F I L E D United States Court of Appeals Tenth Circuit PUBLISH MAR 10 1998 IN THE UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk FOR THE TENTH CIRCUIT
TANYA COPIER, deceased, by and through Bree Renee Lindsey, her personal representative,
Plaintiff-Appellant,
v. No. 96-4051 No. 97-4187 SMITH & WESSON CORP.,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 95-CV-723)
Russell C. Fericks of Richards, Brandt, Miller & Nelson, Salt Lake City, Utah (John J. Flynn, Salt Lake City, Utah, with him on the brief), for Plaintiff-Appellant.
Anne G. Kimball of Wildman, Harrold, Allen & Dixon, Chicago, Illinois (Kenneth M. Gorenberg of Wildman, Harrold, Allen & Dixon, Chicago, Illinois, and H. James Clegg of Snow, Christensen & Martineau, Salt Lake City, Utah, with her on the brief), for Defendant-Appellee.
Before EBEL, HOLLOWAY, and MURPHY, Circuit Judges.
HOLLOWAY, Circuit Judge. Plaintiff-Appellant, Tanya Copier, by and through her daughter, Bree Renee Lindsey, 1
appeals from the district court’s final order denying her motion to amend and confirming
dismissal of her complaint. She also asserts as a major part of her appeal that error occurred
in the district judge’s denial of her motion to certify a question of state law to the Utah
Supreme Court -- specifically, whether Utah law would include the manufacturing of
firearms within the class of activities constituting ultrahazardous activities. She also moves
this court to certify the question directly to the Utah Supreme Court. The district judge’s
views on the insufficiency of the complaint were expressed in his unpublished Memorandum
Opinion and Order. App. at 125-135. We affirm the judgment of the district court and
decline to certify the question.
I
The relevant facts of this case are not in dispute. Ms. Copier’s ex-husband shot her
on March 21, 1991, with a .38 caliber firearm manufactured by defendant-appellee, Smith
& Wesson Corp. The shooting, which led to Eldon Copier’s conviction for attempted
criminal homicide, left Ms. Copier a paraplegic. Appendix (“App.”) at 2 (complaint); id.
at 12-13 (Smith & Wesson’s Memorandum of Law in Support of Defendant’s Motion to
Dismiss).
1 Due to the death of Ms. Copier following the filing of the present action in Utah state court, Bree Renee Lindsey, Ms. Copier’s representative, has been substituted as the plaintiff-appellant. These and other procedural developments since commencement of this action are detailed below.
2 Ms. Copier filed her original complaint herein on March 20, 1995 in Utah state court
against Smith & Wesson. Her theory of legal liability was based on the tort doctrine of
ultrahazardous activity, arguing in particular that since handguns are manufactured to injure
or kill people, and since it is a statistical certainty that some handguns are actually used to
injure or kill people, the handgun manufacturer should bear strict liability for the resulting
damages. Id. at 3 (complaint). She invoked the doctrine of ultrahazardous activity
articulated in the Restatement (Second) of Torts §§ 519 and 520.
Following the filing of her complaint in March 1995 in state court, Ms. Copier died
as a result of her injuries on June 24, 1995. Id. at 125; Aplt. Status Memorandum at Tab 2,
p. 2. Smith & Wesson subsequently removed the case to federal court on August 7, 1995.
App. at 5 (notice of removal). However, no attempt was made to seek an order substituting
a party for Ms. Copier pursuant to Fed. R. Civ. P. 25(a).
On motion of Smith & Wesson, the district court dismissed Ms. Copier’s complaint
on December 13, 1995, reasoning that its role was to follow, not expand, Utah law, and that
Ms. Copier’s cause of action was not viable under current Utah law. App. at 128-29 (district
court’s Memorandum Opinion and Order). The district court denied Ms. Copier’s request
for certification to the Utah Supreme Court. Id. at 134. The judge additionally noted in his
order that counsel for plaintiff had alerted the court to Ms. Copier’s death and that counsel
further indicated that if the court denied the motion to dismiss, the complaint would be
amended to add a claim for wrongful death and to substitute Ms. Copier’s daughter as the
3 party-plaintiff. Id. at 125 (Memorandum Opinion and Order, p. 1, n.1).
Following dismissal and then the denial of plaintiff’s motion for amendment or for
relief from order, Ms. Copier’s counsel filed a notice of appeal to this court in February
1996. Id. at 163. Ms. Copier’s death was not addressed in the parties’ appellate briefs nor
was her death discussed during oral argument. Discovering Ms. Copier’s death after the case
was submitted, we entered an order sua sponte on March 13, 1997, abating the appeal to
permit proper substitution of a party for Ms. Copier, pursuant to Fed. R. App. P. 43(a).
