Vesely v Armslist LLC (2013) H&FLR 2014-10

United States District Court (N.D. Illinois)

29 July 2013

Coram: Norgle J

Appearing for the Plaintiff: Jonathan Lowy and Lindsey Merikas (Brady Center to Prevent Gun Violence) and Jay Dobrutsky and Alexander Marks (Burke, Warren, MacKay & Serritella)
Appearing for the DefendantAndrew Lothson and James Vogts (Swanson Martin & Bell LLP)

Catchwords: Illinois – firearm – illegally purchased – advertisement – website – wrongful death – negligence – public policy – duty – foreseeability

Facts: On 13 April 2011 Demetry Smirnov (a resident of Canada) killed Jitka Vesely in Illinois using a firearm he had purchased illegally from a third party in Washington State. The firearm had been advertised for sale on, a website operated by the defendant (a company registered in Oklahoma).

The plaintiff sought compensation from the defendant for wrongful death on the basis of negligence, as well as for the deceased’s pain and suffering pre-death, and for the deceased’s family’s costs associated with his funeral and burial. In particular, it was alleged that public policy required the court to recognise that the defendant owed a duty to the public at large, and that the defendant had negligently designed its website so that firearms could be sold illegally to dangerous people..

The defendant sought to have the claim dismissed on the grounds that it did not owe any duty to the deceased.

Held: dismissing the claim –

(1) A claim under Illinois’ Wrongful death Act requires the plaintiff to demonstrate that (a) the defendant owed a duty to the deceased; (b) that the duty was breached; (c) that the breach proximately caused the death; and (d) financial loss was caused to certain categories of people identified in the act.

Lough v BNSF Railway Co., 988 NE.2d 1090 (Ill. App. Ct. 2013), applied.

(2) In considering whether public policy requires a duty to exist a court should consider the reasonable foreseeability and likelihood of the injury, the burden to be imposed in preventing it and the consequences of so burdening a defendant.

Chicago v Beretta USA Corp., 821 NE.2d 1099 (Ill. 2004), applied.

(3) In this case it was relevant to the question of foreseeability that the defendant’s website was not involved in the sale or delivery of the firearms advertised on its website. Crimes by third parties who used the website to buy and sell firearms illegaly were not reasonably foreseeable. Further, requiring the defendant to alter its mode of business to prevent unlawful sales would impose an effectively business-ending burden on it.

Pavlides v Niles Gun Show, Inc., 93 Ohio App.3d 46, 637 N.E.2d 404 (Ohio App. Ct. 1994), distinguished


The Court’s judgment is available here.

An appeal has been lodged.