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Sills v. Smith Wesson

Superior Court of Delaware, New Castle County
Dec 1, 2000
C.A. No.: 99C-09-283-FSS (Del. Super. Ct. Dec. 1, 2000)


C.A. No.: 99C-09-283-FSS.

Submitted: August 22, 2000.

Decided: December 1, 2000.

Upon Defendants' Motion to Dismiss — DENIED, in part, and GRANTED, in part.

Carolyn R. Schiecker, Esquire, City of Wilmington Law Department, City County Building, 800 French Street, Wilmington, Delaware, 19801. Attorney for Plaintiff.

Arthur D. Kuhi, Esquire, Law Office of Michael Pedicone, P.A., 200W. 9th Street, Suite 700, Wilmington, Delaware, 19801. Attorney for Defendant.

William J. Cattie, III, Esquire and Barbara Fruchauf, Esquire, Cattie Fruchauf, 1001 Jefferson Plaza, Suite 201, Wilmington, Delaware, 19801. Attorney for Defendant.

Richard D. Abrams, Esquire, Heckler, Frabizzio Durstein, 1300 Mellon Bank Center, 919 Market Street, P.O. Box 128, Wilmington, Delaware, 19899-0128. Attorney for Defendant.

Michael A. Pedicone, Esquire, P.O. Box 1395, Wilmington, Delaware, 19899-1395. Attorney for Defendant.

John E. James, Esquire, Hercules Plaza, P.O. Box 951, Wilmington, Delaware, 19899. Attorney for Defendant.

Stephen P. Casarino, Esquire, Casarino Christman Shalk, 222 Delaware Avenue, P.O. Box 1276, Wilmington, Delaware, 19899. Attorney for Defendant.

P. Clarkson Collins, Jr., Esquire, Morris James Hitchens Williams, P.O. Box 2306, Wilmington, Delaware 19899. Attorney for Defendant.


Concerned about damage and destruction they attribute to the design, marketing and advertising of handguns, Mayor James H. Sills, Jr., and the City of Wilmington have sued twelve handgun manufacturers and three trade associations to recover money damages. The complaint includes nine counts alleging:

• unreasonably dangerous design,

• failure to include safety devices in design,

• inadequate warning,

• negligence,

• negligent marketing and distribution,

• nuisance,

• fraud/fraudulent concealment,

• unjust enrichment, and

• civil conspiracy.

Plaintiffs further allege that the handgun manufacturers have caused continuous harm to the City and its residents. They also claim that the defendant manufacturers, and trade associations, engaged in fraud/fraudulent concealment and civil conspiracy, by which they have been unjustly enriched at the expense of the City and its residents. As damages, plaintiffs claim millions of dollars in police, emergency and other related services, as well as substantial lost tax revenue due to lost productivity.

The manufacturers filed a motion to dismiss under Superior Court Civil Rules 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. The trade associations filed a motion to dismiss for lack of personal jurisdiction, or alternatively, for a more definite statement. This is the decision on those initial dispositive motions. Part I addresses the manufacturers' motion. Part II concerns the trade associations.

In summary, the Court will allow this case to go forward, for the most part. For now, the Court is not concerned about whether plaintiffs can prove their case. The Court simply is deciding whether plaintiffs' claims are worth the Court's attention and by the same token, whether they justify the cost of defending them. Although the claims are novel and they push the limits of civil liability, they raise serious issues and they are not so far-fetched that they can be dismissed in their entirety, outright.

PART I I. A. Defendant Manufacturers

The manufacturers' first ground for dismissal is their claim that plaintiffs are impermissibly attempting piecemeal regulation of handgun manufacture, design, advertisement and distribution, in Wilmington and beyond. Specifically, defendants contend that plaintiffs' suit violates 22 Del. C. § 11 and 835(a)(6) and the "home rule doctrine barring extraterritorial regulation by cities." These laws prohibit the City's regulating firearms for anything other than their discharge. So defendants claim that plaintiffs are trying to regulate through this litigation what they statutorily are prohibited from regulating through ordinance, or otherwise.

The twelve defendant manufacturers are: Smith Wesson Corp.; Sturm, Ruger Co., Inc.; Colt's Manufacturing Co.; Beretta U.S.A. Corp.; Glock, Inc.; Hi-Point Firearms; Taurus International Manufacturing, Inc.; Phoenix Arms; Sigarms, Inc.; Bryco Arms; B.L. Jennings, Inc.; and Navegar, Inc. (D/B/A "Intratec")

22 Del. C. § 111: The municipal governments shall enact no law, ordinance or regulation prohibiting, restricting or licensing the ownership, transfer, possession or transportation of firearms or components of firearms or ammunition except that the discharge of a firearm may be regulated; provided any law, ordinance or regulations incorporates the justification defenses as found in Title 11.

22 Del. C. § 835(a)(6): This chapter may not permit the amending of a municipal charter so as to . . . [p]rohibit, restrict or license ownership, transfer, possession or transportation of firearms or components of firearms or ammunition, except that the discharge of a firearm may be regulated; provided that any regulation or ordinance incorporates the justification defenses as found in Tile 11 of the Delaware Code.

Second, the manufacturers contend that, under the guise of seeking damages for Wilmington's citizens, plaintiffs are trying to recover for "indirect consequences of injuries sustained by third parties" for which plaintiffs have no standing to sue. And so, defendants maintain that this Court lacks subject matter jurisdiction. Defendants also claim that "proximate cause" bars plaintiffs' recovery. They cite Holmes v. Securities Investor Protection Corp., and several other cases involving pension funds suing tobacco manufacturers, for the proposition that harm flowing from a third person's injuries is derivative and too remote for recovery.

