Merrill v. Navegar, Inc. (2000) · DecisionDepot

Merrill v. Navegar, Inc.

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California Court of Appeal Jan 19, 2000 No. A079863Published

Before: Kline

89 Cal.Rptr.2d 146 (1999) 75 Cal.App.4th 500 Marilyn MERRILL et al., Plaintiffs and Appellants,

NAVEGAR, INC., Defendant and Respondent.

No. A079863. Court of Appeal, First District, Division Two.

September 29, 1999. As Modified October 28, 1999. Review Granted January 19, 2000. [151] Orrick, Herrington & Sutcliffe, Frederick Brown, Carl W. Chamberlin, Center to Prevent Handgun Violence, Dennis A. Henigan, Brian J. Siebel, Wash., D.C., Morrison & Foerster, James B. Bennett, Cam Baker, San Francisco, Cotchett & Pitre, Frank M. Pitre, Mark Molumphy, Burlingame, McCutchen, Doyle, Brown & Enersen, Jane Lovell, San Francisco, Vaca, Vaca & Ritter, Christopher G. Ritter, San Francisco, Law Offices of Mitchell J. Green, Mitchell J. Green, Jaffe, Trutanich, Scatena & Blum, San Francisco, Fred M. Blum, Alper & McCulloch, Dean A. Alper, San Francisco, for Plaintiffs and Appellants.

Latham & Watkins, Ernest J. Getto, Los Angeles, for Defendants and Appellees.

[152] KLINE, J.

INTRODUCTION

On July 1, 1993, Gian Luigi Ferri (Ferri) entered 101 California Street, a high-rise office building in San Francisco, armed with two semiautomatic assault weapons manufactured and distributed by respondent Navegar, Inc. (Navegar), 250 rounds of 9-millimeter ammunition, as well as a third weapon, a .45-caliber semiautomatic pistol. Proceeding to the 34th floor premises of a law firm against which he held a grudge, Ferri cold-bloodedly opened fire on persons in the offices and hallways of this and two lower floors, ultimately killing eight men and women and wounding six others before fatally shooting himself in a stairwell.

Appellants, the survivors and representatives of some of those who died, brought suit against Navegar on three theories of liability: common law negligence, negligence per se, and strict liability for ultrahazardous activities. Their complaints survived Navegar's demurrers but, on May 6, 1997, the trial court granted Navegar's motion for summary judgment as to all three causes of action. Appellants appeal this ruling as to their claims of ordinary negligence and ultrahazardous activity, but not as to their claim for negligence per se.

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The intensive discovery in this case focused upon the characteristics of the TEC-DC9. Appellants' experts provided deposition testimony and declarations establishing that the TEC-DC9 is a "military-patterned weapon" of the type "typically issued to specialized forces such as security personnel, special operations forces, or border guards." Even though it is nominally a semiautomatic, the standard 32-round magazine "can be emptied in seconds." According to the undisputed testimony of police chief Leonard J. Supenski, a nationally recognized firearms expert, the TEC-DC9 differs from conventional handguns in several ways. A large capacity detachable magazine, "designed to deliver maximum firepower by storing the largest number of cartridges in the smallest ... space," provides a level of firepower "associated with military or police, not civilian, shooting requirements." The TEC-DC9 has a "barrel shroud," also peculiar to military weapons, which disperses the heat generated by the rapid firing of numerous rounds of ammunition and allows the user to grasp the barrel and hold the weapon with two hands, which facilitates spray-firing. The barrel is threaded, allowing the attachment of silencers and flash suppressors, which are restricted under federal law (18 U.S.C. § 921(a)(24) and (a)(30)(C)(ii)), and are primarily of interest to criminals. The threaded barrel also permits the attachment of a barrel extension, enabling the weapon to be fired with higher velocity and at greater distances, while still allowing it to be broken down into smaller concealable parts. The weapon comes with a "sling swivel" that permits it to be hung from a shoulder harness, known as a "combat sling," when firing rapidly from the hip. The sling device also permits the rapid firing of two weapons simultaneously, as was done by Ferri in this case. The relatively compact size of the TEC-DC9 allows a shooter to transport maximum firepower with relative case, and with far greater concealability than almost any other weapon having similar firepower. The TEC-DC9 is also compatible with the "Hell-Fire" trigger system, which, when properly installed, permits the weapon to be fired virtually at full automatic rate 300 to 500 rounds per minute. As noted, Ferri installed such trigger systems on the TEC-DC9s he used at 101 California Street, and he also used the unusually large 40- and 50-round magazines the weapons were designed to accommodate.

