Drake v. Scheels Sporting Goods et al, No. 3:2016cv00518 - Document 49 (D. Nev. 2018)

Court Description: ORDER granting ECF No. 41 Defendants' Alliant Techsystems Operations,LLC's and Federal Cartridge Corporation's motion for summary judgment. Each party will bear its own costs and fees. Signed by Judge Howard D. McKibben on 2/13/2018. (Copies have been distributed pursuant to the NEF - LH)
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Drake v. Scheels Sporting Goods et al Doc. 49 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 16 JESSE JAMES DRAKE, ) ) Plaintiff, ) ) vs. ) ) 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, 3:16-cv-00518-HDM-WGC ORDER 17 18 19 Defendant. _________________________________ Before the court is defendants Alliant Techsystems Operations, 20 LLC’s and Federal Cartridge Corporation’s 21 summary judgment (ECF No. 41). 22 (“plaintiff”) has opposed (ECF No. 43), and A&F have replied (ECF 23 No. 45). 24 (“A&F”) motion for Plaintiff Jessie James Drake In February 2015 plaintiff visited one of Scheels sporting 25 goods stores in Sparks, Nevada to purchase ammunition (ECF No. 1 26 (Complaint)). 27 American Eagle XM33C ammunition that contained .50 caliber BMG 28 rifle cartridges (Id.). During his visit, plaintiff picked up a box of After plaintiff opened the box, one of the 1 Dockets.Justia.com 1 cartridges became dislodged and discharged when it fell to the 2 floor inside Scheels’ store (Id.). 3 On August 31, 2017, plaintiff filed a complaint alleging 4 several claims against A&F including: (1) strict liability for 5 ultrahazardous activity; (2) strict liability for manufacturing 6 defect; (3) strict liability for failure to warn; (4) negligence; 7 and (5) breach of implied warranty of merchantability (ECF No. 1 8 (complaint)). A&F moved for summary judgment on each of plaintiff’s 9 claims (ECF No. 41). 10 11 I. Legal standard Summary judgment shall be granted “if the movant shows that 12 there is no genuine issue as to any material fact and the movant is 13 entitled to judgment as a matter of law.” 14 The burden of demonstrating the absence of a genuine issue of 15 material fact lies with the moving party, and for this purpose, the 16 material lodged by the moving party must be viewed in the light 17 most favorable to the nonmoving party. 18 Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los Angeles, 141 19 F.3d 1373, 1378 (9th Cir. 1998). 20 that affects the outcome of the litigation and requires a trial to 21 resolve the differing versions of the truth. 22 Workers Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir. 1986); S.E.C. v. 23 Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). Fed. R. Civ. P. 56(a). Adickes v. S.H. Kress & A material issue of fact is one Lynn v. Sheet Metal 24 Once the moving party presents evidence that would call for 25 judgment as a matter of law at trial if left uncontroverted, the 26 respondent must show by specific facts the existence of a genuine 27 issue for trial. 28 250 (1986). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, “[T]here is no issue for trial unless there is 2 1 sufficient evidence favoring the nonmoving party for a jury to 2 return a verdict for that party. 3 colorable, or is not significantly probative, summary judgment may 4 be granted.” 5 of evidence will not do, for a jury is permitted to draw only those 6 inferences of which the evidence is reasonably susceptible; it may 7 not resort to speculation.” 8 F.2d 946, 952 (9th Cir. 1978). 9 II. If the evidence is merely Id. at 249-50 (citations omitted). “A mere scintilla British Airways Bd. v. Boeing Co., 585 Analysis 10 A. 11 In his complaint, plaintiff claims that A&F were engaged in Strict liability for ultrahazardous activity 12 the ultrahazardous activity of manufacturing .50 caliber rifle 13 cartridges, and plaintiff was injured as a direct and proximate 14 result of that activity. 15 ultrahazardous activity and there is thus no issue of material fact 16 for trial. 17 A&F respond that they were not engaged in Manufacturing and assembling .50 caliber rifle cartridges can 18 be accomplished safely with reasonable care, is commonplace, is 19 appropriate when carried on in a manufacturing facility, and does 20 not pose a high degree of risk when safety precautions are taken. 21 See Valentine v. Pioneer Chlor Alkali Co., 864 P.2d 295, 297 (Nev. 22 1993) (providing factors for determining whether an activity is 23 ultrahazardous). 24 establishing that the manner in which A&F manufactured and 25 assembled .50 caliber rifle cartridges constituted an 26 ultrahazardous activity. 27 specific facts the existence of an issue of material fact for 28 trial, A&F is entitled to summary judgment on plaintiff’s strict Plaintiff has failed to present any evidence Because plaintiff has failed to show by 3 1 liability ultrahazardous activity claim. 2 B. 3 Plaintiff claims that the cartridge was defective and was a Strict liability for manufacturing defect 4 substantial factor in causing plaintiff’s injury. 5 their motion for summary judgment, A&F argue that the cartridge was 6 not defective and, even if it was, any defect was not the legal 7 cause of plaintiff’s injury. 