Fontenot Ex Rel. Estate of Turner v. Taser International, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1617

TAMMY LOU FONTENOT, as Administratrix of the Estate of
Darryl Wayne Turner,

Plaintiff - Appellee,

and

DEVOID TURNER,

Plaintiff,

v.

TASER INTERNATIONAL, INC.,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:10-cv-00125-RJC-DCK)

Argued: September 19, 2013 Decided: November 22, 2013

Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit
Judges.

Affirmed in part, vacated in part, and remanded by published
opinion. Judge Keenan wrote the majority opinion, in which
Judge Motz joined. Chief Judge Traxler wrote a dissenting
opinion.
ARGUED: Pamela B. Petersen, TASER INTERNATIONAL, INC.,
Scottsdale, Arizona, for Appellant. John Christopher Burton,
LAW OFFICES OF JOHN BURTON, Pasadena, California, for Appellee.
ON BRIEF: John R. Maley, BARNES & THORNBURG LLP, Indianapolis,
Indiana; Scott D. MacLatchie, WOMBLE CARLYLE SANDRIDGE & RICE,
Charlotte, North Carolina, for Appellant. Charles A. Everage,
EVERAGE LAW FIRM, PLLC, Charlotte, North Carolina; Peter T.
Cathcart, John F. Baker, MAGAÑA, CATHCART & McCARTHY, Los
Angeles, California; Kenneth L. Harris, KEN HARRIS & ASSOCIATES,
PA, Charlotte, North Carolina; Peter M. Williamson, WILLIAMSON
LAW FIRM, Woodland Hills, California, for Appellee.

2
BARBARA MILANO KEENAN, Circuit Judge:

Darryl Wayne Turner, age seventeen, died from cardiac

arrest after a confrontation with police in which he was struck

in the chest by electrical current emitted from a device

commonly known as a “taser,” manufactured by TASER

International, Inc. (TI). The police officer who discharged the

taser aimed the device at Turner’s chest based on training

provided by the Charlotte Mecklenburg Police Department (CMPD or

the department), which used instructional materials supplied by

TI.

The particular taser employed in the incident, the Model

X26 device (X26 taser), had been the subject of several academic

studies. TI knew about these studies, in which researchers had

concluded that the device posed a risk of ventricular

fibrillation, a cause of cardiac arrest, especially when the

electrical current from the taser was applied near the subject’s

heart. Nevertheless, TI failed to warn taser users to avoid

deploying the taser’s electrical current in proximity to the

heart.

Tammy Lou Fontenot, Turner’s mother and the administrator

of his estate, initiated a product liability action against TI

in a North Carolina state court. In the complaint, Fontenot

alleged that TI negligently failed to warn users of the risk

posed by the X26 taser and, in particular, to warn them to avoid

3
applying the taser’s electrical current near a subject’s heart.

She further alleged that TI’s negligence was the proximate cause

of Turner’s death. A jury found in Fontenot’s favor, awarding

her $10 million in compensatory damages, which amount the

district court remitted to about $6.15 million before deducting

certain offset amounts received by Fontenot, resulting in a

final award of about $5.5 million.

In this appeal, TI raises several arguments, including that

the district court erred in barring from the jury’s

consideration TI’s defense that Turner was contributorily

negligent by engaging in the dispute and in refusing to comply

with the police officer’s directives. TI also contends that the

damages award, even as remitted, is not supported by the

evidence. Upon our review, we hold that the district court did

not err in entering judgment in favor of Fontenot on the

liability aspect of the negligence claim in accordance with the

jury’s verdict. However, we also hold that the damages award is

not supported by the evidence, and we remand the matter to the

district court for a new trial limited to that issue.

Accordingly, we affirm the district court’s judgment in part,

vacate it in part, and remand the matter for further proceedings

with respect to damages.

4
 I.

A.

Turner was an employee of a Food Lion supermarket located

in Charlotte, North Carolina, where he had worked for about a

year. On March 20, 2008, Turner was confronted by a Food Lion

loss prevention investigator after Mary Blackert, one of

Turner’s supervisors, “reported” Turner for eating a convenience

food item and drinking a bottle of water that he had obtained

from the store. Turner admitted that he had consumed those

items without paying for them, and he was allowed to return to

work while his supervisors discussed the matter.

After eating lunch at his home, Turner returned to the

supermarket dressed in a manner that did not comply with the

store’s employee dress code. Blackert told Turner to “clock out

and to get himself together.” Turner refused, using profanity

addressed to Blackert.

Blackert contacted the store manager, who instructed

Blackert to terminate Turner’s employment for insubordination.

When Blackert informed Turner that he was fired, Turner refused

to leave the store and continued arguing with her. Thereafter,

Blackert placed a telephone call to a 911 operator and requested

police assistance in removing Turner from the supermarket.

During the entire incident, Turner acted in an aggressive manner

and argued loudly with Blackert and the store manager. Turner

5
also threw an umbrella and pushed a store display off a counter,

but he did not make physical contact with anyone during the

dispute.

CMPD Officer Jerry Dawson arrived at the Food Lion in

response to Blackert’s request for assistance. Upon entering

the store, Officer Dawson heard yelling and cursing. He removed

his X26 taser from its holster while approaching Turner, who

continued to argue with his supervisors. Officer Dawson

instructed Turner to “calm down,” but Turner continued behaving

in an aggressive manner. Officer Dawson aimed the taser’s red

“laser dot” at Turner’s chest, the location where Officer Dawson

had been trained to aim. When Turner stepped toward Officer

Dawson, he deployed the taser on Turner.

The X26 taser, which is shaped like a pistol, discharges

two darts, one above the other, from a cartridge attached to the

front of the device when its trigger is pulled. 1 One dart struck

Turner in the center of his chest, very close to his heart, and

the other dart struck him near his ribcage. Because the taser

is designed to incapacitate an individual by causing that

person’s muscles to “lock up,” Officer Dawson expected Turner to

1
Each of the taser’s darts must make contact with the
target in order to form an electric circuit that will deliver an
electrical current designed to incapacitate the target. The
taser automatically delivers a five-second electrical current
when the trigger is pulled, and delivery of the current may be
extended by holding or repeatedly pulling the trigger.

6
collapse, but Turner stayed on his feet and walked toward the

store’s exit while the taser’s darts continued delivering an

electrical current. Officer Dawson followed Turner as he walked

with the taser’s darts still attached to his body, instructing

Turner to “get down.” During this period, Officer Dawson held

down the taser’s trigger, causing the device to continue

emitting an electrical current, until Turner eventually

collapsed 37 seconds after the device initially was activated.

Officer Dawson discharged his taser on Turner for an additional

five seconds because Turner did not comply with commands to put

his hands behind his back after he had fallen to the ground.

When firefighters and paramedics arrived at the

supermarket, they observed that Turner was experiencing

ventricular fibrillation and was unresponsive. 2 The rescue team

performed CPR and defibrillation on Turner but, despite these

efforts, Turner was pronounced dead after being taken to a

hospital. 3

2
“Ventricular fibrillation is the most serious cardiac
rhythm disturbance,” and occurs when the “heart’s electrical
activity becomes disordered.” American Heart Association,
Ventricular Fibrillation (Sept. 5, 2012), http://www.heart.org/
HEARTORG/Conditions/Arrhythmia/AboutArrhythmia/Ventricular-
Fibrillation_UCM_324063_Article.jsp. Ventricular fibrillation
causes collapse and cardiac arrest. Id.
3
The CMPD investigated the incident and found that Officer
Dawson’s “prolonged use of the [taser] was not” in accordance
(Continued)
7
 B.

TI primarily markets and sells its conducted electrical

weapons products, including the X26 taser, to law enforcement

agencies. One such law-enforcement purchaser of the X26 taser

was the CMPD, which purchased X26 tasers for use by all the

officers in the department.

From the introduction of the X26 taser in 2003, through the

events at issue in this case, TI instructed taser users that the

electrical current emitted by the X26 taser had no effect on

heart rhythm when tested on animals. Captain Michael Campagna,

who administered the CMPD’s taser training program, received

training from TI that use of the taser could not cause

fibrillation of the human heart or cardiac arrest. TI also

provided Captain Campagna and other users an “instructor’s note”

stating that even when “[t]he X26 was applied across the chest

with the two probes in a ‘worst case’ scenario (the points most

likely to stimulate the heart) . . . the heart beat continues

normally. . . . It is important to note that the heart rate

does not change at all.”

Captain Campagna used this information and other material

provided by TI to train CMPD officers, including Officer Dawson,

with CMPD procedures. Officer Dawson was suspended from duty
for five days and was required to undertake additional training.

8
on use of the X26 taser. Officer Dawson recalled that the

training materials provided by TI stated that application of the

X26 taser had no effect on a subject’s heart rates.

