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explaining that the common law remains in force unless the legislature or courts say otherwise and stating that "it is axiomatic that absent a statute to the contrary, the court may adopt common law doctrines covering legal issues it must decide"
Summary of this case from Smith v. GordonOpinion
C.A. No. 99C-09-283-FSS
Original Briefing Completed: April 26, 2002 Last Supplemental Submission: November 6, 2002
Decided: November 27, 2002
Upon Defendants' Motion for Summary Judgment — GRANTED
Aaron R. Goldstein, Esquire, Attorney for Plaintiff.
Arthur D. Kuhl, Esquire, Law Office of Michael Pedicone, Attorney for Defendant.
William J. Cattie, III, Esquire and Barbara Fruehauf, Esquire, Cattie Fruehauf, Attorney for Defendant.
John E. James, Esquire, Potter Anderson Corroon, Attorney for Defendant.
Stephen P. Casarino, Esquire, Casarino Christman Shalk, Attorney for Defendant.
P. Clarkson Collins, Jr., Esquire, Morris James Hitchens Williams, Attorney for Defendant.
Allen M. Terrell, Jr., Esquire, Richards Layton Finger, Attorney for Defendant.
James F. Bailey, Jr., Esquire, Bailey Wetzel, Attorney for Defendant.
OPINION and ORDER
Frustrated and fed up with the mayhem caused by misused handguns, the Mayor of Wilmington on behalf of the City has sued the nation's handgun manufacturers. The lawsuit is part of an effort by municipalities around the country to force the handgun industry either to make its products safer or go out of business. The Mayor and the City have a laudable ulterior motive, reducing handgun violence. This case, however, presents a direct claim for money damages to reimburse the City for the costs it has incurred dealing with matters involving misused handguns.
See, e.g. City of Chicago v. Beretta U.S.A. Corp., Np. 98 CH 15596 (Cir.Ct. of Cook Cty., Ill. Sept. 15, 2000) rev'd, 2002 Ill. App. LEXIS 1001 (2002); Penelas v. Arms Technology, Inc., 1999 WL 1204353 (Fla. Cir. Ct. Dec. 13, 199 9), aff'd, 778 So.2d 10 42 (Fla . App.), review denied, 799 So.2d 218 (Fla. 2001); People of the State of New York v. Sturm, Ruger Co., Inc., No. 402586/00 (N.Y.Sup.Ct. Aug. 10, 2001) (appeal pending); Ganim v. Smith Wesson Corp., 1999 WL 1241909 (Conn.Super.Ct. Dec 10, 1999), aff'd, 780 A.2d 98 (Conn. 2001); City of Atlanta v. Smith Wesson Corp., CA. No. 99VS0149217J (Ga. St. Ct., Oct 27, 1999); City of Cincinnati v. Beretta U.S.A. Corp., 1999 WL 800 9838 (Ohio Ct. Com. Pl., Oct. 7, 1999).
The complaint does not concern claims by direct victims of handgun violence, nor do the Mayor and City ask for injunctive relief to prevent the manufacturers from selling unreasonably dangerous products and creating a nuisance. Thus, the case squarely raises a question whether the City can recover the costs of municipal services, including police work and emergency response, from those who made it necessary for the City to incur those costs. As big and important an issue as handgun control is, before it can reach that issue the court must consider whether tortfeasors can be held liable for municipal costs.
In other words, the court must decide whether the common law prohibition on municipalities recovering costs from tortfeasors, known as the "municipal costs recovery rule" or in some cases "the firefighter's rule," is the law in Delaware. If it is, then the court must decide whether the rule applies to the damages that the Mayor and City might prove. If the Mayor and the City cannot establish any recoverable damages, then this case cannot survive in this court, which as a court of law only has authority to award money in civil cases.
I.
The Complaint's Allegations
The Mayor's and the City's complaint is a sweeping indictment of the handgun industry's methods, including the way handguns are designed, manufactured and marketed. The complaint alleges that handguns are not designed properly to reduce the risks posed by unauthorized or untrained people, especially children, who obtain them. The complaint emphasizes the manufacturers' failure to incorporate adequate safety devices to prevent accidental, unauthorized or unintentional discharges and the manufacturers' failure to provide devices that warn users when handguns are loaded. For example, the complaint points out that even when a semi-automatic pistol's magazine is removed, the pistol still may have a round in the chamber. Nevertheless, handgun manufacturers continue to make and sell pistols without warning stickers, much less mechanisms that prevent supposedly unloaded handguns from firing.
