By Georgia D. Koutouzos, J.D.
Strict liability manufacturing defect, design defect, and failure to warn claims survived manufacturer’s summary judgment motion, but not negligent design claim.
Claims by a former SWAT team member who had sustained serious injury when a door-breaching round that should have disintegrated upon striking its target instead ricocheted and lodged in his spine largely survived the manufacturer’s motion for summary judgment, an Illinois federal court determined, nevertheless granting the company’s motion on a negligent design claim because the injured man offered no evidence that would allow the court to engage in a meaningful balancing test to determine whether the ammunition manufacturer acted reasonably in designing the breaching round (Hakim v. Safariland, LLC, October 18, 2019, Durkin, T.).
While participating in door-breaching training, a then-member of a northern Illinois county police force SWAT team was injured when he was struck by a Safariland Def -Tech TKO breaching round fired by a fellow team member. TKO breaching rounds are translucent shotgun shells loaded with compressed zinc powder that are designed to disintegrate into a fine powder upon impact with a target such as a door lock, hinge, dead bolt, or safety chain. In the training exercise, the round struck the back-bottom edge of the SWAT team officer’s body armor, dented the armor, deflected at a downward angle, and lodged in his spine.
The former officer filed suit against the ammunition maker in Illinois federal court, alleging strict liability and negligence claims for manufacturing defect, design defect, and failure to warn. Safariland moved for summary judgment on all claims, arguing that summary judgment in its favor was warranted because the injured man did not establish that an alternative design was available or that the purportedly dissolving round failed to conform with industry standards.
Manufacturing defect. Although the company had nominally moved for summary judgment on all claims, it did not address the consumer-expectation test, which is the governing standard for determining whether a product is unreasonably dangerous for purposes of strict liability–manufacturing defect claims in Illinois. While the injured man did not provide direct evidence of a specific defect in the at-issue breaching round, that failure was not fatal to his claim. Therefore, because Safariland did not raise any arguments addressing the former officer’s strict liability–manufacturing defect claim, the company’s motion for summary judgment on that cause of action was denied.
Design defect. In relevant case precedent, the Illinois Supreme Court specifically rejected Safariland’s argument that summary judgment was proper on the injury victim’s strict liability–design defect claim because he did not establish that an alternative design was available or that the at-issue dissolving round had failed to conform with industry standards. Rather than pursuing a risk-utility method of proof (under which alternative design is a factor), the plaintiff was proceeding under the consumer-expectation test, under which the single question for the jury is whether the product is unsafe when put to a use that is reasonably foreseeable considering its nature and function.
Thus, the salient question was whether the round that injured the former officer failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Ordinary consumers of breaching rounds are law enforcement agencies and personnel, and the rounds are designed at least in part to minimize the risk of harm to people who may be on the other side of the door being breached. Thus, it would defeat the very purpose of purchasing such ammunition if those rounds did not dissolve upon striking a metal door hinge.
In the instant case, the injured man produced both expert and eyewitness testimony to support his assertion that the breaching round did not disintegrate when his fellow officer’s shot hit the metal hinge but, instead, bounced off, traveled through the floorboard, and struck him. In that regard, the former officer produced enough evidence for a reasonable jury to find that the breaching round failed to perform as safely as an ordinary consumer would expect; therefore, Safariland’s motion for summary judgment on the design defect claim also was denied.
Failure to warn. In an apparent attempt to argue that the danger of firing breaching rounds is open and obvious, Safariland maintained that the injury victim was an experienced law enforcement officer who knew that breaching rounds could cause serious injury. However, the injured man’s claim was not that Safariland failed to warn that it is dangerous to shoot breaching rounds. Rather, he alleged that the manufacturer failed to adequately warn that its TKO breaching rounds only disintegrate upon hitting metal (as opposed to any hard surface). And the adequacy of a warning typically is a question for the jury.
As evidence, the former officer produced an FAQ for the TKO breaching round which described the rounds as "frangible," and stated that "[w]hen the slug hits a hard surface it disintegrates into a fine powder." Nowhere did the FAQ mention that the breaching round must hit metal to disintegrate. Moreover, both parties’ experts acknowledged that they had not seen literature or warnings to that effect. The injured man and at least one other SWAT team member also testified that they believed that the rounds would disintegrate upon striking any hard surface.
Furthermore, a SWAT team leader testified that he spoke with a Safariland representative after the incident who told him that its breaching rounds must hit metal to disintegrate, which created a reasonable inference that the company was aware of that propensity of its product at the time of manufacture. Finally, Safariland did not dispute that it knew that the rounds must hit metal to function properly, which was enough evidence for a reasonable jury to find that the company failed to adequately warn of the risk presented by the ammunition. Accordingly, Safariland’s motion for summary judgment on the failure to warn claim was denied.
Negligence. The injury victim’s negligence claims could proceed to the extent that he alleged negligent manufacture and negligent failure to warn. With respect to the former, a genuine issue of material fact existed as to whether the breaching round hit the metal hinge and failed to disintegrate, thus rendering it defective. If such a defect existed, it would establish that Safariland breached the standard of care for a negligent manufacturing claim. Likewise, the former officer’s negligent failure to warn claim could proceed for the same reasons as his claim for strict liability failure to warn; namely, he put forth evidence that Safariland failed to warn consumers that the breaching rounds only disintegrate upon striking metal despite its knowledge of that propensity.
To the extent that the injured man asserted negligent design, however, Safariland was entitled to summary judgment inasmuch as he offered no evidence that would allow the court to engage in a meaningful balancing test to determine whether the manufacturer acted reasonably in designing the breaching rounds. Because the former officer based his strict liability design defect claim on the consumer-expectation test and offered no evidence to support his contention that the manufacturer had acted unreasonably in designing the breaching rounds, his negligent design claim could not survive the company’s summary judgment motion.
The case is No. 15 C 6487.
Attorneys: Edmund J. Scanlan (Scanlan Law Group) for David Hakim. John William Patton, Jr. (Patton & Ryan, LLC) for Safariland, LLC and Defense Technology Corp. of America.
Companies: Safariland, LLC; Defense Technology Corp. of America
MainStory: TopStory WeaponsFirearmsNews DesignManufacturingNews WarningsNews CausationNews IllinoisNews
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