People v. Sturm, Ruger & Co.

309 A.D.2d 91, 761 N.Y.S.2d 192, 2003 N.Y. App. Div. LEXIS 7304

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 2003
• Status: Published

Opinions

OPINION OF THE COURT

Marlow, J.

Plaintiff State of New York, by its Attorney General, commenced this action with a complaint alleging that defendant corporations, which are handgun manufacturers, wholesalers and retailers, have created, contributed to, and maintained a public nuisance by their respective manufacturing, distributing and marketing practices. Plaintiff now appeals from an order of the Supreme Court which consolidated and granted defendants’ motions to dismiss the complaint for failure to state a cause of action. While originally pleading both a statutory (Penal Law § 400.05 [1]) and a common-law public nuisance cause of action, plaintiff, on this appeal, does not challenge the motion court’s dismissal of the former. Thus, the only remaining issue is whether the motion court correctly dismissed, pursuant to CPLR 3211 (a) (7), the cause of action for common-law public nuisance.

Plaintiffs complaint, as pertinent here, claims that illegally possessed handguns are a common-law public nuisance because they endanger the health and safety of a significant portion of the population; interfere with, offend, injure and otherwise cause damage to the public in the exercise of rights common to all; and that, after being placed on actual and constructive notice that guns defendants sell, distribute and market are being used in crimes, they have, by their conduct and omissions, created, maintained and contributed to this public nuisance, because they manufacture, distribute and market handguns allegedly in a manner that knowingly places a disproportionate number of handguns in the possession of people who use them unlawfully. Plaintiff further claims that defendants are on notice that certain types of guns, and guns sold in certain locales, are disproportionately used in the commission of crimes. They base that claim on the results of trace requests which the Bureau of Alcohol, Tobacco and Firearms (BATF) initiates with respect to guns used in or associated with crimes, in furtherance of its duty to enforce and manage the federal firearm regulatory scheme.

Plaintiff therefore seeks an order, inter alia, “(1) directing defendants to abate the nuisance they have created and maintain within the State of New York; [and] (2) directing each defendant to cease contributing to and maintaining the nuisance within the State of New York.”

The motion court dismissed plaintiffs complaint on the ground that it fails to state a cause of action for common-law public nuisance. The court so found because defendants are engaged in the lawful manufacture, marketing and sale of a defect-free product in a highly regulated activity far removed from the downstream, unlawful use of handguns that is out of their control and constitutes the nuisance alleged. The court ruled that, in order to survive a dismissal motion, plaintiff was required to allege more specific facts to show how defendants are linked to, and how they contributed to that nuisance, because BATF trace request information presently available to defendants is insufficient to support a common-law public nuisance lawsuit.

We agree and affirm, based on the reasoning and implications of Hamilton v Beretta U.S.A. Corp. (96 NY2d 222 [2001]) and the fact that the legislative and executive branches are better suited to address the societal problems concerning the already heavily regulated commercial activity at issue.

The New York Court of Appeals has never recognized a common-law public nuisance cause of action based on allegations like those in this complaint. Moreover, other jurisdictions have dismissed public nuisance claims against firearms manufacturers on similar or other grounds (see City of Philadelphia v Beretta U.S.A. Corp., 277 F3d 415 [3d Cir 2002] [civic organizations lacked standing to sue gun manufacturers on claim that gun industry’s methods for distributing guns were negligent and a public nuisance since there was no causal nexus between manufacturers’ conduct and alleged injuries of civic organizations’ members and because action could not proceed in absence of participation of members of organizations who actually sustained damage]; Camden County Bd. of Chosen Freeholders v Beretta, U.S.A. Corp., 273 F3d 536 [3d Cir 2001] [causal chain too attenuated to make out public nuisance claim associated with criminal use of handguns]; Ileto v Glock, Inc., 194 F Supp 2d 1040 [CD Cal 2002] [applying California state law, federal court concluded that manufacture and sale of nondefective product cannot give rise to public nuisance claim]; District of Columbia v Beretta U.S.A. Corp., 2002 WL 31811717 [DC Super Ct, Dec. 16, 2002] [action for public nuisance not sustainable as a matter of law because it is not based upon conduct of defendants that violates any criminal law or any municipal regulation or health and safety law of the District of Columbia]; City of Gary ex rel. King v Smith & Wesson Corp., 2001 WL 333111 [Ind Super Ct, Jan. 11, 2001] [conduct cannot constitute public nuisance under Indiana law unless it is actionable under some theory of tort law]; Penelas v Arms Tech., Inc., 778 So 2d 1042 [Fla Ct App, 3d Dist 2001] [Florida statute expressly preempts entire field of firearm and ammunition regulation]; Ganim v Smith & Wesson Corp., 258 Conn 313, 780 A2d 98 [2001] [plaintiffs’ public nuisance claim dismissed because harms alleged too indirect and remote from defendants’ conduct]).¹

