United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3555

___________

Joe Chronister, *

*

Appellee, *

* Appeal from the United States

District 

v. * Court for the Eastern District of

Missouri.

*

Bryco Arms, doing business as Jennings *

Firearms, *

*

Appellant. *

___________

Submitted: May 22, 1997

Filed: September 11, 1997

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

Circuit Judge.

___________

BEAM, Circuit Judge.

Joe Chronister brought this products liability action against Bryco

Arms after a Bryco handgun misfired with an open chamber, leaving

Chronister with ear damage. A jury found for Chronister on claims based

upon strict liability and negligence. Bryco appeals, and we affirm.
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I. BACKGROUND

We summarize the facts in the light most favorable to the verdict.

United Paperworkers Int'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 weeks

later, Chronister took 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

fired. Several people took turns shooting the weapon, using cartridges

manufactured by Federal-Hoffman, Inc., d/b/a Federal Cartridge Company

(Federal-Hoffman). The gun misfed and jammed several times. On the last

occasion, when Chronister attempted to shoot again, 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 ear

for a shorter period. Chronister was not wearing any sort of hearing

protection at the time, even though both the gun's package and the

ammunition box warned that firearms should not be used without hearing

protection.

Chronister was later examined by an ear-nose-throat physician, Dr.

Edward Becka, and an audiologist, Johnny Malone. Becka and Malone

testified that Chronister has mild hearing loss in both ears, but that his

hearing is still within a normal range. However, Chronister also now

suffers from two disorders: (1) tinnitus, or constant ringing in his ears;

and (2) hyperacusis (also called recruitment), which is a painful

hypersensitivy to noise. Becka and Sam Hopmeier, a director of the

American Tinnitus Association, testified that both tinnitus and hyperacusis

can be caused by sudden exposure to high noise, and that the gun explosion

in all likelihood caused Chronister's conditions. Both of these conditions

are probably permanent.

Chronister brought suit against Bryco, Federal-Hoffman, and Wal-Mart

Stores, Inc. (from whom he purchased the gun). He proceeded to trial

against Bryco, having voluntarily dismissed the other defendants. As

indicated, Chronister sought relief under 
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theories of strict liability and negligence, alleging that the Bryco 59 was

defectively designed and that Bryco failed to warn of the risk that the gun

might misfire with the chamber open. Chronister argued that the Bryco 59

was defective because, as designed, it has a very high frequency of

misfeeds. Furthermore, the gun's firing pin does double-duty as the

"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 the

firing pin was still exposed.

To prove this, Chronister relied upon tests conducted by FederalHoffman while it was still a defendant. Federal-Hoffman employees and an

ammunition expert, Gerald Gourley, tested five Bryco 59s that were

purchased at different locations across the country. They test-fired these

pistols, as well as Chronister's gun, approximately 500 times. Gourley,

whom Chronister later retained as an expert witness, testified that every

one of the test guns misfed between twenty and fifty percent of the time.

Cartridges would feed into the chamber part-way, pointed straight up,

sticking down, or would come partially out of the chamber. Sometimes after

the gun was fired, it would eject a live cartridge along with the spent

cartridge. On at least three occasions, a gun misfed 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 exploded

during the tests, Gourley testified that Chronister's accident was in all

likelihood the result of such a misfeed, with the extra misfortune that the

firing pin happened to strike the primer, rather than some other part of

the cartridge. 

Gourley also testified that he and Federal-Hoffman employees,

including a metallurgist, examined the cartridge that misfired on

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 primer 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 District Judge for the Eastern 1

District of Missouri.

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cartridge that was fired immediately before the exploding one showed a

similar off-center and angled impression from the firing pin.

The district 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 theories

upon which it predicated liability. The jury found 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 for

the strict liability claim and $20,000 for the negligence claim. The

district court denied Bryco's motions for judgment as a matter of law

1

(JAML) and for a new trial. Bryco appeals, alleging that the district

court erred in : (1) denying its motion for judgment as a matter of law on

Chronister's strict liability claim; (2) instructing the jury on strict

liability failure to warn; (3) not allowing the jury to apportion fault

to Federal-Hoffman; and (4) denying its motion for a new trial based on

alleged evidentiary and trial errors. While this appeal was pending, the

district court granted, 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 consolidated the two appeals. Bryco has now dismissed

this later appeal.

