Davis v. Dunham's Athleisure Corp.

• Decision Date: 23 January 2019
• Docket Number: Case No. 1:16-cv-00271-SNLJ
• Citation: 362 F.Supp.3d 651
• Parties: James DAVIS, Plaintiff, v. DUNHAM'S ATHLEISURE CORP. and Century International Arms Defendants.
• Court: U.S. District Court — Eastern District of Missouri

362 F.Supp.3d 651

James DAVIS, Plaintiff,

v.DUNHAM'S ATHLEISURE CORP. and Century International Arms Defendants.

Case No. 1:16-cv-00271-SNLJ

United States District Court, E.D. Missouri, Southeastern Division.

Signed January 23, 2019

Daniel T. Moore, Moore Law Firm, Matthew B. Lee, Spain and Miller, LLC, Poplar Bluff, MO, for Plaintiff.

Scott D. Hofer, Robert H. Houske, Foland and Wickens, P.C., Lee M. Baty, Baty and Holm PC, Kansas City, MO, Anthony M. Pisciotti, Pro Hac Vice, Pisciotti and Malsch, PC, Florham Park, NJ, Jeffrey M. Malsch, Pro Hac Vice, Pisciotti Malsch, PC, White Plains, NY, Erica Leigh Briscoe, Baty and Holm. P.C., St. Louis, MO, for Defendants.

MEMORANDUM AND ORDER

STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE

This matter comes before the Court on defendant Century International Arms' motion for summary judgment (# 55) and Dunham Athleisure Corp.'s motion for summary judgment (# 58). These motions have been fully briefed. For the reasons explained below, this Court will DENY Century's motion and will GRANT IN PART and DENY IN PART Dunham's motion.

I. BACKGROUND

Plaintiff James Davis grew up shooting a variety of firearms—including shotguns, rifles, and pistols. One particular variety of firearms familiar to plaintiff is the bolt-action rifle, which he learned to used when he was 13 or 14 years old. Plaintiff has owned, cleaned, and hunted with bolt-action rifles since at least 2001.

On November 14, 2015, plaintiff purchased a Mosin-Nagant Model 91/30 bolt-action rifle from Dunham's store in Poplar Bluff, Missouri. Dunham, for its part, had purchased the rifle from Century—an importer of vintage firearms. When sold to plaintiff, the rifle came with a manual and a white tag warning that it was not newly manufactured and, therefore, must be inspected by a qualified gunsmith before being used. Plaintiff does not recall whether the white tag was attached to the rifle at the time of purchase, but he admits receiving it.

The Mosin-Nagant has a unique history and profile. It is a magazine-fed, five-shot bolt-action military rifle developed by Imperial Russia (now the Russian Federation) sometime in the 1890s. Manufacturing of it was discontinued in the 1960s, and it has since gained popularity with firearm collectors and enthusiasts. It also has a unique safety design. Rather than traditional "on/off" levers, the Mosin-Nagant utilizes a knob on the bolt's cocking piece that can disengage the fire control and lock the bolt into a closed position.

Vintages rifles, such as the one plaintiff purchased, often come packed in greasy substance called "cosmoline" that prevent them from degrading. Thus, when plaintiff returned home from Dunham's shop, he read over the manual and set about dissembling and cleaning the rifle's components. As plaintiff dissembled his rifle, he removed the bolt from the receiver and "broke it down even further removing [the] firing pin and striker spring" so that all pieces could be cleaned. Satisfied that all components were "spotless," plaintiff explains that he reassembled the rifle in "reverse order" and had no problems putting the pieces back together.

The next day, plaintiff took his Mosin-Nagant out with him to hunt deer. Plaintiff acknowledges he did not test or sight the rifle beforehand, but explains that he had shot a Mosin-Nagant before that was "extremely accurate"—thus trusting the rifle would do well without prior preparations. Plaintiff eventually spotted a deer and successfully fired a single round, hitting the deer without killing it. Plaintiff then attempted to fire a second round to kill the deer. This time, however, plaintiff states he immediately felt "an intense pain coming from right below [his] right eye" and as he put his hand to his face he could feel that it was "covered in blood." The parties agree that, on the second shot, the rifle's safety knob was not fully lowered causing the bolt to be in a partially-locked position. This resulted in the bolt "explod[ing] backwards into plaintiff's face." Two defense experts opine that the incident occurred as a result of plaintiff improperly reassembling the firing pin the night before while cleaning it—opinions that plaintiff does not refute.

