United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

___________ No. 96-3555

___________ Joe Chronister, *
* Appellee, *
* Appeal from the United State s District
v. * Cour t for the Eastern District o f Missouri.
* Bryco Arms, doing business as Jennings * Firearms, *
* Appellant. *

___________ Submitted: May 22, 1997 Filed: September 11, 1997

___________ Before BEAM, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN , Circuit Judge.

___________ BEAM, Circuit Judge.

Joe Chron ister brought this products liability action against Bryco Arms after a Bryco handgun misfired with an open chamber, leavin g Chronister with ear damage. A jury found for Chronister on claims based upon strict liability and negligence. Bryco appeals, and we affirm.

## -2-

I. BACKGROUND

We summ arize the facts in the light most favorable to the verdict

. United Paperworkers I nt'l Union v. Champion Int'l Corp. , 81 F.3d 798, 800 (8th Cir. 1996). In 1994, Chronister purchased a "Bryco 59" 9mm handgun for his girlfriend to use as a personal protection weapon. About two week s later, Chronister too k the gun to his brother-in-law's home and shot at a target set up behind the house. This was the first time the gun had been fir ed. Several people took turns shooting the weapon, using cartridge s
manu factured by Federal-Hoffman, Inc., d/b/a Federal Cartridge Compan y (Federal-Hoffman). T he gun misfed and jammed several times. On the last occasion, when Chronister attempted to shoot aga in, the cartridge exploded while the chamber was open. Chronister testified that he staggered back and fell, got some soot and shrapnel in his face , was temporarily blinded, and lost his hearing in his right ear for several hours and in his left ea r for a shorter period. Chronister was not wearing any sort of hearin g pro tection at the time, even though both the gun's package and th e ammunition box warned that firearms should not be used without hearin g protection.

Ch ronister was later examined by an ear-nose-throat physician, Dr

. Edward B ecka, and an audiologist, Johnny Malone. Becka and Malon e testified that Chronister has mild hearing loss in both ears, but that his hearing is still within a normal range. However, Chronister also no w suffers from two disorders: (1) tinnitus, or con stant ringing in his ears; and (2 ) hyperacusis (also called recruitment), which is a painfu l hypersens itivyto noise. Becka and Sam Hopmeier, a director of th e American Tinnitus Association, testified that both tinnitus and hyperacusi s can be caused by sudden exposure to high noise, and that the gun explosion in all likelihood caused Chronister's conditions. Both of these condition s are probably permanent. Chronister brought suit against Bryc o, Federal-Hoffman, and Wal-Mart Sto res, Inc. (from whom he purchased the gun). He proceeded to tria l agains t Bryco, having voluntarily dismissed the other defendants. A s indicated, Chronister sought relief under

## -3-

theories of strict liability and negligence, alleging that the Bryco 59 wa s defectively designed and that Bryco failed to warn of the risk that the gu n might misfire with th e chamber open. Chronister argued that the Bryco 59
was defec tive because, as designed, it has a very high frequency o f misf eeds. Furthermore, the gun's firing pin does double-duty as th e "ejector," that is, the part of the gun that kicks out a spent cartridge after it has been fired. Chronister argued that his gun exploded when a live cartridge jammed while feeding into the open chamber and while th e firing pin was still exposed.

To prove this, Chronister relied upon tests conducted by Federal

Hoffman while it was still a defendant. Federal-Hoffman employees and an ammuni tion expert, Gerald Gourley, tested five Bryco 59s that wer e purchased at different locations across the country. They test-fired thes e pistols, as well as Chronister's gun, approximately 500 times. Gourley, whom Chronister later retained as an expert witn ess, testified that every one of the test guns misfed between twenty and fifty percent of the time. Cartri dges would feed into the chamber part-way, pointed straight up , sticking down, or would come partially out of the chamber. Sometimes afte r the gun was fired, it would eject a live cartridge along with the spen t cartridge. On at least three occasions, a gun m isfed and jammed while the firing pin was exposed to the cartridge with the chamber open. The jury viewed a videotape of these tests. Although no cartridge ever explode d during the tests, Gou rley testified that Chronister's accident was in all likelihood the result of such a misfeed, with the extra misfortune that th e firing pin happened t o strike the primer, rather than some other part of the cartridge.

