CITY OF PHILADELPHIA; Guаrdian Civic League of Philadelphia; Aspira, Inc. of Pennsylvania; Residents Advisory Board; Northeast Home and School; Philadelphia Citizens for Children and Youth v. BERETTA U.S.A. CORP.; Browning Inc.; Bryco Arms, Inc.; Colts Manufacturing Co., Inc.; Glock, Inc.; Harrington & Richardson, Inc. (“H & R”); International Armament Corp., d/b/a Interarms Industries, Inc.; Kel-Tec CNC Industries, Inc.; Lorcin Engineering Co., Inc.; Navegar, Inc., d/b/a Intratec; Phoenix/Raven Arms; Smith & Wesson Corp. Inc.; Sturm, Ruger & Company, Inc.; Taurus International Firearms
No. 01-1118
United States Court of Appeals, Third Circuit
January 11, 2002
277 F.3d 415
Before ALITO, AMBRO, and GREENBERG, Circuit Judges.
V.
[REDACTED]
[REDACTED] We agree with appellant that a “district court may, under
VI.
The District Court‘s Order of May 17, 2001, will be affirmed.
[REDACTED]
CITY OF PHILADELPHIA; Guardian Civic League of Philadelphia; Aspira, Inc. of Pennsylvania; Residents Advisory Board; Northeast Home аnd School; Philadelphia Citizens for Children and Youth, Appellants,
v.
BERETTA U.S.A. CORP.; Browning Inc.; Bryco Arms, Inc.; Colts Manufacturing Co., Inc.; Glock, Inc.; Harrington & Richardson, Inc. (“H &
No. 01-1118.
United States Court of Appeals, Third Circuit.
Argued Dec. 6, 2001.
Jan. 11, 2002.
* Amended per Clerk Order of 2/1/01.
Lawrence S. Greenwald (argued), Catherine A. Bledsoe, Gordon, Feinblatt, Rothman, Hoffberger & Hollander, Baltimore, MD, Louis R. Moffa, Jr., Schnader, Harrison, Segal & Lewis, Cherry Hill, NJ, Attorneys for appellee Beretta U.S.A. Corp.
Eric A. Weiss, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, William M. Griffin, III, Jonann Coniglio, Friday, Eldredge & Clark, Little Rock, AR, Attorneys for appellee Browning, Inc.
Robert E. Scott, Jr., Scott H. Phillips, Semmes, Bowen & Semmes, Baltimore, MD, Debra S. Dunne, Thorp, Reed & Armstrong, Philadelphia, PA, Michael C. Hewitt, Bruinsma & Hewitt, Costa Mesa, CA, Attorneys for appellee Bryco Arms, Inc.
Thomas E. Fennell (argued), Michael L. Rice, Jones, Day, Reavis & Pogue, Dallas, TX, John E. Iole, Jones, Day, Reavis & Pogue, Pittsburgh, PA, Attorneys for appellee Colts Manufacturing Co., Inc.
John F. Renzulli, Renzulli & Rutherford, New York, NY, Attorneys for appellee Glock, Inc. and Kel-Tec CNC, Industries, Inc.
Bradley T. Beckman, Beckman & Associates, Philadelphia, PA, Michael I. Branisa, Michael J. Zomcik, Tarics & Carrington, Houston, TX, Attorneys for appellee Phoenix Arms.
Jeffrey S. Nelson, Shook, Hardy & Bacon, Kansas City, MO, Robert C. Heim, George M. Gowen, III, Dechert, Price & Rhoads, Philadelphia, PA, Attorneys for appellee Smith & Wesson Corp., Inc.
Robert N. Spinelli, Catherine Jasons, Kelley, Jasons, McGuire & Spinelli, Philadelphia, PA, James P. Dorr, Sarah L. Olson, Jeffrey A. McIntyre, Wildman, Harrold, Allen & Dixon, Chicago, IL, Attorneys for appellee Sturm, Ruger & Company, Inc.
Timothy A. Bumann, Budd, Larner, Gross, Rosenbaum, Greenberg & Sade, Atlanta, GA, Christina Fichera Dente, Budd, Larner, Gross, Rosenbaum, Greenberg & Sade, Short Hills, NJ, Attorneys for appellee Taurus International Firearms.
James M. Beck, Pepper Hamilton, Philadelphia, PA, Hugh F. Young, Jr., Product Liability Advisory Council, Inc., Reston, VA, Attorneys for amicus curiae Product Liability Advisory Council.
