By Dan Jaffe on November 8, 2016
On October 14, 2016 Connecticut Superior Court Judge Barbara Bellis dismissed the Sandy Hook shooting victims’ suit against Remington Arms Company and Bushmaster Firearms International. Judge Bellis held that the plaintiffs’ claims are barred by the Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901, et seq. (PLCAA), and did not fall within any exception to immunity from liability set forth in the PLCAA.
Adam Lanza entered Sandy Hook Elementary School in New Town, Connecticut on December 14, 2012, armed with a Bushmaster AR-15 rifle and killed 26 people, including Plaintiffs’ decedents, and wounding others in less than five minutes. Lanza’s mother purchased this weapon to give to or share with him. In their suit, the plaintiffs allege that the AR-15 was designed for military use, and that selling AR-15s to the civilian market poses an unreasonable risk of physical injury to others by unscreened users such as Adam Lanza, including a mass casualty event.
The defendants moved to strike plaintiffs’ complaint based on the PLCAA. The PLCAA generally prohibits a civil action against a manufacturer or seller of firearms where the firearm functioned as intended and the injury or other harm suffered was the result of criminal or unlawful misuse of the firearm. This prohibition is subject to certain exceptions, two of which were claimed by Plaintiffs: (1) the negligent entrustment exception, for an “action brought against a seller for negligent entrustment or negligence per se;” and (2) the predicate exception, for “an action where a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.” While the PLCAA explicitly preserves certain claims within its enumerated exceptions, it does not create them: “no provision of [PLCAA] shall be construed to create a public or private cause of action or remedy.”
Plaintiffs’ negligent entrustment claim under both Connecticut common law and the PLCAA exception is based on the proposition that selling the AR-15 to the civilian market is a misuse that renders the entrustment tortious. The Court disagreed. Citing McCarthy v. Sturm Ruger & Co., 916 F. Supp. 366 (S.D.N.Y. 1996) (another high profile case involving the Long Island Railroad shooting incident), the Court declined to extend the theory of negligent entrustment to the entire class of nonmilitary, nonpolice civilians–the general public–since that would “imply the general public lacks the ordinary prudence necessary to handle an object that Congress regards as appropriate for sale to the general public.”
The Court further held that Plaintiffs failed to state a valid claim under the PLCAA’s negligent entrustment definition (selling a firearm for use by another person when the seller knows or should know, that the person to whom it is sold “is likely to, and does, use the product in a manner involving unreasonable risk of physical injury”). Here, Adam Lanza’s use of the firearm was the only actionable “use,” and “plaintiffs have not alleged that any of the defendants’ entrustees ‘used’ the firearm within the confines of the PLCAA’s definition of the term.”
Plaintiffs also relied on the “predicate” exception to the PLCAA, which permits an action against a manufacturer or seller which knowingly violates a State or Federal statute applicable to the sale or marketing of a firearm. They contended that the defendants violated the Connecticut Unfair Trade Practices Act (CUTPA), and that this violation was a proximate cause of the harm. The Court rejected this argument. It held that to state a claim under the CUTPA a plaintiff “must allege some kind of consumer, competitor or other commercial relationship with a defendant, and the plaintiffs here have alleged no such relationship” between the Sandy Hook shooting victims and the defendants.The Court struck the amended complaint because it concluded that none of the PLCAA exceptions stated by plaintiffs applied. Plaintiffs’ counsel have announced that they will appeal the decision. The Sandy Hook case is likely far from over.\r\n
Soto, et al v Bushmaster Firearms International, LLC, et al, Docket No. FBT-CV-15-6048103-S (Connecticut Superior Court, Judicial District at Fairfield)