DocketNumber： No. 2000-1705
Judges： Cook, Douglas, Moyer, Pfeifer, Resnick, Stratton, Sweeney
Filed Date： 6/12/2002
Status： Precedential
Modified Date： 11/13/2024
{¶ 1} On April 28, 1999, plaintiff-appellant, the city of Cincinnati, filed a complaint against fifteen handgun manufacturers, three trade associations, and one handgun distributor, seeking to hold them responsible under nuisance, negligence, and product liability theories of recovery, for the harm caused by the firearms they manufacture, sell, or distribute.
{¶ 2} Rather than file an answer, fifteen of the defendants (“appellees”) moved to dismiss the complaint pursuant to Civ.R. 12(B)(6). The trial court granted the motions to dismiss, finding, inter alia, that (1) the complaint failed to state a cause of action, (2) the claims were barred by the doctrine of remoteness, and (3) appellant could not recoup expenditures for public services. The trial court further ruled that there was no just cause for delay, and appellant appealed. The court of appeals affirmed on similar grounds. The cause is now before this court upon the allowance of a discretionary appeal.
{¶ 3} This case represents one of a growing number of lawsuits brought by municipalities against gun manufacturers and their trade associations to recover damages associated with the costs of firearm violence incurred by the municipalities. There is a difference of opinion as to whether these cases state a viable cause of action. While some courts have allowed this type of case to go forward against a Civ.R. 12(B)(6) motion to dismiss (White v. Smith & Wesson Corp. [N.D. Ohio 2000], 97 F.Supp.2d 816; Boston v. Smith & Wesson Corp. [2000], 12 Mass.L.Rptr. 225, 2000 WL 1473568), other courts have dismissed or upheld the dismissal of similar lawsuits. See, e.g., Philadelphia v. Beretta U.S.A. Corp. (E.D.Pa.2000), 126 F.Supp.2d 882; Camden Cty. Bd. of Chosen Freeholders v. Beretta U.S.A. Corp. (C.A.3, 2001), 273 F.3d 536; Ganim v. Smith & Wesson Corp. (2001), 258 Conn. 313, 780 A.2d 98. After a thorough review of these cases, we agree with those decisions that permit this type of lawsuit to go beyond the pleadings stage. For the reasons that follow, we reverse the judgment of the court of appeals and remand the cause to the trial court.
{¶ 4} The trial court granted appellees’ Civ.R. 12(B)(6) motions to dismiss and the court of appeals affirmed. In determining whether the motions were properly granted, we must decide whether the complaint states a cause of action under Ohio law.
{¶ 5} The standard for determining whether to grant a Civ.R. 12(B)(6) motion is straightforward. In order for a complaint to be dismissed under Civ.R. 12(B)(6) for failure to state a claim, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to relief. O’Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. Furthermore, “[i]n construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party.” Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. We reiterated this view in York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 144, 573 N.E.2d 1063, and further noted that “as long as there is a set of facts, consistent with the plaintiffs complaint, which would allow the plaintiff to recover, the court may not grant a defendant’s motion to dismiss.” Id. at 145, 573 N.E.2d 1063.
{¶ 6} In addressing the sufficiency of the complaint, we will examine each claim separately. In particular, appellant maintains that it has stated viable causes of action for public nuisance, negligence, and product liability.
A. Public Nuisance
{¶ 7} Appellant alleged in its complaint that appellees have created and maintained a public nuisance by manufacturing, marketing, distributing, and selling firearms in ways that unreasonably interfere with the public health, welfare, and safety in Cincinnati and that the residents of Cincinnati have a common right to be free from such conduct. Appellant further alleged that appellees know, or reasonably should know, that their conduct will cause handguns to be used and possessed illegally and that such conduct produces an ongoing nuisance that has a detrimental effect upon the public health, safety, and welfare of the residents of Cincinnati.
