Opinion · Ohio Supreme Court

Cincinnati v. Beretta U.S.A. Corp.

Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St. 3d 416 (Ohio 2002)

Type: Opinion
Court: Ohio Supreme Court
Jurisdiction: Ohio
Date: 2002-06-12
Topic: general

[This decision has been published in Ohio Official Reports at 95 Ohio St.3d 416.] CITY OF CINCINNATI, APPELLANT, v. BERETTA U.S.A. CORPORATION ET AL., APPELLEES. [Cite as Cincinnati v. Beretta U.S.A. Corp., 2002-Ohio-2480.] Civil procedure—Court of appeals’ dismissal of complaint pursuant to Civ.R. 12(B)(6) against handgun manufacturers, trade associations, and handgun distributor under nuisance, negligence, and product liability theories of recovery reversed and remanded to trial court, when.

Citator

Cited by: 48 opinions

[This decision has been published in Ohio Official Reports at

95 Ohio St.3d 416

.]




 CITY OF CINCINNATI, APPELLANT, v. BERETTA U.S.A. CORPORATION ET AL.,
                                          APPELLEES.
           [Cite as Cincinnati v. Beretta U.S.A. Corp.,

2002-Ohio-2480

.]
Civil procedure—Court of appeals’ dismissal of complaint pursuant to Civ.R.
12(B)(6) against handgun manufacturers, trade associations, and
handgun distributor under nuisance, negligence, and product liability
theories of recovery reversed and remanded to trial court, when.
(No. 2000-1705—Submitted October 2, 2001—Decided June 12, 2002.)
APPEAL from the Court of Appeals for Hamilton County, Nos. C-990729, C-
990814 and C-990815.
__________________
FRANCIS E. SWEENEY, SR., J.
{¶1} On April 28, 1999, plaintiff-appellant, the city of Cincinnati, filed a
complaint against fifteen handgun manufacturers, three trade associations, and one
handgun distributor, seeking to hold them responsible under nuisance, negligence,
and product liability theories of recovery, for the harm caused by the firearms they
manufacture, sell, or distribute.1 The gist of the complaint is that appellees2 have
manufactured, marketed, and distributed their firearms in ways that ensure the

1. The lawsuit originally alleged other theories of liability, including fraud, negligent
misrepresentation, unfair and deceptive advertising, and unjust enrichment. However, since
appellant does not contest the dismissal of these counts, we decline to address these issues.

2. The named defendants are Beretta U.S.A. Corp., Bryco Arms, Inc., Colt’s Manufacturing Co.,
Inc., Davis Industries, Fabbrica d’Armi Pietro Beretta Sp.A., Forjas Taurus, S.A., H & R 1871, Inc.,
B.L. Jennings, Inc., MKS Supply, Inc., Lorcin Engineering Co., Inc., North America Arms, Inc.,
Phoenix Arms, Raven Arms, Inc., Smith & Wesson Corp., Sturm & Ruger Co., Inc., Taurus
International Manufacturing, Inc., American Shooting Sports Coalition, Inc., National Shooting
Sports Foundation, Inc., and Sporting Arms and Ammunition Manufacturers Institute, Inc. Of these
defendants, only Davis Industries, Fabbrica d’Armi Pietro Beretta Sp.A., Forjas Taurus, S.A., and
Raven Arms, Inc. did not move to dismiss.
January Term, 2002

widespread accessibility of the firearms to prohibited users, including children and
criminals. Thus, the complaint asserts, due to their intentional and negligent
conduct and their failure to make guns safer, appellees have fostered the criminal
misuse of firearms, helped sustain the illegal firearms market in Cincinnati, and
have created a public nuisance. In its complaint, appellant sought both injunctive
relief and monetary damages, including reimbursement for expenses such as
increased police, emergency, health, and corrections costs.
{¶2} Rather than file an answer, fifteen of the defendants (“appellees”)
moved to dismiss the complaint pursuant to Civ.R. 12(B)(6). The trial court granted
the motions to dismiss, finding, inter alia, that (1) the complaint failed to state a
cause of action, (2) the claims were barred by the doctrine of remoteness, and (3)
appellant could not recoup expenditures for public services. The trial court further
ruled that there was no just cause for delay, and appellant appealed. The court of
appeals affirmed on similar grounds. The cause is now before this court upon the
allowance of a discretionary appeal.
{¶3} This case represents one of a growing number of lawsuits brought by
municipalities against gun manufacturers and their trade associations to recover
damages associated with the costs of firearm violence incurred by the
municipalities. There is a difference of opinion as to whether these cases state a
viable cause of action. While some courts have allowed this type of case to go
forward against a Civ.R. 12(B)(6) motion to dismiss (White v. Smith & Wesson
Corp. [N.D. Ohio 2000],