8 9 In support of Under Nevada law, a plaintiff can successfully bring a strict products liability claim if he shows that “(1) the product had a 10 defect which rendered it unreasonably dangerous, (2) the defect 11 existed at the time the product left the manufacturer, and (3) the 12 defect caused the plaintiff’s injury.” Fyssakis v. Knight Equip. 13 Corp., 826 P.2d 570, 571 (Nev. 1992). Also, “[t]he plaintiff must 14 show that the design defect in the product was a substantial factor 15 in causing his injury.” 16 P.2d 367, 370 (Nev. 1995). 17 occurred “notwithstanding some abstract defect in the involved 18 product, the manufacturer may be absolved of liability.” 19 Price v. Blaine Kern Artista, Inc., 893 Finally, if the injury would have Id. In support of their motion for summary judgment, A&F filed 20 affidavits from two experts who both opined that the cartridge was 21 not defective and no defect caused plaintiff’s injury (ECF No. 41 22 (Def. Mot. Summ. J. Exs. C & D)). 23 manager for Vista Outdoor, a parent company of A&F, reviewed the 24 evidence in this case and determined that neither the fired 25 cartridge nor the packaging that housed it was defective. 26 C (Rodgers Aff. ¶ 17, 25)). 27 at Orbital ATK, reviewed the evidence and concluded that the fired 28 cartridge was not defective and the primer in the cartridge Steven Rodgers, product safety (Id. Ex. Similarly, Kevin Vest, test engineer 4 1 functioned as designed. 2 thus provided the court with evidence that the cartridge and 3 packaging were not defective and that no defect in the cartridge or 4 packaging caused plaintiff’s injury. 5 (Id. Ex. D (Vest Aff. ¶ 12)). A&F have Plaintiff has not produced any evidence or specific facts to 6 refute this evidence other than his conclusory opinion that the 7 product was defective and has therefore failed to establish a 8 genuine issue of material fact for trial. 9 to summary judgment on plaintiff’s strict product liability claims. Thus, A&F are entitled 10 C. 11 Plaintiff claims that A&F failed to adequately warn consumers Strict liability for failure to warn 12 of the potential risk that a cartridge could discharge if it were 13 dropped and hit the ground. 14 A&F argue that plaintiff has failed to identify how A&F’s purported 15 failure to warn caused plaintiff’s injury. 16 are entitled to summary judgment on plaintiff’s strict liability 17 for failure to warn claim. 18 In their motion for summary judgment, Thus, A&F argue, they “In Nevada, when bringing a strict product liability failure- 19 to-warn case, the plaintiff carries the burden of proving, in part, 20 that the inadequate warning caused his injuries.” 21 Morris, Inc. 209 P.3d 271, 274 (Nev. 2009). 22 successful failure to warn claim, “a plaintiff must produce 23 evidence demonstrating the same elements as in other strict product 24 liability cases: (1) the product had a defect which rendered it 25 unreasonably dangerous, (2) the defect existed at the time the 26 product left the manufacturer, and (3) the defect caused the 27 plaintiff’s injury.” 28 omitted). Rivera v. Philip In order to bring a Id. at 275 (internal quotation marks In failure to warn cases, “[a] product may be found 5 1 unreasonably dangerous and defective if the manufacturer failed to 2 provide an adequate warning.” 3 Id. In support of their motion for summary judgment, A&F produced 4 deposition testimony from plaintiff in which he testified that he 5 had bought ammunition before and was familiar with warnings such as 6 “handle with care,” “live ammunition,” and “don’t drop.” 7 41 ((Def. Mot. Summ. J. Ex. A (Drake Dep. at 138))). 8 ammunition box that contained the fired cartridge contained clear, 9 unambiguous warnings including “discharge may occur if primer is (ECF No. The 10 struck; handle with caution, do not drop.” 11 Aff. Ex. C1)). 12 evidence that the ammunition was not defective for lack of an 13 adequate warning. 14 to warn was not the cause of plaintiff’s injury. 15 (Id. Ex. C (Rodgers A&F have therefore provided through discovery A&F have also produced evidence that a failure Plaintiff has not shown by facts or evidence that A&F’s 16 failure to warn was the cause of his injuries or that A&F’s product 17 was otherwise defective. 18 judgment on plaintiff’s strict liability for failure to warn claim. Thus, A&F are entitled to summary 19 D. 20 Plaintiff alleges that A&F negligently assembled, Negligence 21 manufactured, and distributed the fired cartridge and the box which 22 housed the cartridge. 23 packaged the fired cartridge and negligently failed to warn 24 plaintiff of the possible hazards associated with handling live 25 ammunition. 26 presumption of negligence under the res ipsa loquitur doctrine. 27 A&F respond that plaintiff cannot prevail on his negligence claims 28 as a matter of law and defendants are thus entitled to summary Plaintiff also alleges that A&F negligently Finally, plaintiff claims that he is entitled to the 6 1 2 judgment. “A claim for negligence in Nevada requires that the plaintiff 3 satisfy four elements: (1) an existing duty of care, (2) breach, 4 (3) legal causation, and (4) damages.” 5 Entm’t, LLC, 180 P.3d 1172, 1175 (Nev. 2008). 