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LESLIE v. UNITED STATES

December 2, 1997

KATHERINE E. LESLIE, as Administratrix and Administratrix ad Prosequendum of the ESTATE OF ROBERT S. LESLIE, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, CHRISTOPHER GREEN, OLIN CORPORATION and THE SPORTS AUTHORITY, Defendants.



The opinion of the court was delivered by: LIFLAND

 LIFLAND, District Judge

 Presently before the Court are motions by the United States of America to dismiss plaintiffs' complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), and by Olin Corporation and the Sports Authority to dismiss plaintiffs' complaint for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth herein, defendants' motions are granted in their entirety.

 BACKGROUND

 On November 25, 1996, plaintiffs, Katherine E. Leslie, as Administratrix and Administratrix ad Prosequendum of the Estate of Robert S. Leslie, Erika Lomaga, Executrix of the Estate of George P. Lomaga, David Grossman and Karen Abarbanel and Cathy Ann Walensky, Administratrix and Administratrix ad Prosequendum of the Estate of Stanley (Scott) Walensky, Cathy Ann Walensky, individually and as Guardian ad Litem for Eric Walensky, Sherrie Walensky and Susan Walensky (hereinafter collectively the "plaintiffs"), each filed suit against defendants, the United States of America, Christopher Green (hereinafter "Green"), Olin Corporation (hereinafter "Olin") and the Sports Authority (hereinafter collectively the "defendants"). By orders dated April 9, 1997 and August 28, 1997, the Court consolidated plaintiffs' cases. *fn1" Plaintiffs' complaint alleges the following.

 At approximately 4 p.m. on March 21, 1995, Green went to the Montclair Post Office, located in Montclair, New Jersey, with the express purpose and intent to rob the post office and to murder any witness therein. At the time, plaintiffs' decedents were present at the post office, which was operated by the United States Postal Service, an agency of the United States. The United States did not provide security for its postal customers, despite the large amounts of cash, stamps, money orders and other valuable items exchanged there. Green was aware of this lack of security and targeted the post office for that reason. During the course of the robbery, and in order to eliminate witnesses, Green shot and killed Robert Leslie, George Lomaga and Scott Walensky, and seriously injured David Grossman (hereinafter collectively the "victims"). Green shot his victims using a semi-automatic handgun loaded with Winchester Black Talon bullets, which were manufactured by Olin. Green purchased the bullets on November 24, 1995 from the Sports Authority located in Wayne, New Jersey, two days after Olin issued a press release stating it was withdrawing Black Talon bullets from sale to the general public.

 In Counts I and II, plaintiffs allege that the United States was negligent in its failure to provide security and to safeguard its postal customers during a robbery which it knew, or should have known, was likely to occur given the amount of cash and other items of value on hand and the absence of security. Plaintiffs allege that as a direct and proximate cause of such negligence, the victims were caused to suffer great pain and anguish, and severe and multiple bodily injuries resulting in death.

 In Count V, *fn2" plaintiffs allege that Olin manufactured, advertised, distributed and sold Winchester Black Talon bullets which were "defectively designed in such a manner as to open into razor sharp edges and to severely rip through and mutilate body parts of the individual shot by such bullets." Leslie Complaint, at P 20. Plaintiffs allege that the bullets were defective, unreasonably dangerous, unfit and unsuitable for the purposes for which they were intended. Plaintiffs allege that the defectively designed bullets were the proximate cause of the victims' deaths and that Olin is thus strictly liable in tort.

 In Count VII, plaintiffs allege that at the time of Green's purchase of the bullets from the Sports Authority, the Sports Authority knew or should have known of the defect in the bullets because Olin had already withdrawn the bullets from sale to the general public. Plaintiffs allege that the Sports Authority is strictly liable in tort by reason of its sale of the defective bullets which proximately caused the victims' deaths.

 Count VIII alleges that Olin negligently marketed Black Talon bullets by deliberately packaging and marketing the bullets to the public as "ammunition which rips, cuts and destroys organs, tissue and bones in the human body in the same manner as the ripping and cutting action of the talons on a bird." Leslie Complaint, at P 30. Plaintiffs allege that Olin knew or should have known that the advertisements would attract criminals, and that Olin's negligent marketing of the bullets was the proximate cause of the victims' deaths.

