Loitz v. Remington Arms Co., Inc.

• Citation: 563 N.E.2d 397,138 Ill.2d 404,150 Ill.Dec. 510
• Decision Date: 19 September 1990
• Docket Number: No. 68367,68367
• Parties: , 150 Ill.Dec. 510, 59 USLW 2244, Prod.Liab.Rep. (CCH) P 12,591 Robert LOITZ, Appellee, v. REMINGTON ARMS COMPANY, INC., Appellant.
• Court: Supreme Court of Illinois

Page 397

563 N.E.2d 397

138 Ill.2d 404, 150 Ill.Dec. 510, 59

USLW 2244,

Prod.Liab.Rep. (CCH) P 12,591

Robert LOITZ, Appellee, v. REMINGTON ARMS COMPANY, INC., Appellant.

No. 68367.

Supreme Court of Illinois.

Sept. 19, 1990.

As Modified on Denial of Rehearing Nov. 30, 1990.

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

Hull, Campbell & Robinson, Decatur (Jon D. Robinson, of counsel), for appellee.

Richard H. Hoffman, Victor J. Piekarski and Michael Resis, of Querrey & Harrow, Ltd., Chicago, for amicus curiae Illinois Ass'n of Defense Trial Counsel.

Mark I. Levy and Lynn D. Thesing, of Mayer, Brown & Platt, Chicago, for amicus curiae Product Liability Advisory Council, Inc.

Robert N. Wadington, of Cooney & Conway, Chicago, and Charles A. Porretta, law student, for amicus curiae Illinois Trial Lawyers Ass'n.

Justice MILLER delivered the opinion of the court:

The plaintiff, Robert Loitz, was injured when the barrel of the shotgun he was using exploded. Loitz brought the present action against the manufacturer of the gun, Remington Arms Company, Inc. Following a jury trial in the circuit court of Douglas County, Loitz was awarded $75,000 in compensatory damages and $1.6 million in punitive damages. The appellate court affirmed the circuit court judgment. (177 Ill.App.3d 1034, 127 Ill.Dec. 262, 532 N.E.2d 1091.) We allowed Remington's petition for leave to appeal (107 Ill.2d R. 315(a)).

The plaintiff's accident occurred on June 19, 1983. Loitz was participating that day in a trapshooting meet at a gun club near Newman, Illinois. During the competition, the barrel of Loitz's shotgun exploded, and Loitz sustained injuries to his left hand and thumb as a result. Loitz, in his subsequent action against Remington, charged the gunmaker with both negligence and willful and wanton misconduct and requested awards of compensatory and punitive damages. Summary judgment was later entered in Remington's favor on an additional count of the complaint, sounding in strict liability, because that claim was barred by the applicable period of limitations (see Ill.Rev.Stat.1985, ch. 110, par. 13-213).

The evidence presented at trial is thoroughly summarized in the appellate court opinion and will be restated here only to the extent necessary. At the time of the occurrence Loitz was using a Remington Model 1100 12-gauge shotgun. The Model 1100 is a semiautomatic, gas-operated shotgun and is intended for both target shooting and hunting game. Remington introduced the Model 1100 to the market in 1963, and the gun has been in production since that time; more than 3 million barrels have been sold. The plaintiff's own Model 1100 shotgun was manufactured by Remington in 1972. Loitz bought the gun secondhand later that year and used it without incident until the occurrence here. Loitz, an experienced marksman, was taking part in a trapshooting competition when he was injured; the barrel explosion occurred after Loitz had fired more than 60 rounds. Following the accident Loitz underwent reconstructive surgery on his left hand, and his recovery has been virtually complete. He incurred special damages of about $5,000 in medical expenses and lost time from work.

The shells being used by Loitz on the day of the accident were ones that he previously had reloaded himself. Reloaded shells are less expensive than factory-made ammunition and are commonly used by competitive shooters. Home production of shells is performed on a reloading machine. A shotgun shell consists of a casing, primer, gunpowder, a wad, and shot, and, on the multi-stage device used by Loitz, a different component is added at each successive station on the machine. At trial, the parties agreed that mistakes can be made in the operation of the reloading machine. The parties disputed, however, the likelihood of producing, and not detecting, an overloaded shell, particularly one with more than twice the normal charge of gunpowder. The plaintiff's unused shells were recovered from the scene and tested. At trial the parties stipulated that the unused shells were not overloaded and, if fired, would produce pressures within normal limits.

