dissenting.
I respectfully dissent from the decision of the Court. The Court has quoted relevant portions of the district court opinion but rejects the reasoning within that opinion. The reasoning of the district court should be accepted. A few additional comments are also in order.
First, there is no evidence that Garey knew the shotgun would discharge when dropped. Actually, there is no direct evidence that the shotgun itself was defective. Garey has sworn that he knew of no defect. The possibility that the shotgun was defective comes from the evidence that it misfired or fired late when Sholder and Bromley used it and from the examination by Mr. Aikin who observed that the shotgun fired when the bolt was slammed shut or when the shotgun was hit on its butt or on the sides. This result could not be duplicated in subsequent testing. The Court could draw the inference that the shotgun was defective from the evidence of misfiring or late firing, but that is not a necessary conclusion. It may seem logical to conclude that the problems were a consequence of a defect in the shotgun, but there is no expert opinion to establish such a conclusion. The Court has affirmed the exclusion of Mr. Aikin’s opinions on the basis that they were speculative and lacked the necessary factual foundation. The Court does note, however, that Mr. Aikin recited several things that would be consistent with his observations. Some of those have nothing to do with a defect in the shotgun such as flakes of unburned powder, a weed or stick, or “countless things.” The Court makes the assumption that the misfiring or late firing are related to the shotgun discharging when dropped. There is nothing in the record to support that assumption. The alternative assumption is that Garey had knowledge of another defect that caused the shotgun to discharge when dropped. There is no support for that assumption.
Assuming that the misfiring was the result of a defect in the shotgun, not something else, and assuming that Garey knew of the defect despite his sworn statement that he did not, the question then becomes what was his duty? Apparently his duty was to warn Sholder and Bromley not to drop a loaded shotgun that they observed had misfired or fired late.
Assuming that Garey knew of an unidentified defect in the shotgun, it is clear that Bromley had the same knowledge. He and Sholder used the shotgun. According to them, it misfired or fired late. Despite this knowledge, they continued to use it, and they left it loaded in the pickup knowing the danger. They knew as much at that time as Garey could know. They had control of the shotgun and could take the steps necessary to protect themselves. Those steps were simple. If it was misfiring, do not use it. Do not leave it loaded in the pickup. Do not drop it. The district court properly relied upon Robinson v. Williamsen Idaho Equip*816ment Co., 94 Idaho 819, 827, 498 P.2d 1292, 1300 (1972), for the proposition that “no warning need be given, regardless of the nature of the supplier-user relationship, if the danger is obvious or actually known to [the] user.” Any duty that Garey had to warn was extinguished and irrelevant because of the knowledge Bromley possessed.
It is also clear that any failure to warn did not cause this event. The unfortunate accident was caused by the continued use and unsafe handling of the shotgun. Reserving this issue simply prolongs the expense of litigation. The issue has been presented to this Court in the respondent’s brief, and the appellant did not file a reply brief. The result is apparent.
The question of negligence is almost universally left to a jury. However, there are cases where the facts are so clear that the court can say no reasonable jury could return a verdict in favor of the plaintiff either because the defendant was not negligent or the negligence of the plaintiff was equal to or exceeded that of the defendant. Reading the facts in the light most favorable to Bromley, this is one of those cases. If this case goes to trial it should not survive a motion for directed verdict or a motion for judgment notwithstanding the verdict if a sympathetic jury finds in favor of Bromley. Bromley had control of the instrumentality that caused his injury, and he was aware of the difficulty with the shotgun. Giving the evidence all the weight possible in Bromley’s favor, the most that can be said is that his negligence was equal to or greater than any negligence by Garey. This case should be put to rest without the additional expense of legal representation and the waste of judicial and jury time.