Trial News

In a much-watched case against the manufacturer, distributor, and seller of the semiautomatic rifle used in the 2012 mass shooting at Sandy Hook Elementary School in Newtown, Conn., the Connecticut Supreme Court has ruled that one of the plaintiffs’ claims based on improper marketing and advertising can move forward. The court affirmed dismissal of the plaintiffs’ other claims, including a novel theory that the gun was negligently entrusted to the public. But it reinstated the plaintiffs’ claim that the defendants engaged in illegal advertising practices related to the gun and that these promoted use of the rifle in a violent, criminal manner. (Soto v. Bushmaster Firearms Int’l, LLC, 2019 WL 1187339 (Conn. Mar. 19, 2019).)

The families of nine people who were killed in the mass shooting brought a wrongful death action against the manufacturer, distributor, and retailer of the Bushmaster XM15-E2S semiautomatic rifle used in the massacre. The plaintiffs alleged that the defendants had negligently entrusted the rifle to the public and that they violated the Connecticut Unfair Trade Practices Act (CUTPA) when they advertised and marketed the weapon to highlight its lethalness and firepower. They also allege that the defendants continued to sell the weapon despite overwhelming evidence that it was unfit for civilian use and was repeatedly used in mass shootings.

The defendants moved to dismiss, arguing that the federal Protection of Lawful Commerce in Arms Act (PLCAA) immunizes firearms manufacturers, distributors, and sellers from liability when third parties use their products to commit crimes. They also argued that the plaintiffs did not have standing to bring a CUTPA claim because they had no direct business relationship with the defendant.

The plaintiffs countered that their claims fell within the negligent entrustment exception to the PLCAA. The trial court ruled in the defendants’ favor, and the plaintiffs appealed to the Connecticut Supreme Court, which affirmed 4-3 the dismissal of the negligent entrustment claim but held that the CUTPA claim could proceed on a narrow basis. Dismissing the negligent entrustment claim, the court reasoned that because the weapon at issue was legal at the time of the shooting, the defendants could not be liable for someone committing a crime with that weapon under state law and the PLCAA because the definition of negligent entrustment does not encompass the broad boundaries that the plaintiffs suggested.

The plaintiffs did not allege that the defendants knew or had reason to know that a “direct entrustee”—namely, the purchaser—of the firearm was likely to use it in an unsafe manner. The plaintiffs advocated for a broader reading of negligent entrustment to account for the reasonable foreseeability that a dangerous instrument like an assault rifle could land in the hands of someone who would misuse it, but the court refused to expand the scope of negligent entrustment to include this category. Negligent entrustment requires that the entrusting party had “actual or constructive knowledge that misuse by the entrustee was foreseeable.” But this is limited to the direct entrustee and does not include other parties of whom the entrustor is unaware  may use the firearm at some point. It reasoned that broadening negligent entrustment to encompass an entire category of young men who are most likely to commit a mass shooting would be improper and akin to outlawing the commercial sale of assault weapons to the civilian population.

But the court reinstated the CUTPA claim, concluding that the plaintiffs have standing to bring that claim and that the PLCAA does not preempt CUTPA’s immoral advertising provision. On the standing issue, the court determined that “because the principal evils associated with unscrupulous and illegal advertising are not ones that necessarily arise from or infect the relationship between an advertiser and its customers, competitors, or business associates . . . a party directly injured by conduct arising from such advertising can bring an action pursuant to CUTPA even in the absence of a business relationship with the defendant.”

The plaintiffs alleged that the defendants engaged in “unethical, oppressive, immoral, and unscrupulous” marketing and advertising such that it encouraged unlawful use of the gun. To support their illegal advertising claims, the plaintiffs offered evidence that the defendants improperly extolled in their marketing the deadly, military-grade capabilities of the XM15-E2S. They sold the gun with a 30-round magazine—more than is standard for other consumer guns for hunting and sport—advertised with images of soldiers on combat missions, highlighted the weapon’s military-grade performance, and touted its destructive power.

The court rejected the defendants’ contention that the CUTPA claim was a strict products liability claim that the rifle was “unreasonably dangerous” and should be preempted under state products liability law. The complaint contained no traditional products liability allegations, such as inadequate warnings, and the plaintiffs offered a sufficient basis for advertising violations, the court found.

The court also reviewed the PLCAA, its legislative history, and whether CUTPA could override PLCAA’s protections for the defendants. It specifically considered the “predicate exception,” which provides for civil liability when “a manufacturer or seller of a [firearm] knowingly violated a State or Federal statute applicable to the sale or marketing of the [firearm]” that proximately caused a plaintiff’s injuries. Focusing on the meaning and scope of the term “applicable,” the court ruled that it can be interpreted broadly since Congress did not narrow this exception with language such as “directly” or “expressly.” It further noted that the exception specifically mentions marketing and that at the time the PLCAA was passed, no federal statute governing the marketing of firearms existed that would preempt a state law.

Bridgeport, Conn., attorney Josh Koskoff, who represents the plaintiffs, explained, “We’re not starting from a completely blank slate here. You don’t get to a marketing campaign like they have had targeting young men that wasn’t well thought out. These families weren’t the target audience for Remington. The Sandy Hook shooter was their target. He was in the crosshairs of their marketing campaign, and he knew a lot about what that gun could do.”