Lead Opinion
{¶ 1} On April 28, 1999, plaintiff-appellant, the city of Cincinnati, filed a complaint against fifteen handgun manufacturers, three trade associations, and one handgun distributor, seeking to hold them responsible under nuisance, negligence, and product liability theories of recovery, for the harm caused by the firearms they manufacture, sell, or distribute.
{¶ 2} Rather than file an answer, fifteen of the defendants (“appellees”) moved to dismiss the complaint pursuant to Civ.R. 12(B)(6). The trial court granted the motions to dismiss, finding, inter alia, that (1) the complaint failed to state a cause of action, (2) the claims were barred by the doctrine of remoteness, and (3) appellant could not recoup expenditures for public services. The trial court further ruled that there was no just cause for delay, and appellant appealed. The court of appeals affirmed on similar grounds. The cause is now before this court upon the allowance of a discretionary appeal.
{¶ 3} This case represents one of a growing number of lawsuits brought by municipalities against gun manufacturers and their trade associations to recover damages associated with the costs of firearm violence incurred by the municipalities. There is a difference of opinion as to whether these cases state a viable cause of action. While some courts have allowed this type of case to go forward against a Civ.R. 12(B)(6) motion to dismiss (White v. Smith & Wesson Corp. [N.D. Ohio 2000],
{¶ 4} The trial court granted appellees’ Civ.R. 12(B)(6) motions to dismiss and the court of appeals affirmed. In determining whether the motions were properly granted, we must decide whether the complaint states a cause of action under Ohio law.
{¶ 5} The standard for determining whether to grant a Civ.R. 12(B)(6) motion is straightforward. In order for a complaint to be dismissed under Civ.R. 12(B)(6) for failure to state a claim, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to relief. O’Brien v. Univ. Community Tenants Union, Inc. (1975),
{¶ 6} In addressing the sufficiency of the complaint, we will examine each claim separately. In particular, appellant maintains that it has stated viable causes of action for public nuisance, negligence, and product liability.
A. Public Nuisance
{¶ 7} Appellant alleged in its complaint that appellees have created and maintained a public nuisance by manufacturing, marketing, distributing, and selling firearms in ways that unreasonably interfere with the public health, welfare, and safety in Cincinnati and that the residents of Cincinnati have a common right to be free from such conduct. Appellant further alleged that appellees know, or reasonably should know, that their conduct will cause handguns to be used and possessed illegally and that such conduct produces an ongoing nuisance that has a detrimental effect upon the public health, safety, and welfare of the residents of Cincinnati.
{¶ 8} Appellees advance several reasons why the complaint does not state a cause of action for public nuisance. First, appellees maintain that Ohio’s nuisance law does not encompass injuries caused by product design and construction, but instead is limited to actions involving real property or to statutory or regulatory violations involving public health or safety. We disagree. The definition of “public nuisance” in 4 Restatement of the Law 2d, Torts (1965) (“Restatement”) is couched in broad language. According to the Restatement, a
{¶ 9} Moreover, although we have often applied public nuisance law to actions connected to real property or to statutory or regulatory violations involving public health or safety,
{¶ 10} Nor should Franks be interpreted to mean that public-nuisance law cannot cover injuries caused by product design and construction. Instead, we find that under the Restatement’s broad definition, a public-nuisance action can be maintained for injuries caused by a product if the facts establish that the design, manufacturing, marketing, or sale of the product unreasonably interferes with a right common to the general public.
{¶ 11} Even the Supreme Court of Connecticut, in Ganim v. Smith & Wesson Corp.,
{¶ 12} Appellees further argue that they cannot be held liable for the harm alleged because they did not have control over the alleged nuisance at the time of injury. Contrary to appellees’ position, it is not fatal to appellant’s public nuisance claim that appellees did not control the actual firearms at the moment that harm occurred.
