Appeals from the Superior Court of the District of Columbia (CA-428-00) (Hon. Cheryl M. Long, Trial Judge)
Before Terry and Farrell, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Farrell, Associate Judge
The District of Columbia and nine individual plaintiffs appeal from the dismissal of their suit against manufacturers or distributors of firearms alleging negligent distribution, public nuisance, and strict liability under D.C. Code § 7-2551.02 (2001). In a comprehensive written opinion, the trial judge entered judgment on the pleadings for the defendants on all counts, ruling in substance that the counts of negligence and public nuisance failed basic tests of duty, foreseeability, and remoteness as pleaded; that the District of Columbia could not bring an action under § 7-2551.02; and that, as to the individual plaintiffs, the statutory tort was insufficiently pleaded and, in any event, is an unconstitutional exercise of extra-territorial regulation by the Council of the District of Columbia.
We reverse the dismissal of the statutory count as to the individual plaintiffs, holding that they may advance to discovery on strict liability notwithstanding the difficulties of proof they may confront. We also reverse the dismissal of that count as to the District of Columbia to the extent -- but only the extent -- that it seeks subrogated damages as to named individual plaintiffs for whom it has incurred medical expenses. Otherwise we sustain the judgment of the trial court, holding that none of the plaintiffs has stated a valid claim of common-law negligence and the District has not stated a claim of public nuisance on the facts alleged.
This is the second time in the District of Columbia that an actionable link has been attempted to be drawn between the manufacture or distribution of firearms and the criminal use of those weapons to kill or injure. See Delahanty v. Hinckley, 564 A.2d 758 (D.C. 1989) (on certified question from federal court, finding no basis on facts alleged for holding gun manufacturers and their officers liable under D.C. law for criminal use of gun by John W. Hinckley, Jr.). The plaintiffs in the present case are the District of Columbia government and nine individual persons who themselves were wounded or represent decedents who were shot and killed by persons unlawfully using firearms in the District of Columbia. The defendants are numerous manufacturers, importers, or distributors of *fn1 firearms. Underlying all three counts of the complaint are allegations that may be summarized as follows: Although the District of Columbia itself has stringent gun control laws, there nonetheless exists an unchecked illegal flow of firearms into the District to which the defendants by action and inaction have contributed. This flow of guns takes place in numerous ways, including "straw purchases" (purchases from licensed dealers on behalf of other persons not qualified to buy under applicable law), multiple sales (multiple purchases over a short stretch of time by persons intending to sell or transfer to others not qualified to buy), sales by the defendants to "kitchen table" dealers licensed to sell but who do not do so from retail stores, and gun show sales by sellers who typically lack federal firearm licenses and are not required to do purchaser background checks.
The complaint alleges that the defendants have distributed their firearms without adequate self-regulation or supervision in order to increase firearm sales, knowing or constructively knowing that they are creating, maintaining, or supplying the unlawful flow of firearms into the District and similarly knowing that those guns will be used to commit crimes such as the ones that have caused death or injury to the individual plaintiffs or persons they represent. The complaint further alleges numerous illustrative means by which the defendants are able to restrict or impede the unlawful flow of firearms into the District but have not done so. These include (to name just three) directing and encouraging their distributors and dealers to refuse to sell in circumstances where the dealer knows or should know that the buyer seeks to make a straw purchase; requiring such dealers to refuse to sell more than one handgun a month to any person not holding a federal firearms license; and requiring their distributors to sell only to "stocking dealers," i.e., retailers who stock guns from retail stores, and not to "kitchen table" dealers or at gun shows.
Based on these general allegations, Count I of the complaint (Strict Liability) alleged that the defendants are liable to the District of Columbia under D.C. Code § 7-2551.02 and related statutes for health care costs, Medicaid expenses, and other costs of assistance and compensation paid by the District to or on behalf of victims of gun violence including civilians, police officers, and firefighters, and are liable to the individual plaintiffs for direct and consequential damages proximately caused by the defendants' conduct. Count II (Negligent Distribution) alleged that the defendants breached "a duty to the District and its residents not to create an unreasonable risk of foreseeable harm from the distribution of their firearms, and to take reasonable steps to limit this risk once it had been created." In Count III (Public Nuisance) the District alone alleged that the defendants have "created an ongoing public nuisance of readily available handguns and machine guns that unreasonably interferes with District residents' enjoyment of health, safety, and peace."
