Cite as LeMaster v. Glock, Inc., 610 So.2d 1336 (Fla. 1st. DCA
1992), rev. denied, 620 So.2d 760 (Fla. 1993)

Regina L. LeMaster, as Personal Representative of the Estate of 
Michael C. Shockey, Appellant,

                               v.

                     Glock, Inc., Appellee.

                           No. 92-589.

      District Court of Appeal of Florida, First District.

                        Dec. 29, 1992.   

                 Rehearing Denied Feb. 2, 1993.

     Daniel F. Wilensky, Jacksonville, and David R. Lewis of Lewis,
Paul & Isaac, P.A., Jacksonville, for appellant.

     George D. Gabel, Jr., Jacksonville, and Evan A. Burkholder and
Hugh C. Griffin, Chicago, for appellee.

     ALLEN, Judge.

     Regina L. LeMaster, in her capacity as personal representative
for the estate of Michael C. Shockey, appeals from a final summary
judgment granted in favor of Glock, Inc., the defendant in her
wrongful death action and the appellee herein. The appellant
contends that the trial court erred in ruling as a matter of law
(1) that a semiautomatic pistol with a 5 1/2 pound trigger pull
need not be equipped with a positive external safety and (2) that
the lack of such a safety was not the proximate cause of Michael
Shockey's death. We conclude that neither issue should have been
resolved by summary judgment.

     Officer Adams of the Jacksonville Sheriff's Department saw a
truck that he believed to be stolen. Upon confirming that fact, he
proceeded to arrest the four men in possession of the vehicle.
During the course of the arrest, one of the men, Michael Shockey,
was killed when Officer Adams accidently pulled the trigger on his
department-issued semiautomatic .9 mm pistol. The pistol, which
required 5 1/2 pounds of pressure on the trigger to discharge, did
not have an external safety device. The appellant brought a
wrongful death action, alleging strict liability against the
appellee, the manufacturer of the pistol. The appellant alleged
that the pistol had a defect because it was designed without an
external safety, and that this defect proximately caused Shockey's
death. The appellee moved for summary judgment, supporting its
motion with affidavits regarding the intentional design of the
pistol without a safety, the Jacksonville Sheriff's Department's
purchase of the pistol, the training provided Officer Adams, and
the department procedures governing an officer's use of his pistol
during arrest. The appellant presented the affidavit of an
investigative engineer who stated that the pistol was negligently
designed because it lacked an external safety device. The court
entered summary judgment for the appellee.

     We first address the question of whether the lack of an
external safety may constitute a defect in the weapon. An action
for strict liability for a design defect of a product will lie
where by reason of its design, the product is in an unreasonably
dangerous condition and the product reaches the user without
substantial change. West v. Caterpillar Tractor Co., 336 So.2d 80
(Fla. 1976). It is undisputed in this case that the gun did not
malfunction, but rather that it fired because the officer's finger
slipped inside the trigger guard and exerted pressure on the
trigger. The trial court found no defect, reasoning that "[t]here
is no defect in a product, even an 'inherently dangerous product,'
if it performs exactly as it is intended to."

     The trial court's ruling is contrary to long-standing Florida
cases in which plaintiffs brought strict liability claims where the
product performed as expected but nonetheless injured someone. See,
e.g., Auburn Machine Works, Co. v. Jones, 366 So.2d 1167 (Fla.
1979); Cunningham v. Lynch-Davidson Motors, Inc., 425 So.2d 131
(Fla. 1st DCA 1982), rev, denied, 436 So.2d 99 (Fla. 1983). We note
that the only Florida case cited by the trial court, Trespalacios
v. Valor Corp. of Fla., 486 So.2d 649, 650 (Fla. 3d DCA 1986),
simply stands for the proposition that a plaintiff must identify a
product's defect and allege that the defect was the proximate cause
of the injury in order to state a cause of action for strict
liability. Accordingly, Trespalacios does not support the trial
court's ruling in this instance.

     Summary judgment should not be granted where the supporting
affidavits raise a genuine issue of material fact. See Hell v.
Talcott, 191 So.2d 40 (Fla. 1966). When there is evidence that the
absence of a safety feature is a defect in a product, summary
judgment for the defendant is inappropriate. See, e.g., Auburn
Machine Works; Cunningham. The opposing affidavits in this case are
in conflict over whether the absence of an external safety on the
semiautomatic pistol constituted a design defect that rendered the
gun unreasonably dangerous. Accordingly, the question should not
have been resolved by summary judgment.

