O'Neal v. Remington Arms Company, LLC et al

Filing 39

ORDER denying 25 Motion for Summary Judgment. Signed by Chief Judge Karen E. Schreier on 12/19/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
CAROL O’NEAL, as Personal
Representative of the Estate of
Lanny O’Neal, Deceased,
Plaintiff,
vs.
REMINGTON ARMS COMPANY,
LLC,
SPORTING GOODS PROPERTIES,
INC., and
E.I. DUPONT DE NEMOURS AND
COMPANY,
Defendants.

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CIV. 11-4182-KES

ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

Plaintiff, Carol O’Neal, as personal representative of the estate of Lanny
O’Neal, deceased, brought an action against defendants, Remington Arms
Company, LLC, Sporting Goods Properties, Inc., and E.I. Dupont De Nemours
and Company, alleging strict liability (product defect), strict liability (failure to
warn), negligent design and manufacture, negligent failure to warn, and
spoliation of evidence. Plaintiff’s spoliation of evidence claim was dismissed
following a motion by defendants. Defendants now move for summary
judgment on plaintiff’s remaining claims. Plaintiff opposes the motion. For the
following reasons, defendants’ motion for summary judgment is denied.

BACKGROUND
The facts, viewed in the light most favorable to the nonmoving party, are:
Plaintiff is the widow of Lanny O’Neal and is a resident of Brandon,
South Dakota. Defendants are business entities registered in the state of
Delaware and are in the business of selling firearms, one of which was the
Remington Model 700, .243 caliber bolt action rifle that is at the center of this
litigation.
On November 9, 2008, Lanny O’Neal was deer hunting with friends near
Eagle Butte, South Dakota. Lanny had loaned Mark Ritter, one of the hunters,
a Remington Model 700 rifle to use hunting that day. The hunters were
traveling in a pickup truck when they came across a deer. At the time, Ritter
was sitting in the back seat of the truck and Lanny sat in the front seat. After
the truck was stopped, Ritter began exiting the truck so that he could shoot
the deer. While Ritter was exiting, the rifle discharged, and Lanny was shot
and killed. Plaintiff alleges that the rifle was defective and that the defect was
the reason the rifle discharged, causing the death of her husband.
The rifle was manufactured in 1971. Doug Swanson, Lanny’s stepfather, acquired the rifle in the early-to-mid 1980s from the estate of his
mother’s boyfriend, Albert Mcilvenna. Swanson does not know when or how
Mcilvenna acquired the rifle. Swanson would occasionally loan the rifle to
Shawn O’Neal, Lanny’s brother. Nether Swanson nor Shawn O’Neal adjusted

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or modified the rifle during the times that they possessed it. Neither individual
had a gunsmith inspect the rifle or work on it. In approximately 2005 or 2006,
Lanny acquired the rifle and possessed it until the day he lent it to Ritter.
Following Lanny’s death, Shawn O’Neal contacted the law firm of Robins,
Kaplan, Miller & Ciresi, LLP (Robins Kaplan), in Minneapolis, Minnesota. In
December 2008, Shawn and plaintiff met with attorney Chris Messerly of
Robins Kaplan to discuss the circumstances of Lanny’s death. After this
meeting, Robins Kaplan acquired the rifle from the FBI on April 17, 2009, and
later advised plaintiff that the firm had the rifle inspected. On March 26, 2010,
plaintiff and her friend, Joe Weir, retrieved the rifle from Robins Kaplan after it
was determined that no legal action would be taken by Robins Kaplan on
behalf of plaintiff. Plaintiff then asked Weir to destroy the rifle because she did
not want the rifle that killed her husband to be in her house. Weir complied
with plaintiff’s request and destroyed the rifle.
Plaintiff brought this product liability action against defendants on
December 9, 2011. Defendants move for summary judgment on all of plaintiff’s
claims.
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,

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323 (1986) (“[A] party seeking summary judgment always bears the initial
responsibility of . . . demonstrat[ing] the absence of a genuine issue of material
fact.”) (internal quotations omitted). The moving party must inform the court of
the basis for its motion and also identify the portion of the record that shows
that there is no genuine issue in dispute. Hartnagel v. Norman, 953 F.2d 394,
395 (8th Cir. 1992). Once the moving party has met its initial burden, the
“nonmoving party may not ‘rest on mere allegations or denials, but must
demonstrate on the record the existence of specific facts which create a
genuine issue for trial.’ ” Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910
(8th Cir. 2005) (quoting Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir.
1995)). For purposes of summary judgment, the facts, and inferences drawn
from those facts, are “viewed in the light most favorable to the party opposing
the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
The court applies the standard and burden associated with the
applicable substantive law to determine whether a genuine issue for trial
exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). South Dakota
substantive law applies in this diversity action. Hammonds v. Hartford Fire Ins.
Co., 501 F.3d 991, 996 n.6 (8th Cir. 2007).

