WEST PALM BEACH, Fla. (Legal Newsline) - Parents of a girl who was killed in the Marjory Stoneman Douglass High School shooting massacre in 2018 must actually sue gun manufacturers to find out whether a state law will compel them to pay defense costs if they lose, an appeals court ruled.
Florida law prohibits most types of lawsuits against gun manufacturers and dealers over the illegal use of their products. Frederick and Jennifer Guttenberg sought a declaratory judgment stating they could go ahead and sue Smith & Wesson and Sunrise Tactical Supply for selling the weapons Nikolas Cruz used on their 14-year-old daughter and 16 other students.
Section 790.331 of the Florida Statutes says the sale of firearms and ammunition “is a lawful activity and is not unreasonably dangerous,” and criminals are solely responsible for injuries from the unlawful use of firearms. The law also prohibits most municipal lawsuits against firearms sellers but allows individuals to sue for injuries stemming from product defects.
Plaintiffs are liable for defense costs if they sue and a court determines the defendant was immune under the statute.
The Guttenbergs argued the statute only applies to government plaintiffs but they didn’t want to test the theory and risk being ordered to pay defense costs if they lost. So they sought a declaratory judgment stating the law doesn’t apply to individuals, or a ruling the law was unconstitutional.
A trial judge dismissed their case, saying it was an impermissible attempt to solicit “legal advice to help them decide whether they should file a suit.” Florida’s Fourth District Court of Appeal, in a Jan. 4 decision, agreed.
Declaratory judgments are a procedure created by statute, the court explained, and there must be an actual court dispute for one to be granted or at the very least the “ripening seeds of controversy” indicating an immediate threat of litigation. Here, the plaintiffs deliberately held off filing a lawsuit until a court could tell them whether they risked financial penalties if they lost, the appeals court said.
“When a claim of unavoidable harm or litigation rests on pure speculation as to what might happen, no ripening seeds of controversy exist, as the complainant is essentially seeking an advisory opinion,” the court concluded.