Putman v. Savage Arms, Inc.

• Decision Date: 01 March 2019
• Docket Number: Civil Action No.: 7:17-cv-168
• Court: U.S. District Court — Western District of Virginia
• Parties: JAMES R. PUTMAN, Plaintiff, v. SAVAGE ARMS, INC., Defendant.

JAMES R. PUTMAN, Plaintiff, v. SAVAGE ARMS, INC., Defendant.

Civil Action No.: 7:17-cv-168

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

March 1, 2019

By: Hon. Michael F. Urbanski Chief United States District Judge

MEMORANDUM OPINION

This products liability action arises out of a hunting accident on November 11, 2016 in George Washington National Forest in or near Alleghany County, Virginia. Plaintiff James R. Putman ("Putman") was hunting with a Savage 10ML-II stainless steel muzzleloader designed, marketed, and advertised by defendant gun manufacturer Savage Arms, Inc. ("Savage"), when the firearm's barrel exploded, severing Putman's right thumb. Putman's Second Amended Complaint, ECF No. 34, alleges negligent design (Count I), negligent manufacture (Count II), willful and wanton failure to warn (Count III), and breach of implied warranty of merchantability (Count IV). Putman voluntarily dismissed Count II. On January 8, 2019, Savage moved for summary judgment as to the remaining counts pursuant to Rule 56(a) of the Federal Rules of Civil Procedure. ECF No. 61.

Additionally, Putman moved for partial summary judgment in his favor as to a number of affirmative defenses raised by Savage in its Answer, all of which relate to purported misuse of the 10ML-II muzzleloader and/or issues of proximate cause. ECF No. 59. Specifically, Putman urges the court to rule as a matter of law that his use of the PowerBelt bullet was not an unforeseeable misuse. Id. On February 1, 2019, the court held a hearing to address these and other outstanding motions. For the following reasons, both motions for summary judgment are DENIED.

I. Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56(a), the court must "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013). When making this determination, the court should consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with . . . [any] affidavits" filed by the parties. Celotex, 477 U.S. at 322. Whether a fact is material depends on the relevant substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. (citation omitted). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

In determining whether a genuine issue of material fact exists, the court views the facts and draws all reasonable inferences in the light most favorable to the non-moving party. Glynn, 710 F.3d at 213 (citing Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011)). Indeed, "[i]t is an 'axiom that in ruling on a motion for summary judgment, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.'" McAirlaids, Inc. v. Kimberly-Clark Corp., No. 13-2044, 2014 WL 2871492, at *1 (4th Cir. June 25, 2014) (internal alteration omitted) (citing Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam)). Moreover, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ." Anderson, 477 U.S. at 255. However, the non-moving party "must set forth specific facts that go beyond the 'mere existence of a scintilla of evidence.'" Glynn, 710 F.3d at 213 (quoting Anderson, 477 U.S. at 252). Instead, the non-moving party must show that "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Res. Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir. 2005) (quoting Anderson, 477 U.S. at 249). "In other words, to grant summary judgment the [c]ourt must determine that no reasonable jury could find for the nonmoving party on the evidence before it." Moss v. Parks Corp., 985 F.2d 736, 738 (4th Cir. 1993) (citing Perini Corp. v. Perini Const., Inc., 915 F.2d 121, 124 (4th Cir. 1990)).

II. Negligent Design

The parties agree that Virginia law controls the resolution of this diversity action. With respect to Count I alleging negligent design, the court finds that there are genuine issues of material fact precluding it from granting summary judgment. To prevail in aproducts liability case alleging negligent design under Virginia law, "the plaintiff must prove that the product (1) contained a defect (2) which rendered it unreasonably dangerous for ordinary or foreseeable use. In addition, the plaintiff must establish that (3) the defect existed when it left the defendant's hands and that (4) the defect actually caused the plaintiff's injury." Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir. 1993) (applying Virginia law) (numerals added); Redman v. John P. Brush and Co., 111 F.3d 1174 (4th Cir. 1997) (applying Virginia law). Virginia law does not require manufacturers to adopt the safest conceivable design. Redman, 111 F.3d at 1177-78. Instead, manufacturers are required to design products that meet prevailing safety standards at the time the product is made. Sexton v. Bell Helmets, Inc., 926 F.2d 331, 336-37 (4th Cir. 1991). In determining whether a product's design meets those standards, a court should consider whether the product fails to satisfy (1) applicable industry standards, (2) applicable government standards, or (3) reasonable consumer expectations. Id. The issue whether a product is unreasonably dangerous is a question of fact. See Singleton v. International Harvester Co., 685 F.2d 112, 115 (4th Cir. 1981).

