Curran v. Axon Enterprise, Inc. et al, No. 2:2019cv00617 - Document 151 (E.D. Va. 2024)
Court Description: OPINION AND ORDER denying 101 Motion for Summary Judgment filed by Defendant Axon Enterprise, Inc.; denying 103 Motion for Summary Judgment filed by Defendant Richard Nelson; and denying 105 Motion for Summary Judgment filed by Plaintiff Shawn Curran. Signed by Chief District Judge Mark S. Davis on 1/24/24. (jhie, )
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Curran v. Axon Enterprise, Inc. et al Doc. 151 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division SHAWN CURRAN, Plaintiff, Civil V. AXON ENTERPRISE, INC., et al No. 2:19cv617 # Defendants. OPINION AND This summary matter is before judgment Enterprise, Inc. ("Nelson"), ECF ("Plaintiff"), ECF the filed Court on three respectively ("Axon"), No. ECF 103, No. ORDER 105. No. and For cross-motions by 101, Defendants and reasons Axon Richard Nelson Shawn Curran Plaintiff the for set forth below. injured while each motion for summary judgment is DENIED. On December I. FACTUAL BACKGROUND^ A. Training and Injury 14, 2017, Plaintiff was participating in a training session to become a TASER® Conducted Energy Weapon relevant here, ("CEW") TASER instructor. CEWs are ECF designed at 6. As No. 102, for law enforcement is and are operated by deploying a non-lethal "probe" designed to cause ^ These undisputed facts are drawn from across the various summary judgment filings and the Fourth Circuit's earlier opinion in this case, ECF No. 81, and are presented as context for the analysis that follows. To the extent the Court's certain factual disputes, summary judgment stage. recitation of the facts includes a discussion of the Court does not resolve such disputes at the Dockets.Justia.com the neuromuscular the probe terms, Nos. 104-5 affirms to were charge or if sure // ECF Nos. the Beach Police time of the Defendant is No. 102, Instructor, teach the certified former in n at least were in current. before instant one lay ECF the Court TASER training deliver any electric deponent "not was quite completely deenergized.^ police to ECF with n TASER educate the ECF teacher" No. at position users to 1. the become with 106, the at See the CEW VBPD. the No. and 104-1. provides on proper usage. a TASER CEW Master session where A users At employed as ECF products Virginia 1. Plaintiff was Nelson, training 102, No. brand TASER Defendant 7. officer issue, coordinator taught TASER evidence the ("VBPD"). manufactures injury occurred.^ w a tactics training materials ECF the training session at Axon Put aggressor. 54-7. Department defensive a though at 53-5, Plaintiff of used training probes 52-1, an by design and did not tt current, the Most probes inert \\ of is a dart charged with electric 104-7. that course incapacitation Master Master instructors Plaintiff's Instructor Instructor themselves. is a teaches It Id. 2 In his deposition testimony. Plaintiff Shawn Curran was asked [s]o you aren't sure if the actual training probes used delivered electricity or not? and responded [y]eah, I'm not quite sure. I don't believe they did, ECF No. 52-1. but I'm not 100 percent. n ff ^ Nelson entered into a non-exclusive agreement with Axon titled "TASER Certified Instructor Independent Contractor Agreement, The agreement defines Nelson's relationship with Axon as "solely that of an independent contractor," though Plaintiff contests this characterization. ECF No. 102, at 4. 2 at The 4. included 24 The instructor other officers. TASER classroom course CEW instructor two days. and course No. the training, portion" of prepared by Axon. 102, course on at at On deployed. trainees and instructor could at not at one, PowerPoint activated training. and the >\ for classroom lengthy PowerPoint presentation explaining, and ran the instructed among other cartridges are Nelson also presented product warnings 8. administered a written certification, be components: modified test required for TASER to CEW both of which were written by Axon and by the master instructors. ECF No. 132, 2 . On the at Id. // main 2017, Nelson presented a is weapon 13, day things, the two scenario-based the TASER CEW, how participated 3. had trainees on the design of u Plaintiff December 9-10. This Id. 81, practical, began ECF which ECF No. instructor instruction The in day training two, the drill Performed 6. "practical that led inside a to training" day. Plaintiff's gymnasium, Nelson injury. the "box ECF drill // oversaw No. 102 training area is delineated by several wrestling mats vertically arranged to form a large square.** with a TASER box until he CEW, is waits ECF No. inside approached by 106, this a at 3. One wrestling second trainee, armed mat-constructed "aggressor" trainee who The parties appear to dispute whether Axon designed and taught Nelson the box drill, ECF No. 123, at 11, and whether that the TASER weapons were only supposed ECF No. 124, at 3. protective square. 