Connecticut State Court rules Remington can be sued for Sandy Hook

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I have yet to notice an article on this at Volokh Conspiracy ("Mostly law professors ...") helmed by Eugene Volokh, UCLA, who specializes in First and Second Amendment issues.
I have noted an article by a columnist Jacob Sullum, "Lawsuit Against Suppliers of the Rifle Used in the Sandy Hook Massacre Will Proceed", reason.com, 14 Mar 2019.
Connecticut Supreme Court (CSC) agreed with the trial judge that the plaintiff could not sue under the theory of "negligent entrustment": their claim that "supplying military-style rifles to civilians" qualifies as "transferring a 'dangerous instrumentality' to someone whom the defendant knows or should know is apt to cause harm with it."
CSC did say plaintiffs' could sue under their claim Remington violated the Connecticut Unfair Trade Practices Act (CUTPA) by marketing that emphasized the Bushmaster rifle's "militaristic and assaultive qualities".
On the "negligent entrustment" claim, CSC agreed with Jedge Bellis; I quote the Sullum article:
Judge Bellis concluded in 2016 that such a breathtakingly broad understanding of negligent entrustment is at odds with Connecticut common law and with the PLCAA, which defines the cause of action as "the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others." The rifle in this case was purchased by Lanza's mother, and there was no reason to suspect she was such a person. The Connecticut Supreme Court agreed with Bellis: "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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The plaintiff's lawsuit under CUPTA argues that the military/police style marketing was a "proximate cause" of the Sandy Hook murders, that the marketing would appeal to a troubled mind like Adam Lanza, may have influenced him to choose the XM15, and the attack would have been less deadly if he chose a different gun. (Sullum notes "All of those claims are questionable...").
CUTPA link: https://www.cga.ct.gov/current/pub/chap_735a.htm#sec_42-110b

Added:
I have read a commenter who stated:
(a) the appeals court didn't rule on the merits of the plaintiffs' case
(b) it was not the appeals court's responsibility to rule on the merits
(c) the appeals court simply ruled the lower court erred in saying that they couldn't sue under CUTP (regardless of merit or lack of merit)
 
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jski said:
...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....
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That comes as a surprise to you?

Carefully tailored litigation has been used for a long time by many advocacy groups as a tool to further their view of how the world should work. Litigation is one of the tools available to try to shape our world. There's nothing new or unusual about that.

What's interesting is how various types of laws regulating business practices or advertising can be, and have been, used for such purposes. A study along those lines could be very interesting. But that's a topic outside the scope of THR.

What isn't terribly useful would be the normal collection of "how dare they?" rants. Of course they dare, as do we and other groups with a view of the world to promote. While we may be using the tools the Constitution, our laws and our system give you to promote our vision of how things should be, others may and will be using those same tools to promote their visions.

The Constitution, our laws, and our system give us resources and remedies. We can associate with others who think as we do and exercise what political power that association gives us to influence legislation. We have the opportunity to try to join with enough other people we can elect legislators and other public officials who we consider more attuned to our interests. And we can seek redress in court. And others who believe differently have the same opportunities.
 
Carl N. Brown said:
I hope this is specific to the case. The Bushmaster advertising cited:
(a) Was it ...
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We don't know. These are some of the issues that the plaintiffs (and defendants) will need to deal with as the litigation goes forward. Neither we nor they really knows now what the evidence will show. Speculation would just be spinning our wheels.

Carl N. Brown said:
...The plaintiff's lawsuit under CUPTA argues that the military/police style marketing was a "proximate cause" of the Sandy Hook murders, that the marketing would appeal to a troubled mind like Adam Lanza, may have influenced him to choose the XM15, and the attack would have been less deadly if he chose a different gun. (Sullum notes "All of those claims are questionable...").
CUTPA link: https://www.cga.ct.gov/current/pub/chap_735a.htm#sec_42-110b
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Good catch on the article, and thanks for the link to the statute.
 
Here's something that's unclear to me on how the CSC is able to rule in favor of plaintiffs on proceeding with a civil suit when it doesn't seem that a preliminary requirement has been satisfied, that requirement being that the Commissioner of Consumer Protection needs to establish that there has been a violation of CUTPA. I get that CSC has to assume stated allegations to be true, but how would the plaintiff not be required to demonstrate that the Commissioner has found cause to believe there was a CUTPA violation? It seems from my lay interpretation of the statute that any allegation of a violation has to first be investigated by the Commissioner before any kind of action can be taken, criminal or civil.

Frank, I'm well aware of your contempt for my musings, and I'd appreciate any answer given here to be devoid of your condescension.
 