Gourle yalso testified that he and Federal-Hoffman employees , inc luding a metallurgist, examined the cartridge that misfired o n Chronister, and that it was apparently a normal cartridge. According to Gourley, the exploding cartridge showed a strike from the firing pin off to the side of the pr imer and coming up at an angle, which was consistent with Chronister's explanation of the explosion. Furthermore, the

## The Honorable E. Richard Webber, United States Distr ict Judge for the Eastern 1 

## District of Missouri.
-4- cartridge that was fired immediately before the exploding one showed a similar off-center and angled impression from the firing pin.

The distr ict court submitted to the jury separate verdict forms for the strict liability and negligence claims. For both claims, the jury was allowed to return a verdict for Chronister on the basis of design defect
or failure to warn, but was not required to indicate the theory or theorie s upon which it predicated liability. The jury fo und for Chronister on both claims, apportioning to Chronister, however, five percent of fault on the strict liability claim and twenty-five percent on the negligence claim

. The jury awarded (subject to reduction for Chronister's fault) $315,000 fo r the strict liability claim and $20,000 for the negligence claim. Th e distr ict court denied Bryco's motions for judgment as a matter of la w 1 (JAML) and for a new trial. Bryco appeals, alleging that the distric t court erred in : (1) denying its motion for judg ment as a matter of law on Chroni ster's strict liability claim; (2) instructing the jury on stric t liabilityfailure to warn; (3) not allowing the jury to apportion fault to Federa l-Hoffman; and (4) denying its motion for a new trial based o n alleged evidentiary a nd trial errors. While this appeal was pending, the district court grante d, pursuant to 28 U.S.C. § 1963, Chronister's motion to register the judgment in other jurisdictions. Bryco then appealed from that order, and we co nsolidated the two appeals. Bryco has now dismissed this later appeal.

II. DISCUSSION
A. Strict Liability/JAML

Under Rul e 50 of the Federal Rules of Civil Procedure, a party i s entitled to judgment as a matter of law "when all of the evidence points one way and is

## The plaintiff must also establish that "defendant sold the product in the course 2 

## of its business" and that "plaintiff was damaged as a direct result of such defectiv e condition as existed when the product was sold ." Fahy , 740 S.W.2d at 637-38. These factors are not at issue in this appeal.
-5- 'susce ptible of no reasonable inference sustaining the position of th e nonmoving party.'" Keenan v. Computer Assoc. Int'l, Inc. , 13 F.3d 1266, 1269 (8th Cir. 1994) (quoting White v. Pence , 961 F.2d 776, 779 (8th Cir. 1992)). In reviewing a JAML motion that seeks to set aside a jury verdict , "we view the 'evidence in the light most favorab le to the prevailing party and must not engage in a weighing or evaluation of the evidence or conside r questions of credibility.'" Id. at 1268-69 (quoting Pence , 961 F.2d a t 779).

Under Mi ssouri law, a plaintiff in a strict product liability cas e must est ablish that "the product was then in a defective conditio n unreasonably dangerou s when put to a reasonably anticipated use" and that "the product was used in a manner reasonably anticipated." Fahy v. Dresse r Indus., Inc. , 740 S.W.2d 635, 637 (Mo. 1987) (en banc). Bryco argues that 2 it ca nnot be liable for Chronister's ear injuries because it could no t
reason ablyforesee that someone would use its handguns without wearin g hear ing protection. Further, Bryco maintains, use of a product tha t contradicts that product's instructions or warnings is not a "reasonably anticipated use."
We disagree. It is basic products l iability law that a manufacturer
cann ot escape strict liability for a defective product that has bee n misused by the plaintiff, if that misuse is reasonably foreseeable. See 63AAm. Jur. 2d Products Liability § 967 (1997) (Most "jurisdictions now acknowledge that in a pplying strict liability in tort for design defects, manufacturers cannot escape liability on grounds of misuse or abnormal use if the actual use pro ximate to the injury was objectively foreseeable."). This is the rule in Missouri. Nesselrode v. Executive Beechcraft, Inc. , 707 S.W.2d 371, 381 (Mo.

## Althoughthe jury was also charged on negligent failure to warn, Bryco onl y 3 

## appeals the strict liability claim. In Missouri, there are five elements to a strict liability failure to warn case: 4


## (1) defendant sold the product in question in the course of defendant' s business; (2) the product was unreasonably dangerous at the time of sale when us ed as reasonably anticipated without knowledge of it s character istics; (3) the defendant did not give adequate warning of th e danger; (4) the product was used in a reasonably anticipated manner; and (5) p laintiff was damaged as a direct result of the product being sol d without an adequate warning.

