IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

BRIAN BONNER, )

)

Plaintiff, )

)

vs. ) CASE NO. 3:06-cv-00715-MHT

)

INTERSTATE ARMS CORP., et al., )

)

Defendants. )

PLAINTIFF’S MEMORANDUM BRIEF IN OPPOSITION TO QIQIHAR

HAWK’S REQUEST FOR SUMMARY JUDGMENT

Brian Bonner offers this memorandum brief in opposition to “Qiqihar Hawk’s 

Joinder in Norinco’s Motion for Summary Judgment,” filed by Qiqihar Hawk Industries 

Co., Ltd. For the reasons stated herein, plaintiff asks this Court to deny Qiqihar Hawk’s 

request for a summary judgment.

Introductory Comments

On February 18, 2008, Qiqihar Hawk electronically filed a pleading titled

“Qiqihar Hawk’s Joinder in Norinco’s Motion for Summary Judgment.” On February 14, 

2008, China North Industries Corporation (“Norinco”) had electronically filed (1) a 

motion for summary judgment, (2) supporting memorandum brief, and (3) specified 

evidentiary materials.

Qiqihar Hawk’s February 18, 2008 pleading was just four pages of which 

approximately only three and a half pages were substantive in nature. The only thing 

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attached to the pleading was a copy of an appellate opinion. Qiqihar Hawk declared that 

it “joins in the motion of Norinco for summary judgment.” Qiqihar Hawks’ Joinder in 

Norcinco’s Motion for Summary Judgment at 1. In light of the brevity of Qiqihar Hawk’s 

pleading and the absence of any statement of facts and any extensive argument, it is 

reasonable to presume that Qiqihar Hawk adopted and incorporated Norinco’s 

submissions, including Norinco’s statement of facts and arguments.

In its summary-judgment motion and supporting memorandum brief, Norinco 

asserted but two specific grounds, namely (1) that Brian Bonner was contributorily 

negligent as a matter of law and (2) that “there is no evidence that any alleged defect in 

the shotgun contributed to Plaintiff’s injury.” Brief in Support of Defendant China North 

Industries Corporation’s Motion for Summary Judgment at 1 & 10. To the extent that 

Qiqihar Hawk adopted these two specific grounds, Brian Bonner adopts and incorporates 

herein his contemporaneously electronically filed opposition to Norinco’s summaryjudgment motion. For the very same reasons that Norinco is not entitled to a summary 

judgment based on either of these two specific grounds, Qiqihar Hawk is not entitled to a 

summary judgment based on either of these two specific grounds.

Yet, Qiqihar Hawk incorrectly suggested that Norinco asserted that it was entitled 

to a summary judgment based on the affirmative defenses of assumption of the risk and 

product misuse. Norinco never asserted that, as a matter of law, Brian assumed the risk 

of injury or misused the subject shotgun. Only Qipihar Hawk contended that, “[i]n the

alternative,” the facts described by Norinco constitute “undisputed, affirmative evidence 

demonstrat[ing] that [Brian Bonner] assumed the risk of his injury or misused the 

shotgun.” Qiqihar Hawk’s Joinder in Norinco’s Motion for Summary Judgment at 2.

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Thus, herein, Brian Bonner must address whether Qiqihar Hawk is entitled to a summary 

judgment as to either of these two grounds that only it asserted.

Argument

Under Alabama law, assumption of the risk and product misuse are affirmative 

defenses. Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 470 (11th Cir. 

1993)(assumption of the risk); Kelly v. M. Trigg Enterprises, Inc., 605 So. 2d 1185, 1192 

(Ala. 1992)(product misuse) As with any affirmative defense, Qiqihar Hawk bears the 

ultimate burden of proving that Brian Bonner assumed the risk and/or misused the 

product; Brian Bonner does not have to prove that he did not assume the risk and/or did 

not misuse the subject shotgun. Id. Therefore, in this summary-judgment proceeding, 

Qiqihar Hawk must conclusively prove that Brian Bonner assumed the risk or misused 

the product before this Court could ever grant Qiqihar Hawk a summary judgment based 

on either of these affirmative defenses. Moreover, no burden of going forward shifts to 

Brian Bonner unless Qiqihar Hawk makes a prima facie showing of its entitlement to a 

summary judgment based on either of these affirmative defenses. As discussed herein, 

Qiqihar Hawk cannot even satisfy its initial burden of making the necessary prima facie 

showing of its entitlement to a summary judgment based on either of these affirmative 

defenses.