Ms. Copier’s counsel then filed in this court a motion for substitution of party and for
remand. On April 22, we entered an order substituting Bree Renee Lindsey, daughter and
personal representative of Ms. Copier, as plaintiff-appellant. Our order also vacated the
district court’s judgment dismissing Ms. Copier’s complaint and remanded the case to the
district court for consideration of a motion to amend the complaint to include a wrongful
death claim, which counsel had indicated would be made.
Plaintiff subsequently filed her motion to amend with the district court, seeking to add
as a defendant Eldon Copier, the assailant, and to add a claim for wrongful death. Aplt.
Status Memorandum at Tab 8, p. 2. The district court denied the motion to add a defendant,
but granted plaintiff’s request to add the wrongful death claim. Id. Smith & Wesson again
filed a motion to dismiss pursuant to Rule 12(b)(6), which the district court granted on
October 7, 1997, without a hearing. In its order dismissing the case, the judge noted that
plaintiff acknowledged that the amended complaint raises the same legal issues as the
4 original complaint and that plaintiff intended to file an immediate appeal. The judge relied
upon the same reasons for dismissal which he previously detailed in his first order of
dismissal.
Plaintiff again filed a notice of appeal. Because the legal issues remain the same as
those initially argued, we denied plaintiff’s request for further oral argument, but we
provided the parties with the opportunity to submit supplemental briefs addressing these
issues. Plaintiff states in her supplemental brief at 2 that no new controlling decisions have
been rendered by the Utah Supreme Court or the Utah Court of Appeals regarding these
issues since the original appellate briefs were filed, but that the general issue of liability “for
the ultrahazardous conduct of manufacturing and marketing handguns to the general
marketplace remain an important topic of public policy debate and advocacy around the
country.”
II
A
Plaintiff-appellant places heavy emphasis on her request for certification to the Utah
Supreme Court, see Brief for Appellant at 2, in addition to the merits of her ultrahazardous
activity theory of liability. Id. at 13. We treat the merits of her liability theory first. We
review a dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) de novo. Kidd v. Taos Ski
Valley, Inc., 88 F.3d 848, 854 (10th Cir. 1996). Moreover, “the obligation of responsible
appellate review and the principles of a cooperative judicial federalism underlying Erie
5 require that courts of appeals review the state-law determinations of district courts de novo.”
Salve Regina College v. Russell, 499 U.S. 225, 239 (1991).
Utah law imposes strict liability on one who carries on an abnormally dangerous
activity for harm resulting from the activity. Walker Drug Co., Inc. v. La Sal Oil Co., 902
P.2d 1229, 1233 (Utah 1995); Restatement (Second) of Torts § 519 (1976). The factors to 2
be considered in determining whether an activity is abnormally dangerous are:
(a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.
Walker Drug Co., Inc. v. La Sal Oil Co., 902 P.2d at 1233(citing Restatement (Second) of
Torts § 520 (1976)). Consideration of these factors leads us to conclude that Utah law does
not support Ms. Copier’s theory of liability of Smith & Wesson.
None of the above factors is implicated by the manufacturing of handguns, as opposed
to the use -- or rather, the misuse -- of handguns. For example, inWalker Drug, the plaintiffs
brought suit because gasoline had leaked from the defendants’ gas stations and contaminated
the plaintiffs’ property. In evaluating the six factors, the Utah Supreme Court considered the
2 The genesis of the ultrahazardous activity doctrine was the seminal case of Rylands v. Fletcher, L.R. 3 H.L. 330, [1861-73] All E.R. Rep. 1 (1868), which is discussed at length in 3 Harper, James & Gray, The Law of Torts §§ 14.2-14.5.
6 danger that would result from the operation of the gas stations -- that is, the possibility of
leakage of gasoline. It was held that the operation of the gas stations was not an abnormally
dangerous activity; they were located in an area of the city where their operation was
common, appropriate and of significant value to the community. Id. at 1233.
In Robison v. Robison, 394 P.2d 876, 877 (Utah 1964), the Utah Supreme Court held
that the determination of whether the ultrahazardous activity doctrine applied as to injury
caused by rock fragments hurled during use by the defendants of dynamite for blasting
purposes depended on the circumstances. The court focused on the of dynamite, and not use
its manufacture. In the instant case, however, Ms. Copier was harmed not by the
manufacturing of the Smith & Wesson .38, but by the use of it to shoot her. This distinction
is significant, because Ms. Copier’s argument essentially collapses all uses of guns into one
purpose, which she contends is to injure or kill people. However, Ms. Copier ignores a
number of legitimate uses, including self-defense, home protection, and use by law
enforcement officers.