As a result of his injury, plaintiff filed a six-count complaint against Dunham and Century that was later removed to this Court. Counts I, II, and III are directed at Dunham for negligence, strict liability, and breach of warranty, respectively. Counts IV, V, and VI are directed at Century, also for negligence, strict liability and breach of warranty, respectively.

Dunham had previously moved to dismiss the counts against it under Missouri's "innocent seller" statute—Section 573.762, RSMo. While acknowledging the issues involved presented a "close call," this Court ultimately denied Dunham's motion. See Davis v. Dunham's Athleisure Corp., et al. , 2017 WL 1329475 (E.D. Mo. Apr. 11, 2017) (Limbaugh, J.). During the briefing of their current summary judgment motions, Dunham has mostly adopted the arguments of Century—though Dunham also specifically renews its arguments under the innocent seller statute, as well.

II. ANALYSIS

A. Standard of Review

Summary Judgment involves the "threshold inquiry of determining whether there is a need for trial." Walls v. Petrohawk Properties, LP. , 812 F.3d 621, 624 (8th Cir. 2015) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). In other words, summary judgment is appropriately granted if, in viewing the record in a light most favorable to the nonmoving party, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The movant bears the initial burden of demonstrating both the absence of a genuine issue of material fact and his or her entitlement to judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once this initial burden is met, the nonmoving party must then set forth, by affidavit or other rebuttal evidence, specific facts showing that a genuine issue of material fact actually exists. Grey v. City of Oak Grove, Mo. , 396 F.3d 1031, 1034 (8th Cir. 2005) ; FED. R. CIV. P. 56(e). To satisfy this burden, the nonmoving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Anderson , 477 U.S. at 247-248, 106 S.Ct. 2505 ). Thus, "when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonably jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion to dismiss." Id. Moreover, even when a dispute is genuine—such that a jury could reasonably favor either side—it must also be the case that the disputed facts are material in that they "might affect the outcome of the suit under the governing law." Anderson , 477 U.S. at 248, 106 S.Ct. 2505.

B. Count I—Negligence Against Defendant Dunham

Count I of plaintiff's complaint focuses on Dunham's negligence for having failed to either inspect or warn of the possibility the Mosin-Nagant could be "fired out of battery" (a reference to the bolt being in an abnormal firing position that prevents a round from being fully chambered).

In contrast with a strict liability claim, proving a negligence claim "focuses on what the [seller] knew rather than on the product." Johnson v. Auto Handling Corp. , 523 S.W.3d 452, 466 (Mo. banc. 2017). Thus, the elements of a negligence action are: (1) the existence of a duty on the part of the defendant to protect plaintiff from injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff resulting from such failure. Thompson v. Brown & Williamson Tobacco Corp. , 207 S.W.3d 76, 98 (Mo. App. W.D. 2006). These elements come with the important caveat that "[a] seller-retailer who neither knows nor has reason to know that a product manufactured by another is defective has no duty to test or inspect the product, and his failure to inspect will ordinarily not render him liable for injuries." Welkener v. Kirkwood Drug Store Co. , 734 S.W.2d 233, 241 (Mo. App. E.D. 1987) ; see also Griffin v. Kandi Technologies Corp. , 454 S.W.3d 341, 347 (Mo. App. S.D. 2014) (stating that the first of the three elements, whether couched as a failure to warn or failure to inspect claim, requires that the "seller knew or had reason to know that the chattel is or is likely dangerous for the use for which it is supplied.")

Here, as Dunham point outs "there is no evidence Dunham knew of any dangerous condition with the firearm" for which a duty to warn or duty to inspect might be established. To the contrary, the rifle was apparently coated in a grease-like preservative called cosmoline during Dunham's ownership of it, limiting an ability to inspect it. And while plaintiff states that "the firing pin adjustment on the type of rifle at issue is a known danger," known to whom is left unclear. If it was so well-known as to be common knowledge, plaintiff—who the facts indicate is experienced with bolt-action rifles—could not reasonably argue that a warning was required. Grady v. Am. Optical Corp. , 702 S.W.2d 911, 915 (Mo. App. E.D. 1985) ("[M]anufacturers and distributors are not under a duty to provide warnings about dangers which are open and obvious, or which are commonly known."). On the other hand, if the danger was known only to a select few— such as vintage gun enthusiasts or specialty gun shops primarily trading in vintage firearms—this...