the plaintiffs have not filed a motion to join any individuals
as new plaintiffs, nor does the docket reflect that anyone has
tried to intervene.
Thus, I am compelled to dismiss the plaintiffs' claims for lack of
standing because of their failure to satisfy all three necessary
elements of associational standing enunciated in Warth.
III. Role of a Trial Court in Developing New Law
Even assuming, for present purposes, that the City could sue and
that the organizational plaintiffs do have standing, they still
could not prevail in this action as a matter of law.*fn12 To lend
credence to their novel legal theories, plaintiffs categorize
their claims for negligence and public nuisance as traditional
state causes of action. But current negligence and public nuisance
law are not nearly as malleable as they suggest. Trial courts
should be circumspect before creating rights ex nihilo. Judge
Learned Hand once observed, it is not "desirable for a lower court
to embrace the exhilarating opportunity of anticipating a doctrine
which may be in the womb of time but whose birth is distant."
Spector Motor Service, Inc. v. Walsh, 139 F.2d 809, 823 (2d Cir.
1943) (Hand, J., dissenting).
IV. The Plaintiffs Have Failed to State a Claim Grounded In
Negligence or Negligent Entrustment
Plaintiffs have also failed to allege sufficient facts to make a
claim for negligence. The elements of a negligence claim include:
a legal duty, a breach of that duty, a causal relationship between
the defendant's negligence and plaintiff's injuries, and damages.
See Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998); Morena v. S.
Hills Health Sys., 462 A.2d 680 (Pa. 1983). For the reasons
outlined below, no legal duty exists upon these defendants to
protect citizens from the deliberate and unlawful use of their
products. In addition, the lack of proximate cause bars recovery
as a matter of law.
A. Lack of Legal Duty
Foremost among the requirements for a negligence tort is the
requirement that the defendant owe a legally recognized duty of
care to the plaintiff. See Althaus v. Cohen, 756 A.2d 1166, 1168
(Pa. 2000); Gibbs v. Ernst, 647 A.2d 882, 890 (Pa. 1994). The
question of whether or not gun manufacturers have a legal duty to
cities and to individual victims of gun violence inflicted by a
non-defective weapon has generated a great debate among various
courts. In a recent case before the Pennsylvania Supreme Court, a
person injured by a non-defective firearm sought to impose
liability on manufacturer of that gun, but the court declined to
address the issue of liability on appeal. See Haines v. Raven
Arms, 640 A.2d 367, 369 n. 1 (Pa. 1994). No reported decision by a
Pennsylvania court directly discusses whether liability would
arise from these facts.
Most courts which have considered this issue have concluded that
no duty exists. See First Commercial Trust Co. v. Colt's Mfg. Co.,
77 F.3d 1081 (8th Cir. 1996); Bubalo v. Navegar, Inc., No.
96C3664, 1997 U.S. Dist. LEXIS 8551, *25-26 (N.D.Ill. June 13,
1997) ("Bubalo I") modified in part by Bubalo v. Navegar, Inc.,
No. 96C3662, 1998 U.S. Dist. LEXIS 3598 (N.D.Ill. 1998) ("Bubalo
II"); Patterson v. Rohm Gesellschaft, Co., 608 F. Supp. 1206
(N.D.Tex. 1985); Riordan v. Int'l Armament Corp., 477 N.E.2d 1293, 1295
(Ill.App.Ct. 1985) (citing Linton v. Smith & Wesson,
127 Ill.App.3d 676, 82 Ill.Dec. 805, 469 N.E.2d 339
(Ill.App.Ct. 1984); Archer v. Arms Tech., Inc., No. 99-912658
(Mich. Cir. Ct. filed May 16, 2000) (slip op.); City of
Cincinnati v. Beretta U.S.A. Corp., No. C-990729, 2000 WL 1133078,
at *9-10 (Ohio Ct. App. Aug. 11, 2000). But see Hamilton v.