97 F.Supp.2d 816

; Boston v. Smith & Wesson Corp.
[2000], 12 Mass.L.Rptr. 225,

2000 WL 1473568

), other courts have dismissed or
upheld the dismissal of similar lawsuits. See, e.g., Philadelphia v. Beretta U.S.A.
Corp. (E.D.Pa.2000),

126 F.Supp.2d 882

; Camden Cty. Bd. of Chosen Freeholders
v. Beretta U.S.A. Corp. (C.A.3, 2001),

273 F.3d 536

; Ganim v. Smith & Wesson
Corp. (2001),

258 Conn. 313

780 A.2d 98

. After a thorough review of these cases,
we agree with those decisions that permit this type of lawsuit to go beyond the




                                         2
                                January Term, 2002




pleadings stage. For the reasons that follow, we reverse the judgment of the court
of appeals and remand the cause to the trial court.
                            I. Sufficiency of Complaint
       {¶4} The trial court granted appellees’ Civ.R. 12(B)(6) motions to dismiss
and the court of appeals affirmed. In determining whether the motions were
properly granted, we must decide whether the complaint states a cause of action
under Ohio law.
       {¶5} The standard for determining whether to grant a Civ.R. 12(B)(6)
motion is straightforward. In order for a complaint to be dismissed under Civ.R.
12(B)(6) for failure to state a claim, it must appear beyond doubt from the complaint
that the plaintiff can prove no set of facts entitling him to relief. O’Brien v. Univ.
Community Tenants Union, Inc. (1975),

42 Ohio St.2d 242

71 O.O.2d 223

327 N.E.2d 753

, syllabus. Furthermore, “[i]n construing a complaint upon a motion to
dismiss for failure to state a claim, we must presume that all factual allegations of
the complaint are true and make all reasonable inferences in favor of the non-
moving party.” Mitchell v. Lawson Milk Co. (1988),

40 Ohio St.3d 190, 192

532 N.E.2d 753

. We reiterated this view in York v. Ohio State Hwy. Patrol (1991),

60 Ohio St.3d 143, 144

573 N.E.2d 1063

, and further noted that “as long as there is a
set of facts, consistent with the plaintiff’s complaint, which would allow the
plaintiff to recover, the court may not grant a defendant’s motion to dismiss.”

Id. at 145

573 N.E.2d 1063

.
       {¶6} In addressing the sufficiency of the complaint, we will examine each
claim separately. In particular, appellant maintains that it has stated viable causes
of action for public nuisance, negligence, and product liability.
                                    A. Public Nuisance
       {¶7} Appellant alleged in its complaint that appellees have created and
maintained a public nuisance by manufacturing, marketing, distributing, and selling
firearms in ways that unreasonably interfere with the public health, welfare, and




                                          3
                                January Term, 2002




safety in Cincinnati and that the residents of Cincinnati have a common right to be
free from such conduct.      Appellant further alleged that appellees know, or
reasonably should know, that their conduct will cause handguns to be used and
possessed illegally and that such conduct produces an ongoing nuisance that has a
detrimental effect upon the public health, safety, and welfare of the residents of
Cincinnati.
       {¶8} Appellees advance several reasons why the complaint does not state a
cause of action for public nuisance. First, appellees maintain that Ohio’s nuisance
law does not encompass injuries caused by product design and construction, but
instead is limited to actions involving real property or to statutory or regulatory
violations involving public health or safety. We disagree. The definition of “public
nuisance” in 4 Restatement of the Law 2d, Torts (1965) (“Restatement”) is couched
in broad language. According to the Restatement, a “public nuisance” is “an
unreasonable interference with a right common to the general public.”              4
Restatement, Section 821B(1). “Unreasonable interference” includes those acts
that significantly interfere with public health, safety, peace, comfort, or
convenience, conduct that is contrary to a statute, ordinance, or regulation, or
conduct that is of a continuing nature or one which has produced a permanent or
long-lasting effect upon the public right, an effect of which the actor is aware or
should be aware.

