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City of Chicago v. Beretta U.S.A. Corp.11/18/2004
rge this court to conclude that plaintiffs have failed to state a cause of action in public nuisance and to leave to the legislature the question of whether to impose additional constraints on the marketing and sale of firearms.
Cases from other jurisdictions in which reviewing courts have rejected public nuisance claims against the gun industry offer more analysis of this question. In Spitzer v. Sturm, Ruger & Co., a New York appellate court observed:
" iving a green light to a common-law public nuisance cause of action today will, in our judgment, likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities.
All a creative mind would need to do is construct a scenario describing a known or perceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets, and/or sells its non-defective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born." Spitzer, 309 A.D.2d at 96, 761 N.Y.S.2d at 196.
Citing an earlier case rejecting a theory of negligent marketing against a gun manufacturer, the Spitzer court observed that " `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.' " Spitzer, 309 A.D.2d at 95-96, 761 N.Y.S.2d at 196, quoting Hamilton v. Beretta USA Corp., 96 N.Y.2d 222, 233, 750 N.E.2d 1055, 1061, 727 N.Y.S.2d 7, 13 (2001). This concern, the court, noted, "is common to both negligent marketing and public nuisance claims." Spitzer, 309 A.D.2d at 95-96, 761 N.Y.S.2d at 196.
Similarly, a federal court of appeals, applying New Jersey law, concluded that:
"Whatever the precise scope of public nuisance law in New Jersey may be, no New Jersey court has ever allowed a public nuisance claim to proceed against manufacturers for lawful products that are lawfully placed in the stream of commerce. On the contrary, the courts have enforced the boundary between the well-developed body of product liability law and public nuisance law. Otherwise, if public nuisance law were permitted to encompass product liability, nuisance law `would become a monster that would devour in one gulp the entire law of tort,' [citation]. If defective products are not a public nuisance as a matter of law, then the non-defective, lawful products at issue in this case cannot be a nuisance without straining the law to absurdity." Camden County Board, 273 F.3d at 540.
In addition, a Florida appellate court affirmed the trial court's dismissal of Miami-Dade County's action against firearms manufacturers, trade associations, and retailers, saying:
"The County's request that the trial court use its injunctive powers to mandate the redesign of firearms and declare that the appellees' business methods create a public nuisance, is an attempt to regulate firearms and ammunition through the medium of the judiciary." Penelas v. Arms Technology, Inc., 778 So. 2d 1042, 1045 (Fla. App. 2001).
A Florida statute expressly reserves the field of regulation of firearms and ammunition to the state legislature (Fla. Stat. ยง790.33 (1999)). In Illinois , cities and counties are free to impose gun regulations within certain limits (see 720 ILCS 5/47-5 (West 2002)). Nevertheless, we agree with defendants that the Florida court's observation is worthy of consideration.
Defendants' position is that the legislative and executive branches of state an
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