Copier v. Smith & Wesson Corp.Copier v. Smith & Wesson Corp.
Anne G. Kimball of Wildman, Harrold, Allen & Dixon, Chicago, Illinois (Kenneth M. Gorenberg of Wildman, Harrold, Allen & Dixon, Chicago, Illinois, and H. James Clegg of Snow, Christensen & Martineau, Salt Lake City, Utah, with her on the brief), for Defendant-Appellee.
I
The relevant facts of this case are not in dispute. Ms. Copier‘s ex-husband shot her on March 21, 1991, with a .38 caliber firearm manufactured by defendant-appellee, Smith & Wesson Corp. The shooting, which led to Eldon Copier‘s conviction for attempted criminal homicide, left Ms. Copier a paraplegic. Appendix (“App.“) at 2 (complaint); id. at 12-13 (Smith & Wesson‘s Memorandum of Law in Support of Defendant‘s Motion to Dismiss).
Following the filing of her complaint in March 1995 in state court, Ms. Copier died as a result of her injuries on June 24, 1995. Id. at 125; Aplt. Status Memorandum at Tab 2, p. 2. Smith & Wesson subsequently removed the case to federal court on August 7, 1995. App. at 5 (notice of removal). However, no attempt was made to seek an order substituting a party for Ms. Copier pursuant to
On motion of Smith & Wesson, the district court dismissed Ms. Copier‘s complaint on December 13, 1995, reasoning that its role was to follow, not expand, Utah law, and that Ms. Copier‘s cause of action was not viable under current Utah law. App. at 128-29 (district court‘s Memorandum Opinion and Order). The district court denied Ms. Copier‘s request for certification to the Utah Supreme Court. Id. at 134. The judge additionally noted in his order that counsel for plaintiff had alerted the court to Ms. Copier‘s death and that counsel further indicated that if the court denied the motion to dismiss, the complaint would be amended to add a claim for wrongful death and to substitute Ms. Copier‘s daughter as the
Following dismissal and then the denial of plaintiff‘s motion for amendment or for relief from order, Ms. Copier‘s counsel filed a notice of appeal to this court in February 1996. Id. at 163. Ms. Copier‘s death was not addressed in the parties’ appellate briefs nor was her death discussed during oral argument. Discovering Ms. Copier‘s death after the case was submitted, we entered an order sua sponte on March 13, 1997, abating the appeal to permit proper substitution of a party for Ms. Copier, pursuant to
Plaintiff subsequently filed her motion to amend with the district court, seeking to add as a defendant Eldon Copier, the assailant, and to add a claim for wrongful death. Aplt. Status Memorandum at Tab 8, p. 2. The district court denied the motion to add a defendant, but granted plaintiff‘s request to add the wrongful death claim. Id. Smith & Wesson again filed a motion to dismiss pursuant to
Plaintiff again filed a notice of appeal. Because the legal issues remain the same as those initially argued, we denied plaintiff‘s request for further oral argument, but we provided the parties with the opportunity to submit supplemental briefs addressing these issues. Plaintiff states in her supplemental brief at 2 that no new controlling decisions have been rendered by the Utah Supreme Court or the Utah Court of Appeals regarding these issues since the original appellate briefs were filed, but that the general issue of liability “for the ultrahazardous conduct of manufacturing and marketing handguns to the general marketplace remain an important topic of public policy debate and advocacy around the country.”
II
A
Plaintiff-appellant places heavy emphasis on her request for certification to the Utah Supreme Court, see Brief for Appellant at 2, in addition to the merits of her ultrahazardous activity theory of liability. Id. at 13. We treat the merits of her liability theory first. We review a dismissal of a complaint under
Utah law imposes strict liability on one who carries on an abnormally dangerous activity for harm resulting from the activity. Walker Drug Co., Inc. v. La Sal Oil Co., 902 P.2d 1229, 1233 (Utah 1995);
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Walker Drug Co., Inc. v. La Sal Oil Co., 902 P.2d at 1233(citing
None of the above factors is implicated by the manufacturing of handguns, as opposed to the use -- or rather, the misuse -- of handguns. For example, in Walker Drug, the plaintiffs brought suit because gasoline had leaked from the defendants’ gas stations and contaminated the plaintiffs’ property. In evaluating the six factors, the Utah Supreme Court considered the
In Robison v. Robison, 394 P.2d 876, 877 (Utah 1964), the Utah Supreme Court held that the determination of whether the ultrahazardous activity doctrine applied as to injury caused by rock fragments hurled during use by the defendants of dynamite for blasting purposes depended on the circumstances. The court focused on the use of dynamite, and not its manufacture. In the instant case, however, Ms. Copier was harmed not by the manufacturing of the Smith & Wesson .38, but by the use of it to shoot her. This distinction is significant, because Ms. Copier‘s argument essentially collapses all uses of guns into one purpose, which she contends is to injure or kill people. However, Ms. Copier ignores a number of legitimate uses, including self-defense, home protection, and use by law enforcement officers.