{¶ 8} Appellees advance several reasons why the complaint does not state a cause of action for public nuisance. First, appellees maintain that Ohio’s nuisance law does not encompass injuries caused by product design and construction, but instead is limited to actions involving real property or to statutory or regulatory violations involving public health or safety. We disagree. The definition of “public nuisance” in 4 Restatement of the Law 2d, Torts (1965) (“Restatement”) is couched in broad language. According to the Restatement, a
{¶ 9} Moreover, although we have often applied public nuisance law to actions connected to real property or to statutory or regulatory violations involving public health or safety,
{¶ 10} Nor should Franks be interpreted to mean that public-nuisance law cannot cover injuries caused by product design and construction. Instead, we find that under the Restatement’s broad definition, a public-nuisance action can be maintained for injuries caused by a product if the facts establish that the design, manufacturing, marketing, or sale of the product unreasonably interferes with a right common to the general public.
{¶ 11} Even the Supreme Court of Connecticut, in Ganim v. Smith & Wesson Corp., 258 Conn, at 369-370, 780 A.2d 98, while dismissing the lawsuit for lack of standing, acknowledged that the definition of a common-law public nuisance was broad enough to include allegations nearly identical to those in appellant’s complaint. Likewise, in his concurring opinion below, Judge Hildebrandt, in the belief that public nuisance law did not apply to product liability cases, urged this court to revisit the issue, since, in his view “the city should be permitted to bring suit against the manufacturer of a product under a public-nuisance theory, when, as here, the product has allegedly resulted in widespread harm and widespread costs to the city as a whole and to its citizens individually.” See, also, Young v.
{¶ 12} Appellees further argue that they cannot be held liable for the harm alleged because they did not have control over the alleged nuisance at the time of injury. Contrary to appellees’ position, it is not fatal to appellant’s public nuisance claim that appellees did not control the actual firearms at the moment that harm occurred.
{¶ 13} Appellant’s complaint alleged that appellees created a nuisance through their ongoing conduct of marketing, distributing, and selling firearms in a manner that facilitated their flow into the illegal market. Thus, appellant alleged that appellees control the creation and supply of this illegal, secondary market for firearms, not the actual use of the firearms that cause injury. See Boston v. Smith & Wesson, 12 Mass.L.Rptr. 225, 2000 WL 1473568, at * 14. Just as the individuals who fire the guns are held accountable for the injuries sustained, appellees can be held liable for creating the alleged nuisance.
{¶ 14} Appellees also contend that appellant’s nuisance claim cannot go forward because the distribution of firearms is highly regulated and covers “legislatively authorized conduct.” As a result, appellees believe that the nuisance claim was properly dismissed because “[w]hat the law sanctions cannot be held to be a public nuisance.” Mingo Junction v. Sheline (1935), 130 Ohio St. 34, 3 O.O. 78, 196 N.E. 897, paragraph three of the syllabus. Even though there exists a comprehensive regulatory scheme involving the manufacturing, sales, and distribution of firearms, see, e.g., Section 922, Title 18, U.S.Code; Part 178, Title 27, C.F.R., the law does not regulate the distribution practices alleged in the complaint.
{¶ 15} Finally, appellees argue that the public nuisance claim fails because appellant has failed to plead an underlying tort to support either an absolute public nuisance claim based on intentional or ultrahazardous activity or a negligence-based claim of qualified public nuisance.
{¶ 16} Therefore, under these circumstances, we find that appellant has adequately pled its public-nuisance claim and has set forth sufficient facts necessary to overcome appellees’ motion to dismiss.
B. Negligence
{¶ 17} Appellant further alleged in its complaint that appellees were negligent in failing to exercise reasonable care in designing, manufacturing, marketing, advertising, promoting, distributing, supplying, and selling their firearms without ensuring that the firearms were safe for their intended and foreseeable use by consumers. In addition, the complaint alleged that appellees failed to exercise reasonable care to provide a full warning to consumers of the risks associated with firearms.