In its most recent opinion on the accountability of gun manufacturers and dealers, the New York Court of Appeals in Hamilton said nothing to suggest that it is moving in the direction of sustaining other types of tort claims in this area of commercial activity. Notwithstanding the arguments advanced by plaintiff, our reading of Hamilton suggests the Court’s resolve to maintain its present and longstanding posture of denying liability where the causal connection between the alleged business conduct and harm is too tenuous and remote. Hamilton, just as here, deals with defendants’ manufacturing, distribution, marketing and sales practices, but, unlike here, does so in the context of a lawsuit by private plaintiffs against defendants based on a claim, inter alia, of negligent marketing, a tort different from the instant common-law public nuisance claim. However, much of the Court’s reasoning in dismissing the Hamilton negligent marketing complaint logically, and most aptly, applies to our consideration of this plaintiff’s common-law public nuisance claim.

To begin with, the Court reasoned that, generally, defendant gun manufacturers do not owe a “duty to control the conduct of third persons so as to prevent them from harming others, even where as a practical matter defendant can exercise such control.” (Hamilton, 96 NY2d at 233, quoting D’Amico v Christie, 71 NY2d 76, 88 [1987].) Indeed, the Hamilton Court, unanimously and specifically, rejected the plaintiffs’ contention that gun manufacturers have a general duty of care born of their purported ability to lessen the risks of illegal gun trafficking because they have the power to restrict marketing and product distribution.

The root of the Hamilton Court’s reasoning, in a significant measure, appears to be as follows (96 NY2d at 233): “This judicial resistance to the expansion of duty grows out of practical concerns both about potentially limitless liability and about the unfairness of imposing liability for the acts of another.”

Although the tort of common-law public nuisance is defined differently from negligent marketing, this quoted concern expressed in Hamilton is, as we see it, common to both negligent marketing and public nuisance claims. Although this public nuisance lawsuit is brought by the Attorney General on behalf of the State of New York — while the Hamilton action was one initiated by private parties for negligent marketing— both were brought against handgun manufacturers and sellers. Plaintiffs attempt here to widen the range of common-law public nuisance claims in order to reach the legal handgun industry will not itself, if successful, engender a limitless number of public nuisance lawsuits by individuals against these particular defendants, as was a stated concern in Hamilton (96 NY2d at 233). However, giving a green light to a common-law public nuisance cause of action today will, in our judgment, likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities.

All a creative mind would need to do is construct a scenario describing a known or perceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets and/or sells its nondefective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born. A variety of such lawsuits would leave the starting gate to be welcomed into the legal arena to run their cumbersome course, their vast cost and tenuous reasoning notwithstanding. Indeed, such lawsuits employed to address a host of societal problems would be invited into the courthouse whether the problems they target are real or perceived; whether the problems are in some way caused by, or perhaps merely preceded by, the defendants’ completely lawful business practices; regardless of the remoteness of their actual cause or of their foreseeability; and regardless of the existence, remoteness, nature and extent of any intervening causes between defendants’ lawful commercial conduct and the alleged harm.

