People v. Sturm, Ruger & Co.

• Decision Date: 24 June 2003
• Citation: 761 N.Y.S.2d 192,309 A.D.2d 91
• Court: New York Supreme Court — Appellate Division
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, by ELIOT SPITZER, as Attorney General of the State of New York, Appellant,<BR>v.<BR>STURM, RUGER & COMPANY, INC., et al., Respondents.

309 A.D.2d 91

761 N.Y.S.2d 192

THE PEOPLE OF THE STATE OF NEW YORK, by ELIOT SPITZER, as Attorney General of the State of New York, Appellant,

v.STURM, RUGER & COMPANY, INC., et al., Respondents.

MARLOW, J.

June 24, 2003.

Eliot Spitzer of counsel (Caitlin J. Halligan, Beth L. Golden, Peter B. Pope, Hillary Weisman and Sachin S. Pandya on the brief; Eliot Spitzer, Attorney General, attorney), for appellants.

Lawrence S. Greenwald of counsel (Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC, attorneys), for Beretta U.S.A. Corp., respondent.

David R. Gross of counsel (Budd Larner Gross Rosenbaum Greenberg & Sade, attorneys), for RSR Wholesale Guns, Inc. doing business as RSR Group, New York, Inc., and others, respondents.

William E. Vita and James P. Door on the brief; Gallagher, Gosseen, Faller & Crowley and Wildman, Harrold, Allen & Dixon, attorneys, for Sturm, Ruger & Company, Inc., respondent.

Thomas E. Healy and Thomas E. Fennell on the brief; Pino & Associates, LLP and Jones, Day, Reavis & Pogue, for Colt's Manufacturing Co., Inc., respondent.

Brian Heermance and Michael C. Hewitt on the brief; Morrison, Mahoney & Miller and Bruinsma & Hewitt, for Bryco Arms, respondent.

Timothy A. Bumann on the brief; Budd Larner Gross Rosenbaum Greenberg & Sade, for Taurus International Manufacturing, Inc., respondent.

John F. Renzulli on the brief; Renzulli & Rutherford, LLP, for Glock Inc. and another, respondents.

Michael Branisa and Michael Zomcik on the brief; Tarics & Carrington, P.C., for Phoenix Arms, respondent.

Eric Proshansky of counsel (Gail Rubin on the brief; Michael A. Cardozo, Corporation Counsel of New York City, attorney), for City of New York, amicus curiae.

BUCKLEY, P.J., and LERNER, J., concur with MARLOW, J.; ROSENBERGER, J., dissents in a separate opinion.

OPINION OF THE COURT

MARLOW, J.

Plaintiff State of New York, by its Attorney General, commenced this action with a complaint alleging that defendant corporations, which are handgun manufacturers, wholesalers and retailers, have created, contributed to, and maintained a public nuisance by their respective manufacturing, distributing and marketing practices. Plaintiff now appeals from an order of the Supreme Court which consolidated and granted defendants' motions to dismiss the complaint for failure to state a cause of action. While originally pleading both a statutory (Penal Law § 400.05 [1]) and a common-law public nuisance cause of action, plaintiff, on this appeal, does not challenge the motion court's dismissal of the former. Thus, the only remaining issue is whether the motion court correctly dismissed, pursuant to CPLR 3211 (a) (7), the cause of action for common-law public nuisance.

Plaintiff's complaint, as pertinent here, claims that illegally possessed handguns are a common-law public nuisance because they endanger the health and safety of a significant portion of the population; interfere with, offend, injure and otherwise cause damage to the public in the exercise of rights common to all; and that, after being placed on actual and constructive notice that guns defendants sell, distribute and market are being used in crimes, they have, by their conduct and omissions, created, maintained and contributed to this public nuisance, because they manufacture, distribute and market handguns allegedly in a manner that knowingly places a disproportionate number of handguns in the possession of people who use them unlawfully. Plaintiff further claims that defendants are on notice that certain types of guns, and guns sold in certain locales, are disproportionately used in the commission of crimes. They base that claim on the results of trace requests which the Bureau of Alcohol, Tobacco and Firearms (BATF) initiates with respect to guns used in or associated with crimes, in furtherance of its duty to enforce and manage the federal firearm regulatory scheme.

Plaintiff therefore seeks an order, inter alia, "(1) directing defendants to abate the nuisance they have created and maintain within the State of New York; [and] (2) directing each defendant to cease contributing to and maintaining the nuisance within the State of New York."