Id.,

 Section 821B(2). Contrary to appellees’ position, there need
not be injury to real property in order for there to be a public nuisance. As stated
in Comment h to Section 821B, “[u]nlike a private nuisance, a public nuisance does
not necessarily involve interference with use and enjoyment of land.” Id. at 93.
       {¶9} Moreover, although we have often applied public nuisance law to
actions connected to real property or to statutory or regulatory violations involving




                                         4
                                     January Term, 2002




public health or safety,3 we have never held that public nuisance law is strictly
limited to these types of actions. The court of appeals relied on our decision in
Franks v. Lopez (1994),

69 Ohio St.3d 345

632 N.E.2d 502

, to support its view
that allegedly defective product designs are not nuisances. However, the Franks
decision was strictly limited to the question of whether the allegedly defective
design and construction of a roadway intersection and the failure to erect signage
or guardrails constituted a nuisance in the context of sovereign immunity. It does
not involve the broader question that we are presented with here.
         {¶10} Nor should Franks be interpreted to mean that public-nuisance law
cannot cover injuries caused by product design and construction. Instead, we find
that under the Restatement’s broad definition, a public-nuisance action can be
maintained for injuries caused by a product if the facts establish that the design,
manufacturing, marketing, or sale of the product unreasonably interferes with a
right common to the general public.
         {¶11} Even the Supreme Court of Connecticut, in Ganim v. Smith & Wesson
Corp.,

258 Conn. at 369-370

780 A.2d 98

, while dismissing the lawsuit for lack of
standing, acknowledged that the definition of a common-law public nuisance was
broad enough to include allegations nearly identical to those in appellant’s
complaint. Likewise, in his concurring opinion below, Judge Hildebrandt, in the
belief that public nuisance law did not apply to product liability cases, urged this
court to revisit the issue, since, in his view “the city should be permitted to bring
suit against the manufacturer of a product under a public-nuisance theory, when, as
here, the product has allegedly resulted in widespread harm and widespread costs
to the city as a whole and to its citizens individually.” See, also, Young v. Bryco
Arms (2001),

327 Ill.App.3d 948

262 Ill.Dec. 175

765 N.E.2d 1

, where the First

3. See, e.g., Mansfield v. Balliett (1902),

65 Ohio St. 451

, 467,

63 N.E. 86

 (pollution of stream on
plaintiff’s property due to defendant municipality’s discharge of sewage downstream constitutes a
nuisance).




                                                 5
                                January Term, 2002




District Appellate Court of Illinois held that the plaintiffs, surviving relatives of
five gunshot victims, sufficiently pled a public nuisance claim against various gun
manufacturers, wholesale distributors, and retail gun dealers, finding that the
misconduct alleged (that the defendants’ marketing and distribution practices
allowed an underground firearms market to flourish) fell within the ambit of the
Restatement’s broad definition of public nuisance.
       {¶12} Appellees further argue that they cannot be held liable for the harm
alleged because they did not have control over the alleged nuisance at the time of
injury. Contrary to appellees’ position, it is not fatal to appellant’s public nuisance
claim that appellees did not control the actual firearms at the moment that harm
occurred.
       {¶13} Appellant’s complaint alleged that appellees created a nuisance
through their ongoing conduct of marketing, distributing, and selling firearms in a
manner that facilitated their flow into the illegal market. Thus, appellant alleged
that appellees control the creation and supply of this illegal, secondary market for
firearms, not the actual use of the firearms that cause injury. See Boston v. Smith
& Wesson, 12 Mass.L.Rptr. 225,