TI also provided Captain Campagna other training materials,

which instructed users of the X26 taser to aim for the “center

of mass,” and used visual depictions of the taser’s darts being

fired at the middle of a person’s chest. Based on this

information, Officer Dawson and other CMPD officers were trained

to aim the taser at a suspect’s chest. Officer Dawson testified

that, therefore, he had no reason to think that the act of

firing the X26 taser at Turner’s chest was more dangerous than

aiming the device elsewhere, or that using the device in that

manner could cause significant cardiac injury or death. 4

As relevant to this case, the primary warning that TI

provided to users of the X26 taser was included as part of the

“TASER International Training Bulletin 12.0-04,” which TI issued

in June 2005. In that document, TI cautioned that “[r]epeated,

prolonged, and/or continuous exposure(s) to the TASER electrical

discharge may cause strong muscle contractions that may impair

4
Although TI later revised its training materials and the
X26 taser operating manual before Turner’s death, those revised
documents did not provide warnings concerning the risk of
ventricular fibrillation or cardiac arrest when the taser is
fired at a suspect’s chest. In particular, the revised X26
training material also included a visual depiction of a police
officer aiming the taser at the suspect’s chest.

9
breathing and respiration, particularly when the probes are

placed across the chest or diaphragm. Users should avoid

prolonged, extended, uninterrupted discharges or extensive

multiple discharges whenever practicable. . . .” (Emphasis

added.) Notably, this TI Training Bulletin, which the CMPD

provided to its officers, discussed only the potential for

respiratory harm, rather than the risk of severe cardiac

problems, resulting from the use of the X26 taser.

Shortly after TI issued the June 2005 Training Bulletin, TI

received the results of a TI-funded study conducted by Dr.

Dhanunjaya Lakkireddy concerning additional testing of the X26

taser. This study, which was published in the Journal of the

American College of Cardiology, showed that the taser’s

electrical pulses can “capture” cardiac rhythms, potentially

leading to ventricular fibrillation. The study further noted

that if users avoided striking the subject’s chest area with the

taser’s darts, the risk of ventricular fibrillation would be

reduced significantly.

TI received the results of another study in 2006, which was

conducted by Dr. Kumaraswamy Nanthakumar and was published in

the same medical journal. Dr. Nanthakumar’s study likewise

showed a risk of ventricular fibrillation in test animals when

darts fired from the X26 taser lodged near the subject animal’s

chest. Notably, the study showed that when the darts struck the

10
animal in areas away from the chest, such as in the abdomen, the

taser did not capture heart rhythms and, thus, using the taser

in this manner avoided the risk of causing ventricular

fibrillation.

These conclusions reached by Dr. Lakkireddy and Dr.

Nanthakumar conflicted with TI’s representations in its training

materials that the X26 taser could not capture heart rhythms and

was safe even when applied directly to a person’s chest.

Nevertheless, as confirmed by TI’s chief executive officer and

the company’s vice president of training, TI did not alter its

training materials to warn users of the X26 taser that shots to

a person’s chest could result in ventricular fibrillation, or

that use of the taser near a person’s heart should be avoided

based on that risk. Accordingly, up until the time of Turner’s

death, Captain Campagna and Officer Dawson continued to think

that electrical current emitted by the X26 taser, even when

applied near a person’s heart, did not affect heart rhythms or

entail risks of cardiac arrest.

C.

Fontenot, as administrator of Turner’s estate, filed a

complaint against TI in a North Carolina Superior Court alleging

negligence under North Carolina’s product liability act, N.C.

Gen. Stat. §§ 99B-1 through 99B-11 (the product liability act).

As reflected in the complaint, Fontenot’s primary theory was

11
that TI was negligent in failing to warn users of the X26 taser

that the device could cause an adverse cardiac event,

particularly when at least one of the taser’s darts is

positioned on a person’s chest. 5

TI removed the action to federal district court asserting

diversity jurisdiction under 28 U.S.C. § 1332(a). In the

district court, Fontenot filed a pretrial motion seeking to

exclude from the jury’s consideration TI’s affirmative defense

of contributory negligence. TI contended that Turner was

contributorily negligent by failing to exercise ordinary care

for his own safety in instigating the dispute at the

supermarket, and in failing to comply with Officer Dawson’s

directions after the police arrived at the scene.

The district court granted Fontenot’s motion and barred TI

from submitting its contributory negligence defense to the jury.

The court later explained that the statutory language at issue

bars any recovery when the “[t]he claimant failed to exercise

reasonable care under the circumstances in the use of the

product.” See N.C. Gen. Stat. 99B-4(3) (emphasis added). The

district court also noted that the North Carolina product

5
Fontenot also sought punitive damages on the basis that
TI’s conduct was malicious, willful, and wanton, but the
district court granted summary judgment in TI’s favor with
respect to that aspect of her claim. Fontenot does not appeal
from that ruling.

12
liability cases addressing contributory negligence all involved

plaintiffs who actually had used the allegedly defective

products, and that, in this case, Turner did not “use” the

taser. Additionally, the court reasoned that:

Finding contributory negligence in this circumstance
would immunize [TI] from ever being liable for a
product defect. Police officers do not deploy a taser
unless a suspect has acted at least unreasonably.
Therefore, a person who has been tased would always be
barred by contributory negligence from suing [TI].

The case proceeded to a jury trial. After Fontenot

presented her case, TI made a motion seeking judgment as a

matter of law on several bases, including that the evidence

established as a matter of law that Officer Dawson misused the

taser. The district court denied the motion and the case was

submitted to the jury, which returned a verdict in Fontenot’s

favor and awarded her $10 million in compensatory damages.

The jury specified on the verdict form that TI unreasonably

failed to provide an adequate warning or instruction, thereby

creating an unreasonably dangerous condition about which TI knew

or should have known, and that such failure to provide an

adequate warning or instruction proximately caused Turner’s

death. The jury further stated on the verdict form that, with

respect to TI’s product misuse defense, Officer Dawson did not

use the taser in a manner contrary to TI’s instructions, that

TI’s instructions and warnings were not adequate, and that

13
Turner’s death was not caused by Officer Dawson’s use of the

taser contrary to TI’s instructions or warnings.

After the trial, TI renewed its earlier motion for judgment

as a matter of law and, in the alternative, sought a new trial

under Rule 59 of the Federal Rules of Civil Procedure. The

district court declined to disturb its previous ruling excluding

TI’s contributory negligence defense. The court further held

that substantial evidence supported the jury’s verdict on

causation and the inadequacy of TI’s warnings.

Addressing the $10 million damages award, the district

court characterized the evidence of damages as “relatively

thin,” and the court ultimately concluded that the award was

excessive. The court initially remitted the award to $7.5

million, further remitted the award to about $6,156,503.65 after

adjusting it for present value, and reduced that amount to

$5,491,503.65 after deducting $40,000 Fontenot received from a

Food Lion workers’ compensation award and $625,000 that she

received from a settlement with the City of Charlotte. 6 After

6
Although the district court instructed the jury to reduce
to its present value the monetary value that Turner had to his
parents over their expected lifetimes, the court nevertheless
concluded that the size of the verdict suggested that the jury
did not make that reduction. Therefore, the district court
applied a one-percent discount value, as requested by Fontenot,
which resulted in an award of $6,156,503.65. Neither party
challenges on appeal the district court’s present value
determination.

14
Fontenot accepted the reduced amount of $5,491,503.65, the

district court entered final judgment in that amount. TI timely

filed a notice of appeal.

II.

On appeal, TI raises four primary arguments, contending

that the district court erred: (1) in barring TI’s contributory

negligence defense; (2) in refusing to award judgment in TI’s

favor when the evidence purportedly did not show that Officer

Dawson would have used the taser differently had TI provided

warnings about the risk of ventricular fibrillation; (3) in

refusing to award judgment in TI’s favor because Officer

Dawson’s use of the taser constituted product misuse; and (4) in

entering judgment in an amount that was excessive and not

supported by the evidence. We discuss these arguments in turn.

A.

We first address TI’s contention that the district court

erred in barring TI’s contributory negligence defense. TI

asserts that under the plain language of the product liability

statute, and under general principles of North Carolina law, a

claimant in a product liability action need not have “used” the

product in order for the doctrine of contributory negligence to

apply. We disagree with TI’s argument.

15
 Initially, we observe that the question before us raises an

issue of first impression under North Carolina law. Our Court

has on occasion certified state law questions to the highest

court of a state in similar circumstances, but we are unable to

do so here because North Carolina currently has no mechanism by

which we may certify such questions. See Town of Nags Head v.

