Summary Calendar CASEY DORAN; v. Mike Yoho;

*Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
January 11, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-50389
Summary Calendar
CASEY DORAN; ET AL.,
Plaintiffs,
CASEY DORAN,
Plaintiff-Appellant,
v.
MIKE YOHO; ET AL.,
Defendants,
RIFLE BASIX, INC.,
Defendant-Appellee.
–––––––––––––––––––––
Appeal from the United States District Court
for the Western District of Texas
No. 4:05-CV-21
–––––––––––––––––––––
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*

-- 1 of 10 --

2
In this products liability case, Casey Doran appeals the district court’s judgment in
favor of the defendant, Rifle Basix, Inc., following a jury trial. We affirm.
I
Doran’s lower leg was amputated after he shot himself while loading a rifle in a
moving vehicle. The rifle belonged to Craig Moore. Before the accident, Moore had
replaced the original trigger with an LV-1 trigger, which has a much lighter pull. The gun
safety was not on at the time of the accident, but Doran claims that the rifle misfired because
of a design defect in the LV-1 trigger, which was manufactured by Rifle Basix.
Doran subsequently sued Rifle Basix in Texas state court, alleging a design defect and
negligence. Rifle Basix removed the case to federal district court based on diversity. At
trial, the jury found that the LV-1 trigger was defectively designed and that the design defect
was “a producing cause of the occurrence or injury in question.” The jury also found that
both Doran and Moore were negligent and that their negligence “proximately caused the
occurrence or injury in question.” The jury attributed responsibility as follows: 10% to
Rifle Basix; 75% to Doran; and 15% to Moore. Because Doran’s percentage of
responsibility was greater than 50%, the district court entered a take-nothing judgment
against him. The district court subsequently denied Doran’s motion for new trial.
In this appeal, Doran challenges (1) the sufficiency of the evidence on the jury’s
proportionate responsibility finding that both his and Moore’s negligence were proximate
causes of the occurrence or injury and (2) the adequacy of the damages. Because we hold

-- 2 of 10 --

1See FED. R. CIV. P. 50(a), (b).
2Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.
1978) (“Federal appellate courts simply do not directly review
jury verdicts. The policy underlying the rule is sound: a party
is not permitted to gamble on the verdict and later question the
sufficiency of the evidence that led to his defeat.”).
3See id. at 297 n.12 (“Motions for directed verdict and
judgment [as a matter of law] are not prerequisites to a motion
for new trial.”).
4Id. at 297-98 (quoting Little v. Bankers Life & Cas. Co.,
426 F.2d 509, 511 (5th Cir. 1970)); see also Urti v. Transp.
3
that there was sufficient evidence to support the jury’s proportionate responsibility finding
against Doran, we do not reach the damages issue.
II
The first question we must address is the scope of our review of Doran’s legal
sufficiency challenges. Doran failed to move for a judgment as a matter of law before the
submission of the case to the jury and failed to move for a judgment as a matter of law after
the verdict was returned.1 When the moving party fails to move for a directed verdict at trial,
the sufficiency of the evidence supporting the jury’s verdict is not reviewable on appeal.2
In his motion for new trial, however, Doran essentially challenged the sufficiency of
the evidence on this issue.3 As this court said in Coughlin v. Capitol Cement Co.:
When, as in this case, a motion for new trial has been made on
the ground of insufficient evidence to support the verdict and
the like, the failure by the losing party to move for a directed
verdict . . . still operates to foreclose consideration of the
question of sufficiency on appeal, and the appellate court may
inquire only whether the trial court abused its discretion in
overruling the motion for a new trial.4