{¶ 13} Appellant’s complaint alleged that appellees created a nuisance through their ongoing conduct of marketing, distributing, and selling firearms in a manner that facilitated their flow into the illegal market. Thus, appellant alleged that appellees control the creation and supply of this illegal, secondary market for firearms, not the actual use of the firearms that cause injury. See Boston v. Smith & Wesson, 12 Mass.L.Rptr. 225,
{¶ 14} Appellees also contend that appellant’s nuisance claim cannot go forward because the distribution of firearms is highly regulated and covers “legislatively authorized conduct.” As a result, appellees believe that the nuisance claim was properly dismissed because “[w]hat the law sanctions cannot be held to be a public nuisance.” Mingo Junction v. Sheline (1935),
{¶ 15} Finally, appellees argue that the public nuisance claim fails because appellant has failed to plead an underlying tort to support either an absolute public nuisance claim based on intentional or ultrahazardous activity or a negligence-based claim of qualified public nuisance.
{¶ 16} Therefore, under these circumstances, we find that appellant has adequately pled its public-nuisance claim and has set forth sufficient facts necessary to overcome appellees’ motion to dismiss.
B. Negligence
{¶ 17} Appellant further alleged in its complaint that appellees were negligent in failing to exercise reasonable care in designing, manufacturing, marketing, advertising, promoting, distributing, supplying, and selling their firearms without ensuring that the firearms were safe for their intended and foreseeable use by consumers. In addition, the complaint alleged that appellees failed to exercise reasonable care to provide a full warning to consumers of the risks associated with firearms.
{¶ 18} In order to maintain a negligence action, the plaintiff must show the existence of a duty, a breach of that duty, and that the breach of that duty proximately caused the plaintiffs injury. Jeffers v. Olexo (1989),
{¶ 19} The court of appeals misconstrued the nature of appellant’s negligence claims and erred in relying on the above authorities to dismiss those claims for lack of duty. In both Gelbman and Simpson, the issue before this court was whether, based on their status as property owners, the defendants owed a duty to protect persons such as business invitees from the negligence or criminal acts of third parties that occur outside the owner’s property and beyond the owner’s control. In contrast, the negligence issue before us is not whether appellees owe
{¶ 20} The court in Boston v. Smith & Wesson, 12 Mass.L.Rptr. 225,
{¶ 21} “Plaintiffs do not allege that Defendants were negligent for failure to protect from harm but that Defendants engaged in conduct the foreseeable result of which was to cause harm to Plaintiffs. * * *
{¶ 22} “Taking Plaintiffs’ allegations as true, Defendants have engaged in affirmative acts (i.e., creating an illegal, secondary firearms market) by failing to exercise adequate control over the distribution of their firearms. Thus, it is affirmative conduct that is alleged — the creation of the illegal, secondary firearms market. The method by which Defendants created this market, it is alleged, is by designing or selling firearms without regard to the likelihood the firearms would be placed in the hands of juveniles, felons or others not permitted to use firearms in Boston. * * * Taken as true, these facts suffice to allege that Defendants’ conduct unreasonably exposed Plaintiffs to a risk of harm. Worded differently, the Plaintiffs were, from Defendants’ perspective, foreseeable plaintiffs. Thus, the court need not decide whether Defendants owed a duty greater than the basic duty.” (Footnotes omitted.) 12 Mass.L.Rptr. 225,
{¶ 23} The court in White v. Smith & Wesson,
{¶ 25} We agree with the rationale employed by these courts and similarly conclude that appellant has alleged a cause of action in negligence. Therefore, we find that the court of appeals erred in upholding the dismissal of the negligence counts.
C. Product Liability
{¶ 26} Appellant also seeks recovery under two products liability theories, for defective design and failure to warn. In its complaint, appellant alleged that the guns manufactured or supplied by appellees were defective because they do not incorporate feasible safety devices that would prevent unauthorized use and foreseeable injuries. As to the cause of action for failure to warn, appellant alleged that appellees manufactured or supplied guns without adequate warning of their dangerousness or instruction as to their use.