As one court put it in a case involving similar issues under New Jersey law (Camden County Bd. of Chosen Freeholders v Beretta, U.S.A. Corp., 273 F3d 536, 540 [2001]):

“Whatever the precise scope of public nuisance law in New Jersey may be, no New Jersey court has ever allowed a public nuisance claim to proceed against manufacturers for lawful products that are lawfully placed in the stream of commerce. On the contrary, the courts have enforced the boundary between the well-developed body of product liability law and public nuisance law. Otherwise, if public nuisance law were permitted to encompass product liability, nuisance law ‘would become a monster that would devour in one gulp the entire law of tort.’ Tioga Public Sch. Dist. v. U.S. Gypsum Co., 984 F.2d 915, 921 (8th Cir. 1993). If defective products are not a public nuisance as a matter of law, then the non-defective, lawful products at issue in this case [handguns] cannot be a nuisance without straining the law to absurdity.”

We are not saying — just as the Court of Appeals has not said — that a common-law public nuisance claim is always an inappropriate legal tool to address consequential harm from all forms of commercial activity. Indeed, New York courts have permitted such lawsuits in the past (see New York Trap Rock Corp. v Town of Clarkstown, 299 NY 77, 80-81 [1949]). Although plaintiff relies on New York Trap Rock in this context, that reliance is misplaced. In that case a public nuisance counterclaim against New York Trap Rock survived a motion to dismiss. However, plaintiffs legal position here is critically different, because of the nature of the targeted activity of the Trap Rock Corporation. Trap Rock’s activity was blasting which, wholly unlike the business practices alleged here, was the direct and immediate cause of the damage to others nearby. In New York Trap Rock there was no subsequent, intervening criminal or other act or event, initiated by any third party, beyond Trap Rock’s control, that can be said to have caused or contributed to the damage beyond the blasting itself — damage which was spatially and temporally proximate to the Trap Rock blasting site and activity.

Plaintiffs reliance on City of Rochester v Premises Located at 10-12 S. Washington St. (180 Misc 2d 17 [1998]) is similarly misplaced because even though the court there held defendants liable for conduct of their patrons both in and outside of defendant’s nightclub, the patrons’ off-premises conduct occurred in spatial proximity to defendant’s premises and in temporal proximity to its commercial activity, and the conduct was very much related to the commercial entity’s business activity (see also Packett v Herbert, 237 Va 422, 425-426, 377 [1989]; Gelletly v Commonwealth, 16 Va App 457, 459-460, 430 SE2d 722, 724 [1993]). Moreover, the conduct itself in some respects violated the Penal Law in that it was disorderly, consisting also of assaults, fighting and shootings. Furthermore, the character of the premises as a nightclub serving alcoholic beverages, when viewed in light of the other facts, extinguishes any doubt that the cited obnoxious, illegal and offensive behavior caused the harm alleged, was its immediate and direct cause, and was, at least in part, inextricably intertwined with defendant’s commercial activity, i.e., the sale of alcoholic beverages for immediate consumption (see also Sunset Amusement Co. v Board of Police Commrs., 7 Cal 3d 64, 84, 496 P2d 840, 853 [1972], appeal dismissed 409 US 1121 [1973] [in denying renewal permit application, court rejected defendant’s claim that its roller skating rink should not be held responsible for serious traffic congestion, numerous and varied traffic offenses, thefts and misuse of private property committed by its patrons off the premises]).²

In asking this Court to allow the pursuit of a common-law public nuisance cause of action, plaintiff would have us summarily ignore:

(1) the fact that the Court of Appeals, in Hamilton (96 NY2d at 238-239, 239 n 8), found a lack of sufficiently specific information provided by BATE trace requests, and noted the practical problem of asking defendants themselves to further investigate the trace request information;

(2) the importance and fairness of considering such concepts as remoteness, duty, proximate cause and the significance of the indisputable intervention of unlawful and frequently violent acts of criminals — over whom defendants have absolutely no control — who actually, directly, and most often intentionally, cause the cited harm;

(3) the significance and unfairness of holding defendants accountable even though their commercial activity is wholly lawful and currently heavily regulated, and that their products are nondefective; and

(4) the plain fact that courts are the least suited, least equipped, and thus the least appropriate branch of government to regulate and micromanage the manufacturing, marketing, distribution and sale of handguns.

