ATTORNEYS FOR APPELLANT: ATTORNEYS FOR MANUFACTURER APPELLEES:
W. ANTHONY WALKER
LUKAS I. COHEN JAMES P. DORR
JAMES B. MEYER SARAH L. OLSEN
Meyer & Wyatt, P.C. Wildman, Harrold, Allen & Dixon
Gary, Indiana Chicago, Illinois
TERENCE M. AUSTGEN
Singleton, Crist, Austgen & Sears
ATTORNEY FOR APPELLEES BROWNING ARMS CO., GLOCK, INC., and HI-POINT FIREARMS:
RICHARD A. MAYER
Spangler, Jennings & Dougherty, PC
ATTORNEYS FOR APPELLEES GLOCK, INC. and HI-POINT FIREARMS:
Renzulli & Rutherford, LLP
New York, New York
ATTORNEY FOR APPELLEE BROWNING ARMS CO.:
WILLIAM M. GRIFFIN, III
Friday, Eldredge & Clark
Little Rock, Arkansas
ATTORNEYS FOR APPELLEE BRYCO ARMS CORP.:
JOHN WALTER MEAD
Mead, Mead & Clark, P.C.
STACIA L. YOON
Kopko, Genetos & Retson LLP
MICHAEL C. HEWITT
Bruinsma & Hewitt
Costa Mesa, California
ATTORNEYS FOR APPELLEE COLTS MANUFACTURING COMPANY, INC.:
THOMAS E. FENNELL
MICHAEL L. RICE
Jones Day Reavis and Pogue
ROBERT F. PARKER
Burke, Costanza & Cuppy
ATTORNEYS FOR APPELLEE TAURUS INTERNATIONAL MANUFACTURING, INC.:
RENEE J. MORTIMER
TIMOTHY A. BAUMANN
Budd, Larner, Gross, Rosenberg, Greenberg & Sade
ATTORNEY FOR APPELLEES CHARTER ARMS CO. and INTERARMS, INC.:
ATTORNEYS FOR APPELLEE PHOENIX ARMS:
Tarics & Carrington
ATTORNEYS FOR APPELLEE BERETTA U.S.A. CORP.:
DAVID C. JENSEN
JOHN M. McCRUM
Eichhorn & Eichhorn
LAWRENCE S. GREENWALD
CATHERINE A. BLEDSOE
Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC
ATTORNEYS FOR APPELLEE SMITH & WESSON CORP.:
DAVID W. PERA
Buoscio, Pera & Kramer
JEFFREY S. NELSON
Shook, Hardy & Bacon
Kansas City, Missouri
ATTORNEYS FOR APPELLEES BLYTHES SPORT SHOP, INC. and JACKS LOAN, INC.:
KENNETH D. REED
JOHN P. REED
Abrahamson & Reed
ATTORNEY FOR APPELLEE CASH INDIANA, INC.:
JOHN E. HUGHES
Hoeppner, Wagner & Evans LLP
ATTORNEYS FOR APPELLEE WESTFORTH SPORTS, INC.:
STEPHEN E. SCHEELE
Goodman, Katz, Scheele & Bauswell
IHOR A. WOLOSHANSKY
COURT OF APPEALS OF INDIANA
CITY OF GARY, INDIANA, by its Mayor, )
SCOTT L. KING, )
vs. ) No. 45A03-0105-CV-155
SMITH & WESSON CORP., BERETTA U.S.A., )
CORP., COLTS MFG. CO., INC., BROWNING )
ARMS CORP., GLOCK CORP., CHARTER )
ARMS CORP., HI-POINT FIREARMS CORP., )
NAVEGAR INC., d/b/a/ INTRATEC U.S.A., )
CORP., B.L. JENNINGS INC., BRYCO ARMS )
CORP., PHOENIX ARMS CORP., LORCIN )
ENGINEERING CORP., STURM, RUGER & CO., )
CORP., TAURUS FIREARMS CORP., DAVIS )
INDUSTRIES, INC., AMERI-PAWN OF LAKE )
STATION, INC., BLYTHES SPORT SHOP, )
INC., CASH INDIANA, INC., JACKS LOAN, )
INC., JIM SHEMAS OUTDOOR SPORTS, )
WESTFORTH SPORTS, INC., and DOES 1-225, )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable James J. Richards, Special Judge
Cause No. 45D05-0005-CT-243
September 20, 2002
OPINION FOR PUBLICATION
BROOK, Chief Judge
Appellant-plaintiff City of Gary, Indiana, by its Mayor, Scott L. King (the City),
appeals the trial courts dismissal of its suit against various handgun manufacturers, a
handgun distributor, and various handgun dealers (collectively, Appellees). We affirm in part
and reverse and remand in part.
The City raises eight issues for our review, which we consolidate and restate
as the following three:
I. whether the trial court properly dismissed the Citys public nuisance claim;
II. whether the trial court properly dismissed the Citys negligence claims; and
III. whether the trial court properly struck a proposed settlement agreement between the City
and one of the Appellees from the Citys first amended complaint.
Facts and Procedural History
Appellees either manufacture, distribute, or sell handguns. The City originally filed suit
against Appellees in Lake County Superior Court, alleging public nuisance against all Appellees;
negligent distribution, marketing, and failure to warn against all Appellees; and negligent design
against manufacturer Appellees. The City sought compensatory damages, injunctive relief, and punitive
damages. On September 29, 1999, Appellees filed a notice of removal to
federal court. On April 17, 2000, the federal court determined that there
were no issues of federal law in the Citys claims and remanded the
case to the trial court. In May and June of 2000, Appellees
filed motions to dismiss under Indiana Trial Rule 12(B)(6) for failure to state
claims upon which relief could be granted. On January 12, 2001, the
trial court granted Appellees motions and dismissed all the Citys claims in an
order reading in relevant part as follows:
JUDGMENT OF DISMISSAL
The parties defendant have been segregated by plaintiffs Complaint into the following categories,
which identification said defendants seem to have accepted:
Smith & Wesson Corp.
Beretta U.S.A. Corp.
Charter Arms Corp.
Savage Arms Corp.
Harrington & Richardson Corp.
Hi-Point Firearms Corp.
Navegar, Inc. d/b/a Intratec USA Corp.
Bryco Arms Corp.
Kel-Tec Cnc, Corp.
Phoenix Arms Corp.
Lorcin Engineering Corp.
St[ur]m, Ruger & Co. Corp.
Sundance Industries Corp.
Taurus Firearms Corp.
Ameri-Pawn of Lake Station, Inc.
Blythes Sport Shop, Inc.
Cash Indiana, Inc.
Fetlas Bargain Center, Inc.
Jim Shemas Outdoor Sports
Westforth Sports, Inc.
B. L. Jennings, Inc.
Miscellaneous John Does:
It has been conceded that, basically, Manufacturers sell handguns to Distributors, who in
turn sell to Dealers, who in turn sell to the general public.
Manufacturers are precluded by law from selling direct to members of the general
public. This lawsuit applies only to the sale and distribution of handguns;
not long guns (rifles and/or shot guns).
During the course of proceedings, the City settled with defendant, Fetlas Bargain Center,
Inc., and they are no longer a party. In addition, the City
unilaterally filed with the Court a copy of an unexecuted, but proposed written
Settlement Agreement between defendant Smith & Wesson Corp. and the City. There
is no evidence that such Agreement was ever entered into, and Smith &
Wesson Corp. remains a party defendant in this litigation. Defendant objected and
moved to strike out the filing. The City did not object or
otherwise respond. During the course of the second day of arguments, City
referred to the Agreement, and defendants reiterated their objection. The Court sustained
defendants objection and granted their Motion to Strike the document from the Courts
records, as irrelevant, under Rule of Evidence 401, and as a purported agreement
of settlement and compromise under Rule of Evidence 408. It should be
noted that efforts were made to remove this cause to the United States
District Court, for the Northern District of Indiana, Hammond Division, sitting at Hammond.
Many months elapsed, during which pleadings and papers were filed in the
Federal Clerks Office, before the Federal Court declined removal, and remanded the cause
to state court.
The defendants respective Motion(s) to Dismiss are predicated upon Ind. Trial Rule 12(B)(6)
which provides, in substance, for a dismissal of a pending cause if the
well-pleaded allegations of the pending complaint, when taken as true, fail to state
a claim upon which any relief can be granted, even when all inferences
and intendments are taken, and viewed, in a light most favorable to plaintiff.
Donahue vs. St. Joseph County, 720 N.E.2d 1236 (Ind.Ct.App. 1999), and City
of New Haven vs. Reichart, 729 N.E.2d 600 (Ind.Ct.App.2000).
