UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

B.B., a minor, by and )

Through his mother and )

next friend, OWENA KNOWLES, )

)

Plaintiff, ) CASE NO.:

) 3:06-CV-00715-MHT

v. )

)

NORINCO a/k/a CHINA NORTH )

INDUSTRIES )

CORPORATION, et al., )

)

Defendants. )

BRIEF IN SUPPORT OF MOTION TO AMEND ANSWER

COMES NOW the defendant, Qiqihar Hawk Industries Co., 

Ltd., and respectfully submits this brief in support of its 

previously filed Motion to Amend its Answer to assert an 

additional affirmative defense.

Plaintiff brings this products liability case against 

China North Industries Corp. (“Norinco”) and Qiqihar Hawk 

Industries Co., Ltd., (“Qiqihar”), complaining of an injury 

to his hand when a shotgun he was using discharged. 

Specifically, Count I of the Complaint asserts a claim 

under the Alabama Extended Manufacturer’s Liability 

Doctrine. Count II alleges that defendants were negligent 

in the design and manufacture of the shotgun. Count III 

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alleges that defendants failed “to provide sufficient 

warnings for the product involved.” Count IV claims breach 

of warranties.

In its Answer to the Complaint, Qiqihar asserted –

among other affirmative defenses – the defense of 

plaintiff’s assumption of the risk. (See, Answer of 

Qiqihar, Fourth Defense, p.3.)

The Court’s Uniform Scheduling Order of July 12, 2007, 

establishes November 12, 2007, as the deadline by which 

defendants were to move to amend their pleadings.

On November 12, 2007, Norinco moved to amend its Answer 

to add the affirmative defense that the defect complained 

of by plaintiff was “open and obvious.” The Court granted 

the motion, subject to any objections being filed by the 

other parties.

The open and obvious defense is an affirmative defense 

to an AEMLD claim, but not to a negligent failure to warn 

claim. In the latter, the doctrine of open and obvious 

“obviates the defendant’s duty,” and therefore does not 

need to be pled as an affirmative defense. Abney v. 

Crosman Corporation, 919 So. 2d 289, 295 (Ala. 2005). In 

the former, the defense of open and obvious “relates to the 

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affirmative defense of assumption the risk. . . .” 

Entrekin v. Atlantic Richfield Co., 519 So. 2d 447, 450 n.5 

(Ala. 1988). By pleading assumption of the risk, Qiqihar 

has already effectively pled the open and obvious defense:

[I]t should be noted that the duty to 

warn on the part of the manufacturer 

being obviated by a danger which is open 

and obvious will no longer be an issue in 

cases brought under the Alabama Extended 

Manufacturer’s Liability Doctrine. 

Instead, it is important to note that one 

of the affirmative defenses available to 

manufacturers and suppliers under this 

doctrine is a new concept under Alabama 

law, known as assumption of the risk. In 

regards to establishing a defense of 

assumption of the risk this court in 

Atkins stated: “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.”

Ford Motor Co. v. Rodgers, 337 So. 2d 736, 740-41 (Ala. 

1979) (internal citations and emphases omitted). Thus, in 

the context of an AEMLD claim, “open and obvious” and 

“assumption of the risk” are synonymous.

Out of an abundance of caution, however, and in the 

interest of clarity, Qiqihar filed a motion on November 15, 

2007, requesting permission to amend its answer to 

explicitly state that plaintiff assumed the risk of his 

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injuries because – among other things – the danger posed by 

the shotgun, or any defect therein, was open and obvious. 

As Rule 15 of the Federal Rules of Civil Procedure states 

that “leave [to amend a pleading] shall be freely given 

when justice so requires” F.R.C.P. 15(a), this minor 

clarification would serve the interest of efficient and 

accurate disposition of the litigation.

Of course, as the Honorable Court has stated in prior 

cases, Rule 16(b) is implicated when a motion to amend the 

pleadings is filed beyond the deadline set by the Court’s 

Scheduling Order. Nobles v. Rural Community Ins. Services, 

303 F.Supp.2d 1279, 1283 (M.D. Ala. 2004). In this case, 

the motion was filed two days after the deadline.1 Qiqihar 

respectfully offers three reasons for the Court’s 

consideration in ruling upon its request for an amendment 

to its Answer.

First, Qiqihar is not adding a new affirmative defense 

but is instead elaborating upon a previously pled 

affirmative defense.

1 The deadline was November 12, 2007, which is Veterans 

Day. According to F.R.C.P. 6(a), Veterans Day is a legal 

holiday, thus making the deadline November 13th. Qiqihar 

filed its motion to amend on November 15th.

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Second, this Honorable Court has been gracious enough 

in the past to overlook filing a motion to amend a day late 

and Qiqihar would request this same grace be extended to a 

filing that is two days late. See, Nobles, 303 F.Supp.2d 

at 1283, n.2 (“In fact, Nobles and Hales’s motion would 

have been filed one day late, an error the court typically 

overlooks unless the opposing party can show substantial 

prejudice.”).

Third, trial is presently set for October 14, 2008, and 

is therefore eleven months away. The discovery cutoff is 

May 26, 2008. Allowing this clarification and elaboration 

of a previously pled affirmative defense will not affect 

any of the other deadlines in the Court’s Scheduling Order.

Pursuant to Section 15(B) of the Court’s Uniform 

Scheduling Order, the undersigned certifies he has 

conferred with counsel for the parties, Mr. David Hodge for

plaintiff and Mr. Alan Mathis for Norinco, and both state 

they have no opposition to a two-day extension of the 

deadline for Qiqihar to move to amend its pleadings.

CONCLUSION

Qiqihar requests the Court to modify its Scheduling 

Order under Rule 16(b) to allow Qiqihar to amend its Answer 

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under Rule 15(a) to supplement its affirmative defense of 

assumption of the risk to further allege that the danger 

and defect complained of was open and obvious. 

Respectfully submitted,

/s/Todd M. Higey

Todd M. Higey

Ala. Bar No. HIG019

Attorney for Qiqihar Hawk 

Industries Co. Ltd.

ADAMS AND REESE LLP

2100 3rd Avenue North, Ste. 1100

Birmingham, Alabama 35203-3367

Telephone: (205) 250-5000

Fax: (205) 250-5034

E-mail: todd.higey@arlaw.com

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CERTIFICATE OF SERVICE

I hereby certify that on November 21, 2007, 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 persons listed below:

David J. Hodge, Esq.

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

2001 Park Place North

1100 Park Place Tower

Birmingham, Alabama 35203

James C. Barton, Jr., Esq.

Alan D. Mathis, Esq.

JOHNSTON, BARTON, PROCTOR & POWELL, LLP

2900 AmSouth/Harbert Plaza

1901 Sixth Avenue North

Birmingham, Alabama 35203

Nick Wooten, Esq.

WOOTEN LAW FIRM, P.C.

P.O. Drawer 290

Lafayette, Alabama 36862

/s/Todd M. Higey

Of Counsel

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