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Tolbert v. American Security Programs, Inc.

United States District Court, District of Maryland

March 26, 2015

PATRICIA TOLBERT Plaintiff,
v.
AMERICAN SECURITY PROGRAMS, INC. Defendant.

MEMORANDUM OPINION

WILLIAM CONNELLY UNITED STATES MAGISTRATE JUDGE

Plaintiff Patricia Tolbert (“Ms. Tolbert”) brought this action against Defendant American Security Programs, Inc. (“ASP”) alleging (a) negligence, (b) negligent hiring and retention and (c) negligent supervision and training and seeking five hundred thousand dollars ($500, 000) in damages. The parties consented to proceed before a United States Magistrate Judge for all further proceedings in the case and the entry of a final judgment. See ECF No. 12. The case thereafter was subsequently referred to the undersigned. See ECF No. 14.

Pending before the court and ready for resolution is ASP’s Motion for Summary Judgment (ECF No. 24). Ms. Tolbert filed a Response in Opposition (ECF No. 27) and ASP filed a Reply (ECF No. 32). No hearing is deemed necessary and the court now rules pursuant to Local Rule 105.6 (D. Md. 2014).

BACKGROUND

Ms. Tolbert, an experienced security officer, sought employment with ASP. On January 10, 2013, via a Letter of Intent, ASP offered Ms. Tolbert a position as a Federal Protective Service (“FPS”) Armed Officer. The offer of employment was contingent upon Ms. Tolbert completing FPS training and other requirements. Upon executing and returning the Letter of Intent, Ms. Tolbert registered to attend an ASP training course, FPS A-9 Remedial, on January 17, 2013. Compl. ¶ 3; Answer ¶ 3.

On January 17, 2013 Ms. Tolbert arrived at ASP’s headquarters for training. From there she and other trainees departed for the shooting range. Upon arrival Ms. Tolbert and the other trainees initially gathered in a classroom. One of the instructors explained in detail firearms safety and range safety operations. Ms. Tolbert and the other trainees signed paperwork including ASP’s Range Safety Rules, see ECF No. 24-8, and Range 82’s[1] Range Safety Rules, see ECF No. 24-9.

While in the classroom Ms. Tolbert noticed the other trainees were carrying a hostler unfamiliar to her. ECF No. 24-6 at 8 (Tolbert Dep. 50:18 - 511:2). When the group relocated to the range, Instructor Scott Butler (“Instructor Scott”) asked the group if anyone has not used this particular hostler. Ms. Tolbert raised her hand. In response Instructor Joshua McMahon (“Instructor Josh”) approached Ms. Tolbert and demonstrated how to remove the weapon from a push-button holster. Id. at 9-10 (Tolbert Dep. 56:12 - 58:3).

Once Instructor Josh provided individualized instructions to Ms. Tolbert on using a pushbutton holster, the trainees proceeded to fire. Despite the instructions Ms. Tolbert still had some questions. She did not express her concerns to Instructor Josh “[b]ecause he stated in the classroom that if we argued with him, we would be asked to leave the range, I said nothing else to him.” Id. at 10 (Tolbert Dep. 59:4-6).

Ms. Tolbert expressed her concerns about being uncomfortable with the push-button holster to some other trainees. These other trainees believed Ms. Tolbert was doing okay because she shot 235 out of 250 on the first course, the highest among all the trainees. During this first relay of live firing, Ms. Tolbert successfully holstered and re-holstered the weapon at least 24 times.[2] Nonetheless Ms. Tolbert continued to be uncomfortable with the push-button hostler. Id. (Tolbert Dep. 59:17 - 60:3).

The group then proceeded to a second series.

Q So you did the first series. Then you started back again at the three yards?
A Yes.
Q Tell me what happened then.
A When Instructor Scott called the commands, we were shooting at the three yards. As I was attempting to reholster the firearm, I was trying to place the firearm into the hostler – – this type of holster, you have to hear a click. I was waiting to hear a click.
Instead of me hearing a click, I heard a fire. I had shot myself in my upper thigh. The firearm was discharged into my upper thigh.
Q You ever hear of anybody doing anything like that before?
A No.
Q Why do you think it discharged?
A Apparently my finger hit the trigger.
Q Did you have your finger on the trigger?
A My finger hit the trigger.
Q When you were reholstering, show me where your hand was in relationship to this weapon. How were you reholstering it?
A My hand was on the butt of the weapon. But I’m fumbling with it trying to insert it. Then apparently my hand hit the trigger.
Q Were you surprised that the gun went off?
A Yes.
Q Why?
A Because I didn’t know that I was shot. I stood there froze[n] for a minute until I started feeling pain.
Q You ever been shot before?
A No.
Q So in order for this gun to go off, clearly your finger would have had to be on or near – – be on the trigger in some way. Is that fair to say?
Unless you’re – – let me put it this way. Unless your finger is on the trigger, unless that trigger is somehow depressed, ...

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