Avery et al v. Cobra Enterprises of Utah, Inc.

Filing 110

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 5/23/13. (SAC )

FILED
2013 May-23 PM 04:53
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES MICHAEL AVERY and LYNN
AVERY,
Plaintiffs,
v.
COBRA ENTERPRISES OF UTAH,
INC.,
Defendant.

}
}
}
}
}
}
}
}
}
}
}
}

CIVIL ACTION NO.
2:11-cv-02870-WMA

MEMORANDUM OPINION
Before the court is the motion of defendant, Cobra Enterprises
of Utah, Inc. (“Cobra”), for summary judgment seeking dismissal of
all claims brought by plaintiffs, James Avery (“Avery”) and Lynn
Avery (“Mrs. Avery”).1 The Averys instituted the above-entitled
action in the Circuit Court of Jefferson County on July 15, 2011.
Cobra removed the case to this court on August 16, 2011, based on
28

U.S.C.

§

1331,

arguing

that

the

non-diverse

defendant,

Southeastern Guns, Inc., was fraudulently joined to defeat subject
matter jurisdiction. Southeastern Guns was dismissed on September
8, 2011. Cobra is now the only defendant.
The original Avery complaint alleged that Cobra (1) acted

1

James Avery is the individual hurt in the incident that led to the
filing of this suit. Lynn Avery’s consortium claim is derived from her
husband’s injury claim. James will be referred to as “Avery.” Lynn will be
referred to as “Mrs. Avery.”1

1

wantonly, (2) breached an implied warranty of merchantability, and
(3) is liable under the Alabama Extended Manufacturer’s Liability
Doctrine (“AEMLD”). Mrs. Avery appended a loss of consortium claim,
alleging that as a proximate consequence of the wrongful acts
complained of, she, as a spouse, also suffered. After Cobra moved
for summary judgment, the Averys agreed to dismiss the AEMLD claim
and the wantonness claim. Therefore, only the Averys’ breach of
implied warranty claim and Mrs. Avery’s consortium claim are still
at issue. For the reasons stated below, summary judgment will be
denied as to both of these remaining claims.
Facts2
The action arises out of injuries sustained by Avery on
February 10, 2010 when he dropped a Cobra Model C32 derringer
(“derringer”), and it fired into his abdomen. The Cobra derringer
is significantly smaller than other derringers on the market and
attracts consumers who like its very small size. Avery’s son,
James, purchased the derringer for Avery because Avery wanted a
small, concealable firearm that would not be detected when he
carried it

in

his

pocket. Shortly

after James

purchased the

firearm, he gave it to his father. In 2004, Avery began carrying
the derringer every day for personal protection. He regularly
carried it without the safety engaged.

2

Because of the procedural posture, all admissible evidence is viewed
in the light most favorable to Avery.

2

On the day of the incident, Avery ran some errands, carrying
the

loaded

derringer

in

his

pants

pocket

with

the

safety

disengaged, the way he always carried it. He then entered his
vehicle and placed the loaded derringer in the console. When he
reached his home, he exited his vehicle carrying magazines, his
wallet, keys, soda bottles, and the derringer. He walked to the
trashcan on his deck to throw away the soda bottles. While he was
attempting to open the trashcan, he dropped the derringer, which,
as stated above, did not have the safety engaged. The derringer hit
the deck, whereupon it discharged and shot him in the abdomen.
Cobra and Avery differ in their descriptions of the safety
devices on the derringer. Their differences may or may not be
material. Cobra asserts that the safeties “function independently,
and both are effective.” Doc. 97 at page 5. However, Avery contends
that there are not two separate and independent safeties because
“[t]o engage ... [the cross-bolt], one has to actually pull back
the hammer before the safety can be employed in the SAFE position.”
Doc. 45 at page 3. However, there is no dispute that Avery did not
have either of the safety features engaged when the derringer
discharged on February 10, 2010.
Avery had experience with firearms throughout his life. He
went hunting for the first time at age 6, used a pistol around age
8, handled a semi-automatic handgun around age 18, and has carried
a pistol permit since the age of 18. He also served in the Navy