The central issue at trial was the safety and suitability of the metal used in the plaintiff's Model 1100 shotgun barrel, and each side presented its own theory of the cause of the accident. The barrel of the Model 1100 is made from a type of steel known as American Iron and Steel Institute (AISI) 1140 modified. AISI 1140 modified contains manganese sulfide and is described as a free-machining steel, which means that it can be worked more easily than steel that does not share that characterization. In the manufacturing process used by Remington, each shotgun barrel begins as a slug of steel and is forged and worked until a barrel is produced. After the gun is fully assembled, it is subjected to proof-testing. In that procedure, a single round capable of producing higher-than-normal pressure is fired from the gun. Afterwards, the gun is inspected visually for signs of damage, and several normal rounds are later discharged. From the evidence presented at trial, it appears that normal shotgun shells would produce pressures in a range between 8,000 and 12,000 pounds per square inch. The proof-test shells used by Remington produce pressures ranging between 18,000 and 22,000 pounds per square inch. Remington believed that the plaintiff's gun exploded because it was subjected to a pressure of about 60,000 pounds per square inch.

The plaintiff's expert witness, Dr. David Levinson, a professor of metallurgy at the University of Illinois, Chicago campus, believed that the Loitz gun barrel exploded because of a fatigue failure in response to a normal-pressure shell. In Dr. Levinson's opinion, AISI 1140 modified steel is not a suitable material for use in shotgun barrels. Dr. Levinson stated that the inclusions created by the relatively high sulfur content of that type of steel permit the formation of fatigue cracks, which may eventually cause the barrel to fail under normal pressure loads. Dr. Levinson also believed that Remington had thickened and therefore strengthened, the barrel of the Model 1100 since the time the plaintiff's particular shotgun was produced. Levinson based that opinion on measurements he obtained from more recently produced Model 1100 shotguns. Disputing that claim, Remington presented testimony indicating that no change had been made in the thickness of the company's Model 1100 barrels. Separately, Levinson noted that a different Remington shotgun, the Model 870, is made of the same steel as the Model 1100 but has a thicker barrel.

Dr. Richard Hertzberg, a professor of metallurgy at Lehigh University, testified in Remington's behalf at trial. Dr. Hertzberg believed that the cause of the shotgun barrel explosion was a high-pressure shell. Dr. Hertzberg based his conclusion on an examination of the plaintiff's gun, on a comparison of the Loitz gun with exemplar guns that had been intentionally exploded by the discharge of overloaded shells, and on his own tests of the strength of AISI 1140 modified steel. From those tests, Dr. Hertzberg concluded that the type of steel used by Remington for production of the plaintiff's gun barrel was a safe and suitable material for the purpose it was designed to serve and for the range of pressures to which it would normally be exposed. Hertzberg was not aware until trial, however, that a Remington barrel had failed during proof-testing, and he said that he was unable to account for that occurrence. Remington also presented evidence that shotgun barrels can rupture or explode for a number of reasons unrelated to their design or material composition. For example, a barrel might explode if it is obstructed with mud or ice. Also, in what is known as a "12-20 burst," a barrel might explode if a 12-gauge shell and a 20-gauge shell are discharged simultaneously, as when an unfired 20-gauge shell has inadvertently been left in the barrel. Remington witnesses testified that the sulfur content of the steel used by the company helps prevent fragmentation if a barrel does explode.

The parties stipulated that by the time of the plaintiff's accident, in June 1983, Remington had received notice of 94 other barrel explosions involving Model 1100 shotguns and resulting in personal injuries. In 89 of the cases, the persons involved claimed to have been using normal reloaded shells, while in the remaining five cases, the persons said they had used factory-made ammunition. In each of the 94 cases, however, Remington believed that the explosion was caused by the use of a high-pressure shell. In addition, there was testimony indicating that in 1979 Remington had received reports of more than 100 barrel explosions occurring that year that did not result in personal injuries. These additional incidents may have been caused by obstructions in the gun barrel or by the simultaneous discharge of two shells.

Over Remington's objection, the plaintiff was permitted to present testimony by three other persons who had sustained personal injuries when the barrels of their Model 1100 shotguns exploded. The three accidents were among the 94 reported incidents mentioned above. The trial judge admitted the evidence only in relation to the plaintiff's claim for punitive damages and gave the jury limiting instructions to that effect. The three witnesses--Nicholas King, Terry Glover, and Delores Moore--described their accidents and their injuries. King said that he was using a reloaded shell when his gun exploded, but Glover and Moore testified that they were using factory-made shells. Also with respect to the plaintiff's claim for punitive damages, the parties stipulated that Remington had a net worth of $162,314,000 on March 31, 1987, several months preceding the June 1987...