[lklawson]

This is a story you NEED TO READ.

A person I know locally came to me privately asking advice. Because this person came privately, I will be redacting all PII.

This person purchased a kydex holster custom made for this person's Sig P365XL from a local maker. It's a pretty vanilla IWB with a standard belt clip. This person was getting ready to go out for the evening when this person put the holster on at about 3:00 waistband then holstered the P365XL. An Unintended Discharge immediately occurred as the firearm was being holstered, sending a 124gr. 9mm hollow point down the barrel. The injury was minimal, thank God; it creased this person's outer thigh for about 4" or so (judging by the cell phone photo I was shown). EMS was called and eventually also the police. This person received stitches in the Emergency Room and was discharged. The police took the firearm, cartridge case, and wrote a report. The firearm has since been retrieved from the Police. The official police report states that the cause of the accident was due to a defective holster. The trigger pocket was over-molded and forced in so far that when the firearm is inserted into the holster, the kydex indentation actually catches on the trigger, effectively pulling the trigger. The officer on scene eventually demonstrated this to this person.

This person took the holster back to the maker who apologized and gave this person a refund. I suggested that this person ask the maker to pay the medical expenses; this person has insurance but there is always an out-of-pocket expense.

This person lives in an apartment. The landlord was given a copy of the police report (apparently this is SOP?). The landlord is now talking about evicting this person because of the UD.

Because the holster was over-molded, this person now has a permanent disfiguring injury (it will scar), is out-of-pocket for some amount of medical expenses, had to temporarily be without the preferred self defense firearm, and might be evicted.

And before you ask, no, "this person" is not me. I'm too cheap to buy a Sig.

Still, this could have been much worse. If the firearm had been canted in toward the leg a tiny bit the leg could have been permanently debilitated, or, worse yet, if it had been an AIWB, this person might have been killed.

Be careful about your holsters.

Peace favor your sword,
Kirk

 

[Visper]

Be careful about your holsters.

This 1000%.

I always check. For the most part I do buy "brand name" or at least very good rep manufacturer's. At the very least read the Amazon reviews if possible.

This is definitely a case for a manual safety on your firearm, unless you carry condition 3... and I know some people that carry in condition 3 just for that reason... they are afraid of a AD.

Now, that being said, it is still scary. Everyone should check their holster - especially their carry one or ones. I always practice drawing from my carry holster, mostly with dummy rounds to practice clears at same time. That would give you muscle memory practice for said holsters. Everyone should be almost 2nd nature drawing from your carry holster anyway.

My boss carries condition 3, he has it down pretty well. Still never be as fast as one in the pipe.

Every one of my carry guns do not have a manual safety, you have to get to a point to trust it.

Practice, practice, practice people!! If anything you'll find out how well your holster works.

 

[FlashBang]

The person should have dry fit the holster with an unloaded firearm before ever trying to use it with a loaded weapon. Had they done that they would have found the issue before the ND, that's what it was.. an ND not a UD.

 

[lklawson]

The person should have dry fit the holster with an unloaded firearm before ever trying to use it with a loaded weapon.

I agree.

an ND not a UD.

I disagree. I have a definite issue with the idea that any unintended discharge can be eventually traced back to negligence. I do not believe that this is a case of user negligence. It was a defective product.

Peace favor your sword,
Kirk

 

[RACHGIER]

I agree.

I disagree. I have a definite issue with the idea that any unintended discharge can be eventually traced back to negligence. I do not believe that this is a case of user negligence. It was a defective product.

Peace favor your sword,
Kirk

Which made both the maker and end user negligent. Neither of them intended for the discharge to occur, but their failures to perform due diligence lead to a completely and totally avoidable incident that resulted in injury but could have easily ended in death.

Both parties could and should have test fit the appropriate firearm before delivery and/or use. Would you, as a reasonable individual, just jam a loaded firearm in to a brand new, freshly strapped on and untested holster?

 

[lklawson]

Which made both the maker and end user negligent. Neither of them intended for the discharge to occur, but their failures to perform due diligence lead to a completely and totally avoidable incident that resulted in injury but could have easily ended in death.

Both parties could and should have test fit the appropriate firearm before delivery and/or use. Would you, as a reasonable individual, just jam a loaded firearm in to a brand new, freshly strapped on and untested holster?

No I wouldn't. But in any other industry would we be assigning Negligence to the person who received a defective product? If a person takes their car in for repair and the mechanic screws up and it leaks CO into the cab, is the owner negligent because he didn't test for carbon monoxide? If a person buys a defective microwave oven and it leaks RF so bad that it stops someone's pacemaker is the consumer Negligent because he didn't do an RF test? Is there any other product which someone could buy that the purchaser would be considered Negligent if they used it In Good Faith, but product was defective? Of course not. The purchaser of a product has a Reasonable Expectation that the product will perform within specs and is not defective. The user is not Negligent if they receive a defective product and use it In Good Faith.