Toloczko, 728 F.3d 391, 398 (4th Cir. 2013). Accordingly, we

must attempt to determine how the Supreme Court of North

Carolina would decide the issue. See McNair v. Lend Lease

Trucks, Inc., 95 F.3d 325, 328 (4th Cir. 1996). We consider

whether contributory negligence may be raised as a defense under

North Carolina law in a product liability action when the

claimant has not “used” the product. This question presents an

issue of law, which we review de novo. See Solis v. Malkani,

638 F.3d 269, 275 (4th Cir. 2011); United States v. Perrin, 45

F.3d 869, 871 (4th Cir. 1995).

In Section 99B-4 of the General Statutes of North Carolina,

the legislature codified the common law doctrine of contributory

negligence as it applies in product liability actions. See

Nicholson v. Am. Safety Util. Corp., 488 S.E.2d 240, 243-44

(N.C. 1997). In relevant part, Section 99B-4(3) provides:

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

16
 failure was a proximate cause of the occurrence that
caused the injury or damage complained of.

N.C. Gen. Stat. § 99B-4(3) (emphasis added).

We consider the plain words of Section 99B-4(3) in

interpreting the statute. See Frye Reg’l Med. Ctr., Inc. v.

Hunt, 510 S.E.2d 159, 163 (N.C. 1999). We are guided by the

principle of statutory construction that a statute should be

“construed, if possible, so that none of its provisions shall be

rendered useless or redundant. It is presumed that the

legislature intended each portion to be given full effect and

did not intend any provision to be mere surplusage.” Porsh

Builders, Inc. v. City of Winston–Salem, 276 S.E.2d 443, 447

(N.C. 1981) (citation omitted); accord City of Concord v. Duke

Power Co., 485 S.E.2d 278, 282 (N.C. 1997).

Applying these principles, we agree with Fontenot that

Section 99B-4(3) requires that the claimant have “used” the

product before the defense of contributory negligence can arise.

The statute plainly provides that, in a product liability

action, a manufacturer or seller may not be held liable if

“[t]he claimant failed to exercise reasonable care under the

circumstances in the use of the product.” 7 N.C. Gen. Stat. §

99B-4(3) (emphasis added).

7
The term “claimant” is defined in the statute to include a
decedent if the claim has been asserted on behalf of the
decedent’s estate. N.C. Gen. Stat. § 99B-1(1).

17
 TI urges us to interpret the statute as merely requiring

that a claimant failed to exercise reasonable care during an

incident involving anyone’s use of the product causing injury to

the claimant, without regard to whether the claimant actually

used the product at issue. That interpretation, however, would

render superfluous or redundant the phrase “in the use of the

product.” Under TI’s suggested construction, we would consider

only whether “[t]he claimant failed to exercise reasonable care

under the circumstances,” thereby ignoring the additional words

“in the use of the product” that the legislature included in

Section 99B-4(3). We cannot reach such a result. See Porsh

Builders, 276 S.E.2d at 447; cf. In re Hayes, 681 S.E.2d 395,

403 (N.C. Ct. App. 2009) (rejecting proffered interpretation of

statutory provision that would render a term redundant).

Instead, we conclude that the statute unambiguously bars

recovery by a claimant in a product liability action on the

ground of contributory negligence when the claimant has used the

product in some manner and has failed to exercise reasonable

care under the circumstances. 8

We acknowledge that Section 99B-4(3) was amended by the

North Carolina General Assembly, effective January 1, 1996,

8
For this reason, we reject TI’s argument concerning the
significance of the legislature’s use of the term “claimant” in
Section 99B-4(3), rather than the term “user.”

18
along with other more substantive changes to various sections of

the product liability act. See An Act of July 29, 1995, ch.

99B, 1995 N.C. Sess. Laws 522 (amending product liability act).

In relevant part, the prior version of Section 99B-4(3) provided

that contributory negligence operates to bar recovery in a

product liability action if “the claimant failed to exercise

reasonable care under the circumstances in his use of the

product.” N.C. Gen. Stat. § 99B-4(3) (1995) (emphasis added).

TI correctly observes that an amendment to a statute

indicates that the legislature “intended to add to or to change

the existing enactment.” State v. Mabry, 720 S.E.2d 697, 701

(N.C. Ct. App. 2011). However, TI cites no legislative history

showing that this change in statutory language from “his” to

“the” was anything other than the legislature’s decision to make

the language of that provision gender-neutral. Moreover, under

North Carolina law, a court interpreting a statute may rely on

the statute’s legislative history only in instances in which the

statutory language is ambiguous. See In re Vogler Realty, Inc.,

722 S.E.2d 459, 462 (N.C. 2012). Because we conclude that the

language of Section 99B-4(3) is unambiguous, we do not further

consider TI’s argument concerning the legislative history of

that provision. See Diaz v. Div. of Soc. Servs., 628 S.E.2d 1,

19
3 (N.C. 2006) (judicial construction of legislative intent is

not required when statutory language is clear). 9

As the district court and the North Carolina Court of

Appeals both have observed, every North Carolina product

liability case addressing contributory negligence, whether under

the current or former version of Section 99B-4(3), has involved

a claimant’s actual use of the allegedly defective product. See

Fontenot v. Taser Int’l, Inc., 2012 WL 1379054, at *5 (W.D.N.C.

Apr. 20, 2012) (citing Nicholson v. Am. Safety Util. Corp., 476

S.E.2d 672, 679–680 (N.C. Ct. App. 1996), aff’d on other

grounds, 488 S.E.2d 240 (N.C. 1997)). The cases cited by TI do

not undermine the import of this observation. 10

9
Our colleague in dissent relies principally on several
North Carolina common law cases which, as discussed in this
opinion, are readily distinguishable. In our view, however, any
analysis of the issue whether Turner could be found
contributorily negligent under Section 99B-4 should begin with
the plain language of that statutory provision. As the Supreme
Court of North Carolina has held, “[s]tatutory interpretation
properly begins with an examination of the plain words of the
statute.” Ocean Hill Joint Venture v. N.C. Dep’t of Env’t,
Health, & Natural Res., 426 S.E.2d 274, 277 (N.C. 1993)
(citation omitted).
10
The observation that North Carolina product liability
cases applying contributory negligence have involved the
claimant’s use of the allegedly defective product is consistent
with the discussion of contributory negligence in this context
as stated by well-recognized treatises. See, e.g., Am. L. Prod.
Liab. 3d § 40:9 (explaining that in the product liability
context, “the plaintiff is required to act reasonably with
respect to the product he or she is using” for purposes of
contributory negligence) (emphasis added); Restatement (Second)
(Continued)
20
 In the two primary product liability cases on which TI

relies, our decision in Jones v. Owens-Corning Fiberglas Corp.,

69 F.3d 712 (4th Cir. 1995), and the Supreme Court of North

Carolina’s decision in Nicholson v. American Safety Utility

Corp., 488 S.E.2d 240 (N.C. 1997), the respective claimants used

the products at issue. In Jones, the claimants, workers in a

factory in which products containing asbestos insulation were

manufactured, sued the insulation’s manufacturer after they

developed asbestosis and lung cancer. Jones, 69 F.3d at 715-16.

The defendant manufacturer asserted contributory negligence

under Section 99B-4(3), arguing that the plaintiffs failed to

exercise reasonable care “in their use of the asbestos-

containing products” by continuing to smoke cigarettes, despite

the hazards relating to smoking and asbestos exposure being

“widely known.” Id. at 719.

This Court held that contributory negligence could be

applicable under the defendant’s theory, but observed that the

defendant’s “only possibility of prevailing. . . require[d]

proof that [the claimants] were given such a warning” about “the

synergistic effect of cigarette smoking and asbestos exposure.”

Id. at 721. Thus, we stated in Jones that the “statutory focus”

of Torts § 388 cmt. f (noting that “[t]he person using the
chattel may disable himself from bringing an action [] by his
contributory negligence”) (emphasis added).

21
of Section 99B-4(3) was not the claimants’ use of the product

“per se,” but, instead, was whether the claimants failed to

exercise reasonable care under the circumstances in their “use

of the product.” Id. at 721-22. Our holding in Jones therefore

cannot be read as more than a statement that contributory

negligence may bar a claimant’s recovery in a product liability

action in North Carolina if the evidence shows that the

defendant warned the claimant of the injury that may result from

the claimant’s use of a product. We neither held nor implied in

Jones that a contributory negligence defense could be asserted

in cases in which the claimant did not use the product in any

manner.

In the present case, the record is devoid of any evidence

that Turner knew or should have known that police deployment of

the taser could cause him to suffer severe cardiac injury.

Indeed, the record is undisputed that neither Officer Dawson nor

any other members of the CMPD knew that such injury could be

caused by use of the taser near a subject’s heart. Thus, this

crucial factual distinction between the present case and the

circumstances discussed in Jones renders inapposite the ultimate

result we reached there.

