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Remington Seeks to Dismiss Wrongful Death Lawsuit

Posted October 18, 2017 - phillipgilbertlaw.com

GRAND RAPIDS, MI – Remington Arms blamed a father for the accidental shooting of his daughter who was killed when a rifle discharged in their pickup truck.

Shellsea Lefebre-Schiel, 12, died Sept. 21, 2014, after she was shot in the head while on a hunting trip with her father, Jose Lefebre, on Drummond Island.

Her mother, Michelle Lefebre, filed a $5 million federal lawsuit against the gun maker, which had posted a voluntary recall on its website that said: “Remington has determined that some Model 700 and Model Seven rifles with XMP triggers could, under certain circumstances, unintentionally discharge.”

Shellsea was in the back seat of the four-door pickup. The rifle was tucked between a front-seat passenger’s left leg and interior panel on the console, pointed to the back. The lawsuit contends that a cellphone charger cord apparently moved the safety lever to the fire position.

The rifle discharged while the father was driving the pickup truck. His daughter was struck in the jaw and killed.

Remington Arms, in a motion to dismiss the case, said that blame for the “tragic shooting death” rested with the father. The Protection of Lawful Commerce Act generally protects gun makers and sellers when criminal misuse of an allegedly defective firearm is the cause of such a shooting, Grand Rapids attorney Edward Perdue wrote.

“She was shot and killed as the result of criminal acts committed by her father, Jose Lefebre, who illegally transported a loaded Remington rifle in his motor vehicle with the safety disengaged – in violation of the criminal law – and otherwise handled the rifle in a criminally reckless manner to cause her death,” Perdue wrote.

While the act provides “broad immunity,” there are exceptions, including personal injury or wrongful death that results from a design or manufacturing defect, he said.

“However, the product liability action exception is subject to an exception of its own: when the discharge of the firearm is the result of a ‘volitional act’ that constitutes a ‘criminal offense,’ the criminal act ‘shall be considered the sole proximate cause’ of resulting personal injuries or death,” Perdue wrote.

Lefebre, 47, was charged with involuntary manslaughter, a 15-year felony, and possession of a loaded firearm in a vehicle, a two-year misdemeanor. In a plea agreement, he pleaded guilty to misdemeanor charges of attempted possession of a loaded firearm in a motor vehicle and attempted reckless use of a firearm causing injury or death, records showed.

“In this case, there is no question that Lebrere chose to load the rifle, transport the loaded rifle in the passenger compartment of his truck, and ‘position’ it in his truck so that it pointed toward the rear passenger compartment, where two children sat,” Perdue wrote.

“The unfortunate choices Lefebre made that day were volitional and criminal, and they resulted in Shellsea’s tragic death,” he said.

Lefebre’s attorney, Leonard Siudara, said the father remains distraught.

The lawsuit said that a “defective assembly” of the rifle’s X-Mark Pro, or XMP, fire control system caused the unintended discharge. Lefebre had no way of knowing about the recall unless he checked Remington’s website, his attorney said.

“Remington’s egregious inattention to proper assembly and later inexcusable, willful and wanton delay notifying the public of the defect allowed 2,500,000 defective and dangerous XMP equipped rifles to be sold and used over 8 years of production and Shellsea to suffer a wrongful death,” he said in the lawsuit.