The social cost of the deaths and injuries resulting from the use of firearms in our society is enormous. A report published in the Journal of the American Medical Association in August, 1999, concludes that "medical costs of treating the gunshot injuries [170] received during 1994 in the United States was $2.3 billion. The average medical cost of a gunshot injury was approximately $17,000, of which 49% was borne by taxpayers, 18% by private insurance, and 33% by other sources. While medical costs are a relatively small component of the total burden imposed on society by gun violence, they represent a substantial cost to the medical care system." (Cook, Lawrence, Ludwig & Miller, The Medical Costs of Gunshot Injuries in the United States (1999) 282 J.A.M.A. 447, 454, fas. omitted.) The additional tangible and intangible social costs of gun violence, which are not easily calculable but must be monumental, "include lost wages and productivity from both the victims and family members who must care for them, physical and mental pain and suffering, police resources, funeral expenses, and the psychological insecurity we all suffer from living in a gun-infested society." (McClurg, The Tortious Marketing of Handguns: Strict Liability is Dead, Long Live Negligence (1995) 19 Seton Hall Legis. J. 777, 792.) This insecurity is suffered not just by ordinary citizens but as well by the law enforcement officials they rely upon for protection. The "rising level of lethality" the police face from assault weapons on the street was described to Congress by the representative of a national police officers organization, who testified that "[I]n the past, we used to face criminals armed with a cheap Saturday Night Special that could fire off six rounds before loading. Now it is not at all unusual for a cop to look down the barrel of a TEC-9 with a 32 round clip.... The six-shot .38 caliber service revolver, standard law enforcement issue for years, [is] just no match for a criminal armed with a semiautomatic assault weapon." (H.R.Rep. No. 103-489, supra, at pp. 13-14.)

Navegar's unjustified claim that imposition of a duty would invade the prerogative of the Legislature because it would not merely affect the cost of manufacturing, marketing and selling assault weapons but would ban those legal activities also fails to take into account that no matter what decision this court makes it will necessarily represent a value judgment. As has often been stated, "`"[d]uty" is not an immutable fact of nature "`but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.'" (Dillon v. Legg (1968) 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912] (Ballard v. Uribe, supra, 41 Cal.3d 564, 572, fn. 6 [224 Cal.Rptr. 664, 715 P.2d 624])" (Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 472, 63 Cal.Rptr.2d 291, 936 P.2d 70, italics in original.) A decision that Navegar has no duty, and that the judgment below must be affirmed, would amount to a policy determination that the interest of some in unrestricted access to a particular assault weapon, and the freedom of the manufacturer of that weapon to target the marketing of its product to persons likely to criminally misuse it, transcends society's interest in protecting persons exposed to the risk of harm created by the distribution and marketing of that assault weapon, or that reasonable persons would agree that this risk is not unreasonable. Our decision that there is a legal duty is not a statement that the TEC-DC9 should not be manufactured, or made available to the public or should not be marketed in such a way as to make it particularly desirable to a criminal class. It simply reflects the view that there is a question about the reasonableness of the risk created by Navegar's activities, that public access to the TEC-DC9 and the manner in which [180] that weapon is marketed are not of such overriding social importance that they are entitled to absolute protection as a matter of law, and that it is therefore for a jury to make the ultimate determination whether Navegar's conduct was or was not reasonably prudent in the circumstances, i.e., whether there was breach of the legal duty.

