This matter is before the
Court on Motion of Defendants, Beretta U.S.A. Corp.,
Bryco Arms, Inc., Colt's Manufacturing Co., Inc., H &
R 1872, Inc., Hi-Point Firearms (incorrectly named as MDS
Supply, Inc., d/b/a/ Hi-Point Firearms), Lorcin
Engineering Co., Inc., North American Arms, Inc., Phoenix
Arms, Smith & Wesson Corp., Sturm, Ruger & Co.,
Inc., Taurus International Manufacturing, Inc., and
Fabrica D'Armi, Pietro Beretta S.P.A. (manufacturing
defendant) and B.L. Jennings, Inc. (distributor
defendant), to dismiss plaintiff's complaint with
prejudice pursuant to Rule 12(b)(6) [note 1] of the
Ohio Rules of Civil Procedure. Upon consideration of the
briefs of the parties and oral argument held before this
Court on September 27, 1999, the motion is granted and
this matter is dismissed with prejudice.
. . . . . In its
complaint, the City seeks to recover from defendant
firearms manufacturers, a distributor and three trade
associations for costs incurred in providing police,
emergency, court, prison and other related services in
connection with shootings which are homicidal, suicidal
or accidental. The City further seeks damages for alleged
diminution in property value and loss of tax payer
revenue, punitive damages and preliminary and permanent
injunctive relief which would require defendants to
change the methods by which they design, distribute and
advertise their products nationally. In the view of this
Court, the City's complaint is an improper attempt to
have this Court substitute its judgment for that of the
legislature, something which this Court is neither
inclined no empowered to do. Only the legislature has the
power to engage in the type of regulation which is being
sought by the City here. Moreover, the City's request
that this Court abate or enjoin the defendants' lawful
sale and distribution of their products outside the City
of Cincinnati exceeds the scope of its municipal powers
and, to the extent it asks this Court to regulate
commercial conduct lawful in other states, violates the
Commerce Clause of the United States Constitution. U.S.
Const. art. I, § 8, cl. 3.
. . . . . Separately
and fundamentally, each of the eight counts of the
complaint which remain (Count
V dealing
with the Ohio Consumer Sales Practices Act having been
withdrawn by the City) fails to state a cause of action
under Ohio law.
. . . . . Count I,
characterized as strict liability for design defect,
fails for a number of reasons. Count I does not comply
with the fundamental requirements for pleading a strict
liability claim. Rather than identifying a specific
product, a specific defect, an identified manufacturer,
and a specific injury with a causal connection, as the
City acknowledges is required under the 1988 Ohio Product
Liability Act, the complaint instead aggregates anonymous
claims with no specificity whatsoever. R.C. 2907.71 et
seq. (1988). (The remaining
counts likewise fail for the same failure of
specificity.) To the extent the City pursues a theory of
collective liability, no recognized theory of collective
liability under Ohio law applies in these circumstances.
Further, neither the law of Ohio nor any other
jurisdiction of which the Court is aware permits recovery
in strict liability for the intentional use of a product
to accomplish an intended result such as homicide or
suicide. Finally, the City seeks to recover for economic
loss. Under the 1988 Ohio Product Liability Act there is
no recovery for economic loss unless the plaintiff is
also entitled to compensatory damages for
"harm" as defined by the Act. No such
"harm" (i.e.,
death, physical injury or damage to property) to the City
is claimed here.
. . . . . Count II,
pled as strict liability failure to warn, fails for all
of the above reasons as well as the fact that under the
Product Liability Act (Section 2307.76) (A) and (B) there
can be liability for failure to warn only if the risk is
not open and obvious or a matter of common knowledge. The
Court finds as a matter of law that the risks associated
with the use of a firearm are open and obvious and
matters of common knowledge.
. . . . . Count III,
pled as negligence in design, distribution and marketing,
and
Count IV, pled as negligent
failure to warn, fail for the same reasons as the strict
liability counts -- improper aggregation of claims; no
applicable theory of collective liability; no recovery in
negligence for "economic loss" of the type
sought here (See
LaPuma v. Collinwood Concrete
(1996), 75 Ohio St. 3d 64, 661 N.E. 2d 714; Chemtrol
v. American Mfgrs. Mut. Ins. Co.
(1989), 42 Ohio St. 3d 40, 537 N.E. 2d 624); and the open
and obvious nature of the danger as to the failure to
warn Count. In addition, under Ohio law, in order to hold
a defendant liable in negligence for the criminal conduct
of a third party, the defendant must owe a duty arising
out of a special relationship between the defendant and
the third party giving rise to an ability to control the
conduct of that third party, or there must be a special
relationship which requires the defendant to protect the
plaintiff. Gelbman v. Second
Nat'l. Bank (1984), 9 Ohio St.
