Connecticut State Court rules Remington can be sued for Sandy Hook

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pdsmith505

pdsmith505

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https://www.nytimes.com/2019/03/14/nyregion/sandy-hook-supreme-court.html

From the article linked above:

The court agreed with the lower court judge’s decision to dismiss claims that directly challenged the federal law shielding the gun companies from litigation, but found the case can move forward based on a state law regarding unfair trade practices.
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Typically, the Protection of Lawful Commerce in Arms Act provides immunity for firearms manufacturers against lawsuits resulting in the unlawful use of their products and was signed into law in 2006 in response to numerous lawsuits brought by state and local governments designed to disrupt the firearms industry.

The court is allowing the case based on the idea that marketing slogans such as "Consider your man card reissued" were specifically designed to entice people like the shooter to engage in acts of violence.
 
More specifically, that their marketing promoted the

"militaristic and assaultive qualities of the rifle and reinforcing the image of the rifle as a combat weapon that is intended to be used for the purposes of waging war and killing human beings."​

Yet again we see a consequence of the lie that weapons have a proper sporting purpose. My weapons have exactly the purpose outlined in the 2nd Amendment, and there's nothing sporting about it.

Source::https://jud.ct.gov/external/supapp/Cases/AROcr/CR331/331CR865.pdf
 
Just because they can be sued, doesn't mean the suit will be successful. It would be nice to see common sense prevail, that the individual, not advertisement, is responsible for one's own actions. There is hope... :scrutiny:
 
All this is rather disturbing, as well as simply untrue. The AR and "other similar semiatomatic weapons" are not the weapon of of choice for mass shootings (most recently, handguns, and in a couple instances, shotguns have been) although, tragically, were the weapons used in the most high-profile incidents. Yet, the very effectiveness of this type of weapon is precisely why it must be protected by the Second Amendment and its availability never restricted.

Frank Ettin said:
A link to the Court’s opinion is in post 2.
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(the initial arguments)
The plaintiffs’ first theory of liability was that the rifle is a military grade weapon that is grossly ill-suited for legitimate civilian purposes such as self-defense or recreation, that the rifle and other similar semiautomatic weapons have become the weapon of choice for mass shootings and, therefore, that the risks associated with selling the rifle to the civilian market far outweigh any potential benefits, that the defendants continued to sell the rifle despite their knowledge of these facts, and that it therefore was negligent and an unfair trade practice under CUTPA for the defendants to sell the weapon, knowing that it eventually would be purchased by a civilian customer who might share it with other civilian users. The plaintiffs’ second theory of liability was that the defendants marketed the rifle, through advertising and product catalogs, in an unethical,oppressive, immoral, and unscrupulous manner by extolling the militaristic and assaultive qualities of the rifle and reinforcing the image of the rifle as a combat weapon that is intended to be used for the purposes of waging war and killing human beings. The plaintiffs alleged that the defendants advertised this rifle differently from how they would promote and sell rifles intended for legal civilian purposes such as hunting and recreation. In connection with this second theory of liability, the plain-tiffs also alleged that the defendants’ marketing of the rifle to civilians for offensive assault missions was a substantial factor in causing the decedents’ injuries in that L’s attack, had it occurred at all, would have been less lethal if L had not been encouraged by the defendants’ marketing campaign to select the rifle in question as his weapon of choice.

Unfair trade practices, business relationships, CUTPA, negligent entrustment (mostly in the context of automobile usage and cigarettes) -- holy moly, and did you all see the interminable list of footnotes? ... But in the end, it just boiled down to how the company allegedly marketed the weapons:

Specifically, if the defendants did indeed seek to expand the market for their assault weapons through advertising campaigns that encouraged consumers to use the weap-ons not for legal purposes such as self-defense, hunting,collecting, or target practice, but to launch offensive assaults against their perceived enemies, then we are aware of nothing in the text or legislative history of PLCAA to indicate that Congress intended to shield the defendants from liability for the tragedy that resulted.The judgment is reversed with respect to the trial court’s ruling that the plaintiffs lack standing to bring a CUTPA claim and its conclusion that the plaintiffs’ wrongful death claims predicated on the theory that any sale of military style assault weapons to the civilian market represents an unfair trade practice were not barred under the applicable statute of limitations, and the case is remanded for further proceedings according to law; the judgment is affirmed in all other respects.
 