The complaint also seeks to hold the manufacturers liable for distributing their inherently dangerous products in ways that allow them to fall into irresponsible or unauthorized people's hands, or into the hands of children and untrained adults. The complaint alleges that "a substantial portion of the handguns [defendants] produced, sold and distributed ended up in criminal hands, and were used for criminal purposes. . . ." According to the complaint, the manufacturers "knew or should have known" that their products would be misused, causing grave injuries. Furthermore, allegedly it was foreseeable that the City would incur expenses providing emergency services "due to the threat of use of Defendants' firearms and for . . . citizens harmed by the use of Defendants' firearms, as well as lost substantial tax revenues due to lost productivity."
Throughout the complaint, the Mayor and City make general allegations about the City's damages. Typically, the complaint characterizes the City's damages as "funds expended for additional police protection and emergency services as well as other related costs." The complaint's specific damages recital is:
As a direct and proximate result of the actions and inactions of Defendants. . ., Plaintiffs have been obligated to pay and have paid millions of dollars in police services, and emergency services, and other related services due to the threat of use of Defendants' products and actions, and have lost substantial tax revenue due to lost productivity.
II.
The Case HistoryThe Mayor and City filed suit on September 29, 1999. The complaint touched off an explosion of litigation. In lieu of answers, Defendants filed dispositive motions. After receiving the parties' briefs, the court issued an opinion and order on December 1, 2000 paring the complaint, but not dismissing it. That decision sparked an unsuccessful interlocutory appeal to Delaware's Supreme Court. Eventually, answers to the complaint were filed and discovery disputes began immediately. The Mayor and City sought wide-ranging discovery, which Defendants opposed vigorously.
The original Plaintiff was the Honorable James H. Sills, Jr., Mayor Baker's predecessor. Mayor Baker was substituted as Plaintiff under Superior Court Civil Rule 25(d)(1).
Smith Wesson Corp., et al. v. Mayor James H. Sills, Jr. and The City Of Wilmington, Del. Supr., No. 87, 2001, Holland, J. (March 1 3, 2001).
As the case unfolded and its expenses mounted, the court focused on one element of the Mayor and City's case-damages. The court became concerned that the Mayor and the City's damages would amount to nothing more than municipal costs, which might not be recoverable under the common law's municipal costs recovery rule. The court also appreciated that the discovery necessary to flesh out the damages issue need not be extensive. First, as plaintiffs the Mayor and City would know their own damages. Second, the Mayor and City would only need to show that some of their damages were recoverable in order to convince the court that they might prevail on that element of their case. To establish a viable damage claim in theory, the Mayor and City would not have to present all their recoverable damages, just a sample. But if the Mayor and City could not even demonstrate that a portion of their damages are cognizable, their complaint could not survive, no harm — no foul. So the court put the Mayor and City to the test.
At a hearing on June 15, 2001, the court called for a case management order establishing a schedule for abbreviated discovery designed to give the Mayor and City an opportunity to present some legally cognizable damages. The order was entered and as required, on December 11, 2001, the Mayor and City submitted an offer of proof outlining some of the damages for which the Mayor and City now seek recovery. That submission precipitated the instant dispositive motions. Defendants argue that even if the Mayor and City can make good on their offer of proof, the municipal costs recovery rule precludes any recovery as a matter of law and, therefore, Defendants are entitled to summary judgement.
III.
The Offer of Proof as to Damages
As mentioned above, the court gave the Mayor and City an opportunity to demonstrate some legally cognizable damages. Plaintiffs were not obliged to prove all their damages. They merely had to present enough evidence that when viewed in the light most favorable to them would justify further litigation. To meet the challenge, the Mayor and City made an offer of proof consisting of a five page summary by counsel, with supporting documents. The principal support for the offer of proof is a six page report by an economic consultant. The report relies on affidavits from knowledgeable senior police officials. The affidavits, in turn, rely on assorted police reports, financial reports, graphs and tables. The supporting material also includes five actual cases where handguns were criminally misused. The examples ranged from an accident involving a young man's shooting his girlfriend in the finger as he showed-off a recently acquired stolen handgun, to murder.
For the pending motion's purposes, the court must accept the offer of proof. Frankly, that does not require a stretch. The offer of proof tends to establish what the court already believes: beyond the terrible price it exacts in human terms, handgun violence costs the City plenty of money. For example, the offer of proof submits that the City spent over one million dollars investigating 263 shootings between 1997 and 2000, much of that for police overtime. The consultant's report concludes, in part, "that the Wilmington Police Department has absorbed real and significant economic damages as related to investigating gun incidents." Even under the generous standard of review for summary judgements, the court need not accept the non-moving party's conclusions about the evidence. Nevertheless, the court easily agrees that the Mayor and City can prove that handgun violence has increased the City's expenses. Even Defendants do not dispute the Mayor and City's numbers and the consultant's conclusions, at this point.
