*1
рremises,”
of
route with the
other than to
tion
the access
very
was
close to his
of
appellee
place
employ-
observe
note, however,
grava-
when attacked. We do
that “[t]he
ment
proximity
employee
men of
is not that the
close
[the
rule]
employment,
to his
but rather
proximity
place
proximity
employee
subjected
danger
reason
such
degree beyond
or to an abnormal
that to which the
peculiarly
subjected.”
Bakery,
Pariser
239 Md. at
general public
591,
We hold a matter that because the “premises” “proximity” exceptions going to the and com- case, ing applicable appellee’s rule are not to the facts of this injuries employment. did not occur the course his Ac- circuit court cordingly, granting summary judg- erred appellee implicitly affirming ment in favor of Commission’s decision.
JUDGMENT REMANDED TO REVERSED. CASE CITY, THE CIRCUIT COURT FOR BALTIMORE WITH TO ENTER SUMMARY INSTRUCTIONS JUDGMENT FOR APPELLANTS. BE PAID BY APPELLEE.
COSTS TO A.2d
Melissa M. HALLIDAY STURM, COMPANY, RUGER & INC. Term, Sept.
No. 1999. Special Appeals Maryland. Court of
April 2001. *4 (C. Brown, Andrew D. Freeman Christopher Brown and brief), Baltimore, Goldstein LLP on Levy, & for appel- lants. (M. Hill, III, Venable,
Paul F. King Strain and Baetjer and Howard, LLP, Baltimore, Dorr, James P. Vogts James B. and Wildman, Harrold, Dixon, IL, brief), Allen & Chicago, on the appellees. for MURPHY, C.J.,
Argued DAVIS, before HOLLANDER, SALMON, SONNER, KENNEY, EYLER, ADKINS, KRAUSER, DEBORAH S. JJ.
DAVIS, Judge. Appellant Halliday Melissa M. an wrongful filed action for death and a survivor’s claim the Circuit Court Baltimore Sturm, City Inc., against appellee Ruger & Company, alleging liability strict for the self-inflicted shooting death of her three- son, year-old Jordan Garris.
Subsequent to the against dismissal of all claims the retailer Inc., dismiss, On handgun, Target, appellee moved to alternative, sought summary judgment. On October *5 J.) (Cannon, grant- City for Baltimore 1999, Court the Circuit fоrth the appellee, setting favor summary judgment ed grant From the in bench memorandum. ruling its a basis for timely appeal, this filed judgment, appellant summary as follows: that have been restated questions which she asked law, “risk-utility applica- test” is the Maryland I. Under claim? liability a handguns under ble appropriate, summary judgment grant II. theWas dangerous instru- misuse of the either because the factual determina- precludes any involved mentality “risk-utility test” foreseeability or because the tion of inapplicable? nature, designed very product, III. When death, appel- were the injury inflict or cause serious establish, as a matter of warnings sufficient to lee’s law, was misused? handgun that the
FACTUAL BACKGROUND Garris, father, purchased In Jordan’s March Clifton Inc., Target, from On a firearms retail store Ruger pistol P89 Severn, Maryland. The P89 shooting range and located action, fire, automatic magazine-fit, is a center double pistol handgun. loading, recoil-operated purchase months after the of the P89 June three parents’ under his
pistol, handgun Jordan discovered the from the ammunition gun, separately mattress. The stored there, unlocked, readily to be avail- magazine, kept had been Young home from intruders. Jordan protect able magazine into allegedly capable loading the ammunition similar semi-automatic handgun because he had seen As he watching loaded and fired while television. weapons accidentally discharged and played pistol, the loaded head; a fatal bullet wound he young child suffered mother days Appellant, personal died two later. Jordan’s action, estate, this brought alleging of his representative device, i.e., a child- failed to include lock, and instruc- trigger resistant because given tions to Garris were inadequate to the fatal prevent accident.
The Circuit Court for City delivered its oral Baltimore. bench, opinion from the it opined:1 which *6 THE COURT: This will be memorandum of opinion.... is,
And simple said, fact as the if [appellant] has gun put gun manufacturer onto the they’ve device known about for a years hundred or so to it make certain that a year it, three old not could have fired the child would still be here. they But did not. So question is really whether that failure to [safety incert [sic] made device] the gun defective under the products liability law.
There is much if wrong that’s the wrong. case. Much problem The is that it’s also clear the child’s father knew this was also a very dangerous product. I say my must One, reaction to the warning argument multiple. suggestion the warnings provided were more than ade- quate were not I impressive to me. think the [appellant] has pointed booklet, out that this 35 paged with [sic] children, warnings respect small, relatively are small type, and there is so much warning much; about so and, that, I say as I I’m say want also equally aware of defendant’s youth handgun safety [sic] action no- tice, which I think plaintiffs also correctly point out one titled, can why tell it is it is not directed towards [sic] year many three olds. So ways, it seems the warnings аre far from adequate. hand, On the other this ais handgun we’re about talking where there is a question of any whether warning whatsoever is necessary because guns are made to kill people. That simple. Particularly a handgun such as this was not hunting. made for It was to kill people, pure made and simple. opinion
1. While reprinted, much of the has not been we believe that the recounting extensive ruling the basis for the lower court’s is essential analysis. to our is, one, that was questions, there are two And so second, warning if a warning necessary? And any fact, warnings all of these necessary, maybe, equally are neces- in this 35 booklet paged [sic] that are are, gun about a de- talking again, Because we sary. on warning page people, to kill so signed death, says serious about ammunition example, wrong in the use of ammu- damage can result injury and warning about nition, arguably That warning. is a page on 6 about warning it around children. keeping safety an intermedial says placing the safety manual user can result between safe and fired position when position is in a or fired thinking pistol is not.
