Treadway v. Smith & Wesson Corp.

Decision Date25 October 1996
Docket NumberNo. 95-CV-75801-DT.,95-CV-75801-DT.
Citation950 F.Supp. 1326
PartiesLinda S. TREADWAY, Personal Representative of the Estate of Richard A.C. Treadway, Deceased, Plaintiff, v. SMITH & WESSON CORP., Defendant.
CourtU.S. District Court — Eastern District of Michigan

Linda Baxter, Utica, MI, for Plaintiff.

Anne Kimball, Chicago, IL, for Defendant.


ROSEN, District Judge.


Plaintiff Linda Treadway, as the personal representative of the estate of Richard A.C. Treadway, her son, commenced this action in Wayne County Circuit Court on October 12, 1995 against Defendant Smith & Wesson Corporation arising out of the accidental shooting death of her 14-year-old son Richard by his friend Jason Michelsen. On November 28, 1995, Defendant removed this matter to this Court on the basis of diversity of citizenship. In her complaint, Plaintiff alleges that Defendant failed to properly design, manufacture, inspect, or test its .38 Caliber Model 36 revolver (the "revolver"), and, as well, failed to warn or instruct its users against dangers and failed to provide adequate safeguards.1

Presently before this Court is Defendant's motion for summary judgment, brought pursuant to Fed.R.Civ.P. 56(c). In this motion, Defendant argues that: (1) the open and obvious danger rule forecloses Plaintiff's negligence claims as a matter of law; and (2) Plaintiff has failed to establish a prima facia case of an unreasonable risk of foreseeable injury due to: (a) the inadmissibility of Plaintiff's expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Fed.R.Civ.P. 702; (b) the inability of Plaintiff to have its expert qualified as an expert under F.R.E. 702. Plaintiff responds that: (1) The revolver did create an unreasonable risk of foreseeable injury; and (2) The "open and obvious danger" rule is just one factor to consider in determining whether a product creates an unreasonable risk of foreseeable injury, or alternatively, that the rule does not apply at all to design defect claims.

Having reviewed Defendant's Motion and supporting briefs, Plaintiff's Response, and having conducted a hearing on the motion, the Court is now prepared to rule on this matter. This Opinion and Order sets forth the Court's ruling.


On the afternoon of November 1, 1993, Richard Treadway and his friend Jason Michelsen were at the Michelsen residence, without any adult supervision. Both boys were 14 years-old at the time. As he had on at least one prior occasion, Jason, without any adult permission or supervision, removed his father's loaded revolver from its unsecured location on top of an entertainment center in the family living room, and went to his bedroom. Jason's father, a Detroit Police Officer, had purchased this revolver and kept it loaded at the Michelsen residence as his off-duty police weapon.

When Jason took the revolver to his bedroom, he opened the cylinder and attempted to empty the bullets by shaking the revolver twice. He apparently failed as one bullet remained in the cylinder. While Jason was walking from his bedroom into the hallway, he pulled the hammer back, uncocked the trigger, and continued holding the revolver while looking at it and "fiddling" with it.

It was at this time that the revolver allegedly moved into the "hang-up position". In this position, the revolver is cocked and the hammer is lowered so that it catches and stops at a position in which the revolver's user could be fooled into thinking that the hammer is lowered all the way down to a safe position.2

When Jason was in the hallway "fiddling" with the revolver, he pointed the revolver in Richard's direction and continued to hold and look at the revolver. Seconds later, the revolver discharged and fired a bullet which struck Richard in the head above the left eye and eventually caused his death. After loading the revolver with an additional bullet, raising the revolver to his own head, and contemplating his own suicide, Jason placed the revolver in the hallway and called "911". Shortly thereafter, police and emergency personnel arrived at the Michelsen residence.

Whether Jason pointed the revolver at Richard or just accidentally aimed it in his direction, and whether Jason pulled the trigger or just squeezed it or touched it, are matters that appear to be in some dispute. The uncertainty arises due to inconsistencies between Jason's statements to the police, Jason's statements during his deposition, and Plaintiff's response to Defendant's summary judgment motion.