3

where he received formal firearm training. He had experience both
with firearms that have manual safeties and firearms that have no
safeties at all. He had no experience with a derringer until he
acquired the one at issue. Upon receiving any new firearm, he
always examined it himself to figure out how it works, but he does
not typically read the instruction manual right away. He said he
“probably...looked over” the derringer’s manual at some point while
he owned it. Avery July 18, 2012 depo at 53. He testified that he
knew a firearm could discharge if mishandled, but he did not know
that a firearm could be expected to discharge if dropped while
fully loaded with the safety off. He did not engage the derringer’s
safety because he carried it for protection and wanted to be able
to pull it out and fire quickly.
Analysis
Cobra’s AEMLD Arguments
Cobra contends that the Averys can not make out a claim for
breach of implied warranty because they cannot make a case for
AEMLD, and because a state law breach of warranty claim is subsumed
within an AEMLD claim. To support this argument, Cobra quotes the
Eleventh Circuit as follows:
courts applying Alabama law have seen fit to
subsume
U.C.C.-based
breach
of
implied
warranty
claims
into
tort
and
product
liability claims where the product is fit for
its intended use and there is no evidence of
‘non-merchantability’ other than a general
allegation that the product contains inherent
dangers.
4

Doc. 97 at 11, quoting Bodie v. Purdue Pharma Co., 236 F. App’x
511,

523

(11th

Cir.

2007)(emphasis

added).

However,

this

pronouncement is not applicable here because Avery’s claim for
breach of implied warranty is that the derringer was not fit for
its intended use.

Whether the derringer was fit for its intended

use is the very issue this court is called upon to resolve, and
Cobra’s conclusory statement does not convince the court that an
AEMLD claim subsumes an implied warranty claim. Of course, the
Averys may not succeed in their claim that the derringer was not
fit for its intended purpose, but the fact that they are dismissing
the AEMLD claim does not prevent them from claiming a breach of
implied warranty. The Alabama Supreme Court addressed this issue in
Spain v. Brown & Williamson Tobacco Corp., 872 So. 2d 101 (Ala.
2003), where it said: “a claim alleging breach of an implied
warranty of merchantability is separate and distinct from an AEMLD
claim and is viable to redress an injury caused by an unreasonably
dangerous product.” Id. at 111 (Ala. 2003). Therefore, Avery’s
breach of implied warranty claim does not fail merely because the
AEMLD claim is no longer in the case.
Cobra also argues that this “case is a design defect case
under the AEMLD. . . . No matter how Plaintiff spins this case, at
its heart it is a case of alleged design defect.” Cobra’s reply at
3.

This idea

permeates

Cobra’s

reply

brief;

many

of

Cobra’s

arguments address liability under the AEMLD rather than breach of
5

warranty. However, it does not matter that Cobra thinks the Averys’
claim is really an AEMLD claim. The Averys have expressly dropped
their AEMLD claim. The only claim before the court is a breach of
implied warranty claim.

In order for Cobra to obtain summary

judgment, it must demonstrate that, as a matter of law, there is no
viability to the Averys’ breach of implied warranty claim. Cobra
does not need to quarrel over what kind of claim the Averys should
have brought; only that the claim that is brought is so devoid of
merit that it is susceptible to a Rule 56 challenge.
Implied Warranty Claim
In order to make a claim for breach of implied warranty “the
plaintiff must prove the existence of the implied warranty, a
breach of that warranty, and damages proximately resulting from
that breach.” Barrington Corp. v. Patrick Lumber Co. Inc., 447 So.
2d 785, 787 (Ala. Civ. App. 1984), quoting Storey v. Day Heating
and Air Conditioning Co., 319 So. 2d 279 (Ala. Civ. App. 1975).
Because

this

case

is

at

the

summary

judgment

stage,

these

plaintiffs only have to demonstrate that there is at least an open
question of material fact as to each of these elements.
Existence of Warranty
The first step in the analysis is a determination of whether
there is a factual basis for finding an implied warranty. The
Alabama Code provides that an implied warranty of merchantability
for goods “is implied in a contract for their sale if the seller is
6