Likewise, firing, 10 about the one warning page on unloading sliding, handling, 11 about one on page about are lots and lots malfunctioning, there or a in the death of go wrong ending up could what *7 gun. this is a injury to someone because serious respect with to the way, warning it that the Look at addition, children, more than adequate. it’s danger warning and sense respect to the issue childrеn, from gun away to the keep the sense of the need again, are allegations [appellant], I made the think the 16 which allegations paragraph made relevant. gun found the year [child] that three old [the] states mattress, allegation an that it clearly his father’s under that it would not be expectation was there with the put to say old. Goes on his father year found this three magazine the gun the there and had removed had hidden I gun safety, from which containing the bullets clip some making also some indication effort clearly think is safe. inherently dangerous product make this misuse, I think are some there But on issue in this case that terms that lead me to conclude things intervening cause or whatev- superceding of the misuse or er, summary judgement I motion for think makes a in favor of [appellee] appropriate,
[sic] and that is that we’re about a talking gun. gun, And a where clearly person who it knew it purchased dangerous by was handled, it was way response and in argument test, about the risk I utility think that what the Court of (sic) Special Appeals said in Keller veruss Archie [sic] utility Industries is that the risk test is applicable and when only applied something goes wrong with a product. And I think what they’re talking about is not something going wrong in the sense clearly [appellant] right, something wrong went in the sense that a year three old was killed and that’s very wrong, but not in the sense of the gun behaving way one predict gun would behave, should gun and in the sense the operated way have, also, here, it should I think rеally even stronger that it is a misdemeanor for possess someone to gun, store or leave a loaded firearm any location where an individual knew should have known that an unsuper- vised minor child would have I access to it. say realizing that is a heavy burden for the father the child and the mother of the also child to be stuck with. IAnd say that because that makes it than the Klien different case, relied upon by [appellant], [sic] where the warning is one putting finger in the wrong place, which was not a criminal offense, nor should it have been a offense, use, criminal but simply was sense of sloppy similar the Elsworth case involving [sic] the nightgown might use, which not even be termed but sloppy which is predictable; [sic], but with respect to Klien it can be described as use. I sloppy say And I because do [appellant] right, believe the Klien does make [sic] *8 warning clear that a by itself doesn’t obviate problem. the on, If really that was what this I case turned reach would result, a different but the problem something, here is as I said, question needed; the any warning whether second, whether, was, type because of the it you need to get read the manual to all warnings, it dangerous third, because was so and so deadly; dangers. about all these father knew the child’s is clear it a has to make also, with this way dealing one And the child place in a where gun to put offense criminal to it. get would claim of inade- pursue does appeal, appellant
On
regarding
operаtion
and instructions
quate
of sale.
at the time
the elder Garris
received
OF REVIEW
STANDARD
ruling
of a trial court’s
review
appellate
our
We summarized
NIBCO, 96
Bond
summary judgment
for
on a motion
(1993):
127, 134-36,
... must set is not re- Although the movant summary judgment. unless motion with an affidavit his support [or her] quired which adverse day files it “before she] he [or filed,” ..., [or she] he initial or motion party’s pleading by placing contentions his various support [or her] must admissible in evidence that would be before the court facts in the record evidence detailing the absence or otherwise ... cause of action. support Court, Supreme from the emanating Discussing trilogy we continued:
146
The Supreme
have,
Court and the
of Appeals
Court
years,
recent
that a
emphasized
trial court
should
grant
reluctant
a motion for summary
in an
judgment
See,
Catrett,
e.g., Celotex
v.
appropriate
case.
Corp.
317,
2548,
(1986);
U.S.
106 S.Ct.
Anderson
... a party seeking summary judgment always bears the initial responsibility informing district court motion, basis and identifying those portions “the pleadings, depositions, answers to interrogаtories affidavits, if file, together with the and admissions demonstrate the absence which believes any,” issue material genuine fact. 2548, (emphasis U.S. at S.Ct. Corp.,
Celotex *10 added). there be no requirement “To the that satisfy fact, moving any party as to material the dispute genuine necessary the to obtain include the motion must facts as to showing dispute any and a that there is no judgment ... if a movant “bears this initial Only those facts.” the “showing” party makes this does responsibility” summary judgment the motion have the burden of opposing particularity “with the material facts are identifying Thus, judgment ... summary a motion disputed.” has opponent disputed asserts the not identified simply summary judgment usually is not sufficient. A movant facts affidavit, ..., an the movant required is not file but if (or if complaint facts in the answer disputes alleged movant plaintiff), [or movant is the must himself herself] of the record identify portions that “demonstrate Indeed, ... genuine of a issue of material fact.” absence “any movant must attach “as an exhibit” to his motion in ruling that he “wishes the court to document” consider by motion ... unless the document is reference adopted 2-303(d) by permitted by or set forth as permitted as Rule 2-432(b).” ... Rule
DISCUSSION
outset, it
be noted that
has aban
appellant
At the
should
warnings provided
appellee
claim that the
were
any
doned
perti
is therefore
inadequate.
adequacy
warnings
only
appellant’s
as a
that Garris
nent
refutation
denial
subject
Citing
firearm.2
Restatement of
misused
Sears,
(Third),
Roebuck
Liability,
Torts
Products
Klein
argument
written submis-
Apрellant,
2.
in oral
before this Court and in
court,
to this Court and the trial
admitted that
sions
adequate
summary judgment
provided
appellee were
to entitle
toit
on that issue.
Co.,
477, 486,
&
92 Md.App.
[t]he
applied the consumer-expecta-
tions test rather than the risk-utility test. While acknowl-
edging plaintiffs argument that “there
certainly
no rea-
son that it should be easier for a
year
three
old to use a
than ...
bottle,”
an
open
aspirin
the court failed
to weigh the risks from the absence of a child-resistant
safety device against
utility
of not incorporating it.
Instead,
the court observed that “guns are
to kill
made
people. That simple.
Particularly
handgun such as this
that was not made for
It
hunting.
to kill
made
people,
pure
simple.”
The trial court mistakenly believed that
*11
the risk-utility test did not apply because “the gun be-
hav(ed) the way one would predict
gun
behave,”
would
ie. the gun passed the consumer-expectations test.
Finally, appellant asseverates that “the trial court mistaken-
ly relied on
in Kelley
Industries,
dictum
R.G.
