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Young v. Bryco Arms

December 31, 2001

STEPHEN YOUNG, SPECIAL ADM'R,OF THE ESTATE OF ANDREW YOUNG, INDIV. AND, ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS; ARLENE MACIAS, SPECIAL ADM'R OF THE ESTATE OF MIGUELMACIAS, INDIV. AND, ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFFS-APPELLEES
v.
BRYCO ARMS, BREIT & JOHNSON SPORTING GOODS, INC.; BERETTA U.S.A. CORPORATION; BROWNING ARMS COMPANY; COLT'S MANUFACTURING COMPANY, INC.; DAVIS INDUSTRIES, GLOCK, INC.; H & R 1871, INC.; INTERNATIONAL ARMAMENT CORPORATION D/B/A INTERARMS INDUSTRIES, INC.; LORCIN ENGINEERING COMPANY, INC.; NAVEGAR, INC. D/B/A INTRATEC, INC.; PHOENIX ARMS; SMITH & WESSONCORPORATION; STURM, RUGER & COMPANY, INC.; SUNDANCE INDUSTRIES, INC.; TAURUS INTERNATIONAL MANUFACTURING, INC.; HI-POINT FIREARMS, RAVEN ARMS, INC.; KEL-TEC CNC INDUSTRIES, INC.; JENNINGS FIREARMS, INC.; FABER BROTHERS, INC.; RILEY'S, INC.; AND ASHLAND SHOOTING SUPPLIES, INC., DEFENDANTS-APPELLANTS
OBRELLA SMITH, SPECIAL ADM'R OF THE ESTATE OF SALADA SMITH, DECEASED, INDIV. AND, ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS; RASELL BOWMAN, SPECIAL ADM'R OF THE ESTATE OF WILLIE LEE LOMAX, III, DECEASED, INDIV. AND, ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFFS-APPELLEES
v.
NAVEGAR, INC. D/B/A INTRATEC FIREARMS; BRYCO ARMS; BETERRA U.S.A. CORPORATION; BROWNING ARMS COMPANY; COLT'S MANUFACTURING COMPANY, INC.; DAVIS INDUSTRIES, INC.; GLOCK, INC.; H & R 1871, INC.; INTERNATIONAL ARMAMENT CORPORATION D/B/A INTERARMS INDUSTRIES, INC.; LORCIN ENGINEERING COMPANY, INC.; PHOENIX ARMS; SMITH & WESSON CORPORATION; STURM, RUGER & COMPANY, INC.; SUNDANCE INDUSTRIES, INC.; TAURUS INTERNATIONAL MANUFACTURING, INC.; HI-POINT FIREARMS; RAVEN ARMS, INC.; KEL-TEC CNC INDUSTRIES, INC; JENNINGS FIREARMS, INC.; FABER BROTHERS, INC.; RILEY'S, INC.; ASHLAND SHOOTING SUPPLIES, INC.; AND DARNELL FOX, DEFENDANTS-APPELLEES
ANTHONY CERIALE, SPECIAL ADM'R OF THE ESTATE OF MICHAEL CERIALE, INDIV. AND, ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFFS-APPELLEES
v.
SMITH & WESSON CORPORATION; CHUCK'S GUN SHOP & PISTOL RANGE; JOHN RIGGIO, JR.; ELIZABETH RIGGIO; JIM RIGGIO; BERETTA U.S.A. CORPORATION; BROWNING ARMS COMPANY; BRYCO ARMS; COLT'S MANUFACTURING COMPANY, INC.; DAVIS INDUSTRIES, INC.; GLOCK, INC.; H & R 1871, INC.; INTERNATIONAL ARMAMENT CORPORATION D/B/A INTERARMS INDUSTRIES, INC.; LORCIN ENGINEERING COMPANY, INC.; NAVEGAR, INC. D/B/A INTRATEC,INC.; PHOENIX ARMS; STURM, RUGER & COMPANY, INC.; SUNDANCE INDUSTRIES, INC.; TAURUS INTERNATIONAL MANUFACTURING, INC.; HI-POINT FIREARMS; RAVEN ARMS, INC.; KEL-TEC CNC INDUSTRIES, INC.; JENNINGS FIREARMS, INC.; FABER BROTHERS, INC.; RILEY'S, INC.; AND ASHLAND SHOOTING SUPPLIES, INC., DEFENDANTS-APPELLANTS



Appeal from the Circuit Court of Cook County No. 98 L 6684, No. 98 L 13465, No. 99 L 5628 (consolidated) The Honorable Jennifer Duncan-Brice, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

As amended January 23, 2002.

