As apparent from Heston, the legal dilemma from a products liability perspective is different than the law enforcement liability under the Constitution.  The jeopardy that a manufacturer may face for failing to warn the end users of dangers associated with their product can lead to awards against that manufacturer including punitive damage awards.  As anyone knows some of these cases reach such ridiculous points that manufacturers begin issuing far-reaching warnings that should be obvious to anyone.  Imagine, McDonalds, as a distributor of coffee, following a lawsuit, placed a warning on their cups indicating that the coffee was dangerous because it was hot in order to avoid future cases where a customer might bring a lawsuit after they were burned by spilled coffee.   In many cases, these warnings are not given based on a belief that the actual danger will occur, but instead to avoid the costs of litigating future claims.

In cases where it is shown that the end user was aware of the danger with the product, the manufacturer is less likely to have any liability.  Torres v. City of Madera et. al. provides an example involving TASER™.i  In Torres, Officer Noriega of the City of Madera Police Department shot and killed Torres who was handcuffed in the backseat of her police vehicle.  The shooting occurred when Officer Noriega reached to deploy her TASER™ ECD but accidentally grabbed her firearm instead.  At the time of this event, City of Madera officers were carrying their TASER™ ECDs on the strong side.ii  Torres’s family and the City of Madera sued TASER™ International in products liability.  The allegation by the City of Madera was that TASER™ International had failed to warn the police department of the possibility of accidentally deploying a firearm when the TASER™ ECD is carried in the strong-side carry position, notwithstanding prior accidental shootings in Sacramento, California and Rochester Minnesota.

The court outlined the claim as follows:

“In 2002, Torres’ parents brought suit in federal court under 42 U.S.C. § 1983 against Officer Noriega and the City of Madera for the death of Torres. Later, the City and Noriega brought suit, essentially for indemnification, against Defendant in a separate state court proceeding. Defendant [TASER™ International] removed to this Court. In their suit against Defendant [TASER™ International], Plaintiffs [City of Madera and Officer Noriega] allege strict products liability for defective design and failure to warn, negligent design of the M26 and accessories, negligent warning/training, breach of implied and express warranties, equitable indemnification, and contribution. Plaintiffs [City of Madera and Officer Noriega] pray for damages and costs, a declaration of the proportionate negligence/fault of Defendant which proximately caused or contributed to Plaintiffs’ loss, damage or injury and a corresponding order that Defendant be required to reimburse Plaintiffs [City of Madera and Officer Noriega]  in that proportionate amount for any judgment for which Plaintiffs [City of Madera and Officer Noriega]  are found liable to Torres in the underlying lawsuit, and, if Plaintiffs are held liable to Torres in the underlying action, judgment in the same amount together with attorney’s fees, investigative expenses and courts costs according to proof, be rendered against Defendant. Defendant now moves for summary judgment on all claims.”
In rejecting the claim against TASER™ International, the court relied on the fact that Officer Noriega and the department, through its supervisors, were aware of the danger of accidentally drawing a firearm when intending to deploy a TASER™ ECD.  The court asserted:

“Prior to the incident with Everardo Torres, Officer Noriega was involved in another incident in which she had confused her M26 and her Glock service weapon; that incident occurred in the field, when she pulled her gun instead of her TASER™ [sic]. The prior incident in which Noriega confused her TASER™ and her Glock happened in a cold month near the time Plaintiffs first got the M26’s.  After Noriega had mistakenly drawn her gun instead of her M26, she told her sergeant (Sergeant Lawson) as well as the officer who was on call with her, that she had done so.  After Noriega told Sergeant Lawson about the prior incident in which she had confused her gun for her TASER™, she never received any additional training in the use of her M26. Sergeant Lawson, however, did instruct Noriega that she needed to practice more. Lawson testified that he told Noriega to practice drawing her Glock and M26 “so that she could become comfortable with them and wouldn’t have any confusion.”iii

The court also noted that TASER™ International had issued a training bulletin in April of 2001, approximately a year and a half before the October of 2002 shooting of Torres warning of the issues associated with a strong-side carry:

“TRAINING ISSUE: HOLSTER THE ADVANCED TASER™ IN A CROSS-DRAW: To eliminate any risk of confusion between lethal and less-lethal force, we strongly advocate carrying lethal force on your strong-hand side and all less-lethals on your weak hand side in cross-draw to prevent any muscle memory confusion from a firearm to a less-lethal. Chief Instructor Hans Marrero requests keeping less-lethals on one side (the left for a right-hander) but still using the strong-arm with gross motor skill indifference for shooting. If agencies are using right-handed holsters they can be easily moved to the cross-draw without the need for a new holster. More on this topic on our website.”iv

In conclusion, the court held:

Defendants [TASER™ International] have now moved for summary judgment on the claims by Plaintiffs [City of Madera and Officer Noriega] which serve as the basis for equitable indemnity: strict products liability, breach of warranties, and negligence.