304 Md.
Apрellee’s Memorandum of in Law Support of Motion to Dismiss, or, Alternative, in the Motion for Summary Judg- ment, after asserting appellee that is entitled to judgment as a facts, matter of law because the as recited in the complaint, “clearly exonerate [appellee],” sets forth two “factually relat- ed, (1) but distinct legal grounds,” to wit: “that the firearm was not in a defective condition or unreasonably dangerous as (2) a matter of law” and that pistol “the was in used a manner that contrary to clearly worded instructions and warnings accompanied when sold.” The alleged undis- puted material facts upon by relied appellee are: firearms should manual warned that 1. The instruction from away children securely and unloaded always be stored adults; only should be loaded when firearms and careless in or shoot; racks cabinets firearms should locked ready use; separate stored from ammunition should be when not sight visitors and firearms; firearms should be stored out children; gun responsibility to be certain it is the owner’s gain with firearms cannot persons children and unfamiliar firearms, ammunition, users and components; access to and the manual should the instructions read carefully using before firearm. DeCarlo, Target who
2. the On salesman sold Edward Garris, him and explained the manual pistol reviewed safety. the manual gun operate how to and unload the and load acknowledged a statement which he signed Garris how to and explained” DeCarlo “demonstrated load had and/or safety weapon, unload and function purpose mechanism(s) (them), and how to work it that Garris under- should if it until weapon stood that he treat the as were loaded loaded, made that it was not and that he personally he certain to use the a lawful manner. Garris also weapon intended Handgun Safety received a “Youth Act Notice” distributed Alcohol, Firearms, and which the Bureau Tobacco read: “Safety storing securing away firearms from children will help prevent handguns by juveniles, the unlawful possession stop and save lives.” accidents Target
3. Garris received from On a lockable box and offered a padlock provided appellee trigger he was purchase lock3 which he could as an precau- additional tion. *12 facts,
4. of Mo- undisputed material purposes for Summary Judgment, tion from the are complaint extracted that Garris stored the under his mattress and pistol stored shelf; magazine containing three-year- on a book bullets and, magazine old found the gun Jordan and the loaded disputes 3. Garris’s affidavit this assertion.
“having seen pistols semi-automatic loaded and fired televi- sion, was able put the magazine clip in the gun” gun and the discharged while Jordan “played with the gun.” was, judge
The trial instance, the first required to determine if allegations forth in set the complaint stated a cause of action in and, so, strict liability if whether appellant’s claim, facts, on the above material if undisputed, survivеs the Motion for Summary Judgment.
Appellant argued her opposition to the motion that the handgun was defective and unreasonably dangerous under “[bjecause test, the risk-utility the risk from excluding child safety features outweighs utility exclusion, of that because designs alternative safer could have adopted been economically....” that, She argued also because it was rea sonably appellee, foreseeable to “any warning gun store the locked and unloaded would not be followed a significant proportion owners,” of gun Garris’s improper storage of the gun did not constitute misuse and thus could not defeat the design defect claim.4
The opposition was accompanied by
affidavits,
two
one
which was given by Garris. The contents of Garris’s affidavit
are consistent with the facts
upon by
relied
appellee, except
Appellant
First,
4.
legal
advanced two
arguments.
further
she asserted
recovery
Garris's actions could not
negligence
bar
because "[t]he
parent may
a
imputed
(1998
to an infant....”
See Md.Code
Repl.Vol.),
§
Cts. & Jud. Proc.
provision,
10-910. Under
parent's
this
negligence
preclude recovery by
cannot
an infant unless it is an "inde-
pendent
superseding
injuries.”
cause of the child's
Caroline v.
Reicher,
125, 130,
(1973).
269 Md.
There was a third exhibit attached to appellant’s opposi- tion, labeled, picture a of a “Smith & Wesson child- 1894.” proof handgun, circa
The
to a
opposition
summary judgment
motion for
must be
“facts
supported
that would be
admissible
Bond,
134,
731;
evidence....”
96
at
Md.App.
623 A.2d
see
Co.,
22, 26,
Vanhook v. Merchants Mut.
22
Ins.
321
Md.App.
(1974) (“Each
540
opposing
given
A.2d
is
party
ample opportu
place
which,
to
nity
hand,
before the court facts
on the one
that
show
he
is
as a
[or she]
entitled
matter of law to the
seeks,
ruling
hand,
he
or on the other
that
[or she]
show
fact,
opponent’s
material
to the
position,
disputed.”)5
reviewing
evidentiary
5.
standard
during
for
an
made
determination
summary judgment
a court’s consideration of a
motion is unclear.
Co.,
194,
Compare Imbraguglio v. Great Atlantic &
Tea
358 Md.
Pacific
(2000)
747
(affording
A.2d 662
the trial court no deference in
holding
part
that an
properly
unsworn statement "was
of the record
summary judgment.”),
considered on
Accident & Indem.
Hartford
217, 287,
P’ship,
Co. v. Scarlett
Assocs. Ltd.
Md.App.
Harbor
109
674
158, 167-71,
Rosenberg,
Md.App.
A.2d
and Helinski v.
(1992) (each reviewing
rejection
A.2d 882
a trial court's
of a
expert
purported
summary judgment
witness’s affidavit on
under the
standard). Here,
holdings regarding
abuse
discretion
our
Garris's
purported photograph
affidavit and the
of the Smith & Wesson hand-
gun would be the same under either standard.
It is unclear from the
opinion
expert opinion.
trial court’s oral
whether it considered Teret’s
brings
[Appellant’s]
Which
us to the issue of misuse.
reaction [is]
type
that
it is
this
happen,
foreseeable
of accident would
that
оut,
plaintiff’s
spells
response
affidavit attached to
kind
this
of out-
very
type
going
happen;
come is
foreseeable that
this
accident is
to
[appellee’s] response
to that
there is no
evidence
facts
Vanhook,
such
placing
of methods of
offered
list
we
court,
affidavit,
transcript,
including by
deposition
before
facts, stipulations,
admissions of
interrogatories,
answers
Vanhook,
circumstances,
22 Md.
and,
pleadings.
under some
admissibility
26-27,
to the
Turning
at
An affidavit submitted
it has
making
person
show
summary judgment “must
testify
facts
competent
to the
knowledge of and is
personal
“An
Vanhook,
matic. The affidavit contains
affirmance
happens
gun
it
with our
with our
we sell with a lock box and
whеn
really
of
warnings.
that that
is relevant
in terms
But I don’t think
is,
because,
go forward
foreseeability
if it
the case should
issues
then
discovery
and
and have
to
out if the lock box
the instruction
find
any
nothing
There is
[sic]
manual makes
difference whatsoever.
guess
to
assume
of
to indicate
does. So I would have
and
front me
prepared to do
it does. And I’m not
that.
fact,
affidavit,
no reason
upon
what's
there would be
based
upon
I
take a
do
is in the affidavit.
If want to
that based
what
affidavit,
guess
opposite
guess
upon the
would be in the
based
appropriate
the court to
But I don’t believe it
ever
for
direction.
certainly
guesses
on
guess
appropriate
not
for the court make
summary judgment. So I
do that.
motion for
won't
review, and
are
left
an exercise of discretion to
We
therefore
without
we must consider the issue de novo.
are
personal knowledge,
based on
but
of
admissibility
2-311(c)
First,
some of the statements is at issue.