6 “[n]egligence is failure to exercise that degree of care in a given 7 situation which a reasonable man under similar circumstances would 8 exercise.” Turner v. Mandalay Sports Put differently, Driscoll v. Erreguible, 482 P.2d 291, 294 (Nev. 1971). 9 In support of their motion for summary judgment, A&F again 10 direct the court to the expert opinions of Mr. Rodgers and Mr. Vest 11 (ECF No. 41 (Def. Mot. Summ. J. Exs. C & D)). 12 of A&F’s experts opined that neither the fired cartridge nor the 13 packaging in which it was housed was defective or negligently 14 manufactured, assembled, or distributed (Id.). 15 that the warning label on the ammunition box was clear, 16 conspicuous, and adequately warned the consumer that live 17 ammunition is volatile and should be handled with care. 18 (Rodgers Aff. Ex. C1)). 19 As noted above, both A&F also point out (Id. Ex. C A&F have presented evidence that they did not breach any duty 20 of care to plaintiff. 21 evidence that A&F’s conduct was not the cause of plaintiff’s 22 injury. 23 negligence claim. 24 for trial on this claim. 25 A&F have also presented the court with Plaintiff has failed to produce evidence in support of his Therefore, there is no issue of material fact Alternatively, plaintiff argues that he is entitled to a 26 presumption of negligence under the res ipsa loquitur doctrine. 27 “Res ipsa loquitur is an exception to the general negligence rule, 28 and it permits a party to infer negligence, as opposed to 7 1 affirmatively proving it, when certain elements are met.” 2 v. State Farm Ins. Co., 18 P.3d 317, 321 (Nev. 2001). 3 elements are: Woosley Those 4 (1) the event must be of a kind which ordinarily 5 does 6 negligence; (2) the event must be caused by an 7 agency or instrumentality within the exclusive 8 control of the defendant; and (3) the event must 9 not have been due to any voluntary action or 10 not occur in the absence of someone’s contribution on the part of the plaintiff. 11 Id. 12 not fall through the box’s inner cardboard separator and explode on 13 contact with carpet in the absence of negligence” (ECF No. 1 14 (Complaint 11)). Plaintiff argues that “a [.]50 caliber BMG rifle shell does 15 In their motion for summary judgment, A&F again direct the 16 court to Mr. Rodgers’ affidavit wherein he opined that plaintiff’s 17 handling of the ammunition box caused the fired cartridge to fall. 18 (ECF No. 41 (Def. Mot. Summ. J. Ex. C (Rodgers Aff. ¶ 20)). 19 Rodgers also stated that the ammunition box was built to factory 20 specifications and was damaged after it left defendant’s control. 21 (Id.) 22 event leading to plaintiff’s injuries was caused by an 23 instrumentality outside A&F’s control and plaintiff voluntarily 24 contributed to the same event. 25 Mr. Thus, A&F have produced evidence that tends to show that the In opposing defendants’ motion, plaintiff asserts “that the 26 cartridge normally would not go off” but “did go off” resulting in 27 bodily injury (ECF No. 43 (Pl. Opp. 2)). 28 admitted that he handled the ammunition box and the ammunition 8 However, plaintiff has 1 prior to discharge. 2 discharged, both the box and the cartridge were in the exclusive 3 physical control of plaintiff and not A&F or Scheels. 4 plaintiff has failed to establish the second element necessary for 5 application of the res ipsa loquitur doctrine, to wit, the 6 cartridge and box were not within the exclusive control of A&F. 7 Thus, A&F are entitled to summary judgment on plaintiff’s 8 negligence claims. 9 E. Therefore, at the time the cartridge Accordingly, Breach of implied warranty of merchantability 10 Finally, plaintiff argues that A&F breached the implied 11 warranty of merchantability because “[t]he subject [.]50 caliber 12 BMG rifle cartridge was not fit for the ordinary purpose for which 13 such goods are used.” (ECF No. 1 (Complaint)). 14 cartridge was not defective and that plaintiff has failed to make 15 out a claim for breach of implied warranty of merchantability. 16 noted above, A&F have presented evidence that the fired cartridge 17 was not defective. 18 A&F argue that the As Again, plaintiff has presented no evidence to refute A&F’s 19 evidence that the cartridge was not defective. 20 plaintiff has not produced facts or evidence tending to show that 21 the cartridge was unfit for its ordinary purpose. 22 plaintiff has not asserted that A&F otherwise breached the implied 23 warranty of merchantability and A&F are thus entitled to summary 24 judgment on that claim. 25 goods must meet in order to be merchantable for purposes of the 26 implied warranty of merchantability). Furthermore, Finally, See NRS 104.2314 (providing the standard 27 28 9 1 2 III. Conclusion In short, plaintiff has not presented any facts or evidence to 3 refute A&F’s motion for summary judgment and no genuine issue of 4 material fact exists for trial. 5 summary judgment on all of plaintiff’s claims. 6 motion for summary judgment (ECF No. 41) is hereby GRANTED. 7 party will bear its own costs and fees. A&F are therefore entitled to 8 IT IS SO ORDERED. 9 Accordingly, A&F’s DATED: This 13th day of February, 2018. 10 11 ____________________________ UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Each