Tune v. S ynergy Gas Corp. , 883 S.W.2d 10, 13 (Mo. 1994) (en banc). To the extent that Bryco extends to the failure to warn theory its argument that Chronister's use of the gun was not "rea sonably anticipated," we reject that argument for the reasons already discussed.
-6- 1986) (en banc) ("The concept of reasonably anti cipated use . . . includes misuse and abnormal use which is objectively foreseeable.").

Ch ronister's expert witness, Gourley, and Bryco's plant manager , Norman Anderson (who also designed the Bryco 59) , both testified that they knew th at some people used weapons without hearing protection. Bryc o argues, however, that the issue is more narrow: whether it is foreseeable that someone might go target shooting without he aring protection. Even if this is the proper inquiry, a reasonable jury co uld easily find that Bryco could have foreseen that some target shooters might choose not to wea r hearing protection. Bryco was free to argue that Chronister's failure to
wear hearing protection constituted fault on his part, and in fact the jur y did allocate some fault to Chronister. Bryco wa s not entitled to judgment as a matter of law on this issue.

B. Failure to Warn Instruction

Bryco also contends that Chronister's strict liability failure t o warn theor y should not have been submitted to the jury. Bryco makes two 3 arguments: (1) that it issued an adequate warning of the danger, and (2) that its product did not cause Chronister's injury because no warning woul d have altered his behavior. 4

## -7- As to the first issue, the box for the Bryco 59 carried the fol lowing warning: "Do not use this pistol until you have read the enclose d instructions and have been instructed in safe gun handling by a competent fir earms instructor. All guns can be dangerous if improperly handled. " An insert in the box stated:

We stro ngly advise that you familiarize yourself with al l mechanisms of this, or a ny gun, before putting ammunition into it

. Do not carry with cartridge in chamber. Wear shootin g glasses and hearing prot ection. Always point pistol in a safe direction. Never place your finger on the trigger unless you are ready to shoot the pistol. Always check chamber afte r removing magazine for cartridge in barrel. Do not dry fire , shoot pistol with empty chamber.

Ch ronister argues that these warnings were inadequate because the y fai led to warn that the Bryco 59 was prone to misfeeding, which coul d result in a cartridge discharging with the chamber open. He claims that the general warning t o use hearing protection was insufficient because it failed to warn him of the specific risk that the weapon created. That is, the warning only clea rly encompassed routine discharge of the weapon, not a sudden, catastrophic explosion of the cartridge in the open chamber.

At first glance, Chronister's failure to warn theory appears t o merely bootstrap his defective design theory. However, Missouri law allow s
a plaintiff to submit multiple theories of product liability, so long as the pl aintiff has established a submissible case under each theory

. Magnu son v. Kelsey-Hayes Co. , 844 S.W.2d 448, 456 (Mo. Ct. App. 1992)

. Furth ermore, a failure to warn theory may be premised on a defendant' s failure to warn of anunreasonably dangerous design characteristic of the pro duct. Johnson v. Hyster Co. , 777 S.W.2d 281, 284-85 (Mo. Ct. App

. 1989). In

## -8-

Johnson , for example, the plaintiff was injured when he was struck by an asphalt roller that lurched forward while idling unattended. The plaintif f brought both strict liability and negligence claims, alleging defectiv e product design and negligent failure to warn. The plaintiff's desig n defect theory was that the manufacturer failed "to equip the roller with
a device which would prevent the roller from moving unless the operator wa s sitting in his seat." Id. at 283. The failure to warn theory was that the manufacturer fail ed "to warn . . . that the roller would move even if the operator was not seated at the controls." Id. The Missouri Court of Appeal s held it was not error to instruct the jury on both theories , reasoning that "there is no inconsistency between product defect and . .

. failure to warn. In fact, the [negligent failure to warn] theory depend s upon the product defect in this case, because th e negligence is alleged to be the fai lure to warn of the fact the roller could move without th e operato r being present to control its movement." Id. at 284. See als o Spuhl v. Shiley, Inc. , 795 S.W.2d 573, 580 (Mo. Ct. App. 1990) (stric t liabi lityfailure to warn requires that product be in a defectiv e condition).
In light of this, we find no error in allowing the jury to consider whether Bryco's cautionary language adequately warned of the particula r risks of using its product. Bryco argues, howev er, that Chronister cannot showthat the lack of a specific warning caused his injury because hi s disregard of the general warning to use hearing protection shows that no warning would have changed his behavior. See Tune v. Synergy Gas Corp. , 883 S.W. 2d 10, 14 (Mo. 1994) (en banc) (to establish causation, a "plai ntiff must show that a warning would have altered the behavior o f those involved in the accident."). A reasonable jury, however, could have
con cluded otherwise. Chronister testified that you need to use hearin g protection when you know of an increased risk of loud discharge, such as when firing a higher-caliber [.44 magnum] weapon. He testified that he di d not k now of the risk that the Bryco 59 could misfire on an open chambe r while he held it, producing an explosion greater than the routin e discharge. The jury could reasonably have concl uded that, had an adequate warning of the Bryco