Md. Rule
(2001)
requires
party to “attach as an
to a
exhibit
written
response
motion or
any document that the party wishes the
court to
on
consider
or
ruling
response
motion
...”
Bond,
135,
See
at
Appellee appeal the studies described Teret’s affidavit are “immaterial to the foreseeability of Gar ris’s specific misconduct specific firearm, with this with its *16 features warnings, by [appellee].” and The Court of Appeals Locke, Sonnenleiter, stated in 443, Inc. v. 447-48, 118 208 Md. (1955): A.2d 509
The rule followed by majority the of cases the is that if the accidents, to past evidence as tendencies or defects is suffi- ciently relevant and illuminating similarity because there is time, circumstance, of place it will be admissible —not as
155 of a to show the existence of but negligence direct evidence or place, of method in the character or defect danger danger the or knowledge or notice and to show appliance unless, discretion, in its defendant, on the the part of defect surprise unfair or it will cause an court the trial believes issues. by raising collateral confusion Stores, Inc., 22 omitted), Lucky (Citations Cutlip cited (1974). 696, 673, 325 432 A.2d 581, Inc., A.2d Lingerie, Sherne Md. Ellsworth v. admissibility of Appeals Court of discussed “deaths, injuries economic on government reports certain fabrics, burning products, from resulting accidental losses ” 348. Id. at n. 495 A.2d materials.... or related Ellsworth, nightgown when her injured who was plaintiff against the fire, liability a strict action caught brought on Although nightgown the fabric of clothing manufacturer. standards, alleged that plaintiff flammability met federal unreasonably ignite rendered propensity fabric’s question was focused “the dangerous. The evidence burns, by ignition clothing severity incidence and caused subject that was Federal standard----” Id. excluding
A.2d 348. held that the trial court erred this We to the issues and reports evidence because are material “[t]he as nightgown tend to establish the that the sold proposition ” unreasonably was users.... Id. at dangerous prospective 602, 495 348. A.2d judice, government
In the statistics cited case sub judgment. summary no to the issues on Teret have relevance as the number of children listing He describes documents “unintentional, gun- and under ten who suffered under five must, as from Judging, solely related we Teret’s deaths.” on how contain no information these description, the statistics involved, occurred, guns were types deaths such as what found, guns were equipped were whether the guns where the devices, guns were in the even whether shootings occurred. Unlike possession of children when Ellsworth, flammability of a fabric the evidence in where the as meeting government the same standard those studied *17 issue, directly government at these are of statistics little probative study” finding value. The unnamed “recent “boys gun will in play they seemingly find a safe environment” likewise in patently lacking probative value. The published by vary studies cited Teret in their focus. by One article co-authored Teret studied 88 gun- unintended California, shot deaths of children in finding that substantial number were handguns self-inflicted and involved that were stored and unlocked. loaded Teret’s other article studied deaths, such finding majority handguns involved that, of handguns, those nine were by manufactured appellee. us, These are slightly studies more similar the case before sufficiently but are still not probative be admissible. See Locke, 447-48, at (discussing Md. A.2d 509 the danger to past may by “evidence as accidents” cause “confusion issues.”). raising Appellee collateral has not denied the fore- seeability young injured children playing being with and handguns, handguns or even of being stored. Its improperly focuses, rather, argument misuse on the gave, and foreseeability of a improperly storing owner one of its them. handguns despite The four studies cited that give solely statistics on improper suffer storage from the same infirmity.
Two of studies go bеyond cited Teret the recitation of statistics on in gun storage unsafe houses with children. “[sjafety One states that ... provided by instruction even if class, military a formal associated with safe procedures as gun-handling they guns relate to keeping load- study ed.” The other found that who received “[individuals training firearm significantly were more likely keep gun unlocked,” in the home both loaded and concluded that “complete reliance on the training strategy may be mis- unclear, however, placed.” It is safety procedures what were taught classes, in these or indeed whether the “firearm train- ing” in the second study included instruction all. Moreover, appellee’s theory misuse in this case relies on the manual, warnings and instructions contained not in a class. Appellant failed to establish sufficiently the relevance opposition in her studies submission any of these not prop- they therefore were summary judgment; motion for the court. erly before was correct stage, court summary judgment
At the that, more “[f]or Teret’s statement the truth of assuming *18 of aware the manufacturers have been century, gun than a true of his The same is handguns to children.” pose risk that features is design product safety that to statement children than preventing injuries more of effective method safety instructions. in were dissimi- Teret’s affidavit opinions
The two contained first, of summary as a of contents an expressed lar. the The co-authored, handguns is that “the of design Teret editorial children,” the of and that to increase can modified design ... viable “childproof personalized handguns are Appeals As the of handgun for manufacturers.” Court options Products, Inc., 330 Md. Beatty in v. Trailmaster stated opinion “an derives its expert A.2d facts on which it is and predicated, force from the probative of opinion to sustain the the legally these must be sufficient omitted.) (Citation Teret’s quotation internal expert.” and supported, is design options the of safer opinion viability the factual assertion about Smith & tenuously, albeit absence of the he cited handgun. In the studies Wesson established, affidavit, not relevance was Teret’s whose other, as opinion may be restated follows: comprehensive more changes of design feasible upon
Based existence resistant, the relative guns could make more child and compared to of and instructions ineffectiveness children, it my for the of protection modifications by [appellee] that the on materials opinion reliance of a provision carrying manual lockable owner’s the risk of inadequate protect case children from was gun unintended death. true, remaining assertions to be
If we Teret’s factual assume too, factual by a sufficient basis. opinion, supported this summary, there were main two issues before the trial (1) as it summary court considered the judgment: motion whether the sold to Garris was a defective condi- (2) and unreasonably dangerous tion whether Gаrris’s improper storage constituted an unforeseeable misuse handgun. only facts in dispute were whether Garris was purchased offered a lock trigger when he the handgun and thoroughly how Garris and the On Target salesman reviewed instruction day manual on purchase. These dispute areas of judg- were sufficient to defeat summary ment; however, neither dispositive of the two issues outlined above. facts,
