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December 20, 2000


The opinion of the court was delivered by: Schiller, J.,

  O P I N I O N


The instant action is a high profile case brought by the City of Philadelphia and certain civic organizations against the gun industry. At the outset, I caution the public to appreciate what this case is not about, just as we must strive to understand what this case truly concerns. Primarily, this case is not about the Second Amendment and the right to bear arms. Rather, this case involves the plaintiffs' claims that the gun industry's methods for distributing guns are negligent and a public nuisance.

The plaintiffs originally filed their complaint in the Pennsylvania Court of Common Pleas for the County of Philadelphia. Beretta U.S.A. Corp., acting on behalf of itself and other gun manufacturers,*fn1 removed the action to this Court and filed a motion to dismiss, challenging (1) the City's power to sue under state law; (2) the standing of the various civic organizations to bring suit; (3) the plaintiffs' ability to state a cause of action for public nuisance; or (4) on negligence grounds. I have jurisdiction pursuant to 28 U.S.C. § 1441 (1993) (removal) and 28 U.S.C. § 1332 (1993) (diversity of citizenship). Having reviewed the complaint, the motion to dismiss, the scholarly briefs, arguments before this Court by all parties, and the applicable law, I find the plaintiffs lack standing and cannot recover under any legal theory asserted. Therefore, I am dismissing this case.


In considering defendants' motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may only look to the allegations in the complaint, exhibits attached thereto, any reasonable inferences therefrom, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d. Cir. 1988). The court must view the complaint in the light most favorable to the plaintiff, see Tunnell v. Wiley, 514 F.2d 971, 975 n. 6 (3d Cir. 1975); Rothman v. Specialty Care Network, Inc., No. Civ. A. 00-2445, 2000 WL1470221 at *3 (E.D.Pa. Oct. 3, 2000), and take well pleaded allegations as true. See Colburn v. Upper Darby Township, 838 F.2d 663, 664-65 (3d Cir. 1988). However, "a court need not credit a complaint's `bald assertions' or "legal conclusions.'" Pennsylvania v. Rand Finan. Corp., No. Civ.A.99-4209, 2000 WL 1521589 at *2 (E.D.Pa. Oct. 3, 2000) (quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). When no set of facts could be proven which would guarantee a right to relief, the case must be dismissed. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1391 (3d Cir. 1993).

A similar standard is used when ruling on a motion to dismiss for lack of standing. See Warth v. Seldin, 422 U.S. 490, 503 (1975). A motion challenging standing implicates the court's jurisdiction, and falls under the rubric of Fed.R.Civ.P. 12(b)(1). See Maio v. Aetna Inc., 221 F.3d 472, 482 n. 7 (3d Cir. 2000); Society Hill Towers Owners Ass'n v. Rendell, 210 F.3d 168, 175 (3d Cir. 2000). The court must accept all material allegations of the complaint as true, and construe facts in favor of the complaining party. See Warth, 422 U.S. at 503. In addition, a court may consider affidavits which support a finding of standing. See id.*fn2


Before turning to the allegations of the complaint, it may be helpful to briefly summarize the federal and state laws regulating the sale and distribution of firearms in the United States and in the Commonwealth of Pennsylvania. Gun manufacturers must be licensed by the federal government in order to produce, deal, and ship firearms in interstate commerce. See 18 U.S.C. § 922(a)(1) (2000). Manufacturers may only sell to licensed importers, licensed dealers, or licensed collectors. See 18 U.S.C. § 922 (a)(2) (2000). Licensed dealers, in turn, may only sell to those who have been cleared by the Federal Bureau of Investigations (FBI). See 18 U.S.C. § 922(t)(1) (2000). The law also establishes age limits for purchasers of guns and ammunition. See 18 U.S.C. § 922(b)(1) (2000). Additionally, licensees may not sell firearms to individuals who are felons, drug users, inmates of mental institutions, illegal aliens, subject to domestic restraining orders, or those convicted of crimes of domestic violence. See 18 U.S.C. § 922(d)(1)-(9) (2000). Those individuals are also prohibited from possessing firearms which affect interstate commerce. See 18 U.S.C. § 922(g)(1)-(9) (2000). No one is permitted to sell firearms to a juvenile. See 18 U.S.C. § 922 (x)(1) (2000). It is also unlawful for anyone to attempt to acquire a firearm by making a false statement.

