By Pamela C. Maloney, J.D.
Questions of fact on negligent design, warnings, and punitive damages claims could not be resolved on the hunter’s summary-judgment motion.
The federal district court in Roanoke, Virginia, refused to decide on summary judgment that a stainless-steel muzzleloader rifle that exploded and seriously injured a hunter, had been negligently designed and whether the manufacturer’s warnings/instructions were adequate to satisfy the company’s post-sale duty to warn of foreseeable dangers—including the possibility of consumer misuse. According to the court, questions of fact remained as to consumer expectations regarding the safety and performance of the muzzleloader when used with unapproved powder and bullets and as to whether the manufacturer’s warnings against the use of unapproved powder and bullets were adequate to avoid the hunter’s allegation that the manufacturer’s failure to warn of those dangers was willful and wanton, thereby warranting an award of punitive damages (Putman v. Savage Arms, Inc., March 1, 2019, Urbanski, M.).
The hunter’s right thumb had been severed when the barrel on his 10ML-II stainless steel muzzleloader rifle, which had been designed, marketed, and advertised by Savage Arms, Inc., exploded. According to the hunter, the rifle had misfired even though he had loaded it with a smokeless gunpowder recommended by the manufacturer and which had been measured in the manner recommended. The hunter further alleged that although he had used a PowerBelt brand of bullet that was not recommended in the rifle’s user manual, the manufacturer knew that this type of bullet was being used in its 10ML-II rifles.
The injured hunter filed a products liability action against Savage Arms, asserting claims for negligent manufacture, willful and wanton failure to warn, and breach of implied warranty of merchantability. Before the court was the hunter’s motion for partial summary judgment on his three claims and as to a number of affirmative defenses raised by the gunmaker, including compliance with industry standards, lack of proof of an alternative design, and misuse of the muzzleloader.
Industry standards. In response to the hunter’s negligent design claim, the Savage Arms first argued that neither he nor his expert had presented any evidence related to an industry standard or consumer expectations in analyzing the steel alloy used in the rifle’s manufacture or in relation to the design itself. The court agreed with the manufacturer that there were no industry standards specific to smokeless muzzleloaders because Savage Arms was the only manufacturer of the product. Because no defect could be established on the basis of industry or government standards, the court explained that, under Virginia law, it must examine whether the product satisfied consumers’ reasonable expectations.
To support his argument that consumers would not expect their metal gun barrels to explode, the hunter had submitted a sampling of customer complaints in which 10ML-II rifle owners "expressed their surprise and outrage" about 10ML-II barrel failures. Some of the letters included photographs of bulged or split barrels and expressed concerns for other hunters who might be injured by the 10ML-II rifle if the firearm was not recalled or if a warning was not issued. The hunter also cited tests of "nonapproved bullets" (including PowerBelt bullets) conducted by the gunmaker as part of its so-called "misuse testing" of variations in the way people load their rifles.
Finally, the hunter cited numerous Internet forums in which non-recommended bullets and powders were touted, and correspondence between Savage Arms and outdoor writers who recommended or mentioned using PowerBelt bullets with their 10ML-II rifles. That evidence—both direct and circumstantial—clearly raised an issue of material fact as to consumer expectations regarding the safety and performance of the 10ML-II rifle generally and when used with PowerBelt bullets, the court held. In addition, an email from the manufacturer’s CEO, in which he referred to the barrel failure phenomenon as "split barrel syndrome" was, at a minimum, circumstantial evidence that the company was aware of other injuries and/or potential dangers of 10ML-II rifle use or misuse.
Alternative design. Even if the hunter could prove that reasonable consumers expected a safer design,he had to prove the existence of an alternative design that was safer overall than the design used by Savage Arms in order to prevail on his negligent design claim. The hunter had presented expert testimony explaining that alternative materials at the same strength as the 416R steel used in the 10ML-II rifle would have greater ductility and greater toughness, and that these alternative barrel steels or treatments likely would have prevented the rupture which occurred in this case and would have decreased the likelihood of injury to other users. According to the court, this testimony was sufficient to raise a question of fact as to whether a safer alternative design existed. Furthermore, to the extent Virginia law required a risk-utility analysis of a proposed alternative design, the expert’s testimony was sufficient to satisfy that requirement, the court concluded.
Misuse of product. Savage Arms also argued that the hunter had failed to offer sufficient proof of causation and that his multiple misuses of the muzzleloader were unforeseeable as a matter of law. According to the gunmaker, the confluence of the hunter’s misuses, which had been warned against in the manual, resulted in the separation of the PowerBelt projectile from its plastic base and movement of the bullet down the barrel. Both parties proffered extensive evidence in support of conflicting theories as to what had caused the barrel failure. However, the hunter provided ample evidence to support his theory that "embrittlement"—or "barrel fatigue" was the only possible cause of the accident and to overcome the manufacturer’s theory that the barrel failure had been caused by the hunter’s many misuses, which led to the separation of the "non-recommended" PowerBelt bullet from its sub-base and resulted in an "obstruction and an air gap." As such, there was sufficient conflicting evidence to raise an issue of fact as to the cause of the barrel failure, the court ruled.
Furthermore, the question of whether any of the alleged uses actually constituted misuse and/or were unforeseeable also presented a genuine issue of material fact. According to the court, the underlying issue of material fact relating to the cause of the barrel’s failure had to be resolved before a finding could be made as to whether the alleged misuses, assuming that they were unforeseeable, precluded a finding of proximate causation. It was sufficient on a motion for summary judgment that the hunter had adequately demonstrated that there was a genuine issue of material fact as to whether the use of a PowerBelt bullet was unforeseeable, the court said.
