DeRosa v. Remington Arms Co., Inc., 78 Civ. 110.

• Decision Date: 05 February 1981
• Docket Number: No. 78 Civ. 110.,78 Civ. 110.
• Citation: 509 F. Supp. 762
• Parties: Concetta DeROSA, as Administratrix of the goods, chattels and credits of William V. DeRosa, deceased; and Concetta DeRosa, individually, Plaintiff, v. REMINGTON ARMS CO., INC., Defendant.
• Court: U.S. District Court — Eastern District of New York

509 F. Supp. 762

Concetta DeROSA, as Administratrix of the goods, chattels and credits of William V. DeRosa, deceased; and Concetta DeRosa, individually, Plaintiff, v. REMINGTON ARMS CO., INC., Defendant.

No. 78 Civ. 110.

United States District Court, E. D. New York.

February 5, 1981.

Speiser & Krause, P. C., New York City, for plaintiff; Lawrence Goldhirsch, New York City, of counsel.

Crowe, McCoy, Agoglia, Fogarty & Zweibel, P. C., Mineola, N. Y., for defendant; Patrick J. Fogarty, Ray Carey, Mineola, N. Y., of counsel.

MEMORANDUM AND ORDER

WEINSTEIN, Chief Judge:

Defendant Remington Arms seeks to overturn a jury determination holding it partially liable, in negligence and strict liability, for the fatal injuries suffered by Suffolk County Police Officer William V. DeRosa when the Remington shotgun carried by one of his fellow officers was accidentally discharged. Officer DeRosa's widow brought this action contending that the force required to pull the trigger on the shotgun — the trigger pull — was designed to be so low that the gun was unreasonably dangerous for its foreseeable use in police work, and that it was this defect in design which caused her husband's death.

Remington impleaded Officer Kenneth Paton who fired the shotgun and Suffolk County and its Police Department, contending that responsibility for the accident should lie with them. Suffolk County subsequently settled with plaintiff on its own and Paton's behalf.

After a trial at which the plaintiff attempted to establish that Remington acted unreasonably in failing to incorporate this hypothetical design improvement to increase the pressure required to pull the shotgun's trigger, the jury found against all three defendants, allocating 36% of liability to Remington, 35% to Suffolk County's police department and the remaining 29% to Officer Paton.

Defendant Remington moves for judgment notwithstanding the verdict. The motion is granted. Liability against Remington Arms on the basis of an alleged design defect in the trigger pull of its Model 870P shotgun cannot be sustained either on a theory of negligence or on a theory of strict product liability. Based upon the evidence, the shotgun as designed by Remington was as a matter of law not unreasonably dangerous for its foreseeable use. Moreover, the intervening carelessness of fellow officer Paton was such that no defect in design of the gun can be said to have caused this tragedy.

FACTS

The Remington Model 870P carried by Officer Kenneth Paton on the night Officer DeRosa was shot is a version of Remington's standard Model 870 hunting shotgun modified for police use. Remington has sold approximately three million of the standard Model 870's, primarily to hunters. It has sold approximately seventy-five thousand Model 870P shotguns since the introduction of the modified version roughly twenty-five years ago. The 870P is now used by eighty percent of all law enforcement agencies in the United States. Institutions using the weapon include the FBI, Secret Service, United States Marshals, United States Border Patrol, United States Drug Enforcement Administration, Internal Revenue Service, Coast Guard, and Marine Corps as well as many state and local law enforcement agencies. The Suffolk County Police Department purchased twenty-four 870P shotguns in 1967, mainly for riot use, and had approximately one hundred sixty of the weapons by the beginning of 1976 when the shooting occurred.

Like the 870, the 870P has three widely-accepted safety devices designed to guard against accidental firings: a mechanical device which until disengaged locks the trigger and prevents the gun from being fired; a trigger guard that is intended to prevent idle bumps from causing inadvertent firings — by requiring that the trigger finger be placed inside the guard; and, finally, a pump action whose operation by positively pushing it into a closed position is a prerequisite to firing.

The trigger pull of the standard Model 870 shotgun is set by the manufacturer at four-and-one-half pounds to be within parameters for shotguns maintained and respected by the firearms industry: viz., three-and-three-quarters to six-and-one-half pounds. The usual handgun carried by police officers also has a trigger pull of approximately four-and-one-half pounds after the weapon is cocked.

