Winingham v. Sig Sauer Incorporated

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Harvey Winingham, No. CV-22-01037-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Sig Sauer Incorporated,

13 Defendant. 14 15 At issue is Defendant Sig Sauer, Incorporated’s Motion for Summary Judgment 16 (Doc. 71-1, MSJ) accompanied by a Statement of Facts (Doc. 71-2, DSOF), to which 17 Plaintiff Harvey Winingham filed a Response (Doc. 78, Resp.) accompanied by a 18 Statement of Facts (Doc. 77, PSOF), and Defendant filed a Reply (Doc. 81, Reply). The 19 Court has reviewed the parties’ briefs and finds this matter appropriate for decision without 20 oral argument. See LRCiv 7.2(f). For the reasons set forth below, the Court will grant 21 Defendant’s Motion for Summary Judgment. 22 I. BACKGROUND 23 Plaintiff owns a P320 handgun, which is designed, manufactured, marketed, and 24 sold by Defendant. As part of its marketing efforts, Defendant advertised that the P320 25 “won’t fire unless you want it to,” and it will not discharge “unless the trigger is pulled.” 26 (PSOF ¶ 4.) When Plaintiff purchased his P320, however, he had not seen any of 27 Defendant’s advertising for the gun. (DSOF, Ex. A, Winingham Dep. at 51:5–11.) Shortly 28 after acquiring the pistol, Plaintiff learned that Defendant was offering P320 owners a 1 voluntary “upgrade” that was intended to decrease the risk of the gun misfiring when 2 dropped. (PSOF ¶ 7.) Plaintiff sent the gun in for an upgrade and received it back, and he 3 specifically recalls reading again Defendant’s statement that the gun “won’t fire unless you 4 want it to.” (PSOF ¶ 9.) 5 Plaintiff alleges that on May 31, 2020, he was holding his P320 on his belly when 6 it discharged without him touching the trigger. (Winingham Dep. at 77–92.) The bullet 7 entered through Plaintiff’s left hand and resulted in “the loss of a finger, significant injury 8 to the entire hand, and severe pain and suffering.” (Doc. 27, Am. Compl. ¶ 19.) Plaintiff 9 filed an Amended Complaint against Defendant alleging (1) negligence, (2) strict liability, 10 (3) breach of implied warranty of merchantability, (4) breach of warranty of fitness for a 11 particular purpose, (5) breach of express warranty, (6) consumer fraud, and (7) common 12 law fraud. (Am. Compl.) 13 Defendant moved to exclude the opinions of Plaintiff’s expert and moved for 14 summary judgment on each claim. On April 17, 2024, the Court granted Defendant’s 15 Motion to Preclude the Evidence and Opinions of Plaintiff’s Expert, David Bosch. 16 (Doc. 83.) The Court now rules on the Motion for Summary Judgment. 17 II. LEGAL STANDARD 18 Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate 19 when the movant shows that there is no genuine dispute as to any material fact and the 20 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. 21 Catrett, 477 U.S. 317, 322–23 (1986). “A fact is ‘material’ only if it might affect the 22 outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could 23 resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, 24 LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 25 242, 248 (1986)). The court must view the evidence in the light most favorable to the 26 nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. 27 Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). 28 1 The moving party “bears the initial responsibility of informing the district court of 2 the basis for its motion and identifying those portions of [the record] . . . which it believes 3 demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 232. 4 When the moving party does not bear the ultimate burden of proof, it “must either produce 5 evidence negating an essential element of the nonmoving party’s claim or defense or show 6 that the nonmoving party does not have enough evidence of an essential element to carry 7 its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 8 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party carries this initial burden, the 9 nonmoving party must produce evidence to support its claim or defense. Id. at 1103. 10 Summary judgment is appropriate against a party that “fails to make a showing sufficient 11 to establish the existence of an element essential to that party’s case, and on which that 12 party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. 