Qiqihar Hawk fails woefully short of conclusively showing that Brian 

Bonner assumed the risk of injury and, more significantly, of 

demonstrating assumption of the risk as a matter of law.

As stated in Atkins v. American Motors Corp., 335 So. 2d 134 (Ala. 1976):

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Assumption of Risk. The defendant may establish 

that he sold a product which was unavoidably unsafe and 

the danger was either apparent to the consumer or the seller

adequately warned the consumer of the danger. (See 

Comment g, h, i, j, and k to § 402A of the Restatement for a 

discussion of defective condition, unreasonably dangerous, 

directions and warnings, and unavoidably unsafe products.)

This is not a contributory negligence defense; 

rather, it is an assumption of risk defense, which ordinarily, 

when raised, will be a question of fact for the jury. For a 

clear statement of this assumption of risk rule, we adopt the 

following language from Comment n to § 402A of the 

Restatement:

“... If the user or consumer discovers the defect and 

is aware of the danger, and nevertheless proceeds 

unreasonably to make use of the product and is 

injured by it, he is barred from recovery.”

335 So. 2d at 143. In a more recent opinion, the Supreme Court of Alabama added:

“In order to establish assumption of the risk as a 

matter of law, the evidence must show that the plaintiff 

discovered the alleged defect, was aware of the danger, 

proceeded unreasonably to use the product, and was 

injured.” Sears v. Waste Processing Equip., Inc., 695 So. 

2d 51, 53 (Ala. Civ. App. 1997)(emphasis added). “’[T]he 

plaintiff’s state of mind is determined by [a] subjective

standard,’” not the objective standard of reasonability.

H.R.H. Metals, Inc. v. Miller, 833 So. 2d 18, 27 (Ala. 

2002)(emphasis added)(quoting McIsaac v. Monte Carlo 

Club, Inc., 587 So. 2d 320, 324 (Ala. 1991)). “Assumption 

of the risk proceeds from the injured person’s actual 

awareness of the risk.” 587 So. 2d at 324. “The plaintiff 

must know that a risk is present and must understand its 

nature.” Id.

Horn v. Fadal Machining Centers, LLC, ___ So. 2d ___, 2007 WL 431427 at * 9 (Ala. 

Feb. 9, 2007)(rehearing denied).

Thus, the affirmative defense of assumption of the risk is materially different 

from the affirmative defense of contributory negligence. Assumption of the risk is 

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assessed using a purely subjective standard, without consideration of what a reasonable 

individual would have appreciated and would have done. The plaintiff must have 

actually discovered the defect and, with full appreciation of the danger associated with

the discovered defect, must have voluntarily assumed the risk of injury. Norinco 

appreciated that the evidence in the record would never support a finding of assumption 

of the risk as a matter of law.

As discussed in plaintiff’s memorandum brief in opposition to Norinco’s 

summary judgment motion, the subject defect was the defective weld or welds securing 

the shotgun’s barrel in place. There is absolutely no evidence that Brian Bonner actually 

discovered this defect prior to his injury. It took experts to discover the defect during 

post-accident inspections of the subject shotgun. Then sixteen-year-old Brian Bonner 

lacked the experience or ability to discover this defect. Brian Bonner never disassembled 

the subject shotgun during the ten days that he possessed the shotgun prior to the 

accident. Qiqihar Hawk proffered no evidence that, prior to the accident, Brian Bonner 

ever noticed any looseness of the barrel. Missing is any conclusive evidence that Brian 

Bonner had actually discovered the defect or appreciated any looseness of the barrel.

As important, missing is any conclusive evidence that, with appreciation of the 

defect and the danger posed by the defect, Brian Bonner voluntarily exposed himself to 

that danger or risk of injury. Specifically, there is no evidence of any declaration by 

Brian Bonner that he knew a weld or weld had failed and/or that barrel was loose but that 

he still chose to hold the shotgun with the barrel pointed upward while B.J. Sadler 

fetched an adult. Using a subjective standard, it is impossible to find that Brian Bonner 

assumed the risk of injury; it is certainly impossible to find that Brian Bonner assumed 

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the risk of injury as a matter of law. Qigihar Hawk has not conclusively proved the 

necessary elements of an assumption-of-the-risk affirmative defense.

Qigihar Hawk utterly fails to establish a prima facie entitlement to a summary 

judgment based on the assumption-of-the-risk affirmative defense. Moreover, the factual 

record is devoid of any evidence to support any finding, much less a finding as a matter 

of law, that Brian Bonner knowingly and voluntarily assumed any risk of injury. Brian 

Bonner was totally unaware that the subject Norenco shotgun was defective, precluding 

any finding of assumption of the risk as a matter of law.