The Court Finds, Concludes, Adjudges and Decrees that each and all
respective defendants, manufacturers, distributor[s] and dealers separate and several motions to dismiss should
be, and the same hereby are, GRANTED, and this cause should be, and
the same is hereby, DISMISSED, as to each and all of the remaining
captioned defendants, for the following separate and several reasons, and upon the following
separate and several grounds, to-wit:
The common law requirements for public nuisance claims in Indiana are very clear.
First, public nuisance claims must arise from an unreasonable use of property.
Deller vs. Hofferberth, 26 N.E. 889 (Ind. 11), or a violation of
a specific statute, Whittington vs. State of Indiana , 669 N.E.2d 1363 (Ind. 1996).
Second, to be liable for a public nuisance, one must be in
control of the offending item or activity at the time of injury to
plaintiff. See, e.g. Brown vs. Powell, 176 N.E. 241, 243 (Ind.Ct.App. 1931).
Third, because public nuisance describes a form of harm rather than a
free-standing tort theory of liability, plaintiffs must plead an actionable basis in tort
for such a claim. Restatement (Second) of Torts § 821B, cmt. e.
Fourth, a legislative body cannot authorize conduct on one hand, and seek
to punish it through public nuisance actions on the other, particularly where a
comprehensive regulatory scheme already governs the challenged conduct. Sopher vs. State, 81
N.E. 913 (Ind. 1907). Plaintiffs Complaint does not satisfy any of these
requirements. Plaintiffs Complaint fails to bring the Citys public nuisance claim within
the limits set by Indiana common law.
Arguing that it need not plead an underlying tort in order to claim
relief for the harm produced by a public nuisance, the City departs once
again from common law, which requires that a defendants interference with a public
right involve conduct which is intentional or unintentional and otherwise actionable under the
principles controlling liability for negligent or reckless conduct or for abnormally dangerous activities.
Restatement § 821B, cmt. e. In other words, public nuisance claims
must arise from conduct which is actionable, not merely any conduct for which
liability would not otherwise lie, as plaintiff proposes.
As the Citys cases demonstrate, Indiana courts require that a plaintiff plead and
show underlying actionable conduct in order to support a public nuisance claim.
Contrary to plaintiffs argument, conduct cannot constitute a public nuisance unless it is
actionable under some theory of tort law. Restatement (Second) of Torts §
821B cmt. c. The City has not pled and cannot plead actionable
negligence, intentional misconduct or conduct
creating an ultrahazardous activity. The City is
required to do so to survive defendants motion to dismiss.
Indiana common law likewise prohibits the Citys public nuisance claim here because defendants
commercial activities are legislatively authorized and extensively regulated. Restatement (Second) of Torts
§ 821B, cmt. f;
Sopher, 81 N.E. at 915. Under an umbrella
of statutes and regulations, the United States Congress, the Indiana legislature, and Gary
have each authorized the lawful distribution, ownership and sale of firearms of specific
styles to federally licensed commercial entities - precisely the activity the City now
seeks to declare a nuisance.
The City misstates Indiana law, claiming that defendants owe a duty of care
to the City, because harm to the City caused by the criminal misuse
of firearms is foreseeable. Indiana law supports the imposition of a duty
of care to avoid foreseeable injuries to foreseeable victims only where the defendant
has a relationship with the plaintiff that gives rise to a duty to
protect the plaintiff from such injuries or, in the absence of such a
relationship, where the defendant has actual control over the instrumentality which caused the
Ebbingham, 693 N.E.2d at 648; Whitten v. Kentucky Fried Chicken Corp., 570
N.E.2d 1353,1356 (Ind.Ct.App. 1991); Helmchen, 685 N.E. 2d at 181.
Public policy, as articulated by the Indiana legislature, supports defendants continued lawful, regulated
manufacture and distribution of firearms to Indiana citizens.
Kellogg vs. City of
Gary, 562 N.E.2d 685, 694 (Ind. 1990). Indiana statutes and regulations reflect
Indianas public policy considerations concerning firearms and the distribution thereof. Those statutes
and regulations expressly allow defendants to do precisely what the City claims renders
them subject to liability in negligence. See id. The Citys attempt
to characterize defendants as wrongdoers, where their activities are expressly allowed by the
Indiana Constitution and the Indiana legislature, is improper. See Ind. Code §35-47-2-1,
et seq. (1999); see also Kellogg, 562 N.E.2d at 694.
The City attempts to aggregate all shootings, including accidental and intentional shootings, as
a basis for its product liability claim. By doing so, the City
seeks to hold defendants absolutely liable for injuries sustained through any use of
firearms, even where the firearms are misused and/or deliberately operated to cause intentional
injury. Neither Indiana nor any other court has adopted such a radical
departure from product liability law. See id.
The Citys failure to warn claim is equally flawed. In an attempt
to maintain its otherwise deficient claim, the City reconfigures its argument, stating that
defendants have not adequately warned buyers about the non-obvious dangers posed by firearms.
The City cannot evade the allegations of its own Complaint, which
because of its aggregated nature seeks to impose liability for failing to
warn of the open and obvious dangers associated with firearms, as well as
of the dangers of intentional and criminal misuse. In Indiana, a duty
to warn of a products risks extends only to those who can reasonably
be assumed to be ignorant of the risks that a warning would illuminate.
Senco Prod. Inc. vs. Riley, 434 N.E.2d 561, 570 (Ind.Ct.App. 1982).
Moreover, the duty to warn assumes that there is a hidden defect in
the product such that the danger created by the defect is not open
or obvious to all. See Bemis Co. v. Rubush, 427 N.E.2d 1058,
1061, cert. denied, 459 U.S. 825 (1982). There is no such basis
for such an assumption here, in light of the Citys aggregated claims which
seek liability on the basis of intentional as well as accidental shootings.
Accordingly, the Citys failure to warn claim should be dismissed.
For the reasons, and upon the grounds, set forth above, the
defendants Motions to Dismiss and, pursuant to Ind. Trial Rule 54(B), the Court
expressly determines that there is no just reason for delay in entry of
Judgment in favor of the defendants. Accordingly, the Court expressly directs entry
of Judgment in favor of each and all of the remaining defendants named
in the caption, and against the plaintiff City of Gary, by its Mayor,
Scott L. King.
It is so
ORDERED, ADJUDGED and DECREED this 12 day of January, 2001.
On January 22, 2001, the City filed an amended complaint, naming as additional
defendants manufacturer Appellees Browning Arms Corp. (Browning), Colts Manufacturing Co., Inc. (Colts), and
Davis Industries, Inc. (Davis Industries). On March 13, 2001, the trial court
granted Appellees motion to dismiss the amended complaint:
ORDER OF MARCH 13, 2001
On January 23, 2001, Plaintiff files its First Amended Complaint, amended by interlineation
on March 12, 2001, after the original Complaint had been dismissed by this
Court on January 12, 2001.
Certain Defendants filed a renewed Motion to Dismiss, along with a Motion to
Strike the Smith and Wesson Settlement Agreement incorporated in the Amended Complaint.
Other Defendants joined in said motion.
NOW DETERMINES to grant Defendants Motion to Strike the Smith and
Wesson Settlement Agreement included in the Amended Complaint as being immaterial to the
issues being raised in the Complaint and is not admissible under Indiana Rules
of Evidence No. 405.
The Court FURTHER DETERMINES that the Amended Complaint
does not correct the deficiencies of the original Complaint as determined by the
Court with opinion.
IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that the renewed Motion to Dismiss
Plaintiffs First Amended Complaint by all Defendants is GRANTED and Plaintiffs First Amended
Complaint is dismissed in its entirety with prejudice. It is further ORDERED,
ADJUDGED AND DECREED that the renewed Motion to Strike the Smith and Wesson
Settlement Agreement by all Defendants is GRANTED and the Settlement Agreement of March
17, 2000 attached as an Exhibit to Citys First Amended Complaint is ORDERED
stricken. The Court incorporates herein the reasoning set forth in its Order
dated January 12, 2001.
SO ORDERED this 13th day of March, 2001.
The City now appeals.
Discussion and Decision
The trial court granted Appellees motion to dismiss the Citys complaint pursuant to
Trial Rule 12(B)(6).
A trial rule 12(B)(6) motion to dismiss for failure to state a claim
upon which relief can be granted tests the sufficiency of a claim, not
the facts supporting it. Therefore, we view the pleadings in the light
most favorable to the nonmoving party and draw every reasonable inference therefrom in
favor of that party. When reviewing a ruling on a motion to
dismiss, we stand in the shoes of the trial court and must determine
if the trial court erred in its application of the law.
Borgman v. Aikens, 681 N.E.2d 213, 216-17 (Ind. Ct. App. 1997), trans. denied
(1998) (citations omitted).