In considering Defendants' dispositive motion, the court will assume not only that the Mayor and City can prove that they have money damages "related to investigating gun incidents." The court also will assume that: the damages are "related" to Defendants' products; Defendants' products are defective or negligently designed, manufactured and marketed; and the damages are proximately caused by Defendants.
As compared to the court's initial assumption that handgun violence is costly, some of those later assumptions require considerable stretching. For example, the consultant treats every shooting in Wilmington as caused by a defective product sold by a Defendant. Yet, it is likely that several of those shootings were by criminals who fully intended to employ the firearms as they did. In those cases, especially where the shooter acted with criminal intent, Defendants' liability is far from clear. Nevertheless, the court is relying uncritically on the offer of proof. But even if handgun violence costs the City a lot and even if the handgun manufacturers are to blame, as discussed below, that does not mean that the Mayor and the City have a justiciable damages claim.
The offer of proof is noteworthy in one other way. It proffers no expert opinion, much less supporting evidence, to establish the Mayor's and City's claim that handgun violence has cost the City tax revenue through "lost productivity," or otherwise. The court gave the Mayor and City a full opportunity to present any case where handgun violence caused lost revenue. The court cannot assume that the City lost revenue because of handguns, much less that a jury could make a proper damages award for lost revenue and productivity.
Again, the court is willing to make the debatable assumption here that some of the City's alleged damages might be Defendants' fault, even if it is unlikely that the entire increase in police overtime is attributable to handgun violence as the Mayor and City allege. But as to the Mayor's and City's lost revenue and productivity claim, it is entirely theoretical and speculative. The court, therefore, sees the Mayor's and City's potential damages claim as one entirely for increased emergency and investigative expenses, especially police overtime.
IV. A. The Common Law's Municipal Costs Recovery Rule Applies in Delaware
Over the centuries leading up to the American revolution and since then a body of non-statutory jurisprudence, known as the common law, has been developed by the Anglo-American courts. In many instances, the common law has been superceded by statutes. For example, the Uniform Commercial Code now governs many business transactions once controlled by contract, agency and property law precedents. Similarly, the Workers' Compensation Act has largely replaced tort law as it applied to injured workers and their employers. And until the current Criminal Code was enacted by the General Assembly in 1973, "it was possible to prosecute for common-law crimes." Since 1923, much of the remaining common law has been collected and refined through the American Law Institute's authoritative
See, e.g., People v. Rehman, 253 C.A.2d 11 9 (1967), cited in Black's Law Dictionary (6th ed. 1990).
Del. C. Ann. tit. 6 § 1-102, § 1-103 (1999).
Del. C. Ann. tit. 19 § 2304 (1999).
Del. C. Ann. tit. 11 § 202 cmt. on § 202 (1973).
"Restatements of the Law." The common law, however, is still found in case decisions.
William Draper Lewis, History Of The American Law Institute And The First Restatement Of The Law (1945).
In Wilson v. State, a criminal case, our Supreme Court held flatly: "Delaware follows the common law except when changed by statute." Although Delaware cases often consider whether statutes have superceded the common law, it is beyond dispute that Wilson's holding confirms the common law's general viability in Delaware. The common law is in force here unless the legislature or the courts say otherwise. At a minimum, it is axiomatic that absent a statute to the contrary, the court may adopt common law doctrines covering legal issues it must decide.
305 A.2d 312 (Del. 1973).
See, e.g., Schuster v. Derocile, 775 A.2d 1029 (Del. 2001); Nationwide Gen. Ins. v. Seeman, 702 A .2d 915 (Del. 1997); Hoesch v. National Railroad Passenger Corp., 677 A.2d 29 (Del. 1996); Beattie v. Beattie, 630 A.2d 1096 (Del. 19 93); Claudio v . State, 585 A.2d 1278 (Del. 1991).
Under common law, the general rule in force in other jurisdictions is that "public expenditures made in the performance of governmental functions are not recoverable" from a tortfeasor in the absence of a specific statute. This rule against "municipal cost recovery" is rooted in the legislative policy of taxing citizens to pay for these services. The lead authority on the municipal cost recovery rule is City of Flagstaff v. Atchison, Topeka Santa Fe Ry. Co., which holds that "the cost of public services for protection from fire or safety hazards is to be borne by the public as a whole, not assessed against the tortfeasor whose negligence creates the need for the service." The court further explains that:
District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1080 (D.C. Cir. 1984).