3 to Nelson be told discharged the trainees within this initially hid outside the If Id. box. the armed determines that the approaching aggressor is a threat, trainee in discharges the TASER This Id. CEW probe. fully protects the trainee's complete facial protection, fellow role-playing safety goggles No. 124, at participants to box \\ individual drill. vehemently dispute action where drill didn't is aggressor, face. Because aggressor, Jesse by box a helmet a face the clad his shield helmet injury. Morgan, during to the wear tt that the that provides Plaintiff did not wear drill. bench wrestling by mat ECF area [scenarios]. training a 4 at completed an and at TASER a the safe No. the 124, live zone off at very to an // 12. least. U get a 4. CEW that Nelson behind participants multiple claims for helmet[s] ECF was, Id. as [their] for day, firing Plaintiff n up forming Nelson take bench set located safety glasses. an they bench could was Plaintiff 124-1. this this as a after t! designated others before though No. standing Nelson mats, breather whether and have Throughout the includes vertical was breather in between of is to avoid injury when hit day of ECF undisputed designated out get box Plaintiff \\ of vertically upright, who aggressor, helmet the the armed 11. the It the on the while wearing Outside and at a specialized body suit and helmet by the and CEW trainee trainees at the Nelson had backed role-playing had instructed trainees to limit After backing out TASER CEW close Nelson did not at of safe the inside some of the box, to to zone" the box. training advancing had after on an wearing armed the due 40^^^ in at 3. the participants fired the bench. extremely hot" advancing box before ECF No. 104, floor before safety a a at the ECF full body ECF No. No. 131, as the scenario. desire to ECF TASER cool Id. at injury is 10. the the off 124, while Plaintiff's at at 2. Id. at bench suit while When Id. took at his wearing backed Plaintiff sat out 10. helmet Retreating 4. his immediately after had throughout 9. aggressor. trainee CEW protective Plaintiff No. armed aggressor 104, resting on drill an of The TASER CEW probe 9. striking eye was body suit. aggressor. goggles. unfortunate in to firing role trainee. live-fire part the the Plaintiff participating During of f, performed day, injury occurred. of the from the downrange. ricocheted off the gym right eye — he was not wearing According to only injury eye Axon, occurred during two decades of TASER CEW training. at Id. 3 . the an action stop the drills that ranged outside the box. Plaintiff W the Plaintiff's to have ECF No. ever 104, 8 . II. On October 21, PROCEDURAL 2019, BACKGROXJND Plaintiff filed the instant suit against Defendants Axon and Nelson in the Virginia Beach Circuit 5 ECF Court. pursuant No. to 1, 28 subject matter U.S.C. § 1. U.S.C. §§ 1441 jurisdiction 1332(a), In controls. Axon at late Court motions (1) who and it is 2019 and early advisement whether independent special contractor Curran conduct thereafter summary a filed did Nelson, On of July 13, 71, motion negligence and on ruling 2021, and Two dismiss on remanded for the ECF summary Court partially months No. 9, 28 law filed (2) both on agent. or whether Nelson a and liability for 48, judgment, took discovery impose granted at 2. ECF No. 2023, Plaintiff's ECF later, the No. 76, negligence 6 Axon's Axon 49, the at Court motion claim granted claim as of for for ECF Axon's direct Plaintiff appealed. 9. Circuit ECF No. motion liability claim. remaining Fourth further proceedings. Nelson's granted Plaintiff's against Axon. January for case and could has Another judge of Defendant on Plaintiff's vicarious 15. to Court Nelson employee, Axon; Court 51. judgment, at the and this an Court Virginia limited between party. a motion ECF No. summary judgment No. third was that 29. over Defendant that 8, this jurisdiction, Axon 2020, ordering Nelson to The diversity ECF Nos. existed such case Id. 1446. presided of the undisputed after Defendant relationship Plaintiff the originally under and through respective motions to dismiss, this removed vacated against 81, at 3. the Court's Nelson and Upon After j udge. 2023, this remand, Axon additional filed remaining case claim a was reassigned discovery summary the place, on motion for summary judgment involving the alleged vicarious Axon for the negligence of Nelson, a took to judgment motion ECF No. later that December on 4, Plaintiff's liability of and Nelson filed 101, same undersigned day, ECF No. 103. Plaintiff filed a cross motion for summary judgment on the issue of Axon's vicarious liability. ECF No. now fully briefed and ripe for review. III. Rule 56(a) the movant \\ court shows shall Fed. law. alleged that Anderson in where, that a 330 Nos. are 116-132. REVIEW P. 56 (a) . between Lobby original). (4th Cir. mere parties motion A jury Dulaney v. 477 genuine reviewing reasonable tt The the Inc., \\ to any is entitled to judgment as a matter for there be no genuine after summary judgment there is no genuine dispute as supported Liberty nonmoving party. 323, dispute is that v. (emphases finds Civ. properly requirement exists R. factual otherwise OF ECF grant a motion for material fact and the movant of See motions of the Federal Rules of Civil Procedure provides that a district if STANDARD All 105. the 7 not of some defeat judgment; an the issue of material fact. U.S. 242, question as return Packaging 2012). will summary record could existence of a a Corp. 247-48 verdict of (1986) material whole, Am., tt a fact court for 673 the F.3d The initial burden on but party, once a movant summary judgment, allegations specific illustrating Catrett, motion more 477 for in of credibility 671 Anderson, genuine one Inc. V. (quoting the Va. Court issue for party a supporting Anderson, the sworn statements party Tao & Materials, to the 572 weigh summary U.S. When the rely or n of Inc., evidence judgment prevail Court as Corp., 477 district 756 at court 8 650, must 656 on the 330 or (2014) F. make evidence] matter F.3d of 307, 310 view (quoting is to so a the require one-sided McAirlaids, (4th In the issue whether law. 251-52) . must is the there determine disagreement [the a U.S. a Sys. phase, assessing whether sufficient a v. defeat must speculation. II forth Corp. successfully mere not at set (citations omitted). jury or whether must To Servs. must Celotex evidence. 