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The gun industry has won the latest round in the litigation between it and more than two dozen cities across the country. A panel of the Ohio Court of Appeals, 1st District, affirming a trial court’s ruling, has dismissed Cincinnati’s suit against gun makers and firearms associations for reimbursement for police, medical and other municipal services provided as a result of negligence in the design and safety features of guns. City of Cincinnati v. Beretta U.S.A. Corp., nos. C-990729, C-990814, C-990815. About 30 cities have brought more than 20 suits against gun manufacturers. The Cincinnati case is the first ruling by an appellate court. The other cases have been split among the lower courts. In Cincinnati, Judge Ralph Winkler found that the causation, duty and costs caused by violence from guns were not the responsibility of the manufacturers. “Knives are sharp, bowling balls are heavy, bullets cause puncture wounds in flesh. The law has long recognized that obvious dangers are an excluded class,” he wrote. “Were we to decide otherwise, we would open a Pandora’s box.” A ‘GUIDING LIGHT’ Thomas Fennell of the Dallas office of Jones, Day, Reavis & Pogue, who represented Colt Manufacturing Co. Inc. and was part of the defense team, said that he expects the opinion to “be a guiding light, not just in Ohio, but in other states.” He pointed to the judge’s holdings on two points in particular — the issues of remoteness and of municipal costs — as being significant in their applicability to other cases nationally. Winkler said that the doctrine of remoteness bars recovery for indirect harm suffered as a result of the injuries directly sustained by another person. He likened the cities’ claims to the union benefit funds suits brought against tobacco companies, which have been rejected by many courts. Finding that the city’s claims were clearly contingent on a third party and thus indirect, he wrote, “Attempting to allocate these costs to a gun manufacturer, as opposed to, for example, a knife manufacturer, would be ludicrous.” Although the three judges were unanimous in their affirmation, they differed in their interpretation of the law. Judge Mark P. Painter, who concurred in judgment only, wrote in a separate opinion that the issue of remoteness was strong enough to dismiss the case but that Winkler’s opinion went too far, misstating the law on other points. Fennell also pointed to the judges’ findings on the municipal costs claim, which state that the city of Cincinnati could not pass on to the gun manufacturers the costs of municipal services it has a duty to provide. Recognizing the issue as a public-policy consideration, he quoted from case law, which found that a shift in burden would be a legislative duty rather than a judicial one. Stanley Chesley of Cincinnati’s Waite, Schneider, Bayless & Chesley Co., who represented the city, said that he plans to appeal to the Ohio Supreme Court. He said that he is optimistic because although the third judge on the panel, Lee H. Hilderbrandt Jr., concurred, he stated in a separate opinion that Ohio’s high court should revisit the applicability of public-nuisance law to products liability cases. Chesley also noted that in federal court, the city of Cleveland beat back the gun manufacturers’ motion to dismiss on the same claims.

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