IN THE SUPREME COURT OF THE STATE OF FLORIDA PAMELA GRUNOW, as Personal Representative of the Estate of BARRY GRUNOW, deceased, vs. Petitioner, VALOR CORPORATION OF FLORIDA, a Florida corporation, TALLAHASSEE, FLORIDA Respondents. / CASE NO. SC05-1461 L.T. CASE NO. 4D03-717 AMENDED ANSWER BRIEF OF RESPONDENT ON JURISDICTION On Review from the Fourth District Court of Appeal THOMAS E. WARNER Florida Bar No. 176725 DEAN A. MORANDE Florida Bar No. 807001 CARLTON FIELDS, P.A. Post Office Box 150 West Palm Beach, FL 33402-0150 Attorneys for Respondent, VALOR CORPORATION OF FLORIDA
TABLE OF CONTENTS Page Table of Authorities... ii Statement of the Case and Facts... 1 Summary of Argument... 3 Argument... 3 Conclusion... 7 Certificate of Service... 8 Certificate of Compliance Regarding Type Size and Style... 8 i
TABLE OF AUTHORITIES Cases Page Grunow v. Valor Corporation of Florida, 904 So. 2d 551 (Fla. 4th DCA 2005)...1, 2, 3, 4, 5 Hamilton v. Beretta USA Corp., 750 N.E. 2d 1055 (N.Y. 2001)... 4 Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490 (Fla. 1979)... 3 Hunt v. Blasius, 384 N.E.2d 368 (Ill. 1978)... 4 Husky Indus., Inc. v. Black, 434 So. 2d 988 (Fla. 4th DCA 1983)... 4 Marzullo v. Crosman, 289 F. Supp. 2d 1337 (M.D. Fla. 2003)... 5 McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992)...3, 4, 5, 6 Penelas v. Arms Tech., Inc., 778 So. 2d 1042 (Fla. 3d DCA 2001)... 5 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 1 Shipman v. Jennings Firearms, Inc., 791 F.2d 1532 (11th Cir. 1986)... 5 Trespalacios v. Valor Corp. of Florida, 486 So. 2d 649 (Fla. 3d DCA 1986)... 4, 5 West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80 (Fla. 1976)... 3 ii
STATEMENT OF THE CASE AND FACTS Respondent relies on the facts contained within the four corners of the Fourth District s decision in Grunow v. Valor Corporation of Florida, 904 So. 2d 551 (Fla. 4th DCA 2005). Facts alleged by petitioner not contained within the four corners of the Fourth District s decision should be disregarded. See Reaves v. State, 485 So. 2d 829, 830 & n.3 (Fla. 1986) (stating that only facts appearing within the four corners of the decisions alleged to be in conflict may be considered for jurisdictional purposes). Respondent Valor Corporation of Florida (Valor) is a wholesale distributor of sporting goods, including firearms. Valor does not manufacture firearms and does not add anything to or subtract anything from the finished products. Grunow, 904 So. 2d. at 553. As a wholesale distributor, Valor sells firearms only to federally licensed firearms dealers. Id. In the instant case, Valor legally sold a Raven MP-25 handgun to the Hypoluxo Pawn Shop who, in turn, legally sold the firearm to a man named Herbert Jones. Id. After Jones death, his widow gave the firearm to a friend. Id. Some time later, the friend s grandson, Nathaniel Brazill, took the handgun from his grandfather s bedroom and went to school with the intent to shoot his school counselor. When Brazill was confronted by a teacher, Barry Grunow, 1
Brazill pulled out the gun, aimed it at Grunow s head, fired, and killed him. Brazill was arrested and convicted of second degree murder. Id. Following Brazill s criminal trial, Grunow s widow filed a wrongful death action against several defendants, including Valor. Id. She claimed that Valor, as the wholesale distributor of the handgun used by Brazill, should be liable for failing to implement feasible safety mechanisms such as external locks and/or lock boxes, which could have significantly reduced the potential for unauthorized use by a child and/or in criminal activity. Id. At trial, Valor asserted that it was entitled to a directed verdict because, absent a special relationship to the injured party, the distributor of a product that is neither defective nor unreasonably dangerous has no legal duty to prevent the criminal misuse of its product. The trial court denied Valor s motions and the case was sent to the jury. Id. at 554. The jury found that the handgun was neither defective nor unreasonably dangerous, but found Valor negligent for distributing the firearm without feasible safety measures. Id. at 554. After the verdict, the trial court granted Valor s Motion for Judgment Notwithstanding the Verdict on the grounds that the jury s verdict was inconsistent. Id. at 554. On appeal, the Fourth District decided that the verdict was not inconsistent, but nonetheless affirmed the trial court s order based on its recognition that, absent a special duty to the injured party, Florida law does not 2
