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 MOTION FOR LEAVE TO FILE SUR-REPLY IN

FURTHER IN OPPOSITION TO TWO DEFENDANTS’

MOTIONS FOR SUMMARY JUDGMENT

COMES NOW Brian Bonner and moves this Court for leave to file the attached 

sur-reply memorandum brief in further opposition to the motions for summary judgment

separately filed by China North Industries Corporation (“Norinco”) and Qiqihar Hawk 

Industries Co., Ltd. Especially, with regard to Qiqihar Hawk’s Reply Brief, new matters 

are raised that require further responses from Brian Bonner.

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

Case 3:06-cv-00715-MHT-TFM Document 90 Filed 03/26/2008 Page 1 of 2
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CERTIFICATE OF SERVICE

I hereby certify that on 26

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

Case 3:06-cv-00715-MHT-TFM Document 90 Filed 03/26/2008 Page 2 of 2
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 SUR-REPLY MEMORANDUM BRIEF IN FURTHER

OPPOSITION TO TWO DEFENDANTS’ MOTIONS

FOR SUMMARY JUDGMENT

Brian Bonner offers this sur-reply memorandum brief in further opposition to the 

motions for summary judgment separately filed by China North Industries Corporation 

(“Norinco”) and Qiqihar Hawk Industries Co., Ltd. For the reasons stated in his initial 

opposing memorandum brief and this sur-reply memorandum brief, plaintiff again asks 

this Court to deny both requests for a summary judgment.

Factual Matters

In its reply memorandum brief, Qiqihar Hawk wrote: “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).” Reply Brief of Qiqihar Hawk in Support of Motion for 

Summary Judgment at 2. In an accompanying footnote, Qiqihar Hawk further wrote: 

“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 

Case 3:06-cv-00715-MHT-TFM Document 90-2 Filed 03/26/2008 Page 1 of 10
2

whether he pulled the trigger. (Bonner dep. at 110.1-5.)” Id. at 2 n.2. Brian Bonner 

never testified that he intentionally pulled the subject shotgun’s trigger after placing his 

right hand over the barrel; he testified that, when he sensed the barrel moving, he 

reactively moved his right hand up the barrel. (Deposition of Brian Bonner at 73 & 75-

76) In his report, John Butters opined “that the firearm discharged during Mr. Bonner’s 

attempt to prevent the barrel from falling off due to an inadvertent trigger pull

occasioned by the barrel suddenly and unexpectedly breaking off the gun.” (Report of 

John T. Butters at 2; emphasis added). John Butters concluded that there was inadvertent 

contact with the trigger, as opposed to an intentionally pulling of the trigger. There is no

evidence, conclusively or otherwise, that Brian Bonner intentionally put his right hand, 

his dominant hand, over the top of the barrel and then intentionally pulled the trigger with

his left hand. There is no evidence that Brian Bonner’s finger pulled the trigger; there is 

only evidence that the trigger was “inadvertently pulled” by contact with something. The 

record shows that he did nothing intentionally after he took possess of the subject shotgun 

so that then eleven- or twelve-year old B. J. Sadler could fetch an adult to come and take 

possession of a shotgun that had failed to discharge or had jammed.

Both Qiqihar Hawk and Norinco take the phrase “while pointed upward” too 

literally. Brian Bonner was holding the shotgun so that the barrel was not pointing in the 

direction of anyone who might be in the vicinity. It is more reasonable to presume that 

he was holding the shotgun at a “port arms” position. Regardless, Brian Bonner 

affirmatively testified that he sensed the barrel sliding or moving; therefore, there is 

evidence that he was holding the shotgun such that the barrel could slide or move. In 

Case 3:06-cv-00715-MHT-TFM Document 90-2 Filed 03/26/2008 Page 2 of 10
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light of the fact that securing welds had failed, it is quite reasonable to find that the barrel 

did slide or move as described by Brian Bonner.

Qiqihar Hawk wrote: “Even Uncle Chris is of the opinion that plaintiff was 

contributorily negligent.” Reply Brief of Qigihar Hawk in Support of Motion for 

Summary Judgment at 15. Qiqihar Hawk never sought to qualify Christopher Dennis as 

an expert witness. From the record, it is impossible to qualify Christopher Dennis as an 

expert in any field. As indicated in the exchange from Christopher Dennis’s deposition 

republished by Qiqihar Hawk, Christopher Dennis never asked Brain Bonner why he put 

his right hand on the end of the barrel. Christopher Dennis reported that Brian Bonner 

“said ... he was trying to unjam it.” Christopher Dennis did not witness the subject 

discharge. Brian Bonner testified that the discharge occurred while B. J. Sadler was only 

a short distance away. (Deposition of Brian Bonner at 80) Brian Bonner testified that he 

was simply holding the shotgun and was waiting until an adult came to see what was 

remiss with the shotgun. A jury may reasonably find that Christopher Dennis misspoke 

when he reported that Brian Bonner said that “he was trying to unjam it,” something that 

Brian Bonner affirmatively denied doing.