2004) is and nonmoving of 249). trial, Kimberly-Clark determination, the Cotton, at presents to evidence determine whether there is a genuine Tolan V. U.S. submission the moving trial. (1986). Analytical (E.D. 477 evidence that 322-24 determinations // for allegations. required to trial. on instead exhibits issue scintilla v. but of judgment. a Although for 317, Inc, 2d 668, form genuine conclusory Integration, is the U.S. existence Court pleadings, summary than Supp. the a properly presents falls the nonmoving party may not rest upon the mere of facts summary judgment Cir. 2014) making evidence in its the light most favorable Off. Admin. of (cleaned up) When Court the with determine whether matter law. 374, Court 475 Defs. tt F.3d motion, Jacobs 568 (4th V. Cir. N.C. 2015) at 657). for summary 638 in judgment, (4th Cir. Court will deserves N.C. Dep't (quoting (4th Cir. factual the light the most of In and as Transp., Bacon 2007)). disputes judgment v. City so doing, any favorable (quoting Rossignol v. Id. // parties 2014) a 762 of the competing. to the party Voorhaar, 316 2003)). IV. The 562, Wildlife v. all opposing that motion. 523 the Cir. 633, inferences F.3d 516, F.3d 572 U.S. of of (4th resolve must rational 780 cross-motions either 392 Richmond, Cts., nonmoving party. consider each motion separately on its own merits to must F.3d the (quoting Tolan, faced of to DISCUSSION first then Axon's motion, address Nelson's summary judgment and finally Plaintiff's motion. A. Nelson's Motion for Summary Judgment Nelson against the summary him — negligence. risk during seeks of an eye active injury law judgment Nelson when he enforcement on Plaintiff's argues took that off contributorily negligent by removing his defense, against according him. ECF to No. Nelson, 103, bars at 1. 9 Plaintiff his exercise eye and claim assumed protection that he eye protection. Plaintiff's The sole Court negligence first was Either claim addresses Nelson's argument on assumption of risk and then turns to a person's voluntary assumption of the complete bar contributory negligence. 1. Under Virginia risk of injury Assumption of the Risk law, from a known danger operates as a u to recovery for a defendant's alleged negligence in causing that in^ury 473 Manchanda v. // (E.D. Va. 2015) Hays Worldwide, (quoting Baseball Club, Inc., (2003)) . To establish a injury. (1) (2) at fully 265 defendant appreciated that 59, a must The 473. caused activity. Va. 815, the focus the Id.; tt 819, see 232 what analysis not S.E.2d 803 is plaintiff reasonable person would have 473. // 574 assumed that is risk the (1977). subjective. known. the risk risk; F. alleged to Corp, v. in Lehmann, Virginia requiring Manchanda, and 3d inherent Under an F. an 217 law. inquiry not 142 of Supp. risk appreciated, // 259 plaintiff the 142 Slides fully the of Prof'l 246, the Manchanda, on 3d 465, William S.E.2d extent merely 806 Supp. what a Supp. 3d The defense of assumption of risk ordinarily presents jury question issue. n also Amusement standard the 64, and F. Prince demonstrate nature this injury. controlling into of 142 plaintiff voluntarily incurred that risk. have at Thurmond v. Va. the LLC, unless Thurmond, 265 reasonable minds Va. 574 at 64, 10 could S.E.2d at not differ 250. on a the Nelson argues and extent and therefore at of the understanding of the the of the I warnings: warnings that dangerous. that Plaintiff to wear the immediately at risk in that a probes Nelson negligent from Shawn gone that eye manner, outside the times about reminds the gear. further asserting injured. argues and and did the trainees the to gym saw Id. he execute in he zone and was that permitting box the the injury in the safe zone.^ would manage assumed entering was CEW risk the cause injury and that Nelson n his TASER anybody so-called safe Plaintiff Plaintiff's and numerous Indeed, 6. 104, acknowledged form it does nature ECF No. citing Curran] over and that law. by Release Plaintiff to the risks of eye argument of Instructor protective response. this a matter the TASER CEW training during Plaintiff testified before as appreciated where eye discharge close to the In risk we've Id. U fully injury [Plaintiff penetration into the it' s eye supports testimony. deposition product Plaintiff risk of assumed Nelson 10. that Court needed a that TASER thereby alert at 10. not assume training fire direction of the session TASER the CEW safe ^ Nelson supports this argument by citing the blurry video of the training session, which purports to demonstrate that Plaintiff participated in drills that ranged outside the box and sat on the safe zone bench while other drill sessions transpired nearby. However, the video, on its own, fails to establish that Plaintiff fully appreciated the risk of a probe bouncing into the safe zone, as it is unclear whether previously deployed probes had bounced into the safe zone, nor is it clear to what extent Plaintiff observed the nearby probe deployments while recuperating on the bench. See ECF No. 104-9A. 11 ECF No. 124, Plaintiff and zone. that safe a Morgan others could relies on sheriff and fellow to in]ury, Plaintiff 21. and zone. Morgan, at corroborate testified that take the their trainee U that on the day this of to will be this area, at 10 . it is you can take undisputed that aggressor to their take off he did not helmets in [Plaintiff