The undisputed including the warnings contained manual, delivery the instruction Garris a lockbox and accident, padlock, and the circumstances constituted upon core material facts which the lower court could properly to judgment determine entitlement as a matter For law. her part, undisputed appellant’s were submissions *19 gun that the manufacturers been dangers have aware of the of to for handguns century, children over a that childproof and personalized handguns are viable design options, design that improvements are more effective than in safety instructions children, preventing injuries to and that “the of reliance [appellee] on materials owner’s manual and the provision of a lockable case carrying inadequate protect was to children from the risk of gun unintended death.” court, therefore,
The had which facts were material to the resolution of the controversy before it and which upon it could properly party decide which a judgment entitled to as law, of matter the notwithstanding disputed claim of appellee trigger it made a lock available to Garris and that warnings DeCarlo did not review the and instructions with words, him. other accepting as true the facts that DeCarlo trigger had not lock offered and that he had not discussed warnings Garris, the and with instructions these assumed facts, in conjunction undisputed the facts of support appellant’s opposition to summary the motion for judgment discussed, supra, represented putative the evidence in the Thus, from the appellant. undisputed most favorable light by appellant, true upon and facts assumed relied facts motion, undisputed as facts as well purposes of trial court had before it upon by appellee, the relied summary judgment. facts on the motion for material to rule whether, make a determination as it could Specifically, handgun sold controlling legal authority, of contemplation defective, dangerous unreasonably was in a condition to Garris handgun storage of the Garris improper and whether the gun. an misuse constituted unforeseeable Morever, dispute to create a factual appellant’s attempt her position is undermined trigger lock DeCarlo offered trigger external urging that the argument, us oral before available not constitute the the salesman said he made did lock alleged safety that would have corrected the device type maintained, argument at oral before Appellant also defeсt. us, graphic of how or the written irrespective prominent been, they sale had would warnings issued at the time of in the to render Garris’s violation of State law operated have storing his storing handgun, negligence manner lack of of a three- supervision under the mattress and his gun Thus, appellant’s attempt generate year old unforeseeable. dispute regarding a factual whether DeCarlo reviewed stated warnings position and is adverse to her instructions of conduct should have been foreseeable that Garris’s course any warnings may given. which have been despite posits “unjustifiably that our dissenting opinion decision (1) the incorporation from the trier fact” whether removes design is a workable under the risk- option of a device test; (2) utility storing whether the under reasonably not a misuse mattress foreseeable therefore (3) product; whether instructions *20 sufficiently against warned the reason- provided appellee foreseeable, of prod- or incorrect use the ably yet unintended noted, no warnings As we appellant uct. have insists sufficient, the of thereby removing adequacy have would been jury. as a factual issue for the warnings those submission foreseeability of of storage the reasonable Regarding whether 160 handgun matter,
the under mattress was a factual we conclude, infra, storage that such handgun the under the judice, sub circumstances, i.e., of an unsuper- within reach law, three-year vised old in violation State constitutеs as a misuse matter law. Even were to determine we improper storage reasonably whether handgun matter, foreseeable is a factual appellee would nonetheless be summary hand, entitled to judgment given the case at Maryland risk-utility law is that inapplicable test is handguns which do not malfunction. No factual is issue it generated because is as to immaterial whether the incorpo- ration of a device is a option workable design under risk-utility standard-the test-that does not For apply. forth, infra, reasons we undisputed set facts which are handgun material establish that did not malfunction and was, therefore, appellant’s not defective improper storage and failure to heed constituted an unforeseeable handgun. misuse
KELLEY v. THE R.G. INDUSTRIES: HOLDING OR OBI TER DICTUM as dictum
Appellant characterizes Court’s state Kelley ment risk-utility inapplicable test to a unless malfunctions. See Kelley, 304 Md. term dictum is an abbreviated form of 497 A.2d 1143. dictum, obiter as “a which translated remark the way.” (6th ed.1990). Dictionary Black’s Law It 454 refers to a by a “incidentally statement made court collaterally, or directly it, not upon question point before upon ” necessarily involved the determination of the cause.... Id. at 1072. Obiter dictum adjudication. authority lacks Stover, v. Stover 470, 476, see Md.App. (1984); 483 783 A.2d Comm’n, v. Bryan State Roads 712-13, 115 Md.App. (1997). It is A.2d not entitled to the precedential weight holding afforded the because it does not “the receive deliber judgment” ate and in phrasing considered used the holding. Wilson, 24, 36, Stаte (1995). A.2d 1
161
on certification
Appeals
came
the Court of
Kelley
before
rephrased
The Court
District Court.
from the United States
as
and dealt
questions6
three new
questions
four certified
131,
(Second)
402A,
of a
§
which holds liable the seller
Torts
unreasonably dangerous.”
“in a
condition
defective
134,
“consumer-expecta-
Applying
1143.
Id. at
A.2d
test,
handgun
normally operating
found that a
tion”
Court
136, 497
1143. It
not in a defective condition. Id. at
A.2d
test,
“risk-utility”
finding
then turned
the alternative
wrong
prod-
with a
only
something goes
can
used “when
138,
1143.
handgun
Id. at
A.2d
Because “a
which
uct.”
fired ... worked
person
in whose direction it was
injured
intended,”
as
test was
risk-utility
“inapplicable
precisely
Id.
then considered
present
situation.”
The Court
the common law to make the manufacturers
whether
extend
but
handguns
gunshot injuries,
marketers of
liable for
contrary Maryland public
that this “would be
determined
rephrased questions
as
6. The
were
follows:
1)
handgun,
general,
of a
liable
Is
manufacturer
marketer
theory
injured
any
liability
person
a result of
under
strict
to a
as
product?
the criminal use of its
small,
2)
particular category of
Is the manufacturer or marketer of a
cheap
“Saturday Night Spe-
handguns,
referred to as
sometimes
cials,”
activity, strictly
to a
regularly
used in criminal
liable
injured by
during the
of a crime?
person
such
course
RG38S,
3)
Handgun
Does the
Model
serial number
Rohm Revolver
0152662,
category
question
within the
referred to in
2?
fall
Kelley, Md.
at
policy Legislature.” as set forth A.2d 1143.
