TOPEKA, Kan. (Legal Newsline) - A judge was wrong to rule for Bass Pro and Beretta in a gun violence lawsuit, a Kansas appeals court has ruled in sending the case to a jury.
Lyon District Court Judge Merlin Wheeler had ruled federal law preempted Marquise Johnson's lawsuit against the companies after he was accidentally shot in the leg by a high school football teammate who was unaware there was a bullet in the chamber.
Johnson sued Lewis, the maker of the gun (Beretta) and the distributor (Bass Pro), alleging the gun lacked a magazine disconnect that prevents guns from firing when the magazine has been removed.
Lewis was found to have acted reckless by not reading the manual or a warning printed on the gun, then pointing it at Johnson and pulling the trigger. Wheeler granted summary judgment for the defendants, but Johnson appealed.
Johnson cited a product defect exception in the PLCAA, which blocks civil liability actions for damages resulting from criminal or unlawful misuse of a firearm. The exception doesn't apply when discharge is caused by a "volitional act that constituted a criminal offense." Lewis faced no criminal charges for shooting Johnson.
Johnson said the discharge was not volitional because Lewis did not intend to fire a bullet when he pulled the trigger, while the defendants said the PLCAA preempts claims when a gun functions as designed.
Discharging a firearm on a pubic road is a criminal offense, the court ruled, but questions remain whether Lewis' actions were volitional, so Judge Wheeler should have let a jury answer them.
"There is no question here that Lewis chose to pull the trigger," Judge Stephen Hill ruled. "But there is also no question Lewis did not choose or intend for the gun to discharge when he pulled that trigger."
Since Lewis was more familiar with a gun that required a trigger-pull to disassemble it (which is what he was trying to do with his new Beretta), the jury can decide whether there is a product defect, the court said.
"Here, the district court was too quick to grant summary judgment on the recklessness issue," the ruling says.
"The question of whether Lewis pulled back the slide to eject the chambered round was a material disputed fact. That Lewis intentionally removed the magazine to disarm the gun and that he did not know the gun could fire with the magazine removed were material facts that supported Johnson's position that Lewis was not reckless.
"The district court did not view the evidence and all inferences that could be drawn from the evidence in the light most favorable to Johnson."
Judge Amy Cline dissented, saying the facts showed Lewis was reckless and the discharge of the gun was a volitional act.
"I do not believe reasonable minds could differ on whether Lewis consciously disregarded substantial and unjustifiable risks created by his conduct and his disregard was a gross deviation from the standard of care which a reasonable person would exercise," she wrote.
"A jury would have no more evidence before it to decide this issue than the district court and, as the court explained, the only area of controversy is immaterial."