John M. Kirby May 6, 2014

On April 12, 2012, a federal court in the Western District of North Carolina, ruled on several post-trial motions. A jury awarded $10,000,000 (ten million dollars) to the Estate of Darryl Turner, who was a 17-year-old killed by a TASER. Turner became boisterous following his termination from a Food Lion in Charlotte. The Charlotte Mecklenburg Police were called to the scene. The precise facts of this encounter were disputed. The officer shot Turner in the chest with the TASER, and the officer engaged the TASER for 37 seconds (rather than the default time period of five seconds). Turner fell to the floor and did not move. A second officer gave Turner another 5 seconds of shock with a TASER. Turner died as a result of this incident, and his Estate sued the manufacturer of the TASER. (They settled previously with the police department. The extent to which the jury was informed of this settlement was also the subject of post-trial motions.)

The jury returned a verdict finding that TASER was liable. The opinion does not elaborate on the evidence and the theories, but it appears that TASER was found to be negligent, for improper training and/or improper warnings, in that the officer shot Turner in the chest with the TASER, there was evidence that the TASER was used properly by police, and there was evidence that the location of the TASER probes (rather than the duration of the electrical shock) caused the death of Turner.

In its post-trial motions, TASER raised several issues. Of some import is the computation of damages in a wrongful death claim. The court modified its prior computation of damages. Also of interest is that the federal court implemented the federal procedure of "remittitur," finding the verdict to be excessive and effectively reducing it to approximately $5.5 million (or otherwise granting a new trial).

Of particular import on appeal, TASER argued that it should have been allowed to argue that Turner was contributorily negligent in causing his injuries, apparently in resisting the police officer. The applicable product liability statute states, "No manufacturer or seller shall be held liable in any product liability action if the claimant failed to exercise reasonable care under the circumstances in the use of the product, and such failure was a proximate cause of the occurrence that caused the injury or damage complained of." North Carolina General Statute 99B-4(3). The court looked to case law from North Carolina and from the Fourth Circuit, to the effect that this statute applies only if the claimant (i.e. plaintiff)"used" the product. TASER argued that Turner could be contributorily negligent in ways other than in using the TASER (such as resisting the officers), but the court rejected this position.

The court concluded, "Plaintiff never used TASER's product. No case has extended Section 99B-4(3) to such a situation." The Court thus denied the motion for a new trial, which was argued on the basis of an earlier ruling by the court to exclude evidence of contributory negligence. The court also reasoned that if it were to accept TASER's argument, that all claims against TASER would be barred because the claimant would have been resisting arrest in order to be shot with the TASER.

This case is of great import to the area of product liability in North Carolina. The issue decided by the federal court appears in fact to not have been precisely addressed by any North Carolina court. At least one other state (Alabama) has reached a similar result. In this case, the operator of a motorcycle was involved in an accident, and he sued the manufacturer of his helmet asserting that it failed to protect him in the crash. The manufacturer argued that he was negligent in causing the accident, but the Alabama Supreme Court rejected this argument, stating, "A plaintiff's mere inadvertence or carelessness in causing an accident should not be available as an affirmative defense to an AEMLD [i.e. product liability against a manufacturer] action. To allow a plaintiff's negligence relating to accident causation to bar recovery would go against the purpose of the AEMLD, which is to protect consumers from defective products. The defense of contributory negligence in an AEMLD action should be limited to assumption of the risk and misuse of the product. The plaintiffs' negligence relating to accident causation should not bar recovery." Dennis v. American Honda Motor Co., 585 So. 2d 1336, 1339 (Ala. 1991). In North Carolina, contributory negligence is a complete defense to a claim based on negligence.

This case could be appealed to the Fourth Circuit Court of Appeals. John Kirby currently has a product liability case on appeal to the Fourth Circuit Court of Appeals. Information about appeals can be found on this site.

The case of Fontenot v. TASER can be accessed through this link.

This website contains other recent North Carolina cases.