3d 77, 458 N.E. 2d 1262; Simpson
v. Big Bear Stores Co. (1995),
73 Ohio St. 3d 130, 652 N.E. 2d 702. Absent that special
relationship -- which does not exist here -- there is no
duty under Ohio law.
. . ... . [Count V was
withdrawn by the City, as mentioned above.]
. . . . . Count VI
is pled as public nuisance. The City's public nuisance
claim is based on the alleged negligence of the
defendants. Since the Court is compelled to dismiss the
City's negligence claims for the reasons stated, it must
also dismiss the public nuisance claim. See
Metzger v. Pennsylvania O.
& D. R. Co. (1946), 146
Ohio St. 406, 66 N.E. 2d 203. In addition, public
nuisance simply does not apply to the design, manufacture
and distribution of a lawful product. A separate body of
law (strict product liability and negligence) has been
developed to cover the design and manufacture of
products. To permit public nuisance law to be applied to
the design and manufacture of products would be to
destroy the separate tort principles which govern those
activities. Furthermore, a party cannot be held liable in
nuisance absent control of the activity which creates or
maintains the nuisance. Here, the nuisance is the
criminal or reckless misuse of firearms by third parties
who are beyond the control of the defendants. Because
defendants have no ability to control the misconduct of
these third parties, nuisance does not apply for that
reason as well.
. . . . . Counts VII and VIII
allege fraud/fraudulent concealment and negligent
misrepresentation in connection with the defendants'
alleged general assertion that "home ownership of
guns increase home safety and security." There is no
specificity in connection with that generic claim such as
is required to set forth a cause of action for fraud
under Rule 9(b) [note
2] of
the Ohio Rules of Civil Procedure. Nor does the City
plead reliance by the City on such claimed
misrepresentation or that such reliance was the cause of
any of its damages. Furthermore, the statement set out is
merely a statement of opinion of future events which does
not constitute fraud under Ohio law. Indeed, the
statement can be construed to simply reflect that which
is set forth under the Ohio Constitution and the laws of
the State of Ohio, which recognize the legitimate use of
firearms for self-defense. Further, the risks of the use
of the firearms are open and obvious and commonly
recognized and cannot be a basis for fraud or negligent
misrepresentation.
. . . . . As to Count IX,
which is pled in unjust enrichment, that Count fails
because each prior claim fails. Further, as a matter of
law, the City's payments arose out of its duties to its
citizens and were not a benefit conferred on the
defendants.
. . . . . In
addition to the failure of each of the City's substantive
counts to state a cause of action under Ohio law in these
circumstances, additional overarching reasons exist to
grant defendants' 12(b)(6) motion. The claims of the City
are premised on injuries which have occurred to its
citizens, and as such are barred by the doctrine or
remoteness. It is well established that a plaintiff may
not recover derivative damages for injuries to remote
third parties, as the City is attempting to do here. Holmes v. Securities
Investor Protection Corp.
(1992), 503 U.S. 258, 112 S. Ct. 1311; Cincinnati
Bell Tel. Co. v. Straley (1988),
40 Ohio St. 3d 372, 533 N.E. 2d 764; Coyne
v. American Tobacco Co. (1999),
183 F. 3d 488, 495. In addition, absent statutory
authorization, the City may not recover for expenditures
for ordinary public services which it has the duty to
provide. There being no authorizing statute, the City's
attempt to recover such expenditures must be denied.
. . . . . For all
the foregoing reasons, this matter is dismissed with
prejudice and without costs.
. . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[signed]
. . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . Honorable Robert P. Ruehlman
. . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Date: 10-7-99
. . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ENTERED
. . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . OCT 07 1999
Transcription independently made from
the Court's issued order.
[note 1]
Rule 12(b)(6): Every defense, in law or fact, to
a claim for relief in any pleading, whether a claim,
counterclaim, crossclaim, or third-party claim, shall be
asserted in the responsive pleading thereto if one is
required, except that the following defenses may at the
option of the pleader be made by motion: . . . (6)
failure to state a claim upon which relief can be
granted.
[note 2] Rule 9(b): In all
averments of fraud of mistake, the circumstances
constituting fraud or mistake shall be stated with
particularity. Malice, intent, knowledge, and other
condition of mind of a person may be averred generally.
from BLACK'S LAW
DICTIONARY:
averment, noun. A positive
declaration or affirmation of fact; especially an
assertion or allegation in a pleading.
dismissal, noun. Termination
of an action or claim without further hearing, and
especially without trial of the issues involved.
dismissal with prejudice. A
dismissal, usually after an adjudication on the merits,
barring any subsequent action on the same claim.
strict liability. Liability that does
not depend on actual negligence or intent to harm, but
that is based on the breach of an absolute duty to make
something safe; strict liability most often applies
either to ultrahazardous activities or in
products-liability cases. -- Also termed absolute
liability; liability without fault.
unjust enrichment. A benefit obtained
from another, not intended as a gift and not legally
justifiable, for which the beneficiary must make
restitution or recompense.
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