Turning to
rephrased question,
its second
the Court found
“Saturday
the class of
known
handguns
Night
as
Spe-
cials” was intended
and suited to uses that were inconsis-
*22
Id. at
147-53,
Maryland public policy.
tent with
497 A.2d
It also
of
1143.
took notice
“the ever growing number of
to
injuries
deaths and
such
in
handguns being
due
used
157,
1143,
id. at
activity,”
criminal
497 A.2d
and determined
that “the
or
Saturday
manufacturer
marketer of a
Night
or
Special
ought
knows
know that
chief
the
use of the
156,
id. at
is for
activity,”
criminal
The Court’s
risk-utility
statement
the
test was
to “a
which
inapplicable
handgun
has not malfunctioned” was
not obiter dictum.
and history
Based
structure
decision, pellucidly,
finding
the Court made
not
this
“inciden
tally
collaterally,”
response
but
Kelley’s
contention
§
that R.G. Industries
liable
under
402A. As the Court
Education,
State Board
of
stated in
Appeals
633,
346 Md.
641,
(1997),
Kelley malfunction
end, however,
requirement
finding
conveyer
had malfunctioned before
risk-
applying the
Id. We also
utility test.
applied
risk-utility
test
find
Industries,
Ziegler
Heavy
v. Kawasaki
defective
74
613,
(1988),
539
701
Kelley
Md.App.
limiting
A.2d
malfunc-
tion requirement
to “the narrow context of
handguns”
possibly of other
...
products whose “normal function
[is]
Id. at
622-23,
bring
injury.”
about serious
MALFUNCTION *24 handgun
A
that has performed
expected
as
cannot be
said to have “malfunctioned” within the ambit of Restatement
(Second)
402A,
by Kelley.
§
of Torts
as
A
construed
handgun
is a
in
unique product
that “its normal function is to propel
Kelley,
136,
bullets with deadly
force.”
165
can be
by
handgun
accident caused
a
every
Not
fatal
1143.
malfunction, then,
a handgun
“danger-
because
considered a
136, 497
Id. at
1143. As the
very
nature.”
A.2d
ous[ ]
stated,
which
a
Kelley Court
injured
“In the case of a
fired,
was
worked
in whose direction it
person
138,
Id. at
1143.
as intended.”
497 A.2d
precisely
Lord,
K
C &
concept
of malfunction
We discussed
injured
employee
rendering plant
an
a chicken
was
when
conveyer.
cleaning
convey-
a
The stick with which he was
in a
his arm drawn
into the
caught
pinch point
up
er was
we looked to Duke v.
&
For
guidance,
belt’s roller.
Gulf
Mfg.,
Western
(Mo.App.1983),
feathers cookers. The did not work it caught as intended” when Carter’s hand. 86, 536
Id. conveyer A.2d 699. We held that had malfunctioned and that the trial court “did not err in instruct- test.” Id. ing jury risk[-]utility Kelley Engineering, Court also cited Barker v. Lull
The
Inc.,
413,
225,
143 Cal.Rptr.
20 Cal.3d
seriously injured. injuries both were caused something product other than the normal function of the convey normal function of a motor is to involved. The home in along roadways. The normal function of the lift passengers stationary lifting Back was to remain while a load. sure, question partially
To be
one of definition.
inquiry
largely
The outcome of the malfunction
determined
narrowly
broadly
how
or
the normal function is defined.
example,
For
had we defined the normal function of the
in
K
as
in
conveyer
broadly
“carrying objects
C & Lord more
in which
belt is moving,”
the direction
we would have
found no malfunction. But when the
in
is а
question
handgun, we are not left to our own devices. The
of
Court
Appeals
already
has
defined the normal function of a hand
gun
deadly
bullets with
force.”
propel
Kelley, Md.
—“to
In
judice,
The strict of Restatement § apply Torts 402A were never intended to to instrumentali- ties, handguns, such as whose normal functions are to cause inflict injury. death or serious Section 402A was rooted concept holding engaged ancient common law “those business of food intended for human ... selling consumption to a high degree responsibility products.” their Re- § 402A cmt. statement b. The drafters the Restatement more cases that special followed modern “extended this rule liability beyond consump- strict the seller of food for human which, ... if it any product tion to cover the sale should defective, harm may expected physical to be to cause prove consumer or his Id. property.” [or her] foods, liability concept began products Because § of the illustrations used the comment to 402A refer many for human These illustra- products consumption. intended *26 i example, tions are instructive nonetheless. For comment must provision product focuses on the that the be “unreason- to user or consumer.” The comment ably dangerous explains dangerous article sold must be to an “[t]he beyond contemplated by that which be extent would it,” purchases offering following consumer who ordinary illustrations: whiskey unreasonably dangerous merely
Good is not be- drunk, especially it will make some and is people cause alcoholics; but a dangerous whiskey, containing to bad oil, dangerous unreasonably dangerous. amount of fusel merely is not unreasonably dangerous Good tobacco because harmful; of but smoking may the effects be tobacco contain- ing something marijuana may unreasonably danger- like be ous. propensity whiskey
Id. at cmt. i. The
to make one drunk
and of tobacco to harm one’s
are well known
lungs
expected;
dangers
go “beyond
such
do not
that which would
contemplated by
ordinary
consumer who
it.”
purchases
Id.
of a handgun,
expect
the case
consumer would
“[a]
[it]
nature,
dangerous, by
very
to be
to have the capacity
136,
to
a bullet with
force.”
Md. at
deadly
Kelley,
fire
danger
handgun might injure
A.2d 1143. The
that a
someone
then,
its normal
through
operation,
type
is not the
hazard
§
general-
intended to be covered
Restatement
402A. See
ly
Liability
Injuries
Note: Manufacturers’ Strict
From a
(1983)
Handgun,
Mary
Well Made
Wm. &
L.Rev. 467
(noting agreement among “most authorities ...
that the defi-
nitions
‘unreasonably dangerous’
‘defective condition’ and
[of
§in
liability
outline a
device known as the consumer
402A]
test,”
expectation
discussing
legal theory
but
the “novel
v. Lull
risk-utility balancing”
Engineer
advanced
Barker
Co.,
413, 143
(1978)),
The- rule stated this limited [s]ection ... consumption, although obviously food for human it will any It include them. extends sold the condi- ... in which it is the ultimate user or expected tion reach automobile, Thus a applies consumer. the rule stated an tire, wheel, heater, a airplane, grinding gas an a a water stove, tool, machine, chair, riveting and an power insecticide. (Second) § reporter
Restatement
of Torts
402A cmt. d. The
“products
liability
also lists in his notes the
to which
has been
food, automobiles,
tires,
by case law: animal
steer-
extended”
instruments,
wheels,
ing gear, airplanes, airplane
grinding
blocks,
cable,
building
cinder
electric
insecticide
herbi-
sprays,
cide,
tools,
carts,
power
power
combination
children’s
golf
*27
chairs,
machines,
riveting
water heat-
playground equipment,
ers,
A
gas
reporter’s
handgun
and
stoves.
