United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
L. GRAHAM UNITED STATES DISTRICT JUDGE.
Troy Rote suffered an injury to his left hand while loading a
rifle owned by defendant Edward Grimm. The rifle had a lower
receiver taken from a firearm manufactured by defendant
Bushmaster Firearms International, LLC, and a .50 caliber
upper receiver manufactured by defendant Zel Custom
Manufacturing, LLC. This matter is before the court on the
unopposed motion for summary judgment of Remington Arms
Company, LLC, as successor in interest to Bushmaster.
purchased a Bushmaster XM15-E2S rifle from defendant Vance
Outdoors, LLC in 2006. In 2010, Grimm purchased a Zel
Tactilite T1 .50 caliber bolt-action upper receiver from
Vance. He dissembled the Bushmaster rifle and removed a
majority of its components, including all of its upper
receiver and upper receiver assembly parts, as well as a
portion of the assembly parts from its lower receiver. Grimm
took the Zel upper receiver and the parts provided with it
and he assembled a reconfigured rifle with the Bushmaster
brought the rifle to a party hosted by defendants Gary and
Judith Buyer in September 2011. Rote, a guest at the party,
was given the opportunity to fire the rifle near a pond on
the Buyer's property. The injury occurred when Rote
attempted to load a .50 caliber cartridge bearing the marks
of defendant Dirección General de Fabricaciones
Militares (DGFM). As Rote closed the rifle bolt, an
“out-of-battery” detonation occurred when the
rifle discharged before the bolt's lugs were engaged in
their locking position.
Third Amended Complaint asserts various theories of liability
against Remington under the Ohio Product Liability Act,
§§ 2307.71 to 2307.80, including inadequate
warning, defect due to nonconformance with manufacture's
representation, defective design or manufacture, and supplier
Federal Rule of Civil Procedure 56, summary judgment is
proper if the evidentiary materials in the record show that
there is “no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see Longaberger Co. v.
Kolt, 586 F.3d 459, 465 (6th Cir. 2009). The moving
party bears the burden of proving the absence of genuine
issues of material fact and its entitlement to judgment as a
matter of law, which may be accomplished by demonstrating
that the nonmoving party lacks evidence to support an
essential element of its case on which it would bear the
burden of proof at trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Walton v. Ford
Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).
argues that it is entitled to summary judgment because none
of the firearms experts retained in this case, including
plaintiff's expert, found any defect with the Bushmaster
lower receiver, nor did they find that the lower receiver
caused or contributed to plaintiff's injury. See
e.g., Watkins Rep. at Part 7 (stating that the
Bushmaster components were free of design and manufacturing
defects and that the out-of-battery discharge was not caused
by any of the Bushmaster components). Remington further
argues that Bushmaster did not make any representation to
Rote and had no duty to warn of the dangers that could arise
from disassembling the original rifle and integrating it into
a different product or system not offered or endorsed by
Bushmaster or Remington. See Schaffer v. A.O. Smith
Harvestore Products, Inc., 74 F.3d 722, 729 (6th Cir.
1996); Brennaman v. R.M.I. Co., 70 Ohio St.3d 460,
639 N.E.2d 425 (1994). Finally, Remington argues that
Bushmaster is excluded under the supplier liability statute
from the definition of a “supplier” because it
meets the definition of a “manufacturer.” O.R.C.
§§ 2307.71, 2307.78.
does not oppose Remington's motion for summary judgment
and admits that his own expert found no fault with the
Bushmaster product. However, plaintiff requests that the
court, in entering judgment in Remington's favor, also
preclude the other defendants from asserting at trial that
Remington shares in the responsibility and that Remington
should be included in an apportionment of liability.
court will deny plaintiff's request as premature. The
motion before the court - Remington's motion for summary
judgment - is limited to the argument that plaintiff
(not the other defendants) has failed to establish a genuine
dispute of material fact regarding plaintiff's claims
against Remington. That motion raises no issues regarding
joint and several liability among multiple tortfeasors, a
matter governed by O.R.C. §§ 2307.22 and
2307.23(A)(2) (providing that the trier of fact determine the
percentage share of responsibility of each tortfeasor,
including tortfeasors from whom plaintiff does not seek
defendant Remington's motion for summary judgment (doc.
157) is granted. The motion to strike ...