a merchant with respect to goods of that kind.” Ala. Code § 7-2-314
(1). Cobra says there was no implied warranty because Cobra was not
a “seller” under the statute. Cobra argues that a defendant must be
in privity with the injured party in order to be a “seller.” Avery
argues, to the contrary, that Cobra is a “seller” because Alabama
law does not require a defendant to be in privity with the
plaintiff in order to be a “seller.”
In 1976, the Alabama Supreme Court made it clear that there
was no privity requirement in a personal injury claim for breach of
implied warranty. See Bishop v. Faroy Sales, 336 So. 2d 1340
(1976). The Alabama Supreme Court there held that privity is not
required in a suit for breach of warranty as long as (1) a person
was injured and (2) it was reasonable to expect that the said
person would use the goods. Id. at 1345. After this holding, a
manufacturer could be sued in Alabama for a personal injury caused
by a breach of implied warranty.
Cobra argues that Bishop lost its precedential value after Ex
parte General Motors Corp., 769 So. 2d 903 (Ala. 1999). In General
Motors, the Alabama Supreme Court admittedly said that summary
judgment on a claim of implied warranty of merchantability would
not have been appropriate against the manufacturer because “implied
warranties are applicable only to sellers.” Id. At 910. However,
this statement was dicta. No such claim was before the court. The
quoted language is the extent of the discussion of a non-issue. The
7

court did not say, and was not called upon to say, that it would
have

over-turned

Bishop

if

the

issue

had

unavoidably

been

presented.
An implied warranty claim for economic damages does require
privity. See Rampey v. Novartis Consumer Health, Inc., 867 So. 2d
1079 (Ala. 2003). So it is possible that in General Motors the
court was referring to a summary judgment on a claim for economic
damages rather than personal injury damages. Four years after
General Motors, the court stated that it previously “abolished
privity requirements only in actions involving personal injury to
natural persons,” but “the privity requirements still remain []in
cases of strictly economic injury.” Id. at 1087.

Therefore, even

after General Motors, the court has said that privity is not
required in a case involving personal injury. This court does not
find that the court’s dicta in General Motors is sufficient to
prove that the court has changed or would change its long-standing
interpretation of implied warranties of merchantability under § 72-318.3 Bishop is still controlling precedent. Thus, privity is not
required, and Cobra is a “seller” under the Alabama statute.4 Cobra
3

See Judge Blackburn’s memorandum opinion in Sullvan v. Lowe’s, 2:03CV-02903 (N.D. Ala. April 22, 2009) for a similar conclusion regarding the
effect of Ex parte General Motors on Alabama law of what constitutes a seller
under Alabama Code § 7-2-314 (1).
4

Cobra cites some other cases in support of its assertion that a claim
for a breach of an implied warranty of merchantability applies only to sellers
in privity with the plaintiff. Cobra cites Weaver v. Dan Jones Ford, Inc., 679
So. 2d 1106, 1113 (Ala. Civ. App. 1996); however, Weaver deals with economic
damages not personal injury. As stated above, economic damages require

8

does not take issue with the fact that Avery’s evidence establishes
a prima facie case as to the other elements necessary to prove the
existence of an implied warranty. Therefore, for purposes of
Cobra’s Rule 56 motion, Avery has established that there was an
implied warranty.
Breach of Warranty
The next step is to determine if there is a question of
disputed fact as to whether Cobra breached the above assumed
implied warranty of merchantability. The controlling statute lists
six requirements that goods must meet in order to be merchantable.
See Ala. Code § 7-2-314. The requirement that the Averys focus on
is that Cobra’s goods must be “fit for the ordinary purposes for
which such goods are used.” Id. at (2)(c). Cobra confidently claims
that “there are no disputed facts regarding the fitness of the
product.” Doc. 97 at 23. However, simply saying that there are no
disputed facts on this issue does not make it so. Cobra reaches its
conclusion

based on its argument that “the product performed as

designed,” but the Averys contend:
‘ordinary purposes’ include not only those

privity. Personal injury does not. Cobra also cites Chase v. Kawasaki Motors
Corp., U.S.A., and claims that it held “summary judgment for the manufacturer
was appropriate because implied warranties apply only to the seller of goods,
not the manufacturer.”140 F. Supp. 2d 1280 (M.D. Ala. 2001). This is an
incorrect statement of the holding. The court in Chase did hold that summary
judgment was appropriate, but it did not even discuss whether the manufacturer
was a seller. It held that summary judgment was appropriate because there was
“simply no evidence in the record that Defendants breached any implied
warranty of merchantability owed to Plaintiffs.” This holding focused not on
the existence of a warranty–as Cobra suggests–but instead on whether the
existing warranty was breached.

