Low, Ball & Lynch's

WEEKLY LAW RESUME

November 27, 2003 Issue By: Raymond Coates

Duty of Care - Gun Manufacturers

Lilian S. Ileto v. Glock, Inc.

United States Court of Appeals, Ninth Circuit

(November 20, 2003)

This case received publicity because it is one of the first cases to hold that gun manufacturers may be liable for injuries inflicted by a gunman. The case was decided on theories of negligence, and not products liability.

On August 10, 1999, Buford Furrow shot and injured three young children, one teenager and one adult at the Jewish Community Center in Granada Hills, California. Later that day, he shot and killed Joseph Ileto, a United States postal worker. Ileto's sole surviving dependent parent and three of the children who were shot filed a complaint in Los Angeles County Superior Court against multiple defendants involved in the manufacture, marketing and distribution of firearms found in Furrow's possession. The case was removed to federal district court. Claims of negligence and public nuisance were asserted against the gun manufacturers, distributors and dealers. Motions to dismiss were filed in the trial court and were granted. The plaintiffs filed an appeal to the Court of Appeals.

The Court of Appeals reversed in a 2 to 1 decision. The primary thrust of the claim against the gun manufacturers was that the manner in which the guns were marketed showed they produced more firearms than the legitimate market needed. As a result, guns entered a secondary market where they were purchased illegally by individuals known to have a high risk of using the guns improperly. The nuisance theory was based upon a claim that the manner of marketing and distribution interfered with rights common to the general public.

The Court acknowledged the decision in Merrill v. Navegar (2001) 26 Cal.4th 465, in which the California Supreme Court rejected a products liability claim against a gun manufacturer in a similar context. This Court distinguished that case by stating that it was not alleged that the guns were defectively designed or manufactured or that they lacked adequate warning, but rather the distribution scheme created an illegal secondary market for guns targeted at illegal users. Thus, the claim did not fall within the scope of Civil Code section 1714.4 which, until repealed in 2003, provided immunity for gun manufacturers for products liability actions. The Court felt the complaint alleged a sufficient duty of care on the part of the gun manufacturers to prevent the distribution of guns from reaching the hands of criminals. The Court further felt that sufficient causation was shown by alleging that the gun manufacturers knew their distribution scheme would result in criminals obtaining their weapons. The Court further felt the act of Furrow was not an intervening act which broke the chain of causation. The Court felt that the distribution scheme made it foreseeable that a person like Furrow would be able to purchase a gun and use it in the manner in which he did in this case. The Court further held a claim for public nuisance was stated. Facilitating the purchase by individuals declared unfit to buy guns by the state and federal governments qualified as a public nuisance.

In reversing the summary judgment, the Court concluded that Lilian Ileto could pursue her claim for wrongful death, including punitive damages. The matter was therefore reversed and returned to the trial court for further proceedings.

The dissent indicated that a proper analysis of California law would hold that this case was correctly dismissed. First, it should have been dismissed because it was a products liability action and therefore barred by California law. The negligence theory was specifically rejected by the California Supreme Court. The nuisance theory was contrary to California authority. The dissent suggested that the California Supreme Court would reach a different decision if confronted with this case.

COMMENT

The highly emotional nature of this case gave both sides of the issue plenty to argue. It is likely this is not the last word on this issue. ____ To order a printed version of this analysis, or change your subscription information, reply to this transmission. Information regarding this and other WEEKLY LAW RESUME TM articles is available from Raymond Coates at

(650) 685-7160, RCoates@lowball.com or at WWW.LOWBALL.COM. The WEEKLY LAW RESUME TM is published fifty-two times a year, and is a complimentary publication of LOW, BALL & LYNCH, Attorneys at Law, a Professional Corporation, with offices in San Francisco, Redwood City and Monterey, California.