United States District Court, W.D. Virginia, Roanoke Division
Hon. Glen E. Conrad Chief United States District Judge
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.
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).
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,
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.
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.
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. The court held a
hearing on the motion on June 30, 2016. The motion has been
fully briefed and is now ripe for disposition.
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).
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).
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.
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.
§ 8.2-313(2). However, "an affirmation merely of