Products Liability Law Daily Vintage gun importer still in the crosshairs of liability lawsuit
Thursday, January 24, 2019

Vintage gun importer still in the crosshairs of liability lawsuit

By Leah S. Poniatowski, J.D.

Fact issues remained as to whether the importer of a Russian military rifle was liable to a hunter injured while using the firearm, although summary judgment was proper on negligence and warranty claims against the seller.

Negligence and breach of warranty claims brought by an experienced hunter, who was struck in the face when using a vintage Russian rifle, against the seller of the firearm were dismissed on summary judgment by a federal district court in Missouri, which found there were no facts in dispute on those claims. However, summary judgment was not granted on the strict liability claim against the seller because the statutory requirements for "innocent seller" status had not been satisfied. Nor was judgment as a matter of law granted on the liability claims against the importer because of the dispute of facts concerning the purported dangerous nature of the rifle and the documents accompanying the product (Davis v. Dunham’s Athleisure Corp., January 23, 2019, Limbaugh, S.).

The hunter purchased a Mosin-Nagant Model 91/30 bolt action rifle, which had been developed for the Imperial Russian military in the 1890s and manufactured until the 1960s, from Dunham’s Athleisure Corp. in Missouri. Dunham had bought the rifle from Century International Arms (the importer). At the time of the hunter’s purchase, the rifle was accompanied by a white warning tag that a qualified gunsmith must inspect the rifle before use because it was not newly manufactured, in addition to a manual. The rifle also had been packed in cosmoline, a greasy substance used to protect the rifle from degradation.

The hunter stated that he did not take the rifle to a gunsmith, but rather disassembled and cleaned the rifle on his own. Thereafter, he reassembled the firearm and used it the next day on a deer hunt. Having used the same type of rifle before, he did not test or sight the rifle as he trusted the accuracy of the firearm. He fired a single round and struck a deer, but because it had not been killed with the single shot, he shot another round. Unfortunately, the safety knob had not been in the proper position, causing the bolt to "explode[e] backwards" towards the hunter, injuring his face. He filed a lawsuit against the seller and importer, asserting that each was liable for negligence, strict liability, and breach of warranty. Both the seller and the importer filed the present summary judgment motions.

Claims against the seller. The court found that the hunter did not allege sufficient facts for his negligent failure-to-warn claim in order to survive the seller’s motion for summary judgment. The seller’s knowledge of any dangerous condition was curtailed because its ability to inspect the firearm was limited on account of the cosmoline. Additionally, if the danger of the firing pin adjustment was commonly known as being dangerous, then there would be no duty to warn, especially in light of the hunter’s experience with bolt-action rifles and the vagueness of the hunter’s allegation. Accordingly, the court granted summary judgment to the seller on the negligence claim. Similarly, the court found that the seller’s "Safety Notice" statement was not a warranty as the hunter contended, and, thus, the court granted summary judgment in favor of the seller on the hunter’s breach of express warranty claim.

However, the strict liability failure-to-warn claim could not be resolved on summary judgment the court determined. The hunter asserted that the seller had failed to warn him that the rifle’s design was a "dangerous condition." The seller claimed protection by the state’s "innocent seller" statute, which allows dismissal of product liability claims against sellers when liability is based "solely on [the] status as a seller in the stream of commerce." Because there were no negligence or other claims upon which the strict liability claim could "piggyback," the court held that the hunter’s last claim against the seller was based on its status solely as a seller, thus qualifying the seller for the "innocent seller" protections. The court explained, however, that the statute also required another defendant against whom the hunter could recover damages be present. The absence of the actual manufacturer or designer of the firearm in the lawsuit led the court to consider the importer as "the only accessible up-stream defendant," and the court made granting the "innocent seller" status conditional on the hunter fully recovering from the importer if found liable.

Claims against the importer. The court determined that there were facts in dispute as to whether the importer was liable for negligence. Both the hunter and the importer argued about the rifle’s design—the importer’s experts agreed that the firearm could become "extremely dangerous" if the firing pin was improperly adjusted, and the hunter asserted that misassembly could circumvent the rifle’s safety features. Because those assertions were issues for a fact-finder, summary judgment on the negligence claim was denied.

The arguments concerning the strict liability failure-to-warm claim, based on the same facts as the negligence claim, showed there was no agreement between the hunter and the importer as to whether the white tag warning and warning in the manual "encompass the particulars that led to the [hunter’s] injury." Further, the importer’s assertion of the "state-of-the-art defense" was without merit because there were no facts presented to establish whether the dangerous condition was "scientifically knowable" when the rifle entered the stream of commerce. Finally, whether the rifle was "merchantable" when sold to the hunter was in dispute and, therefore, the court declined to grant summary judgment on the breach of implied warranty claim.

The case is No. 1:16-cv-00271-SNLJ.

Attorneys: Daniel T. Moore (Moore Law Firm) for James Davis. Scott D. Hofer (Foland, Wickens, Roper, Hofer & Crawford, P.C.) for Dunham's Athleisure Corp. Anthony M. Pisciotti (Pisciotti Malsch & Buckley PC) and Erica Leigh Briscoe (Baty, Holm, Numrich & Otto, P.C.) for Century International Arms.

Companies: Dunham's Athleisure Corp.; Century International Arms

MainStory: TopStory WarningsNews DesignManufacturingNews SCLIssuesNews WeaponsFirearmsNews MissouriNews

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