Opinion
No. 104442.
September 27, 1996.
Leave to Appeal Denied September 27, 1996:
Court of Appeals No. 166801.
I would grant leave to appeal.
Darnell Crawford was accidentally shot by his best friend, Anthony Bolden, on September 6, 1987. Crawford had friends over to his house and showed them a TEC-9 semiautomatic pistol that he told them he was holding for another person. Crawford removed the magazine from the weapon and handed it to Anthony. Anthony got grease on the weapon (apparently from a pizza the friends had ordered earlier), and tried to wipe it off. While doing so, the gun discharged and a bullet, which had remained in the chamber after the magazine had been removed, struck and killed Crawford.
Crawfords estate filed this action against Navegar, Inc., the manufacturer of the TEC-9, alleging design defect and failure to warn. Other counts of the complaint raised other claims against Navegar and others. Navegar moved for summary disposition, alleging, as a matter of law, that it had no duty to warn and that the gun was not defectively designed.
The trial court granted the motion, ruling that the gun was a "simple tool" that all reasonable persons would recognize as requiring that the chamber be checked for undischarged bullets. Because that danger was "open and obvious," the design was not defective and there was no duty to warn. The Court of Appeals affirmed in a divided, unpublished opinion, one judge concurring because he felt bound by Adams v Perry Furniture Co (On Remand), 198 Mich. App. 1 (1993), and one judge dissenting.
Sufficient facts were pleaded, and summary disposition was improper. Plaintiff's expert witness testified that it was not open and obvious that the chamber needed to be rechecked after the magazine had been removed. The existence of alternative designs with safety features that would have prevented a bullet in the chamber from discharging after the magazine had been removed was conceded by the defendant. This is not a case, thus, where the plaintiff did not establish that there was a feasible alternative design.
It cannot be said as a matter of law that this gun was a "simple tool," nor can it be said as a matter of law that the danger was "open and obvious." Once the magazine is removed from a gun, there are, at least on the basis of the plaintiff's expert's affidavit, enough people who would not think to also check the chamber for additional bullets. There was no evidence that Bolden was knowledgeable about firearms or that he had loaded this gun previously. Cf. Raines v Colt Industries, Inc, 757 F. Supp. 819 (ED Mich, 1991).
Summary disposition might have been proper if all reasonable minds could not differ regarding the sufficiency of the plaintiff's claim. While a jury might find that the TEC-9 is properly designed, the absence of a safety feature that prevents discharge while the magazine is removed, or that leaves a bullet in the chamber when the magazine is removed, could support a jury conclusion that the design was defective.
Further, if the gun is considered a simple tool, and the dangers are open and obvious, the manufacturer must nevertheless adopt a design that safely and feasibly guards against foreseeable misuse. Prentis v Yale Mfg Co, 421 Mich. 670 (1984); Owens v Allis-Chalmers Corp, 414 Mich. 413 (1982). Because a magazine disconnect safety device is employed in approximately fifty percent of all semiautomatic pistols, the plaintiffs have carried their burden of showing a genuine factual dispute.
The defendant has argued that an industry standard for magazine safeties does not exist because fifty percent are manufactured without safeties. But it is for the jury to decide whether an industry standard is controlling. See Owens, supra. The division in the industry is evidence that the absence of a magazine safety is a design defect.
Plaintiff's claim that Navegar failed to properly warn of the hazards involved, in light of the failure to provide any form of magazine safety, has also been sufficiently pleaded, and supported by affidavits that make the issue jury submissible.
Defendant, at least implicitly, questions the competence of a lay jury (or trial judge) to second-guess a gun manufacturer's design. The jury trial system, however, calls on the parties to provide the jury with sufficient information so that it is no longer incompetent to judge the merits of a design decision.