Before ALITO, AMBRO, and GREENBERG, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on appeal from an order of the district
I. BACKGROUND
Plaintiffs, City of Philadelphia (the “City”) and five civic organizations (the “organizational plaintiffs”),1 brought suit in the Court of Common Pleas of Philadelphia County, Pennsylvania, against defendants, 14 out-of-state gun manufacturers, asserting claims of public nuisance, negligence, and negligent entrustment under Pennsylvania law. Plaintiffs do not contend that defendants violated any of the federal or state laws specifically regulating the sale and distribution of firearms in the United States and in the Commonwealth of Pennsylvania.2 Instead, plaintiffs allege that defendants’ conduct in the marketing and distribution of handguns allows them to fall into the hands of criminals and children, creating and contributing to their criminal use in Philadelphia. Plaintiffs assert that their injuries include the costs associated with preventing and responding to incidents of handgun violence and crime. See app. at 34 (Compl. ¶¶ 79–80) (listing costs including those associated with criminal justice аdministration, police services, emergency medical services and educational programs).
[REDACTED] The defendants timely removed the case to the district court on the basis of diversity of citizenship and, following removal, moved to dismiss the complaint under
II. STANDARD OF REVIEW
[REDACTED] We exercise plenary review on this appeal. See Children‘s Seashore House v. Waldman, 197 F.3d 654, 658 (3d Cir.1999), cert. denied, 530 U.S. 1275, 120 S.Ct. 2742, 147 L.Ed.2d 1006 (2000). Of course, we can affirm the order for dismissal “only if, accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief.” Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir.2000) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir.1997)).
III. DISCUSSION
A. Public Nuisance
[REDACTED] A public nuisance is “an unreasonable interference with a right common to the general public.” Camden County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d 536, 539 (3d Cir.2001) (“Camden County”) (citations and internal quotations omitted) (affirming dismissal of public nuisance claim against gun manufacturers under New Jersey law in Camden County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 123 F.Supp.2d 245 (D.N.J.2000)). The courts traditionally have limited the scope of nuisance claims to interference connected with real property or infringement of public rights. Id. (citing W. Page Keeton et al., Prosser and Keeton on Torts § 86 at 617–18 (5th ed.1984)). Thus, in Camden County we observed that the scope of nuisance law has “returned to its more narrow focus on
In Camden County we observed that “no New Jersey court has ever allowed a public nuisance claim to proceed against manufacturers [of] lawful products that are lawfully placed in the stream of commerce.” Camden County, 273 F.3d at 540. Likewise, the parties here do not present any Pennsylvania case allowing such a claim. Indeed, we indicated in Camden County that “[t]o extend public nuisance law to embrace the manufacture of handguns would be unprecedented nationwide for an appellate court.” Id. at 540–41; see also Bubalo v. Navegar, Inc., No. 96-C3664, 1998 WL 142359 (N.D.Ill. Mar.20, 1998) (dismissing nuisance claim against gun manufacturer).6
[REDACTED] Further, public nuisance is a matter of state law, and it is not the role of a federal court to expand state law in ways not foreshadowed by state precedent. See Camden County, 273 F.3d at 541. Instead, a federal court follows the precedents of the state‘s highest cоurt and predicts how that court would decide the issue presented. See id. Pennsylvania precedent does not support the public nuisance claim plaintiffs advance here, and we cannot predict that the Pennsylvania Supreme Court will choose to expand state public nuisance law in the manner plaintiffs urge. See Leo v. Kerr-McGee Chem. Corp., 37 F.3d 96, 101 (3d Cir.1994) (stating that, when deciding diversity case, “ ‘[F]ederal courts may not engage in judicial activism. Federalism concerns require that we permit state courts to decide whether and to what extent they will expand state common law.... Our role is to apply the current law of the jurisdiction, and leave it undisturbed.’ ”) (quoting City of Philadelphia v. Lead Indus. Ass‘n, 994 F.2d 112, 123 (3d Cir.1993)).7
In Camden County we found that “even if the requisite element is not always termed ‘control’ ... a degree of control by the defendant over the source of the interference” is required and that the “causal chain” connecting gun manufacturers to the damages claimed by the City of Camden was “simply too attenuated to attribute sufficient control tо the manufacturers to make out a public nuisance claim.” Camden County, 273 F.3d at 541. In this case, as the district court observed, plaintiffs’ “sole allegation of control [is] that the gun manufacturer[s] do not adopt policies which would place restrictions on the activities of the federally licensed firearms dealers.” Beretta, 126 F.Supp.2d at 901. Further, as in Camden County, “[t]he gun manufacturers supply their products to adult, independent federally licensed firearms dealers. The defendants are not in control of the guns at the time they are misused, nor do they control the independent firearms dealers.” Id.
