Shawn Curran v. Axon Enterprise, Inc.

USCA4 Appeal: 21-2151 Doc: 44 Filed: 01/09/2023 Pg: 1 of 12

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-2151

SHAWN CURRAN,

Plaintiff - Appellant,

v.

AXON ENTERPRISE, INC.; RICHARD NELSON,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:19-cv-00617-RGD-LRL)

Argued: October 27, 2022 Decided: January 9, 2023

Before DIAZ, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Diaz and Judge Thacker joined.

ARGUED: Elliott Buckner, CANTOR GRANA BUCKNER BUCCI, Richmond, Virginia, for Appellant. Pamela B. Petersen, AXON ENTERPRISE, INC., Scottsdale, Arizona; Brian Nelson Casey, CLARKE, DOLPH, HULL & BRUNICK, PLC, Virginia Beach, Virginia, for Appellees. ON BRIEF: M. Scott Bucci, Jeffrey N. Stedman, CANTOR GRANA BUCKNER BUCCI, Richmond, Virginia, for Appellant.

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QUATTLEBAUM, Circuit Judge:

While participating in a TASER 1 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.

On appeal, Curran insists that he has two valid negligence claims. First, he contends

that in overseeing the TASER training session, Nelson had a special relationship with him

and the other trainees that obligated Nelson to use reasonable care to protect the participants

during the various exercises. Second, Curran contends that, under general negligence

principles, Nelson is liable for his own acts and omissions in setting up and overseeing the

training session.

1 For convenience, we will refer to the conducted energy weapons that Axon manufactures as TASERs throughout, as TASER® is a registered trademark of Axon.

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We affirm the district court’s decision to grant summary judgment on Curran’s

special relationship claim. As it noted, Virginia has not previously recognized a special

relationship in the trainer and adult trainee context. And we see no reversible error in the

court’s interpretation of Virginia law on this issue or in its application of Rule 56 of the

Federal Rules of Civil Procedure. But we agree with Curran that Virginia law permits his

general negligence claim against Nelson. Thus, we vacate the order dismissing the case

and remand for proceedings on Curran’s general negligence claim. 2

I.

Axon manufactures TASERs and sponsors training sessions for their use. Some

sessions train officers on the use of TASERs generally. Others, like the one here, certify

officers who successfully complete the course to be trainers themselves. This training

session took place at a law enforcement training academy in Virginia Beach, Virginia. It

included 25 law enforcement officers. Curran was one of the participants. Curran serves as

a defensive tactics coordinator, has been a certified TASER user for over 15 years and has

participated in previous TASER training sessions. Nelson, a West Virginia Natural

Resource Police employee, is a certified TASER instructor. Axon arranged for Nelson to

lead the training session.

2 Because Axon’s motion for summary judgment was granted on the basis it could not be vicariously liable when Nelson did not breach a duty, we remand the vicarious liability claim to the district court as well.

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The session included role-playing type exercises intended to simulate real life

situations. One was a box drill. Nelson arranged the box area by standing up four fold-up

mats vertically on a wrestling mat in the center of a gymnasium to simulate four walls and

four openings at the corners.

In a box drill, a trainee armed with a TASER walks into the center of the box area.

Another trainee, playing the role of a “civilian,” aggressively approaches the armed trainee

from behind one of the standing fold-up mats. J.A. 1545. The armed trainee must make a

risk assessment that often leads to firing the TASER at the aggressive civilian. This is all

supposed to happen inside the box area.

For safety, the civilian trainee wears a specialized body suit and a helmet. But

participants who wear the body suits often get overheated. Id. So a trainee can rest and cool

off on a bench in the designated recovery area. Nelson located the recovery area outside

the box behind one of the four stand-up mats. In that area, trainees may remove their

helmets but are expected to wear protective glasses.

Curran was one of two trainees acting as civilians during one box drill exercise.

Having just finished his turn, he took a break in the recovery area. Curran removed his

helmet but did not put on protective eyewear.

While Curran was resting, the box drill exercise continued. The exercise started in

the box area but moved outside the stand-up mats. The armed trainee then fired at the

civilian. But since the exercise moved outside the box area, the stand-up mats no longer

provided a barrier for those in the recovery area. In fact, the recovery bench where Curran *5 USCA4 Appeal: 21-2151 Doc: 44 Filed: 01/09/2023 Pg: 5 of 12

was sitting was downrange from the armed trainee. One of the TASER prongs shot by the

trainee struck Curran in the eye.

The image below may better explain the location of the box area, the two trainees

actively participating in the box drill and the recovery area where Curran was resting at the

time he was injured. J.A. 85.