13 In considering a motion for summary judgment, the court must regard as true the 14 nonmoving party’s evidence, as long as it is supported by affidavits or other evidentiary 15 material. Anderson, 477 U.S. at 255. However, the nonmoving party may not merely rest 16 on its pleadings; it must produce some significant probative evidence tending to contradict 17 the moving party’s allegations, thereby creating a material question of fact. Id. at 256–57 18 (holding that the plaintiff must present affirmative evidence in order to defeat a properly 19 supported motion for summary judgment); see also Taylor v. List, 880 F.2d 1040, 1045 20 (9th Cir. 1989) (“A summary judgment motion cannot be defeated by relying solely on 21 conclusory allegations unsupported by factual data.” (citation omitted)). And, for a genuine 22 issue of material fact to arise, the nonmoving party may need to present more than “a 23 self-serving declaration that states only conclusions.” Nigro v. Sears, Roebuck and Co., 24 784 F.3d 495, 497 (9th Cir. 2015). 25 III. ANALYSIS 26 A. Plaintiff’s Product Liability Claims 27 Plaintiff brings two product liability claims: one under a negligence theory and one 28 under a strict liability theory. He alleges that Defendant negligently designed and 1 manufactured the P320 and failed to warn that the gun was defective. (Am. Compl. 2 ¶¶ 26–34.) His strict liability claim is less specific; rather than identifying whether he 3 alleges defective design, manufacturing, or failure to warn, Plaintiff’s Complaint simply 4 repeats the general statement that the gun was “in a defective condition and unreasonably 5 dangerous.” (Am. Compl. ¶¶ 36–38.) 6 Under Arizona law, both of Plaintiff’s product liability claims “must rely on the 7 allegation that [the] product is defective.” See Stilwell v. Smith & Nephew, Inc., 482 F.3d 8 1187, 1194 (9th Cir. 2007). Defendant argues that it is entitled to summary judgment on 9 each claim because Plaintiff fails to identify any defect in the P320. (MSJ at 11.) As 10 Defendant points out, Plaintiff’s claims rest entirely on his assertion that the gun discharged 11 without him contacting the trigger.1 Plaintiff offers no scientific or mechanical evidence 12 that a defect exists. 13 Nevertheless, Plaintiff responds that he may prove his products liability claims by 14 relying on the doctrine of res ipsa loquitur—“the gun is defective and unreasonably 15 dangerous because guns do not discharge by themselves absent someone’s negligence.” 16 (Resp. at 6.) Under Arizona law, a plaintiff may rely on res ipsa loquitur only if he can 17 show that (1) the accident is of a kind that ordinarily does not occur in the absence of 18 negligence, (2) the accident was caused by an agency or instrumentality within the 19 exclusive control of the defendant, and (3) the plaintiff is not in a position to show the 20 particular circumstances that caused the offending agency or instrumentality to operate his 21 injury. Cox v. May Dep’t Store Co., 903 P.2d 1119, 1122–24 (Ariz. Ct. App. 1995). 22 Defendant contends that Plaintiff’s reliance on res ipsa loquitur is misplaced 23 because he cannot satisfy the first element. The “first element merely requires a weighing 24 of the probabilities of the cause of the accident,” and to defeat a motion for summary

25 1 Plaintiff’s Response also alludes to an alternative factual theory in which Plaintiff touched the trigger so lightly that he did not perceive the contact. (Resp. at 2–3, 6.) This 26 version of the facts purports to both prove that the trigger was defectively sensitive and explain why Plaintiff testified that he did not touch the trigger. However, this theory is 27 unpled, and these facts find no support in the record. The only evidence of whether Plaintiff touched the trigger is Plaintiff’s testimony, and Plaintiff insists that he did not. (Winingham 28 Dep. at 87:7–8, 89:13–15, 90:19–91:6.) On this record, any argument to the contrary is purely speculative and cannot support the claims’ survival of summary judgment. 1 judgment, “the evidence presented must be sufficient to allow the jury to infer that 2 negligence was more likely than not the cause of the accident.” Cox, 903 P.2d at 1122. 3 “This issue, ‘[i]n borderline cases, is properly left to the jury.’” Id. (quoting Ruiz v. Otis 4 Elevator, 703 P.2d 1247, 1250 (Ariz. Ct. App. 1985)). 5 Defendant argues that the injury is not “of a kind that ordinarily does not occur in 6 the absence of negligence” because, as Defendant couches the issue, the injury is a 7 “self-inflicted gunshot wound,” which is “precisely the kind of injury that does occur” 8 absent such a defendant’s negligence. (Reply at 3.) But Plaintiff testified that he did nothing 9 more than lay the gun across his belly without contacting the trigger, and if a factfinder 10 were to believe that testimony, it would appear much more probable that Defendant’s 11 negligence caused the injury. Thus, to weigh the probabilities of the cause of the accident, 12 the Court would have to evaluate Plaintiff’s credibility based only on a cold record—a task 13 that is both difficult and generally disfavored in the law. In this case, however, the Court 14 need not resolve that issue, because even if Plaintiff could satisfy this element, he has not 15 satisfied the second or third. 