Accu-Tek, Inc., 62 F. Supp.2d 802, 825 (E.D.N.Y. 1999) (currently
certified to New York Court of Appeals); Merrill v. Navegar, Inc.,
75 Cal.App.4th 500 (1999) superseded by grant of petition for
review 991 P.2d 755 (Cal. 2000); City of Boston v. Smith and
Wesson Corp., No. 1999-02590 (Mass. Super. Ct. filed July 13,
2000) (slip op.).
In Pennsylvania, whether a duty exists is a matter of law.
Althaus, 756 A.2d at 1169. The Supreme Court of Pennsylvania has
recently set forth a five factor test to determine whether sound
policy dictates that a particular plaintiff is entitled to
protection, including: "(1) the relationship between the parties;
(2) the social utility of the actor's conduct; (3) the nature of
the risk imposed and foreseeability of the harm incurred; (4) the
consequences of imposing a duty upon the actor; (5) and the
overall public interest in the proposed solution." Id.
a. Relationship between the parties
Here, the lack of a relationship between the parties militates
against finding a legal duty of care. See Althaus, 756 A.2d at
1169-70. The defendant gun manufacturers share only the most
tenuous relationship with the city or the organizational
plaintiffs. According to the allegations of the complaint, the
defendants are several steps removed from any contact with the
plaintiffs: the defendants ship their legal products to
distributors who sell them to federal firearm licensees. In turn,
the licensees may sell them to otherwise legal purchasers who
independently commit crimes or unlawfully sell to others who
commit shootings. Complt. at ¶¶ 31-60. The City and the
organizational plaintiffs only have standing to sue (if at all) by
stepping into the shoes of victims, or by paying for response and
support services on their behalf.
b. Social utility
The plaintiffs argue that the social value of defendants' legal
distribution of firearms is undercut by the harm done to city
residents. For this contention, plaintiffs rely primarily on
Suchomajcz v. Hummel Chem. Co., 524 F.2d 19 (3d Cir. 1975). In
Suchomajcz, the Third Circuit found the defendant, although
making legal sales, was alleged to have actually known of illegal
resales by its vendee and several court injunctions against the
vendee forbidding those resales. See id. 23-25. In that situation,
the Third Circuit found the social utility of the defendant
manufacturer's sales was undercut by the vendees' known illegal
sales. See id. at 25. Therefore, the court impressed a legal duty
upon the manufacturer toward third parties injured as a result of
the firecrackers it sold. See id. at 25. Here, in contrast, more
than 99% of the gun maker's vendees transact their business
lawfully and do not routinely sell guns to "straw buyers."
Indeed, public policy would seem to be opposed to a duty on gun
manufacturers to police the federally licensed firearms dealers.
When given the opportunity, the legislature has refused to extend
liability into the area which the City proposes. See 18 Pa. Cons.
Stat. Ann. § 6120(a.1) (West 1999). In addition, the gun industry
is already under heavy regulation and a carefully calibrated
statutory scheme at the federal and state levels. See 18 U.S.C. § 921
et seq. (2000) (establishing licensing system and other
regulations for interstate firearms sales); 27 C.F.R. § 178-179; 18
Pa. Cons. Stat. Ann. § 6101 et seq. (West 1999) (Pennsylvania
Uniform Firearms Act). In particular, Pennsylvania makes it a
felony to directly sell guns to a specified group of prohibited
purchasers. See id. at § 6125. Thus, Congress and the Pennsylvania
legislature has already made its determination of which firearms
transactions it deems socially useful.
In urging the court to recognize a duty, the plaintiffs, at oral
argument, analogized the current case to dram shop suits. Trans.
Oral Arg. at 57. Plaintiffs assert that just as the licensed
barkeep who provides alcohol to the visibly drunk may be found
liable, so too gun manufacturers should be held accountable for
providing weapons to dealers who they `know' will resell the guns.
The analogy fails for a simple reason: dram shop liability was
established by statute, not by the courts. See 47 P.S. § 4-497
(West 1997) (establishing and defining scope of liability of
licensed alcohol vendors); see also Jason G. Bates, Recent
Decision, 3 Duq. L. Rev. 793, 797 (1995).