MachIVshooter said:
Here's something that's unclear to me on how the CSC is able to rule in favor of plaintiffs on proceeding with a civil suit when it doesn't seem that a preliminary requirement has been satisfied, that requirement being that the Commissioner of Consumer Protection needs to establish that there has been a violation of CUTPA. I get that CSC has to assume stated allegations to be true, but how would the plaintiff not be required to demonstrate that the Commissioner has found cause to believe there was a CUTPA violation? It seems from my lay interpretation of the statute that any allegation of a violation has to first be investigated by the Commissioner before any kind of action can be taken, criminal or civil.

Frank, I'm well aware of your contempt for my musings, and I'd appreciate any answer given here to be devoid of your condescension.
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I see references to the commissioner and his power to investigate and determine violations, but I see nothing that makes it a preliminary requirement. Can you point me to a specific code section where you see that?
 
Spats McGee said:
I see references to the commissioner and his power to investigate and determine violations, but I see nothing that makes it a preliminary requirement. Can you point me to a specific code section where you see that?
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I don't see anything that specifically says that. It's why I asked. Section 42-110d seems to indicate that determinations and actions by the Commissioner are a prerequisite of further legal action, that it would need to be established a violation occurred before any civil action would be legitimate.
 
MachIVshooter said:
I don't see anything that specifically says that. It's why I asked. Section 42-110d seems to indicate that determinations and actions by the Commissioner are a prerequisite of further legal action, that it would need to be established a violation occurred before any civil action would be legitimate.
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42-110d gives the Commissioner various powers:
  • investigation
  • subpoena
  • inspection
  • to apply to the courts to have his (or her) cease and desist orders enforced
  • etc

At no point does it say that one must go through the Commissioner to file suit, though. In fact, 42-110g seems to indicate otherwise:
Sec. 42-110g. Action for damages. Class actions. Costs and fees. Equitable relief. Jury trial. (a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.

(b) Persons entitled to bring an action under subsection (a) of this section may, pursuant to rules established by the judges of the Superior Court, bring a class action on behalf of themselves and other persons similarly situated who are residents of this state or injured in this state to recover damages.

(c) Upon commencement of any action brought under subsection (a) of this section, the plaintiff shall mail a copy of the complaint to the Attorney General and the Commissioner of Consumer Protection and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the Attorney General and the Commissioner of Consumer Protection.

(d) In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys' fees based on the work reasonably performed by an attorney and not on the amount of recovery. In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorneys' fees. In any action brought under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief.

(e) Any final order issued by the Department of Consumer Protection and any permanent injunction, final judgment or final order of the court made under section 42-110d, 42-110m, 42-110o or 42-110p shall be prima facie evidence in an action brought under this section that the respondent or defendant used or employed a method, act or practice prohibited by section 42-110b, provided this section shall not apply to consent orders or judgments entered before any testimony has been taken.

(f) An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.

(g) In any action brought by a person under this section there shall be a right to a jury trial except with respect to the award of punitive damages under subsection (a) of this section or the award of costs, reasonable attorneys' fees and injunctive or other equitable relief under subsection (d) of this section.
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A finding that a given practice would be prima facie evidence that a violation had, in fact, been committed, but it does not appear to be required before suit can be filed in a court of law.
 
Spats McGee said:
A finding that a given practice would be prima facie evidence that a violation had, in fact, been committed, but it does not appear to be required before suit can be filed in a court of law.
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OK.

What about about section 42-110g(f)? Newtown was over 6 years ago. If the alleged violating advertisements preceded the incident, then the time frame for filing suit has expired. If those advertisements were after the fact, then the claim can't possibly be seen as legitimate in the absence of time travel.
 
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MachIVshooter said:
...

What about about section 42-110g(f)? Newtown was over 6 years ago....
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First, the lawsuit was filed in 2014.

Second, passing of any applicable statute of limitations (i. e., the suit barred by the passage of time) is an affirmative defense which generally must be pleaded and proven by the defendant.

Deciding the statute on limitations question will involve the introduction of evidence, which would be beyond the scope of the current proceedings.
 
MachIVshooter said:
OK.

What about about section 42-110g(f)? Newtown was over 6 years ago. If the alleged violating advertisements preceded the incident, then the time frame for filing suit has expired. If those advertisements were after the fact, then the claim can't possibly be seen as legitimate in the absence of time travel.
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110f has to do with when a receiver has been appointed for a company. AFAIK, nobody is in receivership in this one.