9

uses intended by the manufacturer or seller,
but those which are reasonably foreseeable.
Whether goods are fit for their ordinary
purposes is generally a factual question.
Doc. 45 at 24 (emphasis added). The Averys contend that it could be
reasonably anticipated that a carrier of this particular derringer
might need to fire so quickly that a pause to disengage the two
safety features would destroy the defensive advantage he was buying.
This is analogous to the reasoning of hair-trigger artists of the
Old West. It may be an uphill battle for the Averys to convince a
jury that there exists such a reasonable expectation, either by
seller or by user, but on the current state of the evidence, the
Averys will be afforded the opportunity to put their theory to the
jury test. If the jury accepts Avery’s argument, it would not matter
if the derringer performed precisely as Cobra designed it to
perform.

It

could still be found not fit for the reasonably

foreseeable use to which Avery wanted to put it. The Averys’
argument is that because this derringer is designed to be used for
close-up self-defense, it is normal practice to carry it with the
safety

off,

and

thus,

in

order

to

meet

the

standard

for

merchantability, the derringer should not discharge when dropped
with the safety off. The Averys argue that there is no point in
having available an instantaneous response to an attack if the
response is so slow as to be ineffective. The parties disagree about
what the derringer’s ordinary purposes are and whether it was fit
for such purposes. These questions will be left to the jury.
10

Cobra also points out that the Averys have offered no expert
testimony to describe a defect, and says that an expert is required
in order to establish a breach of implied warranty. However, the
authority Cobra cites does not fully support this proposition. Cobra
relies upon Clark v. Allied Healthcare Products, Inc. 601 So. 2d 902
(Ala. 1992). However, the court in Clark, in affirming a grant of
summary judgment, did so because there was “no evidence of a causal
relationship between a breach of warranty and [plaintiff’s] injury.”
Id. at 903 (emphasis added). It did not say that expert testimony
of a defect is required. Cobra also says that the Alabama Code’s
“comments to [the statutory sections on warranties] regularly refer
to a plaintiff’s burden to prove a defect.” Doc. 97 at page 27.
Instead, the said comments’ discussion of “defect” revolves around
the buyer’s examination of the goods for defects and the effect that
the examination or non-examination has on the proximate cause
question.5 If the user of the product should have discovered a
defect, his injuries arguably are the result of his own negligence
rather than the result of a breach of an implied warranty. No burden
is placed on him to prove defect beyond proof that the product was
unreasonably dangerous when used as intended. The Averys may have
to argue that if Cobra could not design a derringer that would not

5
“Action by the buyer following an examination of
to have indicated the defect complained of can be shown
whether the breach itself was the cause of the injury.”
314, Implied warranty: Merchantability; usage of trade;
tissues, Comment 13.

11

the goods which ought
as matter bearing on
Code of Alabama § 7-2human blood and

discharge when dropped, it should not have placed a derringer on the
market.
Avery cites General Motors, 769 So. 2d 903, for the proposition
that
Alabama law does not require that an expert
witness testify in every case involving an
alleged malfunction of a product where the
plaintiff has sued alleging a breach of the
implied warranty of merchantability. Given the
uncontradicted evidence in this case, we
conclude that [plaintiff] presented substantial
evidence of a breach of the implied warranty of
merchantability and of damage and thereby
created a genuine issue of material fact.
Id. at 913.