{¶ 18} In order to maintain a negligence action, the plaintiff must show the existence of a duty, a breach of that duty, and that the breach of that duty proximately caused the plaintiffs injury. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142, 539 N.E.2d 614. The court of appeals in the instant case upheld the dismissal of the negligence claims on the ground that the city could not establish that the defendants owed it any duty. In reaching this conclusion, the court cited Gelbman v. Second Natl. Bank of Warren (1984), 9 Ohio St.3d 77, 9 OBR 280, 458 N.E.2d 1262, and Simpson v. Big Bear Stores Co. (1995), 73 Ohio St.3d 130, 652 N.E.2d 702, for the proposition that a duty to control the conduct of a third party arises only if a “special relationship” exists between the parties. See, also, 2 Restatement, Section 315. Since there was no special relationship, the court of appeals concluded that the defendants owed no duty to appellant.
{¶ 19} The court of appeals misconstrued the nature of appellant’s negligence claims and erred in relying on the above authorities to dismiss those claims for lack of duty. In both Gelbman and Simpson, the issue before this court was whether, based on their status as property owners, the defendants owed a duty to protect persons such as business invitees from the negligence or criminal acts of third parties that occur outside the owner’s property and beyond the owner’s control. In contrast, the negligence issue before us is not whether appellees owe
{¶ 20} The court in Boston v. Smith & Wesson, 12 Mass.L.Rptr. 225, 2000 WL 1473568, understood this distinction. When the gun defendants made a similar argument, that the city’s negligent marketing and distribution claims failed because the defendants did not owe the city any duty to protect it from the criminal acts of third parties, the court stated:
{¶ 21} “Plaintiffs do not allege that Defendants were negligent for failure to protect from harm but that Defendants engaged in conduct the foreseeable result of which was to cause harm to Plaintiffs. * * *
{¶ 22} “Taking Plaintiffs’ allegations as true, Defendants have engaged in affirmative acts (i.e., creating an illegal, secondary firearms market) by failing to exercise adequate control over the distribution of their firearms. Thus, it is affirmative conduct that is alleged — the creation of the illegal, secondary firearms market. The method by which Defendants created this market, it is alleged, is by designing or selling firearms without regard to the likelihood the firearms would be placed in the hands of juveniles, felons or others not permitted to use firearms in Boston. * * * Taken as true, these facts suffice to allege that Defendants’ conduct unreasonably exposed Plaintiffs to a risk of harm. Worded differently, the Plaintiffs were, from Defendants’ perspective, foreseeable plaintiffs. Thus, the court need not decide whether Defendants owed a duty greater than the basic duty.” (Footnotes omitted.) 12 Mass.L.Rptr. 225, 2000 WL 1473568, at * 15.
{¶ 23} The court in White v. Smith & Wesson, 97 F.Supp.2d 816, also applied straight negligence principles. In allowing plaintiffs’ negligence claims to survive a Civ.R. 12(B)(6) motion to dismiss, the court noted, “It cannot be said, as a matter of law, that Defendants are free from negligence because they do not owe Plaintiffs a duty of care. It is now, unfortunately, the common American experience that firearms in the hands of children or other unauthorized users can create grave injury to themselves and others, thus creating harm to municipalities through physical and economic injury. It is often for a jury to decide whether a plaintiff falls within the range of a defendant’s duty of care and whether that duty was fulfilled. * * * In this matter, the question is whether a reasonably prudent gun manufacturer should have anticipated an injury to the Plaintiffs as a probable result of manufacturing, marketing, and distributing a product with an alleged negligent design.”
{¶ 25} We agree with the rationale employed by these courts and similarly conclude that appellant has alleged a cause of action in negligence. Therefore, we find that the court of appeals erred in upholding the dismissal of the negligence counts.
C. Product Liability
{¶ 26} Appellant also seeks recovery under two products liability theories, for defective design and failure to warn. In its complaint, appellant alleged that the guns manufactured or supplied by appellees were defective because they do not incorporate feasible safety devices that would prevent unauthorized use and foreseeable injuries. As to the cause of action for failure to warn, appellant alleged that appellees manufactured or supplied guns without adequate warning of their dangerousness or instruction as to their use.