full body extremely your effect. safe zone If you are at fails zone and breaks off. zone. the to and didn't Id. at conflicting carry his to Id. burden to assumed the record Court presents including have whether 12 the as the desired their the own argues risk of confirmation that affirmation that [safety Court glasses] finds demonstrate risk of on in the fact, Nelson's to made Plaintiff and extent of evidence, helmet the moderate in n 11. resting without his before to Nelson's have gear participants Therefore, 16. due removed judgment that Plaintiff material protective hot, during 124, Morgan] safe on safe be and in the Nelson No. the could Based the fully appreciate the nature injury while Jesse Plaintiff's [(the protective helmet)] helmets ECF temperatures. \\ the The logic of having a rest area was arguably apparent role-playing eye it in of this [(the bench behind a protective wrestling mat)]. stated off testimony statement said Nelson helmets deposition Nelson's Nelson insists an eye on Nelson as summary injury while designated rest several that genuine master area. issues The of instructor told Plaintiff, the \\ \\ bench take that area [their] safety Jesse Morgan, was goggles.® the ECF was contested affect whether extent of the safe w a helmet [s] Plaintiff zone, // or fellow trainee Chris Cook that off" No. aware zone of at the prevent Plaintiff fully risk of // instructor-designated eye safe could wear their have 4-11. While risk facts participants didn't and 124, where ft of eye to // Nelson injury summary judgment appreciated injury zone, the safe because they nature and the while which in insists seated is one in element the of assumption of the risk that Nelson must prove to prevail on this Burns defense. v. Washington Metro. Area Transit Auth., No. ® Chris Cook is a lieutenant with the Newport News Shipbuilding Security In Department and was a fellow trainee on the day of Plaintiff's injury, response to the deposition inquiry "Do you recall Master Instructor Nelson saying that the area outside of the mats was a safe zone?". Cook stated "I ECF No. 124, at 5. believe I heard him say that . . It is undisputed that Plaintiff voluntarily took his protective equipment off, so the issue before the Court is only whether Plaintiff fully appreciated the nature and extent of the risk of eye injury. The Virginia Supreme Court's holding in Amusement Slides, 217 Va. at 820, 232 S.E.2d at found 806, is instructive him slickness reasonable down on was nevertheless, it inattention was the men on could this slide. noticeable differ issue. Id. from as As [the to The Amusement the whether Slides court fully appreciated the nature and extent of the risk of going down the amusement park slide that injured him. The plaintiff there had repeatedly ridden a similar amusement slide, and "moments before he incurred his own injury, he witnessed ... a young girl being injured on the slide." at 819, 232 S.E.2d at 805. On these facts, the Virginia Supreme Court still rejected the defendant's contention that the plaintiff had assumed the risk of injury from the slide, finding that the plaintiff did not assume the risk of the slide employee's additional negligent act" of failing to slow that Court the plaintiff observed, "the slide's plaintiff's] was for the jury to decide a hazard assumed by this . casual glance, . . whether employee plaintiff under these circumstances." Id. So too here. It is for a jury to decide whether Nelson's tacit permission to trainees to range outside the box, endangering those in the instructor-designated safe zone, was a hazard assumed by Plaintiff. 13 l:12-cv-123, {emphasis (denying the \\ because more motion 2878250, see risks of is 2. Nelson negligent next as a (E.D. risk by that but diving based on argues that of law. defendant-movant failed to act as Kim, 119, 105 F. 124, 546 App'x S.E.2d 466, contributory negligence 125, 546 S.E.2d contributorily unless at 469 is [decedent] allegedly Nelson's assumption of minds was contributorily Contributory must the negligence, risk. is standard. a a defense On summary demonstrate circumstances. that 711 (2001); (4th Cir. 2004) . could an not 14 issue differ see also The Ponirakis, n Determining is Ponirakis // 707, carelessness. 711. negligent reasonable that the a reasonable person would have acted for his own safety under the Va. understood conditions Plaintiff "reasonable person" 262 decedent of Contributory Negligence based on an objective plaintiff 473 assumption Plaintiff's from assumption of \\ at DENIED. matter the on 2012) 3d negligence.") distinct legal concept judgment, 12, Supp. not in Defendants' July F. motion diving, of Va. 142 demonstrated judgment therefore *2 judgment scuba the summary at Manchanda, summary dangerous for risk also evidence appreciated made the added)/ general fully WL Defendant's risk the 2012 whether of on fact the v. Choi, Lampe v. essence of 262 at Va. a party for the issue. // Id. was ]ury Nelson that argues the Court should find by removing his negligence as a matter of law because Plaintiff, helmet moving acted (his response, his own the wore supposedly off their to as a on reasonable person would have own the and that safety get 104, because drill] the No. are safe sim the zone breather. Nelson affirmed in 16-17. suits extremely hot. a goggles at for ECF H that the No. safe zone 124, and \\ various participants to go without eye protection. Nelson to trainees have [that and n trainees w // drill live-fire insists that he acted reasonably for his established claims a his ECF circumstances helmets