II. DISCUSSION

A. Strict Liability/JAML

Under Rule 50 of the Federal Rules of Civil Procedure, a party is

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 defective

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.

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'susceptible of no reasonable inference sustaining the position of the

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 favorable to the prevailing party

and must not engage in a weighing or evaluation of the evidence or consider

questions of credibility.'" Id. at 1268-69 (quoting Pence, 961 F.2d at

779). 

Under Missouri law, a plaintiff in a strict product liability case

must establish that "the product was then in a defective condition

unreasonably dangerous when put to a reasonably anticipated use" and that

"the product was used in a manner reasonably anticipated." Fahy v. Dresser

Indus., Inc., 740 S.W.2d 635, 637 (Mo. 1987) (en banc). Bryco argues that 2

it cannot be liable for Chronister's ear injuries because it could not

reasonably foresee that someone would use its handguns without wearing

hearing protection. Further, Bryco maintains, use of a product that

contradicts that product's instructions or warnings is not a "reasonably

anticipated use."

We disagree. It is basic products liability law that a manufacturer

cannot escape strict liability for a defective product that has been

misused by the plaintiff, if that misuse is reasonably foreseeable. See

63A Am. Jur. 2d Products Liability § 967 (1997) (Most "jurisdictions now

acknowledge that in applying strict liability in tort for design defects,

manufacturers cannot escape liability on grounds of misuse or abnormal use

if the actual use proximate to the injury was objectively foreseeable.").

This is the rule in Missouri. Nesselrode v. Executive Beechcraft, Inc.,

707 S.W.2d 371, 381 (Mo. 
Although the jury was also charged on negligent failure to warn, Bryco only

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 used as reasonably anticipated without knowledge of its

characteristics; (3) the defendant did not give adequate warning of the

danger; (4) the product was used in a reasonably anticipated manner; and

(5) plaintiff was damaged as a direct result of the product being sold

without an adequate warning.

Tune v. Synergy 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 "reasonably anticipated," we reject that argument for the reasons already

discussed.

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1986) (en banc) ("The concept of reasonably anticipated use . . . includes

misuse and abnormal use which is objectively foreseeable.").

Chronister's expert witness, Gourley, and Bryco's plant manager,

Norman Anderson (who also designed the Bryco 59), both testified that they

knew that some people used weapons without hearing protection. Bryco

argues, however, that the issue is more narrow: whether it is foreseeable

that someone might go target shooting without hearing protection. Even if

this is the proper inquiry, a reasonable jury could easily find that Bryco

could have foreseen that some target shooters might choose not to wear

hearing protection. Bryco was free to argue that Chronister's failure to

wear hearing protection constituted fault on his part, and in fact the jury

did allocate some fault to Chronister. Bryco was 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 to

warn theory 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 would

have altered his behavior.4
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As to the first issue, the box for the Bryco 59 carried the following

warning: "Do not use this pistol until you have read the enclosed

instructions and have been instructed in safe gun handling by a competent

firearms instructor. All guns can be dangerous if improperly handled."

An insert in the box stated:

We strongly advise that you familiarize yourself with all

mechanisms of this, or any gun, before putting ammunition into

it. Do not carry with cartridge in chamber. Wear shooting

glasses and hearing protection. 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 after

removing magazine for cartridge in barrel. Do not dry fire,

shoot pistol with empty chamber.

Chronister argues that these warnings were inadequate because they

failed to warn that the Bryco 59 was prone to misfeeding, which could

result in a cartridge discharging with the chamber open. He claims that

the general warning to use hearing protection was insufficient because it

failed to warn him of the specific risk that the weapon created. That is,

the warning only clearly 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 to

merely bootstrap his defective design theory. However, Missouri law allows

a plaintiff to submit multiple theories of product liability, so long as

the plaintiff has established a submissible case under each theory.

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

Furthermore, a failure to warn theory may be premised on a defendant's

failure to warn of an unreasonably dangerous design characteristic of the

product. Johnson v. Hyster Co., 777 S.W.2d 281, 284-85 (Mo. Ct. App.