Norinco wrote: “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.).” Defendant China North Industries Corporation’s Reply 

in Further Support of Its Motion for Summary Judgment at 3. Brian Bonner was familiar 

with shooting firearms; shooting firearms is quite different from familiarity with coping 

with a shotgun that failed to discharge or jammed. As previously discussed, when 

Case 3:06-cv-00715-MHT-TFM Document 90-2 Filed 03/26/2008 Page 3 of 10
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confronted with the failure to discharge or the jamming of the subject shotgun, Brian 

Bonner took possession of the shotgun from the younger B. J. Sadler and instructed B. J. 

Sadler to fetch an adult. Holding the shotgun awaiting the arrival of an adult was a 

reasonable and responsible response to the situation. Doing nothing, including engaging 

the safety, was reasonable and responsible. Unfortunately, due to defective design and/or 

manufacture of the welds securing the barrel, the barrel began to slide or move and Brian

Bonner reacted spontaneously to keep the barrel from falling off. Under these facts, it is 

not possible to determine that Brian Bonner was contributorily negligent as a matter of 

law.

Legal Matters

In Burleson v. RSR Group Florida, Inc., ___ So. 2d ___, 2007 WL 2745781 (Ala. 

Sep. 21, 2007), the deceased was an adult and a very experienced gun handler. Then 

sixteen-year old Brian Bonner was not an experienced gun handler. As important, in 

Burleson, the revolver did not fail to discharge or jam. Instead, in violation of his own 

personal safety rule, Stanley Burleson failed to unload the revolver before placing the 

revolver in its holster and returning the holstered revolver to his gun rack. In the present 

matter, Brian Bonner encountered a wholly unexpected event when the subject shotgun 

failed to discharge or jammed. He appreciated that he needed the assistance of an adult. 

He took possession of the shotgun from the younger B. J. Sadler, a reasonable and 

responsible act, and instructed B. J. Sadler to fetch an adult, another reasonable and 

responsible act. It was reasonable for Brian Bonner to do nothing more, including 

engaging the shotgun’s safety, because Brian Bonner did not want to do anything that 

Case 3:06-cv-00715-MHT-TFM Document 90-2 Filed 03/26/2008 Page 4 of 10
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might cause the shotgun to discharge and did not know what might cause a discharge. 

Doing nothing but holding the shotgun was quite reasonable under the circumstances. 

Brian Bonner’s failure to engage the safety was excused under the circumstances. Brian 

Bonner did not breach a safety rule.

Norinco implies that, in Burleson, the Supreme Court of Alabama abandoned the 

principle that, for there to be contributory negligence as a matter of law, the plaintiff must 

have had a ‘conscious appreciation’ of the danger involved.” Defendant China North 

Industries Corporation’s Reply in Further Support of Its Motion for Summary Judgment

at 2. No where in Burleson did the Supreme Court of Alabama overrule the principles 

found in H.R.H. Metals v. Miller, 833 So. 2d 18 (Ala. 2002), and Hannah v. Gregg, 

Bland & Berry, Inc., 840 So. 2d 839 (Ala. 2002). The simple fact is that, under the 

particular circumstances, Stanley Burleson’s conduct was inexcusable and negligent. No 

reasonable person would store a weapon with a bullet in the chamber and without 

engaging the safety. As significant, Stanley Burleson’s conscious appreciation of the 

danger of doing so was evinced by his long-standing personal safety rule of never storing 

a loaded weapon. The specific facts created the rare situation in which a determination of 

contributory negligence as a matter of law is possible. Those specific facts do not exist in 

the present matter.

Qiquhar Hawk’s reliance on Campbell v. Alabama Power Co., 567 So. 2d 1222 

(Ala. 1990), is misplaced. As stated in that opinion, “Campbell was an experienced 

house mover and, by his own admission, had moved hundreds of houses during his work 

history” and “was aware of the difference between insulated electric lines and uninsulated 

lines.” 567 So. 2d at 1224. Campbell and his co-workers were in the process of moving 

Case 3:06-cv-00715-MHT-TFM Document 90-2 Filed 03/26/2008 Page 5 of 10
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a house under live power lines. Campbell was endeavoring to remove lines that had 

snagged on the house’s roof. When he slipped, Campbell unfortunately grabbed both the 

neutral wire and the hot wire. Campbell fully appreciated the danger posed by working 

near live power lines. The specific danger was the nearby live power lines. Similarly, in 

Wilson v. Alabama Power Co., 495 So. 2d 48 (Ala. 1986), the fifteen-year old boy knew 

that a live power line ran through the tree that he chose to climb; again, the specific 

danger was going near a live power line.