-- 3 of 10 --

Commercial Corp., 479 F.2d 766, 768-69 (5th Cir. 1973) (comparing
the function of the directed verdict and judgment as a matter of
law to that of the motion for new trial).
5Coughlin, 571 F.2d at 298 (quoting Fugitt v. Jones, 549
F.2d 1001, 1004 (5th Cir. 1977)).
6See TEX. CIV. PRAC. & REM. CODE § 33.003.
7Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 594 (Tex.
1999).
4
We review the denial of a motion for new trial by determining “whether there was an
‘absolute absence of evidence to support the jury’s verdict.’”5 We conclude, after a complete
review of the record, that there was ample evidence to support the trial court’s denial of
Doran’s motion for new trial.
Doran’s principle argument on appeal is that his unsafe gun handling practices cannot
be a proximate cause of the occurrence or injury as a matter of law because the only cause
of the occurrence or injury in this case was the design defect in the trigger assembly. We
must first determine whether, under Texas products liability law, the plaintiff’s unsafe gun
handling practices may be considered as evidence of proportionate responsibility.6 In
essence, Doran claims that his unsafe gun handling practices were simply a failure to guard
against the defective trigger assembly. The Texas Supreme Court has held that “a consumer
has no duty to discover or guard against a product defect, but a consumer’s conduct other
than the mere failure to discover or guard against a product defect is subject to
[proportionate] responsibility.”7 A consumer must act reasonably and must take reasonable

-- 4 of 10 --

8Id.
9Id. at 587.
10Id.
11Id.
12Id.
5
precautions regardless of whether a product is defective.8 In our review of the evidence,
therefore, we must determine whether Doran’s conduct in this case was merely the failure
to discover or guard against the product defect or if there was some other negligence
unrelated to the product defect. In this regard, the Texas Supreme Court’s opinion in
General Motors Corp. v. Sanchez is instructive.
In General Motors, the decedent was crushed to death when his 1990 Chevrolet
pickup rolled backward and pinned the decedent between an open corral gate and the open
driver’s side door.9 The plaintiffs alleged that the accident occurred when the decedent,
thinking that he was shifting the truck into “park,” mis-shifted into an intermediate position
perched between “park” and “reverse” known as “hydraulic neutral.”10 The jury found that
the transmission was defectively designed and that this defect caused the accident.11 The
jury also found that the decedent was 50% responsible for the accident, but the trial court
disregarded this finding, concluding that the decedent’s negligence was simply a failure to
discover or guard against the product defect.12

-- 5 of 10 --

13Id. at 594-95.
14Id. at 594.
15Id.
6
The Texas Supreme Court held, however, that the decedent’s negligence was not
related to the product defect and therefore was subject to proportionate responsibility.13 The
decedent’s conduct at issue included his failure to follow the following safety measures that
were included in the truck’s owner’s manual: “(1) set the parking break; (2) place the truck
completely in Park; (3) turn off the engine; (4) remove the key from the ignition; (5) check
that Park is fully engaged by pulling down on the gearshift.”14 The decedent failed to
perform any of these safety measures, and “any one of them would have prevented the
accident.”15 The Texas Supreme Court held that this evidence was sufficient to support the
jury’s proportionate responsibility finding:
Regardless of any danger of a [product defect], a driver has a
duty to take reasonable precautions to secure his vehicle before
getting out of it. The danger that it could roll, or move if the
engine is running, exists independently of the possibility of a
mis-shift [caused by a product defect]. For instance, the driver
could inadvertently leave a vehicle in gear or a mechanical
problem unrelated to a product defect could prevent Park from
fully engaging. A moving vehicle without a driver is a hazard
to public safety. . . . [A]lthough we do not expect the average
driver to have the engineering background to discover defects in
their car’s transmission, we do expect the reasonably prudent
driver to take safety precautions to prevent a runaway car. [The
decedent] had a responsibility to operate his truck in a safe
manner. The fact that the precautions demanded of a driver
generally would have prevented this accident does not make [the
decedent’s] negligence a mere failure to discover or guard
against a mis-shift [caused by a product defect]. . . . [The

