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

Law.com ^ | 18 Dec 2001 | Mary P. Gallagher

[white trash redneck]

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

State court judge allows suit to proceed

Mary P. Gallagher
New 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.

[Zon]

Just wait, alcohol companies are next, then fast food restaurants and junk food makers, it will go on and on until the lawyers have all the money in the world.

Does that mean we can then use lawyer scalps as the preferred currency of choice.

[Colt .45]

And who said the Genes Pool wasn't dead?! Here is proof of it! Blame the gun, blame the manufacturer, but don't blame the cretin who fired the gun!

[aomagrat]

[Redbob]

"(Judge)Minuskin took issue with the 3rd Circuit's narrow view of New Jersey nuisance law...adding that he was not bound to follow the federal court."

Said Minuskin: "I'm a dipsh*t local hack, but I know more about the law than federal appeals court judges!"

[Liberty Ship]

Well, I can't afford it at the moment, but here goes another $300 to the NRA, and $100 each to GOA and JFPO. We can talk all we want, but that is the only way I know how to shoot back legally.

[Redbob]

Right you are. This isn't about winning in court, it's about the 'death by a thousand cuts' approach to ridding the country of gun manufacturers.

[George Smiley]

This is the state that thinks you're too stupid to pump your own gas.

What more need be said?

[aruanan]

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.

Well, why not go after automobile manufacturers? G-d knows cars cause a lot more injury and death due to negligence and nuisance based on the behavior of the users than do guns. Car manufacturers also have far deeper pockets.

[hobbes1]

This is the state that thinks you're too stupid to pump your own gas.

Oddly enough however, we pay the same for gas as most comparable places pay FOR self serve....Talk to me in January/February.

The only one that Profits from pumping your own gas is the Oil company.Prices do not drop accordingly.

NJ doesn't do alot of things right....But....this time....

[George Smiley]

The only one that Profits from pumping your own gas is the Oil company.

Prices do not drop accordingly.

I guess that explains why Full Serve costs more down here.

[jimt]

...and just like education billions actually went directly to the classrooms and NOT for more assistant principals, curriculum advisors, and other bureaucrats.

Houston Independent School District employs somewhere between 2.8 and 3.8 non-teaching employees per teacher, depending on how you figure the average class size. And look at the wonderful results ! Our dropout rate runs over 50% in some demographic groups. What a successful spending plan !

[LaineyDee]

How long before all product manufacturers will be held monetarily responsible for anything and everything their product does?

I thought the same thing. Shall we sue the lumberyards now... when people die in a house fire? How about the swimming pool manufacturers.... when kids drown due to lack of parental supervision? The whole thing is absurd.

[DuncanWaring]

Every product sold would come with a BIG price tag to cover the potential lawsuits over misuse of the product.

That sort of thing destroyed the small-aircraft manufacturing industry in the mid-1980's. Cessna stopped building piston-powered aircraft for about a decade because the lawsuits over truly boneheaded pilot errors were cleaning them out.

[connectthedots]

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.

1. Where in the U.S. Constitution is there any mention of "public rights"?

2. Yes he is bound to follow the federal court. The Constitution and laws on the United States are the supreme law of the land.

3. The defendants should remove this case to federal court and also file a civil rights action against the city for violating a number of their constitutional rights. If the do and prevail, which they will, the city will have to pay damages plus all their legal fees. It is a sure way to get cities to stop this nonsense.

[Ag88]

I'm guessing Case, Schrade, & Buck knife manufacturers are next? Same thing.

Now, suppose a perp drives his truck into a crowded Luby's in NJ and pulls two pistols, but before he can do any damage, some nice lawbreaker with a concealed weapon in her purse plugs him & saves 30 people's lives. There'll be thousands of dollars saved in averted medical expenses. Should the amount of the potential award in the above case be reduced by the estimated savings? Suppose something similar happens every day on a smaller scale? If the economic benefit of firearms in society is found to outweigh the costs, will NJ send the manufacturers and gun associations a check? Should we factor in the averted costs of all the potential damage perps caught by gun-weilding law-enforcement officers could have done but don't because Johnny Law has gun and can arrest them?

[BlackbirdSST]

let me further your suggestion, let us sue Brady, Inc..and all their minions and offshoot groups because they " mislead the public about the safety of guns and their effectiveness in deterring crime." We have facts to back us up about the gun/crime statistics, and the safety factor. They have NOTHING but lies. Of course, that's never stopped them in the past. But I figure, if we can bleed THEM dry, they won't have money to spend on lobbying and frivolous lawsuits. Throw in a suit against them for damages due to people who have been killed because they DIDN'T have a gun to defend themselves and BINGO! We've just solved the gun control problem.

I'll take a piece of that action! When do we start? Blackbird.

[Aric2000]

I warned and I warned, that if the tobaco suits succeeded that the gun manufacturers would be next, then fast food store chains for thier High fat content and then of course the list goes on and on and on and on.

Once you sue a company for a users decisions, and take away the personal responsibility aspect, then all bets are off.

Who needs to raise taxes when you can sue companies for ridiculous amounts of money and get it without raising taxes.

This is ALL about MONEY, it has NOTHING to do with anything else. the aspect of putting gun manufacturers out of business is a good thing to them, but NOT the main thing, they want the money.

Consider it another backdoor tax, without the legislative bother, use the courts to do it instead. Sound familiar to anyone?

[Aric2000]

bttt

Because the lawyers are PIGS!! no offense to defense lawyers!! LOL

[Lazamataz]

New Jersey. Maryland. Massachusetts.

The places where liberty was born, are the sullied ground where liberty is dying.

[Lazamataz]

Well, why not go after automobile manufacturers?

You think that's not on the agenda??!?!?!