Two Years After the Oregon District Shooting, Dayton Families Turn to the Civil Courts

Published August 19, 2021 · Verdicts & Settlements

Two weeks ago, on August 4, Dayton marked two years since the shooting in the Oregon District. Nine people were killed and many more were wounded in well under a minute before Dayton police officers ended the attack. Everyone in this city remembers where they were when they heard.

Just before that anniversary, several of the families announced that they had gone to court. They are not suing the gunman, who died that night. They have sued the company that made the 100-round drum magazine he used. This post reports what the news coverage says about the lawsuit and explains, in plain terms, how civil claims like this one work and why they matter to families even when there will never be a criminal trial.

What the families filed

According to WHIO, the lawsuit was filed on August 1, 2021, in the district court in Clark County, Nevada, against Kyung Chang Industry USA, Inc. (KCI) and its related South Korean company. WHIO reported that KCI made and sold the 100-round magazine used in the shooting, and News 5 Cleveland described the defendant as a Nevada-based manufacturer.

As reported by WHIO, the plaintiffs include the families of four of the nine people killed, Derrick Fudge, Lois Oglesby, Logan Turner, and Beatrice Warren-Curtis, along with Dion Green, Mr. Fudge's son, who survived the shooting, and LaSandra James, Ms. Oglesby's mother. WHIO described the 74-page complaint as a civil wrongful-death action based on alleged negligence, and Spectrum News 1 reported that the claims include negligence, negligent entrustment, and public nuisance.

The families are seeking money damages and, according to WHIO, a court order stopping KCI from making and selling 100-round magazines "without reasonable safeguards to prevent their misuse." News 5 Cleveland reported that their lawyers said the suit is not an attempt to outlaw the magazines. The families are represented by Ben Cooper of the Columbus firm Cooper Elliott and by Jonathan Lowy of Brady, a national gun-violence prevention organization, according to WHIO and Spectrum News 1. Each outlet reported that the company had not responded to requests for comment.

Mr. Green told WHIO, "I'm going to be the voice for the voiceless."

The case has just been filed. No court has ruled on anything, and the company has not yet answered in court. Our office is not involved in it.

Why sue anyone when the shooter is dead?

Families are often told there is "no one to sue" after a crime when the person who pulled the trigger is dead, broke, or in prison. That is frequently wrong. Civil law asks a different question than criminal law. A criminal case asks whether one person is guilty. A civil case asks whether anyone whose carelessness contributed to the harm should answer for it, and it is the families, not the state, who bring it.

In Ohio, a death caused by another's wrongful act gives rise to a wrongful-death claim under R.C. 2125.02. The claim is brought by the personal representative of the person who died, for the benefit of the surviving spouse, children, parents, and other next of kin. Damages can include lost financial support, lost services, the loss of the person's companionship and guidance, and the mental anguish of the survivors. Our guide chapter on what your case is worth explains those categories, and how a separate survival claim covers what the person suffered before death.

The timing of this filing is not a coincidence. Ohio's wrongful-death statute generally requires the action to be filed within two years after the death, which is one reason families in any fatal case should not wait for criminal proceedings, investigations, or anniversaries to pass. Deadlines and the Timeline of an Ohio Injury Case lays out the clocks that apply to different claims.

The legal theories in plain English

Based on the reporting, the families' claims rest on familiar civil-law ideas applied to an unfamiliar defendant:

• Negligence. A company that makes and sells a product must use reasonable care, including care in how it markets and sells it. The families allege that selling and marketing 100-round magazines the way KCI did was unreasonable.
• Negligent entrustment. This is the claim that someone supplied a dangerous item to a person it knew, or should have known, was likely to misuse it. Ohio courts recognize the same idea when an owner lends a car to a driver he knows is dangerous.
• Public nuisance. A public nuisance is conduct that unreasonably interferes with the public's health and safety. Families who bring this claim usually seek a court order changing the defendant's conduct, not just money, which matches the injunction reported here.

The federal hurdle

Any suit against the firearms industry runs into the Protection of Lawful Commerce in Arms Act, a 2005 federal law. In general terms, it bars a "qualified civil liability action" against manufacturers and sellers of firearms, ammunition, and their component parts for harm caused by someone else's criminal misuse of the product. 15 U.S.C. 7903.

The law has exceptions written into it, including claims against a seller for negligent entrustment and claims where a manufacturer or seller knowingly violated a statute applicable to the sale or marketing of the product and that violation contributed to the harm. Spectrum News 1 reported that a legal analyst expects KCI to rely on the federal law but described it as something less than blanket immunity, with marketing-based theories one possible route around it. How that question is resolved will be for the Nevada court.

Other paths for shooting victims

Most shootings do not involve a national manufacturer. For victims and families in the Dayton area, civil claims more often run against:

• Property owners and businesses that ignored known security problems, the negligent-security theory;
• The shooter personally, including through Ohio's civil remedy for injuries caused by a criminal act, which does not require a conviction, as discussed in our post on Buddenberg v. Weisdack;
• Insurance policies that may cover a negligent party's conduct even when they exclude intentional acts.

Earlier this year we wrote about Ohio's new stand-your-ground and nonprofit-immunity law, which changed some of the rules for shootings at churches, clubs, and charity events. Each of these cases turns on its own facts.

What this means for you

If you lost someone to violence, or were injured yourself, the criminal case is not the only path to accountability, and sometimes there is no criminal case at all. A civil claim can reach parties whose carelessness made the harm possible, and it can provide for children and spouses who lost a provider. Those claims have deadlines, and the evidence that supports them, security video, purchase records, prior complaints, fades quickly.

Our wrongful death practice includes claims arising from violent crime, handled with the care these cases deserve.