The Pennsylvania Uniform Firearms Act supplements the federal scheme. See 18 Pa. Cons. Stat. Ann. § 6101 et seq. (West 2000) ("UFA"). This comprehensive statute, among other things, enables reputable prospective dealers to obtain licenses from the police for the sale of firearms to consumers, see UFA § 6113(a), forbids licensed dealers from violating any provision of the UFA, see UFA § 6113(a)(1), and requires dealers to keep written records for the sale of each firearm, see UFA § 6111, 6113(a)(2). Those seeking to purchase guns must undergo a background check by the Pennsylvania Police. See UFA § 6111. A sale under circumstances intended to provide a firearm to an individual ineligible to possess it constitutes a felony. See UFA § 6111(g)(2). With this background, I now turn to the allegations in the complaint.

FACTS ALLEGED IN THE COMPLAINT The City of Philadelphia and a number of civic organizations filed a 34-page complaint purporting to connect gun violence in the city to the defendant gun manufacturers. The City of Philadelphia ("City") sues both in its sovereign and in its "individual" capacities for, respectively, harm to its citizens and municipal costs related to gun violence. Cmplt. at ¶ 2. Joining Philadelphia as plaintiffs are ASPIRA, Inc., Guardian Civic League, Residents Advisory Board, Northeast Home and School, and Philadelphia Citizens for Children and Youth. Cmplt. at ¶¶ 3-7. I will refer to these five organizations collectively as the "organizational plaintiffs." The Guardian Civic League aims "to improve relations between the Philadelphia Police Department and minority communities, to recruit minority officers, and to work toward the elimination of racial discrimination." Cmplt. at ¶ 3. ASPIRA provides educational, leadership, and community support services for Puerto Rican and Latino youths and parents. Cmplt. at ¶ 4. The Residents Advisory Board represents tenants who inhabit the Philadelphia Housing Authority properties on quality of life issues. Cmplt. at ¶ 5. Northeast Home and School is a organization for parents and students of a public high school, and Philadelphia Citizens for Children and Youth is a child advocacy organization. Cmplt. at ¶¶ 6-7. The organizational plaintiffs ostensibly sue for their own costs and on behalf of harm suffered by their members. Cmplt. at ¶¶ 3-7.

The plaintiffs' core allegation is that the defendants' marketing and distribution schemes are responsible for placing guns where they do damage to residents of the City. Plaintiffs allege that the defendants know, or willfully avoid knowing, that their distribution channels allow guns to fall into the hands of criminals and children. First, the plaintiffs allege that some individuals, who have passed a background check by the Pennsylvania Police, lawfully purchase one or more firearms. Cmplt. at ¶ 24. These buyers, called "straw buyers" by the plaintiffs, then resell their weapons to felons and others unable to legally obtain or possess firearms. Cmplt. at ¶¶ 24-28. The plaintiffs accuse the gun manufacturers of knowing which federally licensed dealers are more likely to sell guns to straw buyers. Cmplt. at ¶¶ 31, 40. They seek to fault the gun manufacturers for failing to monitor and supervise federal firearms licensees.

Second, the plaintiffs also allege that the defendants' marketing schemes are designed to appeal to criminals. Cmplt. at ¶¶ 58-59. Lastly, the plaintiffs complain that the gun industry advertises its guns as safe or beneficial for use in the home, while the presence of guns increases the risk of suicide and domestic violence involving firearms. Cmplt. at ¶¶ 62-63. Plaintiffs' complaint invokes negligence, negligent entrustment, and public nuisance liability.