We further note that the one case we have found that imposed strict liability upon a
handgun manufacturer focused on the unique nature of the firearm in that case, a “Saturday
Night Special,” which the court characterized as a gun whose “chief ‘value’ . . . is in criminal
activity, because of its easy concealability and low price.” See Kelley v. R.G. Industries,
Inc., 497 A.2d 1143, 1158 (Md. 1985). Kelley provides little support to Ms. Copier,
however, since it actually rejected the application of the ultrahazardous activity doctrine to
7 firearms in general but limited its holding of liability specifically to “Saturday Night
Specials.”3 Id. at 1147, 1154, 1159. Here, Ms. Copier was shot by a standard .38 caliber
pistol and there is no allegation that the gun was easily concealable and designed chiefly for
use by criminals.
Ms. Copier relies heavily on several scholarly articles which, she contends, advocate
the extension of the ultrahazardous activity doctrine to the manufacturing of firearms. See,
3 We note, moreover, that the Maryland legislature has since repudiated the liability holding in Kelley with respect to “Saturday Night Specials.” See Md. Ann. Code art. 27 § 36-I(h). Additionally, other jurisdictions which have considered the issue have rejected the extension of the ultrahazardous activity doctrine to the manufacturing or sale of firearms. See, e.g., Hamilton v. Accu-Tek, 935 F. Supp. 1307, 1324 (E.D.N.Y. 1996) (rejecting the application of the doctrine because it was not an “improper use of land”); King v. R.G. Industries, Inc., 451 N.W.2d 874 (Mich. Ct. App. 1990) (manufacturer is not liable for criminal misuse of handgun); Delahanty v. Hinckley, 564 A.2d 758, 761 (D.C. 1989) (holding that it is the use, not marketing, of firearms that is dangerous); Addison v. Williams, 546 So.2d 220, 223 (La. Ct. App. 1989) (rejecting application of the doctrine to the manufacturing of handguns); Diggles v. Horwitz, 765 S.W.2d 839, 841 (Tex. App. 1989) (noting that the “manufacture or sale of a handgun has not been recognized as an ultrahazardous activity in Texas”); Armijo v. Ex Cam, Inc., 843 F.2d 406 (10th Cir. 1988) (applying New Mexico law and rejecting application of doctrine to manufacturing of handguns); Knott v. Liberty Jewelry & Loan, Inc., 748 P.2d 661, 664-665 (Wash. App. 1988) (rejecting the application of the doctrine to the manufacturing and sale of firearms); Caveny v. Raven Arms Co., 665 F. Supp. 530, 534-35 (S.D. Ohio 1987) (rejecting Kelley), aff’d, 849 F.2d 608 (6th Cir. 1988) (table); Moore v. R.G. Industries, Inc., 789 F.2d 1326, 1328 (9th Cir. 1986) (rejecting strict liability claim against handgun manufacturer because manufacture of handguns is not ultra-hazardous activity; harm results from use, not existence, of handgun); Coulson v. DeAngelo, 493 So.2d 98, 99 (Fla. Dist. Ct. App. 1986) (per curiam) (same); Burkett v. Freedom Arms, Inc., 704 P.2d 118, 121 (Or. 1985) (same); Perkins v. F.I.E. Corp. , 762 F.2d 1250, 1266 (5th Cir. 1985) (applying Louisiana law, holding that marketing of handguns is not an ultrahazardous activity, and reversing Richman v. Charter Arms Co., 571 F. Supp. 192 (E.D. La. 1983)); Martin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1203-04 (7th Cir. 1984) (Illinois law).
8 e.g., Joi Gardner Pearson, Make It, Market It, and You May Have to Pay for It: An
Evaluation of Gun Manufacturer Liability for the Criminal Use of Uniquely Dangerous
Firearms in Light of In re 101 California Street, 1997 BYU L. Rev. 131 (1997) (in cases
involving assault-style firearms or other firearms particularly attractive to criminals, where
criminal use is especially foreseeable by the manufacturer, the manufacturer should be held
strictly liable for criminal misuse); Virginia E. Nolan & Edmund Ursin,The Revitalization
of Hazardous Activity Strict Liability, 65 N.C. L. Rev. 257 (1987) (although not addressing
liability of gun manufacturers in particular, the article advocates the policy of cost spreading;
the potentially overwhelming cost of injury may be needless to the person injured, since the
risk of injury can be insured by the manufacturer and distributed among the public as a cost
of doing business, a policy which has moved from a status of questionable legitimacy to wide
acceptance as a justification for strict products liability); Andrew O. Smith, Comment, The
Manufacture and Distribution of Handguns as an Abnormally Dangerous Activity , 54
U. Chi. L. Rev. 369 (1987) (although recognizing that courts reject the notion, the economics
of handgun injuries support the application of the abnormally dangerous activity doctrine to
the manufacturing of handguns, especially since the manufacturers inject products into
commerce “intended to facilitate the infliction of grave personal injury”); Paul R. Bonney,
Manufacturers’ Strict Liability for Handgun Injuries: An Economic Analysis, 73 Geo. L.J.
