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Drake v. Scheels Sporting Goods

United States District Court, D. Nevada

February 13, 2018

JESSE JAMES DRAKE, Plaintiff,
v.
SCHEELS SPORTING GOODS, a corporate entity, ALLIANT TECHSYSTEMS OPERATIONS, LLC, a subsidiary of ORBITAL ATK, INC., FEDERAL CARTRIDGE CORPORATION dba AMERICAN EAGLE, and DOES 1to 10, Defendant.

          ORDER

         Before 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. 45).

         In 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' store (Id.).

         On 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. 41).

         I. Legal standard

         Summary 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).

         Once 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).

         II. Analysis

         A. Strict liability for ultrahazardous activity

         In his 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.

         Manufacturing 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.

         B. Strict liability for manufacturing defect

         Plaintiff 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.

         Under 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 liability.” Id.

         In 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. ΒΆ 12)). A&F ...


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