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Parents of an Alameda County, Calif., teenager shot by a friend will have to try for a third time to convince a jury that gunmaker Beretta USA Corp. is liable in the boy’s death. Alameda County Superior Court Judge Gordon Baranco declared a mistrial after jurors deadlocked following four days of deliberation in a wrongful-death suit against Beretta. Parties will discuss setting a new trial date at a conference later this month. Beretta attorney Craig Livingston, of the Livingston Law Firm in Walnut Creek, Calif., said the plaintiffs failed to make a case against Beretta. “The plaintiffs have failed to convince two separate Alameda County juries that the design of the Beretta pistol had anything whatsoever to do with this tragic accident,” Livingston said. This was the second time an Alameda jury had considered the case. The gun manufacturer won an initial verdict in November 1998 when jurors found that the gun used in the shooting was not defective and that alleged flaws in its design did not give rise to liability. An appeals court reversed the verdict, citing jury misconduct, and sent the case back to Alameda County Superior Court. Judge Richard Hodge, who has since retired, reluctantly ordered a new trial three years ago. At the time Hodge said a new trial would be “a useless exercise because the plaintiffs cannot prevail.” Hodge said the suit was not a test case, adding that the “breathtaking irresponsibility” demonstrated by the gun owner appeared to ruin any chance of proving manufacturer liability. Gun owner Clarence Soe had testified that he had intended to keep a bullet in the chamber to be ready if an intruder entered his home. But lawyers representing the parents of the boy killed in the accidental shooting contend that Beretta is liable. “We took the case because we believe in it, and we think it’s a good thing to be holding gun manufacturers accountable,” said Daralyn Durie, a partner at Keker & Van Nest. “They are not regulated by the Consumer Safety Commission. They are exempt. The only recourse is through the court system.” Keker, which is handling the case pro bono, was brought in by The Brady Center to Prevent Handgun Violence after the first trial. The parents of 15-year-old Kenzo Dix allege that the Beretta semiautomatic pistol Dix’s friend fired was defectively designed because it did not effectively warn users of the presence of a bullet in the gun chamber and because it did not have an internal locking mechanism to prevent unauthorized users from accessing the gun. According to the plaintiffs’ trial brief, Dix’s friend, Michael Soe, removed the gun from an unlocked camera bag in his father’s bedroom and replaced the loaded magazine in the gun with an empty magazine. A bullet remained in the gun chamber, however, and when he pulled the trigger the bullet shot into Dix’s heart. “The basic problem — that gun users might believe a gun to be empty when the clip is empty — has been known to the gun industry for more than a century,” the Keker lawyers wrote in their trial brief. “Patents going back to the 19th century describe devices to address this hazard. Quite simply, accidents like the one that killed Kenzo were foreseeable to Beretta.” But Livingston said the design of the pistol was not at fault. The accident was caused “by the father’s negligence in storing the gun and the son’s recklessness in handling it as a toy,” he said. The plaintiffs in Dix v. Beretta USA Corp., 750681-9, seek $10 million in damages for the 1994 death of their son. They previously sued the Soe family and settled for $100,000.

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