Endresen v. Scheels Hardware and Sports Shop, Inc.

• Decision Date: 05 March 1997
• Docket Number: WINCHESTER-WESTERN,No. 960159,960159
• Citation: 560 N.W.2d 225
• Parties: Prod.Liab.Rep. (CCH) P 14,902, 1997 ND 38 Darren ENDRESEN, Plaintiff and Appellee, v. SCHEELS HARDWARE AND SPORTS SHOP, INC., Defendant. Beretta USA Corp., Defendant and Appellant, and Accuracy, Inc., d/b/a Ultramax Ammunition, Defendant. ACCURACY, INC., d/b/a Ultramax Ammunition, Third-Party Plaintiff, v.DIVISION, OLIN CORPORATION, Third-Party Defendant. Civil
• Court: North Dakota Supreme Court

Page 225

560 N.W.2d 225

Prod.Liab.Rep. (CCH) P 14,902, 1997 ND 38

Darren ENDRESEN, Plaintiff and Appellee, v. SCHEELS HARDWARE AND SPORTS SHOP, INC., Defendant.

Beretta USA Corp., Defendant and Appellant,

and

Accuracy, Inc., d/b/a Ultramax Ammunition, Defendant.

ACCURACY, INC., d/b/a Ultramax Ammunition, Third-Party Plaintiff, v. WINCHESTER-WESTERN DIVISION, OLIN CORPORATION, Third-Party Defendant.

Civil No. 960159.

Supreme Court of North Dakota.

March 5, 1997.

Jonathan C. Eaton (argued), of Eaton, Van de Streek & Ward, Minot, for plaintiff and appellee.

Robert J. Hovland (argued), of McGee, Hankla, Backes & Wheeler, Ltd., Minot, and Lawrence G. Keane (appearance), of Pino & Associates, White Plains, NY, for defendant and appellant.

NEUMANN, Justice.

¶1 Beretta USA Corporation (Beretta) appeals from a judgment awarding Darren Endresen $259,079.21 in damages, costs and disbursements in this personal injury products liability action. We affirm the judgment as to liability, but reverse and remand for a clarification of damages.

¶2 On November 25, 1991, Endresen purchased a used Beretta Model 92F 9 millimeter (mm) pistol from Scheels Hardware and Sports Shop, Inc. (Scheels) in Minot. At the time, Endresen was 25 years old, single, and living on his parents' farm near Ryder. On January 12, 1992, Endresen purchased at Scheels hollow point ammunition remanufactured or reloaded by Accuracy, Inc. (Accuracy). The boxes containing the ammunition did not identify it as reloaded ammunition and Endresen was unaware of that fact. Olin Corporation (Olin) manufactured the original shell casings for the reloaded ammunition.

¶3 On January 14, 1992, Endresen was driving home after dark from his job at Hill Top Repair, an equipment repair shop, when he saw a rabbit pass in front of his pickup headlights. Endresen stopped, stepped outside of his pickup, and fired the pistol at the rabbit. He missed the rabbit and began shooting at a nearby fencepost for target practice. According to Endresen:

"On the tenth round [the pistol] recoiled a lot harder than normal. There was a bright flash and it, well everything in my eye went red, black or I couldn't see anything."

A highly overpressured cartridge had burst near its head while positioned in the pistol chamber.

¶4 Endresen drove home and family members took him to a Minot hospital, where he was immediately transferred by airplane to the University of Minnesota Hospital for treatment. While there, Endresen underwent three surgeries which resulted in the removal of a 2 by 2 by 4.5 mm piece of metal from his right eye. Doctors were unable to remove another piece of metal, which remains in that eye. Endresen is legally blind in his right eye and is expected to remain so. His right eye is Endresen's "dominant eye" and the injury has impaired his depth perception and peripheral vision making it difficult for him to do his farm and machinery work.

¶5 Endresen sued Scheels, Accuracy, Olin, and Beretta, alleging he sustained the eye injury as a result of defective ammunition and a defectively designed handgun. Scheels was later dismissed from the action, and Endresen entered into settlement agreements with Accuracy and Olin before trial. The parties stipulated to a trial to the court without a jury on Endresen's claim Beretta was liable because the Model 92F pistol is improperly designed to adequately handle defective ammunition. The parties stipulated and the trial court found Endresen was "entirely without fault in this matter and in no way contributed to his injury." The trial court ruled in favor of Endresen, finding:

"XI.

"That the chamber of the Beretta pistol is not fully supported and the cartridge burst took place at the approximately 6 o'clock position where the chamber gives very little support as it is cut away to provide a feed ramp for the rounds entering the chamber from the magazine located in the grip of the gun;

"XII.

"That the round that ruptured was overloaded with powder, but overloads are a common occurrence and well known in the industry as is the use of reloaded or remanufactured ammunition, and that cartridge casings become thinned and weakened when reloaded or remanufactured.

"XIII.

"That it was demonstrated to the Court's satisfaction that the overload, and/or the condition of the cartridge casing, was not the sole cause of Plaintiff's injury;

"XIV.

