Products Liability Law Reporter

The Eleventh Circuit Court of Appeals held that a putative class action lawsuit may proceed against the makers of the Taurus PT 738 pistol.

Rita Harman’s husband gifted her a Taurus PT 738 pistol. As he was firing the pistol many years later, its slide broke in half, causing fragments of the slide to injure his eye and face. Harman filed a putative class action suit against manufacturers Taurus International Manufacturing, Inc., and Taurus Holdings, Inc., alleging claims for breach of express and implied warranties and violation of the Florida Deceptive and Unfair Trade Practices Act, among other claims. The plaintiff alleged that the pistol contained a latent defect that made it unreasonably dangerous. Specifically, suit claimed that the alleged defect caused the slide to break in half when the pistol was fired and that the defect resulted from combining two separate functions into one component. The defendant concealed the defect from the public while working to fix the problem for future product lines, the plaintiff asserted.

The district court dismissed, holding that the defendants had not breached an express warranty because the plaintiff asserted only a design defect allegation and had not sought service under a repair warranty. The court also concluded that the plaintiff’s deceptive trade practices claim was time-barred.

Vacating in part, the Eleventh Circuit noted that in Alabama, express warranties are treated like any other contract and interpreted according to general contract principles. Citing case law, the court said that express warranties can be created by any affirmation of fact or promise made by the seller to the buyer relating to the goods and becomes part of the basis of the bargain. A manufacturer’s liability for breach of an express warranty therefore derives from the terms of the warranty, the court said.

The court found that the trial court had not erred in determining that the pistol’s warranty against defects in material and workmanship covered only defects in manufacturing, not design. Citing case law, the court said that the consensus among U.S. courts is that a warranty against defects in material or workmanship covers only manufacturing, not design, defects. Moreover, the court noted, Alabama public policy allows a seller to limit the remedies available to a buyer. Thus, the court concluded that Alabama law does not support interpreting the materials and workmanship warranty to cover problems with design.

Nevertheless, the court held that the district court had erred in dismissing the breach of warranty claim based on a manufacturing defect. The plaintiff sued for breach of an express materials and workmanship warranty and alleged that the Taurus PT 738 was defective in its performance or function. Although the allegations of manufacturing defect were conclusory, the court said, under relevant case law, the identification of an existing defect is not essential to recovery under an express warranty theory.

Turning to the deceptive trade practices claim, the court found that the district court had dismissed it as time-barred. The plaintiff’s allegations that the defendants had hidden details about the pistol’s alleged defect and avoided mentioning the defect are sufficient to establish willful concealment at the pleading stage. The court nevertheless found that it could not review the district court’s dismissal of the deceptive trade practices claim because the district court had not addressed whether there was a duty to disclose in the case.

The court therefore remanded the case to the district court to reassess the fraudulent concealment issue and for further proceedings on the breach of materials and workmanship warranty claim.

Citation: Harman v. Taurus Int’l Mfg. Inc., 2024 WL 3860198 (11th Cir. Aug. 19, 2024).

Plaintiff counsel: AAJ members Matthew G. Garmon, Michael T. Wheeles, and David L. Selby II, all of Birmingham, Ala.; and AAJ member Leslie A. Brueckner, Oakland, Calif.

Comment: In Kell v. Freedom Arms, Inc., 2024 WL 4124151 (D. Mont. Sept. 9, 2024), John Kell and his father were riding in a utility vehicle on an unpaved Montana roadway when the vehicle hit a bump, and the Freedom Arms Model 83 pistol holstered on Kell’s chest discharged. He suffered permanent injuries from the bullet, which traveled into his left arm. The gun, which belonged to Kell’s father, was manufactured in Wyoming and sold in Pennsylvania the year it was manufactured. Less than two years after the incident, Kell sued Freedom Arms, alleging claims for design defect, defective warning, negligence, negligent misrepresentation, post-sale failure to warn, breach of the implied warranty of merchantability, breach of the implied warranty of fitness for ordinary use, breach of the implied warranty of fitness for a particular purpose, breach of express warranty, consumer protection violations, negligent design, manufacture, and warning, and negligent testing and inspection. The defendant moved to dismiss for lack of personal jurisdiction and for failure to state a claim. Granting in part and denying in part, the district court found that there was personal jurisdiction here and that most of the plaintiff’s claims could proceed on the merits. The court determined it did not matter that Kell was not a Montana resident or that the firearm here was not sold in Montana. The focus, the court said, is on the defendant’s activities in Montana, which include the sale and marketing of the Model 83 firearm. AAJ member Anthony Jackson, Bozeman, Mont., represented the plaintiff.