Defendants cite Steamfitters Local Union No. 420 Welfare Fund v. Philip Morris, Inc., 171 F.3d 912 (3rd Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3251 (U.S. Sept. 27, 1999) (No. 99-545); Laborers Local 17 Health and Benefit Fund v. Philip Morris, Inc., 191 F.3d 229, 239, 244 (2d Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3327 (U.S. Nov. 4, 1999) (No. 99-791).

Moreover, defendants argue that plaintiffs are barred from recovery since municipalities may not recover for public expenditures. They aver that the City is under a duty to provide "ordinary public services, " and those costs are not recoverable. Further, they analogize Delaware's "fireman's rule" to this case. They posit that since Delaware courts have accepted the "fireman's rule, " they should accept the common law bar against municipal expenditures recovery.

Delaware's "firemans' rule" states that "a fireman may not recover for injuries attributable to negligence that requires their assistance. . . a fireman may not recover when he is injured from the very risk, created by the defendant's act of negligence, that required his professional assistance and presence at the scene." Carpenter v. O'Day, Del. Super., 562 A.2d 595, 601 (1988).

Fourth, the manufacturers contend that plaintiffs' nine counts fail to state a claim, as a matter of law. Specifically, they portray plaintiffs' unreasonably dangerous design, failure to include safety devices and inadequate warnings claims as amounting to a claim for "strict liability, " which Delaware does not recognize.

As to the negligence claims, defendants argue plaintiffs have failed to plead them with particularity as required by Superior Court Civil Rule 9(b). Manufacturers state plaintiffs fail to allege a duty owed to plaintiffs by the manufacturers. They maintain that absent a special relationship, defendants have no duty to control third persons' acts. Moreover, they argue that there can be no negligence action over products that function as designed.

Super. Ct. Civ. R. 9(b): "[I]n all averments of fraud, negligence or mistake, the circumstances constituting fraud, negligence or mistake shall be stated with particularity. Malice, intent, knowledge and other condition of mind of a person may be averred generally."

Defendants also argue that in addition to plaintiffs' failure to establish any duty owed to them, plaintiffs have no claim for public nuisance since that action extends only to land — not to a product's "manufacture and sale." Regarding the fraud and fraudulent concealment claims, defendants again argue plaintiffs' Rule 9(b) failure to plead fraud with particularity, as well as their failure to allege any fraud against the City. They maintain that plaintiffs' unjust enrichment claim fails for lack of showing any benefit conferred to defendants by the City and its residents. Defendants contend plaintiffs' civil conspiracy claim also should be dismissed due to a failure to plead specific facts or underlying tort.

Lastly, defendants contend the suit violates the United States Constitution's Commerce and Due Process clauses. They contend that through their claims and relief sought, plaintiffs are seeking to "change the way firearms are designed, marketed, and sold on a national basis."

B. Plaintiffs

Plaintiffs assert that this simply is a lawsuit, not an attempt at judicial legislation. They restrict themselves to the pleadings, claiming that they are not seeking a de facto regulation or ordinance. Plaintiffs contend that "the City has suffered injuries due to Defendants' conduct." Specifically, they claim that due to "defendants' manufacture and negligent marketing, promotion and distribution of handguns" the City has incurred millions of dollars in extra costs. They argue that defendants' tortious conduct is both a direct and proximate cause of plaintiffs' injuries. Plaintiffs maintain, that "although related to the continuing occurrence of injuries to individual citizens and employees" those damages are neither remote nor derivative. Instead, they contend that their injuries are "concurrent with" — rather than "derivative of" individual citizen's injuries. Further, plaintiffs cite cases allowing recovery of costs that could be described as "derivative." Plaintiffs also cite cases establishing that governmental entities may recover direct costs associated with protecting their citizens in the "abatement of a public nuisance."

City of Hartford v. Towns of Glastonbury, 561 F.2d 1032, 1037 (2d Cir. 1976) cert. denied, 434 U.S. 1034-1040 (1978) (Affirmed lower court ruling that City had standing. City not suing on its citizens' behalf, but to vindicate its own interests congruent with the individual city residents' interests.); City of New York v. Fillmore Real Estate, 665 F. Supp. 178, 182 (E.D.N.Y. 1987) (City's allegations of injury — diminution in real estate values and a decrease in tax revenues were "sufficient to confer standing."); Cincinnati Suburban Bell Telephone Co. v. Eadler, 61 N.E. 795 (Ohio App. 1944).

Plaintiffs mainly cite cases involving abatement of toxic waste public nuisance. City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 1017 (7th Cir. 1979) cert. denied 444 U.S. 1025 (1980) (costs of abating toxic waste public nuisance are recoverable); U.S. v. Occidental Chem. Corp., 965 F. Supp. 408, 412-413 (W.D.N.Y. 1997) (exercise of police power to protect public health in abating toxic waste public nuisance are recoverable).

Moreover, plaintiffs claim that there is no absolute bar to recovery since "proximate cause" is a flexible tool that lends itself to factual determination by the jury. It is "a case specific analysis of facts and policy implications" as well as a decision about who should bear damage expenses. Further, plaintiffs posit that with a "modern, less formalistic" approach, "indirect" victims have recovered "under a wide variety of circumstances." Lastly, they claim that to the extent plaintiffs' claims are "derivative," they still are actionable under foreseeability, substantiality and Holmes' tests for remoteness.