Koch v. Consolidated Edison Co. of N.Y., Inc., 468 N.E.2d 1,8 (N.Y. 1984), cert. denied, 469 U.S. 1210 (1985).
719 F.2d 322 (9th Cir. 1983).
[the] governmental entities themselves currently bear the cost in question, and they have taken no action to shift it elsewhere. If the government has chosen to bear the cost for reasons of economic efficiency, or even as a subsidy to the citizens and their business, the decision implicates fiscal policy; the legislature and its public deliberative processes, rather than the court, is the appropriate forum to address such fiscal concerns.
Id. at 324.
The municipal cost recovery rule, therefore, is premised on the notion that state legislatures establish local governments to provide core services for the public and pay for these services by spreading the costs to all citizens through taxation. This concept also is expressed in City of Bridgeton v. B.P. Oil, Inc., which holds in pertinent part:
369 A.2d 49, 54 (N.J.Super. 1976).
Governments, to paraphrase the Declaration of Independence, have been instituted among men to do for the public good those things which the people agree are best left to the public sector. . . . Nevertheless, there remains an area where the people as a whole absorb the cost of such services — for example, the prevention and detection of crime. No one expects the rendering of a bill (other than a tax bill) if a policeman apprehends a thief. . . .
City of Bridgeton further holds "that a municipal corporation may not recover as damages the costs of its governmental operations which it was created to perform . . . .
Id. at 54-55.
After City of Flagstaff, District of Columbia v. Air Florida is the definitive authority on the municipal cost recovery rule. During a snow storm in 1982, a passenger jet operated by Air Florida took off from Washington National Airport, crashed into the 14th Street/Rochambeau Memorial Bridge and plunged into the Potomac. That disaster precipitated a flurry of litigation by the District of Columbia to recover for its emergency and cleanup expenses. Denying recovery,
We are especially reluctant to reallocate risks where a government entity is the injured party. It is critically important to recognize that the government's decision to provide tax-supported services is a legislative policy determination. It is not the place of the courts to modify such decisions. Furthermore, it is within the power of the government to protect itself from extraordinary emergency expenses by passing statutes or regulations that permit recovery from negligent parties.
District of Columbia v. Air Florida, 750 F.2d 1077 (1984).
There is no principled reason to reject in Delaware the common law's municipal cost recovery rule, as articulated in City of Flagstaff, City of Bridgeton and District of Columbia. To the contrary, the fact that Delaware's General Assembly has enacted statutes allowing some municipal cost recoveries suggests, by negative implication, that the General Assembly typically expects the State and local governments to cover their expenses through taxes and fees. The court here adopts the reasoning behind the municipal cost recovery rule articulated in the cases presented above. Therefore, absent a legislative grant of authority, local governments in Delaware may not sue in order to recover the cost of municipal services.
See, e.g., Del. C. Ann. tit.17 § 5 11 (19 95).
B. The Municipal Costs Recovery Rule Applies to All Proffered Damages
Having just rejected the Mayor's and City's argument that "Delaware does not recognize a municipal cost recovery rule of any kind," the court must address the two remaining arguments. The Mayor and City claim that the City's proffered costs are not subject to the rule because the costs are on-going or the result of repeated conduct, rather than the product of discrete events. They also argue: "The State of Delaware has authorized recovery of [the proffered] costs by State and local governments through enactment of 11 Del. C. § 4101." That statute from the Criminal Code provides: "On conviction upon indictment or information for any crime or offense, all the costs shall be paid by the party convicted." The statute also allows the court to reduce to judgement its award of costs in criminal cases. That final alternative argument, which is based on a clearly inapplicable criminal statute, is without merit and it requires no further analysis. That leaves the Mayor's and City's claim that the rule does not apply to the proffered damages because they are "atypical," on-going or repetitive, and not discrete.
The Mayor and City's attempt to draw a distinction between the discrete or singular versus the "atypical," on-going or repetitive nature of the underlying torts is unconvincing. Whether a municipality is dealing with an isolated emergency or a continuing problem has little to do with the municipal cost recovery's rationale. But if it did, repetitive or on-going wrongs lend themselves to the rule better than isolated acts. Almost by their nature, repeated or on-going acts are predictable. Thus, a municipality grappling with a persistent problem, such as handgun violence, is better able to employ injunctive or legislative solutions than is a municipality reacting to an airliner's slamming into a bridge during rush-hour.