impose a duty on a manufacturer or distributor to reasonably distribute a product that is neither defective nor unreasonably dangerous. Id. at 555-56. SUMMARY OF THE ARGUMENT The decision under review, Grunow v. Valor Corporation of Florida, 904 So. 2d 551 (Fla. 4th DCA 2005), does not expressly and directly conflict with McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992). ARGUMENT Petitioner contends that this Court has jurisdiction pursuant to Article V, section 3(b)(3), of the Florida Constitution because the decision under review expressly and directly conflicts with McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992). Petitioner essentially argues that McCain s zone of risk test does away with this Court s established precedent in the area of products liability law, and imposes a duty on a wholesale distributor to prevent the criminal misuse of a product that is neither defective nor unreasonably dangerous. Petitioner fails to recognize that neither McCain nor any of the cases following McCain applied the zone of risk test to impose a duty of reasonable care on a distributor of a product that is not defective or unreasonably dangerous. McCain is not a products liability case and should not be construed in a way that would overrule the wellestablished decisions specifically addressing the area of products liability. 3
This Court has recognized that [a] manufacturer, although liable for injuries caused by a defect in its product, is not an insurer for all physical injuries caused by its product. Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490, 493 (Fla. 1979); see also West v. Caterpillar Tractor Co., Inc., 336 So. 2d 80, 90 (Fla. 1976); Husky Indus., Inc. v. Black, 434 So. 2d 988, 991 (Fla. 4th DCA 1983) ( Products liability does not make the manufacturer an insurer of all foreseeable accidents which involve its product. Virtually any product is capable of producing injury when put to certain uses or misuses.... [T]he availability of an alternative design does not translate into a legal duty in products liability. (quoting Hunt v. Blasius, 384 N.E.2d 368, 372 (Ill. 1978))). In the instant case, the application of McCain to this type of products liability action would subject the distributor of a nondefective product to limitless liability to an indeterminate class of persons for any act of negligence. See Grunow, 904 So. 2d at 556 (quoting Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055 (N.Y. 2001)). Contrary to established Florida law, manufacturers and distributors would become insurers of their products. Applying the general principles of products liability law to the manufacture and distribution of firearms, Florida courts have made it clear that, absent a special relationship to the injured party, a distributor s sole legal duty is to make sure that its product is neither defective nor unreasonably dangerous. Where a distributor has accomplished this goal, it has fulfilled its legal duty and no cause of action can 4
be maintained against a distributor for the negligent distribution of a non-defective firearm. For example, in Trespalacios v. Valor Corp. of Florida, 486 So. 2d 649, 650-51 (Fla. 3d DCA 1986), the Third District affirmed the dismissal of a negligence-based products liability claim against the seller, distributor, and manufacturer of a riot and combat shotgun, stating: For the reasons that the firearm was not defective, that manufacture or distribution of the weapon is not unlawful pursuant to either state law or the federal Gun Control Act of 1968, and that neither the manufacturer nor distributor had a duty to prevent the sale of handguns to persons who are likely to cause harm to the public, there was no duty which had been breached by the manufacturer and