Bojorquez v. House of Toys, Inc. (1976) 62 Cal.App.3d 930, 133 Cal.Rptr. 483, the only California case the Casillas court relied upon in granting summary judgment on the negligence claim, is also distinguishable. In that case the plaintiff was injured by a projectile shot from a slingshot by a 10-year-old boy who purchased the toy from the defendant retailer. The plaintiff claimed, inter alia, that the retailer and the wholesaler "were negligent in selling slingshots to children who because of their youth are incapable of using them without creating an unreasonable risk of physical harm to others." (Id., at p. 932, 133 Cal. Rptr. 483.) Claiming negligent entrustment (Rest.2d, Torts, § 390), the plaintiff argued that "a wholesaler or retailer [has] a duty to make sure his products are sold only to those persons or classes of persons who will not use them to harm others[.]" (Id., at p. 933, 133 Cal.Rptr. 483.) The trial court entered summary judgment for the defendants and the court of appeal affirmed. As to the negligent entrustment claim, the appellate court stated as follows: "Slingshots have been used as toys and weapons since Old Testament times. A [183] 10-cent slingshot is a toy although its use, like the use of other toys, such as baseball bats and bows and arrows, may cause injury to others. The cases we have found under section 390 and the illustrations provided in the Restatement all involve the sale or entrustment of a chattel to a particular individual who allegedly was known to the seller to be too young, inexperienced or incompetent to use the item properly. [¶] Here [plaintiff] wants us to hold the retailer and distributor negligent for selling toy slingshots to the class of persons for whom they were intendedthe young; in effect, she asks us to ban the sale of toy slingshots by judicial fiat. Such a limitation is within the purview of the Legislature, not the judiciary." (Id., at p. 933,133 Cal.Rptr. 483; compare, Moning v. Alfono, supra, 400 Mich. 425, 254 N.W.2d 759, holding that whether a slingshot manufacturer created an unreasonable risk of harm in marketing its products directly to children presents a factual question.)

In Stevens v. Parke, Davis & Co., supra, 9 Cal.3d 51, 107 Cal.Rptr. 45, 507 P.2d 653, the plaintiffs were the survivors of a woman who died as a result of ingesting Chloromycetin, a toxic antibiotic produced and distributed by the defendant manufacturer and prescribed by the defendant physician. The plaintiffs' wrongful death action sought to impose liability on the manufacturer for negligence in the "overpromotion" of the drug. Parke, Davis claimed, as does Navegar here, that its conduct comported with all applicable federal regulations, that the evidence failed to show that its advertising "overpromoted" the drug and that, in any event, the intervening acts of the prescribing physician were superseding acts. Rejecting all of these claims, a unanimous Supreme Court answered that compliance with federal regulations or directives as to warnings "may not be sufficient to immunize the manufacturer or supplier of the drug from liability" (id., at p. 65, 107 Cal.Rptr. 45, 507 P.2d 653), and pointed out that "an adequate warning to the profession may be eroded or even nullified by overpromotion of the drug through a vigorous sales program which may have the effect of persuading the prescribing doctor to disregard the warnings given." (Ibid., citing Love v. Wolf (1964) 226 Cal.App.2d 378, 396, 38 Cal.Rptr. 183; Yarrow v. Sterling Drug, Inc. (D.S.Dak.1967) 263 F.Supp. 159, 162-163, affd. sub nom. Sterling Drug, Inc. v. Yarrow (8th Cir.1969) 408 F.2d 978; Incollingo v. Ewing (1971) 444 Pa. 263, 282 A.2d 206, 220.) The court concluded the case was properly presented to the trier of fact, whose implied finding of negligent over-promotion was supported by the evidence. "Parke, Davis had reason to know of the drug's dangerous propensities. Nevertheless, calendars and other `give-aways' distributed by Parke, Davis and advertisements placed by it in magazines constantly reminded physicians of the alleged effectiveness of the drug without mentioning its dangers" (id., at p. 66, 107 Cal.Rptr. 45, 507 P.2d 653), and the warnings that were given "were not so clearly effective as to defeat, as a matter of law, the inference that they were nullified by overpromotion." (Id., at p. 67, 107 Cal.Rptr. 45, 507 P.2d 653.)