This court finds that Pennsylvania law governs all state law claims in this action. See Peerless Heater Co. v. Mestek, Inc., Civ. A. No. 98-CV-6532, 2000 U.S. Dist. LEXIS 6664, at *34 n. 13 (E.D.Pa. May 11, 2000). In order to forecast how Pennsylvania's Supreme Court would resolve the many unsettled questions of state law which this complaint raises, a federal court must consider "relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand." Markel v. McIndoe, 59 F.3d 463, 473 n. 11 (3d Cir. 1995) (quoting McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 663 (3d Cir. 1980)).

I. Philadelphia Is Barred from Filing Suit under the Uniform Firearms Act

In Pennsylvania, the Uniform Firearms Act,18 Pa. Cons. Stat. Ann. § 6101 et seq. (West 1999) ("UFA") regulates the possession and use of firearms. Pennsylvania's Supreme Court has found that UFA § 6120 deprives the City of Philadelphia of the power to regulate firearms such as assault weapons. See Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996). Today, I hold that the UFA also deprives the City of the power to sue in the role of parens patriae.*fn3

A. This lawsuit is a form of regulation barred by UFA § 6120

In 1996, the Pennsylvania Supreme Court dispatched a prior attempt by the City to regulate firearms within its boundaries. See Ortiz v. Commonwealth, 681 A.2d 152 (Pa. 1996). In Ortiz, Philadelphia and Pittsburgh attempted to enjoin the UFA's application to municipal regulations on assault weapons. See id. at 154. The Commonwealth Court denied their petition, and the Pennsylvania Supreme Court affirmed, observing that Philadelphia does not have an intrinsic right to "maintain peace on its streets through the regulation of weapons." See id. at 154, 156. As a matter of constitutional power, a home rule municipality may not exercise any power which the General Assembly has taken away by general statute. See id. (citing Pa. Const. art. IX, § 2). The court further held that the regulation of firearms was particularly appropriate for state legislation because the ownership of firearms is constitutionally protected in Pennsylvania. See id. Paraphrasing the state constitutional guarantee, the court concluded that Philadelphia could not abridge the right to bear arms because that right "shall not be questioned." See id. (quoting Pa. Const. art. I, § 21).

What the City cannot do by act of the City Council it now seeks to accomplish with a lawsuit. The United States Supreme Court has recognized that the judicial process can be viewed as the extension of a government's regulatory power. As the court explained, "[s]tate power may be exercised as much by a jury's application of a state rule of law in a civil lawsuit," as by regulation or ordinance. Id. at 572 n. 17; see also Geier v. American Honda Motor Co., ___ U.S. ___, 120 S.Ct. 1913, 1925 (2000); Int'l Paper Co. v. Oullette, 479 U.S. 481, 495 (1987); New York Times v. Sullivan, 376 U.S. 254, 265 (1964). Similarly, the City's instant action seeks to control the gun industry by litigation, an end the City could not accomplish by passing an ordinance. Under Pennsylvania law and by unequivocal Pennsylvania Supreme Court precedent, the power to regulate firearms within the state now lies exclusively with the state legislature.

B. The lawsuit is barred by the UFA Amendment, § 6120(a.1)

A 1999 amendment to the UFA also deprives the city of the power to sue because it specifically bars a variety of municipal suits against gun manufacturers. The UFA Amendment provides:


(1) No political subdivision may bring or maintain an action at law or in equity against any firearms or ammunition manufacturer, trade association or dealer for damages, abatement, injunctive relief or any other relief or remedy resulting from or relating to either the lawful design or manufacture of firearms or ammunition or the lawful marketing or sale of firearms or ammunition to the public.

(2) Nothing in this subsection shall be construed to prohibit a political subdivision from bringing or maintaining an action against a firearms or ammunition manufacturer or dealer for breach of contract or warranty as to firearms or ammunition purchased by the political subdivision.

UFA § 6120(a.1) (West 1999).*fn4 The statute defines "political subdivision" to include any "home rule charter" municipality or city. UFA § 6120(b).

1. Plain meaning

The clear meaning of the UFA Amendment prohibits home rule municipalities such as Philadelphia from suing gun manufacturers for the production and distribution of firearms, with limited exclusions for contract or warranty actions specified in the second paragraph. See UFA § 6120(a.1).

