Gun Makers Must Face Municipality's Claims for Cost of Violence

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Gun Makers Must Face Municipality's Claims for Cost of ViolenceState court judge allows suit to proceedMary P. GallagherNew Jersey Law Journal December 18, 2001 The first state court in New Jersey to rule on whether gun makers can be sued for the costs of gun violence has held that the case can go forward, at least in part. Essex County Superior Court Judge Arthur Minuskin ruled Dec. 11 that the city of Newark, N.J., could proceed with causes of action grounded in negligence and nuisance, albeit not on product liability or unjust enrichment claims, against more than 15 companies that produce and distribute handguns. Minuskin also found he had jurisdiction over claims against two Connecticut-based trade associations, National Shooting Sports Foundation Inc. and the Sporting Arms and Ammunition Manufacturers Institute Inc., based on their advertising, soliciting, lobbying and use of mass media in New Jersey. The ruling, in James v. Arcadia Machine & Tool, L-6059-99, comes just a month after the 3rd U.S. Circuit Court of Appeals affirmed a federal judge's dismissal of Camden County, N.J.'s suit against gun manufacturers, Camden Cty Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 123 F.Supp.2d 245 (D.N.J. 2000). Minuskin took issue with the 3rd Circuit's narrow view of New Jersey nuisance law. "New Jersey law does not require that plaintiffs prove both injury to real property and violation of public rights," wrote Minuskin, adding that he was not bound to follow the federal court. Newark's complaint asks for injunctive relief and damages for the cost of "additional police protection, emergency and hospital services, pension benefits and health care" as well as for the "loss of investment, economic development and tax revenue due to the lost productivity" caused by gun violence. It alleges that gun manufacturers sell weapons that lack available safety devices and they mislead the public about the safety of guns and their effectiveness in deterring crime. The defendants range from big manufacturers such as Smith & Wesson Corp., Colt's Manufacturing, Browning Arms and Glock Inc. to Ray's Sports Shop on Route 22 in North Plainfield, N.J. The manufacturers also enable guns to get into the wrong hands by knowingly "producing and selling substantially more firearms than could be justified by the legitimate gun market," Newark alleges. The public nuisance claim alleges that the thousands of weapons illegally trafficked into, possessed in or used in Newark interfere with public health, safety and welfare and that the defendants knowingly caused this to happen. The claim for negligent marketing and distribution alleges that the way the defendants distributed and promoted handguns made it reasonably foreseeable that people would be injured by criminal or irresponsible use of the firearms. Minuskin dismissed the three product liability counts for defective design, failure to include safety devices and failure to warn, saying that New Jersey law treats claims for harm from a defective product as a single cause of action and it was preferable to proceed under negligence. He rejected the unjust enrichment claim, finding no basis that Newark conferred any benefit on the defendants for which it is entitled to compensation or that assets went to the defendants that should have gone to the city. Minuskin was not troubled by the lack of New Jersey precedent allowing nuisance claims against the gun industry, commenting that there is also no contrary authority. "New Jersey courts are not loath to enter into new territory where a loss has been suffered," he stated. In any event, "it is to be expected that the case eventually will be decided at the highest level," he wrote. That will happen sooner rather than later if the lawyers for Camden in the federal suit have their way. During oral argument at the 3rd Circuit, Judge Anthony Scirica raised the possibility of certifying the question to the New Jersey Supreme Court, but the panel, which also included Judges Samuel Alito Jr. and Maryanne Trump Barry, did not. On Nov. 30, Camden's lawyers filed a petition for rehearing en banc, urging the court to revisit the certification issue. Last Wednesday, the lawyers -- Peter Nordberg of Berger & Montague and David Kairys of Kairys, Rudovsky, Epstein, Messing & Rau, both of Philadelphia -- filed supplemental papers referring the appeals court to Minuskin's decision. Minuskin noted that at least 30 similar actions have been filed against gun makers since 1998, with divergent results but that "substantial authority supports permitting the municipal plaintiffs to proceed." Claims filed by Wilmington, Del., Atlanta and Boston have been allowed to go forward while others by Philadelphia, Cincinnati, Bridgeport, Conn., Dade County, Fla., and Camden, N.J., were tossed. Kairys says a suit by Philadelphia was dismissed and an appeal is pending before the 3rd Circuit. A motion to dismiss a separate action by the city of Camden has been pending since July with Camden County Superior Court Judge Raymond Drozdowski, says a lawyer for the city, Raymond Trujillo, a partner with Cherry Hill, N.J.'s Trujillo, Rodriguez & Richards. None of the cases that have survived motions to dismiss have yet gone to trial but are in the discovery stage, says one of Newark's lawyers, Terry Bottinelli, a partner with Herten, Burstein, Sheridan, Cevasco, Bottinelli & Litt in Hackensack, N.J. George Kachmar III, who heads a Hackensack firm representing the trade group defendants, declines to comment. John Slimm, a partner with Cherry Hill's Marshall, Dennehey, Warner, Coleman and Goggin, for Phoenix Arms, could not be reached for comment. New Jersey attorneys for the other defendants did not return calls seeking comment. http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=law/View&c=Article&cid=ZZZ7B98WCVC&live=true&cst=1&pc=0&pa=0&s=News