{¶ 27} The court of appeals upheld the dismissal of these claims, finding that the complaint was deficient because it did not allege with specificity “a single defective condition in a particular model of gun at the time it left its particular manufacturer.” Furthermore, the court held that the city could not bring its claims under the Product Liability Act, R.C. 2307.71 et seq., because it could prove no harm to itself. Nor could it recover economic loss alone under the Act, citing R.C. 2307.71(B) and (G), 2307.79, and LaPuma v. Collinwood Concrete (1996),
{¶ 28} “Notice pleading is still the law, and the city clearly alleged that each defendant has manufactured defective products by failing to implement alternative safety designs. That was enough to give the manufacturers fair notice of the claims against them.”
{¶ 29} We agree with the reasoning of Judge Painter’s concurring opinion. Contrary to the appellate court’s majority opinion, since Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with
{¶ 30} Nevertheless, appellant is precluded from bringing its statutory product liability claims. Under the Product Liability Act, a claimant (including a governmental entity) cannot recover economic damages alone. Instead, in order to fall within the purview of the Act, and to be considered a “product liability claim” under R.C. 2307.71(M), the complaint must allege damages other than economic ones. LaPuma v. Collinwood Concrete (1996),
{¶ 31} However, the failure to allege other than economic damages does not necessarily destroy the right to pursue common-law product liability claims. Id. at syllabus. In Carrel v. Allied Prods. Corp. (1997),
{¶ 32} We likewise find that appellant can bring a common-law failure-to-warn claim. Under the rationale espoused in Carrel v. Allied Prods. Corp., supra, the statute does not clearly state that it intended R.C. 2307.76, the failure-to-warn statute, to supersede the common-law action. Id.,
{¶ 33} To recover under a failure-to-warn theory at common law, the plaintiff must prove that the manufacturer knew or should have known, in the exercise of reasonable care, of the risk or hazard about which it failed to warn and that the manufacturer failed to take precautions that a reasonable person would take in presenting the product to the public. Crislip v. TCH Liquidating Co. (1990),
{¶ 34} The court of appeals reasoned that the failure-to-warn claim could not go forward because the defendants owe no duty to warn of the dangers associated with firearms, which are open and obvious dangers. Although, in general, the dangers associated with firearms are open and obvious, appellant has alleged sufficient facts in its complaint to overcome a motion to dismiss. As pointed out by Judge Painter’s concurrence, some of the allegations involve risks that are not open and obvious, such as the fact that a semiautomatic gun can hold a bullet even when the ammunition magazine is empty or removed. Therefore, since appellant properly alleges failure to warn, this claim withstands a motion to dismiss. See, also, White v. Smith & Wesson,
II. Remoteness
{¶ 35} Appellees maintain that even if appellant could establish any of the elements of the individual torts it alleged, the injuries to the city are still too
{¶ 36} Remoteness is not an independent legal doctrine but is instead related to the issues of proximate causation or standing. White,
{¶ 37} In Holmes v. Securities Investor Protection Corp. (1992),
{¶ 38} In applying these factors to handgun litigation, the courts have taken divergent positions. While some courts have found that remoteness bars recovery (see, e.g., Ganim v. Smith & Wesson Corp.,
{¶ 40} We agree with the reasoning espoused in White and Boston. The complaint in this case alleged that as a direct result of the misconduct of appellees, appellant has suffered “actual injury and damages including, but not limited to, significant expenses for police, emergency, health, prosecution, corrections and other services.”
{¶ 41} Under the Civ.R. 12(B)(6) standard, we must presume that all factual allegations are true. See Warth v. Seldin (1975),
{¶ 42} With regard to whether causation is too remote in this case, we turn to the three factors outlined in Holmes,
III. Recoupment of Cost of Governmental Services
{¶ 43} Appellant alleged in its complaint that due to the misconduct of appellees, it has sustained damages, including “significant expenses for police, emergency, health, corrections, prosecution and other services.” Appellees contend that the cost of these public services is nonrecoverable, since these are services the city is under a duty to provide.