In Nicholson, an electrical lineman was injured when an

energized power line came in contact with his head after his

helmet was “blown off.” 488 S.E.2d at 241-42. That contact

22
resulted in electricity surging through his body and exiting

through his hand, on which he was wearing a rubber safety glove

manufactured and sold by the defendants. Id. at 242. In the

product liability action filed by Nicholson, the defendants

asserted a contributory negligence defense, arguing that

Nicholson failed to keep his helmet properly secured and

continued working after it fell off. 476 S.E.2d at 679. After

the trial court granted summary judgment to the defendants, the

North Carolina Court of Appeals reversed, concluding that any

negligence on Nicholson’s part must relate to his use of the

gloves, and that the evidence did not establish that Nicholson

was negligent in such use. Id. at 679-80.

On appeal, the Supreme Court of North Carolina agreed that

summary judgment in favor of the claimant on the contributory

negligence defense was not appropriate, holding that issues of

fact needed to be resolved. 488 S.E.2d at 245. Departing from

the rationale adopted by the court of appeals, the court

explained that a claimant’s negligent behavior need not be

confined to the claimant’s use of the product itself for

contributory negligence to lie, but that “all of the

circumstances during the plaintiff’s use of the product must be

considered, not just plaintiff’s conduct with respect to the

product itself.” Id. at 244 (emphasis added). Thus, the

decision in Nicholson, like the decision in Jones, did not hold

23
that contributory negligence may apply even in cases in which

the defendant did not make any use of the product at issue.

Instead, the holdings in Jones and Nicholson stand for the

unremarkable proposition, not at issue in this case, that so

long as the claimant was using the product during the events

that led to the injury, the claimant’s negligence need not arise

solely with respect to use of that product for a contributory

negligence defense to be available. We further note that in two

other product liability cases cited by the parties involving a

contributory negligence defense, decided after Section 99B-4(3)

was amended, the claimants “used” the product at issue. See

Muteff v. Invacare Corp., 721 S.E.2d 379 (N.C. Ct. App. 2012)

(electric wheelchair manufacturer asserted contributory

negligence defense after decedent’s wheelchair caught fire when

charging overnight while her metal necklace was in contact with

the live blades of the wheelchair’s charger cord); Lashlee v.

White Consol. Indus., Inc., 548 S.E.2d 821 (N.C. Ct. App. 2001)

(chainsaw manufacturer asserted contributory negligence defense

based on plaintiff’s operation of the chainsaw while standing on

a ladder without being secured to the tree).

TI nevertheless asserts that its position is supported by

various North Carolina court decisions outside the product

liability context that cite principles applicable to negligence

24
claims generally. However, the three North Carolina Court of

Appeals cases on which TI relies are inapposite.

TI first cites Hinton v. City of Raleigh, in which a

robbery suspect was shot and killed by police officers following

the robbery. 264 S.E.2d 777, 778 (N.C. Ct. App. 1980). The

suspect’s mother brought an action against the City of Raleigh

and other defendants alleging a variety of claims, including

negligent supervision and training. Id. The court of appeals

affirmed the award of summary judgment in favor of the

defendants, noting that the evidence established that the

decedent participated in an armed robbery in which a gun was

used, and that he “went into a crouching position and pointed

toward the officers” when he was ordered to halt. Id. at 779.

In explaining its decision, the court observed, among other

things, that the decedent’s own actions contributed to the

killing. Id.

Here, in contrast, the evidence showed that Turner’s

actions did not proximately contribute to his killing, which was

caused by the application of electrical force to his chest

rather than to other parts of his body. Nothing that Turner did

caused Officer Dawson to aim the taser at Turner’s chest, rather

than at another area of his body. Thus, the decision in Hinton

fails to support TI’s position.

25
 TI next relies on Braswell v. N.C. A&T State University,

which involved a claimant who was injured when a security

officer fired his pistol into the ground to disperse a crowd

seeking to break into a college gymnasium. 168 S.E.2d 24, 29

(N.C. Ct. App. 1969). The court of appeals held that the

plaintiff was contributorily negligent because he joined the

crowd despite knowing that the members of the crowd were “acting

in an unruly and unlawful manner and that the officer had warned

them to stop trying to break in the doors.” Id. at 31.

Notably, the court stated that by joining the unruly crowd,

“plaintiff assumed the risk of whatever injury he might receive

as a result.” 11 Id. (emphasis added). Accordingly, Braswell is

inapposite because the “assumption of risk” doctrine on which

the Braswell court focused has not been raised by TI, and,

indeed, has no application in a case involving a theory of

negligent failure to warn a product user of risks associated

with use of a product.

Finally, TI relies on Benton v. Hillcrest Foods, Inc., a

case in which the claimants were shot in a restaurant by other

patrons during a confrontation, but were barred from recovering

damages from the restaurant’s owner on the ground of

11
The assumption of risk doctrine is distinct from the
contributory negligence doctrine under North Carolina law. See
Sasser v. Hales Bryant Lumber Co., 81 S.E. 320, 321 (N.C. 1914).

26
contributory negligence. 524 S.E.2d 53, 58 (N.C. Ct. App.

1999). The facts in Benton included the claimants’ acts of

intentional provocation toward the shooters, and the claimants’

refusal to leave the restaurant through an available back door

despite their knowledge that the shooters had left temporarily

to obtain loaded guns from their car. Id. Thus, the facts in

Benton are starkly different from those before us, rendering its

holding inapposite to the present case.

We again note the absence of any North Carolina cases

finding contributory negligence in a product liability action in

which the claimant did not use the product at issue. This

absence of analogous North Carolina case law is significant

because, in construing the common law of a state, we have

declined to expand state common law principles to encompass

novel circumstances when the courts of that state have not done

so first. See Time Warner Entm’t-Advance/Newhouse P’ship v.

Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314-15

(4th Cir. 2007) (“Time Warner has proffered no cases

interpreting North Carolina law to extend the common law

prohibition . . . and we have found none. . . . We conclude

accordingly that as a court sitting in diversity, we should not

create or extend the North Carolina common law.”); Burris Chem.,

Inc. v. USX Corp., 10 F.3d 243, 247 (4th Cir. 1993) (federal

courts adjudicating issues of state law “rule upon state law as

27
it exists and do not surmise or suggest its expansion”). In our

view, it would be an expansion of North Carolina law if we

permitted a contributory negligence defense here, when such a

defense is not supported by the plain language of Section 99B-

4(3), and when there are no analogous North Carolina cases

supporting the availability of that defense under the novel

circumstances presented.

Finally, we observe that application of the contributory

negligence doctrine under the present circumstances would

absolve TI of its responsibility to provide adequate warnings to

persons using TI’s tasers, and effectively would grant TI

immunity from suit in North Carolina negligence actions that are

based on police use of a taser on a suspect resisting arrest.

At its core, TI’s position is that contributory negligence

should be applied as a blanket proposition to bar recovery for

all incidents in which a person is involved in a dispute, does

not surrender to authorities, and is subdued or killed by a

police officer’s use of a taser. Such a situation, however,

will be present in nearly every instance in which a taser is

deployed by a law enforcement officer. Moreover, such

circumstances are the very reason why law enforcement agencies

use products like the X26 taser.

Accepting TI’s argument would have additional significant

consequences, as TI essentially would have no duty in North

28
Carolina to safely design its products or to provide adequate

warnings to law enforcement customers such as the CMPD. We do

not think that the Supreme Court of North Carolina would create

such an extreme result based on the facts presented here. For

these reasons, we hold that the district court did not err in

precluding TI from asserting contributory negligence as an

affirmative defense.

B.

We next consider TI’s argument that the district court

erred in failing to direct a verdict in TI’s favor because the

evidence purportedly failed to establish that an appropriate

warning about the dangers of the X26 taser would have caused

Officer Dawson to use the taser in a different manner. We

disagree with TI’s argument.

We review de novo the district court’s denial of a Rule 50

motion for judgment as a matter of law, considering the evidence

in the light most favorable to Fontenot as the nonmoving party.

See Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489-90

(4th Cir. 2005). If a verdict in favor of the nonmoving party

“would necessarily be based upon speculation and conjecture,”

judgment as a matter of law must be entered in the moving

party’s favor. Id. at 489. However, “[i]f the evidence as a

whole is susceptible of more than one reasonable inference, a

29
jury issue is created and a motion for judgment as a matter of

law should be denied.” Id. at 489-90.

Under North Carolina law, a claimant bringing a product

liability action under a failure to warn theory must establish

that the defendant’s failure to provide an adequate warning or

instruction was “a proximate cause of the harm.” N.C. Gen.

Stat. § 99B-5(a). After reviewing the present record, we hold

that there is sufficient evidence from which the jury could have

concluded that Officer Dawson would have used the X26 taser in a

different manner had TI provided an adequate warning concerning

the dangers of firing the taser to make contact near a person’s

heart. Officer Dawson testified that he read Taser’s training

materials, which stated that when the X26 taser was tested the

device was found to have had no effect on heart rhythms.