There is a presumption of legitimacy of statutes, and in its absence of an ambiguity, a statute is to be given its plain meaning. See 1 Pa. Cons. Stat. Ann. § 1921(b) (West 1995); Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982). The statute prohibits cities from bringing or maintaining suits against the gun industry. The statute clearly refers to nuisance actions because it mentions "abatement." UFA § 6120(a.1).*fn5 The City argues that the statute only precludes suit for the "lawful" manufacture of firearms and permits the City's suit because it alleges unlawful conduct. However, the drafters of the UFA Amendment chose to withdraw contract and warranty actions from the UFA Amendment's ambit, UFA § 6120(a.1)(2), but left no separate exclusion for suits alleging "unlawful" conduct.*fn6 Therefore, the plain language of the UFA Amendment bars this suit.

2. Impetus for the statute

3. Legislative History

The City points to legislative history to support its claims that the legislature never meant to prohibit municipal suits alleging unlawful conduct. As Judge Dalzell of this court recently reminded us, the use of legislative history in statutory interpretation is akin to "entering a crowded cocktail party and looking over the heads of the guests for one's friends." U.S. v. Lee, 82 F. Supp.2d 384, 387 n. 14 (E.D.Pa. 2000) (quoting Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J. concurring)). Even where a court may look at, inter alia, the occasion and necessity for the statute, the circumstances under which it was enacted, contemporaneous legislative history, and legislative interpretations, see 1 Pa. Cons. Stat. Ann. § 1921(c); see Borough of Glendon v. Dep't of Envt'l Resources, 603 A.2d 226 (Pa. Commw. Ct. 1992), the remarks of an individual legislator in legislative debates represent his or her own view and are not relevant to ascertaining the intent of the Assembly as a whole. McCormick v. Columbus Conveyer Co., 564 A.2d 907, 910 n. 1 (Pa. 1989); Martin v. Soblotney, 466 A.2d 1022, 1026 (Pa. 1983). In contrast, comments or reports of a committee or commission may guide interpretation. See 1 Pa. Cons. Stat. Ann. § 1939 (West 1995); Hatter v. Landsberg, 563 A.2d 146 (Pa.Super. Ct. 1989).

The instant case provides an excellent example of why legislative history is so unreliable. The City primarily relies on the statements of individual legislators expressing their own opinions that the bill which became UFA Amendment permitted suits alleging unlawful conduct. While the City can point to legislators advocating its point of view, there are others which saw the bill differently. In fact, a review of the legislative history of the statute shows that the driving animus behind the UFA Amendment was to prohibit this very case.

C. The UFA Amendment is Constitutional

Fearing the UFA Amendment might bar its suit, the City has also attacked the statute's constitutionality. The thrust of its argument is that the passage of the UFA Amendment violates "due process" and the separation of powers between the Pennsylvania legislature and the courts. In essence, the City claims that the enactment of the UFA Amendment in 1999 came after its cause of action had already vested. Therefore, Philadelphia claims, the deprivation of its right to sue violated both the separation of powers doctrine and due process protections in the Pennsylvania Constitution. Unfortunately, the City's brief is a pastiche of federal and state constitutional case law, making it difficult to tell whether they assert claims under the Pennsylvania or federal constitution. In either event, the City's challenge cannot succeed.

1. Federal Constitution

I will quickly dispose of the City's challenge under the federal constitution. Cities receive no protection under the federal constitution for actions of the state legislature. Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79 (1907). In Hunter, the U.S. Supreme Court rejected an argument that the due process clause protected a municipal entity from increased taxation as the result of a state legislative scheme to consolidate two cities. Rather than resting on a narrow holding, the court wrote, "Municipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them." Id. at 178. The state, then, may retake or withdraw all such powers provided such action is consistent with the state constitution and law.*fn7 See id.; City of Trenton v. New Jersey, 262 U.S. 182 (1923); see also Sch. Dist. of Philadelphia v. Pennsylvania Milk Mktg. Bd., 877 F. Supp. 245 (E.D.Pa. 1995) (holding state-created school board cannot sue another part of the state for constitutional violations); Northwestern Sch. Dist. v. Pittenger, 397 F. Supp. 975 (W.D.Pa. 1975) (same). While Philadelphia claims that the legislature could no longer abolish the City entirely, the extent to which the Pennsylvania legislature may restrict Philadelphia's powers is best examined under state law.