"That the design of the Beretta pistol was such that it permitted an overloaded cartridge to more easily rupture since there is insufficient support at the chamber's entrance;

"XV.

"That the evidence supports the finding that in this case the gas from the burst cartridge filled the trigger well and then blew out the hole beneath the trigger bar and up against the trigger bar. The metal pieces which struck Plaintiff's face and eye may have been deflected backward off the inside surface of the trigger bar, but very likely could have also come from the top of the open chamber.

"XVI.

"That it is found that other 9mm pistols do have better supported chambers and provide a route for escaping gases which pose less danger to the shooter. Alternative designs rendering the gun less dangerous were available;

* * * * * *

"XVIII.

"That the subject pistol was unreasonabl[y] defective and dangerous because of an inadequately supported chamber and that the injury would not have occurred in an adequately supported chamber. Likewise the design of the trigger bar and venting system was such as to render the gun defective and unreasonably dangerous when used with overloaded ammunition;

* * * * * *

"XXI.

"That the Plaintiff's injury was proximately caused by the combination of an overloaded cartridge and a defectively designed gun in equal proportion." ¹

¶6 The trial court awarded Endresen $38,781.83 for medical and related expenses, $5,000 for loss of productive time, $20,000 for pain and suffering, and $130,000 for permanent disability. The trial court ordered judgment "against Defendant Beretta in the sum of $193,781.83 ... as Defendant's share of the damages suffered by Plaintiff as a result of causes for which Beretta is responsible ..., plus interest, costs and disbursements." Beretta appealed.

I

¶7 Beretta challenges many of the trial court's findings of fact in this case.

¶8 In order to recover for injuries sustained as a result of a defective condition in a product, unreasonably dangerous to a consumer, the plaintiff must show by a preponderance of the evidence the product was defective in design or manufacture; the defect rendered the product unreasonably dangerous to the consumer; the defect existed when the product left the manufacturer; and the defect was a proximate cause of the plaintiff's injuries. Kaufman v. Meditec, Inc., 353 N.W.2d 297, 300 (N.D.1984). See also 4 L. Frumer and M. Friedman, Personal Injury, Firearms § 1.05 (1996). Whether "a manufacturer fits within the parameters of strict liability in tort is essentially a factual question for the trier of fact" which will not be reversed on appeal unless it is clearly erroneous under N.D.R.Civ.P. 52(a). Stillwell v. Cincinnati Inc., 336 N.W.2d 618, 622 (N.D.1983). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if this court is left with a definite and firm conviction that a mistake has been made. American Ins. v. Midwest Motor Express, 554 N.W.2d 182, 185 (N.D.1996).

A

¶9 As is usually the case in products liability actions involving technical, scientific or complex matters, expert opinion evidence was offered on the question whether the Model 92F is unreasonably defective and dangerous. See generally Annot., Products liability: admissibility of expert or opinion evidence that product is or is not defective, dangerous, or unreasonably dangerous, 4 A.L.R.4th 651 (1981). The use of expert witnesses in products liability actions involving firearms is not uncommon. See, e.g., Continental Casualty Company v. McClure, 225 So.2d 590, 591 (Fla.Ct.App.1969); Lopez v. Heesen, 69 N.M. 206, 365 P.2d 448, 454 (1961); Annot., Products liability: firearms, ammunition, and chemical weapons, 15 A.L.R.4th 909 (1982), and cases collected therein; Annot., Products liability: modern cases determining whether product is defectively designed, 96 A.L.R.3d 22 § 23 (1979), and cases collected therein. A major argument underlying Beretta's assertion that the trial court's findings are clearly erroneous is the trial court erred in admitting the testimony of Endresen's expert witness, Stanton O. Berg, a firearms consultant.

¶10 The qualifications of an expert witness are primarily for the determination of the trial court, and its determination will not be reversed on appeal unless that discretion was abused. Oberlander v. Oberlander, 460 N.W.2d 400, 402 (N.D.1990). N.D.R.Ev. 702 allows a witness qualified as an expert to testify in the form of an opinion "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue...." In Anderson v. A.P.I. Company of Minnesota, 1997 ND 6, p 9, 559 N.W.2d 204, we recently explained:

"Rule 702 envisions generous allowance of the use of expert testimony if the witnesses are shown to have some degree of expertise in the field in which they are to testify. Matter of Estate of Aune, 478 N.W.2d 561, 564 (N.D.1991). The rule does not require an expert to have a formal title or be licensed in any particular field, but recognizes it is the witness's actual qualifications that count by providing that an expert can be qualified by knowledge, skill, experience, training, or education. Oberlander; 3 Weinstein's Evidence p 702 (1996). Thus, an expert witness's 'knowledge may be derived from reading alone in some fields, from practice alone in some fields, or as is more commonly the case, from both.' I McCormick on Evidence § 13, at pp. 54-55 (4th ed.1992) (footnote omitted...