The Qualitative Inadequacy ofBATF Trace Requests to Achieve this Lawsuit’s Goal.

Central to plaintiffs claim is an assertion that defendants are on actual and constructive notice through trace requests by BATF that they are deliberately choosing to manufacture handguns that are attractive to criminals. Plaintiff further alleges that defendants knowingly manufacture, distribute and sell an endless supply of guns that disproportionately wind up in criminal hands in New York. Plaintiff claims that defendants, knowing where and how to market and make handguns in a way that meets the demand of an illegal gun market, do so by their design, marketing and distribution choices.

Therefore, it is the trace requests defendants receive from the BATF and the information allegedly flowing from them which form the foundation of plaintiff’s allegation that defendants’ knowing business practices give rise to a legally cognizable claim of public nuisance. Plaintiff thus argues that its complaint sufficiently alleges a cause of action for public nuisance because it states that defendants’ conduct knowingly results in an increase in the number of guns in criminal hands and that defendants have the power to abate that consequence by adjusting their business practices.

However, the Hamilton Court rejected notions similar to the one this plaintiff advances, namely, that through trace requests which defendants receive from the BATF, they are given information about guns they design, make and market sufficient to know where and how to adjust their business practices so as to reduce the number of guns attractive to criminals, and to limit their sales in ways which would allegedly lessen their distribution into areas where disproportionate numbers of crime guns are seized. Thus, the Hamilton Court said (96 NY2d at 238-239):

“Plaintiffs’ experts explained that a crime gun trace is the means by which the BATF reconstructs the distribution history of a gun used in a crime or recovered by the police. While [handgun] manufacturers may be generally aware of traces for which they are contacted, they are not told the purpose of the trace, nor are they informed of the results. The BATF does not disclose any subsequently acquired retailer or purchaser information to the manufacturer. Moreover, manufacturers are not in a position to acquire such information on their own. Indeed, plaintiffs’ law enforcement experts agreed that manufacturers should not make any attempt to investigate illegal gun trafficking on their own since such attempts could disrupt pending criminal investigations and endanger the lives of undercover officers.”

Indeed, the Court in Hamilton (96 NY2d at 237 n 5) referred to the gaps in information provided by trace requests, and it suggested that, “[b]ecause of BATF’s continued pursuit in identifying how handguns enter the illegal market, it may well be that a core group of corrupt FFLs [federal firearms licensees] will emerge at some future time. This might alter the duty equation.”

Therefore, we see it as inappropriate at this juncture to sustain this complaint. There is no reason to believe that the level of knowledge flowing from the instant trace requests today is any greater than it was when Hamilton was decided. This is especially so because the duty which this plaintiff’s complaint ultimately seeks to impose is similar to the one the Hamilton Court unanimously rejected.

Furthermore, we find relevant the Hamilton Court’s observation that there is no evidence of a statistically significant relationship between “particular classes” of dealers and crime guns. The Court thus concluded (id. at 236):

“To impose a general duty of care upon the makers of firearms under these circumstances because of their purported ability to control marketing and distribution of their products would conflict with the principle that any judicial recognition of a duty of care must be based upon an assessment of its efficacy in promoting a social benefit as against its costs and burdens (see, Waters v New York City Hous. Auth., 69 NY2d 225, supra). Here, imposing such a general duty of care would create not only an indeterminate class of plaintiffs but also an indeterminate class of defendants whose liability might have little relationship to the benefits of controlling illegal guns (see Waters, 69 NY2d, at 230).”

Duty, Remoteness, Proximate Cause and the Intervening Acts of Third Parties.

