Judge Robert R. Ruehlman's order is below.

The City of Cincinnati appealed this decision.
On August 11, 2000, a three-judge panel of
the Ohio Court of Appeals affirmed Judge Ruehlman's order.
Then, the City appealed to the Ohio Supreme Court.
The Ohio Supreme Court ruled that the law suit could go foward
and remanded the case to the trial court.
Cincinnati v. Beretta, 768 N.E.2d 1136 (Ohio 2002).
However, in the interim, Ohio had passed an immunity statute,
2305.401, that became effective Oct. 8, 2001.
Consequently, in April 2003, the city voted to drop the suit.

For a related page, check this:
Summary of United States v. Emerson,
U.S. Court of Appeals for 5th Circuit, Oct. 16, 2001

Transcription independently made from the Court's issued order.





BERETTA U.S.A. CORP., et al.,


CASE NO.: A9902369

(Judge Ruehlman)


. .

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.

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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