We will not affirm a dismissal under T.R. 12(B)(6) unless it is apparent
that the facts alleged in the challenged pleading are incapable of supporting relief
under any set of circumstances. This court accepts as true the facts
alleged in the pleading. Only when the pleading states a set of
facts, which, even if true, would not support the relief requested, will we
affirm the trial courts dismissal.
Lattimore v. Amsler, 758 N.E.2d 568, 570 (Ind. Ct. App. 2001) (citations omitted).
Under Indianas notice pleading system, a pleading need not adopt a specific legal
theory of recovery to be adhered to throughout the case. Ind.Trial Rule
8(A)[.] A pleading is sufficient when it pleads the operative facts so
as to place the defendant on notice as to the evidence to be
presented at trial. Rather than exalt form over substance, this Court will
uphold its long-standing policy that cases should be decided on the merits and
justice should not be defeated by technicalities.
Binninger v. Hendricks County Bd. of Zoning Commrs, 668 N.E.2d 269, 272 (Ind.
Ct. App. 1996), trans. denied (1997) (some citations omitted). With these standards
in mind, we turn to the Citys substantive claims.
I. Public Nuisance
In its amended complaint, the City alleged that [Appellees] joint and several ongoing
wrongful conduct relating to their creation, promotion, support, and supply of an illegitimate
secondary market for handguns has created, maintained, and contributed to a public nuisance
in the City of Gary. Appellants App. at 31. Several of
the Citys factual allegations involve dealer Appellees participating in straw purchases, wherein a
person purchases a handgun with the intent to transfer it to a person
who the purchaser knows cannot legally purchase a handgun. Id. at 15-18.
The City further alleged that the residents of Gary will continue to
fear for their health, safety and welfare and will be subjected to conduct
that interferes with the comfortable enjoyment of their life and property. Id.
at 31. Before we can evaluate the Citys public nuisance claim, we
must examine the relevant public nuisance law.
Indiana Code Section 34-19-1-1 provides that [w]hatever is: (1) injurious to health;
(2) indecent; (3) offensive to the senses; or (4) an obstruction to the
free use of property; so as essentially to interfere with the comfortable enjoyment
of life or property, is a nuisance, and the subject of an action.
This statute authorizes two causes of action: private nuisance and public
nuisance. The essence of a private nuisance is the use of property
to the detriment of the use and enjoyment of anothers property[,]
Halas, 600 N.E.2d 117, 120 (Ind. Ct. App. 1992), whereas [a] public nuisance
only requires an interference with a common right. Sand Creek Partners, L.P.
v. Finch, 647 N.E.2d 1149, 1152 n.4 (Ind. Ct. App. 1995).
The nuisance statute is written in broad, general terms, and it becomes clear
that an incredible breadth of conduct arguably fits under the label nuisance, including
most crimes and torts. Id. at 1152. Some limits must exist
on the law of nuisance[;] to ascertain these limits we turn to our
common law. Id. Of relevance in the instant case, one limitation
is the legislative authorization of a particular activity.
This limitation was explained by our supreme court in the following passage from
Sopher v. State, 169 Ind. 177, 81 N.E. 913 (1907), in which the
State sued a licensed saloon owner:
A public nuisance, strictly speaking, arises out of the violation of public rights,
and, as a general rule, results in no more special injury
person than to another. 1 Wood, Nuisances (3d ed.), § 1.
Such a nuisance
always arises from unlawful acts, consequently that which is lawful
cannot be regarded in a legal sense as a public nuisance. Therefore,
if the legislature of the State, by a statute, authorizes an act to
be done, which, in the absence of such a statute, would constitute a
public nuisance, such act is thereby made lawful, and cannot be considered or
regarded in a legal sense as a nuisance so far as the public
is concerned, unless the legislature, in enacting the statute, has exceeded its power.
Id. at 183, 81 N.E. at 915 (emphasis added).
Sopher court went on to explain that
[i]t is not within the province of the judges of this court, nor
of those of the lower courts, in the discharge of their official duties,
to criticize the policy of the legislative department, which the latter has adopted
in dealing with the liquor traffic. In the administration of justice all
courts must be controlled, so far as applicable, by the laws which the
legislature has constitutionally enacted, without regard to the individual views, in respect to
the wisdom or expediency of such laws, of the persons who may preside
over such courts. Neither boards of commissioners nor courts can be held
responsible for granting a license under the laws to sell intoxicating liquors to
an applicant therefor who is shown to be legally entitled to such license.
In discharging this duty such boards of commissioners and courts but carry
out the mandate of the law, above which no one can rise, and
not the individual views of those who preside over them. It must
be evident to every unprejudiced mind that a court cannot nullify an act
of the legislature on the mere assertion of persons assailing it that a
license granted thereunder permits the licensee to maintain a public nuisance
by merely selling intoxicating liquors, without violating any of the laws of the
State in conducting the place in which such liquors are sold, for, as
heretofore shown, whatever is authorized by an act of the legislature, which that
body is competent, under the Constitution, to pass, is not, in the eye
of the law, a nuisance.
While all citizens of this State have a perfect right to cry out,
or declare upon the hustings, or before the legislature, or other assembled bodies,
that the liquor traffic cannot be legalized without committing a sin, and while
their arguments might be sufficiently potent to induce the legislature to prohibit absolutely
the traffic, they could be of no avail before a court which can
neither make nor unmake laws.
Id. at 201-02, 81 N.E. at 921-22. In other words, if an
activity causes harm that would otherwise constitute a public nuisance, but the activity
has been authorized by the legislature, then the author of the activity cannot
be held legally responsible for public nuisance.
As the Sopher court stated,
if the legislature of the State, by a statute, authorizes an act to
such act is thereby made lawful, and cannot be considered
or regarded in a legal sense as a nuisance so far as the
public is concerned[.]
Id. at 183, 81 N.E. at 915.
We must accept as true the Citys allegations that the illegal secondary handgun
market in the City is causing increased fear among its residents and that
Appellees are, at least in part, causing the increased fear through their activities.
However, Appellees cannot be legally responsible for public nuisance if their activities
are authorized by the legislature.
For the Citys public nuisance claim to
survive the pleading stage, the City must allege activity by Appellees that is
specifically proscribed by the legislature.
The manufacture, distribution, and sale of handguns are authorized by both state and
federal law, although these activities are heavily regulated.
The City does not
allege that any Appellees have violated any specific statute, ordinance, rule, or regulation
with respect to the manufacture, distribution, or sale of handguns. After evaluating
the Citys first amended complaint in the light most favorable to the City
and drawing every reasonable inference therefrom in the Citys favor, we conclude that
as to manufacturer Appellees Smith & Wesson Corp. (Smith & Wesson), Beretta U.S.A.,
Corp., Colts, Browning, Glock Corp., Charter Arms Corp., Hi-Point Firearms Corp., Navegar Inc.,
d/b/a/ Intratec U.S.A., Corp., Bryco Arms Corp., Phoenix Arms Corp., Lorcin Engineering Corp.,
Sturm, Ruger & Co., Corp., Taurus Firearms Corp., Davis Industries, distributor Appellee B.L.
Jennings Inc., and dealer Appellees Jacks Loan, Inc. (Jacks Loan), Jim Shemas Outdoor
Sports, and Westforth Sports, Inc., the City has alleged no legislatively unauthorized activity.
Thus, the trial court properly dismissed the Citys public nuisance claim against
those parties for failure to state a claim upon which relief can be
granted. Such is not the case for the remaining dealer Appellees, however.
Paragraph 39A of the Citys first amended complaint alleged that Appellee Cash Indiana,
Inc. (Cash Indiana) sold a handgun to an undercover police officer who, known
to Cash Indiana, was going to give it to a person who appeared
to be unable legally to buy a handgun without first submitting to a
See Appellants App. at 15. Paragraph 39C alleged that
Cash Indiana sold a handgun to an undercover police officer who, known to
Cash Indiana, was going to give it to a person who claimed to
be a convicted felon. Id. at 16. Paragraph 39E alleged that
Appellee Ameri-Pawn of Lake Station, Inc. (Ameri-Pawn) sold a handgun to an undercover
police officer who, known to Ameri-Pawn, was going to give it to a
person who claimed to be a juvenile. Id. at 17. Paragraph
39F alleged that Appellee Blythes Sport Shop, Inc. (Blythes) sold a handgun to
an undercover police officer who, known to Blythes, was going to give it
to a person who claimed to be a juvenile. Id. Paragraph
39H alleged that Cash Indiana sold a handgun to an undercover police officer
who, known to Cash Indiana, was going to give it to a person
who appeared to be unable to legally purchase a handgun without first submitting
to a background check. Id. Paragraph 39I alleged that Ameri-Pawn sold
a handgun to an undercover police officer who, known to Ameri-Pawn, was going
to give it to a person who appeared to be unable to legally
purchase a handgun without first submitting to a background check.
