UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

BRIAN BONNER, )

)

Plaintiff, ) CASE NO.:

) 3:06-CV-00715-MHT

v. )

)

NORINCO a/k/a CHINA NORTH )

INDUSTRIES )

CORPORATION, et al., )

)

Defendants. )

Order on Pretrial Hearing

1. PARTIES AND TRIAL COUNSEL:

Plaintiff Brian Bonner, represented by David J. Hodge

Defendant Qiqihar Hawk Industries Co., Ltd., (“Qiqihar Hawk”) represented

by Todd M. Higey

Defendant Norinco a/k/a China North Industries Corporation (“Norinco”),

represented by James C. Barton, Jr. and Alan D. Mathis

COUNSEL APPEARING AT PRETRIAL HEARING: Same as trial counsel.

2. JURISDICTION AND VENUE: This Court has jurisdiction over this action

pursuant to 28 U.S.C. § 1441(d). This Court is the federal district court for the

district and division encompassing the Circuit Court of Chambers County,

Alabama, where this action was originally filed. Venue is therefore proper in

this district under 28 U.S.C. § 1441(d).

3. PLEADINGS: The following pleadings and amendments are allowed.

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For Plaintiff: 

(1) Complaint, filed with the Circuit Court of Chambers County,

Alabama on January 6, 2005;

(2) Amendment to Complaint, filed with this Court on March 15,

2007; and

(3) Second Amended Complaint, filed with this Court on July 19,

2007.

For Qiqihar Hawk:

(4) Answer to Complaint (as amended), filed with this Court on

August 13, 2007; and

(5) Amended Answer to Complaint (as amended), filed with this

Court on December 6, 2007.

For Norinco:

(1) Answer to Complaint, filed with this Court on August 16,

2006; 

(2) Answer to Second Amended Complaint, filed with this Court

on August 2, 2007; and

(3) Amended Answer to Complaint (as amended), filed with this

Court on December 6, 2007.

4. CONTENTIONS OF THE PARTIES:

(a) The plaintiff(s) contend: 

(i) That the shotgun at issue failed to discharge when the trigger was

pulled;

(ii) That the shotgun was unreasonably dangerous and/or defective

either by design or manufacture;(iii) T h a t t h e

Plaintiff appreciated the danger of handling a shotgun

and sent a bystander to get an adult to check the unstable

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shotgun;(iv) That the Plaintiff noticed that the barrel

was loose and slipping forward and tried to hold the

shotgun in a way to keep the shotgun from falling

apart;(v) That the Plaintiff was not trying to “unjam” the shotgun; (vi) That the barrel stud intended

to retain the barrel in its proper location failed through its

soldered joint on the barrel;(vii) That the solder joint

holding the barrel retaining the stud and ring in place was

faulty;(viii) That the shotgun showed no signs of

damage or deterioration; (ix) That the shotgun

showed no signs of abuse, misuse or modification; (x)

That the Plaintiff was caused severe injuries to his

right hand from the defective shotgun; (xi) That the

Plaintiff was caused to be permanently injured as a result

of the defective shotgun; 

(b) The defendants Qiqihar Hawk and Norinco contend:

(i) That plaintiff was contributorily negligent as a matter of law;

(ii) That plaintiff knew the shotgun was loaded;(iii) That the safety

was off on the shotgun being used by plaintiff;(iv)

That plaintiff placed his right hand over the end of

the barrel of the loaded shotgun;(v) That plaintiff

engaged the trigger while his right hand was over the

barrel;(vi) That any “reflexive” activity on the part of

plaintiff during the episode that caused his injury does not

relieve him of his contributory negligence;(vii) T h a t

negligently handling a loaded firearm with the safety off

constitutes contributory negligence as a matter of

Alabama law;(viii) That the barrel broke free from the

barrel guide-ring only after plaintiff shot himself; (ix)

That the separation of the barrel guide-ring from

the barrel is not material to the question of contributory

negligence as a matter of law;(x) That plaintiff misused

the shotgun in a manner that could not have been

intended or foreseen by a manufacturer; (xi) T h a t

plaintiff assumed the risk of his injury because he knew

and appreciated the danger of placing his right hand over

the end of the loaded barrel, with the safety off, while

trying to “unjam” the gun;

(xii) That the subject shotgun is free from any design defect,

specifically as the design relates to the brazed joint; (xiii)

That the subject shotgun is free from any

manufacturing defect, specifically as it relates to the

brazed joint;(xiv) That an evaluation of the brazed

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joint indicates it was broken as a result of traumatic force

and not the result of normally expected use;(xv) That the

plaintiff’s injury is due to unsafe gun handling

procedures;(xvi) That plaintiff violated the following

safety rules: pointing the weapon’s muzzle in an unsafe

direction; engaging the trigger without the intention of

firing the weapon; failing to unload the weapon prior to

its changing hands to a new shooter and prior to attempts

to “unjam” it; failing to employ the weapon’s safety

mechanism; and failing to wear eye and hearing

protection;(xvii) That neither Qiqihar Hawk nor

Norinco manufactured the subject shotgun; (xviii)

