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District of Columbia v. Beretta4/21/2005
t has sufficiently pleaded that cause of action, and the answer depends critically on how prepared we are to loosen the tort from the traditional moorings of duty, proximate causation, foreseeability, and remoteness that have made us reject the plaintiffs' claim of negligence. For the following reasons, we are not convinced that the public nuisance cause of action the District alleges is sufficiently distinguishable from its negligence claim to justify a different result.
The issue was defined pointedly by the majority and dissenting opinions in People ex rel. Spitzer v. Sturm, Ruger & Co., 761 N.Y.S.2d 192 (App. Div.), leave to appeal denied, 801 N.E.2d 421 (N.Y. 2003), where the state's suit for public nuisance essentially mirrored the District's allegations in this case:
Plaintiff's complaint . . . claims that illegally possessed handguns are a common-law public nuisance because they endanger the health and safety of a significant portion of the population; interfere with, offend, injure and otherwise cause damage to the public in the exercise of rights common to all; and that, after being placed on actual and constructive notice that guns defendants sell, distribute and market are being used in crimes, they have, by their conduct and omissions, created, maintained and contributed to this public nuisance, because they manufacture, distribute and market handguns allegedly in a manner that knowingly places a disproportionate number of handguns in the possession of people who use them unlawfully. Plaintiff further claims that defendants are on notice that certain types of guns, and guns sold in certain locales, are disproportionately used in the commission of crimes.
Id. at 194. The dissent in Sturm, Ruger took the position that " negligence analysis, with its requirement of the existence of a duty limited by concomitant considerations of proximate cause, foreseeability, fault, intent, and tempered by notions of the equitable apportionment of economic liability, is inapposite to an action for abatement of a public nuisance brought by the state in the proper exercise of its police powers." Id. at 208 (Rosenberger, J., dissenting).
The majority rejected that proposition, in large part "based on the reasoning and implications of Hamilton v. Beretta, [U.S.A., Corp., supra]." Sturm, Ruger, 761 N.Y.S.2d at 194. It determined that "much of the Court[ of Appeals'] reasoning in dismissing the Hamilton negligent marketing complaint logically, and most aptly, applies to our consideration of this plaintiff's common-law public nuisance claim." Id. at 196. In particular, the Hamilton court's concern about "potentially limitless liability and about the unfairness of imposing liability for the acts of another" was "common to both negligent marketing and public nuisance claims," because to disregard "the existence, remoteness, nature and extent of any intervening causes between defendants' lawful commercial conduct and the alleged harm" would invite "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." Id. at 196-97. Whereas New York decisions validating public nuisance claims had "involve specific harm directly attributable to defendant or defendant's activity," id. at 198 n.2, the present complaint would "impose an undefined duty of care on handgun manufacturers and distributors," id. at 200, despite the "intervention of unlawful and frequently violent acts of criminals - over whom defendants have absolutely no control - who actually, directly, and most often intentionally, cause the cited harm." Id. at 199. The court concluded that
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