Plaintiff argues, in part, that a common-law public nuisance cause of action merely requires plaintiff to allege the existence of circumstances that appear as a public nuisance, and to assert acts of a defendant that create, contribute to, or maintain that nuisance. The Court of Appeals’ definition goes further, however, and includes the concept of conduct or omissions that “offend, interfere with or cause damage to the public in the exercise of rights common to all * * * in a manner such as to offend public morals, interfere with use by the public of a pub-lie place or endanger or injure the property, health, safety or comfort of a considerable number of persons” (Copart Indus. v Consolidated Edison Co., 41 NY2d 564, 568 [1977]). The question thus is whether the concept of duty, so relevant to other causes of action, plays any part in an examination of the validity of this common-law public nuisance lawsuit.

Plaintiff cites no New York decision which imposes an undefined duty of care on handgun manufacturers and distributors, with respect to the design, manufacture, marketing or selling of their product, other than the obligation to follow relevant statutes and regulations. In fact, we have held in a products liability case against, inter alia, members of the handgun industry, that “New York does not impose a duty upon a manufacturer to refrain from the lawful distribution of a non-defective product (see, Elsroth v Johnson & Johnson, 700 F Supp 151, 156)” (Forni v Ferguson, 232 AD2d 176, 177 [1996]). Moreover, the manufacturers in Forni “certainly had no control over the criminal conduct of a third party” (id.). Indeed, albeit in the context of a negligent marketing case, the Court of Appeals, in Hamilton (96 NY2d at 232-233), specifically rejected any notion that defendant gun manufacturers and dealers owe a duty to control the conduct of others.

The Court of Appeals further expressed its skepticism about specific marketing adjustments that the Eastern District suggested in Hamilton v Accu-Tek (62 F Supp 2d 802, 820 [1999]) would abate the problem of handgun violence (Hamilton, 96 NY2d at 235-236):

“Plaintiffs also assert that a general duty of care arises out of the gun manufacturers’ ability to reduce the risk of illegal gun trafficking through control of the marketing and distribution of their products. The District Court accepted this proposition and posited a series of structural changes in defendants’ marketing and distribution regimes that might ‘reduce the risk of criminal misuse by ensuring that the first sale was by a responsible merchant to a responsible buyer’ (Hamilton v Accu-Tek, * * * 62 F Supp 2d, at 820). Those changes, and others proposed by plaintiffs that a jury might reasonably find subsumed in a gun manufacturer’s duty of care, would have the unavoidable effect of eliminating a significant number of lawful sales to ‘responsible’ buyers by ‘responsible’ Federal firearms licensees (FFLs) who would be cut out of the distribution chain under the suggested ‘reforms.’ ”

Thus, the Court of Appeals seems reluctant to extend duties currently recognized between certain parties “beyond that limited class of plaintiffs to members of the community at large” (id. at 233). However, even if such a legal duty were held to exist so as to hold these defendants accountable in the context of a common-law public nuisance claim, and, further, assuming plaintiff has sufficiently pleaded that element — i.e., that by their manufacturing and marketing decisions and practices defendants created and maintain a common-law public nuisance in violation of a duty to the public at large — plaintiff still falls short.

We so hold because (1) the harm plaintiff alleges is far too remote from defendants’ otherwise lawful commercial activity to fairly hold defendants accountable for common-law public nuisance; and (2) defendants’ lawful commercial activity, having been followed by harm to person and property caused directly and principally by the criminal activity of intervening third parties, may not be considered a proximate cause of such harm.³

On remoteness and proximate cause, the motion court correctly found to be fatally flawed plaintiff’s contention that, in order to advance a cognizable common-law public nuisance claim, it need only allege and prove that defendants’ business practices created or contributed to the maintenance of a “public nuisance.” While plaintiff aptly recognizes that it must prove defendants caused or contributed to the nuisance, we cannot also conclude that, no matter how far removed from defendants’ lawful business practices the harm is felt, defendants nevertheless remain liable under a common-law public nuisance theory. We believe the motion court astutely observed, “a line must eventually be drawn since there will be many instances in which a party may have contributed in some remote way and yet it is inappropriate to subject that party to tort liability. In other words, at some point, a party is simply too far removed from the nuisance to be held responsible for it.” That rationale was apparently an integral part of the Hamilton Court’s finding that defendants were not liable (96 NY2d at 234 [connection between defendants, criminal wrongdoers and plaintiffs is remote, running through several links in a chain consisting of at least the manufacturer, the federally licensed distributor or wholesaler, and the first retailer, and most often including numerous subsequent legal purchasers or even a thief]). Indeed, “proximate cause is used essentially as a legal tool for limiting a wrongdoer’s liability only to those harms that have a reasonable connection to his actions” (Laborers Local 17 Health & Benefit Fund v Philip Morris, Inc., 191 F3d 229, 235 [1999]).

