Wasylow v. Glock, Inc., Civil Action No. 94-11073-DPW.

• Decision Date: 04 April 1996
• Docket Number: Civil Action No. 94-11073-DPW.
• Citation: 975 F.Supp. 370
• Parties: Peter WASYLOW, Plaintiff, v. GLOCK, INC. and Glock Ges.m.b.H., Defendants.
• Court: U.S. District Court — District of Massachusetts

975 F.Supp. 370

Peter WASYLOW, Plaintiff, v. GLOCK, INC. and Glock Ges.m.b.H., Defendants.

Civil Action No. 94-11073-DPW.

United States District Court, D. Massachusetts.

April 4, 1996.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul F. Wynn, Wynn & Wynn, Raynham, MA, Mark R. Karsner, Karsner & Meehan, Taunton, MA, for Plaintiff.

John F. Renzulli, Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, John B. Connarton, Jr., Maria E. Ciampa, Connarton, Wood & Callahan, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

WOODLOCK, District Judge.

A 23-year-old worker in a sheriff's office, while storing his weapon at home, pulled the trigger, and shot himself in the stomach. In this products liability lawsuit, he blames the gun and its manufacturer for his self-inflicted wounds. The defendant/manufacturers¹ move for summary judgment. Concluding that there were adequate warnings regarding the use of the weapon and that the gun did what it was designed and manufactured to do when someone pulled the trigger while the weapon was loaded, I will grant defendants' motion.

I. Background

A. The Accident

On September 18, 1993, Peter Wasylow sustained a gunshot wound to the abdomen after he intentionally depressed the trigger while pointing the gun toward his abdomen. (Defs.' Mem. Supp. Mot. Summ. J., Ex. B (hereinafter "Wasylow Dep.") at 171-72, 254.) At the time, Wasylow was in his bedroom in his parents' house in Taunton, Massachusetts. During the relevant time period, Wasylow worked for the Bristol County Sheriff's Department, was a student in a correctional facilities program, and had recently completed a four-hour firearm safety class. (Defs.' Mem. Supp. Mot. Summ. J. at 3; Wasylow Dep. at 202.) Wasylow states that he did not intend to shoot himself. (Wasylow Dep. at 254.) He, however, concedes that he was "in a hurry" because friends were coming over. (Wasylow Dep. at 152, 164.)

Wasylow states that he thought the gun was unloaded at the time, and that he was preparing to store the gun in its case, the Glock box.² (Pl.'s Mem. Opp'n Mot. Summ J. at 2; Wasylow Dep. at 171.) He asserts that because of the discharge, he sustained scarring on the abdomen and back, loss of a kidney, injury to the bowel necessitating a colostomy bag, injury to the liver, pain, loss of strength, and permanent disability. He reports $35,000 in medical bills. (Jt. Pre-Trial Mem. at 1.)

Police Sergeant Michael J. Silvia ("Silvia") responded to the scene and reported a single gunshot wound to the abdomen; the wound appeared to be self-inflicted. (Defs.' Mem. Supp. Mot. Summ. J., Ex. G (police report) at 1-2.) Silvia investigated the premises with Detective Dykas and recovered the Glock Model 21, 45 ACP pistol serial number WC228US, on the floor at the foot of the bed.³ Id. Sylvia reported one spent shell in the chamber and twelve rounds of similar ammunition in the magazine, which was still in place in the pistol.⁴ (Defs.' Mem. Supp. Mot. Summ. J., Ex. G (police report) at 1); Ex. F (Silvia Dep. at 46.)

B. The Handgun and the Warnings Regarding It

Wasylow purchased the handgun, a semi-automatic pistol, on January 16, 1992, from Foster's Gun Shop in Taunton, Massachusetts. (Defs.' Mem. Supp. Mot. Summ. J. at 3.) Wasylow had used the handgun for target shooting with no malfunction on at least two occasions prior to the incident; he agreed that he liked the "way it handled," and that it was "fine." (Wasylow Dep. at 125.) Wasylow's firearm consultant, Stanton O. Berg ("Berg") has since test fired the handgun and reported that all functions were normal. (Defs.' Mem. Supp. Mot. Summ. J., Ex. H and Pl.'s Mem. Opp'n Mot. Summ. J., Ex. E (hereinafter "Berg report") at 2, 12.)

At the time of purchase Wasylow received 1) an "Instructions for Use" manual ("Instructions manual"), 2) a "Basic Rules of Firearm Safety" booklet ("Basic Rules booklet"), and 3) a storage case with warning labels affixed. (Defs.' Mem. Supp. Mot. Summ. J., Exs. D, E.) The cover of the Instructions manual reads:

WARNING: READ THIS MANUAL AND ANY ACCOMPANYING LITERATURE BEFORE REMOVING THIS FIREARM FROM ITS PACKAGE.

CAUTION: THIS FIREARM LIKE MOST MODERN REVOLVERS, OR AUTO LOADING PISTOLS, IS DESIGNED WITHOUT AN EXTERNAL MANUAL SAFETY. THEREFORE IT SHOULD BE CONSIDERED AS LOADED AND READY TO FIRE, UNLESS FIRST THE MAGAZINE HAS BEEN REMOVED AND THEN THE CHAMBER CHECKED AND VERIFIED AS EMPTY-UNLOADED.

