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From Products Liability Law Daily, April 30, 2013

Strict Liability and Negligence Claims Brought Against Firearms Manufacturer Were Time-Barred by Three-Year Statute of Limitations

By John W. Scanlan, J.D.

Strict liability and negligence claims brought by two individuals who were accidentally shot against the manufacturer of the rifles that shot them were time-barred by Montana’s three-year statute of limitations (Barrere v. Remington Arms Co., LLC, April 29, 2013, Cebull, R.); (Humphrey v. Remington Arms Co., LLC, April 29, 2013, Cebull, R.). The failures of the injured individuals to file within the three-year period after being shot were not excused by the discovery rule or the fraudulent concealment doctrine.

Background. Bradley Humphrey was accidentally shot and paralyzed in November, 1989 when his hunting partner slipped and his Remington Model 700 rifle allegedly discharged without a trigger pull. In a separate incident in October, 2007, Sharon Barrere was shot in the left foot when a friend who was hunting was unloading a Remington Model 600 Mohawk bolt action rifle and it allegedly discharged unintentionally. Neither brought suit until being informed by relatives of a television program about Remington Arms Co. on CNBC in October, 2010 that purportedly documented design defects with these rifles. In separate actions filed in 2012, each brought strict liability claims for defective design and failure to warn and common law negligence against Remington and other companies. The defendant companies moved to dismiss, arguing in both cases that the actions were time-barred by the three-year Montana statute of limitations. Humphrey and Barrere both argued that the statute of limitations did not begin to run until after they had learned about the alleged defects as a result of the television program.

Discovery Rule. Under Montana law, the statute of limitations does not begin to run until the facts constituting the claim are discovered or, in the exercise of due diligence, should have been discovered if the facts are by nature concealed or self-concealing, and the defendant has taken action to prevent the injured party from discovering the injury or its cause. Both Humphrey and Barrere were put on inquiry notice to investigate further when they were shot. Their respective failures to investigate were in contravention of both the due diligence requirement and Montana inquiry notice provisions, the court found.

Fraudulent Concealment Doctrine. Similarly, the court dismissed Humphrey’s and Barrere’s allegations that Remington fraudulently concealed material information regarding alleged defects in the rifles’ manufacture and design. Neither exercised due diligence because neither alleged that they had made any communication with Remington during the three-year periods following their respective shooting incidents. A plaintiff is required to allege both an injury and active concealment. The court cited with approval an earlier case in which the fact that there was no communication between the injured party and a different firearms manufacturer meant that there was no affirmative act of concealment (Hesse v. Vinatieri, 145 Cal.App.2d 448 (1956)).

The case numbers are CV-12-122-BLG-RFC and CV-12-136-BLG-RFC.

Attorneys: Richard A. Ramler (Ramler Law Office, P.C.) for Sharon J. Barrere and Bradley Humphrey; Robert M. Carlson (Corette Pohlman & Kebe) for Remington Arms Co., L.L.C.

Companies: Remington Arms Co., L.L.C.; Sporting Goods Properties, Inc.; E.I. DuPont de Nemours and Co.

MainStory: TopStory SofLReposeNews WeaponsFirearmsNews MontanaNews

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