The defendants moved for judgment on the pleadings as to all counts, Super. Ct. Civ. R. 12 (c), and the trial judge granted the motion and dismissed each count for failure to state a claim for which relief can be granted. Rule 12 (b)(6); see Osei-Kuffnor v. Argana, 618 A.2d 712, 713 (D.C. 1993) (standards same for dismissal under Rule 12 (b)(6) and judgment under Rule 12 (c)). In reviewing that decision, this court "conducts a de novo review of the record, construing all facts and inferences in the light most favorable to the plaintiff[s] and taking the complaint's allegations as true." Duncan v. Children's Nat'l Med. Ctr., 702 A.2d 207, 210 (D.C. 1997). A complaint may not be dismissed because the court merely "doubts that [the] plaintiff[s] will prevail on a claim," id. (citation omitted), but "dismissal for failure to state a claim may properly be granted where it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [the] claim which would entitle [them] to relief." Id. (citation and quotation marks omitted).
Applying these standards, we consider first the two common-law counts alleged, then the statutory count as it relates to each of the two classes of plaintiffs.
III. Negligent Distribution
The trial court dismissed the count of negligent distribution primarily on the basis of Delahanty, supra. See Mem. Op. and Order at 25 ("Based upon the fundamental concept of stare decisis, this Court is required to apply Delahanty. On the common law negligence claims, this Court is simply not free to do otherwise."). Delahanty indeed poses a large obstacle to the plaintiffs' attempt to plead negligence for harm resulting from the unlawful actions of third parties. Delahanty came before this court as a certified question from the United States Court of Appeals asking "whether, in the District of Columbia, 'manufacturers and distributors of Saturday Night Specials may be strictly liable for injuries arising from these guns' criminal use.'" Delahanty, 564 A.2d at 759 (citation omitted). Our answer to that question ranged more widely, however. We pointed out that, although "[t]he certifying court focused on whether this court would adopt the strict liability theory described in Kelley [v. R.G. Indus., 497 A.2d 1143 (Md. 1985)]," that court noted that "'the theoretical underpinnings [of Kelley] are somewhat unclear' and that the certified question was not intended to restrict this court to a particular rationale for this cause of action." Delahanty, 564 A.2d at 760 (citation omitted). Further, because this court is "not limited to the designated question of law [in any event] but may 'exercise our prerogative to frame the basic issues as we see fit for an informed decision,'" and because the Delahanty appellants were not relying "exclusively on the Kelley theory but have continued to advance in this court all the theories in their complaint," we "expand[ed] our inquiry to include the question whether established theories of tort law in the District of Columbia provide a cause of action against gun manufacturers and distributors for injuries arising from the guns' criminal uses." Id. (citation omitted).
Just as the federal District Court had dismissed the entire complaint for failure to state a claim, this court "reject[ed] each of the theories appellants have advanced in the federal courts and in this court." Id. We rejected first their theory of strict liability for sale of a defective product, based not on a claim of defective design or manufacture -- no such claim was advanced -- but on the assertion "that the manufacturers had a duty to warn of the dangers of criminal misuse of the gun." There is no duty to warn, we answered, when a potential danger is known and recognized, and "[b]ecause hazards of firearms are obvious, the manufacturer had no duty to warn." Id. (citing inter alia RESTATEMENT (SECOND) OF TORTS § 402A cmt. j). We paused only slightly longer over the appellants' attempt to apply the theory of "abnormally dangerous activity," see RESTATEMENT §§ 519, 520, to the marketing of guns. That cause of action, we explained,
applies only to activities that are dangerous in themselves and to injuries that result directly from the dangerous activity. The marketing of a handgun is not dangerous in and of itself, and when injury occurs, it is not the direct result of the sale itself, but rather . . . of actions taken by a third party.