Each of these allegations describes the straw purchase of a handgun, which is
a felony in Indiana.
See Ind. Code § 35-47-2.5-14(b) (A person who
purchases a handgun with the intent to
resell or otherwise provide the
handgun to another person who the person knows or has reason to believe
is ineligible for any reason to purchase or otherwise receive from a dealer
commits a Class D felony.). A dealer who knowingly
or intentionally attempts to aid, induce, or cause a straw purchase also commits
an unlawful act and can be held criminally liable to the same extent
as the purchaser.
Under the facts alleged by the City, dealer Appellees Cash America, Ameri-Pawn, and
Blythes have attempted to aid, induce, or cause the straw purchase of a
handgun, which is clearly legislatively unauthorized. We therefore reverse the trial courts
dismissal of the Citys public nuisance claim against those parties.
The City also brought suit against all Appellees for negligent marketing, distribution, sale,
and failure to warn, and brought suit against manufacturer Appellees for negligent design.
Specifically, the City alleged that Appellees conduct is negligent and [that they
have] breached their duty of care to [the City] and its citizenry by
creating and supplying and supporting an illegitimate secondary market for handguns
failing to exercise reasonable care in [the] marketing, manufactur[e,]
distribution[,] and sale
of their handguns. Appellants App. at 32. The City also alleged
that [a]ll [Appellees] further violated their duty by negligently designing, manufacturing, distributing, and/or
selling guns with inadequate, incomplete, or nonexistent warnings regarding the risks of harm
of the product[.] Id. at 34.
The City alleged that manufacturer [Appellees] specifically violated [their duty to [the City]
to act in a reasonably prudent manner in regards to the design of
their handguns] by designing guns which they knew or should have known did
not have adequate safety devices[.]
Id. The City further claimed that
[a]s a direct and proximate result of [Appellees] aforesaid negligent intentional and wrongful
acts and omissions, the handguns manufactured, distributed and sold by [Appellees] have damaged
[the City] and harmed its citizenry, thereby causing [the City] to incur substantial
expenses for police and other law enforcement services, rescue services, emergency medical services
and other emergency services, pension benefits, disability benefits, workers compensation benefits, health care,
jail costs, increased security and other services in public facilities and other necessary
facilities and services due to the threat of or actual use of the
Id. at 35.
To sustain an action for negligence, the City must establish
(1) a duty owed by the defendant to conform its conduct to a
standard of care arising from its relationship with the plaintiff; (2) a breach
of that duty; and (3) an injury proximately caused by the breach of
that duty. The first of these three elements, the existence of a
duty, is a question of law for the court to determine.
Benton v. City of Oakland City, 721 N.E.2d 224, 232 (Ind. 1999) (citations
omitted). The duty, when found to exist, is the duty to exercise
reasonable care under the circumstances. Stump v. Indiana Equip. Co., 601 N.E.2d
398, 402 (Ind. Ct. App. 1992), trans. denied (1993). The duty never
changes, [although] the standard of conduct required to measure up to that duty
varies depending upon the particular circumstances. Id. Absent a duty, there
can be no breach, and thus, no basis for recovery under a negligence
theory. Bloemker v. Detroit Diesel Corp., 720 N.E.2d 753, 757 (Ind. Ct.
App. 1999), trans. denied (2000).
A. Relationship Between the Parties
[T]he relationship of the parties is a proper factor for consideration in determining
whether a legal duty exists in a particular case.
Perdue Farms, Inc.
v. Pryor, 683 N.E.2d 239, 241-42 (Ind. 1997) (citing Webb v. Jarvis, 575
N.E.2d 992, 995 (Ind. 1991)). This determination may also consider various other
factors, among which are the reasonable foreseeability of harm and public policy concerns.
In the instant case, we consider the relationship of the
the reasonable foreseeability of the harm, and public policy concerns. Some
of the Citys allegations apply only to some Appellees of which there are
three distinct classes: manufacturers, a distributor, and dealers. We consider each
class of Appellees separately where appropriate.
The City has not alleged that any of the dealer Appellees has any
established legal relationship with the City, such as a contractual relationship, a landlord/tenant
relationship, or a fiduciary relationship. In fact, only one Appellee (dealer Jacks
Loan) is even located in the City. Dealer Appellees merely sell handguns,
some of which eventually make their way into the City. Simply put,
the relationship between the City and dealer Appellees is, at best, an attenuated
2. Distributor and Manufacturers
The relationship between the City and distributor Appellee and manufacturer Appellees is even
more attenuated, especially with respect to the chain of distribution described in the
At the outset, we acknowledge the distinction between foreseeability in the duty context
and foreseeability in the proximate cause context, as concisely stated by Judge Kirsch
in Goldsberry v. Grubbs, 672 N.E.2d 475 (Ind. Ct. App. 1996), trans. denied
By logical deduction, the foreseeability component of the duty analysis must be something
different than the foreseeability component of proximate cause. More precisely, it must
be a lesser inquiry; if it was the same or a higher inquiry
it would eviscerate the proximate cause element of negligence altogether. If one
were required to meet the same or a higher burden of proving foreseeability
with respect to duty, then it would be unnecessary to prove foreseeability a
second time with respect to proximate cause. Additionally, proximate cause is normally
a factual question for the jury, while duty is usually a legal question
for the court. As a result, the foreseeability component of proximate cause
requires an evaluation of the facts of the actual occurrence, while the foreseeability
component of duty requires a more general analysis of the broad type of
plaintiff and harm involved, without regard to the facts of the actual occurrence.
Id. at 479 (citations omitted). Without regard to the Citys specific factual
allegations, we conclude that it is indeed foreseeable that a municipality, such as
the City, will incur costs because of the misuse of handguns within its
C. Public Policy
In ascertaining public policy, we first look to the Constitution, the legislature, and
the judiciary for explicit declarations of public policy. Trotter v. Nelson, 684
N.E.2d 1150, 1152-53 (Ind. 1997). Article I, Section 32 of the Indiana
Constitution provides that [t]he people shall have a right to bear arms, for
the defense of themselves and the State. In its most recent pronouncement,
our supreme court recognized that the right to bear arms is a personal
right enjoyed by private citizens:
Article I, § 32 of the Indiana Constitution is entitled Bearing arms and
provides as follows:
The people shall have a right to bear arms, for the defense of
themselves and the State.
Indiana Const., Art. I, § 32. Our Court of Appeals recognized this
substantive right in
Schubert v. DeBard (1980), Ind.App., 398 N.E.2d 1339, when it
We think it clear that our constitution provides our citizenry the right to
bear arms for their self-defense.
Id. at 1341.
We agree with the Court of Appeals analysis in
Schubert, and now find that this right of Indiana citizens to bear arms
for their own self-defense and for the defense of the state is an
interest in both liberty and property which is protected by the Fourteenth Amendment
to the Federal Constitution. This interest is one of liberty to the
extent that it enables law-abiding citizens to be free from the threat and
danger of violent crime. There is also a property interest at stake,
for example, in protecting ones valuables when transporting them, as in the case
of a businessman who brings a sum of cash to deposit in his
bank across town.
Kellogg v. City of Gary, 562 N.E.2d 685, 694 (Ind. 1990).
D. Balancing of the Factors
The fact that the United States Congress and the Indiana General Assembly have
pervasively regulated the manufacture, distribution, sale, and use of handguns suggests that those
legislatures have already evaluated the public policy concerns regarding these activities. The
misuse of handguns, whether criminal or merely accidental, imposes great costs on society,
of which all legislators are undoubtedly aware. In an attempt to minimize
the costs of handgun misuse, legislatures have passed laws designed to curtail handgun
ownership by those who are more likely to misuse them, including known criminals,
children, intoxicated persons, and mentally ill persons. We must presume that Congress
and the General Assembly, as elected representatives of the people, have struck the
appropriate balance between the societal costs of handguns and the historical right to
It is worth noting, however, that the costs of the misuse of firearms
in Indiana are substantial, perhaps nowhere more so than in the City.
In 1999, homicide was the second-leading cause of death of all Hoosiers between
the ages of fifteen and twenty-four.
Of those homicides, 84.9% were committed
According to the City, over seventy persons were murdered with
handguns in the City in 1997, and another fifty-four were murdered with handguns
in 1998. Appellants App. at 9-10. In 2001, the City had
the highest per-capita murder rate in the nation, at 59.4 murders per 100,000
In contrast, the 2001 murder rates per 100,000 population for other
Indiana cities were 27.8 for Hammond, 12.5 for Indianapolis, 11.9 for South Bend,
9.9 for Fort Wayne, and 7.2 for Evansville.