Old Dog said:
All this is rather disturbing, as well as simply untrue. ....
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Now we need to get technical. This is all about a highly technical point of civil procedure (which is one reason the press will get it wrong). This is still in a very preliminary stage, and the plaintiffs haven't won yet. (This lawsuit was previously discussed at length in this thread. I outline very basic civil litigation procedure in this post.)

  1. The plaintiffs appealed the trial courts dismissal of their case on the defendant's motion to strike (the Connecticut name for what is elsewhere called a motion to dismiss or a demurrer).

  2. Making such a motion is one of the very first thing a defendant does when sued. Essentially nothing else has gone on yet.

    • The plaintiff filed the complaint -- the document that say you [the defendant] owe me money and these are the facts that support my claim.

    • The defendant files his motion to strike/motion to dismiss/demurrer which basically says that even if every fact you allege is true as a matter of law you have no valid claim against me.

  3. So the plaintiffs filed the suit alleging various facts. At this stage those facts are assumed to be true. The defendants filed a motion saying the even if those facts are true, the plaintiffs have no valid claim. The trial court agreed and dismissed the plaintiffs' lawsuit. The plaintiffs appealed.

  4. On appeal the Connecticut Supreme Court (CSC) mostly agreed with the trial court. The CSC wrote in the opinion:
    ....For the reasons set forth in this opinion, we agree with the defendants that most of the plaintiffs’ claims and legal theories are precluded by established Connecticut law and/or PLCAA. For example, we expressly reject the plaintiffs’ theory that, merely by selling semiautomatic rifles—which were legal at the time—to the civilian population, the defendants became responsible for any crimes committed with those weapons....
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  5. However, the CSC disagreed with the trial court on one point. The CSC writes:
    ....The plaintiffs have offered one narrow legal theory, however, that is recognized under established Connecticut law. Specifically, they allege that the defendants knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior. Following a scrupulous review of the text and legislative history of PLCAA, we also conclude that Congress has not clearly manifested an intent to extinguish the traditional authority of our legislature and our courts to protect the people of Connecticut from the pernicious practices alleged in the present case. The regulation of advertising that threatens the public’s health, safety, and morals has long been considered a core exercise of the states’ police powers. Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations. We affirm the trial court’s judgment insofar as that court struck the plaintiffs’ claims predicated on all other legal theories.....
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  6. So --

    • The CSC did not find that anything the plaintiffs claimed was true. The CSC merely, as required, assumed those facts were true in order to then decide the open questions of law.

    • The CSC determined that most of the plaintiffs claims were not valid, legal claims; and those claims have been decided in favor of the defendants.

    • The CSC is allowing the lawsuit to go forward on the one legal theory of liability remaining. That legal theory is based on claimed liability under a Connecticut consumer protection law. In doing so the CSC also decides that the claim under the particular state law was not precluded by the PLCAA.

  7. The plaintiffs will still need to prove that the facts alleged to support their last viable theory of liability are true.

  8. Also, the defendants can appeal to the federal courts of whether, as found by the CSC, a suit based on the particular state law is not precluded by the PLCAA.

There's still a lot of waiting and seeing to be done as the lawsuit grind through the process.
 
One thing the plaintiffs would have to prove is that the killer had seen Bushmasters advertising,knew that the rifle he stole from his mother after he killed her was made by Bushmaster,and that the advertising influenced his choice in selecting that particular rifle. I'd say the plaintiffs are asking a dead guy to explain a lot,especially a dead guy who was autistic and schizophrenic. In a trial before a fair and impartial court I would put my money on the defense.
 
CapnMac said:
We will likely need to merge with:
https://www.thehighroad.org/index.php?threads/connecticut-supreme-court-allows-sandy-hook-parents’-lawsuit-against-gun-maker-to-proceed.848932/
. . . .
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We could merge it, but I'd actually let both run. That leaves an outlet for the general / social / political / etc., discussions while we keep this one more tightly focused on the legal aspects.