In order to establish that Navegar's conduct was the cause-in-fact of the injuries they sustained, appellants must show that Navegar's conduct was a "substantial factor" in bringing about those injuries, or at least that there is a triable issue as to this question. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969, 67 Cal.Rptr.2d 16, 941 P.2d 1203); Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1044, fn. 2, 1052-1053, 1 Cal. Rptr.2d 913, 819 P.2d 872.) The substantial factor standard "subsumes the `but for' test while reaching beyond it to satisfactorily address other situations, such as those involving independent or concurrent causes in fact." (Rutherford, supra, 16 Cal.4th at p. 969, 67 Cal.Rptr.2d 16, 941 P.2d 1203.) It is settled that "[t]he defendant's negligent act need not be the sole cause of injury; it is enough that it be a cause." (6 Witkin, Summary of California Law (9th ed., Torts, § 970, p. 360, original italics.) As has often been noted, "there are many situations in which each of several causes (without the concurrence of any of the others) produces some (but not all the) harm. In such a case it may be hard or even impossible on the facts practically available to tell just how much of the harm each of these causes brought about, but at least in theory (i.e., to the eye of omniscience) they are capable of separation. Where this is the case, each of the defendants responsible for these causes may still be liable for the whole injury." (4 Harper, James & Gray, The Law of Torts (2d ed.) § 20.3, p. 117, original italics; accord, 6 Witkin, Summary of California Law, supra, Torts, § 970, p. 360 and cases there cited.) Where injuries are inflicted by the criminal or negligent acts of a third person, the defendant's conduct may constitute a contributing cause if it created or increased the risk of such criminal or negligent acts even though the defendant did not control the party whose criminal or negligent act most directly caused harm. (See, e.g., Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 58, 192 Cal.Rptr. 857, 665 P.2d 947; Landeros v. Flood, supra, 17 Cal.3d at pp. 411-412, 131 Cal. Rptr. 69, 551 P.2d 389; Weirum v. RKO General Inc., supra, 15 Cal.3d at p. 47, 123 Cal.Rptr. 468, 539 P.2d 36; see also, Braman v. State of California (1994) 28 Cal. App.4th 344, 355-356, 33 Cal.Rptr.2d 608.)

In Parke, Davis, the physician who prescribed the potentially dangerous drug that caused the plaintiffs death testified that, although he read medical journals in which Parke, Davis allegedly overpromoted the drug, "he could not remember specific instances in which he received any information, promotional or otherwise, directly from Parke, Davis...." (Id., at p. 68, fn. 16, 107 Cal.Rptr. 45, 507 P.2d 653.) Parke, Davis claimed, therefore, that even if its advertisements did dangerously "overpromote" the drug, such overpromotion could not have caused Mrs. Stevens's death because the circumstantial evidence did not show that the prescribing physician, who testified he was cognizant of the dangers, was induced by the advertisements to prescribe the drug for her. The Supreme Court rejected this argument. The court pointed out that the jury was entitled to disbelieve all or portions of the physician's testimony "`and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material.'" (Id., at pp. 67-68, 107 Cal.Rptr. 45, 507 P.2d 653, quoting Nevarov v. Caldwell (1958) 161 Cal.App.2d 762, 777, 327 P.2d 111.) There was adequate circumstantial evidence in the record, the court stated, "to support a reasonable inference by the jury that Dr. Beland was induced to prescribe the drug for Mrs. Stevens because of Parke, Davis' overpromotion. Like many others of the profession, he had been exposed to the promotional tactics employed by Parke, Davis. It is reasonable to assume that the company's efforts consciously or subconsciously influenced him. In addition, plaintiff introduced expert testimony by a physician that the advertising and promotion of the drug `played a role' in inducing physicians to prescribe it when it was not sound practice to do so. The jury could reasonably infer from the above circumstantial evidence that Dr. Beland was induced by the manufacturer's activities to prescribe the drug and were entitled to reject Dr. Beland's testimony to the contrary. [Citation.]" (Id., at p. 68, 107 Cal. Rptr. 45, 507 P.2d 653, fns. omitted.)[31]