With respect to strict products liability under design defect theory, the evidence indicates that the M26 was not “used” during the shooting of Torres. Because use is a requirement under the risk/benefit design defect theory, summary judgment in favor of Defendant is appropriate. Similarly, the TASER™ thigh holster was not used in the shooting. Moreover, the defect identified by Plaintiffs appears to be based on a faulty premise and Plaintiffs have not shown that the holster was anything but an insubstantial or negligible factor in the shooting of Torres. Accordingly, summary judgment is appropriate on these claims.

With respect to the failure to warn, the evidence indicates that Plaintiffs were aware of the possibility of weapons confusion, especially Noriega’s own tendency in light of her prior incident which she disclosed to Sgt. Lawson.

oreover, assuming that Plaintiffs’s allegations that the M26 is defectively similar to a handgun in functionality, design, and muscle memory, then the possibility of weapons confusion is obvious, especially when the M26 is worn close to a firearm. Under these circumstances, there is no duty to warn. The same is also true of the holster. With respect to “training,” training is a service and thus, not subject to strict products liability. With respect to training materials, the evidence suggests that the materials were used incidentally to the provision of training, a service. Moreover, Plaintiffs have failed to show how the training materials are sufficiently like aeronautical charts such that the materials could be considered products. Rather, the evidence suggests that they are more comparable to printed works, which are not subject to strict products liability theories. Accordingly, summary judgment is appropriate on these claims.

With respect to Plaintiffs’ breach of warranty claims, privity is a requirement for both express and implied warranties in California. The evidence shows that ALD, not Defendant, sold the M26’s and holsters to Plaintiffs. Plaintiffs have not shown sufficient conduct under U.S. Roofing to establish privity, nor have they presented sufficient evidence to establish agency. Because Plaintiffs have failed to show that they are in privity with Defendant, summary judgment is appropriate as to these claims.

With respect to Plaintiffs’ negligence claims, Plaintiffs’ negligent warning claim is not persuasive because, as discussed under strict liability, there is no duty to warn of obvious, readily recognizable risks, or risks that a person is already aware.  The evidence shows that the risk of weapons confusion was already known to Plaintiffs and/or readily recognizable or obvious. There is thus, no duty to warn. Plaintiffs’s negligent training/training materials claim is essentially a variation on the failure to warn claim. Because there was no duty to warn under the facts of this case, there is no actionable negligence under Plaintiffs’s negligent training claims. With respect to negligent design of the M26 and the holster, Plaintiffs have made only general and conclusory arguments. Noriega’s testimony is only general and there is never an explanation or a link between the conduct of Defendant/negligent design of the M26 and holster and the shooting. In other words, Plaintiffs have not presented specific evidence that shows how the conduct of Defendant/negligent design of the M26 and holster was actually a substantial factor in this shooting by Noriega. Accordingly, summary judgment is appropriate as to these claims.

Finally, in order for Plaintiffs to be entitled to equitable indemnification, there must be a cause of action that the Torres’s would have been successful against Defendant. Summary judgment is appropriate as to the only causes of action relied on by Plaintiffs as the basis for indemnity (strict products liability, negligence, and breach of warranty). Because there appears to be no identifiable theory that the Torres-plaintiffs could recover as to Defendant, summary judgment is appropriate.

Accordingly, IT IS HEREBY ORDERED that Defendant TASER™ International’s motions for summary judgment are GRANTED.”v (emphasis added)

One thing is clear from the Torres case, where the manufacturer has given notice or the end use is on notice of dangers related to the product, the manufacturer of the product will not face liability for a failure to warn.  The opposite is also true; a manufacturer will have liability in cases where they fail to warn the end user of potential dangers.

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i  Torres v. City of Madera, 2005 U.S. Dist. LEXIS 34672 (E. Dist Cal. 2005).

ii Id.

iii Id.

iv Id.

v Id.


Checklist for TASER®
laminated 8 1/2 x 11, 2 sided

TRC487: Taser (& ECD’s) Legal Update & Best Practices
CD of recorded Webinar, Instructor’s PowerPoint® and TASER® Legal Update & Best Practices Manual (Electronic copy).

TRC486: Excited Dilirium Legal Update & Best Practices
CD of recorded Webinar, Instructor’s PowerPoint® and Excited Dilirium Legal Update & Best Practices Manual (Electronic & Print copy)

Critical Task Quick-Reference Legal Guide for Law Enforcement Officers & Supervisors

TRC490: Safe Storage of Firearms Legal Update & Best Practices
CD of recorded Webinar, Instructor’s PowerPoint®

TRC491: Use of Force, Legal Update & Best Practices
CD of recorded Webinar, Instructor’s PowerPoint®, Use of Force manual, 2nd ed. (Print copy)

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