Boyd v. Hammond, Del. Supr., 164 A.2d 413, 416 (1963) ("[I]ssue of proximate cause is ordinarily a question of fact to be submitted under proper instructions for the decision of the jury.").

Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268 (1992) (The following prongs comprise the federal Holmes analysis: (a) the difficulty in ascertaining amount of plaintiffs' damages attributable to the alleged violation, as distinct from other independent factors; (b)the difficulty in apportioning damages among plaintiffs removed at different levels of injury from the violative act, to obviate the risk of multiple recoveries; and (c) the above considerations balanced against general interest in deterring injurious conduct, which generally can be accomplished by more directly injured plaintiffs' claims.).

Plaintiffs claim that they have plead negligence with specificity, arguing that their complaint was sufficient to put defendants on notice. They contend that they have shown a duty, but maintain that its scope is a "mixed question of law and fact" precluding dismissal. Plaintiffs also allege that firearms manufacturers owe a duty "to exercise reasonable care to prevent firearms from landing in the hands of [criminals]." As for civil conspiracy, plaintiffs' complaint alleges that all fifteen defendants acted in concert to prevent manufacture of safer handguns. Lastly, plaintiffs state that the suit does not violate the Commerce Clause since they merely seek money damages rather than a regulatory overhaul of the firearms industry.


Standards regarding 12(b)(6) motions to dismiss are well-settled. Delaware law requires courts to accept all well-plead allegations as true. Then the Court must apply a broad sufficiency test: whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint." If the complaint "gives general notice as to the nature of the claim asserted against the defendant, " Delaware law disallows dismissal. A complaint is not dismissed "unless it is clearly without merit, which may be either a matter of law or fact. Further, a complaint's "[v]agueness or lack of detail, " alone, is insufficient to grant dismissal. Thus, if there is a basis upon which the plaintiff may recover, the motion must be denied.

Spence v. Funk, Del. Supr., 396 A.2d 967, 968 (1978).

Id. (Citing Klein v. Sunbeam Corp., Del. Supr., 94 A.2d 385 (1952).

Diamond State Tel. Co. v. University of Delaware, Del. Supr., 269 A.2d 52, 58 (1970).



Spence, 396 A.2d at 968 ("If the [plaintiff] may recover, the motion must be denied."); see also Diamond State, 269 A.2d at 58.

As discussed in Part II, and as mentioned above, the trade associations challenge the Court's jurisdiction over them. In a motion to dismiss for lack of personal jurisdiction, where the Court is presented with a mixed question of fact and law, it must first determine the defendants' contacts with the forum as a matter of fact. Second, the Court must decide as a matter of law, whether those contacts are sufficient to find personal jurisdiction. Then it must determine whether plaintiff made a showing that Delaware's long-arm statute confers jurisdiction. Finally, the Court evaluates whether exercising jurisdiction would violate Fourteenth Amendment due process requirements.

LaNuova V. D D, S.p.A. v. Bowe Co., Del. Supr., 513 A.2d 764, 768-769 (1986).


Finally, in this regard, trade association defendants have attached affidavits to their motion. Where defendants attached affidavits, under Delaware law, the motion to dismiss is converted to a motion for summary judgment. "As such, the facts must be read in a light favorable to the non-moving party." For present purposes, however, the distinction between dismissal and summary judgment standards of review is not important.

Shultz v. Delaware Trust Co., Del. Super., 360 A.2d 576, 578 (1976) (citing Brown v. Colonial Chevrolet Co., Del. Super., 249 A.2d 439, 441-442 (1968)).

Id. (Citing Oliver B. Cannon Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (1973); aff'd Del. Supr., 336 A.2d 211 (1975)).


This case mirrors other handgun litigation throughout the country. Those cases also involve motions to dismiss similar claims and complaints against handgun manufacturers and trade associations. Authority is split. In most cases, the motions to dismiss for failure to state a claim were denied with the courts finding sufficient facts and allegations at least to survive threshold motions. In Archer v. Arms Technology, Inc., et al., the defendants moved for summary disposition, based on pleadings alone. Archer granted the motion in part, dismissing only plaintiff's negligence claim for failure to establish a duty. The court denied the motion as to its public nuisance claim since it could find no cases disavowing public nuisance claims for products, nor any cases barring money damages for public nuisance claims, and because "it cannot be said as a matter of law that no facts could be developed to demonstrate. . . costs. . beyond normal police, fire or emergency services." Archer concludes that plaintiffs' complaint plead sufficient facts establishing defendants' engagement in a continuing and systematic course of conduct proscribed by statute and calculated to result in harm and economic loss to Detroit and Wayne County citizens.

Case No. 99-912658 NZ Op. (Mich. Cir. Ct. May 16, 2000).

Id. at 2.

Id. at 3.

Id. at 15.

Id. at 19.