Id. at
note 3.
is
inherently
products
different from each of these
that
it is
”
304
“dangerous[
by
very
Kelley,
nature....
Md.
]
A
is
handgun
designed
purpose
The Court of when it said, believe, however, risk-utility inappli- “We that the test is present only applied cable to the situation. This standard is something goes wrong when with the As we have product.” noted, from none of the decisions which have emanated construing rejected has overturned or Appeals Kelley Court its ultimate that “the test cannot be ex- holding risk-utility
169 impose liabñity to on the maker or marketer of a tended think it Although which has not malfunctioned.” we mention, almost too elemental to when there has been a clear pronouncement by Ap- issued the Court of unambiguous and peals, by we are bound to abide that decision.9 We do not spoken the Court of have Appeals any believe that could clarity Kelley. than it did in its decision in Until greater issue, Appeals unless the Court of revisits the are bound we by stare decisis.
MISUSE has
Appellant
risk-utility
applies
asserted
“the
test
to a
safety
design
claim that
the absence
device renders a
assertion,
Notwithstanding
defective.”
the firearm in
question, more
was not
with an
precisely,
equipped
“external”
devicе,
safety design
prevent
but did have a
it from
The fatal
discharging.
prevented by
event could have been
inability
young
disengage
victim to
the manual
lockbox,
safety,
storage
use of the
proper
weapon
pursuant
to the
or
provided,
proper supervision
young
child. Counsel for
acknowledged:
Garris
recognized
previous
9. We have
in several
decisions that adherence to
Appeals mandatory:
Corning
the decisions of the Court of
Owens
Bauman,
454, 496,
(1999)
Md.App.
(holding
726
745
A.2d
"[ajlternatively,
judicial
public policy
matters of
in the
arena are
[ujntil
relegated Maryland’s highest
Appeals
court-the Court of
...
appellant
unless either avenue of
pursued,
redress available to
...
purview
is not within our
...
to overrule a decision of the Court of
329, 335,
Appeals.”);
Square Hospital, Md.App.
Hans v. Franklin
(1975)
"[wjhatever
(holding
A.2d
application
merits
case,
ipsa loquitur
beyond
of res
authority
to the facts in this
it is
our
contrary
clearly
decide
established law set forth
the Court of
Appeals.
decisis.”);
We
Loyola
are bound
stare
Fed. Sav. &
Inc.,
646, 659,
Trenchcraft,
Loan Ass’n v.
I’m in no to excuse Mr. Garris’s actions. We way in the he stored this negligent not. Mr. Garris was negli- suffer the of that gun. consequence Mr. Garris will responsible for the rest of his life. He knows he was gence for of his son. the death may imputed not be
Although negligence parent child, question it is relevant on the of whether the elder undeniably dangerous what is a instrumentali- Garris misused ty-
Thus, appellee’s even were we to conclude that device on the was a failure to include a child defect, summary design appellee would still be entitled h of judgment gun. because of his misuse Comment (Second) § of Torts 402A provides: Restatement A it product is not a defective condition when is safe for If handling consumption. injury normal results as where a is handling, beverage from abnormal bottled from against cap, knocked a radiator to remove the use, abnormal as where too much salt preparation food, or from abnormal as where a consumption, added ill, too much is not candy child eats and made the seller hable. if principle,
The misuse doctrine is based on the same
because
product
unreasonably dangerous
“is not
when used for
foreseeable,
reasonably
in a manner that is
it
purpose and
defective,
simply is not
and the seller will not be liable.”
Ellsworth,
because,
hindsight, any
with the benefit of
accident could
care,
of strict
imposition
products
foreseeable. Without
in a
an insur-
liability
becoming
could result
manufacturer’s
from
every injury
may
product.
er for
result
*29
Simpson, (citing Phipps
at
In
we examined whether a
was
container
in
purchasers
misused. The
of the container stored it
home,
they
four-year-old
basement of their
where
allowed two
play unsupervised.
children to
The children removed the cap
from the container
spilled
poured gasoline
onto the
basement
floor.
resulting gasoline vapors ignited,
When the
one of the children died and the other was severely burned.
The gasoline
container had
written on two of its four
sides reading “Keep Out of Reach of
“Do
Children” and
Not
in
Space.” Id.
Living
Store
Vehicle or
at
flannelette nightgown she was wearing ignited after she came in proximity close to a front burner on the electric stove her plaintiff kitchen. The sued the seller and manufacturer of nightgown grounds: three strict liability, negligence, and breach of implied warranty of fitness. The verdicts were for the plaintiff defense and the appealed, claiming the trial court gave erroneous in- jury structions on of a product misuse as a defense to the strict liability claim. The Court of Appeals eventually reversed court, the trial stating that there was insufficient evidence of misuse to generate an issue for jury to consider but not before thoroughly discussing misuse and other defenses strict liability.
The Court pointed out that problems arise understanding the issue of misuse because of agreement absence as to meaning of the word.
Misuse has been reasonably defined as: a use not foresee- ... able a use of the product a manner which defen- dant not reasonably could ... foresee a use of a product where it is in way handled which the manufacturer could not have reasonably foreseen or expected normal and intended product plaintiff use and the use of the unintended as the result injury
could foresee an con- average so unusual handling ... a use or to be product reasonably expect could not sumer which to withstand it-a use manufactured designed and therefore, seller, anticipate provide need or reckless which constitutes wilful ... use of the omitted.) (Citations injury. invitation of or an misconduct *30 Ellsworth, 594-595, 348. The Court 495 A.2d 303 Md. at foreseeability” appropri- was the “reasonable concluded that required provide product a seller ate test. “[T]hus for a purpose when used unreasonably dangerous that is not reasonably foreseeable----[I]f that is in a manner and for a when used unreasonably dangerous is not product foreseeable, reasonably in a manner and purpose defective, not be liable.” the seller will not and simply is Ellsworth, 596, 348. at 495 A.2d 303 Md. ultimately
We
held:
case,
can
gasoline
stored the
[purchasers]
In this
home,
on the
ignoring the admonitions
of their
basement
areas. The
living
not
to store it
of the can
sides
allowed two
can
an area which
stored the
[purchasers]
gasoline
to the can. The
four-year-olds access
unsupervised
in manner
and
being
purpose
used for the
can was not
reasonably foreseeable.
that was
206,
storage
We held the
Id. at
10. We
that,
given,
adequate warning is
no
j,
provides
when an
which
ment
for use in
if the
was safe
products liability action will lie
206-07,
Although
A.2d 1337.
warning.