{¶ 27} The court of appeals upheld the dismissal of these claims, finding that the complaint was deficient because it did not allege with specificity “a single defective condition in a particular model of gun at the time it left its particular manufacturer.” Furthermore, the court held that the city could not bring its claims under the Product Liability Act, R.C. 2307.71 et seq., because it could prove no harm to itself. Nor could it recover economic loss alone under the Act, citing R.C. 2307.71(B) and (G), 2307.79, and LaPuma v. Collinwood Concrete (1996), 75 Ohio St.3d 64, 661 N.E.2d 714, syllabus. In his concurring opinion, Judge Painter stated his belief that had the claims not been barred by remoteness, the product liability claims remained viable causes of action under the common law. Judge Painter also said that he disagreed “with the majority’s conclusion that the city’s products-liability claims fail because the city’s complaint did not allege particular guns or defective conditions that caused direct injuries.
{¶ 28} “Notice pleading is still the law, and the city clearly alleged that each defendant has manufactured defective products by failing to implement alternative safety designs. That was enough to give the manufacturers fair notice of the claims against them.”
{¶ 29} We agree with the reasoning of Judge Painter’s concurring opinion. Contrary to the appellate court’s majority opinion, since Ohio is a notice-pleading state, Ohio law does not ordinarily require a plaintiff to plead operative facts with
{¶ 30} Nevertheless, appellant is precluded from bringing its statutory product liability claims. Under the Product Liability Act, a claimant (including a governmental entity) cannot recover economic damages alone. Instead, in order to fall within the purview of the Act, and to be considered a “product liability claim” under R.C. 2307.71(M), the complaint must allege damages other than economic ones. LaPuma v. Collinwood Concrete (1996), 75 Ohio St.3d 64, 661 N.E.2d 714, syllabus.
{¶ 31} However, the failure to allege other than economic damages does not necessarily destroy the right to pursue common-law product liability claims. Id. at syllabus. In Carrel v. Allied Prods. Corp. (1997), 78 Ohio St.3d 284, 677 N.E.2d 795, paragraph one of the syllabus, we held, “The common-law action of negligent design survives the enactment of the Ohio Products Liability Act, R.C. 2307.71 et seq.” Therefore, although appellant is precluded from asserting its claims under Ohio’s Product Liability Act, it can still assert its common-law negligent design claims. At common law, a product is defective in design “if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or if the benefits of the challenged design do not outweigh the risk inherent in such design.” Knitz v. Minster
{¶ 32} We likewise find that appellant can bring a common-law failure-to-warn claim. Under the rationale espoused in Carrel v. Allied Prods. Corp., supra, the statute does not clearly state that it intended R.C. 2307.76, the failure-to-warn statute, to supersede the common-law action. Id., 78 Ohio St.3d at 288, 677 N.E.2d 795. Thus, the common-law failure-to-warn claim survives the enactment of Ohio’s Product Liability Act, R.C. 2307.71 et seq.
{¶ 33} To recover under a failure-to-warn theory at common law, the plaintiff must prove that the manufacturer knew or should have known, in the exercise of reasonable care, of the risk or hazard about which it failed to warn and that the manufacturer failed to take precautions that a reasonable person would take in presenting the product to the public. Crislip v. TCH Liquidating Co. (1990), 52 Ohio St.3d 251, 257, 556 N.E.2d 1177.
{¶ 34} The court of appeals reasoned that the failure-to-warn claim could not go forward because the defendants owe no duty to warn of the dangers associated with firearms, which are open and obvious dangers. Although, in general, the dangers associated with firearms are open and obvious, appellant has alleged sufficient facts in its complaint to overcome a motion to dismiss. As pointed out by Judge Painter’s concurrence, some of the allegations involve risks that are not open and obvious, such as the fact that a semiautomatic gun can hold a bullet even when the ammunition magazine is empty or removed. Therefore, since appellant properly alleges failure to warn, this claim withstands a motion to dismiss. See, also, White v. Smith & Wesson, 97 F.Supp.2d at 827-828, where the court refused to hold as a matter of law that the use of handguns involved an “open and obvious risk.”