In White v. Smith Wesson, et al., defendants brought a 12 (b)(6) motion to dismiss. The court denied the motions finding plaintiffs had standing, since they suffered concrete, particularized and imminent harm — lost tax revenue and millions of dollars in increased fire, police and emergency services, court costs and police pension costs — constituting an injury in fact. City of Boston v. Smith Wesson, Corp., et al., involved the same defendants as here. Asserting virtually identical arguments as they do now, defendants moved for a 12(b)(6) dismissal, which the court granted in part and denied in part. The court found that despite alleging injuries arising from harm to others, due to unique aspects of Massachusetts law plaintiffs might have a special relationship as government bodies. Further, Boston states that it was inappropriate to resolve "undecided points of substantive law" by motion, as well as inappropriate to dismiss a theory of liability simply because it is "extreme." Thus, plaintiffs claims were not barred by remoteness as a matter of law. Because Boston found plaintiffs' claimed costs were neither "discrete nor of the sort a municipality can reasonably expect, " nor were their allegations limited to economic harm, the economic loss claim did not compel dismissal. Further, Boston states that the "uniqueness of the allegations of this case counsels against dismissal at the pleading stage." The court disagreed with defendants' assertions that plaintiffs sought aggregation of multiple claims. Instead, it viewed plaintiffs as government bodies advancing various liability theories claiming that defendants' actions harmed them. The court found defendants "home rule violation" arguments misinterpreted plaintiffs' claims, and left the constitutional question until trial. The-court found that plaintiffs' complaint alleged sufficient facts for public nuisance, breach of warranty (defective design and failure to warn), negligence and unjust enrichment claims. Only plaintiffs' claim for negligent distribution and marketing was dismissed.

97 F. Supp.2d 816, 824 (N.D. Ohio 2000).

Id. at 10.

C.A. No. 1999 — 02590 (Mass.Super.Ct. July 13, 2000).

Id. at 2.

Id. at 15.

Id. (Quoting M. Aschheim Co. v. Jenkins, G.L.c. 15 § Mass. App.Ct. 934 (1983); New England Insulation Co. v. Gen. Dynamics Corp., Mass. App. Ct. 28, 30 (1988). See supra.

Id. at 18.

Id. at 21-22.

Id. at 22 (emphasis added).

Id. at 30-41.

In Morial v. Smith Wesson, Corp., et al., the same defendants moved for Peremptory Exceptions of No Right of Action and No cause of Action, which the court denied. Morial stated that New Orleans had a vested right to bring suit under its Home Rule Charter, not preempted by Louisiana's firearms statute, since the statute expressly addressed ordinances and by-laws, not lawsuits. The court also found that plaintiffs had product liability claims for design defects and inadequate warning. City of Cincinnati v. Beretta U.S.A. Corp., et al., Penelas v. Arms Tech., Inc., et al., and Ganim v. Smith Wesson Corp., et al., represent the minority view in this handgun litigation series. Cincinnati affirmed the trial court's grant of defendant manufacturers' and trade associations' motion to dismiss for failure to state a claim. Despite originally pleading nine counts, plaintiffs only contested dismissal of their products liability, negligence, public nuisance and unjust enrichment claims. Cincinnati found that the city was an improper plaintiff for the products liability claim; the city could not recover solely for economic loss; plaintiffs failed to identify a particular product or defect, or defendant; and failed to state a failure to warn claim. For the negligence claims, Cincinnati holds that since "no special relationship existed, the manufacturers and trade associations had no duty to the city to prevent third persons from causing harm." The court rejected the public nuisance claim for products — the city could not state a claim for absolute or qualified nuisance since the activity was authorized by law. Finally, the court found that, as a matter of law the city had no claim for unjust enrichment; the city could neither pursue remote and derivative claims, nor recover municipal costs. Penelas dismissed plaintiffs' complaint with prejudice. The court concluded that Miami-Dade County was an improper plaintiff and had no standing since it had not suffered injury resulting from an "allegedly defective product." Further, plaintiffs lacked standing since they sought damages "purely derivative of damages suffered by third parties . . . too remote to be recoverable by the County." Also, Penelas concluded that public service costs were not recoverable as a matter of law and in that particular case, the County's claims were pre-empted by statute. Lastly, plaintiffs' claims for nuisance, products liability and negligence were adjudged as failing to state causes of action.

2000 WL 248364 (La. Civil D. Ct. 2000).

Id. at *2.

Id. at *4

Id. at *1142

2000 WL 133078 (Ohio App. 1 Dist. 2000).

1999 WL 1204353 (Fla.Cir.Ct. 1999).

1999 WL 1241909 (Conn.Super. 1999).

Cincinnati at * 1.


Id. at *2-*4

Id. at *5

Id. at *6-*7

Id. at *8-*10

Penelas at *1.

Id. at *2.


Id. at *3-*4

Involving claims virtually identical to those in the present case, Ganim dismissed the complaint for lack of subject matter jurisdiction and judgment was entered for all appearing defendants (except one subject to stay in bankruptcy). Ganim held as a matter of law that plaintiffs, Mayor Ganim and the City of Bridgeport, were without standing to litigate their claims since they lacked "any statutory or common law basis to recoup their expenditures . . . [and] . . . any statutory authorization to initiate such claims." The court found that plaintiffs improperly were attempting to regulate firearms as preempted by state law. Finally, the Connecticut court found that plaintiffs failed to bring their nuisance claim in accord with the City of Bridgeport City Charter and ultimately "failed to present a claim that is cognizable by law.

Gammat *13.

Id. at *2.




Under Superior Court Civil Rule 9(b), the complaint must apprize the defendant as to what fraudulent acts are charged. Delaware law requires plaintiff to plead circumstances of time, place, contents of the false representations, identity of the person making the representation and what was gained must be stated with particularity. Yet, plaintiff need only allege the ultimate facts and not evidence. It is not "necessary that all evidence of fraud within the knowledge of the plaintiffs be disclosed short of discovery, but it is essential that the precise theory of fraud with supporting specifics appear in the complaint."