{¶ 44} For support, appellees rely in part on Flagstaff v. Atchison, Topeka & Santa Fe Ry. Co. (C.A.9, 1983),
{¶ 45} Although a municipality cannot reasonably expect to recover the costs of city services whenever a tortfeasor causes harm to the public, it should be allowed to argue that it may recover such damages in this type of case. Unlike the train derailment that occurred in the Flagstaff case, which was a single, discrete incident requiring a single emergency response, the misconduct alleged in this case is ongoing and persistent. The continuing nature of the misconduct may justify the recoupment of such governmental costs. Therefore, if appellant can prove all the elements of the alleged torts, it should be able to recover the damages flowing from appellees’ misconduct. Moreover, even the Flagstaff court recognized that recovery by a governmental entity is allowed “where the acts of a private party create a public nuisance which the government seeks to abate.” Flagstaff,
IV. Constitutional Arguments
{¶ 46} Appellees further argue that appellant is attempting to regulate a national firearms industry and, therefore, its claims are barred under the Commerce Clause and the Due Process Clause of the United States Constitution.
{¶ 47} The Commerce Clause “ ‘precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State.’ ” Healy v. Beer Inst. (1989), 491 U.S.
{¶ 48} Appellees’ reliance on the BMW decision is misplaced. In finding a Commerce Clause violation in BMW, the court reasoned that Alabama could not impose punitive damages on BMW where the alleged misconduct (repainting a new car without notifying the dealer or purchaser) arose outside Alabama and did not affect Alabama residents. The court’s rationale was that “a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors’ lawful conduct in other States.” Id. at 572,
{¶ 49} Appellant’s complaint seeks injunctive relief to enjoin appellees from continuing to engage in what appellant considers to be the unlawful manufacture, marketing, and distribution of unsafe handguns. Although the injunctive relief sought may affect out-of-state conduct, we reject appellees’ argument that such relief would violate the Commerce Clause. Unlike the BMW case, which involved an excessive punitive damages award intended to change a tortfeasor’s lawful conduct in states outside Alabama, in this case, the alleged harm, which may or may not call for punitive damages, directly affects the residents of Cincinnati. Thus, the fact that appellant’s claims implicate the national firearms trade does not mean that the requested relief would violate the Commerce Clause. See White v. Smith & Wesson,
{¶ 50} We find no impediment in the Due Process or Commerce Clause that requires dismissal of this lawsuit.
V. Conclusion
{¶ 51} In conclusion, we find that the court of appeals erred in upholding the dismissal of the complaint, since sufficient facts have been alleged to withstand scrutiny under Civ.R. 12(B)(6). Reversal of the judgment, however, does not mean that appellant will prevail upon remand. What it does mean is that appellant has alleged the facts necessary to withstand a motion to dismiss and will now have the opportunity to pursue its claims. While we do not predict the outcome of this case, we would be remiss if we did not recognize the importance
{¶ 52} Accordingly, for the above reasons, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings consistent with this decision.
Judgment reversed and cause remanded.
Notes
. The lawsuit originally alleged other theories of liability, including fraud, negligent misrepresentation, unfair and deceptive advertising, and unjust enrichment. However, since appellant does not contest the dismissal of these counts, we decline to address these issues.
. The named defendants are Beretta U.S.A. Corp., Bryco Arms, Inc., Colt’s Manufacturing Co., Inc., Davis Industries, Fabbrica d’Armi Pietro Beretta Sp.A., Forjas Taurus, S.A., H & R 1871, Inc., B.L. Jennings, Inc., MKS Supply, Inc., Lorcin Engineering Co., Inc., North America Arms, Inc., Phoenix Arms, Raven Arms, Inc., Smith & Wesson Corp., Sturm & Ruger Co., Inc., Taurus International Manufacturing, Inc., American Shooting Sports Coalition, Inc., National Shooting Sports Foundation, Inc., and Sporting Arms and Ammunition Manufacturers Institute, Inc. Of these defendants, only Davis Industries, Fabbrica d’Armi Pietro Beretta Sp.A., Forjas Taurus, S.A., and Raven Arms, Inc. did not move to dismiss.