Officer Dawson stated that he received such information

concerning the taser’s safety during a “refresher” training

course as recently as a month before the incident occurred. He

also testified about instructions that he received from CMPD

trainers, who used TI’s training materials, to aim the taser at

a suspect’s chest. 12 In sum, the gravamen of Officer Dawson’s

12
Officer Dawson’s receipt and understanding of the
information provided by TI distinguishes this case from Edwards
v. ATRO SpA, 891 F. Supp. 1074 (E.D.N.C. 1995), on which TI
relies. In Edwards, the court held that the plaintiff could not
prevail on a failure-to-warn theory against a manufacturer of a
(Continued)
30
testimony was that he deployed the taser on Turner based on the

information provided by TI that the X26 taser was safe to use,

could not cause cardiac arrest, and did not present an elevated

risk of injury when the device’s darts were positioned near a

person’s heart.

Additionally, Captain Campagna, who administered the CMPD’s

taser program, testified that until Turner’s death, officers

were instructed that TI’s testing showed that the X26 taser did

not affect heart rhythms, even when applied to a suspect’s

chest. Captain Campagna further testified that he “absolutely”

would have wanted to know if testing showed a risk that

application of the X26 taser to the chest of a suspect could

affect the suspect’s heart rhythms.

Given that Captain Campagna had issued a memorandum to CMPD

officers relaying the additional safety information provided by

TI in its June 2005 Training Bulletin, the jury reasonably may

have inferred that Captain Campagna would have informed Officer

Dawson and other CMPD officers of warnings concerning a risk of

serious cardiac injury from use of TI’s tasers near a person’s

heart. Further, the jury reasonably may have inferred that such

information would have affected Officer Dawson’s understanding

nail gun that had been discharged accidentally, because neither
the plaintiff nor his co-worker had read or obtained the owner’s
manual for the nail gun. See id. at 1078.

31
of the risks involved in use of the taser, and would have caused

Officer Dawson to aim the taser at a different location on

Turner’s body. Therefore, we conclude that the evidence

supports the jury’s finding that TI’s failure to provide an

adequate warning was a proximate cause of Turner’s death.

For these reasons, we reject TI’s argument that Fontenot

did not establish a causal link between TI’s failure to issue

warnings concerning the risk of cardiac arrest and Officer

Dawson’s use of the taser on Turner’s chest. Accordingly, we

hold that the district court did not err in denying this aspect

of TI’s motion for judgment as a matter of law.

C.

TI also argues that the district court erred in failing to

award judgment in TI’s favor on the basis of product misuse. TI

contends that, as a matter of law, Officer Dawson misused the

X26 device by employing it on Turner for 37 continuous seconds,

and that such misuse was contrary to the instructions and

warnings provided by TI. We disagree with TI’s argument.

We review de novo the district court’s denial of TI’s

motion for judgment as a matter of law on the issue of product

misuse. See Myrick, 395 F.3d at 489. Judgment as a matter of

law should not be entered unless the court concludes, after

reviewing the entire record and considering it in the nonmoving

party’s favor, that “the evidence presented supports only one

32
reasonable verdict, in favor of the moving party.” Dotson v.

Pfizer, 558 F.3d 284, 292 (4th Cir. 2009) (citation omitted).

North Carolina General Statutes Section 99B-4(1) provides,

in relevant part, that “[n]o manufacturer or seller shall be

held liable in any product liability action if: (1) The use of

the product giving rise to the product liability action was

contrary to any express and adequate instructions or warnings

delivered with, appearing on, or attached to the product . . .

.” (Emphasis added.) See Lienhart v. Dryvit Sys., Inc., 255

F.3d 138, 148 (4th Cir. 2001) (under N.C. Gen. Stat. § 99B-4(1),

failure to follow “express and adequate instructions” precludes

recovery in product liability action). TI asserts that its

warnings, including the June 2005 Training Bulletin, adequately

informed users that the taser should not be employed for an

extended duration. TI’s warning on this point in the Bulletin

stated as follows:

Repeated, prolonged, and/or continuous exposure(s) to
the TASER electrical discharge may cause strong muscle
contractions that may impair breathing and
respiration, particularly when the probes are placed
across the chest or diaphragm. Users should avoid
prolonged, extended, uninterrupted discharges or
extensive multiple discharges whenever practicable in
order to minimize the potential for over-exertion of
the subject or potential impairment of full ability to
breathe over a protracted time period.

(Emphasis added.)

33
 Our review of this warning, in conjunction with the other

evidence in the case, leads us to conclude that the jury had

ample grounds on which to find that the warning was not

“adequate.” As an initial matter, the warning pertains to a

temporary breathing problem, rather than to the more serious

risk of cardiac arrest.

More fundamentally, however, the terms “prolonged” and

“continuous” found in the warning are not further defined and,

thus, are vague in the absence of further clarification, which

was not provided by TI. Instead, TI’s Chief Executive Officer

Patrick Smith conceded during his testimony that TI did not give

“precise guidance” to users of the X26 taser concerning “the

safe length of a discharge cycle.” Smith further testified that

“we don’t set a hard and fast limit,” and agreed that “[a] cop

can’t look and say, don’t go beyond 15 seconds or 20 or 30 or 40

or anything like that.”

Additionally, a jury also could conclude that the warning’s

“whenever practicable” clause rendered the warning vague and

inadequate. Captain Campagna testified that he interpreted the

“whenever practicable” language to mean that the taser could be

applied continuously until the suspect fell to the ground or

otherwise was secured. Likewise, Officer Dawson testified that

he did not think that it was “practicable” to release the

taser’s trigger while Turner remained standing in defiance of a

34
command to “get down.” Thus, based on the present record, TI’s

warnings concerning prolonged application of the X26 taser

cannot be deemed “adequate” as a matter of law under Section

99B-4(1). Accordingly, we hold that the district court did not

err in denying TI’s motion for judgment as a matter of law on

the issue of product misuse. 13

D.

Finally, we consider TI’s argument that the district

court’s remittitur decision resulted in an excessive award that

was not supported by the evidence. 14 TI contends that Fontenot

failed to prove to a reasonable level of certainty her

entitlement to an award of that amount. Fontenot argues in

opposition that the damages at issue in this case are not

13
We are not persuaded by TI’s reliance on Marquez v. City
of Phoenix, 693 F.3d 1167, 1172-73 (9th Cir. 2012), in which the
Ninth Circuit held that TI’s warnings concerning the X26 taser
were adequate and “capture[d] the circumstances of [that] case.”
Among other distinguishable facts, at issue in Marquez was the
repetitive use of the X26 taser, rather than the duration of the
continuous taser use that is at issue here. Notably, the police
officers in Marquez pulled the taser’s trigger 22 times, and the
record was unclear concerning the total duration for which
Marquez was subjected to the taser’s electrical current. Id. at
1171-72.
14
As discussed previously, the district court reduced the
jury’s initial award of $10 million in compensatory damages to
$7.5 million, further remitted the award to about $6.15 million
after accounting for present value, and reduced that total to
about $5.5 million after deducting money Fontenot received from
Food Lion’s workers compensation fund and the City of Charlotte.

35
capable of precise measurement, and that the district court

acted within its discretion in its decision on the remittitur.

We review for abuse of discretion a district court’s

decision with respect to a motion alleging that a jury’s

compensatory damages award is excessive as a matter of law. See

Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435–39

(1996); Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 280 (4th

Cir. 1999). In a diversity action, federal courts apply state

law standards in considering whether the district court abused

its discretion when ruling on a motion relating to a jury’s

damages award. Konkel, 165 F.3d at 280-81. In undertaking this

review, we give “the benefit of every doubt to the judgment of

the trial judge.” Id. (citation omitted).

In the present case, Fontenot sought compensatory damages

under North Carolina General Statutes Section 28A-18-2, on

behalf of herself and Turner’s father whom Fontenot had divorced

when Turner was about four years old. In relevant part, that

statute allows for “compensation for the loss of the reasonably

expected . . . [s]ervices, protection, care and assistance of

the decedent,” and for the “[s]ociety, companionship, comfort,

guidance, kindly offices and advice of the decedent”

(collectively, services, care, and companionship), in addition

36
to hospital and funeral expenses. 15 N.C. Gen. Stat. § 28A-18-

2(b)(4)(b-c).

North Carolina courts recognize that such damages often are

not capable of “exact ascertainment.” Bowen v. Constructors

Equip. Rental Co., 196 S.E.2d 789, 806 (N.C. 1973).

Nevertheless, “damages available under the statute are not

automatic,” and instead “must be proved to a reasonable level of

certainty, and may not be based on pure conjecture.” DiDonato

v. Wortman, 358 S.E.2d 489, 493 (N.C. 1987) (emphasis added).