That Qiqihar Hawk and Norinco were never in a

position to detect any alleged defect to the brazed

joint;(xvix) That there is no evidence that Qiqihar

Hawk or Norinco negligently or wantonly designed,

manufactured, marketed, sold or distributed the subject

shotgun;(xx) That there is no evidence that any negligent

or wanton act or omission by defendants was a proximate

cause of plaintiff’s injury;(xxi) That the manufacturer

of the shotgun provided an owner’s manual with the

initial sale of the shotgun to the first retail customer;(xxii)

That, by virtue of the owner’s manual, all

reasonable and necessary warnings were provided by the

manufacturer;(xxiii) That any hazards posed by

the use of the shotgun were open and obvious and known

by plaintiff;(xxiv) That neither Qiqihar Hawk nor

Norinco provided any warranties, express or implied, to

any purchaser of the subject gun; and (xxv) That no

warranty, express or implied, was breached.(xxvi)

At the time of plaintiff’s injury someone other than

the defendants had modified the subject shotgun from its

original condition.(xxvii) At the time of plaintiff’s

injury the subject shotgun was not in substantially the

same condition as when it left the control of the

defendants. 

5. STIPULATIONS BY AND BETWEEN THE PARTIES:

(a) Plaintiff had been taught how to handle firearms since he was

four years old.

(b) Plaintiff began shooting guns at age 4.

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(c) Plaintiff’s mother showed him how to operate safety buttons on guns.

(d) Plaintiff’s mother taught him not to point the gun at anyone.

(e) Plaintiff’s mother taught him not to point the gun at anything unless he

intended to shoot it.

(f) Plaintiff’s mother taught him to treat guns as if they were loaded.

(g) Plaintiff’s step-father taught plaintiff about gun safety.

(h) At the time of the incident, plaintiff knew not to cock a gun unless he was

ready to shoot it. 

(i) At the time of the incident, plaintiff knew always to keep the safety

engaged.

(j) Plaintiff knew never to aim the gun at anybody.

(k) Plaintiff knew never to aim the gun at anything unless he intended to

shoot it.

(l) The subject shotgun is a Norinco Model 98, 12-gauge, 18-inch barrel,

pump shotgun, with a serial no. 0016971.

(m) The subject shotgun was sold to Langley Gun Shop in Valley, Alabama,

on May 24, 2001.

(n) The subject shotgun was eventually sold to a pawn shop.

(o) The number of owners and users between initial retail sale and

acquisition by plaintiff’s mother is unknown as is the nature of the use of the shotgun during

that time period. 

(p) The pawn shop which sold the gun to plaintiff’s mother is Pawn City.

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(q) Plaintiff’s mother purchased the shotgun from Pawn City for the

plaintiff.

(r) Pawn City represented the gun had been inspected and was safe for use.

(s) No one witnessed plaintiff’s injury except plaintiff.

(t) Plaintiff is right handed and would normally pull the trigger with his

right hand.

(u) Plaintiff was sixteen years old at the time of his injury.

(v) The parties have executed a joint stipulation regarding Plaintiff’s medical

records and expenses.

It is ORDERED that:

(1) The non-jury trial of this cause, which is

to last three days, is set for November 18, 2008, at

10:00 a.m. at the Frank M. Johnson, Jr. United States

Courthouse Complex, Courtroom 2FMJ, One Church Street,

Montgomery, Alabama.

(2) A trial docket will be mailed to counsel for

each party approximately two weeks prior to the start of

the trial term;

(3) The plaintiff is required to file proposed

findings of fact and conclusions of law by November 3,

2008. The defendants are required to file proposed

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findings of fact and conclusions of law by November 10,

2008. The parties are also directed to e:mail their

proposed findings of fact and conclusions of law to

<propord_thompson@almd.uscourts.gov> in WordPerfect

format by the dates specified above; 

(4) The parties in this case are not required to

file trial briefs. However, if they wish to do so, their

trial briefs shall be filed no later than November 12,

2008.

(5) Each party shall have available at the time

of trial, for use by the court (the judge, the courtroom

deputy clerk, and the law clerk), three copies of the

exhibit list and a sufficient number of copies of each

photostatically reproducible exhibit for opposing

counsel, the courtroom deputy clerk, the law clerk, and

the judge to each have a set of the exhibits;

(6) All deadlines not otherwise affected by this

order will remain as set forth in the uniform scheduling

order (Doc. No. 46) entered by the court on; and

(7) All understandings, agreements, deadlines,

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and stipulations contained in this pretrial order shall

be binding on all parties unless this order be hereafter

modified by Order of the court.

DONE, this the 9th day of September, 2008.

 /s/ Myron H. Thompson 

UNITED STATES DISTRICT JUDGE

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