(bold and capitals in original). Additional warnings and cautions appear on the first page of the manual, including: "your safety and the safety of others (including your family) depends on your mature compliance ... and constant employment of safe practices," and

CAUTION: IT IS POSSIBLE THAT A ROUND MAY BE IN THE CHAMBER WHEN A LOADED OR EMPTY MAGAZINE IS BEING REMOVED OR INSERTED. ANY ROUND IN THE CHAMBER WILL DISCHARGE UPON PULLING THE TRIGGER WITH THE MAGAZINE INSERTED OR REMOVED.

(Instructions manual at 1) (capitals in original). Accordingly, the manual warns that the user should use "extreme caution after removing the magazine and personally must verify that the chamber is also empty." Id. Again, the manual instructs that a user should assume the firearm is loaded until he has "inspected the chamber and completed the unloading procedures." Id. Further safety instructions appear on pages three and five of the Instructions manual:

THE PISTOL HAS NO OUTSIDE LATERAL SAFETY LEVER AND NO GRIP SAFETY DEVICE. IT IS FIRED LIKE A DOUBLE-ACTION REVOLVER BY SIMPLY PRESSING THE TRIGGER FOR COMMERCIAL USE. ALWAYS KEEP THE GUN UNLOADED. WITH THE GUN LOADED DO NOT TOUCH THE TRIGGER UNLESS YOU INTEND TO FIRE.

(Instructions manual at 5) (emphasis in original).

Additional "General Precautions" admonish: "Handle your pistol as if it were loaded," "Never point your pistol at anything you do not intend to shoot," and "MAKE SURE that no round is in the chamber." (Instructions manual at 5, 9) (emphasis in original). Finally, the manual advises, "Always make sure your pistol is not loaded before cleaning [or] storing ...." (Instructions manual at 11.) This warning is repeated in the section describing "unloading" procedures (Instructions manual at 21), and again in the section describing cleaning procedures. (Instructions manual at 23.)

Wasylow also received the Basic Rules booklet, complete with pictures; it warns:

1. Handle all firearms as if they were loaded....

2. Always keep the firearm pointed in a safe direction.... Remember: You should never point a gun (whether loaded or unloaded) at another person or at yourself ....

5. Whenever you handle a firearm, the first thing you should do (while keeping it pointed in a safe direction with your finger outside the trigger guard) is to open the action to determine whether or not the firearm is loaded.

6. Thoroughly read the instruction manual supplied with your firearm.

(Basic Rules booklet at 1-3) (emphasis in original).

In addition, bright yellow stickers affixed to the storage case read as follows:

a. WARNING: THIS BOX IS DESIGNED TO STORE AN UNLOADED WEAPON ONLY. DO NOT ATTEMPT TO STORE A LOADED WEAPON IN THIS BOX.

b. DO NOT STORE LOADED PISTOL. [This appears on two stickers, together with pictorials and the international symbol of "θ" — for "no" — in red over the loaded chamber.]

c. DANGER. If the trigger is in the forward position STOP. The pistol may be loaded! To unload the pistol, see the instructions on the back of this lid, or manual before proceeding, OR FOR HELP CALL GLOCK, INC. AT (404) 432-1202. Placing, pushing or forcing the trigger of a loaded pistol against the center post of this container can cause the pistol to fire, causing injury or death. IF YOU ATTEMPT TO STORE A LOADED PISTOL IN THIS CONTAINER, OR PULL THE TRIGGER WITHOUT FIRST FOLLOWING THE UNLOADING PROCEDURES IN THE INSTRUCTION MANUAL, YOU CAN CAUSE INJURY OR DEATH TO YOURSELF OR ANOTHER.

d. UNLOADING PROCEDURES

1. Remove magazine by depressing MAGAZINE CATCH.

2. Pull slide back to eject the round which is in the chamber.

3. Check to ensure that there is no round in the chamber.

4. Allow the slide to spring forward by releasing it. Pull the trigger into the full pulled position with weapon pointing in a safe direction.

CAUTION: ALWAYS UNLOAD YOUR PISTOL IMMEDIATELY AFTER USE AND PRIOR TO CLEANING AND STORAGE TO MINIMIZE THE RISK OF ACCIDENTAL DISCHARGE.

e. WARNING!! DO NOT USE RELOADED OR REMANUFACTURED AMMUNITION!

(Defs.' Mem. Supp. Mot. Summ. J., Ex. C) (emphasis — capitals and bold — in original differences in font size are not replicated here).

II. Standard of Review

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In addition, I must view all facts in the light most favorable to the non-moving party. Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994). However, the existence of an alleged factual dispute will not defeat a motion for summary judgment unless it is related to genuine issue of material fact. Thomas v. Digital Equipment Corp., 880 F.2d 1486, 1489 (1st Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). "When a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party bears the burden of proof at trial, there can no longer be a genuine issue as to any material fact ... and the moving party is entitled to judgment as a matter of law." Smith v. Stratus Computer, Inc., 40 F.3d 11, 12 (1st Cir.1994), cert. denied, 514 U.S. 1108, 115 S.Ct. 1958, 131 L.Ed.2d 850 (1995) (citation omitted). Thus, the purpose of summary judgment is to "pierce the pleadings" and determine "whether there is a genuine need for...