The Plaintiffs still have an awful lot of ground to cover before they actually see any kind of recovery. As Frank noted, this is the dismissal stage. In civil litigation, the Complaint or Petition is served and the first thing the defense does is look for a reason to have the case dismissed. I haven't looked at CT civil procedure, but the next steps generally will be discovery, depositions, and motions for summary judgment.
 
I find this a bit of a stretch, Federal law would appear to preclude this based on the law that firearms manufacturers are exempt from this type of action, and secondly, the person who committed the crime was not the purchaser.

I can see some people contemplating a purchase of an AR speeding up their decision based on this suit though, on the fear that this could spread to other companies and dry up the market.
 
Dunross said:
Did not Adam Lanza first murder his mother in order to get his hands on the Bushmaster?

How does the way Remington may have advertised the firearm have any bearing on that?
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That is what the courts have to decide. I just can't fathom the lawyer that thinks he can legally claim so, but stranger suits have been tried before...
 
Speedo66 said:
....Federal law would appear to preclude this based on the law that firearms manufacturers are exempt from this type of action,...
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I thought we had put this common misconception to rest, but I guess not.

  1. The PLCAA has a number of exceptions, as do all immunity laws. It there's a dispute about whether one of those exceptions applies, it will be up to a court if someone wants to pursue it.

  2. Every immunity laws requires that certain conditions be satisfied for immunity to attach. Any dispute about whether the conditions had been satisfied can wind up in court.

  3. The Connecticut Supreme Court concluded that the PLCAA didn't preclude a suit under the Connecticut consumer protection law at issue here. Whether a federal court will agree is an open question.
 
Frank Ettin said:
The CSC is allowing the lawsuit to go forward on the one legal theory of liability remaining. That legal theory is based on claimed liability under a Connecticut consumer protection law. In doing so the CSC also decides that the claim under the particular state law was not precluded by the PLCAA
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How does that end up working out in a case that is interstate, involving a state law that is applicable where the plaintiffs filed, but not necessarily recognized in the state where the defendant is based, or even any other state?

I know other states have tried, unsuccessfully, to sue CO on the Marijuana issue. It would seem state's rights come into play here, and that the Connecticut courts are attempting to enforce a state law beyond the borders of that state, which doesn't seem to have worked out well for plaintiffs in many other instances.

I also agree that it's going to be very tough (even assuming that the cited advertisements aren't ex post facto) to prove that they influenced the perpetrator. He didn't buy the rifle, simply had an easy time stealing a weapon he knew the whereabouts of after murdering the owner. Seems to me it wouldn't have mattered what brand or even type it was. I know it's civil and the burden of proof is lower, but it would still seem very difficult to establish state of mind, the perceptions of a decedent in the absence of a manifesto stating those things.

I also would think that even if the plaintiffs somehow win and are awarded damages, ROC would have easy grounds to appeal that decision.
 
MachIVshooter said:
...I also would think that even if the plaintiffs somehow win and are awarded damages, ROC would have easy grounds to appeal that decision.
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Well not for the reasons you appear to be claiming. Again, there's a whole lot you don't understand about law. As I've pointed out multiple times, law is non-intuitive. One can't just reasons things out, at least without a substantial foundation of core knowledge. To understand law one must study it, do the research, and do the reading, especially court opinions.

So whenever one starts out with anything like, "I also would think that..." he is pretty much guaranteed to be wrong.

So let's go through the substantive issues you raise.

MachIVshooter said:
How does that end up working out in a case that is interstate, involving a state law that is applicable where the plaintiffs filed, but not necessarily recognized in the state where the defendant is based, or even any other state?...
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Actually that sort of thing happens all the time. People travel. Business do business in multiple States. Actions someone takes in one State can have an effect in other States. And so there is a great deal of law on the subject.

So perhaps the first question is whether a Connecticut court can have personal jurisdiction of Remington, i. e., can a Connecticut court here require Remington to appear in Connecticut and answer allegations that Remington has wrongfully caused an injury for which it must pay compensation? And the answer is almost certainly "yes."