As an initial matter, we observe that the only methodology

suggested by Fontenot to aid the jury’s calculation of

compensatory damages was counsel’s suggestion that the jury

take just some arbitrary, small, conservative number,
like $1,000 for a week. Or if we were to take a
bigger number like $2,000 for a week of this loss.
And multiply it out [over a 40 year life expectancy],
being conservative, rounding it down, you would get
for each plaintiff, a range of let’s say between [$]2
and [$]4 or $5 million.

(Emphasis added.) In initially reducing the damages award from

$10 million to $7.5 million, the district court referenced

counsel’s suggested methodology in determining the “highest

15
The statute also allows for the recovery of the
decedent’s pain and suffering and the net income of the
decedent, see N.C. Gen. Stat. § 28A-18-2(b)(2), (b)(4)(a), but
Fontenot did not seek such damages in this case. Additionally,
the parties stipulated that Turner’s medical and funeral
expenses totaled $10,843.52.

37
amount the jury could have properly awarded,” and stated that

the evidence supporting damages was “relatively thin.”

Notably, Fontenot failed to present any evidence showing

that Turner’s services, care, and companionship had a value

approaching $1000-$2000 per week, per parent. Additionally,

there was no testimony concerning whether, and for what

duration, Turner’s parents reasonably expected Turner to

continue providing services such as babysitting his younger

siblings and assisting with household chores. Accordingly,

Fontenot essentially invited the jury and the district court to

engage in the type of “pure conjecture” that North Carolina

courts have prohibited. See DiDonato, 358 S.E.2d at 493.

We nonetheless observe that the testimony of Turner’s

parents demonstrated their close relationships with Turner, as

well as Turner’s good character. We have no doubt that Turner

had significant value to his parents, and that they are entitled

to a substantial award for the loss of his services, care, and

companionship. However, we cannot agree that the evidence,

viewed in the light most favorable to Fontenot, met the required

“reasonable level of certainty” to establish that such services,

care, and companionship had a monetary value approaching $6.15

million. See id. In reaching a contrary conclusion, the

38
district court abused its discretion. Accordingly, we hold that

TI is entitled to a new trial on damages. 16

III.

For these reasons, we affirm the district court’s judgment

upholding the jury verdict imposing liability on TI for its

negligence. We vacate the district court’s judgment with

respect to the remitted award of compensatory damages, and we

remand the case to the district court for a new trial limited to

the issue of damages.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

16
In view of our holding that TI is entitled to a new trial
on the issue of compensatory damages, we do not consider TI’s
additional argument that the district court abused its
discretion in declining to give certain jury instructions
related to the determination of damages.

39
TRAXLER, Chief Judge, dissenting:

Because I believe TI was entitled to judgment as a matter

of law on the basis of contributory negligence, I respectfully

dissent. 1

We review the denial of a judgment as a matter of law de

novo. See Konkel v. Bob Evans Farms, Inc., 165 F.3d 275, 279

(4th Cir. 1999). We must grant judgment as a matter of law

against a party on a claim when she “has been fully heard” on

that claim and “a reasonable jury would not have a legally

sufficient evidentiary basis to find” in her favor. See Fed. R.

Civ. P. 50(a). “Because we are sitting in diversity, our role

is to apply the governing state law, or, if necessary, predict

how the state’s highest court would rule on an unsettled issue.”

Horace Mann Ins. Co. v. General Star Nat’l Ins. Co., 514 F.3d

327, 329 (4th Cir. 2008). When a state’s highest court has not

directly spoken to an issue, decisions of the state’s

intermediate appellate court “constitute the next best indicia

of what state law is, although such decisions may be disregarded

if the federal court is convinced by other persuasive data that

the highest court of the state would decide otherwise.” Liberty

1
In moving for judgment as a matter of law at the close of
the plaintiff’s case and renewing that motion at the close of
defendant’s case and after the jury verdict, TI consistently
relied on its argument that, as a matter of law, Turner’s
contributory negligence barred any liability. See Fed. R. Civ.
P. 50.

40
Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153, 1156 (4th

Cir. 1992) (internal quotation marks omitted).

In North Carolina, “[e]very person having the capacity to

exercise ordinary care for his own safety against injury is

required by law to do so, and if he fails to exercise such care,

and such failure, concurring and cooperating with the actionable

negligence of defendant, contributes to the injury complained

of, he is guilty of contributory negligence.” Clark v. Roberts,

139 S.E.2d 593, 597 (N.C. 1965). Thus, under North Carolina

common law, no recovery may be had in tort for the plaintiff’s

injuries when his failure to exercise reasonable care is a

proximate cause of his injuries. See Holderfield v. Rummage

Bros. Trucking Co., 61 S.E.2d 904, 906 (N.C. 1950). 2

Here, after being fired for insubordination, Turner refused

to leave the store, even when Blackert told him she was calling

the police. When store manager Antwan Wesley arrived at the

store, Turner began yelling and cursing at him and aggressively

advancing on him like he wanted to fight. As Wesley retreated,

Turner slung a display and threw an umbrella.

2
North Carolina is one of only four states – and the
District of Columbia – that continue to adhere to this all-or-
nothing doctrine. Most states have instead adopted a system of
comparative negligence, which apportions damages between a
negligent plaintiff and negligent defendant according to their
relative degree of fault rather than completely barring the
negligent plaintiff’s recovery. See Coleman v. Soccer Ass’n of
Columbia, 69 A.3d 1149, 1160 & n.3 (Md. 2013).

41
 Responding to Blackert’s call, Charlotte-Mecklenburg Police

Officer Dawson then entered the store. As Turner pivoted and

saw Dawson walking toward him with his X26 unholstered, Turner

said, “F**k the police,” and turned back to Wesley. J.A. 650

(internal quotation marks omitted). Dawson told Turner to calm

down, but Turner continued to act “very aggressively” toward

Wesley with “his hands clenched, his fists balled up” as if “he

was getting ready to lunge at him.” J.A. 313-14. Turner then

turned toward Officer Dawson, and walked toward him with a

“swaggerly, macho type of a walk,” looking like he was going to

fight Officer Dawson. J.A. 607.

Dawson aimed his X26 at Dawson. Turner looked down, saw

the laser dot on his chest, but continued to step toward Dawson

with his fists clenched. As Turner got within 3-5 feet of

Dawson, Dawson deployed his Taser and the probes struck Turner

near the sternum. Even then, Turner refused to submit. Rather,

he continued walking and picked up a metal bag rack and threw

it. Attempting to protect himself and the store customers,

Dawson continued to hold the trigger down as Turner continued to

refuse Dawson’s commands to get down. Turner eventually

collapsed and died from ventricular fibrillation.

Several cases from the North Carolina Court of Appeals with

facts analogous to ours demonstrate as a matter of North

Carolina law that Turner was contributorily negligent in

42
continuing his aggressive behavior even after the officer told

him to calm down and even after he drew his Taser and pointed it

at Turner. Most relevant is Braswell v. N.C. A&T State

University, 168 S.E.2d 24, 30-31 (N.C. Ct. App. 1969), wherein

the court applied the doctrine of contributory negligence to

reverse a damage award made by the North Carolina Industrial

Commission. In that case, the plaintiff had joined a mob that

was attempting to force gymnasium doors open at a public dance,

and he was accidentally struck by a ricocheted bullet fired by a

campus security officer. The North Carolina Court of Appeals

concluded as a matter of law that the plaintiff was

contributorily negligent and that his negligence was a proximate

cause of his injuries:

It seems to us that it was reasonably foreseeable that
the security officer would undertake to perform his
duty to prevent an illegal breaking and entry of the
building, and that someone in the crowd was likely to
be injured in the process. It also seems that a
reasonably prudent person, in the exercise of due care
for his own safety, would not participate in mob
action which was clearly intended to be in violation
of the law and contrary to reasonable conduct. Every
person is charged with the duty of exercising
reasonable care for his own safety, and the joining in
illegal mob action is not an exercise of reasonable
care; in so doing plaintiff assumed the risk of
whatever injury he might receive as a result. In
addition, the illegal conduct of the mob of which the
plaintiff was voluntarily a part was such as would
reasonably be calculated to provoke the security
officer into taking some action to disperse the mob.

We think the facts, as found by the Commission,
give rise to one inference only, and that is-that the

43
 plaintiff was contributorily negligent in joining and
rejoining the crowd. He knew they were acting in an
unruly and unlawful manner and that the officer had
warned them to stop trying to break in the doors.
With this knowledge, he voluntarily became a member of
the crowd on two occasions, and was rejoining the
crowd a third time when he was shot. We think these
facts point to only one conclusion; that is, the
plaintiff was contributorily negligent as a matter of
law.