Thus, in Petitions of Kinsman Tr. Co. (388 F2d 821, 825 [1968]), the Second Circuit, applying New York law, found the connection between the negligence and damage was too tenuous and remote. In Kinsman, petitioner’s employees negligently moored a ship in the Buffalo River. The ship broke loose and struck another ship, and both careened down the river crashing into a bridge. The resulting wreckage formed a dam that caused extensive flooding and an ice jam, disrupting transportation for two months. Claimants, owners of grain stored on their ships located on the river, were unable to unload the grain and they sued petitioners for the resulting damage (see also Ascher v F. Garafolo Elec. Co., 113 AD2d 728, 729-731 [1985], affd 67 NY2d 637 [1986] [insufficient lighting of subway platform, carrying dangerous trap and nuisance for subway riders, not proximate cause of injury as a matter of law]). Liability Imposed and Enforced by the Judiciary for Lawful, Heavily Regulated, Commercial Activity Involving a Nondefective Product.

One of our concerns in this public nuisance case of first impression is not — as was the potential faced by the Hamilton Court (96 NY2d at 233) — a limitless number of private plaintiffs who would likely appear at the courthouse steps were we to allow this claim to proceed. Rather, we see on the horizon, were we to expand the reach of the common-law public nuisance tort in the way plaintiff urges, the outpouring of an unlimited number of theories of public nuisance claims for courts to resolve and perhaps impose and enforce — some of which will inevitably be exotic and fanciful, wholly theoretical, baseless, or perhaps even politically motivated and exploitative. Such lawsuits could be leveled not merely against these defendants, but, well beyond them, against countless other types of commercial enterprises, in order to address a myriad of societal problems — real, perceived or imagined — regardless of the distance between the “causes” of the “problems” and their alleged consequences, and without any deference to proximate cause. Such an explosion of litigation would inappropriately engulf the courts beyond their means in issues which the legislative and executive branches are vastly better designed, equipped and funded to address. Certainly, in this situation, as the Hamilton Court (96 NY2d at 239 n 9) and the motion court both pointed out in detail, the problems to which plaintiff’s complaint alludes are presently the subject of strict control and regulation by the executive and legislative branches of both the United States and New York State governments. Indeed, they have been for many decades.⁴

Although there are cases like New York Trap Rock (supra) and others involving valid claims of common-law public nuisance, where judges can and do take appropriate corrective action, courts are not always the best forum to resolve problems associated with, or which follow, every form of commercial activity. As for those societal problems associated with, or following, legal handgun manufacturing and marketing, their resolution is best left to the legislative and executive branches (see discussion Bryce A. Jensen, Note, From Tobacco to Health Care and Beyond — A Critique of Lawsuits Targeting Unpopular Industries, 86 Cornell L Rev 1334, 1371-1385 [2001]). Their significantly greater resources render those two branches appropriately empowered and, virtually always, vastly better suited to address, investigate, evaluate, and resolve perceived societal problems — problems which may be as remote from a defendant’s conduct and control as these. As a practical matter, because of the ethical and legal limits on its ability to investigate, gather information, and act, and, further, in light of its often scant or even nonexistent resources, a court is uniquely ill-equipped to do so. Moreover, courts have not, by virtue of statute or case law, been given authority to act effectively in this specific setting.

