Student Paper  (Name) Date Bus Law (Class number and section number) Merrill v. Navegar, Inc., 26 Cal.4th 465, 28 P.3d 116,110 Cal.Rptr.2d 370 (2001)Case: – Merrill v. Navegar, Inc., 26 Cal.4th 465, 28 p.3d 116, 110 Cal.Rptr.2d 370 (2001)This case takes place in the Supreme Court of California. This is a state court case. It is a civil case, appealed by the plaintiffs, from the trial court decision. The Court of Appeals reversed the trial court’s decision. The Supreme Court reversed the decision of the Court of Appeals, agreeing with the trial courts initial decision. This case was decided in 2001.Issue:
Did the Court of Appeals err in determining that plaintiffs may hold Navegar liable on a common law negligence theory? Facts: The plaintiffs and appellants of this case are the survivors and victims of a shooting. In 1993, a man named Gian Luigi Ferri went on a shooting rampage in an office building in San Francisco California, killing eight people, and injuring six. Navegar Inc, the defendant, is a gun manufacturer in Miami, Florida who manufactured two of the three guns he used in the shooting. They are being sued for negligence based on common law negligence theory.   Navegar is the company that manufactures the TEC-9, a semi automatic pistol. The company advertised the TEC-9 models in many gun related magazines. They also distributed advertising brochures that claimed that the finish of the TEC provides a “natural lubicity to increase bullet velocities, excellent resistance to finger prints, sweat rust, petroleum distillates of all types, gun solvents, gun cleaners, and all powder residues. Salt spray corrosion resistance, expansion and contraction of the metal will notresult in peeling of finish.”  In 1993, Ferri went to a Pawn & Gun shop in Henderson, Nevada, where he purchased a TEC-9. According to store employees he had been to the store many times prior to his purchase, inquiring about guns. He was looking for “high capacity” guns that were compact and could hold lots of rounds. He purchased a TEC-9 disregarding the employee, who was trying to persuade him to purchase a more expensive model. Later that day, he returned the gun stating that he wanted a different gun. In April, Ferri bought a new gun, a TEC-DC9 from a Super Pawn in Las Vegas. The store got the gun from an Arizona distributor, who bought the gun from Navegar. The salesperson showed Ferri two guns, a TEC and a Glock, although he only seemed to be interested in the TEC. A customer in the store tried to entice him to buy the Glock, saying that it was better than the TEC, yet Ferri chose to purchase the TEC-DC9 anyway. In May, Ferri purchased another TEC gun from a Utah dealer at a Las Vegas gun show. The dealer obtained the gun from an Ohio dealer, who initially got it from Navegar. The TEC-DC9 was the only gun they were selling at the show. All of the purchases of the TEC were legal. The required questions were asked with regards to Ferri’s criminal history and residency. He also showed a Nevada driver’s license that appeared to be legal. On July 1, 1993, Ferri entered a California office building. He was carrying the three TDC’s, as well as a .45-caluber Norinco pistol, in a briefcase and another bag. His guns were loaded with hundreds of rounds of ammunition. He also had added the TEC-DC9’s Hell Fire trigger systems which would make the weapons fire rapid bursts. Ferri started shooting when he entered the office of a law firm, which he had a grudge against. He shot and killed eight people, wounded six, and then proceeded to shoot and kill himself. During an investigation of Ferri’s apartment, police found two TEC manuals, one catalog, and two price lists. The investigators also found many gun related magazines and advertisements, none of which advertised the TEC guns. Therefore, police concluded that there was no evidence that showed that Ferri traveled to Nevada to purchase those exact models of guns. The plaintiffs of the case brought a lawsuit against Navegar for common law negligence. They claimed that Navegar “acted negligently by manufacturing, marketing, and making available for sale to the general public the TEC-9/DC9”. It was argued that they should have known that the gun could be associated with criminal activity and may be enticing to criminals due to its firepower, especially with the extra enhancements that they made for increased firepower. It was also argued that they knew, or at least should have known, that the TEC is a small, easily concealable, military assault weapon, made military style, with the capabilities of killing lots of people, and that it may be used by a criminal for this purpose. The plaintiffs also claimed that the company should be held strictly liable because they made a gun available for purchase that resulted in a dangerous activity. It was also argued that they should be held negligent per se. “As to negligence per se, plaintiffs alleged that Navegar violated the Roberti-Roos Assault Weapons Control Act by advertising the TEC-9/DC9 in California and that this advertising ‘was the direct and legal cause in bringing about plaintiffs’ injuries’ because it ‘was a substantial factor in causing Ferri to acquire’ the Navegar weapons he used” (Google Scholar). Navegar filed for a summary judgment arguing in response to the common law negligence claim that they did not have any duty not to advertise the gun, and also that there was no clear evidence that Ferri was affected by their advertisements. Procedure:  The trial court granted the defendant Navegar’s request for summary judgment. The reason was that they found no disputed material issues of fact as to whether their conduct breached a duty of care due, since there is no liability imposed on parties for injuries arising from legally manufacturing firearms. The plaintiffs appealed this decision to the Court of Appeal of California, First District, Division Two. The Court of Appeal reversed the trial court’s decision. The plaintiff then filed for a petition for review so the case went on to be reviewed at the Supreme Court of California.Decision of the Case: The Supreme Court reversed the decision of the Court of Appeals, agreeing with the trial court’s decision to grant a summary judgment because there was no evidence of factual issue. Under the circumstances, the section 1714.4 applies regarding