In the "gun community" we take safety and personal responsibility incredibly serious, with good reason. We are always under attack by gun prohibitionists and we know the worst outcomes that could happen. Most of us would "dry fit" the gun first, taking additional cautions beyond what we normally would for almost any other product; not because failing to do so makes us Negligent, but out of a well-earned abundance of caution.

So, yes, calling this event Negligence on the part of the user is, well, wrong. Could this person have done something to (maybe) find the issue ahead of time? Yes. Was it Negligent? No, at least not in any legal or generally moral sense of the word.

That said, again, as I pointed out already, even if it's not negligent to fail to do so, take extra caution with your holsters. This person wasn't technically Negligent but this person did suffer a negative outcome, and could have suffered worse, which could have been avoided with what is considered SOP by many in the "gun community."

Peace favor your sword,
Kirk

 

[Pistolkitty]

Let's say this person did dry test it first. This particular issue could easily not be exposed with an empty gun- without something in there to go bang when holstered, how would the person be able to tell?

 

[lklawson]

Let's say this person did dry test it first. This particular issue could easily not be exposed with an empty gun- without something in there to go bang when holstered, how would the person be able to tell?

That's a good point. I assumed that the person did not dry fit the holster, but maybe this person did. I agree that it might not be obvious or might be just enough to only engage the trigger occasionally.

I'll try to get in touch with this person and ask.

Peace favor your sword,
Kirk

 

[lklawson]

I contacted the person and this person verified for me that they did, in fact, dry fit the holster looking for fit and other issues. This seems to be an intermittent problem, apparently.

Again, as Pistolkitty points out, it might not be readily obvious with a striker-fired firearm.

Peace favor your sword,
Kirk

 

[RACHGIER]

No I wouldn't. But in any other industry would we be assigning Negligence to the person who received a defective product? If a person takes their car in for repair and the mechanic screws up and it leaks CO into the cab, is the owner negligent because he didn't test for carbon monoxide? If a person buys a defective microwave oven and it leaks RF so bad that it stops someone's pacemaker is the consumer Negligent because he didn't do an RF test? Is there any other product which someone could buy that the purchaser would be considered Negligent if they used it In Good Faith, but product was defective? Of course not. The purchaser of a product has a Reasonable Expectation that the product will perform within specs and is not defective. The user is not Negligent if they receive a defective product and use it In Good Faith.

In the "gun community" we take safety and personal responsibility incredibly serious, with good reason. We are always under attack by gun prohibitionists and we know the worst outcomes that could happen. Most of us would "dry fit" the gun first, taking additional cautions beyond what we normally would for almost any other product; not because failing to do so makes us Negligent, but out of a well-earned abundance of caution.

So, yes, calling this event Negligence on the part of the user is, well, wrong. Could this person have done something to (maybe) find the issue ahead of time? Yes. Was it Negligent? No, at least not in any legal or generally moral sense of the word.

That said, again, as I pointed out already, even if it's not negligent to fail to do so, take extra caution with your holsters. This person wasn't technically Negligent but this person did suffer a negative outcome, and could have suffered worse, which could have been avoided with what is considered SOP by many in the "gun community."

Peace favor your sword,
Kirk

Negligence is defined as failing to take the proper care in doing something. You are blindly ignoring the fact that negligence isn't automatically criminal. As a matter of fact, 90% of negligence cases are civil in nature. Basically if your actions, or inaction, are significantly different than what a reasonable individual would do in a similar situation... you are being negligent. So as per your own post, the "victim" is in fact technically negligent for not following gun community SOP. In addition to that, it was a CUSTOM holster. It was not a commercially produced product that would fall under standard liability laws and testing/certification processes. Here's an example. If I pay Steve to fabricate a lift kit for my truck, then I slap it on in my driveway and take off but it makes a hard left in to the neighbor's house... I'm negligent because I took a custom ordered, one-off piece of kit that isn't avaliable to anyone else and added it to my perfectly functioning and reasonably safe piece of equipment and it IMMEDIATELY malfunctioned causing injury to another person or property because I failed to take reasonable care to ensure it's functionality. Even if Steve is a reputable lift kit manufacturer, because I took on the responsibility of applying it to my vehicle, I am negligent.

So technically both the victim and the holster maker are negligent in this situation, because neither one of them function checked it.

Let's say this person did dry test it first. This particular issue could easily not be exposed with an empty gun- without something in there to go bang when holstered, how would the person be able to tell?

Your reasoning kind of loses steam when the police investigation did in fact discover the defect and did manage to reproduce the same result of the weapon being discharged due to contact with the holster on several occasions.

