Products Liability Law Daily Wrap Up, TOP STORY—WEAPONS AND FIREARMS—Nev.Sup.Ct.: Nevada’s ‘any firearm’ statutory language protects firearm manufacturers and distributors from liability, (Dec 3, 2021)

By Leah S. Poniatowski, J.D.

En banc state high court answers question raised in federal lawsuit filed by mass shooting victim's family.

In consideration of the whole text of a Nevada statute that provides immunity to firearm manufacturers and distributors, the legislative history of the statute, and the relevant common law, the Nevada Supreme Court held en banc that the statute’s ‘any firearm’ language encompassed illegal firearms in its scope and, thus, the gun companies in an underlying federal lawsuit are immune from the wrongful death and negligence per se claims filed by the family of a victim of a mass shooting. The state high court acknowledged the tragedy of the incident and the “profound public policy issues” it presented and urged the state legislature “to act if it did not mean to provide immunity in situations like this one” (Parsons v. Colt’s Manufacturing Co., December 2, 2021, Pickering, K.).

Background. On October 1, 2017, a mass shooting occurred at the outdoor music event, Route 91 Harvest Festival in Las Vegas, Nevada. The shooter had used bump stocks, which allow continual firing, in a dozen AR-15 rifles. Within ten minutes the shooter had fired over 1,000 rounds, killing 58 people and injuring hundreds of others.

A family of one of the victims filed a lawsuit against the gun manufacturers for wrongful death, negligent entrustment, and negligence per se. Their legal theory was premised on the gun manufacturers’ knowledge that the guns were sold in violation of the federal law preventing sale of machine-guns except as authorized by the government, and a similar Nevada-state statute. The gun companies filed to remove the case to federal court and sought dismissal for failure to state a valid claim, arguing that the federal Protection of Lawful Commerce in Arms Act (PLCAA), 15 U.S.C. §§ 7901-03 (2019), and NRS 41.131 barred the claims as a matter of law.

Prior proceedings. The federal district court dismissed the negligent entrustment and negligence per se claims, but could not resolve the wrongful death claim in the absence of clearly controlling precedent [see Products Liability Law Daily’s May 11, 2020, analysis]. The lower court determined that the PLCAA did not preclude the family’s claim under the “predicate exception” to the statute, but declined to answer whether the family’s claim was within the scope of the Nevada law, NRS 41.131, which provides immunity to gun manufacturers. The lower court sought the Nevada Supreme Court’s guidance on interpreting the state statute as there was no precedent. The state high court certified the three questions presented by the lower court.

Preliminary issue. The state high court explained that the federal district court’s questions have incorporated its conclusion that the family plausibly alleged that the manufacture and sale of the AR-15s violated federal and state laws prohibiting machine guns and, thus, the state high court accepted without independently deciding that the AR-15 rifle may fall into the legal definition of a machine gun.

“Whole text” analysis. The state high court stated that under the “whole-text” canon, the text of the statute at issue “must be construed as a whole.” NRS 41.131 provides:

1. No person has a cause of action against the manufacturer or distributor of any firearm or ammunition merely because the firearm or ammunition was capable of causing serious injury, damage or death, was discharged and proximately caused serious injury, damage or death. This subsection is declaratory and not in derogation of the common law.

2. This section does not affect a cause of action based upon a defect in design or production. The capability of a firearm or ammunition to cause serious injury, damage or death when discharged does not make the product defective in design.

Although the family argued the “merely because” language of the statute would place the gun manufacturer’s alleged fault outside the scope of the statute because it was premised on an action beyond the weapon’s inherent ability to cause harm, the family’s argument required reading the statute to limit immunity to legal firearms. The high court pointed out that at oral argument the family conceded that the statute concerned “any firearm,” which included both legal and illegal firearms. The high court clarified that the “merely because” phrase is not meaningless because design defect and independent acts of negligence are still viable causes of action under the statute.

Legislative history. The high court concluded that the legislative history supports its reading of the statute. In 1985, when it was enacted, it was legal to manufacture, sell, transfer, and possess machine guns in Nevada. These types of weapons were later defined and prohibited by law in subsequent legislation passed in 1986, 1989, and 2003. Although the federal and Nevada legislatures acknowledged the danger of possessing machine guns, the Nevada legislature did not amend or eliminate NRS 41.131 to reflect those other legislative ambits.

Further, state legislative actions preceding and following the passage of NRS 41.131 that prohibit manufacture or sale of certain weapons, including machine guns, have similarly not triggered any change to that statute.

Statutes declaratory. Finally, the statute’s “this subsection is declaratory and not in derogation of the common law” language did not rescue the family’s wrongful death claim because there is no clear common law on the issue. Under canons of statutory construction, this second sentence “serves simply as an interpretive guide, providing that the statute should receive a fair reading, consistent with the common law, not the strict or narrow reading historically given statutes that overturn or derogate from the common law.”

When the statute was passed, there was no common law precedent addressing whether a weapons manufacturer could be liable in tort to a third party caused by criminal misuse of a firearm, nor was much persuasive authority available. The high court pointed out that the issue still is largely uncertain, “as the federal court’s certification order attests.”

The high court turned to the issue of tavern liability for injuries and losses arising from drunk driving, incorporating that body of precedent under NRS 41.131(1)’s reference to case law. The high court noted that the present case similarly concerns “profound and competing” public policies and that the decision to impose private civil liability for the manufacture and distribution of firearms that violate state or federal law is for the legislature, not the judiciary. Consequently, NRS 41.131 provides immunity to gun manufacturers from wrongful death and negligence per claims premised on state law.

The high court grasped the weight of this issue, urging the state legislature “to act if it did not mean to provide immunity in situations like this one.”

The case is No. 81034.

Attorneys: Richard H. Friedman (Friedman Rubin PLLC) and Joshua D. Koskof (Koskoff, Koskoff & Bieder, PC) for James Parsons. John F. Renzulli (Renzulli Law Firm, LLP) and Jay Joseph Schuttert (Evans Fears & Schuttert LLP) for Colt's Manufacturing Co. LLC, Colt Defense LLC, Patriot Ordnance Factory, Christensen Arms, Lewis Machine & Tool Co. and LWRC International LLC. Paul R. Hejmanowski (Hejmanowski & McCrea LLC) for FN America and Discount Firearms and Ammo LLC. Kelly H. Dove (Snell & Wilmer, LLP) for Daniel Defense Inc. and Sportsman's Warehouse. Loren S. Young (Lincoln, Gustafson & Cercos, LLP) for Noveske Rifleworks LLC. Christopher M. Chiafullo (The Chiafullo Group, LLC) for Discount Firearms and Ammo LLC, DF&A Holdings, LLC and Maverick Investments, LP. James B. Vogts (Swanson, Martin & Bell LLP) for Guns and Guitars Inc.

Companies: Colt's Manufacturing Co. LLC; Colt Defense LLC; Patriot Ordnance Factory; Christensen Arms; Lewis Machine & Tool Co.; LWRC International LLC; FN America; Discount Firearms and Ammo LLC; Daniel Defense Inc. and Sportsman's Warehouse; Noveske Rifleworks LLC; Discount Firearms and Ammo LLC; DF&A Holdings, LLC; Maverick Investments, LP; Guns and Guitars Inc.

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