2000 WL 1473568

, at * 14. Just as the individuals
who fire the guns are held accountable for the injuries sustained, appellees can be
held liable for creating the alleged nuisance.
       {¶14} Appellees also contend that appellant’s nuisance claim cannot go
forward because the distribution of firearms is highly regulated and covers
“legislatively authorized conduct.” As a result, appellees believe that the nuisance
claim was properly dismissed because “[w]hat the law sanctions cannot be held to
be a public nuisance.” Mingo Junction v. Sheline (1935),

130 Ohio St. 34

3 O.O. 78

196 N.E. 897

, paragraph three of the syllabus. Even though there exists a
comprehensive regulatory scheme involving the manufacturing, sales, and
distribution of firearms, see, e.g., Section 922, Title 18, U.S.Code; Part 178, Title




                                          6
                                     January Term, 2002




27, C.F.R., the law does not regulate the distribution practices alleged in the
complaint.
         {¶15} Finally, appellees argue that the public nuisance claim fails because
appellant has failed to plead an underlying tort to support either an absolute public
nuisance claim based on intentional or ultrahazardous activity or a negligence-
based claim of qualified public nuisance.4 However, the complaint clearly alleged
both intentional and negligent misconduct on appellees’ part.                      For example,
Paragraph 119 of the complaint alleged that defendants “intentionally and
recklessly market, distribute and sell handguns that defendants know, or reasonably
should know, will be obtained by persons with criminal purposes                     * * *.”
         {¶16} Therefore, under these circumstances, we find that appellant has
adequately pled its public-nuisance claim and has set forth sufficient facts necessary
to overcome appellees’ motion to dismiss.
                                             B. Negligence
         {¶17} Appellant further alleged in its complaint that appellees were
negligent in failing to exercise reasonable care in designing, manufacturing,
marketing, advertising, promoting, distributing, supplying, and selling their
firearms without ensuring that the firearms were safe for their intended and
foreseeable use by consumers. In addition, the complaint alleged that appellees
failed to exercise reasonable care to provide a full warning to consumers of the risks
associated with firearms.


4. A nuisance can be further classified as an absolute nuisance (nuisance per se) or as a qualified
nuisance. Taylor v. Cincinnati (1944),

143 Ohio St. 426

28 O.O. 369

55 N.E.2d 724

, paragraphs
two and three of the syllabus. With an absolute nuisance, the wrongful act is either intentional or
unlawful and strict liability attaches notwithstanding the absence of fault because of the hazards
involved (Metzger v. Pennsylvania, Ohio & Detroit RR. Co. [1946],

146 Ohio St. 406

32 O.O. 450

66 N.E.2d 203

, paragraph one of the syllabus), whereas a qualified nuisance involves a lawful act
“so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in
due course results in injury to another.”

Id.

 at paragraph two of the syllabus. A qualified nuisance
hinges upon proof of negligence.

Id.




                                                 7
                                January Term, 2002




        {¶18} In order to maintain a negligence action, the plaintiff must show the
existence of a duty, a breach of that duty, and that the breach of that duty
proximately caused the plaintiff’s injury. Jeffers v. Olexo (1989),

43 Ohio St.3d 140, 142

539 N.E.2d 614

. The court of appeals in the instant case upheld the
dismissal of the negligence claims on the ground that the city could not establish
that the defendants owed it any duty. In reaching this conclusion, the court cited
Gelbman v. Second Natl. Bank of Warren (1984),

9 Ohio St.3d 77

, 9 OBR 280,

458 N.E.2d 1262

, and Simpson v. Big Bear Stores Co. (1995),

73 Ohio St.3d 130

652 N.E.2d 702

, for the proposition that a duty to control the conduct of a third party
arises only if a “special relationship” exists between the parties. See, also, 2
Restatement, Section 315. Since there was no special relationship, the court of
appeals concluded that the defendants owed no duty to appellant.
        {¶19} The court of appeals misconstrued the nature of appellant’s
negligence claims and erred in relying on the above authorities to dismiss those
claims for lack of duty. In both Gelbman and Simpson, the issue before this court
was whether, based on their status as property owners, the defendants owed a duty
to protect persons such as business invitees from the negligence or criminal acts of
third parties that occur outside the owner’s property and beyond the owner’s
control. In contrast, the negligence issue before us is not whether appellees owe
appellant a duty to control the conduct of third parties. Instead, the issue is whether
appellees are themselves negligent by manufacturing, marketing, and distributing
firearms in a way that creates an illegal firearms market that results in foreseeable
injury. Consequently, the “special relationship” rule is not determinative of the
issue presented here. Instead, the allegations of the complaint are to be addressed
without resort to that rule.
        {¶20} The court in Boston v. Smith & Wesson, 12 Mass.L.Rptr. 225,