The motion court dismissed plaintiff's complaint on the ground that it fails to state a cause of action for common-law public nuisance. The court so found because defendants are engaged in the lawful manufacture, marketing and sale of a defect-free product in a highly regulated activity far removed from the downstream, unlawful use of handguns that is out of their control and constitutes the nuisance alleged. The court ruled that, in order to survive a dismissal motion, plaintiff was required to allege more specific facts to show how defendants are linked to, and how they contributed to that nuisance, because BATF trace request information presently available to defendants is insufficient to support a common-law public nuisance lawsuit.

We agree and affirm, based on the reasoning and implications of Hamilton v Beretta U.S.A. Corp. (96 NY2d 222 [2001]) and the fact that the legislative and executive branches are better suited to address the societal problems concerning the already heavily regulated commercial activity at issue.

The New York Court of Appeals has never recognized a common-law public nuisance cause of action based on allegations like those in this complaint. Moreover, other jurisdictions have dismissed public nuisance claims against firearms manufacturers on similar or other grounds (see City of Philadelphia v Beretta U.S.A. Corp., 277 F3d 415 [3d Cir 2002] [civic organizations lacked standing to sue gun manufacturers on claim that gun industry's methods for distributing guns were negligent and a public nuisance since there was no causal nexus between manufacturers' conduct and alleged injuries of civic organizations' members and because action could not proceed in absence of participation of members of organizations who actually sustained damage]; Camden County Bd. of Chosen Freeholders v Beretta, U.S.A. Corp., 273 F3d 536 [3d Cir 2001] [causal chain too attenuated to make out public nuisance claim associated with criminal use of handguns]; Ileto v Glock, Inc., 194 F Supp 2d 1040 [CD Cal 2002] [applying California state law, federal court concluded that manufacture and sale of nondefective product cannot give rise to public nuisance claim]; District of Columbia v Beretta U.S.A. Corp., 2002 WL 31811717 [DC Super Ct, Dec. 16, 2002] [action for public nuisance not sustainable as a matter of law because it is not based upon conduct of defendants that violates any criminal law or any municipal regulation or health and safety law of the District of Columbia]; City of Gary ex rel. King v Smith & Wesson Corp., 2001 WL 333111 [Ind Super Ct, Jan. 11, 2001] [conduct cannot constitute public nuisance under Indiana law unless it is actionable under some theory of tort law]; Penelas v Arms Tech., Inc., 778 So 2d 1042 [Fla Ct App, 3d Dist 2001] [Florida statute expressly preempts entire field of firearm and ammunition regulation]; Ganim v Smith & Wesson Corp., 258 Conn 313, 780 A2d 98 [2001] [plaintiffs' public nuisance claim dismissed because harms alleged too indirect and remote from defendants' conduct]).^[1]

In its most recent opinion on the accountability of gun manufacturers and dealers, the New York Court of Appeals in Hamilton said nothing to suggest that it is moving in the direction of sustaining other types of tort claims in this area of commercial activity. Notwithstanding the arguments advanced by plaintiff, our reading of Hamilton suggests the Court's resolve to maintain its present and longstanding posture of denying liability where the causal connection between the alleged business conduct and harm is too tenuous and remote. Hamilton, just as here, deals with defendants' manufacturing, distribution, marketing and sales practices, but, unlike here, does so in the context of a lawsuit by private plaintiffs against defendants based on a claim, inter alia, of negligent marketing, a tort different from the instant common-law public nuisance claim. However, much of the Court's reasoning in dismissing the Hamilton negligent marketing complaint logically, and most aptly, applies to our consideration of this plaintiff's common-law public nuisance claim.

To begin with, the Court reasoned that, generally, defendant gun manufacturers do not owe a "duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control." (Hamilton, 96 NY2d at 233, quoting D'Amico v Christie, 71 NY2d 76, 88 [1987].) Indeed, the Hamilton Court, unanimously and specifically, rejected the plaintiffs' contention that gun manufacturers have a general duty of care born of their purported ability to lessen the risks of illegal gun trafficking because they have the power to restrict marketing and product distribution.

The root of the Hamilton Court's reasoning, in a significant measure, appears to be as follows (96 NY2d at 233): "This judicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another."

Although the tort of common-law public nuisance is defined differently from negligent marketing, this quoted concern expressed in Hamilton is, as we see it, common to both negligent marketing and public nuisance claims. Although this public nuisance lawsuit is brought by the Attorney General on behalf of the State of New York—while the Hamilton action was one initiated by private parties for negligent marketing— both were brought against handgun manufacturers and sellers. Plaintiff's attempt here to widen the range of common-law public nuisance claims in order to reach the legal handgun industry will not itself, if successful, engender a limitless number of public nuisance lawsuits by individuals against these particular defendants...