For a negligence claim to be plead sufficiently, it must tell the defendant: (1) what duty, if any, was breached; (2) who breached it; (3) what act or failure to act breached the duty; and (4) the party upon whom the act was performed. Conclusory statements are insufficient, as are allegations based on information and belief.

Myer v. Dyer, Del. Super., 542 A.2d 802, 805 (1987).

Nutt, 466 A.2d at 23.

The complaint contains the "ultimate facts" necessary to pass the Rule 9(b) threshold specificity requirements. Plaintiffs aver that,

at all times during manufacture, marketing, promotion, distribution and sale of handguns, Defendant Manufacturers and Defendant Trade Associations jointly, in concert and/or individually, pursuant to a common plan, design or scheme, made false and fraudulent misrepresentations and omitted and failed to state material facts to Wilmington residents including, but not limited to, the safety of their products . . . and omitted, concealed and failed to disclose relevant information that a reasonable person would find material to making an informed decision regarding the risks associated with the design and manufacture of Defendants' handguns and the ownership of such handguns.

Plaintiffs allege that defendants engaged in such conduct with "the intent to defraud, deceive and mislead customers and with the intent to induce Wilmington residents to purchase Defendants' handguns." Plaintiffs have informed defendants about the fraudulent acts charged, as well as the circumstance requirements.

Plaintiffs' negligence claim meets Rule 9(b) specificity requirements. They allege defendant manufacturers' had a duty "to act with reasonable care" and that they breached that duty in:

Delaware law is well-settled: "The standard of care required of all defendants in tort actions is that of a reasonably prudent [person]. That standard, however, is not a definite rule easily applicable to every state of facts. The details of the standard, of necessity, must be formulated in each particular case in the light of its peculiar facts. In each case the question comes down to what a reasonable [person] would have done under the circumstances. In close or doubtful cases . . . that question is to be determined by the jury." Robelen Piano Co. v. Di Fonzo, Del. Supr., 169 A.2d 240, 244-245 (1961); see also McKinney v. Reardon, Del. Super., 337 A.2d 514, 515 (1975) (citing same).

Their failure to develop and implement the means to prevent their handguns from being fired by unauthorized users; discouraging the development and implementation of the means to prevent handguns from being fired by unauthorized users; their failure to develop and implement other safety features; their failure to issue adequate warning alerting users to the risk of handguns and to the importance of the proper storage of handguns; and their failure to properly market and distribute their handguns.

Plaintiffs allege the breach caused the City's money damages, claiming that it was foreseeable to defendants that plaintiffs:

in their role of providing protection and care for its citizens, would provide or pay for additional police protection, emergency services and other necessary facilities and services due to the threat of use of Defendants' firearms and for certain of its citizens harmed by the use of Defendants' firearms, as well as lost substantial tax revenues due to lost productivity.

And so plaintiffs' pleading puts defendants on notice as to the negligence and fraud/fraudulent concealment claims. The same is true as to the civil conspiracy claim. Plaintiffs' complaint sets out the elements of a confederation or combination, an unlawful act done in furtherance of the conspiracy and actual damage.

See Niccolet, Inc. v. Nutt. Del. Supr., 525 A.2d 146, 149-150 (1987).

Concerning the alleged duty of care to prevent firemans from "landing in the hands of [criminals], " a duty like that might apply to firearms retailers. The Court sees no duty on the manufacturers' part that goes beyond their duties with respect to design and manufacture. The Court cannot imagine that a weapon can be designed that operates for law abiding people, but not for criminals.

Plaintiffs' unjust enrichment claim fails to allege a benefit conferred by them to defendants. That defect is fatal to that claim.

Delaware has yet to recognize a cause of action for public nuisance based upon products. Delaware public nuisance claims have been limited to situations involving land use. While no express authority exists requiring public nuisance claims be restricted to those based on land use, Delaware courts remain hesitant to expand public nuisance.

The basis for plaintiffs' "nuisance," or also referred to as "public nuisance" claim is unclear. Plaintiffs' claim is that defendants' conduct "creates an unreasonable interference with the exercise of the common rights of the health, safety and welfare of the citizens of Wilmington." That wrong cannot be remedied by money damages. To the extent plaintiffs' claim for public nuisance falls within this Court's jurisdiction, it is subsumed within their negligence claims. As such, plaintiffs' allegations have already been addressed. There is no independent claim for public nuisance, at least not along the lines alleged by plaintiffs.

As for defendants' proximate cause argument, Delaware's negligence law permits recovery for damages suffered due to a breach of duty. Recovery, however, is limited to damages proximately caused by defendants' breach of duty to plaintiffs. Even with Delaware's stringent "but for" test, however, it theoretically is possible for plaintiffs to show that "but for" the design deficiencies in defendants' products, such as inadequate safety mechanisms, those weapons would not be misused and the alleged damages would be avoided. With many of plaintiffs' naked claims, it remains to be seen whether plaintiffs can prove that "but for" defendants' negligence any actual damages would have occurred. Generally, however, proximate cause presents a jury question. The Court is unwilling to prevent plaintiffs from even attempting to prove their case.

Delaware follows the "but for" test for determining "proximate cause." Delaware case law is clarion: defendant's conduct is a cause of the event if the event would not have occurred but for that conduct; conversely, the defendant's conduct is not a cause of the event, if the event would have occurred without it. Culver v. Bennett, Del. Supr., 588 A.2d 1094, 1097 (1991); see also Duphily v. Delaware Elec. Co-op., Inc., Del. Supr., 662 A.2d 821, 829 (1995); Mazda Motor Corp. v. Lindahl, Del. Supr., 706 A.2d 526, 531-532 (1998) ("To prove proximate cause a plaintiff must show that the result would not have occurred "but for" defendant's action." (Citing Culver.))