1437 (1985) (recognizing that no court has allowed recovery against a manufacturer for
injuries caused by a properly functioning handgun, but outlining the desirability of such a
9 cause of action and suggesting that handgun manufacturers should, in fairness, bear the
enormous costs of handgun-related injuries). We are not persuaded that the articles support
plaintiff-appellant’s position that Utah law, or a discernible trend in its decisions, indicate
the adoption of her theory.4
With respect to the opinion in In re 101 California Street, No. 959316 (Cal. Super. Ct.
2d Dep’t Apr. 10, 1995), which provides the basis for Pearson’s article, at least two courts
have declined to follow its analysis, noting that while the case may have been correctly
decided under its particular facts, it was actually based on a California statute prohibiting the
sale, advertising or possession of certain assault weapons, including the specific handgun
involved therein. See Moss v. Wolohan Lumber Co. , 1995 WL 348144 (N.D. Ill. 1995);
Casillas v. Auto-Ordnance Corp., 1996 WL 276830 (N.D. Cal. 1996). Since no similar
statute existed regarding the type of weapons involved in Moss or Casillas, the courts
distinguished In re 101 California Street , and granted summary judgment in favor of the
manufacturers.
Ms. Copier’s argument, carried to its logical extension, would suggest that the
manufacturing of any product that is significantly misused and has great potential for injuring
or killing persons should be considered as an ultrahazardous activity. Alcohol production,
for example, might be so considered because in any given year, there is a statistical certainty
4 A reply supplemental memorandum was filed by plaintiff, which presents additional articles as support for plaintiff’s theory of liability. These supplemental studies, however, do not alter our thinking on this issue.
10 that thousands of people will be killed in alcohol-related accidents. Yet, the Utah Supreme
Court has refused to apply strict liability principles to alcohol providers. See Horton v. Royal
Order of the Sun, 821 P.2d 1167, 1169 (Utah 1991).
In sum, we are convinced that under the state of decisional law in Utah, and of
decisions generally, the complaint premised on the ultrahazardous activity doctrine was
properly dismissed here.
B
We review the district court’s decision not to certify the question of state law for
abuse of discretion. Armijo v. Ex Cam, Inc., 843 F.2d 406, 407 (10th Cir. 1988). A district
court abuses its discretion when it renders “an arbitrary, capricious, whimsical, or manifestly
unreasonable judgment.” FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th Cir. 1994).
Certification is a useful procedure which the Supreme Court has used or commended
several times. See, e.g., Arizonans for Official English v. Arizona, 117 S. Ct. 1055, 1073-75
(1997); Zant v. Stephens, 456 U.S. 410, 416-17 (1982); Lehman Brothers v. Schein , 416
U.S. 386, 391-92 (1974); Clay v. Sun Ins. Co., 363 U.S. 207, 212 (1960). But we have
noted that just because a new state law question is raised, “[c]ertification is not to be
routinely invoked whenever a federal court is presented with an unsettled question of state
law.” Armijo, 843 F.2d at 407. The Supreme Court has instructed us that
In the absence of some recognized public policy or defined principle guiding the exercise of the jurisdiction conferred, which would in exceptional cases warrant its non-exercise, it has from the first been deemed to be the duty of the federal courts, if their jurisdiction is properly invoked, to decide questions
11 of state law whenever necessary to the rendition of a judgment.
Meredith v. City of Winter Haven, 320 U.S. 228, 234 (1943).
In arguing that the district court abused its discretion, plaintiff-appellant notes that this
case was originally filed in state court, only to have it removed to federal court based on
diversity jurisdiction. She claims that she is entitled to her day in a Utah court to test the
domain of Utah public policy, “as reflected in the ever evolving doctrine of tort law as
bolstered by [the] growing consensus of the horrendous cost to society from handgun
distribution . . . .” Appellant’s Supplemental Memorandum of Points and Authorities at 6.
