Sandy Hook Victims Avoid Dismissal of Lawsuit Against Assault Rifle Manufacturer
The gun industry suffered a stunning defeat in a 4-3 Connecticut Supreme Court decision that allowed families of Sandy Hook shooting victims to seek damages from Bushmaster Firearms, the manufacturer of the assault rifle that the shooter used in the mass slaying. Bushmaster is a subsidiary of the Remington Outdoor Company.
The decision allows the lawsuit to proceed under a narrow theory that would not apply to most murders committed with firearms. Whether the decision will pave the way for other shooting victims in other states to sue manufacturers of assault rifles is therefore unclear.
The Sandy Hook Shooting
Adam Lanza killed twenty first grade children and six staff members at Sandy Hook Elementary School in less than five minutes on December 14, 2012. He was able to murder his victims efficiently by using an XM15-E2S semiautomatic rifle manufactured by Bushmaster Firearms.
The XM15 is an assault rifle, similar to the AR-15. A semiautomatic rifle allows a bullet to be fired with each trigger pull, eliminating the time it takes to cock the weapon between shots.
The estates of several deceased students sued Bushmaster and related companies, as well as the retailer that sold the weapon to Lanza’s mother and the distributer that sold it to the retailer. They brought the lawsuit under two primary theories. They first alleged that the defendants were negligent is selling a military-style assault rifle to a civilian. They then alleged that the defendants violated a Connecticut state law when it advertised and marketed the rifle.
PLCAA Shields Gun Sellers from Liability
In response to gun industry lobbyists and pressure from the National Rifle Association, Congress in 2005 enacted the Protection of Lawful Commerce in Arms Act (PLCAA). The PLCAA broadly immunizes gun manufacturers and retailers that from liability for the sale of guns that are used to commit crimes.
The PLCAA was enacted after cities and individuals brought lawsuits alleging that gun manufacturers should foresee that guns would be used to commit crimes and should be responsible for the predictable consequences of making those crimes possible. Those lawsuits primarily targeted handguns, particularly inexpensive and easily concealable guns known colloquially as Saturday Night Specials.
The PLCAA recognizes a number of exceptions to immunity. Gun sellers can be sued for transferring a gun to a buyer when the seller knows the buyer will use it to commit a violent crime. Manufacturers can be sued for injuries caused by defective guns, but cannot be sued on the theory that guns are inherently dangerous.
Another exception is “negligent entrustment.” As a general rule of law, individuals are not liable for the conduct of others. The doctrine of negligent entrustment departs from that rule by holding people accountable for giving a dangerous product to someone who cannot be trusted to use it safely. Letting a ten-year-old drive a car on a freeway would be an obvious example of negligent entrustment.
In Connecticut, negligent entrustment cases turn on whether the defendant knew or should have known that the person to whom the dangerous product was entrusted was not competent to use it safely. Most states follow the same rule, although some have extended it to impose liability when the defendant gave the dangerous product to a competent individual with reason to believe that it would be shared with someone who was incompetent to use it.
Assault rifles are plainly dangerous products, but the court declined to allow a lawsuit against the gun’s manufacturer or seller on a theory of negligent entrustment. Neither Bushmaster nor the seller had any reason to believe that Lanza’s mother was not competent to use a firearm, that she would allow her son to use it, or that her son was not competent to use the rifle safely.
The court acknowledged that a gun manufacturer might foresee that some purchasers of assault riles will make them available to children who will “use those weapons to commit terrible, random crimes.” Connecticut law, however, imposed liability only when the defendant has specific knowledge that a specific user will use the product in a dangerous way.
The court rejected the contention that “any commercial sale of assault weapons to civilian users constitutes negligent entrustment because the social costs of such sales outweigh the perceived benefits.” The court cited decisions from other jurisdictions that reached the same result. If the social cost of selling assault rifles outweighs the individual benefits of owning them, that decision is likely one that will need to be made by Congress, subject to the Second Amendment challenge that such legislation would immediately encounter.
Sale of Assault Rifles
A Connecticut statute, the Connecticut Unfair Trade Practices Act (CUTPA), permits individuals to sue for financial losses arising from unfair or deceptive practices in the conduct of commerce. States have generally enacted consumer protection laws like CUTPA, which are modeled after the Federal Trade Commission Act.
The plaintiffs based two claims on CUTPA. They first alleged that there is no legitimate civilian use for an assault rifle, and that Bushmaster engaged in an unfair trade practice by selling the rifles despite its knowledge that sales to a civilian market created unreasonable risks to innocent civilians.
The court did not reach the merits of that argument because it concluded that the limitations period for bringing the claim had expired. Lanza’s mother purchased the rifle in 2010 and it was manufactured at some earlier time. The lawsuit was filed in 2014. The court concluded that the three-year statute of limitations for bringing a claim under CUTPA expired before the lawsuit was filed.