Id. at 30-31 (emphasis added). 3 The very same reasoning applies

here. By continuing to act in a hostile manner, including

3
In the context of the discussion of why the
plaintiff’s contributory negligence barred recovery, Braswell
stated that by joining the mob, “plaintiff assumed the risk of
whatever injury he might receive as a result.” Braswell v. N.C.
A&T State Univ., 168 S.E.2d 24, 31 (N.C. Ct. App. 1969).
However, by use of the words “assumed the risk,” the Braswell
court plainly did not intend to invoke a legal doctrine separate
from contributory negligence. Rather, the sentence in question
merely reflects that a “[p]laintiff may be contributorily
negligent if his conduct ignores unreasonable risks or dangers
which would have been apparent to a prudent person exercising
ordinary care for his safety.” Jenkins v. Lake Montonia Club,
Inc., 479 S.E.2d 259, 263 (N.C. Ct. App. 1997) (holding that, as
a matter of law, contributory negligence barred a plaintiff’s
recovery from injuries from hitting his head on the bottom of a
swimming area after diving off a slide when “[t]he danger of
striking the bottom of the swimming area when diving head first
into shallow water was obvious to plaintiff”); see also
Dalrymple v. Sinkoe, 53 S.E.2d 437, 440 (N.C. 1949) (in
analyzing claim of contributory negligence, stating that “a
buyer who uses the article after he discovers [that the article
is not safe to use in the manner he is using it] will be held to
have assumed all the risk of damage to himself, notwithstanding
the seller’s assurance of safety”); Deaton v. Board of Trustees
of Elon College, 38 S.E.2d 561, 565 (N.C. 1946) (“‘It has been
repeatedly held that where one knowingly places himself in a
place of danger which he might easily have avoided he assumes
all the risks incident thereto.’”). That is exactly the way in
which TI has consistently argued that Turner was contributorily
negligent: Like the plaintiff in Braswell, Turner’s conduct
(Continued)
44
saying “F**k the police” when Officer Dawson walked in, J.A.

309, 650, continuing to act “very aggressively” toward Wesley

with “his hands clenched, his fists balled up” as if “he was

getting ready to lunge at him,” J.A. 313-14, walking toward

Officer Dawson with a “swaggerly, macho type of a walk” looking

like he was going to assault Dawson, J.A. 607, and then refusing

to submit even when he was being shocked with the X26, Turner

took unreasonable actions that a reasonable person would realize

would prompt a physical response – and then a further physical

response – from Officer Dawson. By virtue of this negligence,

Turner “assumed the risk of whatever injury he might receive as

a result.” Braswell, 168 S.E.2d at 31; cf. Benton v. Hillcrest

Foods, Inc., 524 S.E.2d 53, 58 (N.C. Ct. App. 1999) (holding

that when plaintiffs engaged others with belligerent,

confrontational behavior, failed to leave restaurant when they

had the opportunity to avoid escalation of physical violence,

and then were injured in the resulting confrontation, it gave

rise to reasonable inference that plaintiffs were contributorily

negligent in a lawsuit against restaurant’s owner and

franchisor); see also Hinton v. City of Raleigh, 264 S.E.2d 777,

779 (N.C. Ct. App. 1980) (affirming summary judgment against

ignored the risk that the officer would hurt him in attempting
to respond to his reckless conduct.

45
plaintiff robbery suspect when suspect committed armed robbery,

refused to surrender when ordered by police, moved aggressively

toward a police officer, and was later shot by that officer).

Fontenot argues that any negligence by Turner was not the

proximate cause of his injuries because the particular hazard

that befell him – having his heart stopped by the X26 – was

unforeseeable to someone in his position. However, although

foreseeability of injury is an essential element of proximate

cause, “[i]t is not required that the injury in the precise form

in which it occurred should have been foreseeable but only that,

in the exercise of reasonable care, consequences of a generally

injurious nature might have been expected.” McNair v. Boyette,

192 S.E.2d 457, 461 (N.C. 1972) (emphasis added); see also

Braswell, 168 S.E.2d at 31 (“[T]he joining in illegal mob action

is not an exercise of reasonable care; in so doing plaintiff

assumed the risk of whatever injury he might receive as a

result.”). Here, Turner obviously knew Officer Dawson had

pulled out his Taser, focused its laser sight on Turner’s chest,

and was prepared to shoot Turner with enough electrical current

to cause his collapse if necessary, yet in the face of all this

Turner continued to advance on the officer in a hostile manner.

Certainly it was foreseeable, if not obvious, that Turner would

be injured by the officer’s response.

46
 Fontenot next contends that regardless of how the doctrine

of contributory negligence would apply in a non-products-

liability case, language in the North Carolina Products

Liability Act (“the Act”) prevents application of the doctrine

here. The plaintiff contends that any contributory negligence

on Turner’s part in the fatal incident cannot be a defense to

the products liability action against the Taser manufacturer

because Turner was not the user of the product, the Taser. I

disagree. The North Carolina General Assembly adopted the Act,

which added the new Chapter 99B to the North Carolina Code,

effective October 1, 1979. See 1979 N.C. Sess. Laws Ch. 654.

The Legislative Research Commission, which was directed by the

General Assembly to study the law, explained that the

comprehensive legislation was designed to protect manufacturers,

retailers, and wholesalers from “rapidly escalating premiums for

products liability insurance and [the] potential non-

availability of such coverage . . . [b]y codifying North

Carolina’s case law, removing uncertainty in the statutes of

limitations for products liability actions, and by establishing

an absolute time after the purchase of a product beyond which no

action can be maintained.” Product Liability Report to the 1981

General Assembly at 2 (Jan. 14, 1981).

47
 N.C.G.S. § 99B-4 concerns the doctrine of contributory

negligence in products liability cases. As originally enacted,

it provided:

No manufacturer or seller shall be held liable in any
product liability action if:

(1) the use of the product giving rise to the
product liability action was contrary to any express
and adequate instructions or warnings delivered with,
appearing on, or attached to the product or on its
original container or wrapping, if the user knew or
with the exercise of reasonable and diligent care
should have known of such instructions or warnings;
provided, that in the case of prescription drugs or
devices the adequacy of the warning by the
manufacturer shall be determined by the prescribing
information made available by the manufacturer to the
health care practitioner; or

(2) the user discovered a defect or unreasonably
dangerous condition of the product and was aware of
the danger, and nevertheless proceeded unreasonably to
make use of the product and was injured by or caused
injury with that product; or

(3) The claimant failed to exercise reasonable
care under the circumstances in his use of the
product, and such failure was a proximate cause of the
occurrence that caused injury or damage to the
claimant.

See 1979 N.C. Sess. Laws Ch. 654 (emphasis added). 4 Effective

January 1, 1996, the legislature amended the Act in several

respects. As is relevant here, § 99B-4(3) was changed as

follows:

4
“‘Claimant’ means a person or other entity asserting a
claim and, if said claim is asserted on behalf of an estate, an
incompetent or a minor, ‘claimant’ includes plaintiff’s
decedent, guardian, or guardian ad litem.” N.C.G.S. § 99B-1(1).

48
 (3) The claimant failed to exercise reasonable
care under the circumstances in histhe use of the
product, and such failure was a proximate cause of the
occurrence that caused the injury or damage to the
claimantcomplained of.

1995 N.C. Sess. Laws Ch. 522.

Consistent with the General Assembly’s intention in

enacting the Act, the North Carolina Supreme Court has

consistently held that the effect of § 99B-4(1) and (3) – in

their pre-amendment form – was “merely [to] codify the doctrine

of contributory negligence as it applies in” products liability

actions, and to “set[] out or explain[] more specialized fact

patterns which would amount to contributory negligence in a

products liability action.” Champs Convenience Stores, Inc. v.

United Chem. Co., 406 S.E.2d 856, 860 (N.C. 1991). Thus, the

court has emphasized that “[i]n a product liability action

founded on negligence, there is no doubt that plaintiff’s

contributory negligence will bar his recovery to the same extent

as in any other negligence case.” Smith v. Fiber Controls

Corp., 268 S.E.2d 504, 506 (N.C. 1980) (alterations omitted).

Drawing on the language of § 99B-4(3), Fontenot maintains

that because the statute refers to a claimant “fail[ing] to

exercise reasonable care under the circumstances in the use of

the product,” a claimant can be found contributorily negligent

in a products liability case only if he used the product.

Fontenot argues that if we do not construe “in the use of the

49
product” to limit the type of negligence on the part of a

claimant that can bar recovery, we are essentially reading that

language out of the statute. Were we writing on a clean slate,

Fontenot’s proposed construction might have some appeal.

Unfortunately for Fontenot, however, her argument is clearly in

conflict with the North Carolina Supreme Court, which has

construed the statute as merely codifying preexisting common law

rules and establishing their application in certain

particularized fact patterns without making any new rules for

products liability cases. Indeed, we have already rejected a

construction very similar to the one Fontenot urges on this

basis and so has the North Carolina Supreme Court. See Jones v.