While we recognize that
public policy, as expressed in our constitution and by our legislature and judiciary,
favors the availability of firearms, including handguns, we would be remiss if we
failed to note some of the societal costs of firearm misuse.
As previously mentioned, none of the Appellees have close relationships with the City,
and public policy clearly favors the availability of handguns. We conclude that
these two factors substantially outweigh foreseeability, even though we recognize that it is
reasonably foreseeable that the City will incur costs related to the misuse of
handguns in the City.
We therefore conclude that none of the Appellees
owes a duty of care to the City. Absent a duty, there
can be no negligence. Thus, we must affirm the trial courts dismissal
of the Citys negligence claims against all Appellees.
III. Proposed Settlement Agreement
The City contends that the trial court erred in granting manufacturer Appellees motion
to strike a proposed settlement agreement between the City and Smith & Wesson
attached to the Citys first amended complaint. See Appellants App. at 40-60.
The City claims that the proposed settlement agreement tends to show feasibility,
i.e., that Appellees could
both control the distribution and sale of their
dangerous products, and incorporate feasible, life-saving design features into their handguns. Appellants
Br. at 47.
Indiana Trial Rule 12(F) provides in relevant part that the court may order
stricken from any pleading any insufficient claim or defense or any redundant, immaterial,
impertinent, or scandalous matter. Simply put, whether handgun manufacturers could in fact
reform their business practices to reduce the costs of handgun misuse to society
is immaterial at the pleadings stage, in which we are merely evaluating the
legal sufficiency of the Citys claim. The trial court properly struck the
proposed settlement agreement.
In summary, we reverse the trial courts dismissal of the Citys public nuisance
claim as to dealer Appellees Cash America, Ameri-Pawn, and Blythes, affirm the trial
courts judgment in all other respects, and remand for further proceedings consistent with
Affirmed in part and reversed and remanded in part.
MATHIAS, J., concurs.
RILEY, J., concurs in part and dissents in part, with opinion.
COURT OF APPEALS OF INDIANA
CITY OF GARY, INDIANA, by its Mayor, )
SCOTT L. KING, )
vs. ) No. 45A03-0105-CV-155
SMITH & WESSON CORP., BERETTA U.S.A. )
CORP., COLTS MFG. CORP., BROWNING )
ARMS CORP., GLOCK CORP., CHARTER )
ARMS CORP., HI-POINT FIREARMS CORP., )
NAVEGAR INC. d/b/a INTRATEC USA CORP., )
B.L. JENNINGS INC., BRYCO ARMS CORP., )
PHOENIX ARMS CORP., LORCIN ENGINEERING )
CORP., STURM, RUGER & CO. CORP., TAURUS )
FIREARMS CORP., DAVIS INDUSTRIES, INC., )
AMERI-PAWN OF LAKE STATION, INC., )
BLYTHES SPORT SHOP, INC., CASH INDIANA, )
INC., JACKS LOAN, INC., JIM SHEMAS )
OUTDOOR SPORTS, WESTFORTH SPORTS, )
INC., and DOES 1-225, )
I. Public Nuisance
RILEY, JUDGE, concurring in part and dissenting in part
I respectfully concur in part and dissent in part. I concur with
the majoritys reversal of the trial courts grant of Appellee retailers motion to
dismiss Citys public nuisance complaint. I would, however, reverse the trial courts
grant of Appellee manufacturers and Appellee distributors Motions to dismiss the public nuisance
complaint. I would further reverse the trial courts grant of all Appellees
motions to dismiss the negligence and product liability claims.
The majority finds that Appellee manufacturers cannot be liable to City because their
conduct is legislatively authorized, and therefore cannot be a public nuisance as a
matter of law. I disagree.
The majority notes that, under our common law, legislative authorization of a particular
activity acts as a limitation on nuisance liability. The majority then concludes
that, because City has not alleged that Appellees violated any specific statute, ordinance,
rule, or regulation with respect to the manufacture, distribution, or sale of handguns,
their conduct is therefore authorized by the legislature.
The majority relies on
Sopher v. State, 169 Ind. 177, 81 N.E. 913
(Ind 1907). In that case, our supreme court stated that which is
lawful cannot be regarded in a legal sense as a public nuisance.
Id. at 183, 81 N.E. at 915. But this should not
be understood to mean that a company that conducts its lawful business negligently
should be free from liability. It is true that the manufacture, distribution,
and sale of handguns is regulated at both the Federal and state levels.
However, a lawful business may be so conducted as to become a
nuisance. Cox v. Schlachter, 262 N.E.2d 550, 554 (Ind. Ct. App. 1970).
The specific conduct alleged by City in its complaint is not regulated by
See Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1143 (Oh.
2002). City has claimed, inter alia, that Appellees distribute their product in
a willful, deliberate, reckless, and negligent fashion. (Complaint, ¶ 51.) For
the purposes of a motion to dismiss, this court must accept these allegations
as true. Lattimore v. Amsler, 758 N.E.2d 568, 570 (Ind. Ct. App.
2001). The majority cannot reasonably contend that willful, deliberate, reckless, and negligent
distribution of firearms is legislatively authorized. Whether Appellees distribution practices are in
fact negligent is a question for a trier of fact, not for a
motion to dismiss. See id.
In my view, a defense of legislative authorization should defeat a public nuisance
claim only when the specific conduct complained of is expressly authorized or plainly
and necessarily implied by statute or regulation. City of Frankfort v. Slipher,
162 N.E. 241, 246 (Ind. Ct. App. 1928). For example, in Sopher,
supra, the defendant was convicted of maintaining a public nuisancea saloon where he
sold liquor. In reversing the conviction, the supreme court explained that Sopher
had a license to do the very act that formed the substance of
the States nuisance complaint, i.e., to operate a saloon and sell liquor.
Id. at 922. The conduct complained of was expressly authorized by statute.
See City of Frankfort, 162 N.E. at 246. In Howard v.
Robinette, 99 N.E.2d 110 (Ind. Ct. App. 1951), trans. denied, a landowner brought
a public nuisance action against a neighboring power plant, arguing that the noise
from the plants new, larger diesel engine created a public nuisance. This
court reversed a judgment for the landowner, holding that the operation of the
plant was necessary for the public good. Id. at 71. The
grant of legislative authority reasonably to extend and improve the facility as demand
required implied authorization to use a series of larger, louder engines to make
the improvements. Id. at 73. Applying the City of Frankfort standard
to the present case, the Appellees have not shown that the conduct City
complains ofnegligent and reckless distribution practices creating an illegal secondary market for handgunsis
either expressly authorized or plainly and necessarily implied by existing law.
The majority finds the issue of legislative authorization dispositive, so it does not
address the additional three (3) arguments Appellee manufacturers raise in response to the
public nuisance claim. The arguments are as follows:
1) Under Indiana common law, public nuisance requires either an interference with real
property or violation of a statute;
2) Appellees had no control over the instrumentality of the nuisance;
3) City failed to plead facts demonstrating that Appellees unreasonably interfered with a
1. Indiana public nuisance law does not require interference
Because I do not believe that legislative authorization requires dismissal of Citys public
nuisance claim, I will address each of these arguments in turn.
with real property or statutory violations
Appellees contend that, under Indiana common law, a public nuisance action requires allegations
of either an interference with real property or violation of a statute. Appellees
state that every public nuisance decision in Indiana includes at least one of
these elements. (Brief. of Appellee manufacturers, at 21). This may be so,
but we have never held that public nuisance law is limited to these
types of actions. See Cincinnati, supra, 768 N.E.2d at 419. Public
nuisance is defined by statute in Indiana: [w]hatever is (1) injurious to
health; (2) indecent; (3) offensive to the senses; or (4) an obstruction to
the free use of property; so as essentially to interfere with the comfortable
enjoyment of life or property, is a nuisance, and the subject of an
action. Ind. Code § 32-30-6-6 (emphasis added).
It is clear from the language of the statute that an interference with
property is a sufficient, but not a necessary condition of a public nuisance
claim. A public nuisance claim requires only an allegation of an unreasonable
interference with a public right.
Sand Creek Partners, L.P. v. Finch, 647
N.E.2d 1149, 1151 (Ind. Ct. App. 1995). In determining what constitutes an
unreasonable interference, the Sand Creek court stated We
require one claiming damages from a
public nuisance to demonstrate that the agency as operated has more than a
mere tendency to, or increased likelihood of, causing an injury. The alleged
nuisance must cause injury as a reasonable and natural result of its operation.