. See, e.g., Mansfield v. Balliett (1902),
. A nuisance can be further classified as an absolute nuisance (nuisance per se) or as a qualified nuisance. Taylor v. Cincinnati (1944),
. In York v. Ohio State Hwy. Patrol (1991),
. A claimant can recover economic losses only after first establishing that it can recover compensatory damages for harm from a manufacturer or supplier. R.C. 2307.79. “Harm” is defined as “death, physical injury to person, serious emotional distress, or physical damage to property other than the product in question. Economic loss is not ‘harm.’ ” R.C. 2307.71(G). Since appellant did not allege that it suffered harm within the meaning of the Act, it cannot recover for economic loss under R.C. 2307.79.
. According to appellant, the feasible safety features include internal locking devices to “personalize” guns to prevent unauthorized users from firing them, chamber-loaded indicators to indicate that a round is in the chamber, and magazine-disconnect safeties that prevent guns from firing when the magazine is removed. On March 17, 2000, Smith & Wesson announced a settlement agreement with various cities, state attorneys general, and the Department of Housing and Urban Development, in which it agreed to change its distribution practices and implement certain safety devices. See Dao, Under Legal Siege, Gun Maker Agrees to Accept Curbs, New York Times (Mar. 18, 2000), at Al.
Dissenting Opinion
dissenting.
{¶ 53} I respectfully dissent from the majority’s decision. Appellant alleges an “epidemic of handguns in the hands of persons who cannot lawfully possess them, which has brought terror to the streets, schoolyards, playgrounds, and homes of Cincinnati and has resulted in thousands of preventable shootings of innocent citizens, especially children and police officers.” These are serious allegations, and portray a city under siege virtually overrun with criminals bearing illegally obtained handguns.
{¶ 54} However, the issue before us is not whether the city could prove that appellees fail to take reasonable measures that would prevent, handguns they sell from being possessed by criminals and minors. Nor is the issue whether this alleged failure “unreasonably interferes with the public’s health, safety, welfare, and peace,” as alleged by appellant. The issue is not whether we agree with appellant that there exists in Cincinnati an epidemic of violence due to handguns illegally obtained.
{¶ 55} This appeal simply involves a question of law: does the city have standing to assert its claims? The majority holds that appellant has standing. I disagree with this conclusion, and would find the city’s alleged injuries to be too remote from the conduct of appellees and too derivative of the harms suffered by victims of handgun violence to establish proper standing to sue the appellees.
The Holmes test
{¶ 57} I agree with the majority that the Supreme Court in Holmes v. Securities Investor Protection Corp. (1992),
{¶ 58} The factors in Holmes are determinative of whether a plaintiffs claims are too remote or derivative. However, I strongly disagree with the majority’s analysis and application of the test to the instant case.
