A. Uberti and C. v. Leonardo
| Decision Date | 11 April 1995 |
| Docket Number | No. CV-94-0062-PR,CV-94-0062-PR |
| Citation | 892 P.2d 1354,181 Ariz. 565 |
| Parties | , Prod.Liab.Rep. (CCH) P 14,198 A. UBERTI AND C., an Italian corporation, Petitioner, v. John S. LEONARDO, Judge of the Superior Court of the State of Arizona, In and For the COUNTY OF PIMA, Respondent, and Thomas Cordova and Delia Cordova, surviving parents of Corrina Cordova, deceased, Real Parties in Interest. |
| Court | Arizona Supreme Court |
Two-year-old Corrina Cordova died in a 1991 handgun accident in Tucson. Thomas and Delia Cordova, her parents ("Plaintiffs"), sued A. Uberti and C. ("Defendant"), an Italian firearms manufacturer, claiming it manufactured and distributed a defective and unreasonably dangerous revolver that caused the accident. Defendant moved to dismiss the complaint for lack of in personam jurisdiction. The trial judge denied the motion, but the court of appeals accepted special action 1 jurisdiction and granted relief, ordering the trial judge to dismiss the complaint.
We granted Plaintiffs' petition for review to examine whether Arizona can assert jurisdiction over Defendant. See Ariz.R.Civ.App.P. 23(c)(4). We have subject matter jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
We view the facts in the light most favorable to Plaintiffs, the non-moving party. Estate of Hernandez v. Arizona Bd. of Regents, 177 Ariz. 244, 247, 866 P.2d 1330, 1333 (1994). As a result, in reviewing summary judgment for Defendant we must accept Plaintiffs' contention that the gun was defective and unreasonably dangerous.
Before the fatal accident on November 29, 1991, Henry Pacho, a Tucson resident, acquired a .357 magnum revolver manufactured in Italy by Defendant and sold through its American firearms distributor, Iver Johnson Arms. Henry cleaned the weapon, fired it a few times, wrapped it in a towel, and then stored it, fully loaded, under the seat of his car. He forgot about the revolver until the day of the accident when his wife, Ruby, took the car to a self-serve car wash with her sister and two children. One of the children was Corrina, Ruby's niece. Before washing the car, Ruby vacuumed the interior. As she pulled the towel from the car, the gun fell to the pavement and discharged. The bullet struck Corrina in the head and killed her.
Defendant produced the gun as a replica of the 1873 Colt "Peacemaker" and called it the "Cattleman." To preserve its authentic look and design, the gun was made without modern safety devices that would have prevented the accidental discharge that killed Corrina. Defendant's catalog described the gun as follows:
Slip it out of its holster, twirl it round your finger, raise and aim it all in one movement. It is balanced and sighted with the natural shooter in mind, and has no match the world over. Today as yesterday, it is the '73, the "Peacemaker," the "Frontier". Identical in shape and dimensions to its predecessor, this replica is safe, precise, trusty and indestructible, a legend since 1873.
Appendix to Plaintiff's Petition for Review at 58 (side 2).
Colt Industries manufactured the first Peacemaker six-shot, single-action revolver in 1873. It was adopted for United States government service that same year and became known as "the gun that won the West." In 1892, Colt and other gun manufacturers began making safer, more reliable, and more efficient revolvers with a double-action feature 2 and a swing-out, rather than fixed, cylinder. The federal government replaced the Peacemaker with newer models partly because the Peacemaker did not meet government safety standards. Despite a diminishing market, Colt continued making the 1873 model until 1941 and resumed production in 1956. See Bender v. Colt Indus., Inc., 517 S.W.2d 705, 706-07 (Mo.App.1974).
In the 1950s, television westerns created a new market for replica firearms. Erik Larson, Sturm Ruger Defends a Revolver in Hundreds of Lawsuits, WALL ST. J., June 24, 1993, at A1. Sturm, Ruger & Co. ("Sturm Ruger"), an American firearms manufacturer, brought back the single-action revolver, replicating the 1873 Peacemaker and calling it the "Old Model." Sturm Ruger sold over 1.5 million of these replicas after beginning production in 1953. Due to many injuries from accidental discharges and resulting lawsuits, 3 Sturm Ruger stopped producing the Old Model in 1973 and brought out a new single-action revolver that incorporated a safety mechanism to prevent accidental discharges. Since 1973, however, long after lawsuits drove Sturm Ruger from this hazardous market, Defendant continues to manufacture faithful replicas of the 1873 six-shooter without the safety devices found on other guns.