Accordingly, as plaintiffs fail to state a cognizable public nuisance claim against the gun manufacturers under Pennsylvania law, and as defendants lack the requisite control over the interference with a public right, we will affirm the district court‘s dismissal of plaintiffs’ public nuisance claim.
B. Negligence and Negligent Entrustment9
[REDACTED] The district court found that plaintiffs’ negligence-based claims failed for lack of proximate cause because their injuries are too remote from the gun man-
[REDACTED] Remoteness is analyzed through the following six factors: (1) the causal connection between the defendant‘s wrongdoing and the plaintiff‘s harm; (2) the specific intent of the defendant to harm the plaintiff; (3) the nature of the plaintiff‘s alleged injury and whether it relates to the purposes of tort law; (4) whether the claim for damages is highly speculative; (5) the directness or indirectness of the alleged injury; and (6) the aim of keeping the scope of complex trials within judicially manageable limits, i.e., avoiding the risks of duplicative recoveries and the danger of complex apportionment. See Allegheny Gen. Hosp. v. Philip Morris, Inc., 228 F.3d 429, 438 (3d Cir.2000) (citations and internal quotations omitted); Steamfitters, 171 F.3d at 924 (same).
Thoroughly applying the six factor analysis, the district court concluded that there is a weak causal connection between the gun manufacturers’ conduct and the City‘s and the organizational plaintiffs’ injuries. The court found that the gun manufacturers did not intend harm to plaintiffs; that plaintiffs’ claims were “entirely derivative of [those of] others who would be more appropriate plaintiffs”; that tort law preferred a more balanced apрroach to recovery; and that plaintiffs’ damages were too speculative to permit recovery. Beretta, 126 F.Supp.2d at 906.
In its analysis, the district court examined the route a gun takes from the manufacturer to Philadelphia streets, finding it “long and tortuous.” Id. at 904. First, the defendant manufacturers sell guns to licensees; second, the licensees sell the guns to dealers; third, the dealer sells it to a lawful purchaser acting as a straw buyer; fourth, the straw buyer transfers the weapon to a criminal or a youth; fifth, the transferee uses the gun to commit a crime, or the youth injures himself or a compаnion; and finally, demand on the City‘s or the organizational plaintiffs’ resources is
Plaintiffs try to shorten the causal chain by arguing that the “thriving illegal market ... injures [them], even before any guns acquired in the illegal market are actually used in the commission of a crime.” Appellants’ Br. at 75. This statement, however, does not reduce the links that separate a manufacturer‘s sale of a gun to a licensee and the gun‘s arrival in the illegal market through a distribution scheme that is not only lawful, but also is prescribed by statute with respect to the manufacturers’ conduct. We reiterate that gun manufacturers first ship their guns to independent, federally licensed distributors and dealers. Only then may the licensed dealer sell the gun to a purchaser who has been cleared by the Federal Bureau of Investigation and approved by the Pennsylvania state police. See
Further, as the district court observed, plaintiffs do not contend that the gun manufacturers “intend to inflict injury upon the citizens of Philadelphia or to augment institutional costs.” Beretta, 126 F.Supp.2d at 904 (emphasis in original). At most, they allege awareness of the means by which prohibited purchasers end up possessing handguns. See id.; app. at 18 & 25 (Compl. ¶¶ 17(b) & 42).14
The derivative nature of the City‘s and the organizational plaintiffs’ injuries also adds to the remoteness. Plaintiffs assеrt that they suffer “direct” and “independent” injuries involving some expenses that an injured resident cannot recover. Appellants’ Br. at 81, 95; see also Appellants’ Reply Br. at 26 (listing economic and
Furthermore, it is clear that plaintiffs seek reimbursement for expenses that arise only because of the use of firearms to injure or threaten City residents. Those immediately and directly injured by gun violence—such as gunshot wound victims—are more appropriate plaintiffs than the City or the organizational plaintiffs whose injuries are more indirect. See Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 542, 103 S.Ct. 897, 910–11, 74 L.Ed.2d 723 (1983) (stating that “The existencе of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest ... diminishes the justification for allowing a more remote party ... to perform the office of private attorney general.”); Allegheny Gen. Hosp., 228 F.3d at 440; Steamfitters, 171 F.3d at 927.15
Additionally, plaintiffs’ damages are speculative as it would be difficult to calculate how many incidents could have been avoided had the gun manufacturers adopted different policies. See Steamfitters, 171 F.3d at 926–28 (finding damages claim speculative). Moreover, as the dis-
trict court noted, “for each individual injury, independent factors obviously come into play, such as criminal сonduct, drug or alcohol abuse, or other misconduct by the owner.” Beretta, 126 F.Supp.2d at 905 (citation and internal quotations omitted). Finally, any effort to compensate plaintiffs would require the expenditure of enormous judicial resources to determine which defendants should bear what percentage of liability. See Camden County Bd. v. Beretta, 123 F.Supp.2d at 263.