have act near In during had Plaintiff protection) safety. Plaintiff under Plaintiff eye failed to targets, for safety only contributory take at 16. did not permitted Id. at 11, 17 . Based minds could negligent zone. on the differ when he Viewing Plaintiff, competing a as to versions whether removed his the jury evidence could of while the were to sufficient relax, reasonably for a [and] reasonable would be safe to briefly remove After all, the take aggressors was most find the that in the safe favorable the to master "safety area is for [their] person reasonable contributorily sitting light instructor's assurances — including that [participants] facts. Plaintiff helmet in the to equipment conclude off that it their helmet while on the bench. were 15 clad in extremely hot protective suits and trying to avoid overheating by taking their helmets off to Additionally, \\ get the a location vertical wrestling mat believed that CEW's outside the Morgan's of the of and two were testimony to have Morgan [safety glasses] contributory and Nelson's told negligence is Plaintiff the safe therefore be No. zone. a they at for 3. this they Id. reserved by discharged 124, that 17. that strengthens further in n to ECF at shielded testified mats. and 124, was supposed not deposition No. bench officers protective Nelson ECF the vertical conclusion: have breather. didn't The issue the jury. summary judgment motion is DENIED. B. Axon'S Motion for Siimmary Judgment Following Axon's motion claim against the to previously dismiss, Axon is ECF No. held for Nelson's summary The judgment Court 102, on briefly ECF No. vicarious negligence. liable assigned at Axon actions out for argues and thus vicarious the ruling Plaintiff's liability 1. Plaintiff's sets 76, judge's sole granting remaining Nelson's that it should alleged cannot be awarded liability claim. applicable law be below Id. before addressing Axon's argument. Under imposes its acts Virginia tort an the doctrine of liability on an employer for employees, of law. i.e. , independent its servants, contractor. 16 /t but respondeat the not Sanchez superior negligent acts for v. the of negligent Medicorp Health 270 Sys. , Va. Restatement 299, 305, (Second) 618 of S.E.2d Torts § 331, 409 334 (2005); ("[T]he see employer also of an independent contractor is not liable for physical harm caused to another by servants. n an ) . act or omission given result without being method by which he attains Builders Inc., contrast, if direct the work, employee. Craig v. under the contract exerts details V. means the Whitaker, 387 the methods [has the 207 party by employer, Va. at 68, 531, his or 387 and an 675, work shall be, other the S.E.2d 19 S.E.2d the at 677 shall latter 762 the House (1990) . whom the to Colony 762 for as In is but do an (quoting (1942)). independent contractor look to whether a putative employer the] 616, 760, which an work. Va. MacCoy V. t9 is 526, controlled S.E.2d whether a person is or doing way only what the result Virginia courts control of 239 179 Va. determine \\ and former MacCoy, or employee, 68, prescribe not any result. 64, the u that Va. Doyle, To contractor "one who undertakes to produce in 239 being done may also the 8 An independent contractor is a of right not to control control 623, 151 of the S.E.2d the methods results. 422, u 429 or Wells (1966). 3 This Court's use of the phrase "employer of an independent contractor does not designate any employer-employee status, nor should it muddle the distinction between an employee and an independent contractor. The employer" of an independent contractor simply refers to the entity or person who contracts for the independent contractor's services. This language, "the employer of an independent contractor," is consistent with Virginia Johnson, // case law, 207 Va. 980, so the 983, Court 154 uses it S.E.2d 134, 17 here. 137 See Norfolk (1967). & W.R. Co. v. Accordingly the u the power of determining status, right [a] ctual and It Bradley, V. up) (emphasis 557, ascertaining control 569, parties 14 ... is employee is Atkinson v. could 216, also not 704, 708 parties call Holiday Inns, alleged the Co. v. rather is the (cleaned Zeigler, 177 Va. Importantly, law 216 Va. it 2015) depend in agent's Extended Care, (4th Cir. not Inc., test; Wynn's // (1941). does but it. 217 Texas the control is upon what 490, what it 492, the the actually 219 S.E.2d (1975) . Whether (2001) . Appx. see the of themselves 876 F. S.E.2d Murphy v. tt 619 added) ; relationship 874, in alleged employer to] to control which is determinative. Inc. IS . factor [the a person fact is independent contractor or an dependent and generally a question for a jury. Sachno, 261 A court decides not an differ. Va. 278, 284, 541 S.E.2d 902, 905 the question only when reasonable minds MacCoy, 239 Va. at 68, 387 S.E.2d at 761. 