Guns and Products Liability in Alabama

Maybe I’m naive.  Maybe I just haven’t felt the need to carry a firearm for personal protection in my everyday life.  Maybe I’m just not from Alabama.  But this case confuses me.

Out of the Northern District of Alabama comes the case of Avery v. Cobra Enterprises of Utah, Inc., C.A. No. 2:11-cv-02870, 2013 WL 2532320 (N.D. Ala. May 23, 2013).  The facts are simple.  James Avery was given a Cobra Model C32 derringer by his son.  Beginning in 2004, Mr. Avery began carrying the derringer every day for protection.  As the Court notes, Avery “regularly carried it without the safety engaged.” Here’s a picture of the gun at issue:

Now, you can guess where this is going.  One day, Avery returned home from running errands.  He got out of his car carrying not only the derringer (safety off), but magazines (the reading kind), wallet, keys, and soda bottles.  He got as far as the trashcan, but when he tried to open it, he dropped the gun.  The gun hit the ground and discharged, like Complete AK 47 rifles would, shooting Avery in the abdomen.

Avery sued Cobra Enterprises, the manufacturer of the derringer, asserting several theories of products liability; however, the only claim that survived to the summary judgment stage was a claim for breach of implied warranty of merchantability.  Under Alabama law, one of the requirements is that a product must be “fit for the ordinary purposes for which such goods are used.”

Avery’s lawyers did something clever with this claim after Cobra filed a motion for summary judgment.  They claimed that “ordinary purposes” include not only those uses intended by the manufacturer or seller, but those which are reasonably foreseeable.  Their argument is that the manufacturer of a firearm should have reasonably anticipated that a carrier of the derringer might need to fire the gun so quickly, that “a pause to disengage the two safety features [of the derringer] would destroy the defensive advantage he was buying.”

The Court basically called this out as the “wild west” argument, but unbelievably, denied Cobra’s motion for summary judgment, in part on this basis:

This is analogous to the reasoning of hair trigger artists of the Old West.  It may be an uphill battle for the Averys to convince a jury that there exists such a reasonable expectation, either by seller or by user, but on the current state of the evidence, the Averys will be afforded the opportunity to put their theory to the jury test.

Unbelievable.  One other point should be made about Avery, lest you think that he, like me, was simply naive about the way guns work and how they can be safely handled on an everyday basis:

Avery had experience with firearms throughout his life. He went hunting for the first time at age 6, used a pistol around age 8, handled a semi-automatic handgun around age 18, and has carried a pistol permit since the age of 18. He also served in the Navy where he received formal firearm training. He had experience both with firearms that have manual safeties and firearms that have no safeties at all. He had no experience with a derringer until he acquired the one at issue. Upon receiving any new firearm, he always examined it himself to figure out how it works, but he does not typically read the instruction manual right away. He said he “probably … looked over” the derringer’s manual at some point while he owned it. Avery July 18, 2012 depo at 53. He testified that he knew a firearm could discharge if mishandled, but he did not know that a firearm could be expected to discharge if dropped while fully loaded with the safety off.
I’ll withhold further commentary here, except to say that I hope that the jury gets a well drafted contributory negligence charge from the Court.  Sharpen your pencils, counselors.


  1. The gun lobby has successfully created a highly profitable culture in which people are expected to be armed at all times and ready for battle. Nothing crazy about taking them at their word.

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  3. Some observations. To the best of my knowledge, the firearm in question which is a modern copy of the Remmington 41cal over and under derringer of the 1870’s, has no safety at all. I see none in the photograph. There may have been a half-cock feature which should have prevented a discharge in the event of dropage. If this is the case, engaging the half cock should be a matter of prudence on the part of the carrier.

    It should be noted that many modern pistols and revolvers do not come with what are commonly known as safeties. Some of these are in law enforcement use. Many manufactures of antique style pistols have taken the step of introducing firing pin mechanisms that reduce the danger of accidental discharge via striking the hammer. It seems to me that one could make the case that this should have been done in the manufacture of this derringer. I’m not an attorney so that’s for you to decide re product safety/liability.

    Carrying a firearm with an exposed hammer and a button trigger is, and always has been a bit risky. That’s why god invented holsters! But seriously, these exact firearms have been carried around for more than one hundred years. If the plaintiff is as knowledgeable as stated, he knew he was taking a risk.

    • The firearm picture in the article does have a safety. It is a combination half-cock with a button catch. The button is just below the hammer behind the breach.

      • Frances Zacher says:

        According to the opinion, there was a dispute about the safety features available for the gun, or at least how they operated. This is additional language from the opinion:

        Cobra and Avery differ in their descriptions of the safety devices on the derringer. Their differences may or may not be material. Cobra asserts that the safeties “function independently, and both are effective.” Doc. 97 at page 5. However, Avery contends that there are not two separate and independent safeties because “[t]o engage … [the cross-bolt], one has to actually pull back the hammer before the safety can be employed in the SAFE position.” Doc. 45 at page 3. However, there is no dispute that Avery did not have either of the safety features engaged when the derringer discharged on February 10, 2010.

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