16 Although the parties focus their briefing exclusively on the first element, the Court 17 finds that the latter two elements preclude Plaintiff from relying on res ipsa loquitur. The 18 second element, which requires Plaintiff to show that the defendant was in exclusive 19 control of the instrumentality that caused the injury, “is not to be applied rigidly but ‘is 20 merely an aid in determining whether it is more probable than not that the accident was the 21 result of defendants’ negligence.’” Sanchez v. Tucson Orthopaedic Inst., P.C., 202 P.3d 22 502, 504 (Ariz. Ct. App. 2008) (quoting Byars v. Ariz. Pub. Serv. Co., 539 P.2d 534, 540 23 (Ariz. Ct. App. 1975)). And the third element requires Plaintiff to establish that he is 24 “unable to show the particular circumstances that caused the offending instrumentality to 25 operate [his] injury.” Cox, 903 P.2d at 1124. 26 Plaintiff fails to satisfy both elements for essentially the same reason: Plaintiff was 27 in sole possession of the gun at the time of the injury. Because the gun discharged while it 28 was in Plaintiff’s hand, it would be difficult for Plaintiff to argue that Defendant was “in 1 exclusive control” of the firearm. Perhaps there is an argument to be made—although 2 Plaintiff does not make it—that here, “exclusive control” should mean control over the 3 production rather than the operation of the gun. See Cox, 903 P.2d at 1123 (noting that the 4 department store and elevator company defendants were “in exclusive control over the 5 design, installation, and maintenance” of an allegedly defective escalator, explaining that 6 “control” under res ipsa loquitur refers to “responsibility for the instrumentality,” not 7 “permissive use of the instrumentality”). But under the facts of this case, such an 8 interpretation would run the risk of undermining the purpose of the second element, which 9 is to “aid in determining whether it is more probable than not that the accident was the 10 result of defendants’ negligence.’” Sanchez, 202 P.3d at 504 (quoting Byars, 539 P.2d at 11 540). The situation is summed up nicely by Plaintiff’s own framing of the facts: “Based on 12 the record here, there are two possibilities. One is that [Plaintiff] . . . came into contact with 13 the trigger with sufficient force to actually pull the trigger. In that case, he was arguably 14 negligent.” (Resp. at 6.) Because Plaintiff had control of the instrumentality that caused his 15 injury, he has not satisfied the second element. 16 He likewise has not satisfied the third. This final element requires Plaintiff to 17 establish that he is in no position to show the particular circumstances that caused the gun 18 to misfire. See Cox, 903 P.2d at 1124. In analyzing this element, the Arizona courts have 19 cautioned that “[i]nvocation of res ipsa loquitur is no substitute for reasonable 20 investigation and discovery. The doctrine may benefit a plaintiff unable directly to prove 21 negligence; it does not relieve a plaintiff too uninquisitive to undertake available proof.” 22 McDonald v. Smitty’s Super Valu, Inc., 757 P.2d 120, 125 (Ariz. Ct. App. 1988). As the 23 owner and possessor of the gun, Plaintiff was in a position to show the circumstances 24 causing the accident. This is exemplified by the fact that Plaintiff had an expert who 25 performed “basic manipulation of the pistol.” (Doc. 70, Ex. B, Ex. D. at 11:2–15.) That the 26 expert’s testimony has since been excluded is of no moment because the inquiry is only 27 whether Plaintiff was in the position to show the circumstances that caused the misfire, not 28 whether he actually did. Plaintiff’s ability to obtain an expert who physically examined the 1 gun tends to show that Plaintiff was in a position to explain why the gun discharged, and 2 he does not argue that he or any expert was incapable of inspecting the firearm or of 3 otherwise acquiring explanatory information through investigation and discovery. Plaintiff 4 thus fails to satisfy the third element. 5 Because Plaintiff cannot satisfy each of the three elements, the Court will not allow 6 Plaintiff to rely on the doctrine of res ipsa loquitur here. And without his res ipsa loquitur 7 theory, Plaintiff is left with no evidence to prove that the P320 was defective.2 Accordingly, 8 neither of Plaintiff’s product liability claims can survive summary judgment. See Cook v. 9 Hawkins, No. 1 CA-CV 18-03999, 2109 WL 2442263, at *2–3 (Ariz. Ct. App. June 11, 10 2019) (disposing of both a negligence and a strict product liability claim when each relied 11 on a res ipsa loquitur inference). Moreover, under Arizona law, “the theory of liability 12 under implied warranty has been merged into the doctrine of strict liability” such that 13 Plaintiff’s implied warranty claims “must stand or fall” with his strict liability claim. See 14 Scheller v. Wilson Certified Foods, Inc., 559 P.2d 1074, 1076 (Ariz. Ct. App. 1976). 