Id. at 1152. The Restatement (Second) of Torts (Restatement) includes
as unreasonable interferences acts which significantly interfere with public health, safety, peace, comfort,
or convenience; conduct that is contrary to statute, ordinance, or regulation; or conduct
that is of a continuing nature or has produced a permanent or long-lasting
effect upon the public right of which the actor is or should be
aware. Restatement § 821B(2).
Again, this court must assume for the purpose of this appeal the truth
of the facts City pleads. Whether those facts lead to the conclusion
that Appellees have created and maintained an illegal secondary firearms market that causes
injury as a natural result of its operation is inappropriate for decision at
this early stage of the proceedings.
2. The Appellees maintain control over the instrumentality of the nuisance
Appellees next argue that they cannot be liable for a public nuisance because
they had no control over the instrumentality of the nuisance. Because they
have no physical control over the handguns at the moment they are used
to commit crimes or otherwise injure the citizens of Gary, Appellees argue, they
cannot be held liable for a public nuisance. It is true that
City does not allege that any of the Appellees controlled the handguns at
the moment that harm occurred; however, this argument misses the point of Citys
allegations. City has claimed that Appellees wrongfully created, promoted, supported, and supplied
an illegitimate secondary market for handguns in Gary. (Complaint, ¶ 69). Thus,
City has alleged that Appellees control the creation, promotion, support, and supply of
this market. See Cincinnati, supra, 768 N.E. 2d at 420; City of
Boston v. Smith & Wesson Corp., 12 Mass. L.Rptr. 225, 2000 WL 1473568
at 14 (Mass. Superior Ct. 2000) ([t]he instrumentality which Plaintiffs allege Defendants controlled
is the creation and supply of this secondary market.).
3. City pled facts alleging that Appellees unreasonably
interfered with a public right
Finally, Appellees argue that a public nuisance claim requires allegations of unreasonable interference
with a public right. They contend that City has failed to plead
facts demonstrating that their interference with a public right was unreasonable. Quoting
the Restatement, Appellees argue that unreasonable interference is intentional or [is] unintentional and
otherwise actionable under the principles controlling liability for negligent or reckless conduct or
for abnormally dangerous activities. § 821A, cmt. e. Restatement § 825 defines
interference with the public right, is intentional if the actor
(a) acts for the purpose of causing it, or
(b) knows that it is resulting or is substantially certain to result from
Id. § 825.
II. Negligent Distribution and Marketing
While our public nuisance statute does not require a plaintiff to plead intentional
or negligent interference with a public right, City has nevertheless alleged facts sufficient
to overcome even this heightened standard. For example, City has alleged that
Appellees create, support, promote, and supply an illegitimate secondary market for handguns.
Complaint, ¶ 69. Furthermore, it has alleged that Appellees knew or should
have known that the creation and supply of this market would interfere with
the public right of the citizens of Gary to be free from handgun
Id. ¶¶ 36, 38, 41-43.
The majority also affirms the trial courts dismissal of Citys claims against all
Appellees for negligent distribution and marketing. Applying a three-factor analysis, the majority
concludes the Appellees owed no duty to City as a matter of law.
I disagree. The majority finds the relationship between Appellee retailers and
City attenuated because these retailers merely sell handguns, some of which eventually make
their way into the City. It finds the relationship between Appellee manufacturers
and distributor and City even more attenuated because of the chain of distribution
alleged by the City. For the majority, the attenuated relationship between the
parties renders the connection between the harm alleged by City and the conduct
of Appellees tenuous and remote. In other words, the majority seems to
be saying, City is not a foreseeable plaintiff with respect to the Appellees.
In determining whether a relationship exists that would impose a duty, we must
consider the nature of the relationship, a partys knowledge, and the circumstances surrounding
Downs v. Panhandle Eastern Pipeline Co., 694 N.E.2d 1198, 1203
(Ind. Ct. App. 1998) trans. denied. In making these considerations, I
examine the Citys complaint, which alleges that Appellees have affirmatively acted to harm
City. I find the reasoning of the court in City of Boston
persuasive on this issue:
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 allegedthe
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. Further, according
to the complaint, Defendants did this knowing that the firearms would end up
in that market, and, depending upon precisely that result, realizing that Plaintiffs would
be harmed. 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.
Id. at 34. See also White v. Smith & Wesson, 97 F.Supp.2d
816, 828-29 (N.D. Ohio 2000) ([i]t cannot be said, as a matter of
law, that Defendants are free from negligence because they do not owe Plaintiffs
a duty of care
In this matter, the question is whether a reasonably prudent
gun manufacturer should have anticipated an injury to the Plaintiffs as a probable
result of manufacturing, marketing, and distributing a product with an alleged negligent design);
Cincinnati, supra, 768 N.E.2d at 1144-45.
The majoritys analysis, by focusing on the Appellees lack of physical proximity to
City and the multiple steps in the manufacturers chain of distribution, fails to
recognize the essential point: the Appellees conduct, taken as true, leads naturally and
foreseeably to the injuries alleged by City.
I also disagree with the majoritys analysis of the public policy issues at
stake in this case. That the citizens of Indiana have a right
under our Constitution to own handguns is irrelevant to the Citys claims: the
Citys complaint as pleaded does not seek to infringe upon this right; rather,
it seeks a civil remedy for specific alleged damages caused by specific defendants.
According to the majority, We must presume that Congress and the General
Assembly, as elected representatives of the people, have struck the appropriate balance between
the societal costs of handguns and the historical right to bear arms.
However, in enforcing the states negligence and public nuisance laws, Courts are not
legislating or making or revising rules and regulations.
White, 97 F.Supp.2d at
821. Rather, they are enforcing the power of the state to legislate
as to the protection of the lives, limbs, health, comfort, and quiet of
all persons. Id. (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 475,
116 S.Ct. 2240, 2245 (1996). Last year, the city of Gary had
the highest per capita murder rate in the nation. A citys foremost
concern is the health and welfare of its citizens. Appellees make and
sell a product that is demonstrably devastating to that health and welfare.
To claim that public policy weighs against imposing a duty on these Appellees
to act with care toward the City is, in my view, unreasonable.
III. Product Liability
The Citys complaint also included product liability claims against Appellee manufacturers for negligent
design, and against all Appellees for failure to warn. The trial court
dismissed these claims, holding that City sought to aggregate all shootings in Gary,
including accidental or criminal ones, as the basis for its product liability claims.
According to the trial court, the products liability claims seek to hold
Appellees absolutely liable for injuries sustained through any use of firearms in the
Contrary to the trial courts opinion, Citys failure to identify specific injuries caused
by specific handguns is not fatal to its products liability claims. Indiana
is a notice pleading state. A plaintiff need only plead the operative
facts involved in the litigation; the complaints allegations must simply be sufficient to
put a reasonable person on notice as to why the plaintiff sues.
City of Anderson v. Weatherford, 714 N.E.2d 181, 185 (Ind. Ct. App. 1999),
trans. denied. See also Cincinnati, 768 N.E.2d 1145-46 (Appellant was not required
to allege with specificity that particular guns were defective and as a result
caused particular injuries.).
City has alleged that Appellee manufacturers designed guns with inadequate safety features, making
them unreasonably dangerous. (Complaint, ¶ 81). Whether the failure to
install a safety device renders a product unreasonably dangerous is a question of
fact. FMC Corp. v. Brown, 526 N.E.2d 719, 726 Ind. Ct. App.
1988), affd., 551 N.E.2d 444 (Ind. 1990). City has also alleged that
all Appellees failed to warn consumers of certain dangers associated with handguns.
(Complaint, ¶ 82). Some of these allegations involve dangers that are not
open and obvious, such as the risk that a handgun could be fired
even with the ammunition magazine removed. A manufacturer or retailer may be
liable for selling a product without warning of a latent danger in its
design or use. Koske v. Townsend Engineering Co., 551 N.E.2d 437, 440
(Ind. Ct. App. 1990).
The Citys allegations, taken as true, are sufficient to overcome the Appellees motion
to dismiss. I would reverse the dismissal of Citys product liability claims.
We heard oral argument in this case on May 22, 2002,
in Indianapolis, Indiana. We commend counsel for the high quality of their
written and oral advocacy.
Footnote: * Defendants indicated with an asterisk (
) are not parties to this
appeal, as they were not named in the Citys first amended complaint.
It is clear that the trial court meant to cite Evidence
Rule 408, as it relied upon Evidence Rules 408 and 401 in striking
the proposed settlement agreement in its order dismissing the Citys first complaint.
