UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

BRIAN BONNER, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Case No.: 3:06-cv-00715-MHT 

 ) 

NORINCO a/k/a ) 

CHINA NORTH INDUSTRIES CORP. ) 

et al., ) 

 ) 

 Defendants. ) 

DEFENDANT CHINA NORTH INDUSTRIES CORPORATION’S

REPLY IN FURTHER SUPPORT OF ITS

MOTION FOR SUMMARY JUDGMENT

The analysis of this case begins and ends with Plaintiff’s negligent handling of the 

subject shotgun. It is undisputed that Plaintiff understood the importance of engaging a 

gun’s safety. It is also undisputed that he failed to engage the safety of the subject 

shotgun, which he knew to be loaded and cocked. The Supreme Court of Alabama’s 

decision in Burleson v. RJR Group Florida, Inc., conclusively establishes that Plaintiff’s 

handling of the shotgun was negligent as a matter of law. 

In a desperate attempt to avoid summary judgment, Plaintiff has attempted to 

manufacture a dispute of fact by positing a scenario in which one must assume that the 

laws of gravity no longer exist. Plaintiff’s scenario also assumes that it is a “natural 

instinctive reaction” to grab the top of the barrel of a loaded and cocked shotgun if the 

barrel becomes loose. There is simply no factual support for Plaintiff’s position — 

Plaintiff admitted at his deposition that he does not remember how his injury occurred 

and there was no other witness to the incident. Accordingly, this Court is left with a 

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record devoid of any factual evidence supporting Plaintiff’s allegations. The Court’s 

obligation to view the evidence in the light most favorable to Plaintiff certainly does not 

require the Court to accept what amounts to pure speculation. Norinco is entitled to a 

summary judgment as a matter of law. 

I. The Danger of Handling a Loaded Gun Without Engaging the Safety is SelfEvident. 

In Burleson v. RSR Group Florida, Inc., the Supreme Court of Alabama held that 

contributory negligence barred the plaintiffs’ gun defect claim as a matter of law because 

“the danger of handling a firearm with a live cartridge chambered in line with the 

hammer and the firing pin without having first engaged the manual safety is selfevident.” 2007 Ala. LEXIS 195, at *11. The opposition brief filed by Plaintiff, who 

injured his right hand while handling a loaded and cocked shotgun with the gun’s safety 

disengaged, does nothing to escape the dispositive effect of the Burleson decision. 

Plaintiff has identified several cases in which the Supreme Court of Alabama 

stated that to be contributorily negligent as a matter of law a plaintiff must have had a 

“conscious appreciation” of the danger involved. (Plaintiff’s Opposition Brief, Doc. # 

82, p. 6-7.) As an initial matter, each of the cases cited by Plaintiff were decided years 

before the Supreme Court of Alabama’s decision in Burleson, which was entered just last 

September. Moreover, Plaintiff ignores that the Burleson court considered the 

“conscious appreciation” requirement and held that the decedent was contributorily 

negligent because “reasonable people would have to logically conclude that he should 

have at least appreciated the danger associated with [handling a firearm with a live 

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cartridge chambered in line with the hammer and the firing pin without having first 

engaged the manual safety].” Id. at *11-12 (emphasis in original). 

Plaintiff has attempted to distinguish Burleson by claiming that Plaintiff was 

inexperienced with guns. This conflicts with Plaintiff’s deposition testimony, which 

indicates a familiarity with a variety of firearms from a young age. (B. Bonner Dep., p. 

18, lines 8-18.) It also conflicts with Plaintiff’s mother’s testimony that she began 

teaching Plaintiff about guns and gun safety when he was only four years old. (O. 

Knowles Dep., p. 13, lines 1-15.) Regardless of Plaintiff’s precise level of experience, 

however, it is undisputed that Plaintiff knew that he should have had the gun’s safety 

engaged unless he was ready to fire the gun. (B. Bonner Dep., p. 26, lines 11-20.) 