The basic rule was set out in International Shoe v. State of Washington, 326 U.S. 310 (1945), at 316:
....Historically, the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence, his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U. S. 714, 95 U. S. 733. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that, in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Milliken v. Meyer, 311 U. S. 457, 311 U. S. 463. See Holmes, J., in McDonald v. Mabee, 243 U. S. 90, 243 U. S. 91. Compare Hoopeston Canning Co. v. Cullen, 318 U. S. 313, 318 U. S. 316, 318 U. S. 319. See Blackmer v. United States, 284 U. S. 421; Hess v. Pawloski, 274 U. S. 352; Young v. Masci, 289 U. S. 253....
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So let's look at the bases for subjecting Remington to the jurisdiction of a Connecticut court:

  1. Remington does business in Connecticut. It sells merchandise to wholesalers and retailers in Connecticut, ships products to wholesalers and retailers in Connecticut, and Remington is paid therefor.

  2. Remington advertises in Connecticut.

  3. The incident that is the basis for the claim against Remington took place in Connecticut.

  4. Taking all that together it is a virtual certainty that a court would find that Remington is sufficiently present in Connecticut and has sufficient contacts with Connecticut that requiring the Remington answer allegations of wrongful conduct causing injury in Connecticut wouldn't offend due process.
And since Remington does business in Connecticut it is subject to Connecticut law insofar as its conduct allegedly causes injury in Connecticut.

MachIVshooter said:
...I also agree that it's going to be very tough (even assuming that the cited advertisements aren't ex post facto)...
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Ex post facto has nothing to do with this. That is a concept that applies in criminal law. No one has alleged that the Remington advertisements are criminal.

Also, whether it will be difficult for the plaintiffs to prove the facts necessary to support their theory of liability is irrelevant. See post 7. In ruling on a motion to strike the court hears no evidence, nor does it need to decide if any of the facts alleged are true. At this points the court looks only at the facts alleged in the complaint and assumes that those facts are true.

MachIVshooter said:
... I know other states have tried, unsuccessfully, to sue CO on the Marijuana issue. It would seem state's rights come into play here, and that the Connecticut courts are attempting to enforce a state law beyond the borders of that state, which doesn't seem to have worked out well for plaintiffs in many other instances....
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Except details matter, and those cases involve very different legal principles.
 
Frank Ettin said:
Well not for the reasons you appear to be claiming. ...
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To be honest, a lot of what I post or reply to in the legal section is intended to spark conversation that, ultimately, leads to the opinions of those who are well versed on the law. Short of going to law school (which I neither have the time nor the money for), it's is my best insight into how to read the law and come to an accurate conclusion.
 
Frank Ettin said:
Ex post facto has nothing to do with this. That is a concept that applies in criminal law. No one has alleged that the Remington advertisements are criminal.
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I'm talking in the literal translation, "from a thing done afterward". If Remington's alleged "advertisements that promote or encourage violent, criminal behavior" occurred after the incident, then there would be no grounds for finding culpability under that statute.

Frank Ettin said:
Also, whether it will be difficult for the plaintiffs to prove the facts necessary to support their theory of liability is irrelevant. See post 7. In ruling on a motion to strike the court hears no evidence, nor does it need to decide if any of the facts alleged are true. At this points the court looks only at the facts alleged in the complaint and assumes that those facts are true.
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I was not referring to the decision made by CSC for the case to be heard, but the pending civil case itself. I thought that would be tacit in context with future tense phrases like "going to be".
 
MachIVshooter said:
I'm talking in the literal translation, "from a thing done afterward"....
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Phooey! Ex post facto has a specific and well established meaning in law. You will be expected here in the Legal Forum to use technical terms correctly.

MachIVshooter said:
....If Remington's alleged "advertisements that promote or encourage violent, criminal behavior" occurred after the incident, then there would be no grounds for finding culpability under that statute....
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And now is not the time to speculate on questions of fact not alleged in the complaint.