{¶ 59} The majority’s opinion provides helpful analysis of the two prevailing views reflected in the numerous civil actions by municipalities asserting negligence and public nuisance by gun manufacturers. I find the view represented in Ganim v. Smith & Wesson to be persuasive. Ganim v. Smith & Wesson Corp. (2001),
A. Alleged injuries of the city are indirect, as they are too remote from the manufacturers’ conduct and too derivative of others’ harms
{¶ 60} In determining that the plaintiffs could not satisfy the first Holmes factor, that of directness, the Ganim court emphasized the numerous “links in the factual chain between the defendants’ conduct and the harms suffered by the plaintiffs.” Id. at 353,
{¶ 61} At this point, either authorized buyers misuse the handguns by not taking proper storage or other unwarned or uninstructed precautions, or unauthorized buyers misuse the guns to commit crimes or other harmful acts. Id. The city then incurs expenses for various municipal necessities, including crime investigation, emergency and other medical services for the injured, or similar expenses. Id. Finally, the city may suffer financial consequences, including increased costs for municipal services, increased tax burdens on taxpayers, reduced property values, loss of investments and economic development, loss of tax revenues from lost productivity, injuries and deaths of the city’s residents, destruction of families and communities in the city, and the negative impact on the lifestyle of the city’s children and ability of its residents to live free from apprehension of danger.- Id. at 354-355,
{¶ 62} The Ganim court found that the number of links in this factual chain was in and of itself strongly suggestive of remoteness. Id. at 355,
{¶ 63} I agree with this reasoning, and would find that the first factor articulated in Holmes militates against granting the city standing for these claims. In the instant case, the city characterizes appellees as corporations that design, manufacture, advertise, import and/or sell firearms that can be fired by unauthorized or unintended users in Cincinnati. Therefore, the links in the factual chain between appellees’ conduct and harms suffered by the city are similar to those links enumerated in Ganim: manufacturer to distributor or wholesaler, distributor or wholesaler to retailer, retailer to authorized or unauthorized buyers, and ultimately accidental misuse by authorized buyers or criminal misuse by unauthorized buyers. Accidental and criminal misuse of handguns then results in increased expenses for the city for “additional police protection, overtime, emergency services, pension benefits, health care, social services and other necessary facilities and services.” In addition, the city alleges that it has sustained “a loss of investment, economic development and tax revenue due to lost productivity — all associated with the defective design, and negligent manufacture, assembly, marketing, distribution, promotion and sale of guns.”
{¶ 64} Holmes held that indirectness adds to the difficulty in determining which of a plaintiffs damages are attributable to a defendant’s misconduct. Holmes,
{¶ 65} Finally, factors other than the manufacture, advertisement, distribution, and retail sales of handguns may contribute to the various harms claimed by the plaintiffs. Ganim,
{¶ 66} Ganim held that in addition to remoteness, the harms suffered by the plaintiffs were derivative of those suffered by the victims and their families. Id. at 355,
{¶ 67} I agree with this reasoning. The majority characterizes this first factor as one of “difficulty of proof,” and believes the difficulty to be minimal, as the city “is seeking recovery, in part, for police expenditures and property repairs, which can be easily computed.” However, in order to prove damages, the city must first identify which incidents involved the use of illegal handguns or legal handguns in the hands of unauthorized users, and then link that portion of the city’s costs to that incident. In many instances the weapon used in a crime is never recovered. How, under these circumstances, can the city prove that the weapon involved was either illegal or in the hands of an unauthorized user?
{¶ 68} In addition to disagreeing with the majority’s determination that the expenses borne by the city are easily capable of proof, I strongly disagree with the majority’s characterization of the first Holmes factor as one of difficulty of proof.
{¶ 69} The question is not whether the city can prove that it has suffered damages, but whether the city can prove that those damages are attributable to the wrongdoing of the gun manufacturers as opposed to other, independent factors. Holmes,
B. Recognizing the city’s claim would require a court • to adopt complicated rules apportioning damages
{¶ 70} The majority finds that since the city is seeking recovery for injuries to itself only, there is little risk of double recovery and, thus, the city withstands scrutiny under the second factor in the Holmes test. Furthermore, the majority
{¶ 71} I read Holmes differently. The second factor of Holmes is whether “recognizing claims by the indirectly injured would force courts to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury from the violative acts, to obviate the risk of multiple recoveries.” Id.,
{¶ 72} Taking, as we must, these pleadings as true, Mitchell v. Lawson Milk Co. (1988),
{¶ 73} Moreover, the fact that the city seeks damages in part only for its own harm does not in and of itself satisfy the Holmes test. The Second Circuit has held that economic injuries alleged by a labor union health and welfare trust fund against tobacco companies were purely derivative of physical injuries suffered by plan participants, and thus too remote to establish standing to sue. Laborers Local 17 Health & Benefit Fund v. Philip Morris, Inc. (1999),
C. Directly injured persons can remedy the harm alleged by the city
{¶ 74} What Holmes requires courts to analyze is not whether these damages are capable of being proven, but whether the difficulties inherent in fashioning complicated rules apportioning damages among multiple plaintiffs is justified. Thus, the third factor of Holmes states that because directly injured victims can generally be expected to vindicate the law “as private attorneys general” without the problems described by factors one and two, the need for courts to grapple with these problems is simply unjustified by the general interest in deterring injurious conduct. Id.,
Dissenting Opinion
dissenting.