Similarly, it is not easy to see how plaintiffs will establish damages in their own right. Nevertheless, if plaintiffs can establish that defendants are selling unreasonably dangerous and defective products in Wilmington, the City might be able to prove damages that go beyond the costs associated with typical municipal services. Again, the Court will allow plaintiffs to attempt to prove their case.

As mentioned, defendants moved to dismiss on federal due process and commerce clause grounds. Their approach, however, suggests that rather than seriously litigating these claims, they are attempting to preserve them for later use. If defendants ultimately are required to pay damages, that will come only after they have received the process to which they are due. By the same token, assuming that plaintiffs make good on their claims, defendants have no right to put unreasonably dangerous products into interstate commerce. And, defendants do not even allege in passing that federal preemption applies to the handgun industry.

PART II I. A. Defendant Trade Association Contentions

As mentioned above, the defendant trade associations, the Sporting Arms and Ammunition Manufacturers' Institute ("SAAMI"), the National Shooting Sports Foundation, Inc.("NSSF") and the American Shooting Sports Council, Inc. ("ASSC") filed a motion to dismiss for lack of personal jurisdiction, and in the alternative for a more definite statement. They assert that because they do not maintain any offices in Delaware, have no employees or agents in Delaware, do not own property in Delaware, do not hold meetings in Delaware, have no significant contacts with Delaware residents, and do not advertise in Delaware-based media, there is no basis upon which the Court may exercise jurisdiction. The defendant trade associations also emphasize that they neither manufacture nor market handguns. In addition to reviewing the trade associations as a group, it is necessary to review each trade association individually.

American Shooting Sports Council, Inc., is a Florida-based, non-profit trade association, that informs local, national and state governments regarding the firearm industry's and firearm owners' needs and interests. ASSC has no current or previous Delaware members. SAAMI is a New York based non-profit corporation that sponsors industry-related technical programs and voluntary industry standards. SAAMI makes publications available through the internet. Currently, it has no Delaware members, though it had two in the past. NSSF is a Connecticut based non-stock corporation promoting public understanding and participation in the shooting sports. It has one current retail member in Delaware, and NSSF has sold literature to Delaware residents. NSSF also provided the Delaware Boy Scouts with patches for successful completion of marksmanship and firearm safety activities. NSSF also has an internet website, and a shooting program carried on the ESPN cable television channel.

B. Plaintiffs' Contentions

In addition to claims made against the defendant manufacturers, the complaint alleges that the defendant trade associations acted "in concert" with the manufacturers "pursuant to a common plan, design or scheme," to engage in fraud, fraudulent concealment and civil conspiracy, and failed to state/omit material facts to Wilmington residents regarding the safety of handguns and their ownership risks. As previously presented, plaintiffs claim millions of dollars in police, emergency and other related services, and lost tax revenue due to lost productivity as a direct and proximate result of Defendants' actions and inactions.

In response to defendant trade associations' motion, plaintiffs claim that "the evidence of the record supports the proposition that Defendants both regularly solicit business and engage in a persistent course of conduct in Delaware." First, they cite the nontraditional nature of defendants' business and "product, " which are "circulated in and had an impact on Delaware." Next, plaintiffs assert Internet promotion and solicitation" by defendants as a basis for jurisdiction since defendants "secured a benefit from Internet users in Delaware who, among other things, signed up as members, bought books and materials, and have enrolled in shooting events." Plaintiffs also allege conspiracy jurisdiction since defendants have acted in concert with each "other . . . in furtherance of the conspiracy to suppress the development and implementation of proper and personalized safety devices and the promulgations of disinformation regarding handguns."

Plaintiffs allege several other bases for jurisdiction. They cite the Calder "effects test." They assert jurisdiction based on fraudulent misrepresentations directed at Delaware by defendants, since defendant trade associations have "served as the mouthpiece for the gun companies, circulating fraudulent and misleading statistics concerning the safety of guns and suppression of better technology." And, plaintiffs claim that the trade associations have engaged in advertising, promotions, shooting and educational activities within Delaware, making them subject to personal jurisdiction. Further, plaintiffs aver that through their products' national promotion, including promotion within Delaware and Wilmington, the SAAMI, ASSC and NSSF have subjected themselves to personal jurisdiction in Delaware.

Calder v. Jones, 465 U.S. 783 (1984).


Delaware law requires the Court to determine through a two-step process whether it may exercise jurisdiction over non-resident defendants. First, the Court must determine whether Delaware's long arm statute, which is broadly construed to confer jurisdiction, applies to assert personal jurisdiction. Then, the Court determines whether asserting jurisdiction runs afoul of due process guarantees. Due process requires that the nonresident defendant must have minimum contacts" with the forum so that the litigation does not offend traditional notions of "fair play and substantial justice." The existence of sufficient minimum contacts is determined "from the close examination of the particular circumstances of each case." In particular, it is the "quality and nature of the defendant's activities that control."

LaNuova v. DD, S.p.A. v. Bowe Co., Del. Supr., 513 A.2d 64, 768-769 (1986).

Hercules, Inc. v. Leu Trust Banking (Bahamas), Ltd., Del. Supr., 611 A.2d 476, 480-81 (1992); Transportes Aereos De Angola v. Ronair, Inc., 544 F. Supp. 858 (D.Del. 1992).

Id. at 865.


