119 F.3d 148, 155 (2d Cir. 1997)
In December 1993, Colin Ferguson boarded the Long Island Railroad's 5:33 p.m. commuter train departing from New York City.1 He opened fire on passengers using a 9mm semiautomatic handgun loaded with Winchester Black Talon hollowpoint bullets manufactured by Olin Corporation through its Winchester division.2 Six people were killed, including Dennis McCarthy, and nineteen others were wounded, including Kevin McCarthy and Maryanne Phillips.3 The Black Talon bullets enhanced the victims' injuries through their ripping and tearing action because the bullets performed as designed.4
Olin designed the Black Talon as a hollowpoint bullet that bends upon impact into six ninety-degree angle razor-sharp petals to increase wounding power by stretching, cutting, and tearing tissue and bone.5 The bullet went on the market in 1992 and was originally developed for law enforcement agencies but was marketed and available to the general public.6 Following public outcry, Olin withdrew the Black Talon from the public market in November 1993 and restricted its sales to law enforcement personnel.7 Ferguson allegedly purchased the ammunition in 1993 before the withdrawal.8
The surviving victims Kevin McCarthy and Maryanne Phillips, the estate of Dennis McCarthy, and their spouses Carolyn McCarthy and Robert Phillips filed suit in New York State Supreme Court against Olin, Sturm, Ruger & Company Inc. as the handgun manufacturer, and Ram-Line Inc. as the magazine manufacturer.9 The complaint asserted causes of action for negligent manufacture, advertising, and marketing of an unreasonably designed and ultrahazardous product, the making of an unreasonably dangerous product, and strict liability in tort.10 Defendants removed the case to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1441(a) on diversity of citizenship grounds under 28 U.S.C. § 1332(a)(1).11 The action was subsequently discontinued with prejudice against Sturm, Ruger and Ram-Line.12
Olin moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).13 The district court granted the motion.14 Plaintiffs appealed from the dismissal order to the United States Court of Appeals for the Second Circuit and alternatively requested certification of the questions of ammunition manufacturer liability to the New York Court of Appeals.15
Whether the Second Circuit should certify questions of New York law regarding ammunition manufacturer liability to the New York Court of Appeals?16
Certification is a discretionary device that is proper only where there is a split of authority on the issue, where a statute's plain language does not indicate the answer, or when presented with a complex question of New York common law for which no New York authority can be found.17
No. Recent decisions by New York courts have addressed issues almost identical to those raised in this case.18 The New York Supreme Court in Pekarski v. Donovan, and the Appellate Division in Forni v. Ferguson, held that plaintiffs could not state a cause of action against Olin for the manufacture and marketing of the Black Talon bullet.19 They based their decisions on well-settled principles of New York tort law.20 These decisions, together with existing precedents in New York law, provide sufficient guidance to analyze the district court's dismissal of the complaint.21
The Second Circuit therefore declines to certify any questions of law to New York's highest court.22
The Second Circuit correctly declined to certify the questions to the New York Court of Appeals.23
Related opinions on this issue
Judge Calabresi dissented on the certification issue.24 He argued that federal courts have been far too reluctant to certify unsettled questions of state law to the state's highest court.25 This reluctance leads to forum shopping that Erie sought to prevent and violates principles of federalism and comity.26
In his view, when intermediate state court decisions exist but no definitive holding from the New York Court of Appeals is available, certification is required to allow the state court to define its own substantive law.27 He would have certified the questions here because they present significant and dispositive issues of New York law in genuine doubt and certification was requested by the party that did not invoke federal jurisdiction.28
Whether the plaintiffs stated a claim for strict products liability based on an alleged design defect in the Black Talon bullets?29
To state a cause of action for a design defect under New York law, plaintiffs must allege that the product was unreasonably dangerous for its intended use. This means the product was in a condition not reasonably contemplated by the ultimate consumer. Additionally, the risk of injury might have been reduced or avoided by a feasible alternative design.30
No. The Black Talon bullets were purposely designed to expand on impact and cause severe wounding.31 The plaintiffs concede that the bullets performed precisely as intended by the manufacturer and Colin Ferguson.32 The expanding mechanism was an intentional and functional element of the design rather than a defect.33 The risk/utility test is inapplicable because the risks arise from the function of the product, not from any defect in the product.34
There is no reason to search for an alternative safer design where the product's sole utility is to kill and maim.35 The plaintiffs therefore failed to state a cause of action for strict products liability based on design defect.36
The plaintiffs failed to state a claim for strict products liability based on an alleged design defect in the Black Talon bullets.37
Whether the plaintiffs stated a claim for strict products liability on the ground that the Black Talon ammunition was unreasonably dangerous per se?38
No. The plaintiffs' theory that a product is unreasonably dangerous per se if the danger outweighs its utility is essentially a risk/utility analysis.41 The district court properly held that this analysis is inapplicable because the risks arise from the function of the product, not any defect in the product.42 New York law recognizes no separate cause of action for an unreasonably dangerous per se product.43 The claim was properly dismissed.44
The plaintiffs failed to state a claim for strict products liability on the ground that the Black Talon ammunition was unreasonably dangerous per se.45
Whether the plaintiffs stated a claim for negligence against Olin in the marketing and manufacture of the Black Talon bullets?46
To state a cause of action for negligence under New York law, the plaintiffs must show that the defendant owed them a duty of care, that the defendant breached that duty, that there was a reasonably close causal connection between the defendant's conduct and the resulting injury, and that the plaintiffs suffered loss or damage as a result.47
No. New York courts do not impose a legal duty on manufacturers to control the distribution of potentially dangerous products such as ammunition or to protect against criminal misuse of their products.48 Although it may have been foreseeable that criminal misuse of the Black Talon bullets could occur, Olin owed no legal duty to the plaintiffs to protect them from Colin Ferguson's actions.49 No special relationship existed between Olin and Ferguson.50 Olin could not control Ferguson's conduct.51
Imposing such a duty would expose ammunition manufacturers to limitless liability for products that legislatures have not proscribed and that have socially valuable uses.52 The plaintiffs therefore failed to state a cause of action for negligence.53
The plaintiffs failed to state a claim for negligence against Olin in the marketing and manufacture of the Black Talon bullets.54
Related opinions on this issue
Judge Calabresi dissented on the negligence claim as well.55 He concluded that three of the four elements of negligence—damages, causation in fact and proximate cause, and conduct involving an unreasonable risk of harm—were sufficiently alleged under New York law.56 He viewed the existence of a duty as the only problematic element.57
He argued that the New York Court of Appeals has not made a policy determination one way or the other. This is in circumstances involving a criminal intervenor and the absence of a direct relationship between the defendant and the plaintiff.58 He would have certified the duty question rather than holding as a matter of law that no duty exists.59