{¶ 75} Like the Chief Justice, I would find that Cincinnati’s negligence-based claims are barred by remoteness principles. I write separately, however, because our views on remoteness ultimately diverge in one subtle respect. I also write separately to illustrate why the city has failed to state cognizable claims for products liability and public nuisance.
I
{¶ 76} I agree with much of the analysis contained in the Chief Justice’s dissenting opinion. But instead of viewing remoteness principles as germane to the question of whether the city has standing to raise the negligence claims at issue here, I would find that the remoteness of the alleged harm precludes the city from establishing proximate cause as a matter of law. See Philadelphia v. Beretta U.S.A. Corp. (C.A.3, 2002),
II
{¶ 77} Inasmuch as proximate cause is an essential element of a products liability claim, see R.H. Macy & Co. v. Otis Elevator Co. (1990),
{¶ 78} The majority correctly determines that the city has failed to state a valid statutory claim for relief insofar as an action for purely economic harm is not maintainable under the Ohio Products Liability Act. See R.C. 2307.71(M). I disagree, however, with the majority’s holding that the city may maintain its common-law products-liability claims alleging defective design and failure to warn. Even assuming that the Act does not preempt these claims, a proposition of which I am not convinced,
Ill
{¶ 79} As to the public-nuisance cause of action, it is true that principles of remoteness do not necessarily prevent the city from stating a valid claim. See Camden Cty. Bd. of Chosen Freeholders v. Beretta U.S.A. Corp. (D.N.J.2000),
{¶ 80} Admittedly, the law of nuisance appears at first glance to be broad enough to encompass virtually any type of conduct. For example, 4 Restatement of the Law 2d, Torts (1977), Section 821B, cited with approval by the majority, broadly defines what may qualify as an actionable public nuisance. Similarly, this court has described the concept of nuisance in broad terms so as to include “the doing of anything, or the permitting of anything under one’s control or direction to be done without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his legal rights.” (Emphasis added.) Taylor v. Cincinnati (1944),
{¶ 81} First, the city’s allegations of harm cut against holding the named defendants responsible under a public-nuisance theory. The defendants’ allegedly wrongful conduct would never ripen into a public nuisance without the conduct of various unnamed third parties, such as criminals and persons who negligently allow minors to obtain guns. In other words, the defendants’ marketing and distribution practices cause harm only through intervening actions of persons not within the defendants’ control. Where acts of independent third parties cause the alleged harm, it cannot be said that the defendants — here, gun manufacturers, trade associations, and a gun distributor — have the requisite degree of control over the source of the nuisance to allow liability. Philadelphia v. Beretta U.S.A. Corp.,
{¶ 82} Second, to allow the public-nuisance doctrine to reach the defendants in this case amounts to an unwarranted legislative judgment by this court. By its decision today, the majority subjects the defendants to potential nuisance liability for the way they design, distribute, and market lawful products. In extending the doctrine of public nuisance in this manner, this court takes the ill-advised first step toward transforming nuisance into “ ‘a monster that would devour in one gulp the dntire law of tort.’ ” Camden Cty. Bd. of Chosen Freeholders v. Beretta U.S.A. Corp.,
{¶ 83} For the foregoing reasons, I respectfully dissent.
. See, e.g., Carrel v. Allied Products Corp. (1997),