STEPHEN YOUNG, SPECIAL ADM'R,OF THE ESTATE OF ANDREW YOUNG, INDIV. AND, ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS; ARLENE MACIAS, SPECIAL ADM'R OF THE ESTATE OF MIGUELMACIAS, INDIV. AND, ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFFS-APPELLEES
v.
BRYCO ARMS, BREIT & JOHNSON SPORTING GOODS, INC.; BERETTA U.S.A. CORPORATION; BROWNING ARMS COMPANY; COLT'S MANUFACTURING COMPANY, INC.; DAVIS INDUSTRIES, GLOCK, INC.; H & R 1871, INC.; INTERNATIONAL ARMAMENT CORPORATION D/B/A INTERARMS INDUSTRIES, INC.; LORCIN ENGINEERING COMPANY, INC.; NAVEGAR, INC. D/B/A INTRATEC, INC.; PHOENIX ARMS; SMITH & WESSONCORPORATION; STURM, RUGER & COMPANY, INC.; SUNDANCE INDUSTRIES, INC.; TAURUS INTERNATIONAL MANUFACTURING, INC.; HI-POINT FIREARMS, RAVEN ARMS, INC.; KEL-TEC CNC INDUSTRIES, INC.; JENNINGS FIREARMS, INC.; FABER BROTHERS, INC.; RILEY'S, INC.; AND ASHLAND SHOOTING SUPPLIES, INC., DEFENDANTS-APPELLANTS
OBRELLA SMITH, SPECIAL ADM'R OF THE ESTATE OF SALADA SMITH, DECEASED, INDIV. AND, ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS; RASELL BOWMAN, SPECIAL ADM'R OF THE ESTATE OF WILLIE LEE LOMAX, III, DECEASED, INDIV. AND, ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFFS-APPELLEES
v.
NAVEGAR, INC. D/B/A INTRATEC FIREARMS; BRYCO ARMS; BETERRA U.S.A. CORPORATION; BROWNING ARMS COMPANY; COLT'S MANUFACTURING COMPANY, INC.; DAVIS INDUSTRIES, INC.; GLOCK, INC.; H & R 1871, INC.; INTERNATIONAL ARMAMENT CORPORATION D/B/A INTERARMS INDUSTRIES, INC.; LORCIN ENGINEERING COMPANY, INC.; PHOENIX ARMS; SMITH & WESSON CORPORATION; STURM, RUGER & COMPANY, INC.; SUNDANCE INDUSTRIES, INC.; TAURUS INTERNATIONAL MANUFACTURING, INC.; HI-POINT FIREARMS; RAVEN ARMS, INC.; KEL-TEC CNC INDUSTRIES, INC; JENNINGS FIREARMS, INC.; FABER BROTHERS, INC.; RILEY'S, INC.; ASHLAND SHOOTING SUPPLIES, INC.; AND DARNELL FOX, DEFENDANTS-APPELLEES
ANTHONY CERIALE, SPECIAL ADM'R OF THE ESTATE OF MICHAEL CERIALE, INDIV. AND, ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFFS-APPELLEES
v.
SMITH & WESSON CORPORATION; CHUCK'S GUN SHOP & PISTOL RANGE; JOHN RIGGIO, JR.; ELIZABETH RIGGIO; JIM RIGGIO; BERETTA U.S.A. CORPORATION; BROWNING ARMS COMPANY; BRYCO ARMS; COLT'S MANUFACTURING COMPANY, INC.; DAVIS INDUSTRIES, INC.; GLOCK, INC.; H & R 1871, INC.; INTERNATIONAL ARMAMENT CORPORATION D/B/A INTERARMS INDUSTRIES, INC.; LORCIN ENGINEERING COMPANY, INC.; NAVEGAR, INC. D/B/A INTRATEC,INC.; PHOENIX ARMS; STURM, RUGER & COMPANY, INC.; SUNDANCE INDUSTRIES, INC.; TAURUS INTERNATIONAL MANUFACTURING, INC.; HI-POINT FIREARMS; RAVEN ARMS, INC.; KEL-TEC CNC INDUSTRIES, INC.; JENNINGS FIREARMS, INC.; FABER BROTHERS, INC.; RILEY'S, INC.; AND ASHLAND SHOOTING SUPPLIES, INC., DEFENDANTS-APPELLANTS