## One c ommentator notes that while the trend is to allow the jury to apportio n 5 

## fault to a non-party, a number of states do not allo w this. R. Sean Mcevoy, Pamela B.
v. Hayden: Apportioning Liability Based Upon One's Fault Rather than One' s Pocketbo ok , 18 Am. J. Trial Advoc. 701, 713-14 nn.100 & 101 (1995); see als o ReginaldR. White, III, Comparative Responsibility Sometimes: The Louisian a Approach to Comparative Apportionment and Intentional Torts , 70 Tul. L. Rev. 1501, 153 6 n.167 (1996) (noting that at least five states do not allow allocation of fault t o nonpartie s). Section two of the Uniform Comparative Fault Act prohibit s apportionment of fault to nonparties, 12 U.L.A. 135-136 (199 6), while the Restatement (Second) of Torts, section 433A, allows nonparty apportionment. S ee generally Gerald W. Bost on, Apportionment of Harm in Tort Law: A Proposed Restatement , 21 U

. Dayt onL. Rev. 267, 375 (1996) (discussing Restatement (Second) of Torts an d proposed Third Restatement). The state's products liabi lity statute allows a defendant "to plead and prove the 6 

## faul t of the plaintiff as an affirmative defense," with any damages offset by th e pl aintiff's degree of fault, but says nothing about proving fault of other entities. Mo

. Rev. Stat. § 537.765 (1996). The comments to the Missouri Approved Jury Instruction forcomparative fault state that "apportionment of fault among parties not sued b y plaintiff depends upon substantive issues which may not yet be resolved. Th e Comm itteetakes no position on unresolved substantive issues." MAI 37.07, note 3 (1996)
-9- 59's p articular risks been present, Chronister would have altered hi s behavior. The district court did not err in submitting the failure to war n theory to the jury.
C. Allocation of Fault to Non-Party
The district court rejected Bryco's proposed instruction and verdict forms allowing the jury to allocate fault to Federal-Hoffman. The court concluded that Missouri law does not allow allocation of fault to an entit y that is not a party t o the lawsuit, and that had Bryco wished to allocate fault to Federal-Hoffman, Bryco should have impleaded it.
Whether a non-party to a lawsuit can be apportioned a degree of fault is a controversial qu estion that courts and legislatures have resolved in
a numb er of ways. However, neither the Missouri legislature nor court s 5 have directly addressed this issue. 6

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In this case, however , we need not speculate on how Missouri courts would resolv e this question. No instruction on Federal-Hoffman's fault wa s warranted because there was no evidence at trial that the cartridge wa s defective or in any way partly responsible for the accident.
Bryco points to the testimony of its expert, J.B. Wood, who examined the cartridge for the first time on the stand with a jeweler's loupe. He testi fied that the markings on the cartridge indicated to him that th e cartridge was properly chambered when it discharged, disputing Chronister' s theory of the accident. In Woods's opinion, the gun was not defective and the only explanation for the misfiring was that the cartridge was faulty. Howev er, Wood never identified any defect in the cartridge, nor did h e testify that his exam ination revealed anything implicating the cartridge. Wood merely testified that the gun was not at fault, and stated i n conclu soryfashion that, therefore, the cartridge must have been th e problem. This is not sufficient evidence to submit to a jury a clai m against Federal-Hoffman. The evidence at trial d id not support instructing the jury on this defense theory, even if Missouri law would allow such a charge. We therefore affirm. Cooksey v. Delo , 94 F.3d 1214, 1218 (8t h Cir. 1996) (appellate court may affirm on any basis supported by th e record).

D. Other Issues

Bryco also appeals based on certain evidentiary rulings by th e dis trict court and the district court's denial of its motion for a mistrial. We have examined these issues and find them to be without merit

.

III. CONCLUSION

## -11- For th e reasons discussed above, we affirm the judgment of th e district court.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.