She cites the Utah Constitution, Article I, Section 11, which says the courts of the State “shall
be open, and every person, for an injury done to him in his person, property or reputation,
shall have remedy by due course of law.”
There are two problems with this argument for plaintiff. First, insofar as this
provision of the State constitution is in conflict with the removal statutes, 28 U.S.C. §§ 1332
and 1441, then plaintiff-appellant’s state rights must yield to the right of diverse defendants
under the removal statutes, for “This Constitution, and the Laws of the United States . . . shall
be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const.
art. VI, Section 2. And under the diversity statutes the federal courts have the duty to decide
questions of state law even if difficult or uncertain, and denial of the opportunity for decision
by a federal court in a proper diversity case “would thwart the purpose of the jurisdictional
12 act.” Meredith, 320 U.S. at 235.
Second, we are unable to discern when a federal district court, under
plaintiff-appellant’s argument, would ever be able to deny certification in a Utah case that
had been removed if there were any possible argument that there is uncertainty on the Utah
law. Any plaintiff seeking redress under Utah law whose case was subsequently removed
to federal court would be able to raise the same argument Ms. Copier has, and if the district
court could not rule out even the slightest degree of uncertainty in the law of the state, it
could never deny certification. Such a rule would be clearly wrong. See Lehman Brothers
v. Schein, 416 U.S. 386, 390-91 (1974) (“We do not suggest that where there is doubt as to
local law and where the certification procedure is available, resort to it is obligatory.”).
Turning to the issue presented for possible certification here, plaintiff-appellant
contends that Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252 (Utah 1996), is
proof that Utah is willing to expand the boundaries of its tort law to cover situations such as
hers. Brief for Appellant at 14. However, the district court also had before it Armijo, in
which a panel of this court affirmed the denial of certification to the New Mexico Supreme
Court of substantially the same issue as the one raised in this case. Significantly, Armijo had
surveyed federal and state law and concluded that there simply was no indication that
New Mexico would recognize a cause of action such as the plaintiff alleged, and that there
is a clear trend against recognizing such a claim.
We do not believe that the district court abused its discretion. Cruz is simply not on
13 point. In Cruz, the plaintiff was proceeding under a negligence theory, and thus the case’s
central holding focuses on the possible duty that a car dealership owed to the public and the
foreseeability of injury to third parties stemming from its decision to leave car keys in the
ignitions. Even more importantly, the plaintiff was suing the car dealership, not the car
manufacturer. We do not see how Cruz can be read to suggest that Utah might expand the
ultrahazardous activity doctrine to cover manufacturers of handguns.
Therefore, we hold that the district court did not abuse its discretion in denying
certification to the Utah Supreme Court of the question of liability asserted here against
defendant Smith & Wesson.
III
We next consider whether we should certify this question to the Utah Supreme Court
directly. Utah R. App. P. 41(a) states:
The Utah Supreme Court may answer a question of Utah law certified to it by a court of the United States when requested to do so by such certifying court acting in accordance with the provisions of this rule if the state of the law of Utah applicable to a proceeding before the certifying court is uncertain.
Thus, there is a procedural mechanism for certification to the State Court which we
may consider using. However, we note that a necessary but not controlling component is the
difficulty in determining the local law. Cf. Lehman Brothers v. Schein, 416 U.S. 386, 390
(1974) (“[T]he mere difficulty in ascertaining local law is no excuse for remitting the parties
to a state tribunal for the start of another lawsuit.”). Lehman Brothers, of course, discussed
abstention as well as certification, but the opinion there further noted: “We do not suggest
14 that where there is doubt as to local law and where the certification procedure is available,
resort to it is obligatory.” Id. at 390-91. The Supreme Court’s recent opinion in Arizonans
for Official English teaches that “[n]ovel, unsettled questions of state law, however, not
‘unique circumstances,’ are necessary before federal courts may avail themselves of state
certification procedures.” 117 S. Ct. at 1074-75.
While no Utah court has rendered a decision on the precise issue in question, we do
not believe there is unusual difficulty in deciding the state law question or a likelihood that
plaintiff’s theory of liability would be adopted by the Utah courts. We noted above why Cruz
is not applicable to this case and our independent analysis of Utah law persuades us that the
Utah Supreme Court would not expand its ultrahazardous activity doctrine to encompass Ms.
Copier’s claim. No Utah decision that we have found has considered manufacturing to be
the type of activity that triggers the ultrahazardous activity doctrine. We therefore decline
to certify the question to the Utah Supreme Court and the judgment below is
AFFIRMED.