1. Nelson's Employment Status The Nelson thrust of Axon's was not Axon's contractor, and because independent fails as a argument. Agreement Axon tt Axon of with Nelson, not ECF points No. to rather liable Plaintiff's law. first is judgment but employee, contractor, matter summary argument was for vicarious 102, the at 1. an the is independent actions liability To Independent that support of an claim this Contractor noting that the agreement plainly states 18 that Nelson employee" simply was is of an a supported label. in payroll, was Resource Police, requests to that whether Id. Axon. being argues independent the // employed full-time had teach a course. there is a was employment No. at \\ the facts discretion to Id. 16. genuine Axon's should inferences do in Plaintiff's not lead to McDonald v. Training at written lengthy the 304 at result Among 8. PowerPoint the 299, controlled accomplish 123, Hampton on Virginia any material and thus submitted Natural of Axon's Plaintiff fact the to Axon's a as issue to of jury. ECF least of these Axon administer and Id. at PowerPoint grade Sch. 9. for As the conclusion. of fact argued of and Court Nurses, the trainees' means the single some the record and drawing all favor. question (1997). presentation, test. a a status clearly of from relationship Conversely, summary judgment employment S.E.2d far never decline [or] 17-19. Nelson's 486 be that, was West dispute employee, status After reviewing the reasonable the at agent contractor Nelson by an not stresses independent because and Nelson Axon 15. practice Nelson's 123, at contractor, for the Va. and training videos, 79, Axon the n 87, Axon methods certification. methods. jury. Plaintiff, means that rendering It 254 by finds to ECF No. provided the warnings, and Nelson was required to present the without modification an Axon-designed written 19 test and had according to to Axon's Axon stipulates Materials. Id. // light most required Axon testified at taught that set up the more. employee his own drill subcontract terminate 15 . at The the control to any the from, day just evidence the at u employees testified he is work to as at that I thought the for to methods" for instance through Axon's will and 20 the at to 13-14. from Axon, he may not party may and any find of that instructed Id. n received part either reason. simply at drill he but Nelson box Axon, stage. and \\ even by paid judgment "means drills a credibility of jury was I was else, any time reasonable Nelson Nelson he had been exclusively someone the and Nelson acknowledged directly training in static 11. the a with Training nonmovant. 123, by Axon the assess the terminate deviate not for over as No. Plaintiff, that Court does instructor. taught construe alteration, ECF agreement summary to in a previous training session. CEW Axon the sufficient without Axon's, TASER not agreement contradict must Plaintiff injured Nelson of tt agrees or Court to was by Axon employees What's the him. he \\ Nelson's 15. conduct, that ultimately he Nelson favorable to Indeed, 9. minimize since Moreover, at that dilute. diminish. that Id. standards. Id. this concludes that Nelson's time at 14- evidence that it is Axon exercised work as master reservation of the right prohibition on Nelson's subcontracting any aspect at 567, to 14 S.E.2d at 708 terminate the relationship); a 108, could not S.E. 186 boy, subcontract at newspaper route). Nelson A was an Texas services Co. , was 177 Va. will an could not reasonable of that employee to in others, deviate jury Co., Va. the plaintiff, because he was subject to the prescribed therefore and 166 part from could Axon's, without emp1oyer-emp1oyee an (holding work employee at Times-Dispatch Pub. (1936) his and will. See suggested 183, delivery discharge that contracted-for see also Hann v. 184 newspaper the work.^ (finding that the right of either party liability incurring 102, of thus conclude Axon's motion for summary judgment on this issue is DENIED. 2. Independent Contractor Exception Even if contractor be as elsewhere. liable Axon due found of to As is stated that for stresses the that Nelson summary exception for the above, the harm was an to the acts of general rule to rule "in Virginia, another not of independent an an independent caused independent judgment would still default employer of physical that law, an non-liability contractor. not Court a matter appropriate employer ^ the contractor by an act as is or it did not control, nor could it, any portion of the ECF No. 132, Day 2 practical training during which Curran was injured. at 3 . But Axon fails to adduce any case law suggesting that the Court should discount a two-day Axon to McDonald, the control training find 254 that Va. course. the at 87, Axon And evidence 486 exercised there are does not S.E.2d at 304. 21 over Nelson enough admit of on day one of only indicia of control by but one conclusion." omission V . of the Johnson, 207 independent then harm an to others employer hazardous 154 v. be Id. Norfolk // S.E.2d that to precautions . the 134, Sc W.R. 137 . . taken W.R. at 207 Va. 416 independent as harm subject to failure of others liability the for end do . . work . to 107 that see all injurious reasonable be (citing Restatement, who which the employer exercise may also Norfolk & one a caused employs peculiar precautions harm an inherently that involving 483 when persons see also 479, likely that added)); 138 138; an third // independent applicable of of taken. S.E.2d unless special bodily is at if the risk are the work S.E.2d at provides unless contractor such precautions.") 154 to necessarily to 742, arise. the for Co. (1967). peculiar S.E.2d it is (emphasis ff which contractor 736 exception may 986, (1934) 154 [(where)] to injury. recognize 986, a precautions liable do [es] protected against § special 200 Va. others [are] create held at Rose, character Co., will contractor consequences bodily servants. 