4 2 3

The orange arrow (1) points to the box area. The green arrow (2) points to the armed

trainee. The yellow arrow (3) points to the trainee playing the role of a civilian. The red

arrow (4) points to the recovery area behind the mat where Curran was resting. *6 USCA4 Appeal: 21-2151 Doc: 44 Filed: 01/09/2023 Pg: 6 of 12

II.

Curran sued Nelson, asserting a claim for negligence, and Axon, asserting the

company was vicariously liable for Nelson’s negligence. 3 Nelson and Axon moved to

dismiss Curran’s claims. 4 Both motions argued that Nelson had no legal duty to protect

Curran from the actions of the trainee who fired the TASER. These motions were based on

the principle that, under Virginia law, one does not generally owe a duty to protect another

from the actions of a third party. Kellermann v. McDonough, 684 S.E.2d 786, 793 (Va.

2009).

But Curran argued that Virginia law also provides an exception to that general rule

when the plaintiff and the defendant have a “special relationship.” J.A. 19. As he pointed

out, in those circumstances, a defendant must use reasonable care to protect another from

the third-party’s conduct. And he insisted that Nelson, in leading the training session, had

such a special relationship with Curran.

After a hearing on the motions, the district court ordered discovery on whether

Nelson and Curran were in a “special relationship” for which Nelson had a duty to protect

Curran from participants in the training exercise. 5 J.A. 25.

Curran also asserted a direct negligence claim against Axon. But the district court 3

dismissed that claim and Curran did not appeal that issue.

Curran sued in Virginia state court but Axon removed the case to the Eastern 4

District of Virginia pursuant to 28 U.S.C. §§ 1441(b) and 1446 based on diversity of citizenship under 28 U.S.C. § 1332.

While not relevant to his appeal, the district court also ordered discovery on 5

whether Nelson was an independent contractor or an employee of Axon. *7 USCA4 Appeal: 21-2151 Doc: 44 Filed: 01/09/2023 Pg: 7 of 12

Following discovery, Nelson and Axon moved for summary judgment. The district

court first granted Nelson’s motion. It determined that the only potentially viable theory

against Nelson was to hold him liable for the conduct of a third party—here the armed

trainee who fired the TASER. But in order to do that, Curran had to show that Nelson and

Curran had a special relationship under Virginia law.

To determine whether such a relationship existed, the district court surveyed

Virginia law. Citing Kellermann, it explained that “[c]lassic examples the Virginia

Supreme Court has recognized ‘include common carrier-passenger, business proprietor-

invitee, innkeeper-guest, and employer-employee with regard to the employer’s potential

duty of protecting or warning an employee.’” J.A. 1550. The court 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. And

having granted Nelson’s motion, the district court granted Axon’s motion as to Curran’s

vicarious liability claim. *8 USCA4 Appeal: 21-2151 Doc: 44 Filed: 01/09/2023 Pg: 8 of 12

This appealed followed. 6

III.

We first address Curran’s argument that the district court erred in deciding that no

special relationship existed and Nelson was not obligated to protect Curran from the actions

of the trainee who fired the taser. 7 Generally, under Virginia law, a person has no duty to

protect another from the conduct of third persons. Burdette v. Marks, 421 S.E.2d 419, 420

(Va. 1992). 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. 8 Id.

Curran insists the district court incorrectly determined that no special relationship

existed. In advancing this argument, he notes that Nelson, in setting up and running the

session, possessed the training location and retained control of the TASERs used in the

6 We have jurisdiction to hear this appeal under 28 U.S.C. § 1291. 7 Since federal jurisdiction here is based on diversity of citizenship, we apply the law of the pertinent state, which is Virginia. Horace Mann Ins. Co. v. Gen. Star Nat’l Ins. Co., 514 F.3d 327, 329 (4th Cir. 2008). In so doing, our task is to address the issues presented based on our interpretation of how Virginia courts would apply Virginia law. See AGI Assocs., LLC v. City of Hickory, N.C., 773 F.3d 576, 579 (4th Cir. 2014) (explaining that when there is no controlling precedent from the state supreme court on a state law issue, we must predict how that court would rule). 8 Whether a special relationship exists involves both a legal and factual determination in which factual findings will only be reversed if there is clear error while conclusions of law will be determined de novo. Universal Furniture Int’l, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 427 (4th Cir. 2010).

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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. According to Curran,

these facts indicate that Nelson had control over the training session and possessed superior

knowledge compared to the trainees. As a result, Curran argues, Nelson owed a duty to

Curran and the other trainees to provide reasonable protection from the dangers posed by

a trainee misfiring a TASER.