According to the responding officer at the scene, Jason stated that he and Richard were playing cops and robbers and that during the course of this, (Defendant's Ex. 6, pg. 20), Jason pointed the gun at Richard and pulled the trigger. (Id. at 15). However, while making his statement to the police at the police station, Sgt. Ronald D. Gale ("Gale") asked Jason, "What exactly was Richard doing when you pointed the gun at him?" (Defendant's Ex. 9, pg. 4). Jason answered "Richard had the gun in his mouth and he just turned his head a little bit to look straight at me." Next, Gale inquired, "Why did you point the gun at Richard?" To which Jason responded, "It was just a joke, he [Richard] had said something about not being scared." Id. In an earlier part of his statement, Jason had explained, "I was telling [Richard] a story about how somebody was looking through our window on Halloween night [the evening previous to the day of the shooting] and it kind of scared us [Jason and his mom]," (Defendant's Ex. 9, pg. 4 and Defendant's Ex. 4, pg. 31); to which Richard responded that not much scared him on Halloween.

Shortly after Richard had said this, the following events transpired, according to Jason's statement to Gale:

I raised the gun and pointed it in Richard's direction. I didn't have my finger on the trigger, I had it on the trigger guard. I brought my finger in on the trigger, and I was about to take my finger off. I guess I must have squeezed too hard, and the gun went off.

(Defendant's Ex. 9, pg. 2).

In May 1994, after Jason had pled guilty to careless use of a firearm resulting in injury or death, Plaintiff approached Roy Michelsen, Jason's father and her social friend and neighbor, about meeting with Mr. Garvey, Plaintiff's lawyer. (Defendant's Ex. 2. pg. 16). Plaintiff suggested this meeting to Roy Michelsen because Mr. Garvey had explained to her how a problem with the Smith & Wesson revolver could possibly show that Richard's shooting was not entirely Jason's fault. (Defendant's Ex. 2, pp. 16-20). Shortly thereafter, Roy Michelsen met with Mr. Garvey and Plaintiff, at which time Mr. Garvey and Plaintiff explained to him how the "hang up position" could have been responsible for the revolver discharging. (Id.)

After this meeting, Mr. Garvey met with Jason during July and/or August of 1994. (Defendant's Ex. 2, pp. 29-38). At the first meeting, Mr. Garvey told Jason that there was a problem with the revolver. (Defendant's Ex. 4, pg. 135). At a second meeting, Mr. Garvey had the revolver in his office and as he was explaining the "hang up position" and how to manipulate the revolver into that position, Jason began "messing with" the revolver and himself manipulated the revolver into the "hang up position". (Id. at 136-39). Further, Mr. Garvey told Jason that when the revolver was in this position, it would fire without the trigger being pulled. (Id. at 137). According to Jason, this visit to Mr. Garvey's office was the first time that he had heard of the "hang up position" and the first time that he had seen the revolver manipulated into such a position. (Id. at 146).

On February 7 and 22 of 1996, Jason was deposed in this case. Jason's statements during the deposition differed in several respects from his statements to the police. First, when asked if he raised the gun and pointed it in Richard's direction, Jason responded that he "[n]ot so much pointed it. I raised the gun and the way I was looking at it, it was pointed in the general direction. But it's not like I actually picked it up and pointed it at him." (Defendant's Ex. 4, pg. 43). Second, when asked why he was holding the revolver out like that, Jason answered, "I was just looking at it." (Id. at pg. 114). Further, when asked if he was trying to scare Richard, Jason said, "No." (Id.) Finally, as for the shooting itself, Jason stated that his finger was on the trigger guard and not on the trigger, although he may have moved it to the trigger, but did not recall, (Plaintiff's Ex. A, pg. 47), and that as he was looking at the revolver, he noticed that something did not look right and then the revolver fired. (Id. at 42-44).

Compounding these inconsistencies is Plaintiff's expert, Lama Martin. When Mr. Martin was asked, "Would you agree with me that even when the gun is in the hang-up position, you still have to pull the trigger to get it to fire?", he responded, "The ones I've tested you do, yes." Further, Mr. Martin also stated that it was his opinion that "... the trigger was pulled in some fashion." (Defendant's Ex. 3, pg. 10).

Apparently in an effort to clarify her position, Plaintiff has offered a conflated explanation of these matters in her response to Defendant's motion for summary judgment. Specifically, in this response, Plaintiff's Statement of Facts admits that although Jason put "slight pressure on the trigger", he did not intentionally pull the trigger. Further, in the argument section, Plaintiff admits that this "slight touch of the trigger" is the "same slight amount of trigger pressure needed to fire [the revolver] from a single action mode."

Based on Plaintiff's statements in her response and the various depositions and statements to the police, Plaintiff has admitted, at the very least, that while Jason Michelsen was "fiddling with" the hammer of his ...

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