Personally I am meticulous with a new holster.

EDIT: And now it would appear stories are changing. Initially the holster was so overmolded it was apparent and the police easily discovered the cause of the ND. Now it's an intermittent issue that wasn't discovered during multiple dry fit tests...

 

[lklawson]

So technically both the victim and the holster maker are negligent in this situation, because neither one of them function checked it.

Turns out the person did actually dry fit. The issue is either intermittent or the person could not detect the issue. In any case, it appears that this person did, in fact, do the due diligence.

That aside, I stand by my original statement, a consumer using a product in good faith is not negligent.

Peace favor your sword,
Kirk

 

[RACHGIER]

Turns out the person did actually dry fit. The issue is either intermittent or the person could not detect the issue. In any case, it appears that this person did, in fact, do the due diligence.

That aside, I stand by my original statement, a consumer using a product in good faith is not negligent.

Peace favor your sword,
Kirk

I read the updates and I still stand by it being the users ND. The story is changing. If an on scene officer was able to recreate the conditions that caused ND while still on scene, that's not an intermittent issue. If the holster was so obviously overmolded and deformed in to the trigger guard, it's an ND due to lack of proper inspection.

I'm betting that the malfunction happens when the firearm is being holstered the user applies pressure to the side of the holster with their trigger finger causing the nownotsoobviousovermolding to slip in to the trigger guard and make contact with the trigger.

 

[moona11]

Either way ND or UD. It was the holster makers faulty product. He should be responsible for damages. Tell your friend to get a lawyer.

 

[FlashBang]

Either way ND or UD. It was the holster makers faulty product. He should be responsible for damages. Tell your friend to get a lawyer.

Most likely be found to be contributory negligence.

 

[RACHGIER]

Either way ND or UD. It was the holster makers faulty product. He should be responsible for damages. Tell your friend to get a lawyer.

That's not in question at all, but the burden of where 51% of the negligence lies will determine how that question is answered in court.

 

[lklawson]

I read the updates and I still stand by it being the users ND. The story is changing. If an on scene officer was able to recreate the conditions that caused ND while still on scene, that's not an intermittent issue. If the holster was so obviously overmolded and deformed in to the trigger guard, it's an ND due to lack of proper inspection.

I'm betting that the malfunction happens when the firearm is being holstered the user applies pressure to the side of the holster with their trigger finger causing the nownotsoobviousovermolding to slip in to the trigger guard and make contact with the trigger.

I guess we're just not going to agree on this. I maintain that it is perfectly reasonable to expect a product to function as designed and intended, nor is it negligence of any kind, legal, moral, or procedural, to assume that the product will work as intended without defect.

On a side note, I strongly believe that claiming that such a non-negligent action was, in fact, somehow negligence only gives the gun prohibitionists ammunition to use against us.

Peace favor your sword,
Kirk

 

[lklawson]

Either way ND or UD. It was the holster makers faulty product. He should be responsible for damages. Tell your friend to get a lawyer.

You are absolutely correct and that is part of the advice that I gave this person.

Peace favor your sword,
Kirk

 

[lklawson]

I also posted this on the Kel Tec forum and one poster there replied that a firearm with a Glock-style trigger dingus probably would have been immune to this because it is very unlikely that the over-molding would have gotten so deep into the trigger guard to engage the dingus while the trigger was being forced back.

Now, truth to be told, I've never been a big fan of the trigger dingus, and I've often stated that it's not an actual safety because the shooter is doing the same thing to both pull the trigger and <cough> "disengage" the "safety." But, ya know, I might have to rethink that position, or at least take a much more nuanced understanding of it with this event in mind.

Peace favor your sword,
Kirk

 

[lklawson]

Most likely be found to be contributory negligence.

I have a friend who's mother took her car in to get the tires rotated. On the way back home afterwards, she felt a strong vibration from the front and called the shop who told her that it it continues that she should bring it back in. She turned around and on the way back, the front passenger side wheel literally came off. There was damage to the vehicle and the city street. Seems that the shop had forgotten to put the lug nuts back on that wheel. This was an incident that she could have prevented if she had immediately pulled over and inspected the wheels, or inspected the wheels before she left the shop; you know, literally "kicked the tires." But she was operating on Good Faith that the shop had performed their job appropriately. The fact that she could have found the issue herself fairly easily does not make her negligent in any way, not even contributorily.

Peace favor your sword,
Kirk

 

[ajole]

Looks at P365, looks questioningly at 4 different holsters, 3 kydex, one leather…..then remembers….he usually carries condition 3.

Winning this particular challenge. Usually. Still going to look some more, and check harder.

Wonder if the flat trigger makes a difference? A thumb safety would have changed things as well.