The Return Of College Football

Well, the wait is over. As of tomorrow, college football will have returned. As you may know, we here at Abnormal Use are college football fans. How could we not be? So, to prepare for this momentous occasion, we have prepared a list of links to our prior football related posts. Mind you, some of these posts concern professional australia football players(which seems to result in more litigation). Oh, and let us know which Carolina you’ll be rooting for tomorrow night in the big game! (Since we have offices in both North and South Carolina and lawyers with alma maters in both states, it may be a tense day.).

NFL Litigation May Forever Change Football” (August 19, 2013).

PA vs. NCAA: Does the Commonwealth Have Standing?” (January 16, 2013).

NFL Punter Claims Turf Unreasonably Dangerous” (November 29, 2012).

Former NFL Players Allege NFL Concealed Risks of Injury” (September 14, 2011).

The Return of College Football (And Some Law Stuff)” (September 1, 2011).

South Carolina’s College Football Stadium Parking Jurisprudence” (July 12, 2011).

Oh, and here’s one that sounds like it’s about college football, but it’s really not:

Georgia vs. Texas” (March 25, 2010).

Sixth Circuit Answers Ancient Abnormal Use Question

Several years ago when discussing the case of Turner v. Taser International, Inc., No. 3:10-CV-00125 (W.D.N.C.), we here at Abnormal Use discussed the scope of TASER’s duty to warn of the risks inherent when shocking someone with 5000 volts of pulsed current.  In doing so, we asked the following:

It stands to reason that being shocked with large amounts of electricity may not be synonymous with a trip to the spa.  According to TASER’s website, however, the 5000 volts of electricity exerted by its product have a lower risk of danger than a 110 volt wall outlet.  TASER bases this conclusion on a taser’s pulsated current versus the continuous current found in a wall outlet.  Even at a pulsated rate, 37 seconds still seems like a long time to be subjected to 5000 volts of electricity – especially in the chest area.

A study recently released by the United States Department of Justice indicated that “there is currently no medical evidence that CEDs pose a significant health risk for induced cardiac dysrhythmia when deployed reasonably.” (emphasis added)  Interestingly enough, the study fails to define “reasonably.”  Regardless of how it is interpreted, the risk of injury is present. The question is what is TASER’s duty to warn?

Now, four years later, the Sixth Circuit Court of Appeals has answered our question.

In Mitchell v. City of Warren, et al., No. 14-2075 (6th Cir. 2015), the Sixth Circuit affirmed a Michigan federal court’s granting of summary judgment in favor of TASER in a case involving the tasing death of a 16-year old. The crux of the opinion centered around TASER’s duty (or lack thereof) to warn of the possibility of death. The Court acknowledged that studies have shown that death is a possibility after being struck with the taser. However, it found that studies showing a possibility of death are insufficient to establish a duty to warn.  Specifically, the Court stated:

The plaintiff must show that a manufacturer knew or should have known its product posed the particular risk at issue in case. . . . We have refused to rely on studies establishing that the product can possibly cause an injury to prove that a product probably caused the injury.

Likewise, in regards to the appellant’s arguments that TASER had a post-sale duty to warn, the Court reasoned, “If Taser had no such duty to warn based on the pre-sale information available, it could not be liable if later studies suggested safer ways to design and market its products.” Based on the lack of evidence in the record that the risk of death was no more than a possibility, the Court held that TASER had no duty to warn of such a risk.

So there you have it. At least according to the Sixth Circuit, TASER has no duty to warn of the possibility of death.