15 Therefore, Plaintiff’s claims for breach of implied warranty of merchantability and breach 16 of warranty of fitness for a particular purpose also fail. 17 B. Plaintiff’s Fraud and Express Warranty Claims 18 Plaintiff also brings claims for common law fraud, consumer fraud, and breach of 19 express warranty, each based on alleged misrepresentations in Defendant’s marketing 20 materials that the P320 “won’t fire unless you want it to” and will not discharge “unless the 21 trigger is pulled.” (Am. Compl. at 13–15.) Defendant argues that it is entitled to summary 22 judgment on all three claims because Plaintiff fails to present evidence of Defendant’s 23 misrepresentations or his reliance thereon. (MSJ at 13.) 24 25 2 Plaintiff briefly argues there is other evidence that the P320 is defective, pointing 26 to several reports of unintended discharges. (Resp. at 7.) But at best, these reports show only that the P320 might fire without an intentional trigger pull. (PSOF ¶¶ 22–25.) They 27 do not show that the P320 is capable of firing without any trigger actuation at all, which is Plaintiff’s only alleged theory here. See supra note 1 (rejecting the theory that Plaintiff 28 unintentionally actuated the trigger). These reports, therefore, do not support Plaintiff’s claims. 1 1. Common Law Fraud 2 The requirements for proof of common law fraud in Arizona are “very strict” and 3 require a showing of nine elements: (1) a representation, (2) its falsity, (3) its materiality, 4 (4) the speaker’s knowledge of its falsity or ignorance of its truth, (5) intent that it should be 5 acted upon, (6) the hearer’s ignorance of its falsity, (7) the hearer’s reliance of its truth, 6 (8) the hearer’s right to rely thereon, and (9) the hearer’s consequent and proximate injury. 7 Fridenmaker v. Valley Nat’l Bank of Ariz., 534 P.2d 1064, 1067–68 (Ariz. Ct. App. 1975). 8 The “failure to prove any one of the essential elements is fatal to the cause of action.” Id. at 9 1068. 10 Defendant lays out all nine elements and argues that Plaintiff cannot show a 11 misrepresentation or reliance. (MSJ at 12–13.) Rather than addressing any of these elements, 12 Plaintiff simply responds that “the elements of common law fraud are plainly present” and 13 moves on to support his consumer fraud claim. (Resp. at 9.) Failure to respond to a motion 14 may be deemed consent to the Court’s granting of that motion. LRCiv 7.2(i). Accordingly, 15 the Court finds that Plaintiff has waived the argument and Defendant is entitled to summary 16 judgment on Plaintiff’s common law fraud claim. See F.D.I.C. v. Garner, 126 F.3d 1138, 17 1145 (9th Cir. 1997) (holding a party that presents no argument in support of its claim 18 waives the argument); see also Pelfresne v. Vill. of Williams Bay, 917 F.2d 1017, 1023 (7th 19 Cir. 1990) (“A litigant who fails to press a point by supporting it with pertinent authority, 20 or by showing why it is sound despite a lack of supporting authority or in the face of 21 contrary authority, forfeits the point. We will not do his research for him.” (internal 22 citations omitted)). 23 2. Consumer Fraud 24 Plaintiff also brings a claim for violation of the Arizona Consumer Fraud Act. “The 25 Arizona Consumer Fraud Act is a broad act intended to eliminate unlawful practices in 26 merchant-consumer transactions.” Holeman v. Neils, 803 F. Supp. 237, 242 (D. Ariz. 1992) 27 (citing State ex rel. Corbin v. Hovatter, 698 P.2d 225, 226 (Ariz. Ct. App. 1985)). To 28 succeed on a claim of consumer fraud, a plaintiff must show “1) a false promise or 1 misrepresentation made in connection with the sale or advertisement of ‘merchandise,’ and 2 2) consequent and proximate injury resulting from the misrepresentation.” Watts v. 3 Medicis Pharm. Corp., 365 P.3d 944, 953 (Ariz. 2016); see also A.R.S. § 44-1522(A). 4 “[I]njury occurs when the consumer relies on the misrepresentation even though the 5 reliance is not reasonable.” Holeman, 803 F. Supp. at 242. But while reasonableness is not 6 required, reliance must be possible. See Kuehn v. Stanley, 91 P.3d 346, 351 (Ariz. Ct. App. 7 2004) (holding that reliance was not possible when the plaintiffs received a false report 8 only after entering into a contract). Furthermore, the misrepresentation “on which liability 9 is predicated must be logically related to the transaction in which it occurs and rationally 10 significant to the parties in view of the nature and circumstances of the transaction.” Haisch 11 v. Allstate Ins. Co., 5 P.3d 940, 944–45 (Ariz. Ct. App. 2000). 