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Riordan v. International Armament Corp.

OPINION FILED APRIL 4, 1985.

LORETTO FLYNN RIORDAN, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF JAMES J. RIORDAN, DECEASED, PLAINTIFF-APPELLANT,

v.

INTERNATIONAL ARMAMENT CORPORATION ET AL., DEFENDANTS-APPELLEES. — MARSHA BURKS, INDIV. AND AS ADM'R OF THE ESTATE OF ALVIN BURKS, DECEASED, PLAINTIFF-APPELLANT,

v.

SMITH & WESSON COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

These consolidated appeals present the issue of whether a cause of action in tort exists in Illinois against the manufacturers and distributors of handguns for injuries caused by the criminal misuse of their handguns by third parties.

On June 6, 1981, James J. Riordan was killed when, while attempting to restrain an individual in a downtown Chicago restaurant, he was struck by a bullet from a small caliber semiautomatic handgun manufactured and designed by defendant, Walther Waffenfabrik, GmbH, a West German corporation, and distributed in the United States by International Armament Corporation, also a defendant.

On December 26, 1981, Alvin Burks was shot to death by an assailant who was armed with a .38-caliber handgun designed, manufactured, and marketed by defendant, Smith & Wesson Company.

Wrongful death actions were filed by the plaintiffs, the wives and children of the decedents in the circuit court of Cook County against the manufacturers and distributors of the handguns used in the shootings. Plaintiffs sought recovery under theories of negligence, strict liability based on ultrahazardous activities, and strict liability for a defective product.

Motions to dismiss were filed by the defendants, handgun manufacturers and distributors, in each case. (Ill. Rev. Stat. 1983, ch. 110, par. 2-615.) Thereafter, after hearings on the respective motions, the complaints in both cases were dismissed as insufficient in law.

These appeals were subsequently consolidated by this court.

• 1 Plaintiffs first assert that the trial court erred in dismissing those counts charging the defendants, handgun manufacturers and distributors, with negligent and wilful and wanton distribution. Plaintiffs alleged that based on the large number of injuries and deaths resulting from the use of handguns to commit crimes, criminal misuse was foreseeable and the defendants, handgun manufacturers and distributors, were negligent in marketing their handguns to the general public without taking adequate precautions to prevent the sale of their handguns to persons who were reasonably likely to cause harm to the general public. Plaintiffs claim that the defendants, handgun manufacturers and distributors, had a duty to determine whether their retailers had taken all reasonable measures to screen prospective purchasers and a duty to terminate sales to those retailers the defendants knew or had reason to know had a history of sales to persons who had used their handguns in crime.

This court recently rejected a claim identical to the plaintiffs' in Linton v. Smith & Wesson (1984), 127 Ill. App.3d 676, 469 N.E.2d 339, appeal denied (1984), 101 Ill.2d 582. We find Linton to be dispositive of this issue. In Linton, the plaintiff appealed from the dismissal of his counts seeking recovery from a handgun manufacturer based on its negligent and wilful and wanton distribution of a handgun which was used by a third party to injure the plaintiff. This court upheld the dismissal of the plaintiff's complaint on the basis that under Illinois law no common law duty exists upon the manufacturer of a non-defective handgun to control the distribution of that product to the general public. 127 Ill. App.3d 676, 678-79, 469 N.E.2d 339.

The court found that the plaintiff's reliance on Semeniuk v. Chentis (1954), 1 Ill. App.2d 508, 117 N.E.2d 883, which the plaintiffs in the present case cite as their sole Illinois authority to support their contention, was misplaced. Semeniuk held that a retail seller of toy weapons to children was liable for injuries resulting to others from the child's misuse of the toy. Citing section 308 of the Restatement (Second) of Torts, the Semeniuk court found that as children who, because of their youth and inexperience, are incapable of appreciating the risk inherent in the use of such products, a reasonable seller, exercising ordinary care, would anticipate or foresee that a child would misuse the product, thereby causing harm to bystanders. (Semeniuk v. Chentis (1954), 1 Ill. App.2d 508, 512-14, 117 N.E.2d 883.) The situation in the present case, the Linton court found, was distinguishable from Semeniuk, where misuse of the product was not a foreseeable consequence of sales to the general public. Unlike the case with children, the distribution of handguns by the defendants-manufacturers was intended for the general public, who presumably can recognize the dangerous consequences in the use of handguns and can assume responsibility for their actions. (Linton v. Smith & Wesson (1984), 127 Ill. App.3d 676, 678, 469 N.E.2d 339.) As the court in Linton pointed out, the distribution of firearms is heavily regulated on both the Federal and State levels. (See 18 U.S.C. sec. 921 et seq. (1976); Ill. Rev. Stat. 1983, ch. 38, par. 83-1 et seq.) Beyond this, the court stated, there is no basis for imposing common law negligence upon a handgun manufacturer for injuries sustained by the victims of illegal handgun violence. (Linton v. Smith & Wesson (1984), 127 Ill. App.3d 676, 679, 469 N.E.2d 339.) Furthermore, as the Linton court observed, as the Semeniuk decision dealt only with the liability of a retail seller, Semeniuk provides no support for likewise holding a manufacturer or remote vendor liable for marketing its product to people whom they should have known would have misused the product. Linton v. Smith & Wesson (1984), 127 Ill. App.3d 676, 678, 469 N.E.2d 339, citing Pitts v. Basile (1966), 35 Ill.2d 49, 54, 219 N.E.2d 472.

Similarly unpersuasive are plaintiffs' out-of-State authorities, which imposed liability upon those who negligently entrusted or supplied dangerous weapons to classes or persons incapable of using the product in a safe manner, i.e., children. (Moning v. Alfono (1977), 400 Mich. 759, 254 N.W.2d 759; Stoelting v. Hauck (1960), 32 N.J. 87, 159 A.2d 385.) Moning, a 1977 decision of the Michigan Supreme Court, held that a manufacturer, wholesaler and retailer of toy slingshots, which were marketed directly to children, owed a legal obligation of due care to bystanders affected by the use of such products. Stoelting involved the liability of parents to an injured third party for the negligent entrustment of a firearm to their minor child.

Accordingly, as there is no support for the plaintiffs' theory in Illinois, we hold that under Linton the defendants, handgun manufacturers and distributors, owed no duty to plaintiffs to control the distribution of their handguns, based upon the allegations of negligent and wilful and wanton distribution. Consequently, these counts were properly stricken as being insufficient as a matter of law.

• 2 Similarly, we find no error in the dismissal of plaintiffs' counts alleging negligent failure to warn. In their complaints, plaintiffs alleged that the defendants, manufacturers and distributors of handguns, had the duty to provide adequate warnings to consumers that possession of a handgun is dangerous and that concealed possession of a handgun is illegal under State and Federal law.

• 3 Plaintiffs initially assert that the duty to warn of a product's dangerous propensities may be imposed upon manufacturers and distributors. Although Illinois courts have held that the failure to warn may be imposed upon all parties within the chain of distribution for strict liability in tort (Hammond v. North American Asbestos Corp. (1983), 97 Ill.2d 195, 454 N.E.2d 210; Venus v. O'Hara (1984), 127 Ill. App.3d 19, 468 N.E.2d ...


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