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King v. Blackpowder Products, Inc.

United States District Court, W.D. Virginia, Roanoke Division

July 22, 2016

CHARLES DAVID KING, JR., Plaintiff,
v.
BLACKPOWDER PRODUCTS, INC., et al., Defendants.

          MEMORANDUM OPINION

          By: Hon. Glen E. Conrad Chief United States District Judge

         Plaintiff Charles David King, Jr. brings this diversity action against Blackpowder Products, Inc. ("Blackpowder"), Wal-Mart Stores East, LP ("Wal-Mart"), and Dikar S. Coop., LTD A. ("Dikar"), seeking recovery for an injury that King sustained while using a 50 caliber muzzleloader. The case is presently before the court on defendants' motion for partial summary judgment. For the reasons set forth below, the motion will be granted in part and denied in part.

         Factual Background

         The following facts are either undisputed or, where disputed, presented in the light most favorable to the plaintiff. See Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (emphasizing that courts must view the evidence on summary judgment in the light most favorable to the nonmoving party).

         King is a resident of Carroll County, Virginia. He is an avid hunter and owns between 30 and 35 guns, including three muzzleloaders. Defendant Blackpowder is a Georgia corporation with its headquarters in Duluth, Georgia. Defendant Wal-Mart is a Delaware limited partnership with its headquarters in Bentonville, Arkansas. Defendant Dikar is a Spanish corporation with its headquarters in Bergara, Gipuzkoa, Spain.

         In October of 2001, King purchased a "Connecticut Valley Arms Staghorn" 50 caliber muzzleloader (the "rifle") from a Wal-Mart store in Galax, Virginia. Compl. 110. The rifle was manufactured by Dikar and distributed in the United States by Blackpowder.

         On October 28, 2010, Jody Norman, King's teenage neighbor, asked if he could borrow a muzzleloader. King agreed to lend Norman the rifle, but wanted to test fire it first. That same day at approximately 3:00 p.m., King cleaned the rifle and loaded it with two 50 grain Pyredex pellets and a 50 caliber bullet, in a manner consistent with the instructions provided with the rifle. King then fired the rifle at a target 100 yards away. King again cleaned the rifle and loaded it with two 50 grain Pyredex pellets and a 50 caliber bullet. When King pulled the trigger, the rifle barrel ripped apart near his left hand. The explosion caused plaintiff to lose his left thumb and index finger, leaving him permanently deformed and disfigured. He suffered severe pain, emotional anguish, and embarrassment due to his injuries, which required extensive medical care and treatment. King also suffered loss of income, as he was unable to work for a period of time.

         On April 23, 2014, King filed a complaint against defendants in the Circuit Court for Carroll County, Virginia. Defendants removed the case to this court on May 5, 2015, claiming that jurisdiction was proper under 28 U.S.C. § 1332. In the complaint, King asserts nine counts including: (1) negligence (Count I); (2) breach of express warranties (Count II); (3) breach of implied warranties (Count III); (4) breach of implied warranty of merchantability (Count IV); (5) breach of implied warranty of fitness for a particular purpose (Count V); (6) failure to warn (Count VI); (7) violation of the Virginia Consumer Protection Act, Virginia Code § 59.1-200 (Count VII); (8) willful or wanton conduct (Count VIII); and (9) strict liability (Count IX). King seeks compensatory damages in the amount of $1, 500, 000.00, treble damages under Virginia Code § 59.1-204(A), punitive damages in the amount of $350, 000.00, attorney's fees and costs, and any other equitable relief. On May 16, 2016, Blackpowder and Wal-Mart filed a motion for partial summary judgment as to Counts II, VII, VIII, and IX.[1] The court held a hearing on the motion on June 30, 2016. The motion has been fully briefed and is now ripe for disposition.

         Standard of Review

         An award of summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party." Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (internal quotation marks omitted). "A fact is material if it 'might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson, 477 U.S. at 248).

         In considering a motion for summary judgment, the court must view the record in the light most favorable to the nonmoving party. Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014). To withstand a summary judgment motion, the nonmoving party must produce sufficient evidence from which a reasonable jury could return a verdict in her favor. Anderson, 477 U.S. at 248. "Conclusory or speculative allegations do not suffice, nor does a mere scintilla of evidence in support of [the nonmoving party's] case." Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks omitted).

         Discussion

         Blackpowder and Wal-Mart move for partial summary judgment as to Counts II, VII, VIII, and IX. King does not oppose the motion as to Counts VII, VIII, and IX against Blackpowder and Wal-Mart, as well as Count II against Wal-Mart. His sole argument in opposition to the motion for partial summary judgment is that there remains a genuine dispute of material fact as to whether Blackpowder breached an express warranty.

         It is undisputed that Virginia law provides that "any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise." Va. Code § 8.2-313(l)(a). Furthermore, "any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description." IdL § 8.2-313(1)(b). It is not necessary that the seller use formal words such as "warrant" or "guarantee, " or that it have the specific intention to make a warranty. Id. ยง 8.2-313(2). However, "an affirmation merely of ...


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