Back in October, 2012, in a full-fedged opinion by Justice Peradotto, the Fourth Department reversed Supreme Court’s dismissal of a complaint brought by a shooting victim which alleged negligence, public nuisance and intentional-violation-of-gun-laws causes of action against the manufacturer, distributor and resellers of firearms. (Williams v Beemiller, Inc., et al, 100 AD3d 143).
Reargument was subsequently granted. After reargument, the Fourth Department amended its October opinion by adding a new section. Excerpts from the new section follow:
With respect to the common-law negligence cause of action, although “ ‘ [a] defendant generally has no duty to control the conduct of third persons so as to prevent them from harming others’ “ …, “[a] duty may arise … where there is a relationship…between defendant and a third-person’s actions “ … . In Hamilton [v Berretta USA Corp., 96 NY2d 222], the Court of Appeals determined that no such relationship existed because the plaintiffs were unable to draw any connection between specific gun manufacturers and the criminal wrongdoers … . Here, by contrast, plaintiffs have alleged that defendants sold the specific gun used to shoot plaintiff to an unlawful straw purchaser for trafficking into the criminal market, and that defendants were aware that the straw purchaser was acting as a conduit to the criminal market. Thus, unlike in Hamilton, plaintiffs have sufficiently alleged that defendants “were a direct link in the causal chain that resulted in plaintiffs’ injuries, and that defendants were realistically in a position to prevent the wrongs” … .
Further [an] intervening criminal act does not necessarily sever the causal connection between the alleged negligence of defendants and plaintiff’s injury … . Rather, “liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant[s’] negligence” … . Here, plaintiffs allege that defendants… knowingly participated in the sale of 140 handguns, including 87 handguns in a single transaction, to [a] gun trafficking ring. We conclude that those allegations are sufficient to raise a question of fact whether it was reasonably foreseeable that supplying large quantities of guns for resale to the criminal market would result in the shooting of an innocent victim ….
We likewise conclude that the allegations in the complaint are sufficient to state a cause of action for public nuisance … . [P]laintiffs allege that defendants violated federal and state laws by selling guns to a straw purchaser, who funneled the guns into the criminal gun market, thereby posing danger to the general public, and that plaintiff was injured by one of those guns. Thus, plaintiffs have alleged that defendants engaged in unlawful conduct that endangered the lives of “a considerable number of persons” … and that plaintiff “ ‘ suffered special injury beyond that suffered by the community at large’ “ … .Williams v Beemiller, Inc., Motion No. 938/12, CA 11-02092 Fourth Dept. 2-1-13