Although private nuisance and public nuisance are both generally described as
nuisance actions, Prosser and Keeton note that [t]he two have almost nothing to
do with one another, except that each causes inconvenience to someone, and it
would have been fortunate if they had been called from the beginning by
different names. W. Page Keeton et al., Prosser and Keeton on Torts
§ 86 (5th ed. 1984) (footnotes omitted).
A private nuisance is a civil wrong, based on a disturbance of rights
in land. The remedy for it lies in the hands of the
individual whose rights have been disturbed. A public or common nuisance, on
the other hand, is a species of catch-all criminal offense, consisting of an
interference with the rights of the community at large, which may include anything
from the obstruction of a highway to a public gaming-house or indecent exposure.
As in the case of other crimes, the normal remedy is in
the hands of the state.
Id. (Footnotes omitted.) A panel of this court has noted that [t]he
law of nuisance creates problems of definition for courts and commentators. As
stated by one expert, [t]here is perhaps no more impenetrable jungle in the
entire law than that which surrounds the word nuisance. Sand Creek Partners,
647 N.E.2d at 1151 (quoting Keeton, supra, § 86). A comprehensive exploration
of the definitional problems presented by nuisance is beyond the scope of this
Even though the Indiana Code lists no affirmative defenses to public
nuisance, we conclude that legislative authorization functions as such because it relieves a
defendant of liability even if its activity is causing harm.
Molargik v. West Enter., Inc., 605 N.E.2d 1197, 1199 (Ind. Ct. App. 1993)
(concluding that a businesss industrial nature is an affirmative defense to a nuisance
claim even though not designated as such in the Indiana Code); see also
Blacks Law Dictionary 430 (7th ed. 1999) (defining affirmative defense as [a] defendants
assertion raising new facts and arguments that, if true, will defeat the plaintiffs
or prosecutions claim, even if all allegations in the complaint are true.).
Although Appellees did not raise legislative authorization in a responsive pleading as contemplated
by Indiana Trial Rule 8(C), we nevertheless conclude that the trial court properly
considered it in a motion to dismiss for failure to state a claim
upon which relief can be granted. See 1A William F. Harvey, Indiana
Practice: Rules of Procedure Annotated § 12.11 (3d ed. 1999) ([A]n affirmative
defense that is not listed in Rule 8(C) may be raised [by a
The special injury doctrine of public nuisance provides that [a] private
party may bring an action to redress a public nuisance by demonstrating peculiar
injury apart from that suffered by the public.
Sand Creek Partners, 647
N.E.2d at 1152.
The dissent cites to
Cox v. Schlachter, 147 Ind. App. 530,
262 N.E.2d 550 (1970), for the proposition that a lawful business may be
so conducted as to become a nuisance. Id. at 534, 262 N.E.2d
at 554. Cox is a private nuisance case, as are all Indiana
cases holding that a statutorily authorized activity can constitute a nuisance. See,
e.g., Muehlman v. Keilman, 257 Ind. 100, 109-10, 272 N.E.2d 591, 597 (1971);
Griffin v. Hubbell, 212 Ind. 684, 690, 11 N.E.2d 136, 139 (1937); Bowen
et al. v. Mauzy, 117 Ind. 258, 264, 19 N.E. 526, 528 (1888);
Owen v. Phillips, 73 Ind. 284, 288 (1881); Indiana Michigan Power Co. v.
Runge, 717 N.E.2d 216, 229 (Ind. Ct. App. 1999); Yeager & Sullivan, Inc.
v. ONeill, 163 Ind. App. 466, 474, 324 N.E.2d 846, 852 (1975); Lake
Shore & M.S. Ry. Co. v. L.S. & S.B. Ry. Co., 48 Ind.
App. 584, 588, 92 N.E. 989, 991 (1910); Pritchett v. Bd. of Commrs
of Knox County, 42 Ind. App. 3, 10, 85 N.E. 32, 34 (1908).
The dissent also quotes the public nuisance case of City of Frankfort v.
Slipher, 88 Ind. App. 356, 372, 162 N.E. 241, 246 (1928), trans. denied,
for the proposition that a defense of legislative authorization should defeat a public
nuisance claim only when the specific conduct complained of is expressly authorized or
plainly and necessarily implied by statute or regulation. In City of Frankfort,
a sewer system built by Frankfort forced raw sewage onto Sliphers property, which
the statute in question did not specifically authorize. In constructing such a
sewer system, Frankfort may well have been negligent. However, Frankfort did, in
fact, affirmatively violate a separate criminal statute, thus bringing the case within the
ambit of Sopher. See id. at 369, 162 N.E. at 245 (By
§2647 Burns 1926, §2066 R. S. 1881, it is made a public nuisance
and an indictable offense for any person to cause of suffer any offal,
filth or noisome substance to be collected or remain in any place to
the damage or prejudice of others, or to the public, so as to
injure the property of others or, essentially, to interfere with the comfortable enjoyment
of life.) (emphasis added).
Additionally, we note that the City of Frankfort courts dicta concerning legislative authorization,
quoted by the dissent, was drawn from Anable v. Board, etc., 34 Ind.
App. 72, 71 N.E. 272 (1904), which was a private nuisance case.
The full citation from Anable reads as follows:
Moreover, if it be conceded that the State might direct some particular specific
act to be done in a specified manner, which would necessarily, under any
condition, result in the creation of what would be, without such authorization, a
private nuisance, yet in the absence of specific legislative direction as to the
manner in which the act should be done, it should not be assumed
that the State, public necessity not requiring it, would so exercise the power
as to injure the property of an individual.
It must be noted that the statute simply makes it the duty of
the board in all cases to take prompt action to arrest the spread
of contagious diseases. The board is not required by the statute to
erect and maintain a pesthouse. The discretion committed to the board is
not limited to determining the location of a pesthouse, but it also involves
the duty of determining whether it shall be built at all. That
is, if the board erects a pesthouse, it does so under authority necessarily
implied from the powers expressly conferred. And if the board pleads statutory
sanction in justification of an act which the general rules of law constitute
a nuisance to private property, it should show either that the act is
expressly authorized by the statute, or that it is plainly and necessarily implied
from the powers expressly conferred.
Id. at 77-78, 71 N.E. at 274 (emphases added).
Finally, the dissent cites to
Howard v. Robinette, 122 Ind. App. 66, 99
N.E.2d 110 (1951) trans. denied, to support its argument. However, Howard is
also a private nuisance case, and is therefore inapposite. See id. at 74,
99 N.E.2d 113 ([G]rants of legislative authority do not confer on municipalities the
power to operate the facilities of a power plant in total disregard of
the private rights of others[.]) (emphasis added).
In its judgment, the trial court stated that plaintiffs must plead
an actionable basis in tort to sustain a public nuisance claim. Appellants
Br. at 74. Quite simply, whether a defendants actions are tortious is
irrelevant in public nuisance; the question is whether the activity is legislatively authorized.
Any activity can be done negligently, thereby subjecting the actor to liability
in negligence, but the negligent activity cannot form the basis of a public
nuisance unless it is also unauthorized.
See City of N. Vernon v.
Voegler, 103 Ind. 314, 327, 2 N.E. 821, 829 (1885) (It is not
a nuisance to do what the law authorizes, but it may be a
tort to do the authorized act in a negligent manner.).
In its judgment, the trial court suggested that the City has
no standing to bring a public nuisance suit against Appellees. In fact,
Indiana Code Section 34-19-1-2 specifically authorizes local governmental units to bring public nuisance
suits. See Ind. Code § 34-19-1-2(b)(2) (A civil action to abate or
enjoin a nuisance may also be brought by: (1) an attorney representing
the county in which a nuisance exists; or (2) the attorney of any
city or town in which a nuisance exists.).
Chapter 44 of United States Code, Title 18 (§§ 921-30) governs
firearms, as does Title 35, Article 47 of the Indiana Code. Under
federal law, it is illegal for a dealer to sell a handgun to
a person the dealer knows or has reasonable cause to believe is under
the age of twenty-one, 18 U.S.C. § 922(b)(2); a person who has been
convicted of, or is under indictment for, a crime punishable by imprisonment for
a term exceeding one year, 18 U.S.C. § 922(d)(1); a fugitive from justice,
18 U.S.C. § 922(d)(2); an unlawful user of or a person addicted to
a controlled substance, 18 U.S.C. § 922(d)(3); a person who has been adjudged
a mental defective, 18 U.S.C. § 922(d)(4); an illegal alien, 18 U.S.C. §
922(d)(5); a person who has been dishonorably discharged from the armed forces, 18
U.S.C. § 922(d)(6); a person who has renounced his citizenship, 18 U.S.C. §
922(d)(7); a person subject to a restraining order concerning the harassment, stalking, or
threatening of an intimate partner or child, 18 U.S.C. § 922(d)(8); or a
person who has been convicted in any court of misdemeanor domestic violence.
