Sunday, February 07, 1999
Legal claims rest on negligence or nuisance
BY BEN L. KAUFMAN
The Cincinnati Enquirer
Cities filing suit against handgun manufacturers for the cost of gun-related violence are invoking long-established legal strategies.
• Public nuisance complaints have been used for everything from silencing barking dogs to closing suspected crack houses.
• Product liability suits usually say some legal device is inherently defective and unreasonably dangerousand accuse the manufacturer of negligence.
What is unique is the suits themselves. When New Orleans filed its complaint Oct. 30, it became the first unit of government to sue handgun makers and sellers.
Since then, Chicago, Miami-Dade County, Bridgeport, Conn., and Atlanta have sued. Now, Cleveland and Cincinnati have decided to join the battle.
Defendants include Smith & Wesson Corp.; Sturm, Ruger & Co., and Colt's Manufacturing Co. Inc.
New Orleans lawyers are claiming product liability. They say manufacturers could include high-tech devices that would allow only owners to fire the weapons.
Defendants also have failed to provide adequate warnings, said Cincinnatian Stanley M. Chesley, co-counsel on the New Orleans complaint. “It's more than a nuisance, it's a killer.”
Bridgeport and Miami-Dade are pursuing a similar approach, saying failure to incorporate modern safety features is negligence. Bridgeport also claims the industry is abetting the flow of handguns into the criminal market.
Chicago is pursuing the nuisance argument. It says the industry is flooding suburban stores with handguns meant for Chicago, where handguns sales are banned and few residents may possess one legally. Cincinnati's motion to sue calls for safety devices and echoes the Chicago argument on the easy availability.
A similar strategy already has won initial success in a Brooklyn court.
There, Elisa Barnes, attorney for the estates of nine gunshot victims, persuaded a judge to let her argue that the industry fed New York's illegal market by “overselling” in surrounding states with weak firearms laws.
She said that created the hazard over which she was suing; there has been no verdict.
One thing the suits have in common is the demand for reimbursement for costs — including uninsured hospital bills, policing, courts and prisons — associated with nonfatal shootings, suicides, accidents and homicides.
Previous suits by victims or survivors usually have been won by the defendants. Typically, courts have rejected the defective/dangerous product argument or blamed the shooter or someone who negligently left a handgun lying around.
“This is not really a defective product issue,” said Cincinnati products liability defense attorney Bruce Allman. “It is a political, social issue.”
Unlike tobacco, where there was a concealed danger of addiction, Mr. Allman continued, “There's no doubt what a gun does.”
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