Loitz v. Remington Arms Co., Inc., 4-88-0262

• Decision Date: 30 December 1988
• Docket Number: No. 4-88-0262,4-88-0262
• Citation: 532 N.E.2d 1091,127 Ill.Dec. 262,177 Ill.App.3d 1034
• Parties: , 127 Ill.Dec. 262, 57 USLW 2452, Prod.Liab.Rep. (CCH) P 12,046 Robert LOITZ, Plaintiff-Appellee, v. REMINGTON ARMS COMPANY, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1091

532 N.E.2d 1091

177 Ill.App.3d 1034, 127 Ill.Dec. 262,

57 USLW 2452,

Prod.Liab.Rep. (CCH) P 12,046

Robert LOITZ, Plaintiff-Appellee, v. REMINGTON ARMS COMPANY, INC., Defendant-Appellant.

No. 4-88-0262.

Appellate Court of Illinois Fourth District.

Dec. 30, 1988.

Rehearing Denied Jan. 31, 1989.

William E. Kelly, Charles E. Joern, Jr., Pope, Ballard, Shepart & Fowle, Ltd., Chicago, Nicholas J. Neiers, Samuels, Miller, Schroeder, Jackson & Sly, Decatur, for defendant-appellant.

Hull, Campbell & Robinson, Jon D. Robinson, Decatur, for plaintiff-appellee.

Justice SPITZ delivered the opinion of the court:

This action was brought by plaintiff Robert Loitz against defendant Remington Arms Company, Inc., to recover for injuries plaintiff sustained from the explosion of his Remington Model 1100 shotgun. The incident occurred while plaintiff was trapshooting using shells he reloaded. Following a jury trial conducted in the circuit court of Douglas County, the jury returned a verdict in favor of the plaintiff and against defendant, awarding $75,000 compensatory damages and $1,600,000 punitive damages. Judgment was entered on the verdict. Defendant appeals from the judgment and the denial of the post-trial motion, asking this court to enter a judgment n.o.v. on the wilful and wanton count and grant a new trial on the negligence count. Alternatively, defendant requests a new trial on both counts or at least a substantial remittitur on the damages.

On June 19, 1983, plaintiff was competing in a trapshooting meet at the McCown Gun Club near Newman, Illinois. While shooting shotgun shells, which admittedly he reloaded himself, his Remington Model 1100 shotgun exploded. Plaintiff suffered injuries to his left hand and thumb.

Trapshooting typically involves firing several hundred rounds (shells) at targets during each meet. A weekend of trapshooting can involve as many as 600 rounds. As a result, handloading used shotgun shells is a common practice among trapshooters. It allows them to use reloaded shells at half the cost of new shells. Typically reloaders use a machine that enables them to produce hundreds of shells in a single evening's work. However reloading is literally the individual shooter's remanufacture of shells at home using the usual components (gunpowder, primer, et cetera ) but without assurance of factory quality controls.

Plaintiff was using a reloaded shotgun shell at the time his Model 1100 shotgun exploded. In reloading his shells, plaintiff used a multi-station reloading machine known as a Ponsness-Warren Model 800-B. A different function is performed at each of eight stations. First, the previously fired shell cases are loaded into the machine by hand one at a time throughout the reloading activity. The old primer is removed from each shell mechanically and replaced by a new one from a supply of new primers loaded into the machine before the reloading operation begins. The shell, with the new primer, is resized to its original dimensions and then is moved around on a turret that has places for eight shells. As the turret rotates, the shell with the new primer inserted moves to the next station to be loaded with powder. At the same time, a second shell casing is put in the machine, the old primer removed, and a new one inserted. As the turret moves again the first shell moves to the next station where the wad is inserted by hand, the second shell moves to the powder station where it is loaded with powder, and a third used shell case is inserted by hand for primer replacement. After insertion, the wad is pushed down in place on top of the powder and then as the turret moves again the shells all advance to the next station. The first shell then receives shot. Thereafter it is crimped closed mechanically. It then moves to the ejection station as the turret turns again and it is ejected from the reloading machine. The various actions of the machine take place upon the operator's movement of an arm on the side of the machine.

Reloading requires the reloader's careful attention and concentration on the various steps involved. Distractions of any kind can lead to mistakes resulting in either duds or overloaded shells.