Despite these arguments, we affirm the district court’s decision. 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 then

applied that law to the evidence presented in this case. We find 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.

IV.

But our decision on Curran’s negligence based on a special relationship claim does

not end our inquiry. Curran also argues that the district court erred in determining that his

only viable theory against Nelson was liability based on a special relationship. He insists

that Nelson is also liable under general negligence principles based on Nelson’s set up, *10 USCA4 Appeal: 21-2151 Doc: 44 Filed: 01/09/2023 Pg: 10 of 12

implementation and execution of the training session. On this point, we agree. We see no

barrier under Virginia law to such a claim. 9

In Virginia, as in most states, the elements necessary to support a claim of

negligence are the same. “To constitute actionable negligence, a legal duty must exist, and

there must be a violation of that duty with resulting damage.” Burdette, 421 S.E.2d at 420.

And focusing on duty, general negligence requires that a person exercise due care to avoid

injuring others. RGR, LLC v. Settle, 764 S.E.2d 8, 16 (Va. 2014). This general duty extends

to those within reach of the defendant’s conduct. Id. at 17.

Under those principles, Curran asserted the following allegations:

15. At all times relevant hereto, Defendant Nelson was negligent, grossly negligent and willfully and wantonly negligent.

16. Among other things, Defendant Nelson failed to exercise reasonable care, failed to properly set up the training area, failed to have a designated safety officer present to assist with the scenario based training and ensure a safe training area, failed to properly supervise the scenario based training, failed to advise and require that participants not to discharge their Tasers in the “safe zone,” failed to take any action after observing several participants exit the “hot zone” and back up into the “safe zone” and discharge their Tasers there, and failed to provide a safe recovery area for the aggressors to remove their helmets and obtain fresh air after their training episode had concluded.

J.A. 19, ¶¶ 15–16. Whether Curran can prove these allegations of course remains to be

seen. But we see no reason why Virginia law prohibits a general negligence claim against

the instructor who set up, implemented and executed the TASER training session. Curran

alleged that Nelson set up the recovery area in close proximity to the area where TASERs

9 Whether a legal duty exists is a question of law that this court reviews de novo. Volpe v. City of Lexington, 708 S.E.2d 824, 827 (Va. 2011).

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were fired and failed to ensure that the participants firing the TASERs remained within the

box drill perimeter during each iteration. These allegations fit comfortably within general

negligence principles under Virginia law.

In resisting our conclusion, Nelson 10 makes three primary arguments. First, he

insists that even if Curran has a viable general negligence claim, he never pled one here. In

support of this position, Nelson points out that the paragraph of Curran’s complaint

immediately following the allegations quoted above alleges that a special relationship

existed between Nelson and Curran. For that reason, 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. Thus, we find that

Curran sufficiently pled a cause of action against Nelson for general negligence.

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. We disagree. 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 we see nothing in Virginia law indicating that to be

the case. See, e.g., Kellermann, 684 S.E.2d at 788 (noting the plaintiff claimed negligence

based on a special relationship in addition to a breach of numerous other duties). Thus,

For convenience, we identify Nelson as the party advancing these arguments. But 10

Axon joins in them so our use of Nelson includes Axon as well. *12 USCA4 Appeal: 21-2151 Doc: 44 Filed: 01/09/2023 Pg: 12 of 12

Curran’s negligence claim based on a special relationship did not foreclose his ability to

assert a general negligence claim.

Finally, Nelson argues that by failing to use protective eyewear in the recovery zone,

Curran assumed the risk of any errant TASER shot. Assumption of risk, an affirmative

defense, only comes into play once a plaintiff pleads a duty and breach. See Nelson v. Great

E. Resort Mgmt., Inc., 574 S.E.2d 277, 280 (Va. 2003). In the end, that may prove to be a

winning argument. But for our purposes today, it puts the cart before the horse. The district

court based its ruling on the motions for summary judgment on the lack of a legal duty

Nelson owed to Curran. 11 Nelson is certainly entitled to develop his assumption of the risk

defense. But it is not pertinent to our considerations of duty. 12

V.

In sum, we affirm the district court’s well-reasoned decision granting summary

judgment to Nelson and Axon on Curran’s special relationship claim. But for the reasons

set forth above, we vacate and remand the case to the district court for further proceedings

consistent with this opinion as to Curran’s general negligence claim.

AFFIRMED IN PART, VACATED IN PART AND REMANDED

11 Nor was assumption of risk fully briefed before the district court. 12 Axon also argues that it cannot be held vicariously liable because Nelson is not an employee, but an independent contractor. But the district court did not rule on that issue. So while Axon may advance that argument on remand, it is not before us now.