 Count IX alleges that Olin negligently failed to recall Black Talon bullets from sale to the general public after Olin knew or had reason to know of the dangerous and defective nature of the bullets, the use of which proximately caused the victims' deaths.

 Count X alleges that the Sports Authority negligently sold the bullets to Green after Olin recalled the bullets from sale to the general public. Plaintiffs allege that the Sports Authority's negligence proximately caused the victims' deaths. *fn3"

 The Instant Motions

 On May 29 and 30, 1997, the United States and Olin, respectively, filed motions to dismiss plaintiffs' action for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). On June 2, 1997, the Sports Authority joined in Olin's motion. *fn4" The United States argues that plaintiffs' claims must be dismissed because the discretionary function exception to the federal Tort Claims Act deprives this Court of subject matter jurisdiction. The United States argues that claims regarding the nature and extent of security at Postal Service facilities are grounded in policy and as such fall within the discretionary function exception to the Federal Tort Claims Act.

 Olin argues that plaintiffs' complaint fails to state any cause of action against Olin or the Sports Authority. First, Olin contends that plaintiffs fail to state a claim for strict products liability under New Jersey law because plaintiffs have failed to state facts establishing that Black Talon bullets are defectively designed within the meaning of N.J. Stat. Ann. 2A: 58C-2. Olin argues that because the bullets functioned exactly as intended, are inherently dangerous and such danger is obvious to the product's user, Olin falls within the scope of the "obvious danger/consumer expectation" defense. Olin also maintains that because Black Talon bullets are incapable of being made safe for their intended use, Olin falls within the scope of the "unavoidably unsafe" defense.

 Olin further argues that plaintiffs' complaint fails to state any cognizable negligence claim against Olin or the Sports Authority. Olin argues that New Jersey law does not recognize a cause of action for either negligent marketing or negligent failure to recall. Olin argues that New Jersey law does not support the imposition of a duty on Olin to protect against criminal misuse of its legally sold product or to refrain from advertising the characteristics of its ammunition. Olin also argues that New Jersey courts will not impose a post-sale duty on a manufacturer of a non-defective product. Olin further contends that Green's intentional shooting, not defendant's marketing or the bullets, was the independent and proximate cause of the victims' injuries.

 STANDARD OF REVIEW

 A motion to dismiss for lack of subject matter jurisdiction attacks the facial validity of the complaint and is ordinarily analyzed pursuant to Fed. R. Civ. P. 12(b)(1). See Fed. R. Civ. P. 12(b)(1); Attallah v. United States, 955 F.2d 776, 782 (1st Cir. 1992) (holding that court lacks subject matter jurisdiction over cases which fall within discretionary function exception to Federal Tort Claims Act). However, where resolution of the jurisdictional question is intertwined with the merits of the action, a court is required to treat the motion as one for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), or as one for summary judgment pursuant to Fed. R. Civ. P. 56. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). The jurisdictional question is intertwined with the merits of the action where the court's subject matter jurisdiction depends upon the same statute which governs the substantive claims in the case. Id.

 A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) serves to test the sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In considering such a motion, a court must accept the allegations of the complaint as true. See Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). A court should not dismiss a complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). While a court must assume the alleged facts are true, it is not proper to assume that a plaintiff can prove facts not alleged. Bishop v. Okidata, Inc., 864 F. Supp. 416, 420 (D.N.J. 1994). A court may, however, consider undisputedly authentic documents attached to the motion papers of either party. Id. at 424 n.10.

 DISCUSSION

 The United States' Motion to Dismiss

 Plaintiffs' claims against the United States are predicated upon the Federal Tort Claims Act (hereinafter the "FTCA"). Because the United States contends that a provision of the FTCA deprives this Court of jurisdiction, the jurisdictional question is intertwined with the merits of plaintiffs' case. Accordingly, the Court will treat the United States' motion as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

 The FTCA waives the sovereign immunity of the federal government with respect to tort claims seeking money damages. See 28 U.S.C. § 1346(b). The discretionary function exception to the FTCA acts as a limitation on that waiver by preserving the United States immunity against claims based upon the exercise of discretionary functions. See 28 U.S.C. § 2680(a). Section 2680(a) provides in pertinent part:

 
The provisions of section 1346(b) of this title shall not apply to--
 
(a) Any claim...based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, ...

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