The prospect of judges becoming embroiled in a “hands-on” fashion in the minutiae of disputes over how numerous companies manufacture and market their products poses insurmountable obstacles as we foresee courts attempting to carefully monitor which models of guns should or should not be designed, which ones may be sold in exactly what quantities, to and by which wholesalers, in which states, and to which individual retailers in which communities. Beyond that, courts could be asked to carve out geographic criteria for marketing certain types of handguns and prohibiting, counting, and limiting others, and then being asked to implement, monitor and enforce such criteria for every manufacturer, wholesaler, distributor and retailer summoned to court by the State. Whatever intentions or beliefs underlie this lawsuit’s protective goals, the courts are not designed or equipped for such all-embracing new undertakings. Notably, nowhere in its complaint does plaintiff particularize any practical methods by which defendants should or could effectuate an abatement of the alleged nuisance, or, even more important, any specific, realistic, and practical way judges could monitor and enforce any such court-ordered abatement.

In light of the foregoing, we believe it is legally inappropriate, impractical and unrealistic to mandate that defendants undertake, and the courts enforce, unspecified measures urged by plaintiff in order to abate the conceded availability and criminal use of illegal handguns.

Therefore, the order of the Supreme Court, New York County (Louis York, J.), entered August 24, 2001, which consolidated and granted defendants’ separate motions to dismiss the complaint for failure to state a cause of action, should be affirmed, without costs.

1 . But see National Assn. for Advancement of Colored People v Acusport Corp., 210 FRD 446 (ED NY 2002) (where complaint against manufacturers and distributors of firearms alleged improper sale and distribution of guns resulting in thousands of deaths a year, plaintiff stated a public nuisance claim under New York law); City of Chicago v Beretta U.S.A. Corp., 337 Ill App 3d 1, 785 NE2d 16 (App Ct, 1st Dist 2002), lv allowed 203 Ill 2d 544, 788 NE2d 727 (2003) (public nuisance cause of action stated where complaint alleged that defendants’ collective marketing practices unreasonably facilitated unlawful possession and use of firearms); Young v Bryco Arms, 327 Ill App 3d 948, 765 NE2d 1 (App Ct, 1st Dist 2001), lv allowed 201 Ill 2d 619, 786 NE2d 202 (2002) (public nuisance law could be applied to manufacturers and distributors of handguns used by teenage gang members to kill victims though handguns themselves were nondefective, legal products, where victims’ survivors alleged that manufacturers and distributors had intentionally created and maintained an illegal secondary gun market by oversupplying the areas around city with handguns); City of Boston v Smith & Wesson Corp., 12 Mass L Rptr 225, 2000 WL 1473568, 2000 Mass Super LEXIS 352 (Super Ct, July 13, 2000) (motion to dismiss denied where complaint alleged defendants intentionally and negligently created and maintained an illegal, secondary firearms market which unreasonably interfered with public rights).

