This section contains the nature of the case and procedural background.

P was using a Model N80CB-1 pneumatic nail gun manufactured by D while working at a construction site. P laid the gun on top of a six-foot ladder and exited the construction site to retrieve tools. P did not disconnect the air compressor from the nail gun prior to laying the nail gun on the ladder. On his return, P approached the ladder with screws in one hand and an electric screwdriver in the other hand. The nail gun fell off the ladder. The 'contact trip' of the nail gun then made contact with P, making a loud 'bang' sound. The nail gun discharged a nail into the upper chest/collarbone area of his body. P does not remember seeing the nail gun fall from the ladder. This would require open chest surgery, in-patient hospitalization, and follow-up care. There were no witnesses to the incident. To discharge a nail the nail gun's trigger mechanism must be pulled simultaneously with the touching of the nail gun's 'contact trip' against a surface. Ps' expert opines that P made 'a reflexive action to try and protect himself' that pulled the trigger near the moment the nail gun made contact with P's chest. Ps sued D for products liability. Ps contend that the nail gun was defectively designed because it did not have a safety switch or trigger lock and that this defect caused the injuries. D has moved for summary judgment on three grounds. D claims that P was not using the gun as intended. P’s expert claims that the instructions and warnings for the gun advised users to disconnect the gun from the compressor when not in use. D claims that P’s failure to disconnect the compressor, not the design, caused his injury.

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