Delahanty, 564 A.2d at 761 (citation and quotation marks omitted). We again emphasized that "any likelihood that . . . harm will be great . . . would result from the use, not the marketing as such, of handguns." Id. And we rejected for similar reasons the "social utility" theory of tort adopted by the Maryland courts in Kelley, supra -- "requiring proof that the danger of the product outweighs its social utility and that no legislative imprimatur be associated with the product to the contrary," id. -- pointing out, among other things, that the appellants' attempt to make actionable the manufacture or distribution of "a certain class of inexpensive and allegedly unreliable handguns" (i.e., Saturday Night Specials) ignored the fact that "[a]ll firearms are capable of being used for criminal activity." Id. at 761-62 (citation and internal quotation marks omitted).
Finally, we rejected the cause of action for negligent manufacture or distribution, explaining:
"In general no liability exists in tort for harm resulting from the criminal acts of third parties, although liability for such harm sometimes may be imposed on the basis of some special relationship between the parties." Hall v. Ford Enters., Ltd., 445 A.2d 610, 611 (D.C. 1982); see also Kline v. 1500 Massachusetts Ave. Apartment Corp., 141 U.S. App. D.C. 370, 375-76, 439 F.2d 477, 482-83 (1970) (relationships giving rise to a duty of protection include landlord to tenant, school district to student, employer to employee, and hospital to patient); District of Columbia v. Doe, 524 A.2d 30, 32 (D.C. 1987) (school to student). We are not inclined to extend the rationale of these decisions to the present case. Appellants have alleged no special relationship with the gun manufacturers and have suggested no reasonable way that gun manufacturers could screen the purchasers of their guns to prevent criminal misuse.
Delahanty, 564 A.2d at 762.
Although our rejection of liability in Delahanty rested throughout on the absence of a direct link between the manufacture or distribution of guns and injuries caused by the criminal misuse of those weapons, it is especially the refusal "to extend the rationale of [our] decisions" to the negligence theory alleged there that appears to bar the plaintiffs' claim of negligent distribution here. For this reason, the plaintiffs understandably seek to distinguish Delahanty by arguing, for example, that the negligence discussion was dictum given the precise phrasing of the D.C. Circuit's question. The fact, however, that we "expand[ed] our inquiry" -- as the certifying court foresaw we might -- to render "an informed decision" on the reach of "established theories of tort law in the District of Columbia," id. at 760, scarcely makes our analysis of any of those theories advisory. Such reasoning would make an entire subset of answers to certified questions -- i.e., those in which we exercise the "latitude" given us to "consider non-designated questions and [to] reformulat[e], if necessary, . . . [the] questions as certified," Penn Mut. Life Ins. Co. v. Abramson, 530 A.2d 1202, 1207 (D.C. 1987) -- non-binding dicta, contrary to our law that such answers are "stare decisis of this court." Id. Nor can we fairly truncate Delahanty's holding as saying that a "special relationship with the gun manufacturers" -- which is no more alleged here than in Delahanty -- need be shown only if the plaintiffs allege no "reasonable ways" for manufacturers to effectively screen their purchasers, but not otherwise; that would make four-fifths of the Delahanty court's discussion of negligence, and of the limitations it recognized on "liability in tort for harm resulting from the criminal acts of third parties," superfluous.
