Drake v. Scheels Sporting Goods et al

Filing 49

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)

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

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