Waters v. Deutz Corp., Del. Supr., 479 A.2d 273, 276 (1984).

It is plaintiff's burden to demonstrate the basis for exercising jurisdiction over the nonresident defendant. This burden is met by a threshold prima facie showing that the statute confers jurisdiction. In that regard, the Court must view all factual disputes in a light most favorable to [the] plaintiff."

Boone v. Oy Partek Ab, Del. Super., 724 A.2d 1150, 1154 (1997).



The Court may exercise either general or specific personal jurisdiction over a nonresident defendant. General jurisdiction "is at issue when the plaintiff's claims are unconnected with the nonresidents' activities." Specific jurisdiction concerns instances "when the plaintiff's claims arise out of acts or omissions that take place in Delaware." Here, plaintiffs' claims arise out of defendants' acts or omissions that took place, in part, in Delaware, thus obviating any need to address general jurisdiction. The Court initially limits its focus to specific jurisdiction.

Boone v. Oy Partek, Del. Super., 724 A.2d 1150, 1155 (1997) (citing Chaplake Holdings, Ltd. v. Chrysler Corp., Del. Super., C.A. No. 94C-04-164, Babiarz, J. (Aug. 11, 1995); Mayhall v. Nempco, Inc., Del. Super., C.A. No. 91C-10-018, Steele, V.C. (July 29, 1994)).

Id. (Citing Applied Biosystems, Inc. v. Cruachem, Ltd., 772 F. Supp. 1458, 1467 (D.Del. 1991)).

Specific jurisdiction is governed by § 3104(c)(3), which provides for personal jurisdiction over a nonresident defendant when the defendant "[c]auses tortious injury in the State by act or omission in this State." Specific jurisdiction may be exercised when "a defendant has purposefully directed its activities at residents of the forum state, and where the alleged injuries arose out of those activities." The Delaware Supreme Court has stated that "it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws."

Thorn EMI North America v. Micron Technology, Inc., 821 F. Supp. 272, 275-76 (D.Del. 1993) (citing Burger King v. Rudzewicz, 471 U.S. 462, 475 (1985)).

Istituto Bancario Italiano SpA v. Hunter Eng'g Co., Del Supr., 449 A.2d 210, 218 (1982) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958)).,

Conspiracy jurisdiction also is at issue here. Everyone tacitly agrees that Delaware is a conspiracy theory" jurisdiction. Specifically, Istituto Bancario Italiano SpA v. Hunter Engineering Co., Inc., posits a five-part test for establishing minimum contacts for conspiracy jurisdiction. This test requires plaintiffs to make a factual showing that:

Id. at 225.

(1) a conspiracy to defraud existed;

(2) the defendant was a member of that conspiracy;

(3) a substantial act or substantial effect in furtherance of the conspiracy occurred in the forum state;
(4) the defendant knew or had reason to know of the act in the forum state or that acts outside the state would have an effect in the forum state; and
(5) the act in, or effect on, the forum state was a direct and foreseeable result of the conduct in furtherance of the conspiracy.


If plaintiffs' allegations demonstrate all five elements, plaintiffs have established jurisdiction under the conspiracy theory.


Courts in other jurisdictions have dealt with personal jurisdiction over non-resident trade organizations and associations for various industries, including the handgun industry. In those cases, the courts often find it appropriate to exercise personal jurisdiction. Generally, the courts regard the national activities of trade associations and organizations as a sufficient basis for exercising jurisdiction.

In White v. Smith Wesson, et al., plaintiff filed a common law claim of negligence against the handgun trade associations, along with many other claims against the handgun manufacturers. As. case, the defendant trade associations filed a motion to dismiss for lack of personal jurisdiction. Following oral argument, the trade associations' motion was denied for reasons unknown. Guidry v. United States Tobacco Co., Inc., involved a suit against a nonresident tobacco trade manufacturers' association that was removed to federal court. The defendant trade associations' motion to dismiss for lack of personal jurisdiction was granted upon reconsideration. After de novo review the Court of Appeals reversed and remanded, finding that plaintiff made a prima facie showing that the trade associations had sufficient minimum contacts with Louisiana and that the plaintiff's injuries arose from those contacts. Thus, the plaintiff's evidentiary showing — that the defendants published ads and articles in national publications circulated in Louisiana, and defendants' representatives appearance on national television programs broadcast in Louisiana, defending and encouraging the use of tobacco products — was sufficient to avoid dismissal before an evidentiary hearing.

97 F. Supp. 816 (N.D. Ohio 2000).

Id. at 820.

188 F.3d 619 (5th Cir. 1999).

Id. at 623.

Id. at 625-26.


Similarly, Hollar v. Philip Morris, Inc., involved a smoker suing various cigarette manufacturers and the Tobacco Institute, Inc. ("TI"), a tobacco industry trade organization. TI filed a motion for reconsideration of its dismissal motion. Hollar held that the plaintiff had established specific jurisdiction over TI. The plaintiff alleged that TI committed fraud by knowingly misrepresenting the dangers of smoking and confusing consumers with information contradicting the required warning labels. Though the plaintiff failed to make a showing of "continuous and systematic" activity to support general jurisdiction, Hollar found that TI "purposefully availed itself to the privilege of doing business in Ohio by reaching out to the residents of Ohio to spread information beneficial to its sponsors."

43 F. Supp.2d 794 (N.D. Ohio 1998).


Id. at 803.

Id. at 803-04.