12 It follows, then, that Plaintiff must show he relied on Defendant’s statements in 13 connection with some transaction, and there are only two transactions at play here. First, 14 Plaintiff purchased the P320, and later, Plaintiff elected to upgrade the P320. The initial 15 purchase cannot be the transaction upon which Plaintiff stakes his claim because he 16 admitted that he did not visit Defendant’s website or see any advertising for the P320 prior 17 to purchasing the gun.3 (Winingham Dep. at 51:5–11.) It is thus impossible that Plaintiff 18 relied on the alleged misrepresentations in connection with the purchase. Therefore, to 19 support his consumer fraud claim, Plaintiff must show a misrepresentation that is “logically 20 related to the [upgrade] transaction.” See Haisch, 5 P.3d at 944–45. To that end, Plaintiff 21 argues that he relied on Defendant’s misrepresentation that the gun “will not fire unless 22 you want it to” in two specific ways: (1) the statement is “why [he] sent [the gun] in” for 23

24 3 Although Plaintiff did not view any of Defendant’s advertising prior to purchasing the P320, he did conduct some internet research and “was influenced by the Army’s 25 decision to adopt the gun and the wide-spread consumer confidence (as seen in reviews), which were undoubtedly influenced by [Defendant]’s misrepresentations.” (Resp. at 26 10–11.) Citing only an unpublished District of New Jersey case for support, Plaintiff argues that Defendant had the “capacity to mislead” consumers generally, and thus “one can 27 reasonably infer that the misrepresentations . . . contributed to creating a general, widespread impression that the P320 was safe.” (Resp. at 10–11.) The Court finds this 28 theory unsupported in the law and too attenuated to constitute a violation of Arizona’s Consumer Fraud Act. 1 the upgrade (Winingham Dep. at 60:10–12), and (2) the statement caused him to 2 mistakenly believe his P320 was safe to carry after the upgrade. (PSOF ¶ 11.) 3 Plaintiff’s first argument is unavailing because, even if Plaintiff relied on the 4 statement in choosing to upgrade the pistol, he has not alleged any harm arising out of the 5 upgrade itself. In other words, Plaintiff did not allege that the statement misled him into 6 upgrading the gun. Rather, in line with his second argument, Plaintiff asserts that the 7 statement misled him to incorrectly believe the gun was safe after the upgrade. 8 The sequence of events, however, renders Plaintiff’s argument problematic. As 9 Plaintiff notes, Defendant made this statement “[p]rior to [him] acquiring the P320.” 10 (PSOF ¶ 4.) And Plaintiff further acknowledges that he read the statement both “before the 11 upgrade” and “once again, . . . after the upgrade.” (Winingham Dep. at 59:25–60:10.) 12 Therefore, while Plaintiff may have believed the gun would not misfire after the upgrade, 13 he cannot have formed that belief by relying on Defendant’s statement in a manner that 14 was “logically related to the [upgrade] transaction.” Accordingly, there is no evidence from 15 which a reasonable jury could find that Plaintiff relied on the statements in connection with 16 the transactions of purchasing or upgrading the P320, and Plaintiff cannot maintain his 17 claim for consumer fraud. 18 3. Breach of Express Warranty 19 Plaintiff’s final claim is for breach of express warranty. To prevail on such a claim, 20 a plaintiff must show an “affirmation of fact or promise made by the seller to the buyer 21 which relates to goods and becomes part of the basis of the bargain.” Dillon v. Zeneca 22 Corp., 42 P.3d 598, 602 (Ariz. Ct. App. 2002). As analyzed above, Plaintiff cannot show 23 reliance and thus cannot show that Defendant’s statements became “part of the basis of the 24 bargain” when he purchased or upgraded the P320. Defendant is therefore entitled to 25 summary judgment on Plaintiff’s breach of express warranty claim. 26 IV. CONCLUSION 27 On this record, there is no genuine dispute of material fact as to any of Plaintiff’s 28 claims, and Defendant is entitled to judgment as a matter of law. 1 IT IS THEREFORE ORDERED granting Defendant’s Motion for Summary 2|| Judgment (Doc. 71). 3 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment in 4|| favor of Defendant and to close this case. 5 Dated this 7th day of August, 2024. CN

7 wefehlee— Unifga StatesDistrict Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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