Have you heard about the first appellate court ruling which has shot full of holes and blown to bits the arguments of Anti-Gun Nuts who were trying to blame gun makers and firearms associations for -- well, just about anything they could imagine?
Probably not. Because the national news media have scrupulously avoided any detailed attention to this important case.
In Ohio, the city of Cincinnati sued for millions of dollars seeking reimbursement for police, medical and other municipal services provided as a result of alleged negligence in the design and safety of gun features. A lower trial court dismissed this suit. And the Ohio First District Court Of Appeals (OFDCA) has now agreed.
So, what, exactly, were the Anti-Gun Nuts claiming? Well, just about anything that could be imagined: (1) strict product liability for the defective condition of firearms; (2) strict product liability for failure to warn of the risks of firearms; (3) negligence; (4) negligent failure to warn; (5) unfair and deceptive advertising practices; (6) public nuisance; (7) fraud; (8) negligent representation; and (9) unjust enrichment.
But, the OFDCA was buying none of this. Accusing the city of Cincinnati of using "a shotgun approach," Judge Ralph Winkler said that the city had "nowhere in its 43-page complaint... set forth facts that, if proved, would provide a basis for recovery.... the city has made broad assertions without alleging a direct injury caused by a particular firearm model or its manufacturer."
In his scathing ruling, Judge Winkler noted that if the city of Cincinnati was allowed to recover for its municipal services this would "open a Pandora's box." For example: "The city could sue the manufacturers of matches for arson, or automobile manufacturers for traffic accidents, or breweries for drunken driving.
"Guns are dangerous. When someone pulls the trigger, whether intentionally or by accident, a properly functioning gun is going to discharge, and someone may be killed. The risks of guns are open and obvious.
"We hold that the trial court properly dismissed the city's complaint. The city's claims are too remote and seek derivatively what should be claimed only by citizens directly injured by firearms. The city cannot recover municipal costs. We overrule its assignment of error and affirm the judgment of the trial court."
Now, let's look at some of the particular claims and how they were demolished by the OFDCA:
* First, it was ruled that the city of Cincinnati was not even a proper plaintiff in this case! Why? Because, as a corporate entity, it could "prove no harm to itself in the form of death, physical injury, or emotional distress." Moreover, there wasn't even an allegation of any physical damage to the city's property. Thus, any product liability claims failed as a matter of law.
* Next, nowhere in its 43-page complaint did the city identify even a single defective condition in a particular model of gun at the time it left its particular manufacturer. In fact, out of the complaint's 162 counts, the city's sole assertion naming a single manufacturer and its gun implicated none of the defendants, because the harm was caused by the intentional act of a criminal, not by the gun manufacturer. Thus, "rather than targeting a specific manufacturer, product, and defect, the city makes generic claims against all the manufacturers in an effort to gloss over the fatal omissions in its complaint."
* Regarding the claim that gun manufacturers failed to warn about the dangerousness of their product, the OFDCA dismissed this objection not only because the city failed to identify injuries caused by specific gun-makers, but also "because the manufacturers have no duty to give warnings about the obvious dangers of handguns." At this point, Section 10.37, 147 of the Ohio Products Liability Manual is quoted:
"A manufacturer has no duty to warn of an obvious danger. Knives are sharp, bowling balls are heavy, bullets cause puncture wounds in the flesh. The law has long recognized that obvious dangers are an excluded class. As the colorful Seventh Circuit Judge Richard Posner once wrote in an Indiana federal case, if you 'go to the zoo and put your hand through the lion's cage, and the lion bites your hand off... you do not have an action against the zoo.'"
* As for negligence claims -- that gun-makers and trade associations may be held liable for foreseeable injury inflicted as a result of the criminal or careless acts of third persons -- the OFDCA said foreseeabilty alone is not enough to create liability. In fact, generally, under Ohio law, "there is no duty to prevent a third person from causing harm to another in the absence of a special relationship between the parties." And no such relationships were cited by the city of Cincinnati. It is added that on this basis, "courts have uniformly rejected attempts by plaintiffs to hold gun manufacturers and distributors liable for the criminal misuse of their products."
* A "public nuisance"? No way. The OFDCA points out that the Supreme Court of Ohio has refused to extend the law of public nuisance to the design and construction of products. Also, since selling guns is not illegal, generally speaking, "an activity that is authorized by law cannot be a public nuisance or an absolute nuisance."
* "Unjust enrichment." This claim alleged that the sale of handguns resulted in an increase in the city's expenditures for medical care and law enforcement. But, said the OFDCA, the city "has not, and cannot, allege that its expenditures have conferred a benefit upon any of the [gun] manufacturers. The city has not, and cannot, allege that the [gun] manufacturers have been aware of any so-called benefit (as the "unjust enrichment" law requires -- L.P.). The beneficiaries of the city's expenditures are its own residents, not the [gun] manufacturers." Thus, this claim fails.
* The OFDCA also points out that the city's claims are barred by "the doctrine of remoteness." This doctrine bars recovery for indirect harm suffered as a result of injuries directly sustained by another person. There must be a direct relation between the alleged injury and the defendant's conduct. A US Supreme Court ruling ("Holmes v. Securities Investor Protection Corp., 1992) is cited in which it is said: "[A] plaintiff who complain[s] of harm flowing merely from the misfortunes visited upon a third by the defendant's act [is] generally said to stand at too remote a distance to recover."
In its wonderfully commonsensical ruling against the city of Cincinnati, the OFDCA refers to the city's complaints as suffering from "infirmities." But, to refer to the city's pathetic and embarrassingly ignorant arguments this way, is a gross understatement. It's like saying that on its maiden voyage the "Titanic" took on a little water.
Commenting editorially on this excellent judicial opinion, the Cincinnati Enquirer newspaper declared, in part: "Gun makers should not be held responsible for people who misuse their legal product any more than Ford and General Motors should be sued for homicidal drivers. The lawsuit is a thinly disguised attempt to achieve though litigation what cannot be done through legislation: Put gun makers out of business -- at least in this country.... The city should drop any plans for an appeal and spare taxpayers more silly and wasteful litigation."
Amen!
And Thomas Fennell of the Dallas, Texas, office of Jones, Day, Reavis & Pogue -- who represented the Colt Manufacturing Co. Inc., and was part of the defense team in this case -- says he expects the OFDCA decision "to be a guiding light, not just in Ohio, but in other states." I hope he's right.