983, work can {concluding independent Torts his unless actions. Ritter Corp. (1959) 980, contractor's contractor's T.E. Va. or one exception to this general rule provides that However, bodily contractor to reasonable are an should risk of taken, is them care by to the take 10 See also Kinsey v. Spann, 139 N.C. App. 370, 374, 533 S.E.2d 487, 491 (2000) (explaining that the exception applies when an independent contractor undertakes "inherently dangerous activities," defined as 10 22 In a Supreme seminal Court too 154 at argument that the work hose, in of S.E.2d Supreme at Court the a train In found the tracks T.E. Virginia Supreme where the at in specialized that the a are natural steam the when steam course risk Id. tf Ritter, applicable the [while] \\ peculiar taken. T.E. 987, rejected transmission of not. in Va. be should apply to case involving exception 200 Va. also work special at of 988, Virginia the danger warning oncoming at 107 743, applied had the S.E.2d 156 of Va. canal shoring 497, 515, of the 484. in Bowers, banks, the 159 The thus unstable activities that carry with them certain attendant risks, but whose "can be eliminated by taking certain special precautions."). risks 11 Martinsville, // at exception destabilized precaution trains 196, 202 V. the not S.E. banks. Bowers a Virginia contractor's movement of heavy equipment Court construction requiring . does contrast, required Ritter, Court that special precautions 140. hazard. . condition posed by an independent across . 207 exception of the should Co., through context and ordinary mode bodily harm unless 154 W.R. Supreme steam is dangerous create things, hot exception, exception Sc Virginia transmitting normal the special precautions explaining its the Norfolk The 139. uncontrolled steam in that broadly. the of addressing cautioned interpreted S.E.2d case (1931) .li The Roanoke Nininqer, 83 Circuit Va. Cir. Court's 280, 281, application of 2011 23 Va. Cir. this exception in Harman v. LEXIS 262, at *3 (2011) is Although law, the the "special application of jury to consider circumstances S.E.2d precautions" at of To case. that harm. Norfolk n After that this Axon has As as genuine issues whether the most at favorable special be App. at 376, at 988, argues matter of law. precautions a exception summary S.E.2d at prevent this No. the exception the the 154 S.E.2d at also instructive. water are 102, Court The line Indeed, Harman in the & TASER CEW court middle found of a finds burden on exception is at 19. But from deciding to the TASER evidence in the light reasonable Norfolk 140. applies applicable taken. 140. 533 bodily Court judgment that ECF Construing Plaintiff, 154 arguments, Axon fact "peculiar risk of jury could because W.R. Co., trainees find TASER a "peculiar risk of bodily harm to others 988, a 139 N.C. noted. issue. precautions installing Va. parties' to precautions training poses and requisite 207 material to the particular conditions its a of for carry special training special the failed issue. the Co., reviewing inapplicable CEW & W.R. must a jury may be required to consider end. whether an activity poses a matter of left Kinsey, //12 found as often exception in light of each 492. this may be n 207 use the CEW unless Va. at a device that digging a hole and well-traveled highway is an inherently dangerous activity and requires special precautions to be taken Id. for the protection of the public. 12 Other courts have explained that the special precautions exception may apply when measures are taken to mitigate the risks of an "inherently dangerous" activity; whether an activity is "inherently dangerous" is often an issue for a jury. See Amtrak v. Rountree Transp. & Rigging, 286 F.3d 1233, 1249 (llth Cir. 2002). 24 designed to discharging have blood Axon's small dart vessels, serious risks. points 106, wear themselves finding exposed the cause that TASER penetration internal organs, full-body suits with face This suit shields to is designed to the brunt of the TASER. the plaintiff, in Peters dangerous. 753, 754, 155 reasonably W Virginia in law Virginia relieve for 868 Nelson Cotton was Nelson's and to himself at *10 (2021) elsewhere use . of Relatedly, to do Axon to 107 Va. one who dangerous 25 that it jury is engages N.C. could involving a under independent an instrument if the 199 liability Perwaiz, (noting a work North inherently Mills, as responsibility, 12. electricity case negligence that a that Woollen hired exposing tt & (1930). See DuPuy-German v. 6550405, contractor 867, that issue Carolina instrument, contractor. 2021 WL S.E. find dangerous v. at the made at Id. tt exception applicable when an shocked work other of the danger of construction to role Carolina Supreme Court emphasized that the injury among // the these probes. wire probes 6. special precautions electrical \\ by role-playing a playing handle the conductivity of In enforcement at states participants robust from may at law probes [(and)] training to Warning which ECF No. aggressor must \\ Product arteries, Moreover, protect deenergized sharp. aggressor. threats incapacitate Cir. 358, "well an 363, settled independent cannot independent contractor fails to exercise reasonable juror, care.") the hazards CEW training may pose a Finally, Ritter, apply the when against Here, eye as special noted demonstrating the than activity the Axon was are Ritter, motion. at the PowerPoint aware of here, Id. sum, a reasonable training poses a peculiar requires special TASER In role-playing line of judgment as a at 741, aggressors fire. Axon burden on a eye therefore this of issue. judgment is DENIED. 