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DISCUSSION
Defendants’ motion for summary judgment argues two separate theories:
(1) without the rifle, plaintiff is unable to establish a prima facie case; and
(2) destruction of the rifle bars recovery.1
I.

Prima Facie Case
Defendants argue that plaintiff cannot make a prima facie showing of

strict liability without presenting the rifle as evidence. To establish strict
liability based on either defective design or failure to warn, plaintiff must
prove: (1) the rifle was in a defective condition that made it unreasonably
dangerous; (2) the defect existed at the time it left the control of defendants;
(3) at the time of the accident, there had not been a substantial unforeseeable
change in the condition the rifle was in when it left the control of defendants;
and (4) the defective condition of the rifle was a legal cause of the injuries.
Burley v. Kytec Innovative Sports Equip., Inc., 737 N.W.2d 397, 408-09 (S.D.
2007); Peterson v. Safway Steel Scaffolds, 400 N.W.2d 909, 912 (S.D. 1987);
Crandell v. Larkin & Jones Appliance Co., 334 N.W.2d 31, 34 (S.D. 1983); S.D.
Civ. Pattern Jury Instructions 20-120-10 & 10-120-40 (2010). Defendants

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In their brief, defendants argued that if plaintiff’s strict liability claims
fail, her negligence claims necessarily fail. Docket 26 at 17. Defendants offered
no additional arguments specific to plaintiff’s negligence claims. Because the
court concludes that plaintiff’s strict liability claims do not fail for purposes of
defendants’ summary judgment motion, the court does not separately address
plaintiff’s negligence claims.
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specifically argue that without the rifle plaintiff cannot show (a) that the rifle
was in the same condition at the time of the accident as it was when it left
defendants’ control, or (b) that any defective condition in the rifle was a legal
cause of the accident.
The South Dakota Supreme Court has held that circumstantial evidence
can be the exclusive method of proving the elements of a strict liability claim.
“No specific defect need be shown if the evidence, direct or circumstantial,
permits the inference that the accident was caused by a defect.” Crandell, 334
N.W.2d at 34. Here, plaintiff provided an affidavit from Swanson, the rifle’s
owner from the early-to-mid 1980s until it was destroyed in 2010, that
indicates that “to the best of [his] knowledge the [rifle] has never had the
trigger adjustment screws adjusted[.]” Docket 32-19 at ¶ 10. Plaintiff also
provided an affidavit from Shawn O’Neal that indicates he never had the
trigger adjustment screws adjusted between 1984 and 1988, a time period in
which he used the rifle. Docket 32-20. Therefore, plaintiff has introduced some
evidence that the rifle was in the same condition at the time of the accident as
it was when it left defendants’ control.
With regard to defendants’ claim that plaintiff cannot show legal
causation, “[c]ausation may be established by circumstantial evidence where
that evidence establishes by a preponderance, the probability that the accident
was caused by a defect.” Crandell, 334 N.W.2d at 34. Plaintiff need not

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“eliminate all other possible explanations of causation.” Id. “It is sufficient that
plaintiff negate his own and others’ misuse of the product.” Id. In addition to
the evidence discussed above, plaintiff intends to present expert testimony at
trial that will show the design of the rifle was defective.2 Thus, plaintiff has
introduced evidence that allows for an inference that a defect in the rifle was
the legal cause of the accident.
To summarize, the court is required to draw all factual inferences in
plaintiff’s favor for purposes of this summary judgment motion. Plaintiff has
introduced specific facts, i.e., testimony from the rifle’s owner of nearly thirty
years and testimony from another possessor that indicate no alterations or
modifications were ever done to the rifle, that demonstrate the rifle was in the
same condition at the time of the accident as it was when it left defendants’
possession. Assuming the rifle was in the same condition, which is an
assumption consistent with summary judgment standards, plaintiff has also
introduced specific facts, i.e., expert testimony that the design of the rifle is
defective, that demonstrate the rifle was the legal cause of the accident.
Plaintiff’s heavy reliance on circumstantial evidence may be vulnerable at trial,

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It is also worth noting that discovery has not concluded. Pursuant to
the scheduling order, the discovery deadline does not occur until three months
from now. Docket 24. New facts may come to light in the next three months,
including plaintiff may find additional evidence that suggests that the rifle was
never adjusted or altered by talking with people who were familiar with the
weapon prior to 1980.
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but the court will not evaluate the weight of that evidence at this stage of the
litigation. See Kenney v. Swift Transp., Inc., 347 F.3d 1041, 1044 (8th Cir.
2003) (“In ruling on a motion for summary judgment a court must not weigh
evidence or make credibility determinations.”).
II.