At bottom, the plaintiffs argue that Delahanty was wrongly decided because, contrary to its holding, District of Columbia law requires no "special relationship between the parties" to permit liability in negligence for criminal acts of others provided -- to quote the District's brief -- "such acts were foreseeable." The individual plaintiffs likewise assert that a legal duty can arise in this context even without a special relationship between the parties -- such as landlord and tenant -- if the defendant "realized or should have realized the likelihood" that his negligent conduct might "afford an opportunity to [a] third person to commit [an intentional] tort or crime, . . . and that [such] a third person might avail himself of the opportunity." Br. for Indiv. Plaintiffs at 11 (quoting RESTATEMENT (SECOND) OF TORTS § 448 (1965)). We pass over the plaintiffs' implied invitation to overrule Delahanty (one not properly addressed to this division), as well as the question, probably unanswerable satisfactorily from our decisions, of whether a special relationship between a plaintiff and a defendant has to undergird any claim of negligence in the District based on harm stemming from the criminal acts of third persons. But see Workman v. United Methodist Comm., 355 U.S. App. D.C. 131, 134, 320 F.3d 259, 263 (2003) (surveying this court's decisions and concluding that under them "the requirement that the defendant has been able to foresee that a third party would likely commit a criminal act ordinarily has, and perhaps must have, a relational component"). We nevertheless conclude that our decisions addressing general tort concepts of duty and foreseeability do not permit recognition of a claim for common-law negligence on the facts alleged here.
Where an injury is caused by the intervening criminal act of a third party, this court has repeatedly held that liability depends upon a more heightened showing of foreseeability than would be required if the act were merely negligent. In such a case, the plaintiff bears the burden of establishing that the criminal act was so foreseeable that a duty arises to guard against it. Because of the extraordinary nature of criminal conduct, the law requires that the foreseeability of the risk be more precisely shown.
Potts v. District of Columbia, 697 A.2d 1249, 1252 (D.C. 1997) (citations and internal quotation marks omitted; emphasis added). In this context, then, the requisite duty of care required for negligence is a function of foreseeability, arising only when foreseeability is *fn2 alleged commensurate with "the extraordinary nature of [intervening] criminal conduct."
Id. And, as we further stated in Potts, "[o]ur opinions have made clear the demanding *fn3 nature of the requirement of 'precise' proof of a 'heightened showing of foreseeability' in the context of an intervening criminal act involving the discharge of weapons." Id. (citations omitted; emphasis added). The high-water mark, as it were, of a showing of facts sufficient to create a duty to protect against such conduct was in District of Columbia v. Doe, 524 A.2d 30 (D.C. 1987), where the claim was that reasonable protective measures by the District of Columbia could have prevented a child from being raped at a District elementary school. Acknowledging the requirement of a heightened showing of foreseeability in that context, id. at 33, we nonetheless identified evidence specific to that school and surrounding area that "could be viewed by reasonable factfinders as enhancing the foreseeability of danger from intruders, thereby creating a duty on the part of District officials to protect the students from this type of criminal activity." Id. at 34. In three *fn4 succeeding cases, by contrast, we rejected liability as a matter of law where foreseeability (hence duty) was not limited by any evidentiary reference to a precise location or class of persons.
In Clement v. Peoples Drug Store, 634 A.2d 425 (D.C. 1993), in which an employer was sued for negligence arising from the shooting death of one of its employees in the store parking lot, "the only evidence presented with respect to [the] shooting's foreseeability was an expert's opinion based on police reports of criminal activity in the surrounding area. No evidence was introduced involv[ing] any gun-related incidents at the particular shopping mall in which the shooting occurred." Potts, 697 A.2d at 1252 (summarizing basis for Clement's holding). In Bailey v. District of Columbia, 668 A.2d 817 (D.C. 1995), where the plaintiff was shot after attending a cheerleading competition at a junior high school as she was leaving the building, she offered the affidavit of witnesses who asserted that the neighborhood around the school was a "high drug area" and that shootings and other criminal acts had taken place there. Rejecting this showing as insufficient, we explained that "[a]lthough the occurrence of shootings in, and in the vicinity of, the District's public schools is an unhappy reality, . . . such 'generic information,' by itself, does not create a duty on the part of the District to protect against the use of firearms under the circumstances presented here." Id. at 820. Finally, in Potts, supra, the plaintiffs were *fn5 injured by gunshots from an unknown source as they were leaving the Washington Convention Center (WCC) after attending a boxing event organized by Spencer Promotions, Inc. They sued the organizer and (among others) the ...