2 . Other cases where public nuisance claims have been allowed to proceed involve specific harm directly attributable to defendant or defendant’s activity (see e.g. Clawson v Central Hudson Gas & Elec. Corp., 298 NY 291 [1948] [new trial on public nuisance claim where evidence showed defendant electric company maintained dam in such a way that spray formed ice upon bridge and approaches which created dangerous condition for users of public highway of which bridge was a part]; Hoover v Durkee, 212 AD2d 839 [1995] [evidence supported finding that racetrack was a public nuisance — noise generated by track drowned out all other sounds, prevented conversation at home or on the phone, even with windows closed, there was an increase in traffic, and public address system could be heard from a significant distance]; People v HST Meth, 43 AD2d 932 [1974] [evidence, which included results of police investigation, which uncovered illegal drug trafficking on premises, in some cases involving clinic employees, sufficient to sustain finding that defendant’s methadone clinic constituted a public nuisance]; State of New York v Ole Olsen, Ltd., 38 AD2d 967 [1972] [sale of properties with nuisance consisting of improper and inadequate sewage disposal systems did not absolve vendor’s liability for creation of public nuisance even though control had passed to purchasers]; State of New York v Fermenta ASC Corp., 160 Misc 2d 187 [1994], appeal dismissed 238 AD2d 400 [1997], lv denied 90 NY2d 810 [1997] [substantial unresolved questions of fact in public nuisance case where plaintiffs claimed that highly soluble byproduct of defendant’s herbicide contaminated groundwater]; State of New York v Schenectady Chems., 117 Misc 2d 960 [1983], affd as mod 103 AD2d 33 [1984] [court allowed public nuisance action to proceed against chemical manufacturer who had contracted with a third party to dispose of chemical water, even though resulting groundwater contamination occurred over 30-year period]; State of New York v Waterloo Stock Car Raceway, 96 Misc 2d 350, 357 [1978] [where everyone had their eardrums "hammered away” during night stock car races, expected aftermath of dust accumulation on their property, and lived in fear for their continued safety, operation of racetrack constituted a public nuisance that should be discontinued]; County of Sullivan v Filippo, 64 Misc 2d 533 [1970] [evidence established that if programs, including rock festivals, planned for a certain date, which included proposed ticket sales of 50,000 and over 18 hours of performing, were permitted to go on, use of highways, medical facilities and other facilities would have imposed unreasonable and excessive burden on people of county and constituted threatened public nuisance]; Town of Preble v Song Mtn., 62 Misc 2d 353 [1970] [court enjoined proposed rock festival which was to be held at ski resort and expected to draw 30,000 and which would interfere substantially with the rights of general public in the vicinity]; City of Rochester v Charlotte Docks Co., 114 NYS2d 37 [1952] [noise emitted by coal transshippers’ shake-out unloading operation in evening and nights unreasonably interfered with and was detrimental to the comfort, repose and health of nearby residents and constituted a public nuisance]; City & County of Honolulu v Cavness, 45 Haw 232, 364 P2d 646 [1961] [building which was situated in congested area adjacent to public street of city and which was found to be in great danger of collapse by reason of its deteriorated state was a public nuisance both at common law and under city and county building code]).

3 . The Courts of Appeals in at least eight circuits have dismissed lawsuits by union health benefit funds against tobacco companies to recover the costs of smoking-related illnesses on the ground that the harm to the fund participants is too remote from the companies’ wrongdoing to permit recovery under federal statutory and state common-law claims. Illustrative of the rationale behind these dismissals is the “tortured path” that must be followed from the tobacco companies’ wrongdoing to the union health benefit funds’ increased expenditures, which further demonstrates that plaintiffs claims are exactly the type of indirect claims that proximate cause requirements are intended to weed out (Steamfitters Local Union No. 420 Welfare Fund v Philip Morris, Inc., 171 F3d 912 [3d Cir 1999], cert denied 528 US 1105 [2000]; see also Service Empls. Intl. Union Health & Welfare Fund v Philip Morris Inc., 249 F3d 1068 [DC Cir 2001], cert denied sub nom. Republic of Guatemala v Tobacco Inst., Inc., 534 US 994 [2001]; Lyons v Philip Morris Inc., 225 F3d 909 [8th Cir 2000]; United Food & Commercial Workers Unions, Empls. Health & Welfare Fund v Philip Morris, Inc., 223 F3d 1271 [11th Cir 2000]; Texas Carpenters Health Benefit Fund v Philip Morris Inc., 199 F3d 788 [5th Cir 2000]; International Bhd. of Teamsters, Local 734 Health & Welfare Trust Fund v Philip Morris Inc., 196 F3d 818 [7th Cir 1999]; Laborers Local 17 Health & Benefit Fund v Philip Morris, Inc., 191 F3d 229 [2d Cir 1999], cert denied 528 US 1080 [2000]; Oregon Laborers-Employers Health & Welfare Trust Fund v Philip Morris Inc., 185 F3d 957 [9th Cir 1999], cert denied 528 US 1075 [2000]).

4 . This controlling regulation, like the very issue of legality, is for the Legislature (cf. Forni v Ferguson, 232 AD2d 176, 176 [1996] [“While there have been and will be countless debates over the issue of whether the risks of firearms outweigh their benefits, it is for the Legislature to decide whether manufacture, sale and possession of firearms is legal”]).