2000 WL 1473568

, understood this distinction. When the gun defendants made a similar
argument, that the city’s negligent marketing and distribution claims failed because




                                          8
                                   January Term, 2002




the defendants did not owe the city any duty to protect it from the criminal acts of
third parties, the court stated:
        {¶21} “Plaintiffs do not allege that Defendants were negligent for failure to
protect from harm but that Defendants engaged in conduct the foreseeable result of
which was to cause harm to Plaintiffs. * * *
        {¶22} “Taking Plaintiffs’ allegations as true, Defendants have engaged in
affirmative acts (i.e., creating an illegal, secondary firearms market) by failing to
exercise adequate control over the distribution of their firearms.       Thus, it is
affirmative conduct that is alleged—the creation of the illegal, secondary firearms
market. The method by which Defendants created this market, it is alleged, is by
designing or selling firearms without regard to the likelihood the firearms would be
placed in the hands of juveniles, felons or others not permitted to use firearms in
Boston. * * * Taken as true, these facts suffice to allege that Defendants’ conduct
unreasonably exposed Plaintiffs to a risk of harm. Worded differently, the Plaintiffs
were, from Defendants’ perspective, foreseeable plaintiffs. Thus, the court need
not decide whether Defendants owed a duty greater than the basic duty.”
(Footnotes omitted.) 12 Mass.L.Rptr. 225,

2000 WL 1473568

, at * 15.
        {¶23} The court in White v. Smith & Wesson,

97 F.Supp.2d 816

, also
applied straight negligence principles. In allowing plaintiffs’ negligence claims to
survive a Civ.R. 12(B)(6) motion to dismiss, the court noted, “It cannot be said, as
a matter of law, that Defendants are free from negligence because they do not owe
Plaintiffs a duty of care. It is now, unfortunately, the common American experience
that firearms in the hands of children or other unauthorized users can create grave
injury to themselves and others, thus creating harm to municipalities through
physical and economic injury. It is often for a jury to decide whether a plaintiff
falls within the range of a defendant’s duty of care and whether that duty was
fulfilled. * * * In this matter, the question is whether a reasonably prudent gun
manufacturer should have anticipated an injury to the Plaintiffs as a probable result




                                           9
                                  January Term, 2002




of manufacturing, marketing, and distributing a product with an alleged negligent
design.”
          {¶24} The court in James v. Arcadia Machine & Tool (Dec. 11, 2001),
N.J.Super. No. ESX-L-6-59-99, also recognized the importance of allowing the
plaintiffs to advance their negligence claims against the gun defendants. The court
reasoned, “With no more than paper allegations and a complete absence of
discovery, it would be manifestly unfair to bar the Plaintiff[s] [Newark and its
mayor] from attempting to present appropriate evidence to bridge the gap between
breach of duty and damages.” Id. at 26-27.
          {¶25} We agree with the rationale employed by these courts and similarly
conclude that appellant has alleged a cause of action in negligence. Therefore, we
find that the court of appeals erred in upholding the dismissal of the negligence
counts.
                                      C. Product Liability
          {¶26} Appellant also seeks recovery under two products liability theories,
for defective design and failure to warn. In its complaint, appellant alleged that the
guns manufactured or supplied by appellees were defective because they do not
incorporate feasible safety devices that would prevent unauthorized use and
foreseeable injuries. As to the cause of action for failure to warn, appellant alleged
that appellees manufactured or supplied guns without adequate warning of their
dangerousness or instruction as to their use.
          {¶27} The court of appeals upheld the dismissal of these claims, finding that
the complaint was deficient because it did not allege with specificity “a single
defective condition in a particular model of gun at the time it left its particular
manufacturer.” Furthermore, the court held that the city could not bring its claims
under the Product Liability Act, R.C. 2307.71 et seq., because it could prove no
harm to itself. Nor could it recover economic loss alone under the Act, citing R.C.
2307.71(B) and (G), 2307.79, and LaPuma v. Collinwood Concrete (1996), 75