2. Pennsylvania Constitution

a. Municipal power may be revoked under the Pennsylvania Constitution

The legislature may contract the power of home rule municipalities such as Philadelphia. Therefore, to the extent that Philadelphia could ever sue in a governmental capacity for negligence and public nuisance, the legislature properly revoked that power. The Pennsylvania Constitutions provides, "A municipality which has a home rule charter may exercise any power or perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time." Pa. Const. art. IX § 2 (emphasis added); see also Ortiz v. Commonwealth, 681 A.2d 152, 156 (Pa. 1996). Thus, the Constitution makes the mass of municipal power a matter for the legislature to expand or contract. This realization must precede any notion of municipal "rights" against the state legislature.

The City's instant suit is, in reality, an application of power which has been primarily entrusted to the state, and which the state may reclaim at its discretion. I have already explained why the instant suit amounts to a regulation — a classic display of governmental power. See Geier, ___ U.S. at ___, 120 S.Ct. at 1925; Int'l Paper Co., 479 U.S. at 495; New York Times, 376 U.S. at 265. This is particularly true in this suit. The City pursues negligence and public nuisance claims on behalf of the citizens of Philadelphia. In other words, it has admitted that one of the bases for its negligence suit is its parens patriae power. As the U.S. Supreme Court noted:

The concept of parens patriae is derived from the English constitutional system. As the system developed from its feudal beginnings, the King retained certain duties and powers, which were referred to as the "royal prerogative." The powers and duties were said to be exercised by the King in his capacity as "father of the country" . . . In the United States, the "royal prerogative" and the "parens patriae" function of the King passed to the States.

Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972) (emphasis added); Nat'l Wood Preservers v. Commonwealth, 414 A.2d 37, 42-43 (Pa. 1980); Commonwealth v. Phillip Morris, Inc., 736 A.2d 693 (Commw. Ct. 1999) (Kelley, J. dissenting) (discussing basis for suit brought by Pennsylvania Attorney General against tobacco industry); Ganim v. Smith & Wesson Corp., No. CV 990153198S, 1999 WL 1241909 at * 4-5, notes 5-6 (Conn. Super. Ct. Dec. 10, 1999).

Similarly, the public nuisance claim also seeks to exert traditional state power. The first public nuisance suits were encroachments on the royal domain or public highways. See Restatement (Second) of Torts § 821B cmt. a (1979). By analogy, the right to sue for public nuisance also passed to the states and to their surrogates. States, in turn, delegated some of the responsibility for pursuing such claims to the cities. See H.G. Wood, A Practical Treatise on the Law of Nuisances 770-72 (1875). Professor Wood, whom the plaintiffs described as "the leading authority on 19th Century nuisance law," Resp. in Opp. at 15, stated:

A municipal corporation derives all of its powers from the legislature. It may do any act which it is authorized to do by that body, within the constitutional exercise of its powers, and all acts that are fairly and legitimately incident to the powers granted, but it cannot lawfully go beyond that point . . . The charter, and special acts in addition thereto, if there are any, are the measure of power, and, when it exceeds those powers, its acts are unlawful, unwarranted, and afford no protection whatever to those acting under them. ¶ Therefore, a municipal corporation has no control over nuisance existing within its corporate limits except such as is conferred upon it by its charter or by general law.

Id. at 770-71. Accordingly, the City's suit is based on power it received from the Commonwealth. The legislature may properly restrict such municipal exercises of traditional state power. See id.

