James Avery v Cobra Enterprises of Utah Inc (2013) H&FLR 2015-12

United States District Court (Northern Dist. of Alabama)

23 May 2013

Coram: Acker J.

Appearing for the Plaintiffs: Steven Nichols and Shay Samples (both of Hare Wynn, Newell & Newton)
Appearing for the Defendant: Hobart Arnold and James Porter (both of Porter, Porter and Hassinger), Jeffrey Malsch and Anthony Pisciotti (both of Pisciotti, Malsch & Buckley) and David Welborn.

Catchwords: Alabama – tort – firearms – personal injury – product liability – merchantability

Facts: The plaintiff (James Avery) was the owner of a Cobra Model C32 derringer handgun (made by the defendant), which he had been given in around 2004.  He was experienced in using and handling firearms and routinely carried the gun in anticipation of using it for self defence.  In order to be able to use it for this purpose without delay, he customarily carried it without engaging the safety catches.

On 10 February 2010 the plaintiff was carrying the gun in his hands along with a number of other items including soft drink bottles.  As he attempted to throw the empty bottles in a rubbish bin, he dropped the gun, which discharged and shot him in the abdomen.

The plaintiff brought proceedings against the defendant, seeking damages for (as relevant here) breach of an implied warranty of merchantability.  The defendant sought summary dismissal of the claim.

Held: Denying the defendant’s application, that –

1. A claim based on breach of an implied warranty of merchantability can be brought to seek compensation for injury caused by an unreasonable dangerous product.  It is not dependent on (in particular) also having a connected claim under the Alabama Extended Manufacturer’s Liability Doctrine.

Spain v Brown & Williamson Tobacco Corp., 872 So.2d 101 (Ala. 2003), followed.

2. In order to claim for breach of an implied warranty a plaintiff must show that there was such a warranty, that it was breached, and that the breach proximately caused harm.

Storey v Day Heating and Air Conditioning Co., 319 So.2d 279 (Ala. Civ. App. 1975) and Barrington Corp. v Patrick Lumbar Co. Inc., 447 So.2d 785 (Ala. Civ. App. 1984), followed.

2(a). Alabama Code §7-2-314(1) implies a warranty of merchantability of goods into a contract for their sale if the vendor is a merchant with respect to goods of that sort.  A manufacturer can be considered to be such a merchant, despite not having a direct contractual relationship with an injured person, if that person was injured and it was reasonable to expect that they would use the goods in question (1).

Bishop v Sales, 336 So.2d 1340 (Ala. 1976), followed
Ex Parte General Motors Corp., 769 So.2d 903 (Ala. 1999), distinguished.

2(b). Alabama Code §7-2-314 lists a number of conditions for goods to be considered merchantable, including that the goods are fit for the ordinary purposes for which goods of that type are used.  It is a jury question whether (a) self-defence is an ordinary use of a derringer-type handgun, and (b) whether it would therefore be normal to carry it with the safety features unused, such that (c) for the gun to be merchantable it should not fire when dropped with the safety off.

2(c). It is a question for a jury whether any particular event is a proximate cause of a plaintiff’s injury.


The Court’s judgment is available here.


(1) This type of relationship seems indistinguishable from the test for manufacturer’s liability established in the classic case of Donoghue v Stevenson [1932] A.C. 562 (U.K. 1932)