for engaging in an ultra hazardous activity.... [L]iability under the doctrine is generally imposed where a defendant engages in an activity which involves a risk of serious harm. The plaintiff did not allege that the act of manufacturing the gun was abnormally dangerous; instead he alleged that the use of the completed product by others was unusually dangerous. Thus, the trial court correctly dismissed this count of complaint."

The United States Eleventh Circuit Court of Appeals, in Shipman v. Jennings Firearms, Inc., 791 F.2d 1532 (11th Cir. 1986), also dealing with the issue of ultra hazardous activity, cited and applied Florida case law³ dealing with the doctrine. The federal court observed that under this doctrine Florida imposes liability for damages resulting solely from activities which occur on land and which pose an unusual and unnecessarily high risk of harm to neighboring landowners and their property. Involved was a "Saturday Night Special"⁴ used by the shooter. The court affirmed the trial court's summary judgment in favor of the manufacturer/distributor, concluding that Florida state courts rejected or would reject the novel theory of "Saturday Night Special" hazardous activity as proposed by Shipman.

K-Mart Enter. of Fla., Inc. v. Keller, 439 So.2d 283 (Fla. 3d DCA 1983) is not relevant to our inquiry as it...