distributor so as to support a cause of action based on negligence. Id. at 650-51 (citations omitted). See also Penelas v. Arms Tech., Inc. 778 So. 2d 1042, 1044 (Fla. 3d DCA 2001) (following the rationale from Trespalacios and deciding, among other things, that there is no cause of action in negligence where the firearm at issue was not defective); Shipman v. Jennings Firearms, Inc., 791 F.2d 1532, 1533-34 (11th Cir. 1986) (following the rationale from Trespalacios and holding that, under Florida law, there is no cause of action in negligence against a gun manufacturer who produces and distributes weapons that perform as intended and designed ); Marzullo v. Crosman, 289 F. Supp. 2d 1337, 1343 (M.D. Fla. 2003) (recognizing that, under Florida law, [i]f there is no defect or unreasonably dangerous condition, there can be no [negligence-based] products liability action ). As the Fourth District observed, the rationale from Trespalacios 5
is on point in this case. Grunow, 904 So. 2d at 554-55. As a result, with no special relationship between Valor and Grunow from which a duty could have arisen, Grunow s claim fails as a matter of law. The Fourth District correctly applied Florida s decisional law in concluding that Florida law does not support a products liability action for negligent distribution of a non-defective product. It also correctly recognized that McCain s zone of risk test does not overrule that decisional law and does not create a cause of action against a distributor of a non-defective product. Because the Fourth District properly concluded that McCain s zone of risk test does not apply under the circumstances presented in this case, the decision under review does not expressly and directly conflict with McCain. As a result, this Court does not have express and direct conflict jurisdiction. 6
CONCLUSION The decision under review does not expressly or directly conflict with any decision of either this Court or the district courts of appeal. Accordingly, this Court does not have express and direct conflict jurisdiction and should dismiss the petition for review. Respectfully submitted, /s/ THOMAS E. WARNER Florida Bar No. 176725 DEAN A. MORANDE Florida Bar No. 807001 CARLTON FIELDS, P.A. Post Office Box 150 West Palm Beach, FL 33402-0150 Telephone: (561) 835-8500 Attorneys for Respondent, VALOR CORPORATION OF FLORIDA 7
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was furnished to counsel of record on the attached Service List, by U.S. Mail, postage prepaid this 5 TH day of October, 2005. By: /s/ Thomas E. Warner Attorney for Respondent CERTIFICATE OF COMPLIANCE REGARDING TYPE SIZE AND STYLE I hereby certify that this brief was prepared in Times New Roman, 14-point type font, in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. By: /s/ Thomas E. Warner Attorney for Respondent 8
SERVICE LIST Rebecca Larson, Esq. Robert Montgomery, Jr., Esq. Montgomery & Larson, LLP P.O. Drawer 3086 West Palm Beach, FL 33402 Telephone: (561) 832-2880 Attorneys for Petitioner Robert G. Udell, Esq. 1331 East Ocean Boulevard Stuart, FL 34996 Telephone: (772) 283-9450 Attorneys for Brazill James J. Gallagher, Esq. Law Office of James J. Gallagher First Union Center, Suite 2020 200 East Broward Boulevard Fort Lauderdale, FL 33301 Telephone: (954) 462-1117 Attorneys for Valor Corporation John F. Renzulli, Esq. Renzulli, Pisciotti & Renzuilli, LLP 300 E. 42 nd Street New York, NY 10017 Telephone: (212) 599-5533 Attorneys for Valor Corporation Edna Caruso, Esq. Edna L. Caruso, P.A. 1615 Forum Place Suite 3A, Barristers Building West Palm Beach, FL 33401 Telephone: (561) 686-8081 Attorneys for Petitioner Jonathan Lowy, Esq. Center to Prevent Handgun Violence Legal Action Project 1250 Eye Street, N.W., Suite 802 Washington. D.C. 20005 Telephone: (202) 289-7319 Pro Hac Vice for Plaintiff Robert E. Collier, II, Esq. 499 N.W. 70th Avenue, Suite 106 Plantation, FL 33317 Telephone: (954) 452-9500 Attorneys for Valor Corporation Joel D. Adler, Esq. Marlow Connell Valerius, et al. 4000 Ponce DeLeon Boulevard Suite 570 Miami, FL 33146 Telephone: (305) 446-0500 Attorneys for Valor Corporation WPB#628502.5 10/6/05 9