A large portion of Alabama residents pride themselves on being owners of firearms. Assuming they are not felons and lack a substance abuse or mental health issue, that is their Constitutional right.
However, it’s no secret guns can be incredibly dangerous. In some cases, they are manufactured in a way that makes them unreasonably dangerous. Our Birmingham dangerous products lawyers recognize that it’s not enough to prove someone was seriously injured or even killed with a firearm.
In a case alleging product liability involving a gun, one must be able to prove that the weapon was unreasonably dangerous when used appropriately. Alabama law requires that products be fit for the ordinary purpose for which such goods are used. However, there have been some cases in which “ordinary purposes” have been shown to mean not only the use intended by the manufacturer or seller, but those uses that are reasonably foreseeable.
It was this argument that was presented in the case of Avery v. Cobra Enterprises of Utah, Inc., wherein the plaintiff alleged the defendant manufacturer should have anticipated that a carrier of this certain type of weapon (a derringer) might need to fire the gun so quickly that a pause to disengage the two safety features would destroy the defensive advantage.
In weighing this claim of injury caused by the weapon with a request for a summary judgment for the manufacturer, the U.S. District Court for the Northern District of Alabama Southern Division dismissed most claims, but did allow the plaintiff’s breach of implied warranty claim and his wife’s loss of consortium claim to continue.
According to court records in the case, the plaintiff’s son purchased the weapon for him as a means to retain a concealable firearm for protection. That was back in 2004, and the plaintiff carried the weapon with him daily for protection. He did not keep the safety engaged.
On the day of the incident, the plaintiff was running errands with the loaded weapon in his pocket, the safety disengaged as always. After completing his errands, he put all his bags in the vehicle and put the gun in the console. He dropped the gun, and it discharged, shooting him in the abdomen.
This was an individual who had received formal firearm training in the U.S. Navy and had experience with firearms since the age of 6. He indicated he kept the safety disengaged because, as the weapon was required for protection, he wanted to be able to pull it out and fire quickly, if necessary.
This was central to his argument against the manufacturer, which moved for a summary judgment. The court denied this request, finding it had not proven there was no evidence of a breach of implied warranty.
In order to prove such a claim, a plaintiff has to show that there was an implied warranty, that the warranty was breached and that damages proximately resulted from that breach.
The court noted that it could be an “uphill battle” for the plaintiff to prove that a reasonable expectation exists that a gun with the safety disengaged should be safe for users who may need to use it for a hair-trigger response. However, the court found that was a matter of fact for the jury, not a matter of law for the court.
More commonly, homeowners who negligently store firearms may face a premises liability action when a visitor or guest (typically a child) is injured or killed as a result of accidental shooting.
Avery v. Cobra Enterprises of Utah, Inc., May 23, 2013, U.S. District Court of the Northern District of Alabama, Southern Division
Fatal Truck Crash Reportedly Caused by Fatigued Driver, June 10, 2014, Birmingham Dangerous Products Lawyer Blog
"We realize there are many options for representation out there, and we talked with several of the "big names" before finding Cross and Smith. With the others, it felt like we were being bullied, in a tank with hungry sharks. We are still receiving junk mail from some. We are SO thankful we were referred to Justin Smith (Cross and Smith) for our accident claim. He and his team were absolutely amazing."