II. Remoteness
{¶ 35} Appellees maintain that even if appellant could establish any of the elements of the individual torts it alleged, the injuries to the city are still too
{¶ 36} Remoteness is not an independent legal doctrine but is instead related to the issues of proximate causation or standing. White, 97 F.Supp.2d at 823; Boston v. Smith & Wesson Corp., 12 Mass.L.Rptr. 225, 2000 WL 1473568, at * 4, fn. 20. Thus, a complaint will fail on remoteness grounds if the harm alleged is the remote consequence of the defendant’s misconduct (causation) or is wholly derivative of the harm suffered by a third party (standing).
{¶ 37} In Holmes v. Securities Investor Protection Corp. (1992), 503 U.S. 258, 112 S.Ct. 1311, 117 L.Ed.2d 532, the United States Supreme Court discussed remoteness and stated that, at least in some cases at common law, there must be “some direct relation between the injury asserted and the injurious conduct alleged.” Id. at 268, 112 S.Ct. 1311, 117 L.Ed.2d 532. Thus, “a plaintiff who complained of harm flowing merely from the misfortunes visited upon a third person by the defendant’s acts was generally said to stand at too remote a distance to recover.” Id. at 268-269, 112 S.Ct. 1311, 117 L.Ed.2d 532, citing 1 Sutherland, Law of Damages (1882) 55-56. In Holmes, the court explained why directness of relationship is a requirement of causation: (1) indirectness adds to the difficulty in determining which of the plaintiffs damages can be attributed to the defendant’s misconduct, (2) recognizing the claims of the indirectly injured would complicate the apportionment of damages among plaintiffs to avoid multiple recoveries, and (3) these complications are unwarranted given the availability of other parties who are directly injured and who can remedy the harm without these associated problems. Id. at 269-270, 112 S.Ct. 1311, 117 L.Ed.2d 532.
{¶ 38} In applying these factors to handgun litigation, the courts have taken divergent positions. While some courts have found that remoteness bars recovery (see, e.g., Ganim v. Smith & Wesson Corp., 258 Conn. 313, 780 A.2d 98, using the “standing” aspect of remoteness), the courts in White v. Smith & Wesson, 97 F.Supp.2d 816, and in Boston v. Smith & Wesson, 12 Mass.L.Rptr. 225, 2000 WL 1473568, have rejected the remoteness argument. In White, for instance, the court concluded that remoteness did not deprive the city and the mayor of standing to sue the gun manufacturers and trade associations, since the plaintiffs were “asserting their own rights and interests and, while their claims would impact the health and safety of others, their claims are not based on the rights of others, but rather the rights of the City to sue for the harm and economic losses it has incurred, as well as their claims of unjust enrichment and nuisance abatement.” Id. at 825.
{¶ 40} We agree with the reasoning espoused in White and Boston. The complaint in this case alleged that as a direct result of the misconduct of appellees, appellant has suffered “actual injury and damages including, but not limited to, significant expenses for police, emergency, health, prosecution, corrections and other services.”
{¶ 41} Under the Civ.R. 12(B)(6) standard, we must presume that all factual allegations are true. See Warth v. Seldin (1975), 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343, where the United States Supreme Court held that when standing is challenged on a motion to dismiss, the allegations must be construed as if true. Therefore, in taking the allegations in the complaint as true, we find that the alleged harms are direct injuries to appellant, and that such harms are not so remote or indirect as to preclude recovery by appellant as a matter of law.
{¶ 42} With regard to whether causation is too remote in this case, we turn to the three factors outlined in Holmes, 503 U.S. at 269-270, 112 S.Ct. 1311, 117 L.Ed.2d 532. The first concern, difficulty of proof, is minimal in this case, since appellant is seeking recovery, in part, for police expenditures and property repairs, which can be easily computed. Under the second factor, there is little risk of double recovery, since appellant is seeking recovery for injuries to itself only. Finally, no other person is available to bring suit against appellees for these damages. Under the third factor, Holmes asks whether “the general interest in deterring injurious conduct” will be better served by requiring that suit be brought by more directly injured victims. Id., 503 U.S. at 269, 112 S.Ct. 1311, 117 L.Ed.2d 532. Although appellant is indirectly attempting to protect its citizens from the alleged misconduct by the gun manufacturers and trade associations, appellant is seeking recovery for its own harm. Under these circumstances, the general interest will be best served by having this plaintiff bring this lawsuit. We believe that appellant can withstand scrutiny under the
III. Recoupment of Cost of Governmental Services
{¶ 43} Appellant alleged in its complaint that due to the misconduct of appellees, it has sustained damages, including “significant expenses for police, emergency, health, corrections, prosecution and other services.” Appellees contend that the cost of these public services is nonrecoverable, since these are services the city is under a duty to provide.