Glenn Jackson, the former owner and chairman of the Ponsness-Warren Company, explained the hazards associated with reloading. He testified about the mistakes that can be made and the consequences. He explained how it was possible to make dangerously overloaded shells that are virtually indistinguishable from properly loaded ones. For example, Jackson testified that a shell produced on a Ponsness-Warren 800-B with four times the normal powder charge but without a wad had a normal appearance. According to Jackson, the Ponsness-Warren 800-B reloader is "undoubtedly the best machine on the market." Jackson said that if this complex machine is operated correctly, it is one of the safest reloaders. It is, however, subject to operator error.

The plaintiff admitted reloading the shells involved in the accident. Plaintiff had no problem with his reloading machine, and he did not recall any problem in reloading the shells he used when his shotgun exploded on June 19, 1983. When reloading shells he did nothing other than just look at the shells in order to make sure that they were properly loaded. He acknowledged that numerous kinds of mistakes were possible in reloading shotgun shells, and he had made reloading mistakes in the past. When he made a mistake during reloading he did not stop to mark or identify the mistaken shell while it was in the machine. Plaintiff also admitted that he had in the past forgotten to insert wads in shells he reloaded.

Although plaintiff stated it was possible to make a human error on the machine, in order to load multiples of any shell component and then load the shell into a gun, one would have to intentionally ignore the safety features of the reloading machine and ignore an improperly crimped shell. Plaintiff testified on cross-examination there are several situations in which the warning signs of spilled shot and improper crimps would not exist.

According to defendant's pressure data, it would take more than two charges of powder and some other combination of wad and lead shot components in order to burst a nondefective Model 1100 barrel. At trial, Jackson made one shell which he said could be made without altering the reloader. This shell had four charges of powder, no wad and one charge of lead shot. But, the shell proposed by defendant to explain the incident contained three powder charges, a plastic wad, and one charge of lead shot. However, Jackson, defendant's reloading expert, was unable to make this shell during his trial demonstration. Although defendant had previously made such a shell with the components and a reloader similar to those used by plaintiff, Jackson said he had no explanation as to how defendant loaded its shells. He admitted he was not a ballistics expert and that he did not know anything plaintiff was doing in reloading which would cause a gun to blow up. He did not know what pressures would be required to blow up a nondefective Model 1100 shotgun barrel. Jackson testified, however, that the failure to mark a shell where there has been an error is one of the most significant deviations from good reloading practices.

The Model 1100 shotgun is designed as a multi-purpose firearm suitable for trap and skeet shooting as well as hunting game. It has interchangeable barrels and is a semi-automatic, gas-operated shotgun. As such its low recoil makes it particularly attractive to high volume shooters. It was designed in response to user preferences with the aid of a sophisticated computer design program to be a state-of-the-art product. Following extensive laboratory and field testing the Model 1100 was introduced in 1963. It has been produced continuously since that time with over 3,000,000 barrels sold to the public.

The Model 1100 is also purchased by the United States Government for use by the various branches of the armed services. In that connection, the United States Government Procurement Office reviewed and approved defendant's raw material selection, product design, and manufacturing processes.

The barrel of the Model 1100 is manufactured from a low carbon steel known as American Iron and Steel Institute (AISI) 1140 modified steel. The AISI 1140 modified steel used to make the Model 1100 barrel is delivered to defendant as bar stock. Each shipment is inspected and tested by defendant using recognized sampling and testing methods to determine that it meets the raw material specifications. The bars are cut to useful size forming a slug which is then extruded, hot worked by hammer-forging and finished to form the barrel. The chamber area is heat treated. Other components are added to the barrel as the Model 1100 is manufactured. At various points in the process the assembly is inspected and tested. At the final assembly stage the shotgun is extensively tested and inspected. Thereafter each shotgun is sent to the gallery for firing and further testing including what is known as proof-testing.

Proof testing, a universally recognized testing method used throughout the firearm industry, subjects the article tested to stress within its design limitations, but substantially greater than it is expected to experience during normal use. The Model 1100 is designed to withstand upwards of approximately 45,000 pounds of internal pressure per square inch (psi) without failing catastrophically. Normal rounds produce 8,000 to 12,000 psi while the shells used for proof testing produce approximately 18,000 to 22,000 psi. Defendant's witnesses opined that plaintiff's shotgun barrel experienced at least 60,000 psi when it exploded.

Defendant does not conduct examinations after the proof testing to determine if there are defects or cracks in the barrel which might have been started by the proof test itself. Only a visual...