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Gun-Toting Plaintiff Blows Statute of Repose

By William Vogeler, Esq. on April 20, 2017 | Last updated on March 21, 2019

Sorry for this, but Edward Burdett shot himself in the foot.

Literally, Burdett shot himself in the foot and then sued the gunmaker. Adding insult to injury, a judge dismissed Burdett's case because he blew the statute of repose.

In Burdett v. Remington Arms Company, the U.S. Fifth Circuit Court of Appeals then stomped it out. Just shooting from the hip here.

The straight story goes like this:

Remington Model 700

During a hunting trip in Texas, Burdett was sitting in a friend's pickup truck when his Reminington Model 700 rifle suddenly discharged. It sent a bullet through his left foot and Burdett to the hospital.

He had purchased the rifle -- Remington's "number one bolt-action of all time" -- sometime in 1998. Burdett sued for product liability and other claims in federal district court in 2015.

The manufacturer filed for summary judgment, citing the state's 15-year statute of repose. The laws says that "a claimant must commence a products liability action against a manufacturer or seller of a product before the end of 15 years after the date of the sale of the product by the defendent."

The parties could not provide the date Burdett bought the rifle, but he acknowledged that it was not later than 1998. Calculating accordingly, the court granted the defendant's motion.

Second Round

On appeal, Burdett argued that the Texas statute did not apply because he resided in another jurisdiction. He also said the state law should not apply in federal court.

The court said Texas law applied in either case because Burdett had sued in Texas and he had made a claim under the Texas Deceptive Trade Practices-Consumer Protection Act. In any case, the appeals panel said, Burdett filed his complaint too late.

"Even assuming the rifle was first purchased in 1998, Burdett had until 2013 to initiate his products liability suit," the court said. "Yet, Burdett did not commence this action until 2015, which was more than fifteen years from the date of the sale of the rifle."

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