We further note that the one case we have found that imposed strict liability upon a handgun manufacturer focused on the unique nature of the firearm in that case, a “Saturday Night Special,” which the court characterized as a gun whose “chief ‘value’ . . . is in criminal activity, because of its easy concealability and low price.” See Kelley v. R.G. Industries, Inc., 497 A.2d 1143, 1158 (Md. 1985). Kelley provides little support to Ms. Copier, however, since it actually rejected the application of the ultrahazardous activity doctrine to
Ms. Copier relies heavily on several scholarly articles which, she contends, advocate the extension of the ultrahazardous activity doctrine to the manufacturing of firearms. See,
With respect to the opinion in In re 101 California Street, No. 959316 (Cal. Super. Ct. 2d Dep‘t Apr. 10, 1995), which provides the basis for Pearson‘s article, at least two courts have declined to follow its analysis, noting that while the case may have been correctly decided under its particular facts, it was actually based on a California statute prohibiting the sale, advertising or possession of certain assault weapons, including the specific handgun involved therein. See Moss v. Wolohan Lumber Co., 1995 WL 348144 (N.D. Ill. 1995); Casillas v. Auto-Ordnance Corp., 1996 WL 276830 (N.D. Cal. 1996). Since no similar statute existed regarding the type of weapons involved in Moss or Casillas, the courts distinguished In re 101 California Street, and granted summary judgment in favor of the manufacturers.
Ms. Copier‘s argument, carried to its logical extension, would suggest that the manufacturing of any product that is significantly misused and has great potential for injuring or killing persons should be considered as an ultrahazardous activity. Alcohol production, for example, might be so considered because in any given year, there is a statistical certainty
In sum, we are convinced that under the state of decisional law in Utah, and of decisions generally, the complaint premised on the ultrahazardous activity doctrine was properly dismissed here.
B
We review the district court‘s decision not to certify the question of state law for abuse of discretion. Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988). A district court abuses its discretion when it renders “an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir. 1994).
Certification is a useful procedure which the Supreme Court has used or commended several times. See, e.g., Arizonans for Official English v. Arizona, 117 S. Ct. 1055, 1073-75 (1997); Zant v. Stephens, 456 U.S. 410, 416-17 (1982); Lehman Brothers v. Schein, 416 U.S. 386, 391-92 (1974); Clay v. Sun Ins. Co., 363 U.S. 207, 212 (1960). But we have noted that just because a new state law question is raised, “[c]ertification is not to be routinely invoked whenever a federal court is presented with an unsettled question of state law.” Armijo, 843 F.2d at 407. The Supreme Court has instructed us that
In the absence of some recognized public policy or defined principle guiding the exercise of the jurisdiction conferred, which would in exceptional cases warrant its non-exercise, it has from the first been deemed to be the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions
of state law whenever necessary to the rendition of a judgment.
Meredith v. City of Winter Haven, 320 U.S. 228, 234 (1943).
In arguing that the district court abused its discretion, plaintiff-appellant notes that this case was originally filed in state court, only to have it removed to federal court based on diversity jurisdiction. She claims that she is entitled to her day in a Utah court to test the domain of Utah public policy, “as reflected in the ever evolving doctrine of tort law as bolstered by [the] growing consensus of the horrendous cost to society from handgun distribution . . . .” Appellant‘s Supplemental Memorandum of Points and Authorities at 6. She cites the
There are two problems with this argument for plaintiff. First, insofar as this provision of the State constitution is in conflict with the removal statutes,
Second, we are unable to discern when a federal district court, under plaintiff-appellant‘s argument, would ever be able to deny certification in a Utah case that had been removed if there were any possible argument that there is uncertainty on the Utah law. Any plaintiff seeking redress under Utah law whose case was subsequently removed to federal court would be able to raise the same argument Ms. Copier has, and if the district court could not rule out even the slightest degree of uncertainty in the law of the state, it could never deny certification. Such a rule would be clearly wrong. See Lehman Brothers v. Schein, 416 U.S. 386, 390-91 (1974) (“We do not suggest that where there is doubt as to local law and where the certification procedure is available, resort to it is obligatory.“).
Turning to the issue presented for possible certification here, plaintiff-appellant contends that Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252 (Utah 1996), is proof that Utah is willing to expand the boundaries of its tort law to cover situations such as hers. Brief for Appellant at 14. However, the district court also had before it Armijo, in which a panel of this court affirmed the denial of certification to the New Mexico Supreme Court of substantially the same issue as the one raised in this case. Significantly, Armijo had surveyed federal and state law and concluded that there simply was no indication that New Mexico would recognize a cause of action such as the plaintiff alleged, and that there is a clear trend against recognizing such a claim.
We do not believe that the district court abused its discretion. Cruz is simply not on
Therefore, we hold that the district court did not abuse its discretion in denying certification to the Utah Supreme Court of the question of liability asserted here against defendant Smith & Wesson.
III
We next consider whether we should certify this question to the Utah Supreme Court directly. Utah R. App. P. 41(a) states:
The Utah Supreme Court may answer a question of Utah law certified to it by a court of the United States when requested to do so by such certifying court acting in accordance with the provisions of this rule if the state of the law of Utah applicable to a proceeding before the certifying court is uncertain.
Thus, there is a procedural mechanism for certification to the State Court which we may consider using. However, we note that a necessary but not controlling component is the difficulty in determining the local law. Cf. Lehman Brothers v. Schein, 416 U.S. 386, 390 (1974) (“[T]he mere difficulty in ascertaining local law is no excuse for remitting the parties to a state tribunal for the start of another lawsuit.“). Lehman Brothers, of course, discussed abstention as well as certification, but the opinion there further noted: “We do not suggest
While no Utah court has rendered a decision on the precise issue in question, we do not believe there is unusual difficulty in deciding the state law question or a likelihood that plaintiff‘s theory of liability would be adopted by the Utah courts. We noted above why Cruz is not applicable to this case and our independent analysis of Utah law persuades us that the Utah Supreme Court would not expand its ultrahazardous activity doctrine to encompass Ms. Copier‘s claim. No Utah decision that we have found has considered manufacturing to be the type of activity that triggers the ultrahazardous activity doctrine. We therefore decline to certify the question to the Utah Supreme Court and the judgment below is
AFFIRMED.