MachIVshooter said:
...I was not referring to the decision made by CSC for the case to be heard, but the pending civil case itself. I thought that would be tacit in context with future tense phrases like "going to be".
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Again that is idle speculation at this point. We're not there yet.

Further off-topic or speculative posts will be deleted.
 
I want to make if clear that we're not going to engage in speculation about what evidence the plaintiffs will be able to put on, or whether this fact or that fact is true or false, or what effect that fact or this fact might have on the plaintiffs' case.

Doing so is pointless and a waste of time. The reality is that we don't know. In fact, the plaintiffs really don't know where the evidence will lead because they haven't started discovery (depositions, interrogatories, etc.). We could easily spend all sorts of time and bandwidth chasing tails, and then at the end of the day the plaintiffs' case will wind up looking like nothing we had imagined.

So we aren't going to be going there.
 
Frank Ettin said:
. . . .So let's look at the bases for subjecting Remington to the jurisdiction of a Connecticut court:

  1. Remington does business in Connecticut. It sells merchandise to wholesalers and retailers in Connecticut, ships products to wholesalers and retailers in Connecticut, and Remington is paid therefor.

  2. Remington advertises in Connecticut.

  3. The incident that is the basis for the claim against Remington took place in Connecticut.

  4. Taking all that together it is a virtual certainty that a court would find that Remington is sufficiently present in Connecticut and has sufficient contacts with Connecticut that requiring the Remington answer allegations of wrongful conduct causing injury in Connecticut wouldn't offend due process. . . . .
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I was in a bit of a hurry when I read the decision, so it's possible I overlooked something. Also, I haven't actually read the motion to strike. With both of those said, I don't recall reading anything saying that the defendant had challenged jurisdiction. From the decision:
The defendants moved to strike the complaint, contending that all of
the plaintiffs’ claims were barred by the Protection of Lawful Commerce
in Arms Act (PLCAA) (15 U.S.C. §§ 7901 through 7903 [2012]), which,
subject to certain enumerated exceptions, immunizes firearms manufac-
turers, distributors, and dealers from civil liability for crimes committed
by third parties using their weapons. The defendants contended alterna-
tively that the plaintiffs failed to state a legally valid negligent
entrustment claim under Connecticut common law and that their claims
predicated on alleged CUTPA violations were legally insufficient
because, among other reasons, the plaintiffs lacked standing under
CUTPA, their claims were time barred by CUTPA’s three year statute of
limitations (§ 42-110g [f]), personal injuries and death are not cognizable
damages under CUTPA, and their CUTPA claims were barred by the
exclusivity provision of the Connecticut Product Liability Act (§ 52-
572n [a]).
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If Bushmaster were challenging jurisdiction, the motion to strike would have been its first (and perhaps best) opportunity.
 
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Frank Ettin said:
I want to make if clear that we're not going to engage in speculation about what evidence the plaintiffs will be able to put on, or whether this fact or that fact is true or false, or what effect that fact or this fact might have on the plaintiffs' case.

Doing so is pointless and a waste of time. The reality is that we don't know. In fact, the plaintiffs really don't know where the evidence will lead because they haven't started discovery (depositions, interrogatories, etc.). We could easily spend all sorts of time and bandwidth chasing tails, and then at the end of the day the plaintiffs' case will wind up looking like nothing we had imagined.

So we aren't going to be going there.
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Forget the legal specifics of this case. The most important and relevant question here is the purpose behind this suite, their machinations. The plaintiffs and their allies seek to do maximum damage to the gun industry: diminish, damage, destroy.

I’m not a lawyer nor have I ever played one but leftist activists pursue a pattern: If they can’t use the courts to prosecute someone, they’ll use the courts to persecute someone. And generally speaking, it’s worked well for them.
 
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I hope this is specific to the case. The Bushmaster advertising cited:
(a) Was it directed at the civilian market, or was it directed at the military/police market? (Advertising for a utility vehicle (4WD, inflatable boat, aircraft) will differ based on the target audience, be it sportspersons, military, SWAT, EMT.)
(b) Were Mrs Lanza or Adam Lanza even aware of the advertsing being cited?
 
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