Gootee v. Colt Industries, Inc.

• Citation: 712 F.2d 1057
• Decision Date: 19 August 1983
• Docket Number: No. 80-1091,80-1091
• Parties: 36 UCC Rep.Serv. 1157 Michael GOOTEE and Marlene Gootee, Plaintiffs-Appellants, v. COLT INDUSTRIES, INC., A Corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1057

712 F.2d 1057

36 UCC Rep.Serv. 1157

Michael GOOTEE and Marlene Gootee, Plaintiffs-Appellants, v. COLT INDUSTRIES, INC., A Corporation, Defendant-Appellee.

No. 80-1091.

United States Court of Appeals Sixth Circuit.

Argued Dec. 17, 1981.

Decided July 14, 1983.

Rehearing Denied Aug. 19, 1983.

Balfour Peisner (argued), Detroit, Mich., for plaintiffs-appellants.

James S. Goulding (argued), Detroit, Mich., for defendant-appellee.

Before JONES, Circuit Judge, WEICK, Senior Circuit Judge, and SILER, District Judge. ^*

NATHANIEL R. JONES, Circuit Judge.

Plaintiffs-appellants, Michael and Marlene Gootee, appeal from a judgment of no cause of action entered in favor of the defendant-appellee, Colt Industries, in this diversity action alleging negligence, breach of warranty and misrepresentation in the design and sale of the Colt .45 automatic. The district court directed a verdict in favor of Colt on the misrepresentation claim and submitted the case to the jury on a "breach of warranty of design" theory. The jury found that Colt had not breached such a warranty and the judgment of "no cause of action" was entered accordingly.

On appeal, ten separate grounds for reversal are raised, both substantive and procedural. We affirm the district court's refusal to grant a directed verdict in favor of the appellant, finding that the issues raised were properly before the jury. We find, however, that the district court erred in directing a verdict on the issue of misrepresentation, in excluding evidence of custom and usage concerning the Colt .45 and in failing to submit the issue of negligent design to the jury. Since this cause is remanded to the district court for further proceedings consistent with this opinion, we need not reach all allegations of procedural error raised by the appellants; those we do address will be noted where relevant, with appropriate directions for the trial court to follow upon remand.

I--FACTS AND JUDGMENT BELOW

This action arises out of injuries sustained by Michael Gootee when his Colt .45 automatic discharged, lodging a bullet in his left knee. The accident occurred on December 18, 1972. At that time, Gootee was a union organizer for the Detroit Federation of Musicians. He was employed, inter alia, as a security officer for the credit union. Gootee was licensed and authorized to carry a gun and did so while working for the union. For the period immediately preceding the accident, Gootee regularly carried the Colt .45 automatic.

Gootee testified that he normally carried the .45 in a full-cock position with a round in the chamber in order to cut the lag time between a perceived threat and his access to the gun for a possible response. He needed a specially-made holster to carry the gun while in that position. While carrying the .45 in the full-cock position, Gootee kept the safety engaged to prevent accidental firing. Gootee was carrying the gun in this fashion on the morning of December 18, 1972.

Early that morning, Gootee was called into the office of a fellow employee, Mr. Taylor, and asked to show his Colt .45 to yet another employee, Mr. Mormile. Gootee testified that while seated across from Mormile, he took the gun from his holster, removed the manual safety, put his thumb between the hammer and firing pin, and lowered the hammer into what he believed to be the half-cock position. Gootee shifted the position of the gun's hammer because he believed the half-cock was safer than the full-cock with manual safety when handing it from person to person. ¹ When he attempted to hand the .45, butt first, to Mormile, the gun discharged, shooting Gootee in the left knee and causing serious injury.

It appears that the gun was never actually engaged in the half-cock position. Rather, the appellants contend that the gun's hammer had perched on the sear or lip of the notch into which it must lock if it is to be securely in the half-cock. Gootee testified that the gun appeared to be in the half-cock, and that he believed that it was when he attempted to hand it over to his fellow employee.

