Pedicone Thompson/Center Arms Company

CourtSuperior Court of Delaware
DecidedFebruary 21, 2022
DocketN17C-11-264 WCC
StatusPublished

This text of Pedicone Thompson/Center Arms Company (Pedicone Thompson/Center Arms Company) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pedicone Thompson/Center Arms Company, (Del. Ct. App. 2022).

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOSEPH J. PEDICONE, III and ) HILMA L. PEDICONE, H/W, ) ) Plaintiffs, ) v. ) C.A. No. N17C-11-264 WCC ) THOMPSON/CENTER ARMS ) COMPANY, LLC F/K/A ) THOMPSON/CENTER ARMS ) COMPANY, INC., and ) SMITH & WESSON CORP., )

Defendants.

Submitted: December 16, 2021 Decided: February 21, 2022

Defendants’ Motion for Summary Judgment – GRANTED in Part and DENIED in Part.

MEMORANDUM OPINION

Joseph J. Rhoades, Esquire and Stephen T. Morrow, Esquire, Rhoades & Morrow LLC, 1225 North King Street, Suite 1200, Wilmington, Delaware 19801. Michael A. Trunk, Esquire, and Thomas E. Bosworth, Esquire, Kline & Specter, P.C., 1525 Locust Street, Philadelphia, PA 19102. Attorneys for Plaintiffs.

Timothy Jay Houseal, Esquire and Jennifer M. Kinkus, Esquire, Young Conaway Stargatt & Taylor, LLP, 1000 North King Street, Wilmington, DE 19801. Anthony M. Pisciotti, Esquire and Danny C. Lallis, Esquire, Pisciotti Lallis Erdreich, 30 Columbia Turnpike, Suite 205, Florham Park, New Jersey 07932. Attorneys for Defendants.

CARPENTER, J. Before the Court is Defendants’ Motion for Summary Judgment. For the

reasons set forth in this Opinion, Defendants’ Motion is GRANTED in part and

DENIED in part.

I. STATEMENT OF FACTS

A. The Parties

Plaintiffs, Mr. Joseph J. Pedicone III (“Pedicone”) and Mrs. Hilma L.

Pedicone (“Mrs. Pedicone”), are residents of the State of Delaware.1 Pedicone is an

avid hunter and firearm owner with approximately fifty years of hunting experience.2

In 2016, Pedicone was loading his Thompson/Center Contender pistol

(“Contender”) in the front seat of his car, in preparation for an afternoon hunt, when

it discharged and shot Pedicone in the leg, resulting in serious injury.3 Mrs. Pedicone

was not directly involved in the accident but brings derivative claims based on

Pedicone’s injury.4

Defendant Thompson/Center is a manufacturer of firearms and muzzleloading

rifles.5 The subject Contender was manufactured on December 20, 1978 by K.W.

1 Compl., D.I. 1, ¶¶ 1, 2 (Nov. 29, 2017). 2 Pls.’ Opp’n to Defs.’ Mot. for Summ. J., D.I. 168, 3 (Nov. 1, 2021)(hereinafter “Pls.’ Br.”); Defs. Opening Br. in Support of Defs.’ Mot. for Summ. J., D.I. 155, 9 (Sept. 15, 2021)(hereinafter “Defs.’ Br.”). 3 Defs.’ Br. at 13-15. 4 Compl. at ¶¶ 38-40, at p. 9. 5 Defs.’ Br. at 2. 2 Thompson Tool Company, Inc., which was then doing business as

Thompson/Center.6

In 2008, Thompson/Center was acquired by Smith & Wesson Holding

Corporation.7 After the acquisition, a new corporation was formed,

Thompson/Center Arms Company, and in 2012, Thompson/Center was merged into

Thompson/Center LLC.8 Thompson/Center LLC and Smith & Wesson Corporation

are both subsidiaries of non-party Smith & Wesson Holding Corporation.9

B. The Thompson/Center Contender

The Contender was designed in the 1960s and manufactured until

approximately 2000.10 The Contender’s design incorporates several unique

features, including (1) interchangeable barrels; (2) the ability to change the firing pin

position; (3) the ability to manually adjust the trigger pull; and (4) adjustable length

of travel of the trigger movement back and forward.11

The Contender also utilizes two safeties, an automatic and manual safety: (1)

an automatic hammer block safety that pushes the hammer back and holds it away

from the breech face, and (2) a manual “safety” position on the selector switch. 12

