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O'Neal v. Remington Arms Co., LLC

United States District Court, D. South Dakota, Southern Division

December 19, 2012

Carol O'NEAL, as Personal Representative of the Estate of Lanny O'Neal, Deceased, Plaintiff,
v.
REMINGTON ARMS COMPANY, LLC, Sporting Goods Properties, Inc., and E.I. Dupont De Nemours and Company, Defendants.

Page 737

[Copyrighted Material Omitted]

Page 738

John P. Blackburn, Kerri Lynn Cook, Blackburn & Stevens, Prof. L.L.C., Yankton, SD, Timothy W. Monsees, Monsees, Miller, Mayer, Presley & Amick, Kansas City, MO, for Plaintiff.

James Ellis Moore, Woods, Fuller, Shultz & Smith, PC, Sioux Falls, SD, Andrew A. Lothson, Dale G. Wills, Swanson, Martin & Bell, LLP, Chicago, IL, for Defendants.

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

KAREN E. SCHREIER, Chief Judge.

Plaintiff, Carol O'Neal, as personal representative of the estate of Lanny O'Neal, deceased, brought an action against defendants, Remington Arms Company, LLC, Sporting Goods Properties, Inc., and E.I. Dupont De Nemours and Company, alleging strict liability (product defect), strict liability (failure to warn), negligent design and manufacture, negligent failure to warn, and spoliation of evidence. Plaintiff's spoliation of evidence claim was dismissed following a motion by defendants. Defendants now move for summary judgment on plaintiff's remaining claims. Plaintiff opposes the motion. For the following reasons, defendants' motion for summary judgment is denied.

BACKGROUND

The facts, viewed in the light most favorable to the nonmoving party, are:

Plaintiff is the widow of Lanny O'Neal and is a resident of Brandon, South Dakota. Defendants are business entities registered in the state of Delaware and are in the business of selling firearms, one of which was the Remington Model 700, .243 caliber bolt action rifle that is at the center of this litigation.

On November 9, 2008, Lanny O'Neal was deer hunting with friends near Eagle Butte, South Dakota. Lanny had loaned Mark Ritter, one of the hunters, a Remington Model 700 rifle to use hunting that day. The hunters were traveling in a pickup truck when they came across a deer. At the time, Ritter was sitting in the back seat of the truck and Lanny sat in the front seat. After the truck was stopped, Ritter began exiting the truck so that he could shoot the deer. While Ritter was exiting, the rifle discharged, and Lanny was shot and killed. Plaintiff alleges that the rifle was defective and that the defect was the reason the rifle discharged, causing the death of her husband.

The rifle was manufactured in 1971. Doug Swanson, Lanny's stepfather, acquired the rifle in the early-to-mid 1980s from the estate of his mother's boyfriend, Albert McIlvenna. Swanson does not know when or how McIlvenna acquired the rifle. Swanson would occasionally loan the rifle to Shawn O'Neal, Lanny's brother. Nether Swanson nor Shawn O'Neal adjusted or modified the rifle during the times that they possessed it. Neither individual had a gunsmith inspect the rifle or work on it. In approximately 2005 or 2006, Lanny acquired the rifle and possessed it until the day he lent it to Ritter.

Following Lanny's death, Shawn O'Neal contacted the law firm of Robins, Kaplan, Miller & Ciresi, LLP (Robins Kaplan), in Minneapolis, Minnesota. In December 2008, Shawn and plaintiff met with attorney Chris Messerly of Robins Kaplan to discuss the circumstances of Lanny's death. After this meeting, Robins Kaplan acquired the rifle from the FBI on April 17, 2009, and later advised plaintiff that the firm had the rifle inspected. On March 26, 2010, plaintiff and her friend, Joe Weir, retrieved the rifle from Robins Kaplan after it was ...


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