USCOA,2 No. 36
Freddie Hamilton, et al., Plaintiffs, Gail Fox and Stephen Fox,
Respondents,
v.
Beretta U.S.A. Corp., Taurus International Manufacturing, Inc.,
American Arms, Inc., and Colt's Manufacturing Co., Inc.,
Appellants, Accu-Tek, et al.,
Defendants.
_________________________________________________________________
2001 NY Int. 40
April 26, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Lawrence S. Greenwald, for appellants Beretta & American Arms.
Timothy A. Bumann (pro hac vice), for appellant Taurus International.
Marc E. Elovitz and Elisa Barnes, for respondents.
Product Liability Advisory Council, Inc.; Chamber of Commerce of the
United States; Association of Trial Lawyers of America; Center to
Prevent Handgun Violence, et al.; American Meat Institute, et al.;
Eliot Spitzer, Attorney General of the State of New York; City of New
York, amici curiæ.
_________________________________________________________________
WESLEY
, J.:
In January 1995 plaintiffs _- relatives of people killed by handguns
-_ sued 49 handgun manufacturers in Federal court alleging negligent
marketing, design defect, ultra- hazardous activity and fraud. A
number of defendants jointly moved for summary judgment. The United
States District Court for the Eastern District of New York (Weinstein,
J.), dismissed the product liability and fraud causes of action, but
retained plaintiffs' negligent marketing claim (see, Hamilton v
Accu-Tek, 935 F Supp 1307, 1315). Other parties intervened, including
plaintiff Stephen Fox, who was shot by a friend and permanently
disabled. The gun was never found; the shooter had no recollection of
how he obtained it. Other evidence, however, indicated that he had
purchased the gun out of the trunk of a car from a seller who said it
came from the "south." Eventually, seven plaintiffs went to trial
against 25 of the manufacturers.
Plaintiffs asserted that defendants distributed their products
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
for appellants Beretta & American Arms.
Marc E. Elovitz and Elisa Barnes, for respondents.
Product Liability Advisory Council, Inc.; Chamber of Commerce of the United States;
In January 1995 plaintiffs _- relatives of people killed by handguns -_ sued 49 handgun
A number of defendants jointly moved for summary judgment.
The United States District Court for the Eastern District of New York, dismissed the product
Other parties intervened, including plaintiff Stephen Fox, who was shot by a friend and
The gun was never found; the shooter had no recollection of how he obtained it.
Plaintiffs asserted that defendants distributed their products negligently so as to create
Because only one of the guns was recovered, plaintiffs were permitted over defense objections
The District Court articulated several theories for imposing a duty on defendants "to take
Corp.,, 83 NY2d 579, 586; see also, Strauss v Belle Realty Co.,, 65 NY2d 399, 402-403).
Plaintiffs also assert that a general duty of care arises out of the gun manufacturers'
At trial, plaintiffs' experts did surmise that since manufacturers receive crime gun trace
While manufacturers may be generally aware of traces for which they are contacted, they are
Federal law already has implemented a statutory and regulatory scheme to ensure seller
Manufacturers may sell only to licensed importers, licensed dealers, or licensed collectors
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