The City argues that the legislature may not revoke such power at this point because preventing the city from suing the gun industry would violate "due process" and the Pennsylvania "separation of powers" doctrine. Primarily, the City relies on Gibson v. Commonwealth, 415 A.2d 80 (Pa. 1980). An examination of Gibson demonstrates why the City's argument is infirm. In Gibson, a dam overflowed during a heavy rainstorm and flooded the downstream town. See id. at 81. The plaintiffs were individuals who sought to sue the Commonwealth for its negligent supervision of a dam. See id. At the time of the suit, sovereign immunity had been abolished by the courts, and the legislature had not yet reenacted sovereign immunity by statute. See id. The legislature then passed the Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. § 5110 et seq., with a provision explicitly applying the Act to claims which arose before the statute was enacted. The Pennsylvania Supreme Court declined to give the statute a retroactive effect, finding that the legislature could not eliminate an individual's rights which had accrued under existing law. The court relied on the Due Process Clause of the Fourteenth Amendment, the Open Courts Clause of the Pennsylvania Constitution, Pa. Const. art. I § 11,*fn8 and the separation of powers doctrine. See id. at 160-164.

However, nothing in Gibson suggests that its rule was meant to restrict the legislature when apportioning state power to municipalities. The Gibson Court was rightly concerned about encroachments by the legislature on judicial power in "cases of disputed right, and that [the courts] shall administer justice `by the law of the land' and `by due course of law.'" Id. at 161. The issue here is not whether the legislature eliminated a right or remedy. Rather, the question is whether the legislature acted within its prerogative, secured by constitutional text, to restrict Philadelphia's parens patriae power or to reign in Philadelphia's power to prosecute perpetrators of public nuisance. It did. See Pa. Const. art. IX § 2; Ortiz v. Commonwealth, 681 A.2d 152, 156 (Pa. 1996). The City cannot limit the legislature's power by seeking refuge in Pennsylvania's Bill of Rights. To expand the rights of political entities is to aggrandize their power. See Texas Worker's Compensation Comm'n v. Bridge City, 900 S.W.2d 411, 414 (Tex.App. 1995) (cities cannot use the sword of due process of law and other provisions of a state constitution's Bill of Rights to invalidate the laws that govern them).

The legislature's action accords with other cases in which municipalities have filed suit against the gun industry. In Ganim v. Smith & Wesson Corp., No. CV 990153198S, 1999 WL 1241909 (Conn. Super. Ct. Dec. 10, 1999), a court dismissed such a suit finding that the municipality had no statutory or common law authority to recover expenditures. See id. at *5-6. The court reasoned that when deciding whether a municipality has statutory authority for a certain action, one first looks for statutory authority to justify the city's action. See id. at *6.

The only court to conclude that the state lacks the authority to abrogate a city's suit against the gun industry did so pursuant to the vagaries of that state's constitutional doctrine. See Morial v. Smith & Wesson, 98-18578, 2000 WL 248364, at *2-3 (La. Civ. Dist. Ct. Feb. 28, 2000). Louisiana's high court had ruled that the Home Rule provision in its state constitution required the city's powers to be broadly construed, and preserved any powers the city had. See id. (citing Francis v. Morial, 455 So.2d 1168 (La. 1984)). Accordingly, the state of Louisiana could not revoke a home rule charter function. See id. The Louisiana legislature may not be able to abrogate municipal power, but Pa. Const. art. IX § 2 explicitly grants the Pennsylvania legislature that ability.

b. The City had no "accrued" causes of action for negligence or public nuisance

In addition, the Pennsylvania constitution only prohibits the abolition of causes of action which have "accrued" under state law. See Gibson, 415 A.2d at 161. As I shall explain in more detail below, infra sections IV-V, the facts here do not create a claim for public nuisance or negligence. Accordingly, the 1999 UFA Amendment did not abolish an existing cause of action when it prohibited the City from suing the gun manufacturers.

D. Municipal Cost Recovery Rule

The City has also argued that in addition to suing in its governmental capacity to abate a public nuisance, it seeks reimbursement for direct harm related to gun violence. Complt. at ¶ 2, 79. In particular, the City seeks reimbursement for:

public funds expended for prevention and limitation of access to handguns by persons intent on crime or prohibited to purchase or possess [them] under Pennsylvania or federal law; the costs or responding to resulting incidents of handgun violence and crime; the costs of dealing with resulting deaths and injuries' and ...

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