6 Id. 7 Id. at 3. 8 Id. 9 Id. 10 Id. 11 Id. at 4. 12 Id. at 4. 3 The automatic hammer block safety prevents an accidental discharge from a bump,

drop, or accidental release of the hammer while cocking.13 The manual safety, which

is located on the hammer of the pistol, has three different positions, “rim fire,”

“center fire,” and the “safe” position.14

The Contender is loaded by depressing that trigger guard spur and “breaking”

the action to expose the breech of the barrel.15 Once the breech is exposed, a

cartridge may be inserted, and the action is closed.16 Once closed, the shooter cocks

the hammer, and then, changes the safety selector from “safe” to “rim fire” or “center

fire” as appropriate for the cartridge being used.17 If the user decides not to shoot

but the gun is loaded and the hammer is cocked, there are additional steps to disarm

the gun.18 Specifically, the user must let the hammer down and re-set the automatic

safety.19

The Contender is sold with an instruction manual (“Manual”) that contains

specific instructions and warnings, including detailed photographs and drawings

depicting the mechanical operation of the gun.20 The Manual is provided with new

13 Id. at 4. 14 Id. 15 Id. at 6. 16 Id. 17 Id. 18 Id. 19 Id. 20 Id. 4 purchases of the Contender and available on the manufacturer’s website. 21 The

Manual contains colorful fonts, bold type, and capitalization for important

warnings.22 For example, on the inside cover of the Manual, it states, “YOU MUST

READ THIS MATERIAL BEFORE USING THE CONTENDER.”23

C. Pedicone purchased the used Contender from friend, Alan McDaniels

In 2008, Pedicone purchased the subject Contender from his friend Alan

McDaniels (“McDaniels”).24 McDaniels is also a firearms enthusiast and has owned

several Contenders.25 McDaniels possessed the Manual but did not provide it to

Pedicone.26 Instead, McDaniels allegedly verbally informed Pedicone about the

operation of the weapon.27 Pedicone received a Bill of Sale that stated the subject

Contender was being sold “as is” and without any express or implied warranties.28

During the same transaction, Pedicone also purchased a used barrel from

McDaniels.29

A few months later, in April of 2008, Pedicone changed the barrel of the

subject Contender by sending it to Fox Ridge Outfitters, which was a

21 Id. at 12. 22 Id. at 8. 23 Id. 24 Pls.’ Br. at 3. 25 Id. 26 Id. 27 Id. 28 Defs.’ Br. at 10. 29 Id. 5 Thompson/Center store.30 The barrel was cut to twelve inches and a muzzle brake

was installed.31

D. The Pedicone Accident

In January of 2016, Pedicone was preparing to go hunting with the subject

Contender in the wooded area behind the Switch Salvage yard, located in New

Castle, Delaware.32 Upon arrival, Pedicone had to wait approximately fifteen

minutes for the yard to open so he could access his desired hunting location.33

While waiting for Swift Salvage to open, Pedicone grabbed the subject

Contender from behind the seat, removed the unloaded gun from its case, and

brought it up to the front console area.34 The selector switch was not on “safe” but

was in the “center fire” position.35

Pedicone decided to handload ammunition while he was sitting in the driver’s

seat.36 When Pedicone closed the barrel, the gun discharged, and he was shot in the

left leg.37 Pedicone suffered a major laceration of the left leg femoral artery and

above-the-knee amputation of the left leg.38

30 Id. at 12. 31 Id. 32 Pls.’ Br. at 4, 13. 33 Id. at 4. 34 Id. 35 Defs.’ Br. at 14. 36 Id. 37 Id. at 15. 38 Pls.’ Br. at 5. 6 II. PROCEDURAL BACKGROUND

On November 29, 2019, Plaintiffs initiated suit against Thompson/Center

Arms and Smith & Wesson Corporation.39 Pedicone asserts negligence claims based

on design, manufacturing, and failure to warn defects, implied warranty violations,

and Mrs. Pedicone asserted a loss of consortium claim.40 Both Defendants have

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