1989). In 
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Johnson, for example, the plaintiff was injured when he was struck by an

asphalt roller that lurched forward while idling unattended. The plaintiff

brought both strict liability and negligence claims, alleging defective

product design and negligent failure to warn. The plaintiff's design

defect theory was that the manufacturer failed "to equip the roller with

a device which would prevent the roller from moving unless the operator was

sitting in his seat." Id. at 283. The failure to warn theory was that

the manufacturer failed "to warn . . . that the roller would move even if

the operator was not seated at the controls." Id. The Missouri Court of

Appeals 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 depends

upon the product defect in this case, because the negligence is alleged to

be the failure to warn of the fact the roller could move without the

operator being present to control its movement." Id. at 284. See also

Spuhl v. Shiley, Inc., 795 S.W.2d 573, 580 (Mo. Ct. App. 1990) (strict

liability failure to warn requires that product be in a defective

condition).

In light of this, we find no error in allowing the jury to consider

whether Bryco's cautionary language adequately warned of the particular

risks of using its product. Bryco argues, however, that Chronister cannot

show that the lack of a specific warning caused his injury because his

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

"plaintiff must show that a warning would have altered the behavior of

those involved in the accident."). A reasonable jury, however, could have

concluded otherwise. Chronister testified that you need to use hearing

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 did

not know of the risk that the Bryco 59 could misfire on an open chamber

while he held it, producing an explosion greater than the routine

discharge. The jury could reasonably have concluded that, had an adequate

warning of the Bryco 
One commentator notes that while the trend is to allow the jury to apportion

5

fault to a non-party, a number of states do not allow this. R. Sean Mcevoy, Pamela B.

v. Hayden: Apportioning Liability Based Upon One's Fault Rather than One's

Pocketbook, 18 Am. J. Trial Advoc. 701, 713-14 nn.100 & 101 (1995); see also

Reginald R. White, III, Comparative Responsibility Sometimes: The Louisiana

Approach to Comparative Apportionment and Intentional Torts, 70 Tul. L. Rev. 1501,

1536 n.167 (1996) (noting that at least five states do not allow allocation of fault to

nonparties). Section two of the Uniform Comparative Fault Act prohibits

apportionment of fault to nonparties, 12 U.L.A. 135-136 (1996), while the Restatement

(Second) of Torts, section 433A, allows nonparty apportionment. See generally Gerald

W. Boston, Apportionment of Harm in Tort Law: A Proposed Restatement, 21 U.

Dayton L. Rev. 267, 375 (1996) (discussing Restatement (Second) of Torts and

proposed Third Restatement).

The state's products liability statute allows a defendant "to plead and prove the 6

fault of the plaintiff as an affirmative defense," with any damages offset by the

plaintiff'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

for comparative fault state that "apportionment of fault among parties not sued by

plaintiff depends upon substantive issues which may not yet be resolved. The

Committee takes no position on unresolved substantive issues." MAI 37.07, note 3

(1996)

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59's particular risks been present, Chronister would have altered his

behavior. The district court did not err in submitting the failure to warn

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 entity

that is not a party to 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 question that courts and legislatures have resolved in

a number of ways. However, neither the Missouri legislature nor courts

5

have directly addressed this issue. 

6
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In this case, however, we need not speculate on how Missouri courts would

resolve this question. No instruction on Federal-Hoffman's fault was

warranted because there was no evidence at trial that the cartridge was

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

testified that the markings on the cartridge indicated to him that the

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.

However, Wood never identified any defect in the cartridge, nor did he

testify that his examination revealed anything implicating the cartridge.

Wood merely testified that the gun was not at fault, and stated in

conclusory fashion that, therefore, the cartridge must have been the

problem. This is not sufficient evidence to submit to a jury a claim

against Federal-Hoffman. The evidence at trial did 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 (8th

Cir. 1996) (appellate court may affirm on any basis supported by the

record).

 D. Other Issues

Bryco also appeals based on certain evidentiary rulings by the

district 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
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For the reasons discussed above, we affirm the judgment of the

district court.

A true copy.

 ATTEST:

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