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. )

REPLY BRIEF OF QIQIHAR HAWK IN

SUPPORT OF MOTION FOR SUMMARY JUDGMENT

COMES NOW the defendant, Qiqihar Hawk Industries Co., 

Ltd., and submits the following reply brief in support of 

its motion for summary judgment:

Plaintiff asserts a products liability action under 

Alabama law against Qiqihar Hawk for an injury sustained to 

his right hand while using a shotgun. Defendant Norinco 

moved for summary judgment on the affirmative defense of 

contributory negligence as a matter of law. Qiqihar Hawk 

joined in that motion for summary judgment, adopting and 

incorporating by reference Norinco’s motion, evidentiary 

submission and supporting brief. Qiqihar Hawk further 

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moved for summary judgment on two additional affirmative 

defenses: product misuse and assumption of the risk.

I. Contributory Negligence.

Plaintiff has admitted to four facts which undeniably 

constitute contributory negligence as a matter of law. 

First, plaintiff admits knowing the shotgun was loaded.

(Bonner dep. at 71.12-14.) Second, plaintiff admits the 

safety was off. (Aff. of John Butters at page 2, attached 

as Exh. A to Pl.’s Opposition Br.)1 Third, plaintiff admits 

placing his right hand over the end of the barrel of the 

loaded shotgun. (Bonner dep. at 75.17-19.) And fourth, 

plaintiff admits using his left hand to pull the trigger 

while his right hand was over the barrel. (Aff. of Butters 

at page 2.)

2 These four admitted facts alone, irrespective 

of any other facts, demand that plaintiff be found 

contributorily negligent as a matter of law, particularly 

1 In order to assert his opinion, plaintiff’s liability 

expert was forced to conclude the safety of the gun was 

disengaged. Plaintiff could not remember one way or the 

other. (Bonner dep. at 80.4-6.)

2 Again, in order to render his opinion, plaintiff’s 

liability expert had to admit plaintiff pulled the trigger 

of his gun. And again, plaintiff testified he could not 

remember whether he pulled the trigger. (Bonner dep. at 

110.1-5.)

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under the authority of Burleson v. RSR Group Florida, Inc.

No. 1050360, 2007 Ala. LEXIS 195 (Ala. Sept. 21, 2007). 

Notwithstanding these undisputed facts which undeniably 

point to contributory negligence, plaintiff seeks to create 

an issue of fact in his brief by summarizing and 

mischaracterizing his testimony. Specifically, he claims 

the following: “When, while pointed upward, the barrel 

started to move, giving the impression of beginning to fall 

off, Brian Bonner reflexively grabbed the barrel with his 

right hand.” (Pl.’s Br. at 11.) Apparently, plaintiff is 

suggesting he is relieved of any contributory negligence

because he was acting “reflexively” when he grabbed the end 

of the barrel. This is not so. In Campbell v. Alabama 

Power Company, 567 So. 2d 1222 (Ala. 1990), a house mover 

fell from the roof of a moving house and grabbed a live 

power line “out of a reflex reaction to losing his 

balance.” 567 So. 2d at 1226. He sued Alabama Power for 

being negligent in the maintenance and location of the 

power line. Id. at 1223. In affirming a finding of 

contributory negligence as a matter of law, the Alabama 

Supreme Court explained, “One who wrongfully and 

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voluntarily puts himself in a position of danger cannot 

invoke the ‘sudden emergency’ doctrine and thereby escape a 

charge of contributory negligence.” Id. at 1225. Even 

assuming plaintiff “reflexively” grabbed a “falling” 

shotgun barrel, plaintiff put himself in a position of 

danger by handling a loaded gun with the safety disengaged; 

such conduct therefore renders him contributorily negligent

as a matter of law.

However, as a careful examination of the evidence 

reveals, plaintiff ultimately admitted he did not really

remember the barrel falling off and he is – in fact -

speculating. The following is plaintiff’s testimony on the 

subject of how he was injured:

3

Q. And tell me how the incident 

happened, how you injured your hand.

A. He was shooting the gun.

Q. Who is he?

A. B.J.

3 For the convenience of the Court in understanding the 

following testimony, particularly with respect to the terms 

used as they relate to the shotgun, a selected excerpt from 

the Owner’s Manual is attached hereto as Exhibit A as a 

demonstrative exhibit, containing a diagram of an exemplar 

shotgun.

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Q. Okay.

A. And it misfired and I got it from 

him. And it’s the pretty much the last 

thing I remember. It all happened so 

fast.

(Bonner dep. at 62.1-10.) (Emphasis added.) Upon further 

examination, plaintiff testified as follows:

Q. And [B.J.] did what then?

A. He handed it over to me.

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.

