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Contributory Negligence Doesn't Apply to Taser Death

By William Peacock, Esq. on November 27, 2013 | Last updated on March 21, 2019

Note to self: applying electric current to one's heart via a Taser can disrupt the heart's normal operation.

Such a notion makes sense -- after all, when a person's heart stops, the remedy is often to use a defibrillator to shoot bursts of electricity into the patient's heart to "jump start" it. However, for a time, it was thought that the X26 Taser was incapable of disturbing a person's heart rhythm. In fact, the manufacturer's training materials explicitly noted that it was impossible to interfere with the heart's rhythm by applying the Taser, and that police officers should aim for the center of the chest, near the heart.

That didn't work out so well, not for the manufacturer, nor for a disgruntled grocery store employee. After 17-year-old Darryl Turner was fired from Food Lion, he got into an argument with his boss in the store. When he refused to leave, the police were contacted. The officer testified that, after he told Turner to stand down, Turner balled his fists up and turned towards him in a confrontational manner. The officer applied the Taser as his training indicated.

Turner died, after the electric current stopped his heart.

Up until this point, the manufacturer's training materials still made no mention of the device's ability to interfere with the heart's normal operation, despite some evidence and studies showing that it was capable of doing so when applied to animals. The closest the materials ever got was a revision that mentioned possible respiratory (breathing) issues.

The biggest issue before the Fourth Circuit was whether, under North Carolina law, contributory negligence barred Turner's family from recovering the $5.5 million verdict awarded by a jury (after remittitur and appropriate reductions). After all, under the "draconian" rule of contributory negligence, a plaintiff's own negligent behavior, that leads to an injury, will bar him from recovery. And Turner did, arguably, act negligently in acting aggressively toward an officer who had ordered him to calm down.

Interestingly enough, North Carolina, unlike most other states, has not enacted a certified question procedure for sending questions of state law to the state Supreme Court. Instead, the Fourth Circuit was tasked with predicting how the court might rule in such a situation.

According to the majority, the text of North Carolina's contributory negligence statute is determinative. It reads, in relevant part:

"No manufacturer or seller shall be held liable in any product liability action if: ... (3) 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."

See where this is going? Turner never used the product. The officer used the product on Turner, so while the victim may have acted negligently, and his injuries may have been proximately caused by confronting an officer, since he didn't tase himself, the defense doesn't apply. The court notes that such a ruling is necessary to avoid the injustice of barring recovery for anyone who is ever the victim of a misapplied or overly-aggressive tasing, as nearly every person who is tased has, at least in some way, played their own negligent part in bringing about the conflict.

The dissent, meanwhile, isn't too happy with the result. Chief Judge Traxler notes that the purpose of North Carolina's statute was to codify the common law defense of contributory negligence, "use of the product" language notwithstanding. He notes that under the common law defense, Turner's negligent behavior would bar his claims.

It wasn't all bad news for the manufacturer, however. That massive verdict? Because the plaintiff's counsel presented absolutely no evidentiary basis for such an amount (he basically told the jury to make up a really big number), it could not stand. The case was remanded for a new trial on damages.

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