Twin Falls man suing gunmaker after son's accidental shooting

The attorney for the family says the gun discharged went the it hit the ground.

TWIN FALLS -- A man who accidentally shot his 11-year-old son during a hunting trip is moving to sue the company that manufactured the youth-model shotgun.

Attorneys for Kyle Alberti of Twin Falls filed the complaint against Remington Arms Company LLC in federal court Monday.

The suit stems from an Dec. 26, 2014 incident that happened while Alberti and his son - identified in court documents as K.A. - were hunting near Rogerson in Twin Falls County.

Attorney Kurt Holzer told KTVB the pair was tracking a bobcat in Cedar Creek Canyon. The 11-year-old was armed with a Remington 870 Youth Model Shotgun that had been a gift from his father; Alberti had left his own shotgun in his truck, according to the complaint.

At one point, K.A. asked his father to carry the shotgun because he had forgotten his gloves and his hands were cold. The complaint says the boy checked to make sure the safety was on before handing over the gun. Alberti says he also checked and confirmed the safety was on before he started walking down the trail a few paces ahead of his son.

Holzer says Alberti was holding the shotgun in his right hand in the "field carry" or "trail carry" position, with his hand in front of the trigger guard and the shotgun pointed forward.

MOREBoy shot in hunting accident, airlifted to Boise

A few steps down the trail, Alberti slipped on ice and fell, dropping the shotgun. Holzer says the gun flipped about 180 degrees, hit the ground, and discharged. 

"The gun went off right next to his ear, and his son happened to be in the line of fire," Holzer said.

K.A., who had been walking behind his father, was struck in the upper left thigh.

Alberti used his shirt to tie a tourniquet around the boy's leg, according to the Twin Falls Sheriff's Office, and carried him to a nearby house where residents called 911. K.A. was airlifted to a hospital in Boise for treatment.

The boy survived, but was left with permanent problems, according to Holzer.

"It was a close-in shotgun wound to the upper thigh. He's lost substantial muscle mass - it is a lifelong injury," he said. "He's not going to be the person he was when he grows up. He doesn't have the strength, agility, ability to perform in life the way he would have otherwise."

Alberti is seeking damages for "medically related expenses, mental and physical pain and suffering; impaired earning capacity, permanent impairment and disability, disfigurement; and other general and specific damages in an amount to be determined by a jury at trial of this action," according to the complaint.

Holzer says a "jar-off"  caused the shotgun to fire, meaning the gun discharged due to the impact with the ground - even though the safety was engaged.

"There was not a finger anywhere near the trigger," he said. "That's why responsibility in this case, fault in this case, sits with Remington."

RELATED:  Sheriff's office says boy was shot by dropped gun

The attorney added that Alberti is experienced with guns and was not acting irresponsibly with the shotgun before his son was hit.

"He is a gun safety expert," Holzer said. "He teaches gun safety, he understands gun safety, he has been involved in gun safety training, and he was doing things right. It's the design of the gun that is the problem."

The suit alleges the shotgun was "defective and unreasonably dangerous." A Remington corporate spokeswoman did not respond to a request for comment.

Holzer noted the issue was similar to a documented issue with some Remington rifles that resulted in a class action lawsuit, which Remington settled. The company admitted to problems with the X-Mark Pro® trigger mechanism assembly in Model 700 Remington rifles, which could result in the gun firing without the trigger being pulled.

K.A.'s gun, the Remington 870 Youth Model Shotgun, was not included in the class action case.

Holzer declined to discuss specifics of how much money Alberti and his family are asking for. The minimum amount damages alleged in order for a civil case to be filed in federal court is $75,000, but the attorney said the number in this case will likely be much higher.

READ: Remington to replace triggers on some rifles

If Remington and Alberti do not agree to settle outside of court, the case will move forward to trial, Holzer said, a process he expects to take about 18 months in total. Remington has 21 days from being served with the complaint to file a response.

Holzer said the family waited until 2017 to file the lawsuit to see what the expenses and long-term  effects of K.A.'s injury would be.

"Anytime somebody has suffered a substantial injury, what you want to see is what's the outcome going to be?" the lawyer said.  "How are they going to recover? What are the complications from the injury? You can't really find a resolution until the parties look at the injured person and say... 'we expect this to happen, we expect somebody to have this kind of future.'"

Copyright 2017 KTVB


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