26 find full-body protection and Court evidence look Axon wear no to n risk of further find that 483. bodily has 483. discharging a probe from could of Supreme ample need by at against and recognized the prepared jury \\ to persons required to counsels was T,E. likely S.E.2d Virginia S.E.2d at risk and that factfinder 107 precautions all a TASER in third 107 of // more protect were there mind noted is 742, the dangerousness CEW. the at evidence presentation the Va. employer knew issue, to training that Court exception 200 Just Ritter that the associated with Supreme required TASER CEW T.E. in to peculiar risk of bodily harm. additional Axon's risks precautions T.E. protection, and Virginia precautions observers of granting >\ the injury. Accordingly, due not its harm that to TASER others protective for anyone CEW that suit for in the carried its summary motion for summary C. Plaintiff's Motion for Summary Judgment Plaintiff that the apply end, argues in above-discussed here as a Plaintiff matter necessarily applies negligence. 'special equipment No. by itself, the most the TASER There CEW Axon's Axon inherent the to Court the 105, is at To 1. found liable should to that be an exception // for Nelson's that Plaintiff sense safety warnings, the stresses dangers protocols, that the all Axon. \\ and fact potential // Id. summary judgment. nonmovant. measures, and safety ' special precautions. or construes conflates hazards at Court // an does 7. Plaintiff evidence The that / in is the concludes now light that failed to carry his burden on summary judgment for application case. common cross-motion for favorable Plaintiff has Axon judgment exception precautions give rise to the exception. so movant, holds with 6. involves In this special contends suggests at No. Nelson themselves evidence of 122, activity not, are summary at 2. Axon precautions' [(incorrectly)] ECF 106, response. if the and ECF No. ECF that for precautions" 13 law. maintains contractor. cross-motion "special of independent In his is of the w special a genuine training poses issue a precautions of material peculiar 13 risk exception fact of as to bodily to this whether harm to Nelson's commonwhile Plaintiff argues in other filings that Axon was Plaintiff concedes that whether Axon and Nelson law employer/principal, stood in a common-law employer/employee relationship is here a question of ECF No. 106, at 2. fact for the jury. 27 others W.R. unless ft Co., 207 evidence did not "special precautions" for Va. a pose evidence the the equipment required Plaintiff's at in Axon's Virginia it is clear because a hazardous use U sawmill to for that is the is the make an box example, video clad in inside established by only protective participants was eye of Additionally, protection. eye injury known to have ECF No. 104, TASER training. considered judgment owner training were deenergized and had their only in De is not a to fire liable the when was he context apply of other the exception, appropriate Jarnette, (declining started CEW enough drill unfold the and most v. is observers, court declined to (1935) that TASER For and mats, training Epperson 415 on this 489, 164 Va. 482, apply the exception not had so inherently surrendered its to another). Furthermore, use reflects observers summary e. g. , 412, that the drill perimeter was evidence that See, S.E. find Norfolk & There 140. risk. two-decades cases where record. 180 for injury this at peculiar wrestling shortened eye When 8. to The TASER CEW probes points occurred jury Court Indeed, common protection. sharp S.E.2d implemented. casually watched the an ordinary gym. up 154 requisite clothing, standing 988, reasonable before civilian at are of a precaution" to full-body as a the extent protective matter of law, 28 that Plaintiff suit the argues constitutes Court a disagrees. that the special ECF No. 106, at burden body Plaintiff 12. on this apparently a suits in routine warn Ritter, Va. unsuspecting 200 Cir. Va. at at 281, and installed 743, 2011 highway, a protection of the of Bowers. 156 Cir. an at summary the TASER judgment use CEW designed of at 484; see LEXIS 262, at the protect And the 515, banks 159 the at T.E. Harman, (finding a 83 the well-traveled precautions during S.E. of use of precaution of *3 the measure danger. also is contractor dug a hole middle special full- training to impending independent in 14 infirm canal Va. of of S.E.2d line public). the shoring type requiring a special his Ritter, measure 107 where plainly not T.E parties Va. water thereby carry not an exceptional precautionary third exception applicable in this safety role-playing aggressor, to to Unlike issue. protective fails protective same kind bridge The 202. for the suits is or degree as construction in Court therefore DENIES Plaintiff's motion for summary judgment. V. For judgment 14 the reasons motions Plaintiff explained filed in not in detail respectively Norfolk appear & W.R. to Co. address by herein, Axon, that 29 the the ECF summary No. 101, Virginia Supreme Court's injury there "resulted from negligence in the manner of doing the work and not from the nature of the work itself, the special precautions exception was less likely to 207 Va. at 988, 154 S.E.2d at 140. apply, Similarly, a jury could reasonably conclude that Plaintiff's injury here resulted from Nelson's negligent oversight of the training drill, not from the inherently dangerous nature of the training itself. observation does CONCLUSION because the Nelson, due to ECF No. the 103, and Plaintiff, existence of genuine ECF No. 105, disputes are of each DENIED material facts directly relevant to the issues raised in such motions. The Order to IT Clerk all IS is REQUESTED Counsel SO of to send a copy of this Opinion and Record. ORDERED. /s/ Mark CHIEF Norfolk, January Virginia , 2024 30 UNITED S. Davis STATES DISTRICT JUDGE
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