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

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)



Ghane v Mid-South Institute of Self Defence Shooting Inc (2014) H&FLR 2014-11

Ghane and Ors v Mid-South Institute of Self Defence Shooting Inc and Ors (2014) H&FLR 2014-11 *

Supreme Court of Mississippi

16 January 2014

Coram: Waller CJ, Dickinson and Randolph PJJ, Kitchens, Pierce, King, Chandler, Coleman and Lamar JJ

Appearing for the Appellant: Benjamin Louis Taylor (of Taylor Jones & Taylor)
Appearing for the Respondent: Jay Marshall Atkins, Thomas P. Cassidy Jr (of Arnall Golden Gregory), Jeffrey E. Nicoson ( of Leitner, Williams, Dooley & Napolitan, PLLC), and Robert Q. Whitwell**.

Catchwords: Mississippi – firearm – live-fire training – Navy – accidental shooting – bulletproof wall – non-justiciable – political question – waiver – order

Facts: The defendants constructed and operated a live-fire training facility which the Navy frequently hired in order to conduct training. On 30 January 2008 during such a training exercise, a shot passed through a wall which was purportedly bulletproof, striking and killing a member of the naval team. The deceased’s survivors sought compensation from the defendants, but raised no claim against the Navy. Among the defences raised was comparative fault by the US Navy and personnel and the fact that the deceased had signed a general waiver in favour of the defendants.

It was not disputed that the law of Mississippi applied.

The defendants sought and were granted dismissal of the proceedings in the trial court on the grounds that the claim raised non-justiciable political questions relating to military training decisions and strategies. The plaintiffs appealed.

Held: By Randolph PJ, Kitchens, Pierce, King and Chandler JJ, allowing the appeal –

(1) The presence of any of six factors indicates a non-justifiable political question. The factors are (a) a clear constitutional commitment of an issue to the legislature or the executive; (b) absence of judicial standards for resolving the issue; (c) an inability to decide the issue without first making a policy decision of a non-judicial type; (d) an inability to decide the issue without manifesting disrespect for the legislature or executive; (e) an unusual need for adherence to a political decision which had been made and (f) the risk of embarrassment flowing from multiple pronouncements on one matter.

Baker v Carr, 369 US 217 (1962), followed.

(2) The mere involvement of the military in a case would not create a political question. For a private contractor to raise the political question defence it must establish that the plaintiff’s case requires examination of a military decision and that that decision is not able to be reviewed by the Court.

Carmichael v Kellog, Brown & Root Services Inc., 572 F.3d 1271 (11th Cir. 2009), followed.
McMahon v Presidential Airways Inc., 502 F. 3d 1331 (11th Cir. 2007), applied.

(3) Broad, general waivers of negligence are to be construed strictly against the defendant asserting them.

Turnbough v Ladner, 754 So.2d 467 (Miss. 1999), applied.

(4) Quaere, whether a waiver applies to a person who undertakes the activity to which the waiver applies pursuant to binding orders.

By Dickinson PJ, that the appeal should be allowed because there was insufficient evidence as to whether a political question was in fact raised by the case.

By Waller CJ, Coleman and Lamar JJ (dissenting), that the appeal should be dismissed. The defendant’s decision to raise defences of causation and the Navy’s comparative negligence. This would require a jury to apportion fault between the Navy and the defendants and this would require military decision to be reviewed, presenting a non-justifiable issue.


The Court’s judgment is available here.


* This judgment is on the border of area of ‘health and fitness law’. It is included on the grounds that the political question defence may apply to some types of high level sport (for example, national or quasi-national teams or publicly funded teams and competitions) and because of the potential relevance of the waiver issue.

**  Since appointed to the bench.

Vesely v Armslist LLC (2013) H&FLR 2014-10

Vesely v Armslist LLC (2013) H&FLR 2014-10

United States District Court (N.D. Illinois)

29 July 2013

Coram: Norgle J

Appearing for the Plaintiff: Jonathan Lowy and Lindsey Merikas (Brady Center to Prevent Gun Violence) and Jay Dobrutsky and Alexander Marks (Burke, Warren, MacKay & Serritella)
Appearing for the DefendantAndrew Lothson and James Vogts (Swanson Martin & Bell LLP)

Catchwords: Illinois – firearm – illegally purchased – advertisement – website – wrongful death – negligence – public policy – duty – foreseeability

Facts: On 13 April 2011 Demetry Smirnov (a resident of Canada) killed Jitka Vesely in Illinois using a firearm he had purchased illegally from a third party in Washington State. The firearm had been advertised for sale on http://www.armslist.com, a website operated by the defendant (a company registered in Oklahoma).

The plaintiff sought compensation from the defendant for wrongful death on the basis of negligence, as well as for the deceased’s pain and suffering pre-death, and for the deceased’s family’s costs associated with his funeral and burial. In particular, it was alleged that public policy required the court to recognise that the defendant owed a duty to the public at large, and that the defendant had negligently designed its website so that firearms could be sold illegally to dangerous people..

The defendant sought to have the claim dismissed on the grounds that it did not owe any duty to the deceased.

Held: dismissing the claim –

(1) A claim under Illinois’ Wrongful death Act requires the plaintiff to demonstrate that (a) the defendant owed a duty to the deceased; (b) that the duty was breached; (c) that the breach proximately caused the death; and (d) financial loss was caused to certain categories of people identified in the act.

Lough v BNSF Railway Co., 988 NE.2d 1090 (Ill. App. Ct. 2013), applied.

(2) In considering whether public policy requires a duty to exist a court should consider the reasonable foreseeability and likelihood of the injury, the burden to be imposed in preventing it and the consequences of so burdening a defendant.

Chicago v Beretta USA Corp., 821 NE.2d 1099 (Ill. 2004), applied.

(3) In this case it was relevant to the question of foreseeability that the defendant’s website was not involved in the sale or delivery of the firearms advertised on its website. Crimes by third parties who used the website to buy and sell firearms illegaly were not reasonably foreseeable. Further, requiring the defendant to alter its mode of business to prevent unlawful sales would impose an effectively business-ending burden on it.

Pavlides v Niles Gun Show, Inc., 93 Ohio App.3d 46, 637 N.E.2d 404 (Ohio App. Ct. 1994), distinguished


The Court’s judgment is available here.

An appeal has been lodged.