Where a man participating in a TASER training session was struck in the eye when another class participant missed his target, the injured man can assert a negligence claim against the instructor who set up, implemented and executed the training session.
While participating in a TASER training session, Virginia Beach police department officer Shawn Curran took a break in a designated safety area. Another participant, who was engaged in a role-playing exercise, fired his TASER. Unfortunately, he missed his intended target and hit Curran in the eye.
Curran sued Richard Nelson, who oversaw the session, for negligence and Axon Enterprise Inc., the manufacturer of TASERs and sponsor of the training program, for vicarious liability. Nelson and Axon moved separately for summary judgment and the district court granted both motions. It determined that Nelson could only be liable for the conduct of the participant who fired the TASER if what Virginia law calls a “special relationship” existed between Nelson and Curran. But it found that no such special relationship existed. And since it held that Nelson was not liable, the court also granted Axon’s motion as to Curran’s vicarious liability claim.
Generally, under Virginia law, a person has no duty to protect another from the conduct of third persons. But if a special relationship exists between the defendant and the plaintiff, the defendant must use reasonable care to protect the plaintiff against such third-party conduct.
Curran notes that Nelson, in setting up and running the session, possessed the training location and retained control of the TASERs used in the exercise. He also argues that Nelson set up, oversaw, implemented and ran the exercises during the course. Finally, he emphasizes that Nelson was present when the incident occurred and had the ultimate responsibility for the training session.
The district court thoroughly analyzed decisions from Virginia involving claims of negligence based on a special relationship generally and in contexts most like the ones presented here. It noted that Virginia has never recognized a special relationship that can support a claim for negligence in the context of a trainer and adult trainee.
It then reviewed Virginia state trial court decisions and decisions from other states that analyzed the special relationship issue in a related but slightly different context—that of instructors and minor or college-aged students. In that context, the district court determined that the degree of control the instructor exerts is often the critical factor. Then, it reasoned that even if a trainer and adult trainee could be in a special relationship under Virginia law, Nelson lacked both the control and superior knowledge needed to justify a special relationship. In support of this conclusion, the court noted that Curran was an adult and had been TASER certified for at least 15 years. This court finds no error in the district court’s interpretation of Virginia law or in its decision granting summary judgment to Nelson on Curran’s negligence claim premised on a special relationship.
Curran also argues that Nelson is liable under general negligence principles based on Nelson’s set up, implementation and execution of the training session. On this point, the court agrees.
Nelson argues Curran’s claim is based solely on his alleged special relationship with Nelson, not general negligence. True, Curran could have been more precise in drafting the complaint. But his lack of precision is not fatal to his claim against Nelson for general negligence. Fairly read, Curran alleged that Nelson breached a duty of reasonable care to those in the training area.
Second, Nelson argues that recognizing a general negligence claim here would conflict with the line of Virginia cases holding that one does not owe a duty to protect against the acts of third parties. The court disagrees. In advancing this position, Nelson appears to argue that claims for negligence based on special relationships and claims for general negligence are mutually exclusive. But this court sees nothing in Virginia law indicating that to be the case.
Finally, Nelson argues that by failing to use protective eyewear in the recovery zone, Curran assumed the risk of any errant TASER shot. But assumption of risk, an affirmative defense, only comes into play once a plaintiff pleads a duty and breach.
Affirmed in part, vacated in part and remanded.
Curran v. Axon Enterprise Inc., Case No. 21-2151, Jan. 9, 2023. 4th Cir. (Quattlebaum), from EDVA at Norfolk (Doumar). Elliott Buckner for Appellant. Pamela B. Petersen and Brian Nelson Casey for Appellees. VLW 023-2-009. 12 pp.