18 U.S.C. § 922(d)(9).
Under Indiana law, it is
unlawful for a person to sell, give, or in any manner transfer the
ownership or possession of a handgun to another person who the person has
reasonable cause to believe:
(1) has been:
(A) convicted of a felony; or
(B) adjudicated a delinquent child for an act that would be a felony
if committed by an adult, if the person seeking to obtain ownership or
possession of the handgun is less than twenty-three (23) years of age;
(2) is a drug abuser;
(3) is an alcohol abuser; or
(4) is mentally incompetent.
Ind. Code § 35-47-2-7(b).
A person attempts to commit a crime when, acting with the
culpability required for commission of the crime, he engages in conduct that constitutes
a substantial step toward commission of the crime. An attempt to commit
a crime is a felony or misdemeanor of the same class as the
crime attempted. Ind. Code § 35-41-5-1(a). It is no defense that,
because of a misapprehension of the circumstances, it would have been impossible for
the accused person to commit the crime attempted. Ind. Code § 35-41-5-1(b).
Thus, even though it is impossible for a handgun dealer to aid,
induce, or cause a straw purchase to an undercover police officer because the
officer is committing no crime, it is possible for the dealer to attempt
to aid, induce, or cause the straw purchase. See Ind. Code §
35-41-2-4 (aiding, inducing or causing an offense).
A person engages in conduct knowingly if, when he engages in the conduct,
he is aware of a high probability that he is doing so.
Ind. Code § 35-41-2-2(b). A person without a qualified or unlimited handgun
permit who wishes to purchase a handgun must complete an application process that
includes a criminal background check. See Ind. Code § 35-47-2.5-4. A
persons refusal to submit to the background check raises a reasonable inference that
the check would reveal a criminal history that would render the person ineligible
to purchase a handgun from a dealer. Thus, knowingly selling a handgun
to a person who, known to the seller, is going to give it
to a person who refuses to submit to a background check constitutes knowingly
attempting to aid, induce, or cause a straw purchase.
Although the straw purchases alleged in the Citys complaint constitute criminal
activity by the dealers, the City has not alleged that any straw purchase
has contributed to the public nuisance alleged by the City. The handguns
purchased by the undercover police officers have never entered an illegal secondary market,
nor have they been otherwise illegally used. Therefore, these handguns have not,
and could not have, contributed to the public nuisance alleged by the City.
Ultimately, the City must prove some causal connection between the alleged nuisance
and the acts of dealer Appellees Cash America, Ameri-Pawn, and Blythes.
At common law, courts traditionally made a distinction between misfeasance, active
misconduct which causes injury to another, and nonfeasance, the failure to take action
to protect another from harm. Absent some definite relationship between the parties
sufficient to justify the imposition of a duty to act, courts
refused to impose liability for nonfeasance. Warren v. City of Indianapolis, 176
Ind. App. 481, 486, 375 N.E.2d 1163, 1166 (1978), trans. denied. Examples
of definite, or special, relationships recognized by Indiana law are those between innkeepers
and patrons, landowners and invitees, supervising adults and children, teachers and students, and
nursing home and nursing home patients[.] J.A.W. v. Roberts, 627 N.E.2d 802,
809 (Ind. Ct. App. 1994) (citations omitted). The underlying thread binding these
cases together is the level of interaction or dependency between the parties that
surpasses what is common or usual [and u]nder those circumstances the relationship is
characterized as special. Id. The City characterizes its negligence claims against
Appellees as arising out of misfeasance, rather than nonfeasance, and contends that it
therefore need not establish the existence of a special relationship with Appellees.
However, we conclude that Indiana law no longer requires us to distinguish between
nonfeasance and misfeasance in the context of duty, and therefore, we agree with
the City that it is not required to establish the existence of a
special relationship to establish the existence of a duty of care. Our
supreme courts opinion in Webb makes no distinction between nonfeasance and misfeasance and
plainly applies to all duty determinations. See id. at 815 (Sullivan, J.,
dissenting in part) (Webb draws no distinction between misfeasance and nonfeasance.). Additionally,
none of Webbs supreme court progeny mentions any legal distinction between nonfeasance and
misfeasance. See, e.g., Harris v. Raymond, 715 N.E.2d 388, 393 (Ind. 1999).
In determining the existence of a duty in the instant case, we
make no distinction between nonfeasance and misfeasance.
The dissent cites to
Downs v. Panhandle Eastern Pipeline Co., 694
N.E.2d 1198 (Ind. Ct. App. 1998), for the following test: In determining
whether a relationship exists that would impose a duty, we must consider the
nature of the relationship, a partys knowledge, and the circumstances surrounding the relationship.
Id. at 1203. We conclude that Indiana law no longer requires
us to consider these factors in evaluating the relationship of the parties.
The Downs court cited to Murphy v. Target Productions, 580 N.E.2d 687 (Ind.
Ct. App. 1991), which contained the following language: A legal duty may
generally arise in a relationship between two parties after considering the nature of
the relationship, a partys knowledge, and the circumstances surrounding the relationship. Id.
at 688. The Murphy court cited to Lawson v. Howmet Aluminum Corp.,
449 N.E.2d 1172 (Ind. Ct. App. 1983). See id. at 1177 (Generally,
a legal duty arises from the nature of relationships between people. Also
relevant in determining the existence of a duty is ones knowledge of the
situation or circumstances surrounding the relationship.) (citations omitted). As with the common-law
distinction between misfeasance and nonfeasance, we conclude that these factors have not survived
Webb v. Jarvis. Webb does not mention these factors, and none of
Webbs supreme court progeny have done so.
Our supreme court has noted that the Second Amendment has never
been incorporated into the Fourteenth [Amendment] and made applicable to the states.
Kellogg, 562 N.E.2d at 692; see U.S. Const. amend. II (providing that [a]
well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.).
See National Center for Injury Prevention and Control, Centers for Disease
Control and Prevention, 10 Leading Causes of Death, Indiana; 1999, All Races, Both
Sexes, available at http://webapp.cdc.gov/cgi-bin/broker.exe (last visited July 11, 2002) (on file with the
Court of Appeals of Indiana).
See National Center for Injury Prevention and Control, Centers for Disease
Control and Prevention, 1999 Indiana Homicide Ages 15-24, All Races, Both Sexes, available
at http://webapp.cdc.gov/cgi-bin/broker.exe?_service=v8prod&_server=lscb5500&_port=5092&_session id=/
deaths=119&_debug=0 (last visited July 11, 2002) (on file with the Court of Appeals
See Morgan Quitno Press, 8th Annual Safest City Award, (Dec. 21,
2001), available at http://www.morganquitno.com/cit02crime.htm (on file with the Court of Appeals of Indiana).
The city with the second-highest murder rate for 2001 had a rate
of 47.4 murders per 100,000 population, a rate over 20% lower than the
Citys. See id.
The appellate brief of dealer Appellees Blythes and Jacks Loan contains
the following statement: Fundamentally, the City says to this Court
Its not enough.
We asked the Legislature for more regulation and control and we cant
get it, at least not fast enough. We now ask the Judicial
Department to grant us, by judicial fiat, that which we have been denied
by the Legislative Department. Appellees Blythes and Jacks Loans Br. at 2
(emphasis in original). To the extent that this statement implies that the
Citys suit is frivolous or constitutes an abuse of process, this implication is
not well taken. We have affirmed the trial courts dismissal of only
some claims against some Appellees; one of the surviving claims is the public
nuisance claim against Blythes. Moreover, the widespread misuse of handguns in the
City is a serious and intractable public health issue that has existed for
many years, and we perceive nothing frivolous in the Citys attempts to address
it by any legitimate means, whether by attempting to effect legislative change, enforcing
existing laws more vigorously, or by invoking judicial process, however novel the legal
The trial court relied on Indiana Evidence Rules 408 and 401
in granting Appellees motion to strike the proposed settlement agreement. See id.
at 70. Indiana Evidence Rule 408 provides in relevant part that [e]vidence
of (1) furnishing or offering or promising to furnish, or (2) accepting or
offering or promising to accept a valuable consideration in compromising or attempting to
compromise a claim, which was disputed as to either validity or amount, is
not admissible to prove liability for or invalidity of the claim or its
amount[,] but does not require exclusion when the evidence is offered for another
purpose[.] However, the evidence must still be relevant, which is defined as
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence. Ind. Evidence Rule 401. The
City advances the proposed settlement agreement as tending to prove feasibility. Because
feasibility is not a fact of consequence in either negligence or public nuisance,
it is irrelevant as well as immaterial.