Appeal from the Circuit Court of Cook County No. 98 L 6684, No. 98 L 13465, No. 99 L 5628 (consolidated) The Honorable Jennifer Duncan-Brice, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

UNPUBLISHED

 Plaintiffs are the surviving relatives of five individuals who were shot and killed in Chicago by juveniles with access to handguns. The defendants are various manufacturers, distributors and dealers of handguns.

Three complaints, filed separately, were consolidated for the purpose of this appeal: (1) Stephen Young filed a complaint on behalf of his son, Andrew Young, who was killed on the streets of Chicago by a juvenile street gang member using a gun manufactured by defendant Bryco Arms (Bryco) (Young v. Bryco Arms, No. 98 L 6684); (2) Obrellia Smith filed a complaint on behalf of her daughter, Salada Smith, who was killed in the course of a drive-by shooting by a juvenile gang member using a gun manufactured by defendant Navegar, Inc. (Navegar) (Smith v. Navegar, Inc., No. 98 L 13465); and (3) Anthony Ceriale filed a complaint on behalf of his son, Michael Ceriale, who was killed in the course of his duties as a Chicago police officer by a juvenile gang member using a .357 Magnum revolver manufactured by defendant Smith & Wesson Corporation (Smith & Wesson) (Ceriale v. Smith & Wesson Corp., No. 99 L 05628).

After a ruling issued by the trial court on May 11, 2000, plaintiffs Young and Smith amended their complaints, in part, to include two additional plaintiffs. Young added plaintiff Arlene Macias, suing on behalf of her son Miguel Macias, who was killed in Chicago by a juvenile gang member using a .38 caliber semi-automatic handgun that was never recovered. Smith added plaintiff Rasell Bowman, suing on behalf of her son Willie Lee Lomax III, who was killed in Chicago by a 14-year-old gang member using a .38 caliber revolver that was also never recovered.

The plaintiffs' complaints allege a public nuisance claim against eighteen firearm manufacturers, four wholesale distributors and two suburban retail gun dealers who, according to the complaints, are all individually responsible for the public nuisance of widely available handguns that are accessible to juveniles in the City of Chicago.

The defendants filed various motions to dismiss plaintiffs' public nuisance claims. On February 14, 2001, the trial court held in favor of the plaintiffs, ruling that the plaintiffs stated a cause of action in public nuisance against the defendants. The trial court then certified the following question pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308) for immediate interlocutory appeal:

"Does plaintiffs' Fifth Amended Complaint in Young v. Bryco Arms, No. 98 L 6684, and plaintiffs' Third Amended Complaint in Smith v. Navegar, Inc., No. 98 L 13465, and plaintiffs' Third Amended Complaint in Ceriale v. Smith & Wesson Corp., No. 99 L 05628, state a viable public nuisance cause of action under Illinois law against the defendants in those respective cases?"

On March 6, 2001, the defendants moved for leave to appeal the trial court's order of February 14, 2001, as certified on February 20, 2001. This motion was granted on March 22, 2001.

BACKGROUND

Plaintiffs' Complaints

The complaints assert that the plaintiffs and others possess a public right to use the streets and other public places within the City of Chicago without fear, apprehension and undue risk of injury to themselves or to their families. Plaintiffs allege that defendants' marketing and distribution practices have unreasonably interfered with this public right by virtue of the wide availability of handguns that are accessible to juveniles in Chicago.

Specifically, plaintiffs allege that defendants produce and sell handguns that are designed to appeal to criminally oriented juvenile street gangs and other criminals. For example, defendant Navegar markets the TEC-DC9, a military-style assault weapon that features a silencer, a sling swivel to facilitate spray firing of the weapon and a finish that provides resistence to fingerprints. Defendant Bryco Arms markets the Bryco 59, a semi-automatic handgun that is small, easily concealable and inexpensive. Defendant Smith & Wesson markets the .357 Magnum revolver as a "man stopper," which is capable of firing a longer than usual round and propelling a bullet more rapidly so as to do more damage to the intended target.