Despite that knowledge, it is undisputed that Plaintiff failed to engage the safety of a 

shotgun he knew to be loaded and cocked. Based on Plaintiff’s own testimony about his 

understanding of gun safety, reasonable people would have to logically conclude that he 

should have appreciated the danger associated with handling the shotgun in that manner. 

 Plaintiff’s claims are, therefore, barred as a matter of law, and the Court’s analysis 

of the case need not proceed further — Plaintiff’s disingenuous manipulation of the 

record can be disregarded. See Burleson, 2007 Ala. LEXIS 195, at *7 (concluding that 

decedent’s contributory negligence barred recovery even assuming the gun was defective 

and that there was a causal connection with decedent’s death). 

II. Plaintiff’s Claims are Based on Assumptions Suggested to Plaintiff after His 

Injury — Not on Facts in Evidence. 

 Even ignoring the binding, dispositive effect of Burleson and Plaintiff’s 

contributory negligence, Plaintiff’s claims would still fail because there is no evidence to 

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support Plaintiff’s and Plaintiff’s experts’ explanation of the incident. Plaintiff’s story is 

built upon layers of speculation and assumptions. Regardless of whether Plaintiff alleges 

that the shotgun “fell apart” or that he “sensed the barrel sliding off,” Plaintiff’s own 

testimony shows that such allegations — the basis of Plaintiff’s experts’ opinions — are 

based not on the Plaintiff’s memory or on any statements of eye witnesses, but rather on 

assumptions suggested to Plaintiff after the accident — assumptions that defy the laws of 

gravity. 

 Plaintiff now concedes that the shotgun did not “fall apart.” (Plaintiff’s 

Opposition Brief, Doc. #82, pp. 16-17.) Instead, he claims that he was holding the 

shotgun with the barrel pointed upward when he “sensed the barrel sliding off.” 

(Plaintiff’s Opposition Brief, Doc. # 82, p. 5.) He claims his “sense” that the barrel was 

sliding off caused him “instinctively” to place his right hand on top of the barrel. Id. He 

assumes that the gun discharged when his left hand inadvertently engaged the trigger. 

Id. 

 As an initial matter, this new rendition of how Plaintiff’s injury occurred is an 

insult to common sense. Because of the way the barrel fits into the receiver, the barrel 

would have to levitate to slide off of the gun while pointing upward. Also, the 

assumption that it would be a “natural instinctive reaction” for anyone to grab the top of 

the barrel of a loaded and cocked shotgun for any reason is baseless. 

 Additionally, there is an utter lack of evidentiary support for Plaintiff’s position. 

Plaintiff has attempted to support his claims by cherry-picking certain excerpts from 

Plaintiff’s deposition testimony. (Plaintiff’s Opposition Brief, Doc. # 82, p. 17) (citing 

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Deposition of Brian Bonner at 73, 75 & 87-88). Plaintiff relies upon the following 

excerpts: 

 

• On page 73: Q: All right. And did you reach out to grab the gun? 

 A: I believe by instincts, reflexes, when it started to fall 

 apart, yes, sir. 

 

• On page 75: Q: What happened next? 

 A: I think everything just – The barrel fell off and by 

 reflexes, I reached and grabbed it. And that’s all I 

 really remember on my part. 

 Q: You said the barrel was pointing up in the air? 

 A: Yes, sir. 

 Q: And you say it started to fall? 

 A: Yes, sir. 

 Q: In what fashion? 

 A: I think – I’m not really sure. I think the gun went 

 like that (indicating), and the barrel started to slide 

 off, something like that. And by reflex, I reached 

 and grabbed it. 

 

• On pages 87-88: Q: Is it possible, when you were out there in the field 

 right before you injured yourself, that the barrel did 

 not fall off? 

 A: I really don’t know. I believe it was sliding off. 

 

The fatal deficiencies of Plaintiff’s reliance on these excerpts become obvious when the 

relevant questioning is read in progression. Such a reading illustrates how the examiner 

was able to cut through Plaintiff’s fabricated story and arrive at the truth — that Plaintiff 

does not remember how his injury occurred. 

 

• On pages 87-89: Q: Now, you said Chris [Dennis] said – told you the 

 gun – the barrel fell off? 