In Wright v. Sherwin-Williams Co., et al., the plaintiffs sued several paint manufacturers, as well as a lead product manufacturer and purveyor trade association, Lead Industries Association, alleging that it and the other defendants purposely concealed the dangers of lead exposure, misled the public and failed to provide adequate warnings. The defendant trade association moved to dismiss maintaining that the court could not properly exercise personal jurisdiction under the Pennsylvania long arm statute and constitutional due process. The court denied the motion. The court found that because the trade association had 5-10% of its membership in Pennsylvania, it took an active role in opposing/supporting legislation in Pennsylvania on several occasions, resident Pennsylvanians employed by members have sat on committees and other posts, it offered publications concerning lead available at the general public's request, and the association participated in several seminars in Pennsylvania concerning lead's environmental impact, there was ample evidence" that the defendant trade association "purposefully availed itself" to Pennsylvania and was therefore subject to personal jurisdiction.

708 F. Supp. 705, 706 (W.D.Pa. 1989).




Id. at 706-08.

In Bennett v. J. C. Penny, et al., plaintiffs sued for recovery for deaths and injuries occurring in outdoor, above ground swimming pools. The defendant, National Spa and Pool Institute ("NSPI"), filed a motion to dismiss for lack of personal jurisdiction, which the court denied. Due to NSPI's status as a non-profit organization, the court stated that it could not determine if NSPI "purposefully availed" itself to the privilege of acting within the state "by looking at factors upon which courts have typically relied, such as percentage of total profits coming out of the forum state or number of employees within the state." Rather, it "must consider the service that NSPI attempted to provide nationwide and determine the extent to which its actions created presence in [the forum state]. 1, The court found that, in its capacity as a trade association representing the swimming pool industry, NSPI solicited members, advertised and lobbied on members' behalf and published numerous brochures advising consumers to buy only from NSPI members. Because NSPI performed those activities in Michigan, the court concluded that NSPI "purposefully availed itself of business opportunities within Michigan," thus, the court could properly exercise personal jurisdiction.

603 F. Supp. 1186 (W.D. Mich. 1985).

Id. at 1186.

Id. at 1188.

Id. (Citing Speckling v. Stanwick International, Ins., 503 F. Supp. 1055, 1058 (W.D. Mich. 1980) (if actions within state are not income generating, courts should look for involvement with forum state through actions freely and intentionally done by defendant); Mad Hatter, Inc. v. Mad Hatters Night Club, Co., 399 F. Supp. 889, 891 (E.D. Mich. 1975)(defendant's "purposeful" action need not be an income generating one)).

Id. at 1189.


It appears that in only one case involving the national handgun litigation did a court decline to exercise personal jurisdiction. In Morial v. Smith Wesson, Corp., et el., after oral argument, the court dismissed the defendant trade associations from the pending lawsuit.

2000 WL 248364 at *1 (La. Civil D. Ct. 2000).



Were it not for the conspiracy theory, it is a close question whether defendant trade associations' contacts, alone, amount to "minimum contacts" sufficient to support jurisdiction. Defendant trade associations' contacts with Delaware can be summed up as:

• Internet website and advertisement;

• Providing educational, informational and political literature about

• the gun/shooting sports industry and ownership, upon request;

• General promotional advertisement in national publications;

• Shooting sports show on cable television.

But, Delaware is a conspiracy theory state.

Viewing the record in the proper light, the Court finds plaintiffs' allegations satisfy the Istituto test elements. Here, plaintiffs' complaint pleads ultimate facts with respect to the conspiracy. They allege its existence. They allege defendants acted in concert to suppress safety standards. Plaintiffs demonstrate defendants' participation in the conspiracy through defendants' admitted informational products and activities on behalf of the handgun industry. They allege defendants, due to the inherent nature of the product involved, at least had reason to know of the effect of their acts and omissions upon Delaware. Lastly, plaintiffs allege the effect was a foreseeable result of defendants' failure to include better safety devices in handguns, and from misrepresentations by defendants regarding handgun safety and ownership.


In closing, it remains to be seen whether plaintiffs can make their case, and that is especially true with respect to their own damages. For example, this case stands in contrast to Hamilton v. Accu-Tek, where plaintiffs who were shot and injured or representatives of victims shot and killed, brought actions based on a mass tort theory, "analogizing handguns and their ammunition to a pathogen leading to latent injuries and deaths of many thousands of people, much like claims associated with asbestos, agent orange, the dalkon shield and silicone breast implants." Nevertheless, as discussed above, the Court is satisfied that dismissing plaintiffs' complaint outright is inappropriate.

62 F. Supp.2d 802 (E.D.N.Y. 1999).

Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1313 (E.D.N Y 1996).


Taking into consideration the foregoing, the Court finds that plaintiffs' complaint against the manufacturers generally states a claim upon which relief may be granted. Defendant manufacturers' motion to dismiss is DENIED in part and GRANTED with respect to negligent marketing and distribution, and unjust enrichment, counts five and eight. Defendant trade associations' motion to dismiss is DENIED.

Summaries of

Sills v. Smith Wesson

Superior Court of Delaware, New Castle County
Dec 1, 2000
C.A. No.: 99C-09-283-FSS (Del. Super. Ct. Dec. 1, 2000)
Case details for

Sills v. Smith Wesson

Case Details

Full title:MAYOR JAMES H. SILLS, JR., and THE CITY WILMINGTON, Plaintiffs, v. SMITH…

Court:Superior Court of Delaware, New Castle County

Date published: Dec 1, 2000


C.A. No.: 99C-09-283-FSS (Del. Super. Ct. Dec. 1, 2000)

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