In Virginia, consumer expectations, which may differ from government or industry standards, "may be proved from evidence of actual industry practices, knowledge at the time of other injuries, knowledge of dangers, the existence of published literature, and from direct evidence of what reasonable purchasers considered defective at the time." Sexton, 926 F.2d at 337. That said, an individual's subjective expectations are insufficient to establish what degree of protection society expects from a product. See Redman, 111 F.3d at 1181 (distributor's testimony that based upon a safe's advertisement, warranty, and appearance, heexpected it would protect valuables better was insufficient by itself to establish reasonable consumer expectations); see also Evans v. Nacco Materials Handling Grp., Inc., 295 Va. 235, 247, 810 S.E.2d 462, 470 (2018) (holding that "[p]ublished literature may include, among other sources, marketing, advertising, presentation, promotional materials, product manuals, and instruction booklets). These types of evidence are probative when they establish what society demands or expects from a product. Sexton, 926 F.2d at 337 (holding that "an examination of societal standards at any given point in time usually reveals an expectation that balances known risks and dangers against the feasibility and practicability of applying any given technology"). The Fourth Circuit has recognized that the reasonable expectations of consumers may provide the sole criteria for unreasonable danger. See Hambrick ex rel. Hambrick v. Ken-Bar Mfg. Co., 422 F. Supp. 2d 627, 634 (W.D. Va. 2002).

Even where a plaintiff can prove that reasonable consumers expected a safer design, Virginia law holds that a design is not objectively unreasonable unless the plaintiff can show that an alternative design is safer overall than the design used by the manufacturer. Evans, 295 Va. at 249, 810 S.E.2d at 471 ("With respect to the modification of a design with safety implications . . . the plaintiff must establish that the proposed design modification is safer than the design used by the manufacturer."). Important in this regard is that an alternative design must not be an altogether essentially different product. Indeed, as has been often stated, "[a] motorcycle could be made safer by adding two additional wheels and a cab, but then it is no longer a motorcycle." Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 385 (Tex. 1995); see also Kimball v. RJ Reynolds Tobacco Co., 2006 WL 1148506, 2006 U.S. Dist. LEXIS 27138 (W.D. Wash. Apr. 26, 2006) (noting that "'[t]wo-wheeledness' is an essentialcharacteristic of a motorcycle"). In other words, "an alternative design is not reasonable if it alters a fundamental and necessary characteristic of the product." Torkie-Tork v. Wyeth, 739 F. Supp. 2d 895, 900 (E.D. Va. 2010). This is, of course, typically a question of fact, not law. Kimball, 2006 WL 1148506, at *3, 2006 U.S. Dist. LEXIS 27138, at *8.

Finally, under any theory of tortious injury, one requisite element of a claim is a "causal connection between defendant's conduct and plaintiff's injury." Owens v. Bourns, Inc., 766 F.2d 145, 151 (1985). "The law of products liability in Virginia does not permit recovery where responsibility is conjectural." Boyle v. United Technologies Corp., 792 F.2d 413, 415 (4th Cir. 1986). While it is not necessary to establish causation with such certainty as to exclude every other possible cause, White Consol. Indus., Inc. v. Swiney, 237 Va. 23, 28, 376 S.E.2d 283, 285-86 (1989), "expert testimony is often utilized to establish causation." Wright v. Lilly, 66 Va. Cir. 195 (2004) (citing Charles E. Friend, Personal Injury Law in Virginia, § 19.1 (3rd ed. 2003). Indeed, such "[e]xpert testimony is usually necessary in products...