Q. Now, you were behind him when this 

occurred?

A. Yes, sir. Pretty much behind him at 

an angle. He was standing here and I was 

probably standing back here 

somewhere(indicating).

Q. Okay. All right. So, you were on 

his left side?

A. I believe so, yes, sir.

Q. Is he right-handed?

A. Yes, sir.

Q. So, he had the gun mounted on his 

right shoulder?

A. Yes, sir.

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Q. And did you go to him or he turn to 

you?

A. He turned to me.

Q. All right. And which way did he 

turn?

A. Like this way (indicating).

Q. So, he turned to his left? And how 

did he hand the gun to you?

A. Just handed it over.

Q. Where was the barrel pointing?

A. Up.

Q. Was it pointing up over his right or 

his left or straight up? 

A. I can’t remember.

Q. Do you – How did you grab or receive 

the gun?

A. With both hands, just grabbed it, 

one hand on the bump area and the other 

hand on the stock.4

Q. All right. And which hand grabbed 

the pump?5

A. I believe my left hand. I’m not 

really sure.

4 The “stock” is also known as the “buttstock.”

5 The “pump” is also known as the “fore-end.”

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Q. And you think your right hand 

grabbed the stock?

A. I believe so, yes.

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 remember on 

my part. 

Q. You say 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.

Q. Which hand did you grab the barrel 

with?

A. My right.

Q. And at that time, what was your left 

hand grabbing?

A. I believe it was on the stock. 

Q. Where did you grab the barrel?

A. On the top.

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Q. Why did you grab the barrel on top?

A. I have no idea. I can’t remember.

Q. Well, what happened when you grabbed

the barrel on top?

A. I can’t remember. The next thing I 

knew I had a hole in my hand.

Q. So, you don’t remember anything 

between the time you reached to grab the 

barrel and your injury? 

A. Yes, sir.

Q. You cannot say whether you had your 

left hand on the trigger?

A. I can’t say that, yes.

Q. You can’t say that you pushed the 

barrel or shoved the barrel into the 

receiver? 

A. Yes, sir. Yes, sir.

Q. You can’t say that right. You just 

don’t remember?

A. I don’t remember sir.

Q. And B.J. was facing you when all 

this happened?

A. By the time I got shot, he was 

already walking back towards the house 

because I told him to get my uncle. 

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(Bonner dep. at 72.22-77.5.) (Emphasis added.) Plaintiff’s 

testimony on the subject continues:

Q. So, he had started walking to Aunt 

Bobby’s?

A. Yes, sir.

Q. And at what point did the barrel 

start to come off?

A. While he was walking.

Q. Had you lowered the gun in any 

fashion?

A. I can’t remember.

Q. So, he was looking away when it 

actually discharged?

A. Yes, sir.

Q. And it injured your right hand?

A. Yes, sir.

Q. And tell me what ya’ll did right 

after that happened.

A. I grabbed my right hand with my left 

hand. I believe I just dropped the gun 

where it was and grabbed my right hand in 

my left hand and took off running. And 

my aunt was outside doing yard work and 

she seen something was wrong and she came 

over there to me.

(Bonner dep. at 80.7-81.7.)

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Q. All right. Before we talk about 

that, let me go back to the day of this 

incident. You dropped the gun?

A. After I got shot, yes, sir.

Q. And as far as you know, did someone 

else get the gun?

A. After a little while later that day, 

my uncle I guess, my Aunt Bobby was fixing 

to marry Chris Dennis. And he went back 

to their house. And my Uncle Ralph’s and 

Aunt Bobby’s house, and picked up the gun.

Q. I’m sorry. Who is it that picked 

them up?

A. Chris Dennis.

(Bonner dep. at 84.7-84.21.)

Q. All right. What did he do with the 

guns after he –

A. He took them to his house and put 

them in the safe. And he said when he was

walking up the steps to his front door the 

barrel fell off with him there. It just 

fell off and he picked both pieces up and 

put them into his safe.

(Bonner dep. at 85.9-85.16.)

Q. Now, you said Chris said – told you 

the gun – the barrel fell off?

A. Uh-huh.

Q. Did he say whether the barrel fell

off when he picked it up at the field?

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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 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?

Mr. Hodges: Object to the form.

A. I really don’t know. I believe it 

was sliding off.

Q. But it may have been not sliding at 

all?

Mr. Hodges: Object to the form.

Q. 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. Okay. So, when Chris Dennis told 

you the barrel had fallen off when he was 

handling it, you figured that maybe the 

barrel fell off when you handled it?

Mr. Hodges: Object to form.