Plaintiffs also allege that defendants: (1) distributed firearms through a market structure intentionally created by defendants by relying on low-end retailers who encourage purchasers to illegally transport weapons to Chicago; (2) failed to regulate or discipline known irresponsible dealers; (3) flooded the market in areas surrounding Chicago, knowing and foreseeing that excess firearm supply would be taken to Chicago and possessed and used illegally; and (4) created and maintained an underground market for handguns "knowing and intending this result."

Chain of Distribution

Plaintiffs allege the following facts regarding the circumstances surrounding the death of plaintiffs' decedents. First, the Young complaint alleges that Andrew Young was shot and killed on June 10, 1996, at the corner of Clark and Howard Streets in Chicago. The complaint asserts that Mario Ramos shot Young at the instigation of Roberto Lazcalo, who was allegedly associated with the Latin Kings. The firearm used by Ramos was Bryco 59 manufactured by defendant Bryco Arms. It was shipped to defendant distributor Jennings Firearms, Inc., on July 23, 1993. On July 28, 1993, Jennings shipped the weapon to defendant distributor Riley's, Inc. Riley's then shipped the gun to defendant retail seller Breit & Johnson Sporting Goods, Inc., on August 6, 1993, located in Oak Park, Illinois. The complaint further alleges that Bryco was on notice that both Jennings and Riley's were among a core group of 10 irresponsible distributors who acted as distributors for nearly half of the firearms traced to crimes in Chicago. The complaint alleges that Riley's was also on notice that Breit & Johnson was one of a core group of 24 irresponsible gun dealers operating in Chicago.

On September 7, 1993, the gun was sold to Mariano DiVittorio under circumstances which the plaintiffs allege should have alerted Breit & Johnson that this was a "straw purchase" (i.e. purchased not for DiVittorio himself, but for the benefit of Daniel Escobedo, a notorious convicted felon with ties to the Latin Kings street gang). Escobedo then directly or indirectly caused the gun to be transferred to the Latin Kings, making it available to Roberto Lazcalo and Mario Ramos, who used it to kill Andrew Young.

According to the Young complaint, coplaintiff Miguel Macias was shot and killed on June 4, 1997, by Christopher Raygoza, age 19, Leslie Matos, age 18, and Raul Quezada, age 14, at a pizza shop. Although the complaint alleges that Macias was shot with a .38-caliber semi-automatic handgun, the weapon was never recovered.

Second, the Smith complaint alleges that Salada Smith was murdered on June 22, 1997, and that Darnell Foxx was one of three juveniles arrested and charged with her death. The complaint states that the TEC-DC9 used to kill Smith was manufactured and marketed by defendant Navegar. On February 3, 1992, Navegar shipped the gun to a distributor called RSR Wholesale Guns. RSR then shipped the gun to retailer Perry's Trading Post in Greenwood, Mississippi on February 17, 1992. Approximately two and a half weeks before RSR shipped the weapon, the partners who owned Perry's were indicted by the federal government for illegal gun sales. The complaint alleges that RSR and defendant Navegar knew or reasonably should have known that the principals of Perry's Trading Post were engaged in illegal gun sales at the time the weapon was shipped to Perry's.

Perry's then allegedly sold the gun to an unknown purchaser on March 28, 1992. Following that sale, the weapon flowed into an underground market and was owned by the Vice Lords street gang in Chicago. On June 22, 1997, it was used by 15-year-old Darnell Foxx to kill Salada Smith and her unborn child in a gang-related drive-by shooting.

The Smith complaint further alleges that co-plaintiff Willie Lee Lomax III was murdered by 14-year-old Christopher Kronenberger, a member of the Two Six street gang. The firearm used to kill Lomax was allegedly a .38 caliber revolver, but was never recovered.