The handgun manufacturers virtually concede that if the General Assembly perceives that their products are causing problems like the Mayor and City suggest, they can be taxed. Using taxes or fines to address isolated torts is possible, but more problematic. Along the same line, the court assumes without deciding that if the Mayor and City can prove that the handgun industry is causing a nuisance in Wilmington as alleged, they are entitled to an injunction. The court's reasoning here is not novel.
This is not the first case to consider whether the municipal cost recovery rule bars suit by a municipality against handgun makers. Board of Supervisors of Fairfax County, Virginia v. U.S. Home Corporation, et al.; City of Cincinnati v. Beretta U.S.A. Corp, et al.; and Penelas v. Arms Technology, Inc. et al. have dismissed complaints similar to the Mayor's and City's. Archer v. Arms Technology, Inc., denied what was tantamount to a motion to dismiss based on the municipal cost recovery rule. Archer, however, was concerned by the possibility "that Plaintiffs could prove that the costs of the public nuisance constitute a `distinct well-defined category unrelated to the normal provision of police, fire and emergency services." As discussed above, thanks to the proffer of damages this court now knows that the Mayor and City's claim only concerns normal, municipal services. Besides, there is little basis for distinguishing between "normal" municipal costs and other municipal costs. A cost is either a municipal cost or it is not. If a cost is a municipal cost, it is not recoverable under the rule.
1989 WL 646 518 (Va.Cir.Ct.).
2000 WL 1133078 (Ohio App. 1 Dist.).
1999 WL 1204353 (Fla.Cir.Ct.).
Case Nos. 99-912658 NZ Op., 99-912662 NZ Op. (Cir.Ct. Wayne Cty., Mich. May 16, 2000) (appeal pending).
To avoid the rule by characterizing their damages as they do, the Mayor and City rely heavily on City of Boston v. Smith Wesson Corp. That precedent is not helpful for two reasons. First, Boston's complaint was dismissed at its own request. More importantly, City of Boston's holding as to the municipal cost recovery rule's inapplicability is less persuasive than the holdings are in Board of Supervisors of Fairfax County, Virginia; City of Cincinnati and Penelas.
2000 WL 1473568 (Mass.Super.), See also James v. Arcadia Machine Tool, N.J. Super. No. ESX-L-6-59-99 (Dec. 11, 2001).
Like the Mayor and City here do, City of Boston observes that the major case precedents establishing and articulating the rule all stem from predictable, isolated events, such as fires, fuel spills, train derailments, airplane crashes, and so on. Responding to "such contingencies are part of the normal and expected costs of municipal existence," according to City of Boston. The handgun manufacturers, however, allegedly "engaged in a repeated course of conduct causing recurring costs to the municipality."
City of Boston's attempt to distinguish the damages there is a non sequitur. Moreover, it defies common sense to believe that emergency response to exploding trains and crashing airplanes is predictable, while emergency response to shootings is not. According to City of Boston, the police and fire services responding to a conflagration on a bridge after a pilot neglects to de-ice his airplane and set the flaps properly before taking off into a snow storm "can be expected." City of Boston, however, implies that emergency response after a murder or an accidental shooting is surprising. If the rule's applicability actually turned on the damages' predictability, it can be said that City's alleged damages resulting from handgun violence, such as increased overtime, are highly predictable and ordinary. They certainly are more predictable than the costs incurred by Flagstaff and the District of Columbia in the cases arising in those jurisdictions where municipal cost recovery was rejected.
Most significantly, City of Boston focuses on the tortfeasor's conduct, rather than on the damages' nature. The municipal cost recovery rule is not concerned about what the tortfeasor did. As explained above, the common law rule is grounded in the idea that the cost of municipal services must be carried by the public at-large and not by individuals, even tortfeasors. If the cost in question is for a municipal service, such as police work, it is not recoverable. As discussed above, the proffered damages all relate to typical emergency and police services, including overtime. Just as the public expects the fire department to respond to fires, the public expects the police and other emergency personnel to respond to shootings.
V.
As this decision's tone suggests, the court sympathizes with the Mayor's and the City's attempt to tackle the terrible threat posed by handguns to Wilmington's residents and visitors. If the court appreciates that handguns are a source of harmless recreation in the hands of law abiding enthusiasts and on rare occasions a means of self-defense, it also sees the torment and suffering caused daily by misused and arguably defective handguns. Handgun violence is a scourge. But as much as the court would support efforts to reduce the problem, the court will not twist a jury trial involving municipal costs into a wildy expensive referendum on handgun control. The Mayor and the City must find another means to their ends.
VI.
For the foregoing reasons, Defendants' Motions for Summary Judgement based on Plaintiffs' inability to prove recognizable damages on their behalf is GRANTED.
IT IS SO ORDERED.