In the present matter, the danger was that the subject shotgun’s barrel had become 

loose due to defective welds. Brian Bonner had no appreciation of this danger when he 

took possession of the shotgun from the younger boy because Brian Bonner only knew 

that the shotgun had failed to discharge or had jam but not why. Campbell’s slip may 

have unexpected but he appreciated the danger posed by working anywhere near live 

power lines. The sliding or moving of the subject shotgun’s barrel was unexpected and 

totally unforeseen by Brian Bonner. Brian Bonner reasonably thought that he was doing 

the right and responsible thing by just holding the shotgun until an adult arrived to 

address the failure to discharge or jamming incident. Brian Bonner did not knowingly 

expose himself to danger; certainly, it is impossible to find that Brian Bonner was 

contributorily negligent as a matter of law.

Qiqihar Hawk also cited Blalock v. Wal-Mart Stores East, LP, Civil Action No. 

1:06cv381-MHT (WO), 2007 WL 1412445 (M.D. Ala. May 11, 2007). Blalock was a 

premises-liability action, not a products-liability action. The defense in Blalock was 

“open and obvious,” and not contributory negligence. As noted by this Court in Blalock, 

“[m]ore recent [Alabama] cases have declared that the ‘open and obvious’ rule actually 

Case 3:06-cv-00715-MHT-TFM Document 90-2 Filed 03/26/2008 Page 6 of 10
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negates the duty element of a negligence claim, thereby precluding consideration of 

affirmative defenses such as contributory negligence.” 2007 WL 1412445 at * 3 n.2. As 

held in Blalock, the premises owner is relieved on any duty once the invitee appreciated 

the specific hazard. In the present matter, the specific danger was not “open and 

obvious” and Brian Bonner had no appreciation of the specific danger prior to the 

unexpected discharge. Nothing in Blalock is relevant in the present summary-judgment

proceeding.

In connection with its brief discussion of the asserted product-misuse defense, 

Qiqihar Hawk cited a single Alabama appellate opinion, writing: “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.”)” Reply Brief of 

Qigihar Hawk in Support of Motion for Summary Judgment at 17. Actually, the quoted 

passage was part of a quotation from General Motors Corp. v. Saint, 646 So. 2d 564 

(Ala. 1994). In Hall, the Supreme Court reversed a plaintiff’s judgment because the trial 

court failed to charge the jury that contributory negligence was a defense to a AEMLDbased claim. The Supreme Court noted that contributory negligence is distinct from 

product misuse. In Hall, there was no holding that, as a matter of law, Hall had misused 

the subject product.

More fundamentally, Qigihar Hawk wrote: “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 – put one 

hand over the barrel of a loaded shotgun and pull the trigger with his other hand.” Reply 

Brief of Qigihar Hawk in Support of Motion for Summary Judgment at 17. Initially, there 

Case 3:06-cv-00715-MHT-TFM Document 90-2 Filed 03/26/2008 Page 7 of 10
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is a genuine dispute as to whether Brian Bonner was trying to “unjam” the shotgun. 

Brian Bonner’s description of the incident, including the fact that the discharge occurred 

while B. J. Sadler was just a few steps away, supports a factual finding that Brian Bonner 

never tried to “unjam” the shotgun but was just holding the shotgun when the barrel 

began to slide or move. As important, Qigihar Hawk continues to misunderstand the 

product-misuse defense under the AEMLD. As discussed in the initial opposing 

memorandum brief, under Alabama law, a product supplier must foresee mistakes that a 

user might make when using a product for its intended purpose. Product misuse is a 

defense only when the plaintiff totally used in the product for an imaginable purpose. 

The shotgun was being used for its intended purpose when it failed to discharge or 

jammed. There was no product misuse.

With regard to the assumption-of-the-risk defense, Qigihar Hawk assumes that 

Brian Bonner acted voluntarily in trying to “unjam” the shotgun and in putting his 

dominant hand over the end of the barrel. In a summary-judgment proceeding, Qigihar 

Hawk’s assumptions are worthless as proof of assumption of a risk as a matter of law. 

Placing his dominant hand over the end of the barrel is totally inconsistent with Brian 

Bonner trying to “unjam” the shotgun but is consistent with having been using his right to 

hold the barrel when he sensed the barrel beginning to slide or move. If Brian Bonner 

had been trying to “unjam” the shotgun, he would have used his left hand to hold the 

barrel. There is no evidence of Brian Bonner’s subjective assumption of the risk of injury 

and, certainly, insufficient evidence to make a determination that he assumed the risk of 

injury as a matter of law.

Case 3:06-cv-00715-MHT-TFM Document 90-2 Filed 03/26/2008 Page 8 of 10
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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

CERTIFICATE OF SERVICE

I hereby certify that on 26

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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Case 3:06-cv-00715-MHT-TFM Document 90-2 Filed 03/26/2008 Page 10 of 10