Third, the Ceriale complaint alleges that police officer Michael Ceriale was shot on August 15, 1998, while he was conducting a narcotics surveillance in a vacant lot in Chicago. He died on August 21, 1998. Jonathan Tolliver, who was then 16 years old and a member of the Gangster Disciples, was convicted of the murder. Defendant Smith & Wesson marketed the .357 Magnum revolver used by Tolliver and sold it to distributor Camfour, Incorporated on April 4, 1995. On April 10, 1995, Camfour shipped the revolver to a gun dealer listed in an invoice as Strictly Shooting, located in Merrionette Park, Illinois. The complaint further alleges that Smith & Wesson was on notice that Camfour was among a core group of 55 irresponsible distributors who acted as initial distributors for nearly 80% of the firearms traced to crimes in Chicago. The complaint alleges that Camfour was also on notice that Strictly Shooting was one of 65 irresponsible gun dealers located in close proximity to Chicago.

Strictly Shooting sold the revolver some time later to an unknown purchaser. It then reached the possession of a Chicago resident, Laura Crowell, who sold it to a suburban retail store located in Cook County called Chuck's Gun Shop in September 1997. On December 28, 1997, Chuck's sold the revolver to Ezra Evans in circumstances that the complaint alleges should have alerted Chuck's that this was a straw purchase made for the benefit of the Gangster Disciples street gang. The gun was then used by Tolliver to shoot Ceriale on August 15, 1999.

The complaints allege that each of the five named plaintiffs has suffered the death of a relative as a consequence and the proximate result of the public nuisance. Count I of all three complaints alleges public nuisance claims for damages against the specific manufacturers of the guns used in the murders. Thus, plaintiff Young claims damages against Bryco, Smith sues Navegar, and Ceriale asserts damages against Smith & Wesson.

Count II involves allegations of public nuisance by plaintiffs Young and Macias, Smith and Bowman, and Ceriale against all of the handgun manufacturers and distributors named in the complaints, including those manufacturers and distributors who did not manufacture, sell or distribute the firearms identified in the killings.

Plaintiffs assert counts III and IV as class actions for public nuisance on behalf of themselves and as representatives of the class of persons whose decedents have been killed or who have themselves been physically injured or threatened with a handgun. Count III claims damages against all of the handgun manufacturers and distributors named in the complaint, while count IV seeks injunctive relief.

Count V asserts negligence against the specific manufacturers of the guns used in the killings and was dismissed by the trial court. Count VI in the Young and Ceriale complaints is also a negligence claim against the gun dealers who sold the guns used in the killings and was dismissed by the trial court. Count VI of the Smith complaint alleges assault and battery.

Finally, count VII of the Young and Ceriale complaints alleges public nuisance against the specific gun dealers who sold the firearms used in the murders (Breit & Johnson and Chuck's Gun Shop, respectively).

Procedural History

After plaintiffs filed their three complaints, on July 1, 1999, certain manufacturer defendants submitted motions to dismiss plaintiffs' public nuisance claims. On November 30, 1999, the trial court denied defendants' motion to dismiss the public nuisance claims. The plaintiffs then amended their complaints to add the "unrelated defendants" -- a term coined by defendants to describe those who did not manufacture, distribute or sell the firearms identified in the shootings. On January 13, 2000, defendants moved to dismiss these complaints pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1998)). On May 11, 2000, the trial court dismissed plaintiffs' negligence claims. Finding no special relationship between the parties that could support the imposition of a duty on the manufacturers to protect plaintiffs from the criminal acts of remote, unrelated third parties, the court concluded that:

"Under the current status of Illinois law, the manufacturers and distributors owed no duty to plaintiffs to control the distribution of handguns based upon the allegations in plaintiffs' Complaints."

The trial court further reserved ruling on the sufficiency of the plaintiffs' public nuisance claims against the "unrelated defendants," reasoning that if a class were certified, certain class members may have a claim against these manufacturers.

On July 25, 2000, plaintiffs moved to amend the complaints. Plaintiffs added allegations concerning the specific chain of distribution and ownership of identified firearms; statistical data; and Young and Smith sought to join plaintiffs Macias and Bowman, respectively. On December 13, 2000, defendants brought multiple 2-615 and 2-619 motions, seeking a reconsideration of the trial court's November 30, 1999, ruling. Individual manufacturers also brought separate 2-619 motions, arguing that they ...


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