We have twice held recently that an appellant from a grant of summary judgment cannot change its theory of liability from that originally pleaded and ruled on by the trial court. (See 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18, 272 Cal.Rptr. 227, and Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699, 39 Cal.Rptr.2d 65 [Presiding Justice Kline concurring in the latter case].) This principle is simply a corollary of the "no new theories on appeal" rule. (See, generally, 1 Eisenberg et al., Cal. Practice Guide, Civil Appeals & Writs (The Rutter Group 1998) ¶ 8:229 et seq.) That doctrine was first enunciated in Ernst v. Searle (1933) 218 Cal. 233, 240-241, 22 P.2d 715, and has continued in full force and effect to the present. Thus, in North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 21 Cal.Rptr.2d 104, the appellate court gave this principle the label of "`theory of the trial'" and held: "`A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing party.' [Citation.] The principles of `theory of the trial' apply to motions [citation], including summary judgment motions. [Citation.] Here the summary judgment motion focused on the drainage problem as the relevant defect. The matter was resolved on that theory, with North Coast claiming that despite its knowledge of the drainage problem it was still entitled to recover because the drainage defect fell under the 10-year statute of limitations. It would be manifestly unjust to the opposing parties, unfair to the trial court, and contrary to judicial economy to permit a change of theory on appeal." (Id. at p. 29, 21 Cal. Rptr.2d 104.) (To the same effect, see, e.g., Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874, 242 Cal. Rptr. 184, and Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847, 60 Cal.Rptr.2d 780.)

[23] The absence of sufficient evidence of foreseeability is the most important reason plaintiffs commonly fail to establish liability for negligence in suits against the manufacturers or sellers of guns. (See, Lytton, Halberstam v. Daniel and The Uncertain Future of Negligent Marketing Claims Against Firearms Manufacturers, supra, 64 Bklyn. L.Rev. 681; McNicholas & McNicholas, Ultrahazardous Products Liability: Providing Victims of Well-Made Firearms Ammunition to Fire Back at Gun Manufacturers (1997) 30 Loy. L.A. L.Rev. 1599; Mackarevich, Manufacturers' Strict Liability for Injuries From a Well-Made Handgun (1983) 24 Wm. & Mary L.Rev. 467.) As a practical matter, it is exceedingly difficult in such cases, which ordinarily claim a special relationship under the doctrine of negligent entrustment, to prove that the defendant possessed actual or constructive knowledge that the person or class of persons who were supplied a firearm and used it to injure themselves or others could not be trusted to use it safely. (See, e.g., Jacoves v. United Merchandising Corp., supra, 9 Cal.App.4th 88, 11 Cal. Rptr.2d 468 [retailer had no reason to expect young man to whom it sold rifle would use weapon to commit suicide]; Stephan v. Martin Firearms Company (2d Cir. 1965) 353 F.2d 819 [father and dealer who sold him gun with knowledge of intended use by son not negligent because neither knew of child's carelessness]; Hetherton v. Sears Roebuck & Co. (1978) 445 F.Supp. 294, revd. on other grounds (3d Cir.1979) 593 F.2d 526 [defendant lacked actual knowledge of gun purchaser's criminal record]; Sabatinelli v. Butler (1973) 363 Mass. 565, 296 N.E.2d 190 [father who permitted adult son to have gun not negligent because no evidence he knew or should have known of son's propensity to misuse the weapon]; compare, Reida v. Lund, supra, 18 Cal.App.3d 698, 96 Cal.Rptr. 102 [victims of shooting stated cause of action for negligent safeguard of firearm against father of 16-year-old shooter]; Semeniuk v. Chentis (1954) 1 Ill.App.2d 508, 117 N.E.2d 883 [cause of action for negligence stated by victim of shooting with BB pellet against retailer who sold air rifle and ammunition to parents of shooter, knowing they would be used by young boy].) In the present case, as explained above, the evidence of foreseeability is compelling.

Merrill v. Navegar, Inc.

INTRODUCTION

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FACTS

PROCEDURAL BACKGROUND

DISCUSSION

DISPOSITION

I. The Lead Opinion's Errors Regarding the Element of "Duty."

VI. The Issue of Causation.

VII. Conclusion.

NOTES

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