 A: Uh-huh. 

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 Q: Did he say whether the barrel fell off when he 

 picked it up in the field? 

 A: He didn’t say that. He said when he was walking 

 up the steps into his front door, the barrel just slid 

 right off and fell off into the floor. 

 Q: Is it possible, when you were out there in the field 

 right before you injured yourself, that the barrel did 

 not fall off? 

 A: I really don’t know. I believe it was sliding off. 

 Q: But it may have been not sliding at all? In other 

 words, how sure are you that the barrel came off 

 when you were out there in the field? 

 A: I’m not really sure. I just know that it fell off when 

 he told me. That’s the reason I figured. 

 ... 

 Q: When Chris [Dennis] told you the barrel fell off for 

 him, did you figure that it must have fallen off for 

 you? 

 A: If it was broken at the time. 

 

• On page 110: Q: You don’t remember whether the barrel fell off? 

 A: No, sir. 

 

A complete reading of the relevant excerpts reveals that Plaintiff finally admitted 

that he had no actual memory of what happened just before the gun discharged — that his 

story was based on speculation and assumptions derived from what Chris Dennis told 

him after the accident. (B. Bonner Dep., pp. 87-89, 110.) 

Plaintiff’s deposition testimony demonstrates that Plaintiff — the only witness to 

the incident — is not capable of testifying to the cause of his injury. No amount of 

speculation or wordplay will change that. Plaintiff’s allegations, and Plaintiff’s experts’ 

opinions, are not based on facts in evidence — they are based on speculation and 

assumptions that will never be more than conclusory allegations. Plaintiff’s claims 

therefore fail as a matter of law. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th 

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Cir. 1985) (stating that “conclusory allegations without specific supporting facts have no 

probative value” and affirming summary judgment for defendant). 

III. Conclusion. 

 Plaintiff was negligent in handling the subject shotgun as a matter of law. His 

negligence bars recovery in this case, regardless of the issues of defect and causal 

connection. See Burleson, 2007 Ala. LEXIS 195, at *7. Accordingly, a finding of 

contributory negligence would end the Court’s analysis. 

 Even without such a finding, however, Plaintiff’s claims fail as a matter of law 

because they are based on speculation and assumptions — not on facts in evidence. Such 

conclusory allegations are insufficient to avoid summary judgment. 

 For the foregoing reasons and the reasons stated in Norinco’s brief in support of 

its Motion for Summary Judgment, Norinco respectfully requests that the Court enter 

judgment in its favor on all claims asserted against it by Plaintiff. 

 

Respectfully submitted, 

s/ James C. Barton, Jr. 

James C. Barton, Jr. (BAR014) 

Bar Number: ASB-0237-B51J 

Email: jbartonjr@johnstonbarton.com 

s/ Alan D. Mathis 

Alan D. Mathis (MAT052) 

Bar Number: ASB-8922-A59M 

Email: adm@johnstonbarton.com 

Attorneys for defendant 

China North Industries Corporation 

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JOHNSTON BARTON PROCTOR & ROSE LLP 

Colonial Brookwood Center 

569 Brookwood Village, Suite 901 

Birmingham, Alabama 35209 

(205) 458-9400 

(205) 458-9500 (FAX) 

OF COUNSEL 

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the above and foregoing with the Clerk 

of the Court on March 21, 2008, using the CM/ECF system, which will send notification 

of such filing to the following: 

 

David J. Hodge, Esq. 

PITTMAN, DUTTON, KIRBY & HELLUMS, P.C. 

2001 Park Place North 

1100 Park Place Tower 

Birmingham, Alabama 35203 

Nick Wooten, Esq. 

WOOTEN & CARLTON, P.C. 

P.O. Drawer 290 

Lafayette, Alabama 36862 

Todd M. Higey, Esq. 

 RICHARDSONCLEMENT, P.C. 

 200 Cahaba Park Circle 

 Suite 125 

 Birmingham, Alabama 35242 

 

 

 s/ Alan D. Mathis 

 Of Counsel 

W0637780.DOC 

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