{¶ 44} For support, appellees rely in part on Flagstaff v. Atchison, Topeka & Santa Fe Ry. Co. (C.A.9, 1983), 719 F.2d 322, a case in which the city sought to recoup police, fire, and other expenses associated with protecting the public from a petroleum gas spill arising from a train derailment. In that case, the court stated that “the cost of public services for protection from fire or safety hazards is to be borne by the public as a whole, not assessed against the tortfeasor whose negligence creates the need for the service. Where such services are provided by the government and the costs are spread by taxes, the tortfeasor does not expect a demand for reimbursement.” • (Citation omitted.) Id. at 323. The court of appeals accepted this position and held that a municipality may not recover for expenditures for ordinary public services that it has the duty to provide.
{¶ 45} Although a municipality cannot reasonably expect to recover the costs of city services whenever a tortfeasor causes harm to the public, it should be allowed to argue that it may recover such damages in this type of case. Unlike the train derailment that occurred in the Flagstaff case, which was a single, discrete incident requiring a single emergency response, the misconduct alleged in this case is ongoing and persistent. The continuing nature of the misconduct may justify the recoupment of such governmental costs. Therefore, if appellant can prove all the elements of the alleged torts, it should be able to recover the damages flowing from appellees’ misconduct. Moreover, even the Flagstaff court recognized that recovery by a governmental entity is allowed “where the acts of a private party create a public nuisance which the government seeks to abate.” Flagstaff, 719 F.2d at 324. We therefore reject the court of appeals’ holding that appellant cannot recover its governmental costs.
IV. Constitutional Arguments
{¶ 46} Appellees further argue that appellant is attempting to regulate a national firearms industry and, therefore, its claims are barred under the Commerce Clause and the Due Process Clause of the United States Constitution.
{¶ 47} The Commerce Clause “ ‘precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State.’ ” Healy v. Beer Inst. (1989), 491 U.S.
{¶ 48} Appellees’ reliance on the BMW decision is misplaced. In finding a Commerce Clause violation in BMW, the court reasoned that Alabama could not impose punitive damages on BMW where the alleged misconduct (repainting a new car without notifying the dealer or purchaser) arose outside Alabama and did not affect Alabama residents. The court’s rationale was that “a State may not impose economic sanctions on violators of its laws with the intent of changing the tortfeasors’ lawful conduct in other States.” Id. at 572, 116 S.Ct. 1589, 134 L.Ed.2d 809. Thus, Alabama could not “punish BMW for conduct that was lawful where it occurred and that had no impact on its residents.” Id. at 573, 116 S.Ct. 1589, 134 L.Ed.2d 809.
{¶ 49} Appellant’s complaint seeks injunctive relief to enjoin appellees from continuing to engage in what appellant considers to be the unlawful manufacture, marketing, and distribution of unsafe handguns. Although the injunctive relief sought may affect out-of-state conduct, we reject appellees’ argument that such relief would violate the Commerce Clause. Unlike the BMW case, which involved an excessive punitive damages award intended to change a tortfeasor’s lawful conduct in states outside Alabama, in this case, the alleged harm, which may or may not call for punitive damages, directly affects the residents of Cincinnati. Thus, the fact that appellant’s claims implicate the national firearms trade does not mean that the requested relief would violate the Commerce Clause. See White v. Smith & Wesson, 97 F.Supp.2d at 830, which likewise found no Commerce Clause violation.