Similarly, it could not be concluded as a matter of law that the use of the PowerBelt bullet was foreseeable, the court found. In response to the hunter’s claim that Savage Arms "knew" that PowerBelt bullets would be used or were being used in its rifle, the manufacturer pointed to explicit language in the manual stating that only smokeless powder loads with saboted .45 caliber bullets should be used, arguing that this warning proscribed against use of PowerBelt bullets in no uncertain terms. The evidence offered by both parties on the issue of whether the use of the PowerBelt bullet precluded a finding as to the proximate cause of the barrel’s failure and the foreseeability of the hunter’s alleged misuse of the PowerBelt bullet, the court concluded.
Willful and wanton failure to warn. The court found no evidence in the record to support the hunter’s claim that there had been a willful and wanton failure to warn at the point-of-sale. At most, the hunter had alleged that certain instructions or warnings in the manual were ambiguous or inadequate or being disregarded. However, the court found that there was a question of fact as to whether a wanton post-sale failure to warn had occurred, despite the manufacturer’s argument that the Virginia Supreme Court never has formally adopted the duty to issue post-sale warnings regarding product dangers that came to light after the initial sale. According to the court, numerous federal courts interpreting Virginia law have assumed that the state high court would have adopted the doctrine under the circumstances presented and, in light of those precedents, the doctrine would apply to the case at bar.
In the alternative, Savage Arms argued that even if a post-sale duty to warn were recognized, there were no facts in the record to raise a jury question on that issue. Specifically, the gunmaker claimed that the manual contained specific warnings about proper loading and the types of projectiles, powder, and sabots to utilize, and that, according to its warnings expert, those warnings were sufficient under the circumstances. The company also contended that the existence of a post-sale duty to warn claim was, in fact, a request for the manufacturer to recall the 10ML-II muzzleloader—a duty that is not recognized under Virginia law.
A review of the record led the court to conclude that there was a duty on Savage Arms’ part to provide a post-sale warning in this case. First, there was evidence that the manufacturer knew or should have known that hundreds of its barrels had failed when smokeless powder was used as instructed and that customers potentially were unaware of the risks. Second, several manufacturers of smokeless powders that had been recommended Savage Arms had expressly warned against use of their products in any muzzleloader rifles, creating deficiencies and contradictions in the product’s user manual. Third, a safety notice issued by the gunmaker in 2017, even though it knew about the dangers at least 10 years earlier, raised an issue of fact as to whether the risk of harm was sufficient to justify the de minimis burden of issuing a similar warning in a timelier manner.
Having determined that the manufacturer had a post-sale duty to warn, a question remained as to whether the manufacturer’s warnings with regard to the dangers at issue had been adequate, which normally was a question of fact for the jury. In this case, the Savage Arms had relied heavily on specific warnings about and against misuses that could cause barrel failures and on cautionary language provided about using smokeless powder loads. Despite these warnings, the hunter argued that the company knew or should have known that users continuously were making mistakes that the manufacturer claimed could cause barrel defects and that the manufacturer was aware of approximately 300 claims of barrel damage from customers using the rifle. In light of the conflicting evidence concerning the adequacy of the given warnings, the court could not conclude that the warnings were sufficient to satisfy the manufacturer’s post-sale warning duty.
Punitive damages. The court also denied the hunter’s request for summary judgment on the issue of punitive damages, opining that genuine issues of material fact remained about what the Savage Arms knew and when the manufacturer knew it with respect to barrel failures. The gunmaker had argued that it had shown significant care for the safety of its customers because it had: (1) designed, developed, and tested its muzzleloader design; (2) verified that the 416R steel met the specified metallurgical standards; (3) certified every barrel it manufactured as having been metallurgically tested and conforming to the material specification, (4) performed internal proof and function testing on every rifle it produced; (5) provided extensive instructions and warnings with its product, (6) continuously tested and verified its product to assess the integrity of its rifles under extreme conditions; and (7) sent fractured barrels to independent laboratories to have those barrels metallurgically tested.
In rebuttal, the hunter correctly noted that the manufacturer’s extensive testing was not probative as to the level of concern for safety once the company knew that its muzzleloaders were failing despite all the testing. The hunter further claimed that Savage Arms’ failure to change the design or warn consumers despite its direct knowledge of the danger form over three-hundred reports of barrel defects demonstrated a willful and wanton disregard for their safety. Given the conflicting presented by the parties, the hunter’s motion for summary judgment on the punitive damages claim was denied.
Breach of implied warranty of merchantability. Explaining that the hunter’s breach of implied warranty of merchantability involved essentially the same question as his negligent design claim, i.e., whether the product was unreasonably dangers at the time it left the manufacturer’s possession if employed in the manner for which it was intended to be used, the court denied the hunter’s motion for summary judgment on his breach of implied warranty claim because questions of fact also remained as to that issue.
The case is No. Civil Action 7:17-cv-168.
Attorneys: Jason Robert Whiting (Johnson, Ayers and Matthews PLC) for James R. Putman, Jr. Anthony M. Pisciotti (Pisciotti Malsch and Buckley PC) for Savage Arms, Inc.
Companies: Savage Arms, Inc.
MainStory: TopStory DesignManufacturingNews WarningsNews DefensesLiabilityNews CausationNews DamagesNews WeaponsFirearmsNews VirginiaNews
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