Q. Pardon? That would be yes?

A. I didn’t say yes or no.

Q. Oh, I’m sorry. I couldn’t hear you. 

My question was: when Chris told you the 

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barrel fell off for him, did you figure 

that it must have fallen off for you?

A. If it was broken at the time, yes.

(Bonner dep. at 87.9-89.3.) (Emphasis added.) Out of an 

abundance of caution, the plaintiff was asked yet again if 

he remembered the barrel falling off:

Q. You don’t remember whether the

barrel fell off?

A. No, sir.

(Bonner dep. at 110.14-16.) (Emphasis added.) Plaintiff is 

the only person in a position to know what happened. The 

last thing he remembers is his right hand on the end of the 

stock and his left hand on the pump. The next thing he 

remembers after that, his right hand is over the barrel as 

the gun is being discharged. He could provide no 

explanation as to how he managed to move his right hand

from one end of the gun to the other end of the gun, while 

moving his left hand from the pump to the trigger. 

It is further evident that he is plainly speculating 

that the barrel began to slip off. As an initial matter, 

it is a sheer physical impossibility for the barrel to fall 

off or even move while it is pointed upwards. The barrel 

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slides into the receiver as is indicated by the attached 

photographs of the shotgun. (Attached hereto as 

Demonstrative Exhibit B are photographs of the shotgun at 

issue; see also, Demonstrative Exh. A, page 2, showing a 

dismounted shotgun.) The barrel can only slide off if, 

among other things, it is pointed down to the ground. This 

is demonstrated by the testimony of Chris Dennis, who 

explained that the barrel did not fall off until he pointed 

the gun down towards the ground. Uncle Chris had picked up 

the gun from the field, while it was in one piece, took it 

to his pickup truck and placed it in the back of his truck, 

barrel first. (Chris Dennis dep. at 39.10-40.2; 43.5-9; 

43.23-44.20.) After driving to his house, Uncle Chris 

pulled the gun out of the back of his truck and, while he 

was walking into his house, with the barrel pointed 

downwards, it slipped off. (Id. at 49.5-18.) Plaintiff 

admitted in his deposition that he therefore speculated 

that the barrel must have slipped off while he was handling 

it. (Bonner dep. at 88.22-89.3.) Importantly, he has no 

recollection or memory of this occurring. He admitted that 

he was engaging in conjecture and supposition.

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In any event, the separation of the barrel guide ring6

from the barrel is simply not material to the question of 

contributory negligence as a matter of law. As the Alabama 

Supreme Court explains, 

“[T]he danger of handling a firearm with 

a live [shell] chambered in line with the 

hammer and the firing pin without having 

first engaged the manual safety is selfevident, especially to an experienced and 

safety-conscious gun owner like 

[plaintiff], so that reasonable people 

would have to logically conclude that he 

should have at least appreciated the 

danger associated with doing so. 

2007 Ala. LEXIS 195, *11-*12 (emphasis original). The 

Court used the words “should have” because “[d]irect 

evidence of such an appreciation of danger is not required 

if the evidence admits of no conclusion except that the 

plaintiff must have appreciated the hazard involved.” 

Burleson, 2007 Ala. LEXIS at *10-*11, quoting Serio v. 

Merrell, Inc., 941 So. 2d 960 (Ala. 2006); see also, Wilson 

v. Alabama Power Co., 495 So. 2d 48 (Ala. 1986) (affirming 

summary judgment on grounds that 15 year old boy was 

6 On the diagram in Demonstrative Exhibit A, the barrel 

guide ring is located immediately to the left of the 

magazine tube cap. The guide ring is affixed to the 

barrel. By removing the magazine tub cap, one can slide 

the barrel out of the receiver and off the fore-end.

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contributorily negligent as a matter of law for coming into 

contact with a power line while climbing a tree); cf.,

Blalock v. Wal-Mart Stores East, LP, 2007 U.S. Dist. LEXIS 

34640, *6-*7 (M.D. Ala. 2007) (stating in a premises 

liability case that it defied common sense to say the 

plaintiff did not appreciate the danger of an everyday 

obstacle lying on the ground and therefore finding as a 

matter of law that plaintiff was aware of the object and 

appreciated the danger it involved, entitling defendant to 

summary judgment based upon contributory negligence). Even 

Uncle Chris is of the opinion that plaintiff was 

contributorily negligent:

Q. Brian is right handed, at least he 

was before this incident; right?

A. Yes, sir.

Q. And it was his right hand that he 

injured?

A. Yes, sir.

Q. And he put his right hand as we

understand it on the end of the barrel in 

order for it to be injured?

A. That’s the way I understand it.

Q. Have you ever after this accident, 

all the way up to today, asked Brian why 

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he put his right on the end of the 

barrel? 