Of course, expert testimony can be helpful in proving

a breach, but it is not a sine qua non. Therefore, the Averys’
implied warranty claim survives, despite the lack of an expert
witness.
Proximate Cause
The last essential element for proving a breach of implied
warranty claim is that the injury was proximately caused by the
breach. Cobra says that when a product user unreasonably fails to
examine the product before he uses it, and injury results, the
proximate cause is the user’s unreasonable behavior rather than any
alleged breach of implied warranty. The following is the excerpt
from Spain v. Brown & Williamson Tobacco Corp., 872 So. 2d 101
(Ala. 2003), that Cobra cites in support of this assertion:
(“Of course if the buyer discovers the defect
and uses the goods anyway, or if he
unreasonably fails to examine the goods before
12

he uses them, resulting injuries may be found
to result from his own action rather than
proximately from a breach of warranty.”)
(emphasis added). See also Official Comment to
§ 7-2-715, at paragraph 5 (“Where the injury
involved follows the use of goods without
discovery of the defect causing the damage,
the question of ‘proximate’ cause turns on
whether it was reasonable for the buyer to use
the goods without such inspection as would
have revealed the defects. If it was not
reasonable for him to do so, or if he did in
fact discover the defect prior to his use, the
injury would not proximately result from the
breach of warranty.”) (emphasis added). See
also Green v. American Tobacco Co., 154 So.2d
169, 172 (Fla.1963) (“If the defect is
discoverable by simple observation then the
law will imply no warranty against its
existence.”)
Id. at 115-16 (Ala. 2003). Rather than supporting Cobra’s belief
that the undisputed proximate cause of Avery’s injury was his own
behavior, Spain v. Brown & Williamson holds that whether a user
properly examines a product is only one factor to be considered in
the proximate cause analysis. If the user’s failure to examine was
unreasonable, then that failure can be a contributing cause of the
resulting injury. Avery did examine the derringer before he used
it, but whether his examination was reasonable, and whether what
he did or did not do thereafter was a proximate cause of his
injury are jury questions.
Cobra goes on to argue that summary judgment must be granted
if “there is a total lack of evidence from which the fact-finder
may reasonably infer a direct causal relation between the culpable
13

conduct and resulting injury.” Doc. 97 at page 31, citing Gooden
v. City of Talladega, 966 So. 2d 232, 240 (Ala. 2007). However,
what

Cobra

does

not

quote

is

the

following

language

that

immediately precedes its quote: “generally proximate cause is a
question to be determined by the trier of fact.” Id. at 239.
Cobra makes yet another argument that it purports to separate
from its proximate cause argument but that is itself an extension
of

its

proximate

cause

argument.

Cobra

argues

that

Avery’s

warranty claim should be dismissed because he “failed to properly
examine and use the subject firearm.” Cobra relies upon a case in
which a plaintiff was barred from recovery due to his failure to
use a safety device on a firearm. See Burleson v. RSR Group Fla.,
Ind., 981 So. 2d 1109 (Ala. 2007). However, Burleson, is not
preclusive because it is a tort case in which the action was
dismissed

because

of

the

plaintiff’s

undisputed

contributory

negligence. Id. Cobra says that “[t]here is no meaningful way to
distinguish [Burleson] from a finding that Plaintiff in this case
should be held to have assumed the risk of failing to use an
available, obvious, and effective safety device.” Doc. 97 at 36.
There is, however, a crucial distinction between Burleson, which
involved a tort claim, and the case before this court, which is a
claim for breach of implied warranty, recovery for which is not
barred

by

plaintiff’s

alleged

contributory

negligence.

As

previously stated, Avery’s conduct is a factor to be considered
14

when determining the proximate cause of his injury; but because
this is not a tort action, any negligence of which he was guilty
does not automatically bar his recovery under a non-tort theory.
Although Avery had the safety off and dropped the derringer, a
reasonable jury could conclude that his injury was proximately
caused, in whole or in part, by Cobra’s breach of warranty rather
than entirely by his own lack of due care.
Mrs. Avery’s Consortium Claim
The only argument Cobra makes for dismissal of Mrs. Avery’s
consortium claim is that “if [Avery’s] causes of action are
dismissed, Lynn Avery’s loss of consortium claims must also be
dismissed.”
implied

This is, of course, correct. Because the breach of

warranty

claim

remains,

so

too

will

Mrs.

Avery’s

consortium claim.
Conclusion
For the foregoing reasons, a separate order will be entered
denying Cobra’s motion for summary judgment as to the Averys’
breach of implied warranty claim and Mrs. Avery’s consortium
claim. All other claims will be dismissed.
Done this 23rd day of May, 2013.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

15