-- 6 of 10 --

16Id. at 594-95.
7
decedent’s] actions amounted to conduct other than a mere
failure to discover or guard against a product defect.16
In this case, Doran’s conduct included his failure to follow safe gun handling
practices, including: (1) always treat every firearm as if it is loaded; (2) always keep a
firearm pointed in a safe direction, especially when loading or unloading a firearm;
(3) always have the safety in the “safe position” when loading and unloading a firearm;
(4) never handle a firearm in a moving vehicle except in an emergency situation. Doran
testified that, before the accident, he was fully aware of these principles. Doran’s firearms
expert, Tom Butters, a former NRA firearm safety instructor, also testified that these are
basic firearm safety rules and that they are taught by the NRA, 4-H, and the Texas
Department of Parks & Wildlife. Rifle Basix’s firearm expert, Dan Walker, a firearms
training instructor with the Texas Department of Public Safety, also testified to these basic
firearms safety rules. Doran failed to follow any of these safety measures, and any one of
them would have prevented the occurrence or injury.
Although the average person handling a rifle is not expected to discover a defective
trigger assembly, a reasonably prudent person handling a rifle should take safety precautions
to prevent injury from an accidental firing.
Doran contends there is no evidence to support the jury’s verdict that his conduct was
a proximate cause of the occurrence or injury. The two components of proximate cause are

-- 7 of 10 --

17Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.
2003).
18Id. (quoting Doe v. Boys Clubs of Greater Dallas, Inc.,
907 S.W.2d 472, 477 (Tex. 1995)).
19Doe, 907 S.W.2d at 477.
20Id. (quoting Carey v. Pure Distrib. Corp., 124 S.W.2d 847,
849 (Tex. 1939)).
21Id. at 478.
22Id. (quoting Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d
546, 551 (Tex. 1985)).
8
cause-in-fact and foreseeability.17 “The test for cause in fact, or ‘but for causation,’ is
whether the act or omission was a substantial factor in causing the injury ‘without which the
harm would not have occurred.’”18 A finding of cause-in-fact cannot be established by mere
conjecture, guess or speculation, and “[c]ause in fact is not shown if the [actor’s] negligence
did no more than furnish a condition which made the injury possible . . . [T]he connection
between the [actor’s conduct] and [the] plaintiff’s injuries simply may be too attenuated to
constitute legal cause.”19 The Texas Supreme Court has stated that “‘[t]he evidence must go
further, and show that such negligence was the proximate, and not the remote, cause of
resulting injuries . . . [and] justify the conclusion that such injury was the natural and
probable result thereof.’”20
The test for foreseeability “requires that a person of ordinary intelligence should have
anticipated the danger created by a negligent act or omission.”21 “The danger of injury is
foreseeable if its ‘general character . . . might reasonably have been anticipated.’”22 As the

-- 8 of 10 --

23Id. (quoting City of Gladewater v. Pike, 727 S.W.2d 514,
518 (Tex. 1987)) (“Foreseeability requires more than someone,
viewing the facts in retrospect, theorizing an extraordinary
sequence of events whereby the defendant’s conduct brings about
the injury.”).
9
Texas Supreme Court has stated, “The question of foreseeability, and proximate cause
generally, involves a practical inquiry based on ‘common experience applied to human
conduct.’”23
Doran does not dispute that he had the rifle pointed in a downward direction at his leg
and foot, that he was handling the rifle in a moving vehicle in a non-emergency situation, and
that the safety was off while he loaded the rifle. Doran now argues on appeal that (1) these
actions merely furnished the condition that made the injury possible because they were too
attenuated to constitute proximate cause and (2) it was not foreseeable that these actions
would cause an injury because the mis-fire caused by the product defect was unexpected.
All of these unsafe practices occurred mere seconds before the accident occurred and were
not remote or attenuated from the accident in question. Also, while the product defect might
have been unforeseeable, an accidental discharge from a firearm is not unforeseeable. In
fact, as previously discussed, the rules of firearm safety are designed to protect against the
accidental discharge of a firearm. It was reasonably foreseeable that an injury could occur
if the firearm safety rules are not followed. Because there was ample evidence to support
the jury’s verdict that Doran’s negligence was a proximate cause of the injury, the district
court did not abuse its discretion in denying Doran’s motion for new trial. The district
court’s judgment is AFFIRMED.

-- 9 of 10 --

10

-- 10 of 10 --