# City of Cincinnati v. Beretta U.S.A. Corp. > Ohio Supreme Court · June 12, 2002 · 95 Ohio St. 3d 416 URL: https://www.frixlaw.com/law-library/cases/6784298 ## Case - **Full name:** City of Cincinnati v. Beretta U.S.A. Corporation - **Court:** Ohio Supreme Court - **Decided:** June 12, 2002 - **Citations:** 95 Ohio St. 3d 416 - **Precedential status:** Published - **Opinion:** Dissent by Moyer - **Judges:** Cook, Douglas, Moyer, Pfeifer, Resnick, Stratton, Sweeney - **Cited by:** 71 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6784298 ## How later opinions describe it (automated extraction) - holding that "the common-law failure-to-warn claim survives the enactment of Ohio’s Product Liability Act” - recognizing "[the] 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" - recognizing ‘‘[the] growing number of lawsuits brought by municipalities against gun manufac- turers and their trade associations to recover damages associated with the costs of firearm violence incurred by the municipalities’’ - holding plaintiff had stated a claim for common-law nuisance against gun-manufacturer defendants for “their ongoing conduct of marketing, distributing, and selling firearms in a manner that facilitated their flow into the illegal market” - applying the factors detailed in Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 269-70, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) ## Opinion text Moyer, C.J., 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. *431 {¶ 56} As the majority’s discussion regarding remoteness and proximate causation aptly demonstrates, the harm alleged by the city must not be a remote or tenuous consequence of the appellees’ alleged misconduct. Although “ ‘[in] a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events,’ ” courts have limited an actor’s responsibility for the consequences of the actor’s conduct. Johnson v. Univ. Hosps. of Cleveland (1989), 44 Ohio St.3d 49, 57 , 540 N.E.2d 1370 (quoting Prosser & Keeton, Law of Torts [5th Ed.1984] 264, Section 41). The limitation of proximate causation rests in a very large part on the nature and degree of the connection between the defendant’s acts and the events of which the plaintiff complains. Id. The Holmes test {¶ 57} I agree with the majority that the Supreme Court in Holmes v. Securities Investor Protection Corp. (1992), 503 U.S. 258, 269 , 112 S.Ct. 1311 , 117 L.Ed.2d 532 , articulated the reason directness of relationship is a central requirement of causation. “First, the less direct an injury is, the more difficult it becomes to ascertain the amount of a plaintiffs damages attributable to the violation, as distinct from other, independent, factors. * * * Second, quite apart from problems of proving factual causation, recognizing claims of 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. * * * And, finally, the need to grapple with these problems is simply unjustified by the general interest in deterring injurious conduct, since directly injured victims can generally be counted on to vindicate the law as private attorneys general, without any of the problems attendant upon suits by plaintiffs injured more remotely.” {¶ 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), 258 Conn. 313 , 780 A.2d 98 . Ganim was the first of these cases to be decided by a state supreme court. Affirming the trial court’s dismissal for lack of standing, the Supreme Court of Connecticut held that the city of Bridgeport lacked standing because the harms it alleged were too remote, indirect, and derivative with respect to the defendants’ alleged conduct. Id. at 365 , 780 A.2d 98 . The court noted that questions of remoteness and indirectness in the context of standing are analogous to questions of proximate cause in federal standing *432 jurisprudence, which “reflects ‘ideas of what justice demands, or of what is administratively possible and convenient.’ ” Id. at 349-350 , 780 A.2d 98 , quoting Prosser & Keeton, Torts (5th Ed.1984) 264, Section 41. 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 , 780 A.2d 98 . Specifically, the court noted that manufacturers sell handguns to distributors or wholesalers, and that these sales are lawful because federal law requires both buyers and sellers to be licensed. Id. at 353-354 , 780 A.2d 98 . Distributors then sell the handguns to retailers. Id. These sales are also lawful in that federal law requires both the distributors and the retailers to be licensed. Id. Next, retailers sell the guns legally either to authorized buyers, i.e., legitimate consumers, or to unauthorized buyers through the “straw man” method or other illegitimate means. Id. at 354 , 780 A.2d 98 . These latter sales would probably be criminal under federal law. Id. Next, the illegally acquired guns enter a black market, eventually finding their way to unauthorized users. Id. {¶ 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 , 780 A.2d 98 . {¶ 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 , 780 A.2d 98 , citing Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc. (C.A.3, 1999), 171 F.3d 912, 930 . Steamfitters Local focused on the “sheer number of links in the chain of causation” between the tobacco company’s suppression of information and the increased costs of health care by the union fund, concluding that the “extremely indirect nature of the Fund’s injuries and the highly speculative and complex damages claims” demonstrated that the *433 union’s claims “are precisely the type of indirect claims that the proximate cause requirement is intended to weed out.” Id. at 930 . {¶ 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 , 503 U.S. at 269-270 , 112 S.Ct. 1311 , 117 L.Ed.2d 532 . The very fact that there are multiple links between the conduct of the manufacturers and the harms suffered by the city demonstrates the difficulty in determining damages. For