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Widow’s Suit Against Remington Revived

(CN) - The Eighth Circuit revived a wrongful death claim against the Remington Arms Company stemming from a 2008 hunting accident in which a South Dakota man died.

The man's wife, Carol O'Neal, sued Remington in December 2011, claiming a defect in a bolt action rifle the company manufactured caused it to misfire, killing her husband.

On November 9, 2008, O'Neal's husband, Lanny, loaned a Remington Model 700 .243 caliber bolt action rifle to his friend, Mark Ritter.

Ritter later told investors that after spotting a deer, he moved the safety lever to the fire position and without his pulling the trigger, the rifle discharged. The bullet hit Lanny O'Neal, traveling through his stomach, spleen and left lung.

Despite their immediately calling 911 and getting O'Neal taken to a hospital, he died later that afternoon.

His widow claimed that Remington was aware a defect in that particular model rifle would cause it to fire without pulling the trigger once the safety lever was released.

She cited that minutes from a 1979 Remington safety subcommittee meeting, at which the defect in certain guns manufactured before 1975 was discussed and a possible recall considered. However, that meeting ended with attendees deciding against a recall because it would have required Remington to gather some 2 million guns ,when only 20,000 were known to be susceptible to the condition.

Remington argued that O'Neal couldn't prove that the defect that caused the rifle to misfire was present at the time of it being manufactured. According to the gun maker, an alteration to the gun after purchase could have caused the misfire.

Complicating matters was that O'Neal, after being denied by two lawyers in her quest to pursue a wrongful death claim, had the gun destroyed because it reminded her of the tragedy. It wasn't until several months later that she learned of the possible defect.

A federal court granted Remington's motion for summary judgment, but the Eighth Circuit on Wednesday overturned that ruling, sending the case back to federal court.

In a 2-1 decision, the three-judge panel found that since South Dakota law allows a plaintiff to prove a defect through circumstantial evidence, O'Neal had presented enough circumstantial evidence to prove the defect was present at the time of manufacture.

"The fact that the subject rifle was used many times without incident from the mid-1980s through November 2008, and then suddenly inadvertently discharged, is consistent with the unpredictable manifestation of the inherent design defect in the Walker trigger," U.S. Circuit Judge Kermit Bye wrote for the majority.

"In sharp contrast, if the subject rifle had been modified or altered prior to the mid-1980s in a way which would cause it to discharge when the safety lever was moved from the safe position to the fire position without the trigger being pulled, it is highly unlikely the rifle could have been used as many times as it was over the span of the next twenty-plus years without incident," Bye said.

U.S. Circuit Judge Jane Kelly concurred.

U.S. Circuit James Loken dissented, holding that O'Neal, without the gun, did not have enough evidence of manufacture defect. He found that O'Neal's only circumstantial evidence was the testimony of "an excited deer hunter using a borrowed rifle" who told investigators that the gun went off without a trigger pull.

"Under South Dakota law, 'unless it is patently obvious that the accident would not have happened in the absence of a defect, a plaintiff cannot rely merely on the fact that an accident occurred,'" Loken wrote. "Here, whether a design or manufacturing defect present when the Model 700 rifle left Remington's control proximately caused a tragic shooting 37 years later was far from 'patently obvious.'"

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