[REDACTED] In addition to holding that absence of proximate cause bars plaintiffs’ claims, the district court also properly concluded that the gun manufacturers are under no legal duty to protect citizens from the deliberate and unlawful use of their produсts. See Beretta, 126 F.Supp.2d at 898–903 (analyzing factors and stating that “[T]he recognition of the legal duty for manufacturers to victims of gun violence is a matter properly addressed to Congress or the Pennsylvania Legislature.”); see also Mazzillo v. Banks, 1987 WL 754879, at *2 (1987) (stating that “[N]o common-law duty exists under Pennsylvania law upon the manufacturer of a non-defective firearm to control the distribution of that product to the general public. Furthermore, no common-law duty exists under Pennsylvania law upon the remote vendor for marketing its product to people whom they should have known would have misused the product.”), aff‘d, 373 Pa.Super. 646, 536 A.2d 833 (1987); accord Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 750 N.E.2d 1055 (2001) (finding no duty under New York law). Moreover, as we recognized in Camden County, “[i]n the negligence context ... a defendant has no duty to control the misconduct
In sum, there are more direct victims, and the fact that these individuals may not be able to seek recovery for certain public services borne by the City or the organizational plaintiffs in no way obviates the fact that they are, nonetheless, the more directly injured parties. The causal connection between the gun manufacturers’ conduct and the plaintiffs’ injuries is attenuated and weak. Further, if we allowed this аction, it would be difficult to apportion damages to avoid multiple recoveries and the district court would be faced with apportioning liability among, at minimum, the various gun manufacturers, the distributors, the dealers, the re-sellers, and the shooter.
Accordingly, we will dismiss plaintiffs’ claims that tort liability should be assessed against gun manufacturers when their legally sold, non-defective products are criminally used to injure others.
IV. CONCLUSION
For the foregoing reasons, we will affirm the judgment of the district court entered December 20, 2000.
[REDACTED]
UNITED STATES of America,
v.
David Scott ZIMMERMAN, Appellant.
No. 01-1251.
United States Court of Appeals, Third Circuit.
Argued Oct. 17, 2001.
Filed Jan. 4, 2002.
Notes
Additionally, the district court concluded that the City may not recover funds expended on law enforcement and health services under the municipal cost recovery rule. See id. at 894–95 (quoting the Pennsylvania Commonwealth Court for the proposition that “[t]he cost of public services for protection from a safety hazard is to be borne by the public as a whole, not assessed against a tortfeasor whose negligence creates the need for the service”) (citations and internal quotation marks omitted). There is, however, some authority for the proposition that public entities may recover damages for the costs of abating public nuisances. See City of Flagstaff v. Atchison, Topeka & Santa Fe Ry. Co., 719 F.2d 322, 324 (9th Cir.1983) (citations omitted). We need not address these alternate grounds for dismissal, because, as stated infra, plaintiffs fail to state claims for negligence, negligent entrustment, or public nuisance. Moreover, the UFA does not deny the City Article III standing.
We doubt that if confronted with the complaint here that the Supreme Court of Pennsylvania would uphold it.
permit[ting] a third person to use a thing or to engagе in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.
Beretta, 126 F.Supp.2d at 902–03 (citing Ferry v. Fisher, 709 A.2d 399, 403 (Pa.Super.Ct.1998)).