Safe carriage and storage of the Cattleman require that the hammer be down (uncocked) and resting on an empty chamber to prevent discharge if the gun's hammer is hit. Resting the hammer on a loaded chamber is extremely unsafe. See, e.g., Johnson v. Colt Indus., 797 F.2d 1530, 1532 (10th Cir.1986) (referring to "drop-fire" hazard). As originally designed, the Peacemaker's hammer rested very close to the firing pin when uncocked. If the hammer rests on a loaded chamber and is struck even by a moderate force, the gun can fire. Later models have various drop-fire safety devices, such as a transfer bar, that prevent the hammer from striking the firing pin when the safety is engaged. Without the safety features of modern firearms, when carrying six live rounds the Cattleman is as inherently dangerous as the original Peacemaker. According to the affidavits of record, the absence of improvements used in other firearms to guard against the risk of accidental firing made the Cattleman both defective and unreasonably dangerous. See also Bender, 517 S.W.2d at 706; Sturm, Ruger & Co. v. Bloyd, 586 S.W.2d 19, 20 (Ky.1979).
The gun in this case was fully loaded when Henry put it under the car seat. Defendant attempted to correct the danger posed by a loaded single-action revolver by designing a safety notch on the hammer that would engage the trigger when the hammer is pulled back to its quarter position. However, Plaintiffs' firearm expert stated in his affidavit that either this gun did not have a safety notch or it failed when the gun fell from the car. 4 Thus, with or without the safety feature engaged, the loaded revolver may have been equally susceptible to accidental discharge when dropped.
After their daughter's death, Plaintiffs brought this action against Defendant in Pima County, alleging Defendant was liable for the design, manufacture, sale, and distribution of a defective and unreasonably dangerous product. 5 Defendant moved to dismiss or, in the alternative, for summary judgment based on lack of personal jurisdiction. Several documents and affidavits supported the motion. Plaintiffs responded by offering supporting documents and affidavits of their own. The judge and counsel treated the matter as a motion for summary judgment, with both parties citing to the documents and affidavits that accompanied all filed pleadings.
Some of the evidentiary materials contained in the documents and affidavits relating to the motion may be subject to objection on foundational, hearsay, or other evidentiary grounds. Neither counsel nor the trial judge raised any evidentiary dispute in the summary judgment proceedings, and so far as the record before us shows, the judge relied on the affidavits and documents in making his findings. Accordingly, at least at this stage of the proceedings, we deem any evidentiary objection waived. Ancell v. Union Station Assoc., 166 Ariz. 457, 460, 803 P.2d 450, 453 (App.1990) (); see also Barone v. Rich Bros. Interstate Display Fireworks, 25 F.3d 610, 611 n. 2 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 359, 130 L.Ed.2d 313 (1994) ().
The trial judge made eight findings of fact concerning personal jurisdiction over Defendant:
THE COURT FURTHER FINDS that plaintiff has established sufficient purposeful contact with Arizona by defendant ... to establish personal jurisdiction ... under Asahi Metal Industry v. Superior Court, 480 U.S. 102 [107 S.Ct. 1026, 94 L.Ed.2d 92] (1986). Those actions which go beyond the mere stream of commerce theory of foreseeability are: (1) defendant's catalog printed in English and distributed by distributors in the United States. (2) defendant's guns are designed for appeal to the Western United States consumers. (3) defendant has at least eight U.S. distributors. (4) defendant has [exported] into the U.S. over 10,000 firearms between January 1, 1988 and July 30, 1992. (5) defendant's firearms are sold through Tucson gun stores, at least three of which regularly stock them. (6) printed instructions that accompany defendant's firearms when purchased in Arizona are in English and include defendant's Italian address and phone number. (7) a listing of defendant's line of gun production including pictures is printed in English. (8) the writing on the packaging for defendant's firearms sold in Arizona are printed in English and include the Italian address and phone number of defendant.
Based on the foregoing, it is ordered defendant's motion to dismiss (motion for summary judgment) based on lack of personal jurisdiction is denied.
Minute Entry Order of Nov. 15, 1993 (emphasis added).
The court of appeals reasoned that jurisdiction could not be asserted unless Defendant "purposefully directed" its activities at Arizona and the case resulted from injuries arising...
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