Michael and Marlene Gootee brought this action seeking damages for the injuries sustained when the automatic fired. They assert a number of bases upon which Colt is allegedly liable for all damages incurred: (1) Colt affirmatively misrepresented through advertising and sales literature that the half-cock was a carrying safety, inducing Gootee to use it as such, thereby causing his injuries; (2) because Colt was or should have been aware that a significant majority of the users of the .45 automatic were army and police personnel who were trained to use the half-cock as a safety, Colt was negligent in continuing to design the gun with a half-cock which was not a complete carrying safety; and (3) Colt breached an implied warranty of fitness when it sold the .45 for consumer use since, absent a half-cock safety, it was not reasonably fit for such purposes.

At trial, Gootee testified, basically without objection, regarding the facts surrounding the accident itself. The major controversy centers on the accuracy, sufficiency and relevancy of the evidence which the appellants introduced, and sought to introduce, in support of the three theories upon which they seek to hold Colt liable for that accident.

As noted, the appellants' misrepresentation claim was based on various alleged affirmative representations which led Gootee to believe that the half-cock was a carrying safety. These representations purportedly appeared as advertisements in gun and sportsman magazines, as instructions in a manual accompanying the .45 which Gootee purchased and as portions of army training manuals which Gootee studied. The appellants were unable to produce copies of the exact advertisements or the manual accompanying the gun when purchased. Gootee, however, did testify that a 1956 version of the Colt manual was substantially identical to the one he received, and did submit copies of the army manuals he claims to have relied upon. These materials all contained the claimed representations. To rebut these claims, Colt submitted copies of manuals and advertisements which were in circulation at the time of the accident and, allegedly, at the time that Gootee purchased the gun, none of which represented the half-cock as a safety. ²

The district court refused to grant a directed verdict in favor of Colt at the close of the plaintiffs' proof. The issue was raised again at the close of the defendant's case, however, and the court granted the motion with regard to the misrepresentation claim. The court found that the appellants had failed to make a sufficient prima facie showing of misinformation by failing to establish the existence of representations which could be directly tied to Colt and shown to have been received by Gootee.

Next, the appellants attempted to establish that Colt had been negligent in designing the gun with a half-cock which operated as it did. The appellants established that though the half-cock when properly in place was a safe position, it was impossible to tell from looking at the gun whether one had properly locked it into that position. The appellants claimed that this design created the possibility of a misfire whenever one attempted to use the half-cock. Additionally, the appellants offered to establish that it was reasonably foreseeable that a Colt .45 user would attempt to place the hammer into the half-cock as a carrying safety because all armed forces and police personnel were trained to use the gun that way. The trial court excluded all evidence on this latter point, however, ruling that use by such parties was irrelevant where Gootee was neither a part of the military nor a police officer when he purchased the .45 ³ and where there was no evidence that Colt had instructed either group to use the half-cock as they did.

The district court refused to direct a verdict in favor of either party on the issue of negligence. The court did not, however, submit this precise issue to the jury, giving no instructions on negligence and submitting a jury verdict form which failed to mention negligence as a basis for liability.

Finally, the appellants asserted that Colt had failed to supply a product which was reasonably fit for the purposes intended and, hence, had breached the implied warranty of fitness which accompanies the sale of goods. The appellants argued that a reasonable consumer purchasing a Colt .45 would expect that the half-cock position, on the gun as it was otherwise designed, would operate as a carrying safety. The trial court instructed the jury generally with regard to the warranty theory and submitted the case to the jury on the precise question, "[d]id the defendant breach a warranty in designing the Colt .45 handgun?" The jury responded in the negative.

A judgment of "no cause of action" was entered. The plaintiffs appealed, alleging, inter alia, the following errors as grounds for reversal of that judgment:

(1) That the district court erred when it directed a verdict in favor of Colt on the issue of misrepresentation.

(2) That the district court erred when it refused to grant a directed verdict in favor of the plaintiffs on the issue of negligent design.

(3) That the district court erred when it refused to admit evidence of custom and usage among military and police personnel relating to the Colt .45.

(4) That the district court erred when it submitted a special verdict form to the jury which required a finding that Colt had breached a warranty in designing the .45 before a verdict could be rendered in favor of the plaintiffs.

II--THEORIES OF LIABILITY

A. Misrepresentation--Directed Verdict

In reviewing the grant or denial of a directed verdict, this Court is to apply the same standard as that originally applied by the district court. Milstead v. International Brotherhood of Teamsters, 580 F.2d 232 (6th Cir.1978). In diversity cases, federal courts are bound by state law in...