Destruction of Evidence
Defendants also argue that plaintiff’s claims are barred because she

intentionally destroyed the rifle. “[T]o warrant dismissal as a sanction for
spoliation of evidence ‘there must be a finding of intentional destruction
indicating a desire to suppress the truth.’ ” Menz v. New Holland North
America, Inc., 440 F.3d 1002, 1006 (8th Cir. 2006) (quoting Stevenson v. Union
Pac. R.R. Co., 354 F.3d 739, 745 (8th Cir. 2004)); see also State v. Engesser,
661 N.W.2d 739, 755 (S.D. 2003) (requiring a finding that a party intentionally
destroyed the evidence and did so in bad faith before an adverse inference
instruction may be given).3 Here, the parties agree that plaintiff intentionally
destroyed the rifle. The issue then is whether she did so with a desire to
suppress the truth.
Plaintiff asserts that she destroyed the rifle because it reminded her of
the death of her husband, and she did not want that reminder in her house.
Defendants have not provided any direct evidence to show that plaintiff

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The court need not decide whether federal or state law governs
defendants’ spoliation of evidence argument because the result is the same
under both. Menz, 440 F.3d at 1006.
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destroyed the rifle with a desire to suppress the truth. The evidence that
defendants have presented requires additional inferences to get to the
conclusion that plaintiff desired to suppress the truth. But such inferences are
required to be made in plaintiff’s favor, not defendants’, for purposes of this
summary judgment motion. Thus, there exists a genuine issue as to whether
plaintiff destroyed the rifle with a desire to suppress the truth.
Defendants further argue that plaintiff’s claims should be dismissed
regardless of whether plaintiff destroyed the rifle with a desire to suppress the
truth because the destruction is extremely prejudicial to their ability to defend
themselves. When confronted with this type of argument, courts have relied on
their inherent power to sanction litigants “for conduct which abuses the
judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991).
“[D]ismissal may be ordered as a sanction upon a finding of bad faith,
willfulness, or fault.” Dillon v. Nissan Motor Co., 986 F.2d 263, 266 (8th Cir.
1993). Defendants cite an assortment of cases to support their “extreme
prejudice” argument. None of these cases, however, are binding on this court.
Additionally, determining whether to sanction a litigant for conduct that
abuses the judicial process is fact driven and is a “question peculiarly
committed to the district court.” Id. at 268.
After a careful review of the facts, the court concludes that the judicial
process has not been abused such that a sanction of dismissal is appropriate

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at this stage of the litigation. First, plaintiff stated that she had no intention of
bringing a lawsuit against defendants at the time she destroyed the rifle. If this
is true, it is hard to say that an act outside of any litigation process abused the
judicial process. Defendants have not provided any direct evidence that
plaintiff was anticipating bringing a suit against them at the time she
destroyed the rifle. Second, discovery has not concluded and additional facts
may come to light as discovery proceeds. Third, there is still a question of
whether the Robins Kaplan law firm had the rifle analyzed. Thus, the court
declines to dismiss plaintiff’s claims under its inherent authority. After all,
plaintiff bears the burden of proof if her case goes to trial. “Thus, in a case
such as this, where [plaintiff is] pursuing a products liability action without
the product, the prejudice they have suffered due to the loss of the product
may equal or exceed that suffered by the [defendants].” Menz, 440 F.3d at
1006.
CONCLUSION
Plaintiff’s destruction of the rifle does not automatically prevent her
from establishing her prima facie case. At this stage in the litigation, plaintiff
has presented sufficient evidence to prove her prima facie case through
circumstantial and direct evidence that prevents the court from dismissing
plaintiff’s claims. Additionally, the court concludes that dismissing plaintiff’s

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claims as a sanction for destroying the rifle is inappropriate at this time.
Accordingly, it is
ORDERED that defendants’ motion for summary judgment (Docket 25)
is denied.
Dated December 19, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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