Id. at
527
with the
accordance
extensively,
address it
we do not
parties
briefed this issue
have
summary judgment was not based
grant of
trial court’s
because the
512, 518,
German,
Md.App.
A.2d 239
642
100
See Warner v.
thereon.
Sears,
Co.,
(1994).
Roebuck &
do
discuss Klein v.
We also
squarely on that
which was based
Md.App.
In
present
the
provided by
the instruction manual
stated, in
appellee
relevant part,
always
“Firearms should
unloaded,
securely
stored
and
from
away
children and careless
adults” and “Firearms
securely
should be
locked in racks or
warnings
cabinets when not
use.”11 These
gener-
were not
alized,
“clear, unmistakable,
but were
easy-to-follow.”12
and
11. There
handgun
was also an instruction on the
itself to read the
using
general warnings throughout
manual before
it and
manual
handgun safely
thoroughly.
use the
and to read the manual
argues
Appellant
warnings
12.
that
they
were defective because
"do
specific danger
not inform a consumer of the
at issue here —the fact
them,
young
guns
children are
attracted
can fire
even аt
however,
very young ages.”
warning,
only
An effective
need
warn the
followed,
Moreover,
they
tragic
been
612.
had
Id. at
not have occurred. See Mazda
in this case would
accident
America,
331 n.
Rogowski, Md.App.
Inc. v.
Motor (1995)
to consumers are
(“Warnings given
Appellant contends fore reasonably misuse because it was mattress was not seeable, study after has demonstrated “study out that pointing up not lock gun owners do significant proportion that a ..., household.” As when children are guns their even above, however, properly were not before these studies noted Moreover, as the Fourth summary judgment. the court Hood, duty predict no “Maryland imposes Circuit stated clear, easily understandable that a consumer will violate ” warnings presence Id. at 611. The warnings.... is, foreseeability proper question inquiry; transforms the reasonably that Garris would appellee have foreseen could commit acts provided lockbox or that he would use the instructions ignore law or clear violation id. this he the firearm? See provided purchased when case, that this behavior was not conclude as a matter law we reasonably foreseeable. BALTI- THE COURT FOR OF CIRCUIT
JUDGMENT CITY AFFIRMED. MORE BY APPELLANT. BE PAID
COSTS TO
*32
behavior;
dangerous
not inform the
engage in the
it need
user not to
Hood,
may
consequences that
result from that behavior. See
user of the
warning
removing
(finding
specific
the blade
that a
175 SONNER, in which Dissenting opinion by Judge, HOLLANDER, J., joins. opinion
Because I understand the
to create a
majority’s
law,
strict
I
“gun exception” Maryland
products liability
respectfully
majority’s opinion
dissent. The
affirms the circuit
test,
to apply
expectation
court’s decision
the consumer
test,
reject
risk-utility
as the standard to determine
pistol
defectively designed
whether the P89
because of its
I
application
failure to include a
device.
believe the
fails to
expectation
the consumer
test
is flawed because it
1985,
recognize the evolution of the law from
when the Court
Industries,
Inc.,
Appeals
Kelley
decided
v. R.G.
304 Md.
124,
(1985),
present.
Maryland
applied
expectation
courts have
the consumer
test
claims,
products liability design
all strict
defect
unless the
alleged design
either malfunctions
defect is a
a safety
very
failure
include
device. Under those two
circumstances,
particular
plaintiff
applica-
entitled
risk-utility
genesis
tion оf the
test. The
of this
rule can
337,
traced to
Phipps
Corp.,
General Motors
278 Md.
363
(1976),
§
955
adopted
A.2d
when the Court of
402A of
Appeals
(Second)
of Torts
Restatement
consumer
Court, however,
expectation test standard. The Phipps
stated
“in
some
question
circumstances the
of whether a particu-
lar design is defective
may depend upon
balancing of the
utility
design
and other factors against
magnitude
348,
the risk.”
Phipps,
Although
Md.
is inapplicable present to the situation. This standard only applied something goes wrong when with the product. Co., Inc., Eng. Barker Lull [v. Cal.3d (1978) ], Cal.Rptr. P.2d an unbalanced machine *33 176 633, 378 Mass. Corp. [375 In Back v. Wickes over.
tipped
(Mass.1978)
],
home
exploded,
a motor
964
N.E.2d
(Mo.App.
404
Mfg. Co.
S.W.2d
[660
Duke v.
& Western
Gulf
1983)
These
hands.
],
caught
plaintiffs
power press
malfunctioned.
products
138,
Thus,
Kelley, the
Kelley,
whether a
was defec-
determining
product
for
Maryland test
test, unless the
expectation
consumer
was the
tively designed
in the instant
majority opinion
The
product malfunctioned.
this
claim at
analysis
appellant’s
begins
case
and ends
the last
entirely overlooks
majority’s opinion
The
point.
liability law.
products
of strict
years
sixteen
announced
Kelley
decided
Appeals
the Court of
Since
test,
three
expectation
the consumer
exception
first
to
product
our defective
noteworthy
question
trends continue
First,
criti
legal
of the continued
because
design standard.
test,
twenty-four
at least
expectation
cism of the consumer
test
for
risk-utility
form of the
adopted
have
some
states
John
liability design defects. See
determining
products
strict
Law
The American
The
New Clothes:
Vargo,
Emperor’s
F.
lp02A Products
a “New Cloth”
Section
Institute Adams
for
the States Reveals
Survey
Liability Design
Defects —A
(1996). Second,
Weave,
493
26 U. Mem.L.Rev.
Different
(Third)
rejects
expectation
of Torts
the consumer
Restatement
judging
defectiveness
independent
as an
standard
test
(Third) of Torts: Products
Restatement
designs.
(1998). Third,
this
2,
important,
§
and most
Liability,
g
cmt.
1985,
“some circum
Court,
began
expand
beginning
include,
malfunction,
addition
Phipps
stances” of
device,
same claim made
very
absence of
Co., Md.App.
62
Mfg.
v. Black Decker
Troja
See
&
appellant.
denied,
471,
516,