                                           10
                                      January Term,

2002 Ohio St.3d 64

661 N.E.2d 714

, syllabus. In his concurring opinion, Judge Painter
stated his belief that had the claims not been barred by remoteness, the product
liability claims remained viable causes of action under the common law. Judge
Painter also said that he disagreed “with the majority’s conclusion that the city’s
products-liability claims fail because the city’s complaint did not allege particular
guns or defective conditions that caused direct injuries.
         {¶28} “Notice pleading is still the law, and the city clearly alleged that each
defendant has manufactured defective products by failing to implement alternative
safety designs. That was enough to give the manufacturers fair notice of the claims
against them.”
         {¶29} We agree with the reasoning of Judge Painter’s concurring opinion.
Contrary to the appellate court’s majority opinion, since Ohio is a notice-pleading
state, Ohio law does not ordinarily require a plaintiff to plead operative facts with
particularity.5 Under the Ohio Rules of Civil Procedure, a complaint need only
contain “a short and plain statement of the claim showing that the party is entitled
to relief.” Civ.R. 8(A)(1). Consequently, “as long as there is a set of facts,
consistent with the plaintiff’s complaint, which would allow the plaintiff to recover,
the court may not grant a defendant’s motion to dismiss.” York v. Ohio State Hwy.
Patrol (1991),

60 Ohio St.3d 143, 145

573 N.E.2d 1063

. Appellant’s complaint
withstands this test of notice pleading, since it alleged that appellees had
manufactured or supplied defective guns without appropriate safety features. See
White,

97 F.Supp.2d at 827

. Appellant was not required to allege with specificity
that particular guns were defective and as a result caused particular injuries.




5. In York v. Ohio State Hwy. Patrol (1991),

60 Ohio St.3d 143

573 N.E.2d 1063

, we stated that
only in a few circumscribed types of cases, such as a workplace intentional tort or a negligent-hiring
claim against a religious institution, do we require that the plaintiff plead operative facts with
particularity.

Id. at 145

573 N.E.2d at 1065

.




                                                 11
                                      January Term, 2002




         {¶30} Nevertheless, appellant is precluded from bringing its statutory
product liability claims. Under the Product Liability Act, a claimant (including a
governmental entity) cannot recover economic damages alone. Instead, in order to
fall within the purview of the Act, and to be considered a “product liability claim”
under R.C. 2307.71(M), the complaint must allege damages other than economic
ones. LaPuma v. Collinwood Concrete (1996),

75 Ohio St.3d 64

661 N.E.2d 714

,
syllabus.6 In this case, since appellant alleged only economic damages, it has not
set forth a statutory product liability claim and is consequently barred from bringing
any such claims under the Act.
         {¶31} However, the failure to allege other than economic damages does not
necessarily destroy the right to pursue common-law product liability claims.

Id.

 at
syllabus. In Carrel v. Allied Prods. Corp. (1997),

78 Ohio St.3d 284

677 N.E.2d 795

, paragraph one of the syllabus, we held, “The common-law action of negligent
design survives the enactment of the Ohio Products Liability Act, R.C. 2307.71 et
seq.” Therefore, although appellant is precluded from asserting its claims under
Ohio’s Product Liability Act, it can still assert its common-law negligent design
claims. At common law, a product is defective in design “if it is more dangerous
than an ordinary consumer would expect when used in an intended or reasonably
foreseeable manner or if the benefits of the challenged design do not outweigh the
risk inherent in such design.” Knitz v. Minster Machine Co. (1982),

69 Ohio St.2d 460

23 O.O.3d 403

432 N.E.2d 814

, syllabus. Moreover, a product may be
defective in design if the manufacturer fails to incorporate feasible safety features
to prevent foreseeable injuries. Perkins v. Wilkinson Sword, Inc. (1998),

83 Ohio 6

. A claimant can recover economic losses only after first establishing that it can recover
compensatory damages for harm from a manufacturer or supplier. R.C. 2307.79. “Harm” is defined
as “death, physical injury to person, serious emotional distress, or physical damage to property other
than the product in question. Economic loss is not ‘harm.’ ” R.C. 2307.71(G). Since appellant did
not allege that it suffered harm within the meaning of the Act, it cannot recover for economic loss
under R.C. 2307.79.




