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City of Cincinnati v. Beretta U.S.A. Corporation6/12/2002
.A. Corp. (D.N.J.2000), 123 F.Supp.2d 245, 264, affirmed (C.A.3, 2001), 273 F.3d 536. Nevertheless, even this cause of action fails because the reach of public-nuisance law does not go as far as the city would have us extend it.
. Admittedly, the law of nuisance appears at first glance to be broad enough to encompass virtually any type of conduct. For example, 4 Restatement of the Law 2d, Torts (1977), Section 821B, cited with approval by the majority, broadly defines what may qualify as an actionable public nuisance. Similarly, this court has described the concept of nuisance in broad terms so as to include "the doing of anything, or the permitting of anything under one's control or direction to be done without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his legal rights." (Emphasis added.) Taylor v. Cincinnati (1944), 143 Ohio St. 426, 28 O.O. 369, 55 N.E.2d 724, paragraph two of the syllabus. Despite the arguably broad reach of the public-nuisance tort, however, judicial restraint counsels against this court extending it to the allegations of the city's complaint.
. First, the city's allegations of harm cut against holding the named defendants responsible under a public-nuisance theory. The defendants' allegedly wrongful conduct would never ripen into a public nuisance without the conduct of various unnamed third parties, such as criminals and persons who negligently allow minors to obtain guns. In other words, the defendants' marketing and distribution practices cause harm only through intervening actions of persons not within the defendants' control. Where acts of independent third parties cause the alleged harm, it cannot be said that the defendants-here, gun manufacturers, trade associations, and a gun distributor-have the requisite degree of control over the source of the nuisance to allow liability. Philadelphia v. Beretta U.S.A. Corp., 277 F.3d at 422; Camden Cty Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d at 541.
. Second, to allow the public-nuisance doctrine to reach the defendants in this case amounts to an unwarranted legislative judgment by this court. By its decision today, the majority subjects the defendants to potential nuisance liability for the way they design, distribute, and market lawful products. In extending the doctrine of public nuisance in this manner, this court takes the ill-advised first step toward transforming nuisance into " `a monster that would devour in one gulp the entire law of tort.' " Camden Cty Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d at 540, quoting Tioga Pub. School Dist. v. U.S. Gypsum Co. (C.A.8, 1993), 984 F.2d 915, 921; see, also, Philadelphia v. Beretta U.S.A. Corp. (E.D.Pa.2000), 126 F.Supp.2d 882, 909, affirmed (C.A.3, 2002), 277 F.3d 415. Even the Restatement, which itself broadly defines the concept of nuisance, counsels courts against declaring a given activity to be a public nuisance "if there has been established a comprehensive set of legislative acts or administrative regulations governing the details of a particular kind of conduct." 4 Restatement, Section 821B, Comment f. Where, as here, the defendants are subject to extensive federal regulation concerning their activities, the majority's decision to allow a nuisance claim is inappropriate.
. For the foregoing reasons, I respectfully dissent.
Lundberg Stratton, J., concurs in the foregoing dissenting opinion.
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