United States District Court, D. Nevada
the court is defendants Alliant Techsystems Operations,
LLC's and Federal Cartridge Corporation's
(“A&F”) motion for summary judgment (ECF No.
41). Plaintiff Jessie James Drake (“plaintiff”)
has opposed (ECF No. 43), and A&F have replied (ECF No.
February 2015 plaintiff visited one of Scheels sporting goods
stores in Sparks, Nevada to purchase ammunition (ECF No. 1
(Complaint)). During his visit, plaintiff picked up a box of
American Eagle XM33C ammunition that contained .50 caliber
BMG rifle cartridges (Id.). After plaintiff opened
the box, one of the cartridges became dislodged and
discharged when it fell to the floor inside Scheels'
August 31, 2017, plaintiff filed a complaint alleging several
claims against A&F including: (1) strict liability for
ultrahazardous activity; (2) strict liability for
manufacturing defect; (3) strict liability for failure to
warn; (4) negligence; and (5) breach of implied warranty of
merchantability (ECF No. 1 (complaint)). A&F moved for
summary judgment on each of plaintiff's claims (ECF No.
judgment shall be granted “if the movant shows that
there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The burden of demonstrating the absence
of a genuine issue of material fact lies with the moving
party, and for this purpose, the material lodged by the
moving party must be viewed in the light most favorable to
the nonmoving party. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 157 (1970); Martinez v. City of
Los Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998). A
material issue of fact is one that affects the outcome of the
litigation and requires a trial to resolve the differing
versions of the truth. Lynn v. Sheet Metal Workers
Int'l Ass'n, 804 F.2d 1472, 1483 (9th Cir.
1986); S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306
(9th Cir. 1982).
the moving party presents evidence that would call for
judgment as a matter of law at trial if left uncontroverted,
the respondent must show by specific facts the existence of a
genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). “[T]here is no
issue for trial unless there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that
party. If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted.” Id. at 249-50 (citations omitted).
“A mere scintilla of evidence will not do, for a jury
is permitted to draw only those inferences of which the
evidence is reasonably susceptible; it may not resort to
speculation.” British Airways Bd. v. Boeing
Co., 585 F.2d 946, 952 (9th Cir. 1978).
Strict liability for ultrahazardous activity
complaint, plaintiff claims that A&F were engaged in the
ultrahazardous activity of manufacturing .50 caliber rifle
cartridges, and plaintiff was injured as a direct and
proximate result of that activity. A&F respond that they
were not engaged in ultrahazardous activity and there is thus
no issue of material fact for trial.
and assembling .50 caliber rifle cartridges can be
accomplished safely with reasonable care, is commonplace, is
appropriate when carried on in a manufacturing facility, and
does not pose a high degree of risk when safety precautions
are taken. See Valentine v. Pioneer Chlor Alkali
Co., 864 P.2d 295, 297 (Nev. 1993) (providing factors
for determining whether an activity is ultrahazardous).
Plaintiff has failed to present any evidence establishing
that the manner in which A&F manufactured and assembled
.50 caliber rifle cartridges constituted an ultrahazardous
activity. Because plaintiff has failed to show by specific
facts the existence of an issue of material fact for trial,
A&F is entitled to summary judgment on plaintiff's
strict liability ultrahazardous activity claim.
Strict liability for manufacturing defect
claims that the cartridge was defective and was a substantial
factor in causing plaintiff's injury. In support of their
motion for summary judgment, A&F argue that the cartridge
was not defective and, even if it was, any defect was not the
legal cause of plaintiff's injury.
Nevada law, a plaintiff can successfully bring a strict
products liability claim if he shows that “(1) the
product had a defect which rendered it unreasonably
dangerous, (2) the defect existed at the time the product
left the manufacturer, and (3) the defect caused the
plaintiff's injury.” Fyssakis v. Knight Equip.
Corp., 826 P.2d 570, 571 (Nev. 1992). Also, “[t]he
plaintiff must show that the design defect in the product was
a substantial factor in causing his injury.” Price
v. Blaine Kern Artista, Inc., 893 P.2d 367, 370 (Nev.
1995). Finally, if the injury would have occurred
“notwithstanding some abstract defect in the involved
product, the manufacturer may be absolved of
support of their motion for summary judgment, A&F filed
affidavits from two experts who both opined that the
cartridge was not defective and no defect caused
plaintiff's injury (ECF No. 41 (Def. Mot. Summ. J. Exs. C
& D)). Steven Rodgers, product safety manager for Vista
Outdoor, a parent company of A&F, reviewed the evidence
in this case and determined that neither the fired cartridge
nor the packaging that housed it was defective. (Id.
Ex. C (Rodgers Aff. ¶ 17, 25)). Similarly, Kevin Vest,
test engineer at Orbital ATK, reviewed the evidence and
concluded that the fired cartridge was not defective and the
primer in the cartridge functioned as designed. (Id.
Ex. D (Vest Aff. ¶ 12)). A&F ...