     We next address the trial court's ruling that the lack of an
external safety "was causally unrelated to the unintentional
discharge that resulted in the death of plaintiff's decedent." The
appellant asserts that the question of proximate cause was an issue
of fact for the jury to decide, while the appellee insists that the
absence of proximate cause is conclusively demonstrated by the
affidavits of Lieutenant Peter Mittleman of the Jacksonville
Sheriffs department and Frank Dinuzzo, an employee of the appellee.
Mittleman and Dinuzzo stated that the absence of a positive
external safety was causally unrelated to the death of Michael
Shockey because police officers are instructed to disengage
external safeties during an arrest, and therefore, even if the gun
had been equipped with a safety, the safety would have been off
when Adams pulled the trigger.

     The question of proximate cause is for the jury unless
reasonable men could not differ in their determination of the
question, Helman v. Seaboard Coastline R.R., 349 So.2d 1187, 1189
(Fla. 1977), and where questions of negligence or contributory
negligence are close, any doubt should always be resolved in favor
of a jury trial. Goode v. Walt Disney World Co., 425 So.2d 1151
(Fla. 5th DCA 1982), rev. denied, 436 So.2d 101 (Fla. 1983). The
circumstances under which a court may resolve the question of
proximate cause as a matter of law are extremely limited. As has
been recently stated, "the determination vel non of proximate cause
as a matter of law is a policy decision 'that the range of danger
is too remote to be reasonably foreseeable.' " Hohn v. Amcar, Inc.,
584 So.2d 1089 (Fla. 5th DCA 1991). The danger of an individual
being shot by someone inadvertently putting pressure on a gun's
trigger would not be a remote possibility. Of course, injury would
be averted where the gun is equipped with an external safety, but
only if the safety is in the "on" position. Thus, the question of
proximate cause in this case may turn on whether Officer Adams
would have had his safety "on" during the episode in which the gun 
discharged had the gun been equipped with an external safety, but
this question should not have been resolved against the appellant
at the summary judgment stage.

     The trial judge could not properly rely on the opinions in the
appellee's affidavits stating that Officer Adams would not have had
the gun's safety "on" while handcuffing the four young men found in
the stolen truck. It has long been the rule that a witness's
opinion as to what would have happened if circumstances were
different constitutes rank speculation that is not competent
evidence:

     Conjecture has no place in proceedings of this sort.... The
     law seems well established that testimony consisting of
     guesses, conjecture or speculation-supppositions without a
     premise of fact-are clearly inadmissible in the trial of
     causes in the courts of this country. A statement by a witness
     as to what action he would have taken if something had
     occurred which did not occur ... or what course of action a
     person would have pursued under certain circumstances which
     the witness says did not exist will ordinarily be rejected as
     inadmissible and as proving nothing.

Drackett Products Co. v. Blue, 152 So.2d 463, 465 (Fla. 1963).

     Although the sheriff's department's standard arrest procedures
may be circumstantial evidence that the jury could consider in
making its determination, such evidence is only relevant in the
context of the specific facts presented by this case, and the
existence of such standard procedures does not conclusively resolve
the causation issue.  In his deposition, Officer Adams acknowledged
that he did not feel that he was in danger during the arrest and
that he never intended to fire the weapon. He saw nothing to
indicate that the men were armed or dangerous, and his finger was
outside the trigger guard until it inadvertently slipped inside
when his arm was jostled.

     In ruling upon a motion for summary judgment, the court must
view every possible inference in the light most favorable to the
nonmoving party. State of Fla. Dept. of Envtl. Regulation v. C.P.
Developers, Inc., 512 So.2d 258 (Fla. 1st DCA 1987). It can
reasonably be inferred from the evidence in this case that, despite
any standard departmental arrest procedures, if the gun had been
equipped with a safety, the safety would have been "on" in order to
avoid accidental discharge. The court therefore erred in finding,
as a matter of law, that proximate cause did not exist.

     Accordingly, we reverse the final summary judgment and remand
for further proceedings.

     ZEHMER and WOLF, JJ., concur.