Appeals from the Superior Court of the District of Columbia. (CA-428-00). (Hon. Cheryl M. Long, Trial Judge).
Before Wagner, Chief Judge, Terry, Farrell, Reid, Glickman, and Washington, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Farrell, Associate Judge.
Argued En Banc January 11, 2005
Opinion by Chief Judge WAGNER, concurring in part and dissenting in part, at page 44.
The District of Columbia and nine individual plaintiffs appeal from the dismissal of their suit against manufacturers or distributors of firearms alleging common-law negligence and public nuisance, as well as strict liability under D.C. Code § 7-2551.02 (2001). The trial court 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 that the District has not stated a claim of public nuisance on the facts alleged.*fn1
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 common law basis on facts alleged for holding handgun 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 shot and killed by persons unlawfully using firearms in the District of Columbia.*fn2 The defendants are numerous manufacturers, importers, or distributors of 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 they are creating, maintaining, or supplying the unlawful flow of firearms into the District and similarly knowing 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 court 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. That decision, unless overruled, indeed appears to bar the plaintiffs' attempt to plead negligence for harm resulting from the unlawful actions of third parties. Delahanty came before a division of the 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). The panel's answer to that question ranged more widely, however. It 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 handguns. 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 handguns 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 the plaintiffs must confront in asserting their claim of negligent distribution here. They first argue that the negligence discussion in Delahanty 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, does not make our analysis of any of those theories advisory. That 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.
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" (such as that of landlord and tenant) to permit liability in negligence for criminal acts of others, so long as the defendant realized or should have realized the likelihood that his negligent conduct would cause foreseeable harm to the plaintiffs. Sitting en banc, we decline this invitation to overrule Delahanty. And we pass over the question whether a "special relationship" between a plaintiff and a defendant must undergird any claim of negligence in the District based on harm stemming directly from the criminal acts of third persons. But see Workman v. United Methodist Comm., 355 U.S. App. D.C. 131, 135, 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*fn3 is a function of foreseeability, arising only when foreseeability is alleged commensurate with "the extraordinary nature of [intervening] criminal conduct." Id.*fn4 And, as we further stated in Potts, "[o]ur opinions have made clear the demanding 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.*fn5 In three 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.*fn6 Finally, in Potts, supra, the plaintiffs were 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 District of Columbia for negligence. Relying principally on Bailey and Clement, we sustained a grant of summary judgment because "plaintiffs [had] proffered no evidence of any prior gun-related violence at any other event held at the WCC or promoted by Spencer Promotions, nor any other specific evidence bearing directly on the foreseeability of the shooting incident at issue here." 697 A.2d at 1252.
Potts, Bailey, and Clement were decided on summary judgment rather than a motion to dismiss, but they demonstrate the tight boundaries - requiring "'precise' proof of a 'heightened showing of foreseeability,'" Potts, 697 A.2d at 1252 - within which a claim of common-law negligence must be framed in this jurisdiction "in the context of an intervening criminal act involving the discharge of weapons." Id. The plaintiffs in this case broadly allege a duty and foreseeable harm to "the District [of Columbia] and its residents." Complaint, ¶ 151. That duty is unlike even the one claimed to be owed subclasses of residents (shoppers at a particular store, children at a given school, attendees of a particular event) regarding whom we have repeatedly said that "generic" proffers of foreseeability do not suffice to create a duty of care. The class to whom the defendants allegedly owed a duty here is potentially unlimited except by the population of the District of Columbia, any member of which could be a shooting victim. That indeterminacy, as other courts have recognized, results from the sheer number of ways in which firearms, despite any reasonable precautions manufacturers can be expected to take, may reach the hands of criminal wrongdoers - the sheer number of causal links, in other words, between the licensed manufacture and distribution of firearms and their use to kill or injure others. This court's decisions, we conclude, do not permit recognition of a common-law tort resting on such limitless notions of duty and foreseeability. See also Lacy v. District of Columbia, 424 A.2d 317, 320-21 (D.C. 1980) (citation and internal quotation marks omitted) (recognizing, as a matter of "policy," the existence in our law of "various liability-limiting considerations which relieve the defendant of liability for harm he actually caused where the chain of events appears highly extraordinary in retrospect").*fn7
