* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

NOV 4 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KRIS WELLBORN,

Plaintiff-Appellee,

v.

COBRAY FIREARMS INC., a

Georgia corporation, S W DANIEL,

INC., a Georgia corporation; SYLVIA

DANIEL; MARIETTA PLASTICS

INC., a Georgia corporation;

MOUNTAIN ACCESSORIES

CORPORATION, aka MAC, Inc., a

Tennessee corporation; DICK

LOFFER, individually,

Defendants,

and

WAYNE DANIEL, individually,

Defendant-Appellant.

No. 98-8106

(D.C. No. 95-CV-211-J)

(D. Wyo.)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and BRISCOE, Circuit Judges.
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After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Defendant Wayne Daniel appeals from the district court’s grant of summary

judgment adjudging him personally liable for the torts of his corporation as a

matter of law. We have jurisdiction pursuant to 28 U.S.C. § 1291 and

§ 1331(a)(1) and affirm.

On August 31, 1994, plaintiff Kris Wellborn set off a self-loaded shell in a

flare launcher he purchased from Mountain Accessories Corporation (MAC), a

corporation in which defendant is the sole shareholder and president. The shell

(from a “load your own” shell kit) exploded in the flare launcher and, among his

other injuries, plaintiff’s right hand was amputated.

Plaintiff initiated this action on theories of negligence, strict liability, and

breach of express and implied warranties. His complaint named various

corporations involved in the manufacture and design of the flare launcher and

shell kit, including MAC. In addition, plaintiff’s complaint named as individuals

defendant, Sylvia Daniel, and Dick Loffer, a MAC employee. Shortly before

trial, the district court dismissed on summary judgment defendant and Sylvia
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Daniel. The district court dismissed defendant based on plaintiff’s failure to

bring forth evidence to raise a genuine issue of fact material to defendant’s

personal liability for MAC’s actions. In doing so, the district court noted

defendant’s affidavit statements that: he never “personally” designed,

manufactured, fabricated, packaged, prepared, sold, or distributed flare launchers

or flare canisters; he never “personally” had contact with plaintiff; and he never

instructed plaintiff on the use of flare launchers or flare canisters. Appellant’s

App. at 9. The case proceeded to trial and the jury returned a verdict for plaintiff

against MAC, the sole remaining corporation (plaintiff voluntarily dismissed the

other defendant corporations), finding that MAC was negligent, breached its

implied warranty, and was strictly liable for design defect. The jury awarded

plaintiff $200,000 in damages, plus costs but no punitive damages, finding MAC

90% negligent, plaintiff 10% negligent, and Mr. Loffer not negligent at all. 

Under Wyoming’s comparative fault statute, plaintiff’s damages were

correspondingly decreased to $180,000. See Wyo. Stat. Ann. § 1-1-109.

Plaintiff appealed to this court. As relevant here, this court reversed

defendant’s dismissal and remanded the case for further proceedings. See

Wellborn v. Cobray Firearms, Inc. , No. 96-8120, 1998 WL 80236 (10th Cir.

Feb. 25, 1998) (unpublished). This court cited Zimmerman v. First Federal

Savings & Loan Ass’n , 848 F.2d 1047 (10th Cir. 1988), for the principle that
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because “the corporate veil doctrine does not apply to a tort claim brought by a

third party against a corporation’s directors, officers, or shareholders, the

traditional notion of a shield for acts committed in a corporate capacity does not

apply either.” 1998 WL 80236, at *3. Based on defendant’s deposition testimony 

admitting to “fabricating, designing, manufacturing, packaging, and selling the

flare launcher” and “writing the instruction which accompanied the ‘load your

own’ shell kit,” this court found sufficient evidence to create a genuine issue of

material fact regarding his potential liability under Zimmerman . Id. at *4. In

addition, this court noted defendant’s statement that “‘I sold the launcher. When

I say ‘I,’ I mean, MAC.’” Id.

On remand, plaintiff moved for summary judgment, propounding the

principles of respondeat superior, res judicata, collateral estoppel, and stare

decisis. The district court granted plaintiff’s motion, finding that, for purposes of

collateral estoppel, defendant “was in privity with MAC . . . for the issues of

product liability, negligence, damages and comparative fault” and that he had a 

“full and fair opportunity in the previous trial to litigate” these issues. 

Appellant’s App. at 48. The district court found that collateral estoppel did not

apply to defendant’s personal liability since that issue was not litigated at the

trial. It concluded, however, that plaintiff was entitled to judgment based on

summary judgment principles. Essentially, the district court found that, under
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Zimmerman , defendant “actively participated in and directed the omissions and

commissions that led to liability for the company he owns, directs and controls”

and he failed to submit materials in opposition that raised an issue of fact to the

contrary. Appellant’s App. at 52. 

On appeal, defendant contends the district court erred in granting summary

judgment because: (1) a genuine issue of material fact exists concerning his

liability; (2) a jury was never instructed under Zimmerman ; (3) no new evidence

was brought forth at trial to supplement the genuine issue of fact regarding

defendant’s liability under strict liability and breach of warranty; (4) a genuine

issue of material fact exists as to whether defendant directed or participated in a

wrongful act or omission which injured or prejudiced plaintiff; and (5) the jury

must consider the issue of plaintiff’s contributory negligence.

We review the district court’s grant of summary judgment de novo and

apply the principles set forth in Fed. R. Civ. P. 56(c). See Kaul v. Stephan ,

83 F.3d 1208, 1212 (10th Cir. 1996). Summary judgment is appropriate on a

record demonstrating that “there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” 

Fed. R. Civ. P. 56(c). “‘We view the evidence and draw any inferences in a light

most favorable to the party opposing summary judgment, but that party must

identify sufficient evidence which would require submission of the case to a
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jury.’” Aramburu v. Boeing Co. , 112 F.3d 1398, 1402 (10th Cir. 1997) (quoting

Williams v. Rice , 983 F.2d 177, 179 (10th Cir. 1993)).

We have reviewed the parties’ submissions, the district court’s order, the

record, and the relevant legal principles and case law. We have nothing to add to

the district court’s analysis of the law and the evidence before it. Accordingly,

we affirm the district court’s grant of summary judgment for substantially the

reasons stated in the district court’s thorough memorandum and order of

October 20, 1998.

The judgment of the United States District Court for the District of

Wyoming is AFFIRMED .

Entered for the Court

James E. Barrett 

Senior Circuit Judge