                                                 12
                                    January Term, 2002




St.3d 507, 511,

700 N.E.2d 1247

. Appellant has set forth a common-law defective
design claim by alleging that appellees have failed to design their firearms with
feasible safety features.7
        {¶32} We likewise find that appellant can bring a common-law failure-to-
warn claim. Under the rationale espoused in Carrel v. Allied Prods. Corp., supra,
the statute does not clearly state that it intended R.C. 2307.76, the failure-to-warn
statute, to supersede the common-law action. Id.,

78 Ohio St.3d at 288

677 N.E.2d 795

. Thus, the common-law failure-to-warn claim survives the enactment of
Ohio’s Product Liability Act, R.C. 2307.71 et seq.
        {¶33} To recover under a failure-to-warn theory at common law, the
plaintiff must prove that the manufacturer knew or should have known, in the
exercise of reasonable care, of the risk or hazard about which it failed to warn and
that the manufacturer failed to take precautions that a reasonable person would take
in presenting the product to the public. Crislip v. TCH Liquidating Co. (1990),

52 Ohio St.3d 251, 257

556 N.E.2d 1177

.
{¶34} The court of appeals reasoned that the failure-to-warn claim could
not go forward because the defendants owe no duty to warn of the dangers
associated with firearms, which are open and obvious dangers. Although, in
general, the dangers associated with firearms are open and obvious, appellant has
alleged sufficient facts in its complaint to overcome a motion to dismiss. As
pointed out by Judge Painter’s concurrence, some of the allegations involve risks
that are not open and obvious, such as the fact that a semiautomatic gun can hold a

7. According to appellant, the feasible safety features include internal locking devices to
“personalize” guns to prevent unauthorized users from firing them, chamber-loaded indicators to
indicate that a round is in the chamber, and magazine-disconnect safeties that prevent guns from
firing when the magazine is removed. On March 17, 2000, Smith & Wesson announced a settlement
agreement with various cities, state attorneys general, and the Department of Housing and Urban
Development in which it agreed to change its distribution practices and implement certain safety
devices. See Dao, Under Legal Siege, Gun Maker Agrees to Accept Curbs, New York Times (Mar.
18, 2000), at A1.

13
January Term, 2002

bullet even when the ammunition magazine is empty or removed. Therefore, since
appellant properly alleges failure to warn, this claim withstands a motion to dismiss.
See, also, White v. Smith & Wesson,

97 F.Supp.2d at 827-828

, where the court
refused to hold as a matter of law that the use of handguns involved an “open and
obvious risk.”
                                        II. Remoteness
          {¶35} Appellees maintain that even if appellant could establish any of the
elements of the individual torts it alleged, the injuries to the city are still too remote
to create liability on the part of the gun manufacturers and trade associations. In
essence, appellees argue that remoteness bars recovery, since the causal connection
between the alleged wrongdoing and the alleged harm is too tenuous and remote
and because the claims asserted are indirect and wholly derivative of the claims of
others.
          {¶36} Remoteness is not an independent legal doctrine but is instead related
to the issues of proximate causation or standing. White,

97 F.Supp.2d at 823

;
Boston v. Smith & Wesson Corp., 12 Mass.L.Rptr. 225,

2000 WL 1473568

, at * 4,
fn. 20. Thus, a complaint will fail on remoteness grounds if the harm alleged is the
remote consequence of the defendant’s misconduct (causation) or is wholly
derivative of the harm suffered by a third party (standing).
          {¶37} In Holmes v. Securities Investor Protection Corp. (1992),