Among courts rejecting claims of negligent distribution of firearms similar to the plaintiffs', the New York Court of Appeals in Hamilton v. Beretta, U.S.A., Corp., 750 N.E.2d 1055 (N.Y. 2001), leave to appeal denied, 801 N.E.2d 421 (N.Y. 2003), has provided the most cogent analysis. Like our Delahanty decision, Hamilton answered certified questions of law from the federal Circuit Court, including whether under New York decisional law, "the defendants owed plaintiffs a duty to exercise reasonable care in the marketing and distribution of the handguns they manufacture." Id. at 1059. The federal District Court had "imposed a duty on gun manufacturers 'to take reasonable steps available at the point of . . . sale to primary distributors to reduce the possibility that these instruments will fall into the hands of those likely to misuse them.'" Id. at 1061 (citation omitted). The New York Court of Appeals rejected that duty as a basis for common-law negligence. Its prior decisions, like this court's, were "cautious . . . in extending liability to defendants for their failure to control the conduct of others," a "judicial resistance to the expansion of duty [growing] out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another." Id. at 1061. Under the duty imposed by the District Court, by contrast, "[t]he pool of possible plaintiffs is very large - potentially, any of the thousands of victims of gun violence." Id. (footnote omitted). Moreover, the court reasoned, the connection between defendants, the criminal wrongdoers and plaintiffs is remote, running through several links in a chain consisting of at least the manufacturer, the federally licensed distributor or wholesaler, and the first retailer. The chain most often includes numerous subsequent legal purchasers or even a thief. Such broad liability, potentially encompassing all gunshot crime victims, should not be imposed without a more tangible showing that defendants were a direct link in the causal chain that resulted in plaintiffs' injuries, and that defendants were realistically in a position to prevent the wrongs.
The court therefore rejected the plaintiffs' assertion of "a general duty of care aris[ing] out of the gun manufacturers' ability to reduce the risk of illegal gun trafficking through control of the marketing and distribution of their products," pointing out that to "impos[e] such a general duty of care would create not only an indeterminate class of plaintiffs but also an indeterminate class of defendants whose liability might have little relationship to the [social] benefits of controlling illegal guns." Id. at 1063.*fn8 Although the plaintiffs had "presented [the court] with a novel theory - negligent marketing of a potentially lethal yet legal product, based upon the acts not of one manufacturer, but of an industry - we are unconvinced," the court concluded, that "on the record before us the duty plaintiffs wish to impose is either reasonable or circumscribed." Id. at 1068.
The plaintiffs here point out that Hamilton was not decided on a motion to dismiss but only after a trial had shown the absence of proof "that the gun used to harm [the injured plaintiff] came from a source amenable to the exercise of any duty of care that plaintiffs would impose upon defendant manufacturers." Id. at 1062. But the plaintiffs in our case do not claim that through discovery they may be able "tangibl[y]" to show "that defendants were a direct link in the causal chain that resulted in plaintiffs' injuries," id. (emphasis added) - that, in the language of our cases, those injuries were foreseeable to the defendants in the "heightened" sense entailing "'precise proof'" of knowledge and corresponding ability to prevent required by our decisions. Potts, supra. At most the plaintiffs allege that the defendants in the aggregate know that a sizeable number of the firearms they manufacture make their way, through dealer practices they reasonably could limit, into the District of Columbia and into the hands of criminals, sometimes with "only a short time passing between the retail sale of a firearm outside the District and its criminal misuse in the District." Complaint, ¶ 123. Even if, as they claim, discovery may enable them to tie a particular weapon used to kill or injure a named plaintiff or his decedent to a particular manufacturer, they would still not have established a ...