Owens-Corning Fiberglas Corp., 69 F.3d 712 (4th Cir. 1995);

Nicholson v. American Safety Util. Corp., 488 S.E.2d 240 (N.C.

1997) (“Nicholson II”).

In Jones, the plaintiffs worked for many years for a plant

that manufactured a product insulated with asbestos. Exposed to

asbestos on a daily basis, the plaintiffs eventually developed

asbestosis and lung cancer and later filed products liability

suits against the asbestos manufacturer. The district court

consolidated the cases and granted partial summary judgment to

the plaintiffs on the issue of whether they could be held

contributorily negligent as a result of their long-term smoking.

When the plaintiffs later prevailed on their claims at trial,

50
the defendant appealed, arguing, as relevant here, that the

district court erred in granting partial summary judgment on the

contributory negligence issue.

We reversed the judgment. In so doing, we considered the

argument that § 99B-4(3)’s reference to a plaintiff’s “fail[ure]

to exercise reasonable care under the circumstances in his use

of the product” demonstrated that in products liability actions

a plaintiff’s negligence can only bar recovery if it is the

plaintiff’s use of the product that is negligent. See id. at

719-22. We noted, however, that the North Carolina Supreme

Court has held that § 99B-4(3) “‘reaffirms the applicability of

contributory negligence as a defense in product liability

actions’” and “‘merely codifies the doctrine of contributory

negligence as it applies in actions brought under Ch. 99B.’”

Id. at 719 (quoting Smith, 268 S.E.2d at 510, and Champs, 406

S.E.2d at 860) (alteration omitted). We therefore concluded

that “the statutory focus [of § 99B-4(3)] is not . . . merely on

[the plaintiffs’] ‘use of the product’ per se” but rather on

whether they “‘failed to exercise reasonable care under the

circumstances in [their] use of the product.’” Id. at 721-22

(emphasis omitted) (final alteration in original). We observed

that our interpretation was “based on the plain language of the

entire statute . . . and the definitive interpretation placed

thereon by the North Carolina Supreme Court, not on certain

51
statutory language read in isolation.” Id. at 721. Because

under the plaintiffs’ own theory of the case, their smoking

combined with their asbestos exposure “‘synergistically’” to

substantially increase their risk of getting lung cancer, we

concluded that their long-term smoking could be found to be

contributory negligence barring their recovery. Id. at 720.

Citing Jones with approval, the North Carolina Supreme

Court reached a similar conclusion on similar facts in Nicholson

II. In that case, the plaintiff, an electrical lineman, was

working on a project extending an overhead power line. He was

wearing a protective helmet and safety gloves, but his helmet

blew off multiple times and he eventually decided to continue to

work without retrieving it. When an energized line either

touched or came close to touching his unprotected head, he was

severely injured. In a products liability action against the

manufacturer and distributor of the gloves, the trial court

granted summary judgment against the plaintiff, concluding, as

is relevant here, that recovery was barred as a matter of law

under the doctrine of contributory negligence because of his

continuing to work after he lost his helmet. See id. at 243.

On appeal to the North Carolina Court of Appeals, plaintiff

maintained that “contributory negligence does not apply unless

plaintiff’s use of the gloves was unreasonable under the

circumstances, regardless of any alleged failure otherwise to

52
employ safety devices and act in an appropriate manner.”

Nicholson v. American Safety Util. Corp., 476 S.E.2d 672, 679

(N.C. Ct. App. 1996) (“Nicholson I”). The Court of Appeals

agreed based on its construction of § 99B-4(3) and further noted

that “in the cases before our Courts in which contributory

negligence under G.S. 99B-4 has been alleged, all have involved

the plaintiff’s use of the alleged defective product.” Id. at

679-80. In light of the fact that none of the plaintiff’s

alleged contributory negligence actually concerned the manner in

which he used the gloves, the court reversed the grant of

summary judgment on contributory negligence. See id. at 680.

The North Carolina Supreme Court then granted discretionary

review and unequivocally rejected the construction given the

statute by the intermediate appellate court. See Nicholson II,

488 S.E.2d at 241. The North Carolina Supreme Court noted, as

we did in Jones, that it had previously construed § 99B-4(3)

merely to codify common law contributory negligence rules for

actions brought under the new § 99B and that it did “not create

a different rule for products liability actions.” Id. at 244;

see id. at 243. The court therefore held, as we did, that

§ 99B-4(3) “does not limit the [contributory negligence] defense

to the plaintiff’s misuse of the product.” Id. at 241.

The argument Fontenot makes to us now fails for the very

same reasons that the plaintiffs’ arguments failed in Jones and

53
Nicholson II. The North Carolina Supreme Court has consistently

held that § 99B-4 merely codifies generally applicable common

law rules and explains how those rules apply in particular

factual scenarios but does not make special rules for products

liability cases. 5 Those generally applicable common law rules

dictate that no recovery may be had when a plaintiff’s

negligence was a proximate cause of his injuries. Whether the

claimant used the product or had it used on him makes no

difference. 6

5
Fontenot identifies language in § 99B-4(3) that, when read
in isolation, might suggest that only a plaintiff’s use of the
defective product may constitute contributory negligence.
However, the language Fontenot identifies is even less
supportive of her position than the language that existed in the
pre-amendment version of the statute that the Jones and
Nicholson II courts considered. While the original version
barred recovery when “[t]he claimant failed to exercise
reasonable care under the circumstances in his use of the
product, and such failure was a proximate cause of the
occurrence that caused injury or damage to the claimant,” the
amended version bars recovery when “[t]he claimant failed to
exercise reasonable care under the circumstances in the use of
the product . . . .” 1979 N.C. Sess. Laws Ch. 654 (emphasis
added); 1995 N.C. Sess. Laws Ch. 522 (emphasis added); see Jones
v. Owens-Corning Fiberglas Corp., 69 F.3d 712, 721 (4th Cir.
1995) (observing that our conclusion that the focus of § 99B-
4(3) was not on the plaintiff’s use of the product was “based on
the plain language of the entire statute . . . and the
definitive interpretation placed thereon by the North Carolina
Supreme Court, not on certain statutory language read in
isolation”).
6
Fontenot asserts that the fact that no cases have applied
contributory negligence under North Carolina law to bar recovery
when the plaintiff was not the user of the product indicates
that North Carolina courts would not apply the doctrine in that
(Continued)
54
 Fontenot identifies certain language from the opinions in

Jones and Nicholson II that she contends supports her position

that only circumstances during the plaintiff’s use of the

product may constitute contributory negligence in products

liability cases. See Jones, 69 F.3d at 722 (“the statute

requires the focus to be on whether [plaintiffs] ‘failed to

exercise reasonable care under the circumstances in [their] use

of the product”) (emphasis added and omitted); Nicholson II, 488

S.E.2d at 244 (“[A]ll of the circumstances during the

plaintiff’s use of the product must be considered.” (emphasis

added)). Again, however, context is key. In concluding that

all of the plaintiff’s conduct during his use could be

considered, the Jones and Nicholson II courts were merely

rejecting the proposition that only some of that conduct –

namely, “plaintiff’s conduct with respect to the product itself”

– could be considered. Nicholson II, 488 S.E.2d at 244. This

language plainly was not intended to describe the outer

circumstance. However, this fact is no more dispositive than it
was in Nicholson I. See 476 S.E.2d 672, 679 (N.C. Ct. App.
1996) (“[I]n the cases before our Courts in which contributory
negligence under G.S. 99B-4 has been alleged, all have involved
the plaintiff’s use of the allege defective product.”). It
simply reflects that North Carolina has not been called upon to
decide a case with those particular facts. TI can just as
easily make the point that there is no case refusing to apply
contributory negligence under North Carolina law on the basis
that the plaintiff was not the user of the product.

55
boundaries of what conduct can be considered contributory

negligence.

In sum, our conclusion in Jones – that § 99B-4 created no

new contributory negligence rules in products liability cases,

but rather codified the existing common law rules and set out

certain fact-pattern applications of those rules – also requires

rejection of plaintiff’s proposed construction in this case.

And, even were we not bound by Jones, the North Carolina Supreme

Court’s decision in Nicholson II also makes it clear that that

court would reject plaintiff’s proposed construction as well. 7

For these reasons, I believe the district court erred in denying

TI’s motion for judgment as a matter of law. I respectfully

dissent from the majority’s contrary holding.

7
Because officers generally use their Tasers only against
suspects who are acting unreasonably, it is true that North
Carolina’s contributory negligence rule would usually prevent
recovery under a negligence theory for these suspects’ resulting
injuries. However, that is simply the consequence of North
Carolina’s hard, all-or-nothing contributory negligence rule.
It is not for us to judge the wisdom of North Carolina’s rule
from a policy standpoint, but only to apply it.

56