The lawsuit was filed within the limitations period for bringing wrongful death actions in Connecticut (two years after death and five years after the event that causes the death) but the court concluded that the CUTPA limitations period applied. The court concluded, however, that Connecticut precedent made the CUTPA limitations period controlling.
Marketing of Assault Rifles
The second theory claimed that Bushmaster violated CUTPA by advertising the assault rifle in an unethical, oppressive, immoral, and unscrupulous manner that promoted its use for illegal activity. Unlike hunting rifles, assault rifles are made to kill humans. While they can be used lawfully for hunting as well as self-defense, target shooting, and collecting, the plaintiffs alleged that Bushmaster marketed the rifle for the purpose of “waging war and killing human beings,” activities in which civilians in Connecticut may not lawfully engage.
Specifically, the complaint alleged that Bushmaster extolled the weapon’s militaristic qualities and advertised it as a weapon that allows a single individual to force multiple opponents to “bow down.” While advertising a rifle’s militaristic attributes might appeal to collectors, it is difficult to understand the invitation to make opponents “bow down” as anything other than an invitation to use the weapon against other humans.
The court first rejected a challenge that the victims’ estates were not protected by CUTPA because the victims were not consumers who purchased the rifle that killed them. As a matter of state law, the court determined that CUTPA protects all individuals who are harmed by unfair trade practices, not just the consumers who purchase a product as a result of unlawful marketing. Courts in other states might reach different conclusions based on differences in state laws.
The court next rejected a challenge based on the statute of limitations. The court interpreted the complaint to allege that Bushmaster continued to use unlawful practices to market the rifle during the limitations period. Those allegations were sufficient to survive a motion to dismiss at the complaint stage, although the plaintiffs will need to prove those allegations to prevail on the merits.
The court also rejected an argument that the CUTPA claim was preempted by Connecticut’s Product Liability Act. The CUTPA claim was not based on the unreasonably dangerous nature of the product but on the promotion of the product for unlawful purposes. The state’s product liability law therefore did not apply.
Rejecting the final state law defense, the court decided that CUTPA permits the recovery of wrongful death damages. CUTPA creates a right to sue when a victim of a CUTPA violation has suffered “any ascertainable loss of money or property, real or personal.” A victim who meets that definition may “recover actual damages.”
Reading those two clauses together might suggest that the only recoverable damages are losses of money or property. That would entitle the plaintiffs to recover burial costs but not the personal injury damages that make up the bulk of wrongful death claims.
The legislature, however, did not expressly limit “actual damages” to lost “money or property.” The court determined that the “ascertainable loss” clause defines the victims who can bring a lawsuit. The “actual damages” clause defines the damages those victims can recover. The legislature’s use of the phrase “actual damages” in other statutes plainly includes the kind of compensatory damages that are awarded in personal injury and wrongful death cases. The court decided that the legislature did not intend to limit damages recoverable by victims who are entitled to bring CUTPA claims.
Having rejected the state law defenses, the court also rejected the argument that the PCLAA bars a CUTPA claim. The PCLAA permits lawsuits alleging that ‘‘a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or marketing of the [firearm], and the violation was a proximate cause of the harm for which relief is sought.” Since the plaintiffs alleged that the defendants knowingly violated the CUTPA and that the victims were harmed by the violation, the CUTPA claim fell squarely within a PCLAA exception.
Impact of Decision
In the end, the court allowed the lawsuit to proceed on the theory that the defendants marketed assault rifles “in a uniquely unscrupulous manner, promoting their suitability for illegal, offensive assaults.” The court noted that it would be up to a jury to determine whether the plaintiffs’ evidence proves that claim.
The U.S. Supreme Court could accept review of the Connecticut Supreme Court’s decision. The U.S. Supreme Court is powerless to overturn the state court’s interpretation of the CUTPA, but it could decide that the PCLAA preempts any CUTPA remedies. Whether the Court would to traverse that minefield to assure that assault rifle manufacturers receive more protection from consumer protection laws than auto or drug manufacturers receive is uncertain.
The extent to which other shootings by killers wielding assault rifles will result in similar lawsuits is also unclear. While most traditional theories for suing gun manufacturers are precluded by the PCLAA, other states have laws that are similar to the CUTPA. Whether lawsuits might succeed in those states under similar theories will depend on the ability of plaintiffs to prove that the assault rifles used to commit murder were promoted as a means for civilians to kill their perceived enemies. If this lawsuit accomplishes nothing else, it will probably encourage assault rifle manufacturers and sellers to tone down the aggressive language they use to advertise their products.