example, where a criminal wrongdoer harms another with an illegally obtained handgun, that criminal offender is responsible for injuries caused to the victim. Depending upon how the wrongdoer obtained the handgun, there may be a number of persons linking the offender to the retailer or distributor, who may also be liable. Additionally, there will be enormous difficulties in determining exactly how much of municipal expenses such as police, emergency services, pension benefits, health care, social services and other necessary facilities and services, as well as loss of revenue and investment and economic development, are a result of only the manufacturers’ actions and not the actions of the criminal wrongdoer, the retailer, distributor, or persons who possess guns legally. {¶ 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, 258 Conn. at 356 , 780 A.2d 98 . According to Ganim , these may include “illegal drugs, poverty, illiteracy, inadequacies in the public educational system, the birth rates of unmarried teenagers, the disintegration of family relationships, the decades long trend of the middle class moving from city *434 to suburb, * * * the upward track of health costs generally, * * * and unemployment.” Id. {¶ 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 , 780 A.2d 98 . In other words, the city would not suffer the harm of increased costs for municipal services but for the fact that certain residents of the city had been the primary victims of handgun violence. Id. For example, increased medical costs are essentially costs imposed on the victims of handgun violence, and decreased tax revenues from lost productivity are a result of lost productivity and income on the part of otherwise productive residents who have fallen victim to handgun violence. Id. {¶ 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, 503 U.S. at 269 , 112 S.Ct. 1311 , 117 L.Ed.2d 532 . Given the multiple links in the factual chain between the gun manufacturers’ conduct and harms suffered by the city, the derivative nature of the harms when viewed in conjunction with harms suffered by the primary victims of handgun violence, as well as the multiple societal factors that contribute to the misuse of handguns, I would find a very high degree of difficulty in determining the amount of the city’s damages attributable to the conduct of the gun manufacturers. 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 *435 finds that since the city is seeking recovery for its own harm, the general interest is best served by having the city bring this lawsuit. I disagree. {¶ 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., 503 U.S. at 269 , 112 S.Ct. 1311 , 117 L.Ed.2d 532 . In its complaint, the city paints a horrific picture of murder, assault, suicides, and accidental killings involving either illegal handguns or legal handguns in the hands of unauthorized users. As a result of these violent acts, the city, “in its role of providing protection and care for its citizens, * * * provide[s] or pay[s] for additional police protection, emergency services, pension benefits, health care and other necessary services due to the threat posed by the use of defendants’ products.” In addition, the city alleges harm as a result of “injuries to certain of its residents and police officers caused by the defendants’ products, as well as by the loss of substantial tax revenue.” {¶ 72} Taking, as we must, these pleadings as true, Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192 , 532 N.E.2d 753 , it follows that for practically every harm the city has suffered, there is at least one injured victim standing between the city and the gun manufacturers. In its complaint, the city states that it is seeking reimbursement for police, emergency, health, corrections, prosecution, and other services. Support for the conclusion that this is a derivative action is found in the complaint itself, which expressly connects the city’s damages to death and injuries by individual citizens allegedly resulting from illegal handguns or the use of legal handguns by unauthorized users. This would suggest that many of the city’s expenses would not have been incurred but for injuries to the primary victim. For example, the city may incur expenses for police, emergency services, and health care when someone has been injured because of the use of an unauthorized or illegal handgun. The injured person may also have a claim against the gun manufacturers. {¶ 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), 191 F.3d 229, 239 . However, the court also found that “even were we to assume that the single satisfaction rule would prohibit duplicative recoveries by multiple plaintiffs against a single defendant, it would not cure the ultimate problem set forth in Holmes , that is, that courts would be forced to ‘adopt complicated rules appor *436 tioning damages.’ ” Laborers Local 17 at 241, quoting Holmes, 503 U.S. at 269 , 112 S.Ct. 1311 , 117 L.Ed.2d 532 . Therefore, I would find that the application of the second factor of the Holmes test supports the decision of the court of appeals and the trial court. 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., 503 U.S. at 269-270 , 112 S.Ct. 1311 , 117 L.Ed.2d 532 . Accepting the pleadings as true, it is immediately apparent that there are unfortunately numerous directly injured victims of handgun violence in Cincinnati. One successful suit filed by a directly injured victim is every bit as much a deterrent as the instant suit and may have just as much, if not more, economic impact on the gun manufacturers. Thus, I would hold that an application of the Holmes test requires that we affirm the judgment of the court of appeals. Lundberg Stratton, J., concurs in the foregoing dissenting opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6784298. Public record. Not legal advice.