Shipman v. Jennings Firearms, Inc.

• Decision Date: 25 June 1986
• Docket Number: No. 85-5427,85-5427
• Citation: 791 F.2d 1532
• Parties: Nell J. SHIPMAN, as Personal Representative of Estate of Linda Marie Barach, deceased, Plaintiff-Appellant, v. JENNINGS FIREARMS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1532

791 F.2d 1532

Nell J. SHIPMAN, as Personal Representative of Estate of Linda Marie Barach, deceased, Plaintiff-Appellant, v. JENNINGS FIREARMS, INC., Defendant-Appellee.

No. 85-5427.

United States Court of Appeals, Eleventh Circuit.

June 25, 1986.

Corrected.

Darrell Panethiere, Law Offices of Windle Turley, Dallas, Tex., James E. Rooks, Jr., Law Offices of Windle Turley, Washington, D.C., for plaintiff-appellant.

Lewis N. Jack, Jr., Coral Gables, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY, Circuit Judge, HENDERSON ^* and NICHOLS ^**, Senior Circuit Judges.

HENDERSON, Circuit Judge:

This is an appeal from the grant of a summary judgment in favor of the defendant-appellee, Jennings Firearms, Incorporated (Jennings) by the United States District Court for the Southern District of Florida. It arises from the death of Linda Barach who was shot and killed by her husband, who used a small, .22 caliber pistol--a so-called "Saturday Night Special"--to effect the homicide. The pistol was manufactured and distributed by Jennings. The plaintiff-appellant, Nell J. Shipman, as the personal representative of Mrs. Barach's estate, sought recovery from Jennings premised on novel applications of strict products liability, negligence and ultrahazardous activity theories.

Shipman claimed that although the pistol had no design defects and performed exactly as intended, Jennings nevertheless is subject to strict products liability for manufacturing and distributing a product that is unreasonably dangerous. This theory relies on the view that the societal risks inherent in the gun outweigh the societal benefits of the product. Shipman also maintained that Jennings was strictly liable on the ground that the manufacture and sale of handguns like the one used to kill Mrs. Barach is an ultrahazardous or abnormally dangerous activity. This doctrine, which is grounded in Secs. 519-20 of the Restatement (2d) of Torts (adopted in Cities Service v. State, 312 So.2d 799 (Fla.App.1975)), imposes strict liability on those whose ultrahazardous use of their land injures neighboring landowners. See Rylands v. Fletcher, L.R. 3 H.L. 330 (1868); Bunyak v. Yancey & Sons Dairy, Inc., 438 So.2d 891 (Fla.App.1983). Finally, Shipman sought recovery for failure to exercise reasonable care in marketing its weapons; i.e., it distributed guns to persons, such as Barach, without regard for possible misuse by the purchaser. This view of negligence is predicated on finding that the purchaser was not a legally intervening cause of the injury. The United States District Court for the Southern District of Florida granted summary judgment for Jennings and this appeal followed.

The Florida District Court of Appeal for the Third District specifically addressed and rejected two of these arguments recently. See Trespalacios v. Valor Corp., 486 So.2d 649 (Fla.App.1986). The Trespalacios court held that Florida law will not apply the theories of strict products liability and negligence to a gun manufacturer who produces and distributes weapons that perform as intended and designed. We are bound by this Florida appellate decision, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

The court in Trespalacios did not specifically address Shipman's argument that the manufacture and sale of the handgun was such an ultrahazardous and inherently dangerous activity as to create strict liability. The few Florida cases that have dealt with the ultrahazardous activity doctrine all have applied it to impose strict liability for damages resulting from activities which occur on land and pose an unusual and unnecessarily high risk of harm to neighboring land owners and their property. See Bunyak v. Yancey & Sons Dairy, Inc., 438 So.2d 891 (Fla.App.1983); Hutchinson v. Capeletti Brothers, Inc., 397 So.2d 952 (Fla.App.1981); Cities Service Co. v. State, 312 So.2d 799 (Fla.App.1975). It is clear that the ultrahazardous activity doctrine is inapposite to these facts under Florida law. Other jurisdictions that have considered this issue are in accord. See Kelley v. R.G. Industries, Inc., 304 Md. 124, 497 A.2d 1143, 1146-47 (1985); Riordan v. International Armament Corp., 132 Ill.App.3d 642, 87 Ill.Dec. 765, 769, 477 N.E.2d 1293, 1297 (1985); Perkins v. F.I.E. Corp., 762 F.2d 1250, 1268 (5th Cir.1985); Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1203-04 (7th Cir.1984).

AFFIRMED.

NICHOLS, Senior Circuit Judge, concurring:

I join in the opinion and judgment of the court, but I wish to explain my position at some further length.

This action by a Florida resident against a foreign (California) corporation, is founded wholly on state law and is in the federal courts wholly because of diversity of citizenship, 28 U.S.C. Sec. 1332. It was not removed, it was originally filed in the United States District Court. In...