Industry guidelines on trigger pull force are designed to enhance accuracy in firing while also allowing sufficient firing speed. Uniformity helps make these weapons interchangeable since users need not reeducate reflexes trained to other specifications. This feature is especially valuable in the case of law enforcement personnel, many of whom are also hunters; moreover, moves from one law enforcement agency to another are not uncommon.

The purchasers of these weapons — law enforcement agencies — and their eventual professional users are experts in the use of firearms. Law enforcement officers are instructed in the safe operation of this dangerous equipment under conditions of stress. Suffolk County gives extensive and rigorous training and refresher courses at which police officers are warned not to disengage any of the three safety devices until immediately before deliberately aiming and firing. Emphasis on safety is constantly drilled into them and repeated test firings on the Suffolk range reinforce what they must know about the trigger pressure required on the shotguns issued to them.

On the night of January 31, 1976, Paton and his partner were dispatched to the scene of a suspected violent disturbance in North Amityville, Long Island. Having been alerted that several shots had been fired, Officer Paton readied his Model 870P Remington shotgun — loading it and disengaging the mechanical safety while still in the patrol car — itself a violation of police procedures since the safety should not have been touched until there was an intention to fire. On his arrival at the scene, it became clear that no weapons were required and Officer Paton proceeded to return the shotgun to his patrol car. He attempted to unload before placing the gun in the car, but neglected to re-engage the safety as required by instructions relating to unloading provided by both the manufacturer and the Suffolk County Police Department. He also must have moved up the pump action and slipped his trigger finger inside the trigger guard — both actions in clear violation of police and manufacturer's manual instructions. None of these violations of standard procedure was required by the need to take speedy action because, as was demonstrated in the courtroom, all three safety features could be disengaged within a fraction of a second.

Paton was having some difficulty removing the shell when shouts from the crowd prompted him to turn. As he noticed a car approaching rapidly without headlights, the shotgun he was holding discharged, killing Officer DeRosa.

He has no clear recollection of the sequence of events which led to the shooting. He does not recall moving the pump action of the shotgun, nor having his finger inside the trigger guide, nor pulling the trigger, but acknowledges that he must have done all three in order for the gun to have fired. The safety, as noted, was already disengaged.

In subsequent laboratory tests, the shotgun was found to have been in good working order. The trigger pull was set exactly as it had been designed to be. The gun has been returned to service by the Suffolk County Police Department.

CONTENTIONS OF THE PARTIES

It is the plaintiff's contention that the trigger pull force of the 870P should have been increased from the standard four-and-one-half pounds on the 870 to a force of about fifteen pounds in order to prevent accidental discharges of the kind that killed Officer DeRosa. She argues that a shotgun intended for police use which did not incorporate this stronger pull was defectively designed; that it was unreasonably dangerous for its intended use and for foreseeable misuse. In support of this hypothetical design improvement, plaintiff introduced the testimony of a "human factors analyst" who testified that at the time the weapon was modified Remington should have determined the likelihood of inadvertent firings under the conditions of stress likely to be encountered in police work. Further research, he indicated, would have demonstrated that all police personnel could exert a finger pressure of fifteen pounds and that this increased pressure would have substantially reduced the possibility of inadvertent discharges. The cost of increasing the trigger pull force on the 870P was no more than a few pennies per gun.

Remington argues that its use of a four-and-one-half pound trigger pull on the Model 870P was a reasonable design choice. It argues that the design was not the cause of the accident. In support of these contentions the defendant relies upon the trigger pull force standards maintained by the industry in the interest of uniformity; the three safety devices incorporated into the 870P; plaintiff's failure to prove that the proposed human factors analysis would have supported a decision to provide a heavier trigger pull; and plaintiff's failure to establish at trial the amount of force actually used by Officer Paton to pull the trigger of the shotgun on the night of the shooting — i. e., whether it was under the fifteen pounds suggested by plaintiff's expert. Remington further argues that Officer Paton's gross mishandling of the weapon in clear contravention of established police procedures and manual instructions was the cause of the accidental firing.

NO DESIGN DEFECT

In New York, three broad categories of product defects can expose manufacturers to liability in negligence and strict product liability, when such defects cause injury in the course of intended and reasonably foreseeable unintended uses: first, mistakes in manufacturing which render the product dangerous and cause harm, see, e. g., Codling v. Paglia, 32...