Qiqihar Hawk fails woefully short of conclusively showing that Brian 

Bonner misused the subject shotgun and, more significantly, of 

demonstrating product misuse as a matter of law.

Qiqihar Hawk’s submission to this Court fails to state how Brian Bonner 

allegedly misused the subject shotgun. In the ten days that he possessed the subject 

shotgun prior to his accident, Brian Bonner “target” shot the shotgun on a few occasions. 

Shooting the shotgun was certainly an intended use. At the time of the accident, Brian 

Bonner was holding the shotgun with the barrel pointed upward. Holding the shotgun in 

such a manner was certainly an intended use. Qiqihar Hawk points out no possible 

misuse of the shotgun by Brian Bonner; Qiqihar Hawk certainly does not conclusively 

show that Brian Bonner misused the shotgun.

As recently stated by the Supreme Court of Alabama:

However, “’”[w]hen asserting misuse as a defense 

under [the] AEMLD, the defendant must establish that the 

plaintiff used the product in some manner different from 

that intended by the manufacturer. Stated differently, the 

plaintiff’s misuse of the product must not have been 

‘reasonably foreseeable by the seller or manufacturer.’”” 

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Sears, Roebuck & Co. v. Harris, 630 So. 2d [1018] at 1028 

[(Ala. 1993)] (quoting Kelly v. M. Trigg Enters, Inc., 605 

So. 2d 1185, 1192 (Ala. 1992), quoting in turn Edward C. 

Martin, Alabama’s Extended Manufacturer’s Liability 

Doctrine (AEMLD), 13 Am. J. Trial Advoc. 983, 1040 

(1990)(emphasis added)). ... “Ordinarily, the plaintiff’s 

misuse of an allegedly defective product is a factual issue 

for the jury.” Harris, 630 So. 2d at 1028.

Horn v. Fadal Machining Centers, LLC, ___ So. 2d ___, 2007 WL 431427 at * 13 (Ala. 

Feb. 9, 2007)(rehearing denied).

Assuming Brian Bonner was trying to unjam the shotgun when it discharged, 

something that Brian Bonner denies, Qiqihar Hawk fails to prove product misuse as a 

matter of law. In Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018 (Ala. 1993), Dexter 

McCord failed to properly install a water heater; defendants unsuccessfully argued that 

improper installation constituted product misuse. The defendants were unsuccessful 

because it was foreseeable that a water heater might be improperly installed. In the 

present matter, Qiqihar Hawk can hardly deny that it did not foresee or should have not 

foreseen that a young person shooting the subject shotgun might try to determine why the 

shotgun failed to discharge or jammed. Qiqihar Hawk cannot viably assert that reactively 

grabbing a barrel that has detached from the shotgun is product misuse.

In the sole opinion cited by Qiqihar Hawk, the gun supplier never asserted the 

affirmative defense of product misuse. This non-assertion of the product-misuse 

affirmative defense is explained by the simple fact that that gun supplier appreciated that 

it was foreseeable that a user might store a loaded gun. In the present matter, product 

misuse is not a viable affirmative defense because Brian Bonner was not using the subject 

shotgun in some unforeseeable manner at the time of the accident. Qigihar Hawk has not 

conclusively proven some material misuse of the subject shotgun.

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Conclusion

Qiqihar Hawk’s request for a summary judgment is due to be denied. Brian 

Bonner asks this Court to deny Qiqihar Hawk’s summary-judgment motion.

Respectfully submitted,

s/ David J. Hodge

Of Counsel for Plaintiff

Bar Number: ASB -4617-I71H

Pittman Dutton Kirby & Hellums, P.C.

2001 Park Place North

1100 Park Place Tower

Birmingham, Alabama 35203

(205) 322-8880

(205) 328-2711 facsimile

Email: PHDKH-efiling@pittmanhooks.com

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CERTIFICATE OF SERVICE

I hereby certify that on 6

th day of March, 2008, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which will send 

notification of such filing to the following: 

Todd M. Higey, Esq.

RICHARDSON CLEMENT, P.C.

200 Cahaba Park Circle, Suite 125

Birmingham, AL 35242

Attorney for Interstate Arms and Qiqihar Hawk

James C. Barton, Jr., Esq.

Alan D. Mathis, Esq.

JOHNSTON, BARTON, PROCTOR & POWELL, LLP

2900 Regions/Harbert Plaza

1901 6th Avenue North

Birmingham, AL 35203

Attorney for Norinco

s/ David J. Hodge

Of Counsel for Plaintiff

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