{¶ 50} We find no impediment in the Due Process or Commerce Clause that requires dismissal of this lawsuit.
V. Conclusion
{¶ 51} In conclusion, we find that the court of appeals erred in upholding the dismissal of the complaint, since sufficient facts have been alleged to withstand scrutiny under Civ.R. 12(B)(6). Reversal of the judgment, however, does not mean that appellant will prevail upon remand. What it does mean is that appellant has alleged the facts necessary to withstand a motion to dismiss and will now have the opportunity to pursue its claims. While we do not predict the outcome of this case, we would be remiss if we did not recognize the importance
{¶ 52} Accordingly, for the above reasons, we reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings consistent with this decision.
Judgment reversed and cause remanded.
. The lawsuit originally alleged other theories of liability, including fraud, negligent misrepresentation, unfair and deceptive advertising, and unjust enrichment. However, since appellant does not contest the dismissal of these counts, we decline to address these issues.
. The named defendants are Beretta U.S.A. Corp., Bryco Arms, Inc., Colt’s Manufacturing Co., Inc., Davis Industries, Fabbrica d’Armi Pietro Beretta Sp.A., Forjas Taurus, S.A., H & R 1871, Inc., B.L. Jennings, Inc., MKS Supply, Inc., Lorcin Engineering Co., Inc., North America Arms, Inc., Phoenix Arms, Raven Arms, Inc., Smith & Wesson Corp., Sturm & Ruger Co., Inc., Taurus International Manufacturing, Inc., American Shooting Sports Coalition, Inc., National Shooting Sports Foundation, Inc., and Sporting Arms and Ammunition Manufacturers Institute, Inc. Of these defendants, only Davis Industries, Fabbrica d’Armi Pietro Beretta Sp.A., Forjas Taurus, S.A., and Raven Arms, Inc. did not move to dismiss.
. See, e.g., Mansfield v. Balliett (1902), 65 Ohio St. 451, 467, 63 N.E. 86 (pollution of stream on plaintiffs property due to defendant municipality’s discharge of sewage downstream constitutes a nuisance).
. A nuisance can be further classified as an absolute nuisance (nuisance per se) or as a qualified nuisance. Taylor v. Cincinnati (1944), 143 Ohio St. 426, 28 O.O. 369, 55 N.E.2d 724, paragraphs two and three of the syllabus. With an absolute nuisance, the wrongful act is either intentional or unlawful and strict liability attaches notwithstanding the absence of fault because of the hazards involved (Metzger v. Pennsylvania, Ohio & Detroit RR. Co. [1946], 146 Ohio St. 406, 32 O.O. 450, 66 N.E.2d 203, paragraph one of the syllabus), whereas a qualified nuisance involves a lawful act “so
. In York v. Ohio State Hwy. Patrol (1991), 60 Ohio St.3d 143, 573 N.E.2d 1063, we stated that only in a few circumscribed types of cases, such as a workplace intentional tort or a negligent-hiring claim against a religious institution, do we require that the plaintiff plead operative facts with particularity. Id. at 145, 573 N.E.2d at 1065.
. A claimant can recover economic losses only after first establishing that it can recover compensatory damages for harm from a manufacturer or supplier. R.C. 2307.79. “Harm” is defined as “death, physical injury to person, serious emotional distress, or physical damage to property other than the product in question. Economic loss is not ‘harm.’ ” R.C. 2307.71(G). Since appellant did not allege that it suffered harm within the meaning of the Act, it cannot recover for economic loss under R.C. 2307.79.
. According to appellant, the feasible safety features include internal locking devices to “personalize” guns to prevent unauthorized users from firing them, chamber-loaded indicators to indicate that a round is in the chamber, and magazine-disconnect safeties that prevent guns from firing when the magazine is removed. On March 17, 2000, Smith & Wesson announced a settlement agreement with various cities, state attorneys general, and the Department of Housing and Urban Development, in which it agreed to change its distribution practices and implement certain safety devices. See Dao, Under Legal Siege, Gun Maker Agrees to Accept Curbs, New York Times (Mar. 18, 2000), at Al.