a gun manufacturer’s liability; therefore the plaintiffs could not proceed with their negligence claim. Rationale of the Court: The plaintiffs claimed that Navegar should be liable for common law negligence based on the fact that the TEC gun models have “no legitimate use other than the killing and maiming of human beings, i.e., its potential for harm substantially outweighs any possible benefit to be derived from it.” Navegar claimed that they should not be held liable based on section 1714.4 of the Legislature, which prohibits product liability cases brought on gun manufacturers. “§1714.4(a). Subdivision (b) concludes that the potential of a firearm to cause serious injury, damage, or death when discharged does not make the product defective in design, and that resulting death or injury is proximately caused by the actual discharge of the weapon, not by its potential to cause injury or death. CC §1714.4(b)(1), (2). Thus, absent a claim that the weapon malfunctioned or the manufacturer improperly selected design alternatives (such as trigger placement, for example) (§1714.4(c)), the statute prohibits products liability actions against gun manufacturers” (Imre, 2001). The plaintiff in the case stated that section 1714.4 does not apply to this case since it is not a product liability claim.  Regarding the common law negligence claim, the trial court found that Navegar could not be held liable because under California common law, there is no duty imposed on gun manufacturers “not to manufacture or sell assault weapons.” The court explained that courts in all jurisdictions have refused to impose a duty of care on manufacturers of firearms not to sell there products just because there could be a potential misuse by a third party. Since there was no duty of care imposed, there could be no negligence liability on the duty.In regards to the negligence per se claim, the courts ruled that the plaintiffs evidence presented failed to create a factual  issue as to whether the companies advertisements persuaded Ferri into purchasing the gun or using it for the shooting. The courts said the links that they provided as evidence were merely just guesswork that could not be proven as a fact. As for the strict liability for ultrahazardous activity claim, the courts found that the manufacture and distribution of a firearm is not inherently dangerous. The plaintiffs appealed the decision of the trial court on the claims of common law negligence and strict liability on ultrahazardous activity. The Court of Appeals affirmed the decision of the trial court on the ultrahazardous activity claim; however they did reverse the negligence claim. Even though a manufacturer of guns cannot be negligence solely for the sale of their guns, the majority found that the company should be found negligent based on the fact that they did have a legal duty not to manufacture, market, or distribute the weapon in a way that could increase the risk of harm to society. They felt that “the strength of the evidence that the harm appellants suffered was or should have been foreseeable, the equally strong evidence Navegar’s marketing increased the risk of such harm, and the evidence that there is no legitimate civilian use for the TEC-DC9.” They also found triable factual issues as to causation, as well as in regards to the fact that the company knew, or should have known that the TEC guns were commonly used for illegal purposes, creating a likelihood of harm. Navegar petitioned for review, and the plaintiffs did not, so the only claim being reviewed was the Court of Appeals decision on whether the plaintiffs could proceed with the common law negligence claim.The Supreme Court reviewed the trial court’s decision to issue a summary judgment, which stated that there were no material issues of fact that existed. In court, the burden of proof was shifted to the plaintiff to prove that there were in fact triable issues. “In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action.” (Google Scholar). This meant that in order to continue on with the claim for negligence, the plaintiffs had to prove that Navegar caused their injuries, by breaching on a duty that they owed to the plaintiffs.The plaintiffs tried to show that the causation for the shootings, and subsequent injuries, resulted from Navegar’s manufacturing and distributing the TEC guns, and by making them available to the public. The plaintiffs also based their claims on “Navegar’s promotion of the TEC-9 and glorification of its capabilities.” The courts found that “in light of section 1714.4, plaintiffs may not base negligence liability on materials that simply describe the physical and functional features of the TEC-9/DC9 (i.e., lightweight, inexpensive, high-capacity, nine-millimeter) or its manner of operation” (Google Scholar). There was no evidence presented that proved that the advertising of the gun was the cause of the shootings. There was never even factual evidence that showed that Ferri ever even saw the promotional materials that were sent out to dealers, or that he made the trip to Nevada to purchase the guns in response to any of the company’s marketing. The facts showed that at the gun stores Ferri never asked for that particular gun by name, therefore the courts could not reasonably infer that any promotional materials ultimately influenced Ferri’s decision on his gun purchases. The Supreme Court concluded that they agreed with the trial courts granting of a summary judgment, therefore the plaintiffs would not be able to proceed with their claim against Navegar for negligence.My opinion: I agree with the Supreme Court’s decision to uphold the trial courts granting of a summary judgment. I believe that there are no material facts that prove that Navegar should be liable on the shootings. There were no clear facts that could prove causation, showing that any marketing material persuaded Ferri to purchase that model of gun. The plaintiffs also could not claim that the company should be held negligent solely on the manufacturing or distributing of the gun. I believe that the trial court was correct in their ruling.Works Cited Google Scholar. Web. 18 Feb. 2012. <,48&as_vis=1<. Imre, Christina. "Gunning for Gun Manufacturers: Weapons-Makers Immune From Most Common-Law Negligence Suits." Sedgwick. Nov. 2001. Web. 20 Feb. 2012. <<.