A. I don’t recall asking him. I just 

told him it was stupid.

Q. Did he ever explain to you why he 

had his right hand on the barrel?

A. He just said it was jammed or 

something. He said it was jammed and he 

was trying to unjam it.

Q. But he didn’t specifically explain 

to you why he had his right hand on the 

barrel?

A. No, sir.

(Dep. Of Chris Dennis at 58.9-59.9.)

In sum, plaintiff has admitted to facts which 

constitute contributory negligence as a matter of law. His 

attempt to create an issue of fact as to whether and when 

the barrel slid or fell off is based upon speculation and 

conjecture, plaintiff himself having admitted he does not 

really remember what occurred. Finally, whether the barrel 

slid or fell off is immaterial; reflexively grabbing it 

does not excuse his negligence. Accordingly, Qiqihar Hawk 

is entitled to summary judgment on the affirmative defense 

of contributory negligence as a matter of law.

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II. Product Misuse.

Plaintiff misused the shotgun because he did not use it 

in a manner that could have been intended or foreseen by a 

manufacturer. Uniroyal Goodrich Tire Co. v. Hall, 681 So. 

2d 126, 129 (Ala. 1996) (“A plaintiff misuses a product 

when he or she uses it in a manner not intended or foreseen 

by the manufacturer.”) As a matter of law, it is not 

reasonably foreseeable to a manufacturer of a shotgun that 

an end-user will – while seeking to “unjam” a gun - put one 

hand over the barrel of a loaded shotgun and pull the 

trigger with his other hand.7 Plaintiff must therefore be 

found to have misused the product as a matter of law.

III. Assumption of the Risk.

Plaintiff assumed the risk of his injury because he 

must have known and appreciated the danger of putting his 

7 Although he denies in his brief trying to “unjam” the 

gun, plaintiff admitted in his deposition that he could not 

remember what he was doing when he shot himself. (Bonner 

dep. at 67.12-13, 76.2-5, 76.10-13.) By contrast, Uncle 

Chris testified unequivocally that plaintiff told him he 

was trying to unjam the gun when he shot himself. (Chris 

Dennis dep. at 59.1-5.) Even taking the evidence in the 

light most favorable for plaintiff on the question of 

whether he was trying to unjam the gun, the only 

affirmative evidence in the record is his statement to 

Uncle Chris. Therefore, it must be accepted that this is 

what plaintiff was doing when he shot himself.

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hand over the end of the barrel while trying to “unjam” the 

gun. He did this voluntarily. And his decision was 

plainly unreasonable, considering the shotgun was loaded, 

the safety was disengaged, and his left hand was on the 

trigger. See, Hall 681 So. 2d at 130 (explaining that 

assumption of the risk encompasses three elements: 

plaintiff must have known and appreciated the danger of his 

action; he undertook the risk voluntarily; and his decision 

was unreasonable). Plaintiff knew the rules of gun safety 

and therefore appreciated the danger of a loaded shotgun:

Q. Tell me what you know about gun 

safety. What are some of the rules about 

gun safety?

A. Never keep it loaded. If it has any 

shells in it, don’t have it cocked back 

or ready to be fired until you are ready 

to shoot it. Always keep it on safety 

and never have it aimed at anybody or 

anything unless you know you’re going to 

shoot a target or something.

Q. Do you walk around with a loaded 

gun?

A. No, sir.

Q. Do you look into the barrel of a 

loaded gun?

A. No, sir.

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(Bonner dep. at 26.11-27.3.) (Emphasis added.) Plaintiff 

knew not to put his hand over the barrel of the loaded gun 

and yet he chose to do so. He therefore assumed the risk 

of his injury as a matter of law.

IV. Conclusion.

In sum, there is no genuine issue of material fact on 

the question of whether plaintiff was contributorily 

negligent, of whether he misused the product and of whether 

he assumed the risk of his injury: he did all three as a 

matter of law, and Qiqihar Hawk is therefore entitled to 

summary judgment.

Respectfully submitted,

/s/Todd Higey

Todd Higey

Ala. Bar No. HIG019

Attorney for Qiqihar Hawk 

Industries Co. Ltd.

RichardsonClement PC

200 Cahaba Park Circle, Ste. 125

Birmingham, Alabama 35242

Telephone: (205) 572-4100

Fax: (205) 572-4199

E-mail: 

tmh@richardsonclement.com

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CERTIFICATE OF SERVICE

I hereby certify that on March 21, 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 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 & ROSE LLP

Colonial Brookwood Center

569 Brookwood Village, Suite 901

Birmingham, Alabama 35209

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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