The question of the timing of those ads may play a critical role. I agree that ads used after Sandy Hook cannot be seen as a motivating factor for the shooter. That said, that's not what the court is determining here. Its ruling is strictly based on the pleadings at this point. The CSC has said "Ok. Plaintiffs have a theory that is viable under CT law, and can move ahead." No evidentiary findings have been made. If the Plaintiff raise post-shooting advertisements as evidence and the defendant's lawyers don't object, . . . . . Well then it has bad lawyers and should fire them.
 
Frank Ettin said:
First, the lawsuit was filed in 2014.
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Isn't this a new suit to be brought, since the trial court ruled in favor of Remington on the first and dismissed? I thought the ruling in question here was on whether or not a civil case could be brought at all.

What would be the point of any statute of limitations if a plaintiff can keep filing suit after dismissed suit or resurrecting dismissed suits with new details until something finally sticks, as long as the first one was brought within the allowed time frame?
 
Spats McGee said:
110f has to do with when a receiver has been appointed for a company. AFAIK, nobody is in receivership in this one.
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OK, I that makes sense to me, although I don't exactly understand what "receiver appointed for a company" means. Would that limitation, then, only apply to a person or persons who bought/received the product suing for damages, but not damages that resulted to persons other than the receiver/owner for it's use/misuse?
 
MachIVshooter said:
So in civil proceedings, a dismissal is basically meaningless? A plaintiff can keep appealing dismissals & judgments favoring the defendant endlessly and never run out a statute of limitations?
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Sigh!

  1. A dismissal with prejudice by a trial court ruling on a motion to dismiss or similar motion is a final judgment and is appealable by the aggrieved party in either a civil or criminal matter.

  2. A notice of appeal must be filed within a certain period of time following the order of dismissal and serves to effectively stay the order while the appeal proceeds. There is a schedule which will need to be kept by the appellant to keep the appeal alive.

  3. An appeal is on one or more questions of law. An appeal is taken to a different, higher level court than the court issuing the order appealed from.

  4. If the court hearing the appeal finds no error of law by the trial court, there may or may not be another level of appeal available. If there is no further level of appeal available, the order of the trial court becomes effective. (In general there will be only one or two levels of appeal after the trial court ruling.)

  5. If the court hearing the appeal finds a material error of law by the trial court, the appeals court will reverse the ruling of the trial court and remand the case back to the trial court for further proceedings consistent with the ruling of the court hearing the appeal.

  6. While in a complex case involving novel law this process can go on for sometime. But ultimately the parties run out of levels of appeal.
 
MachIVshooter said:
Isn't this a new suit to be brought, since the trial court ruled in favor of Remington on the first and dismissed? I thought the ruling in question here was on whether or not a civil case could be brought at all.

What would be the point of any statute of limitations if a plaintiff can keep filing suit after dismissed suit or resurrecting dismissed suits with new details until something finally sticks, as long as the first one was brought within the allowed time frame?
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Not "whether a suit could be brought." To paraphrase an old saying, "you can sue a ham sandwich." IOW, a plaintiff can bring a suit for anything. The question at this stage is whether the case can proceed past a motion to dismiss or a motion to strike. Let me give you a ludicrous example. Let's say that I'm wearing a brown shirt on a Sunday. Let's also say that deeply offends your sensibilities, because you associate my brown shirt with the Brownshirts of Nazi Germany. You march down to the courthouse, full of righteous indigation, and sue me, claiming religious discrimination. My response will be a motion to dismiss (or in CT, a motion to strike). What that motion effectively says is, "Judge, even if everything that MachIVshooter says is true, I win. There is no viable legal theory by which I can be held accountable for his mental anguish, which was caused by my wearing a brown shirt on a Sunday." If I win that motion, your case is dismissed, but you have a right to appeal that dismissal, within certain boundaries. Things like filing your notice within 30 days, properly serving me with a copy of the notice of appeal, getting the trial court's record of proceedings properly "lodged at" (transferred to) the appellate court.

The clock on the statute of limitations normally stops at the filing of the complaint. It can't keep running, because cases can take years to finish. Under Arkansas law (because I haven't researched this in other jurisdictions), if you wanted to refile: (1) you would have one year from the dismissal to refile; and (2) you only have one chance at refiling. You don't get to refile after the second dismissal on the same suit.

Does that help?
MachIVshooter said:
OK, I that makes sense to me, although I don't exactly understand what "receiver appointed for a company" means. Would that limitation, then, only apply to a person or persons who bought/received the product suing for damages, but not damages that resulted to persons other than the receiver/owner for it's use/misuse?
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A receiver, in this sense, has nothing to do with buying or receiving goods. It's a court-appointed administrator for a company, in essence. Let's say that SpatCo (which naturally sells the snazziest shooting gear to be found anywhere :D) does a whole bunch of advertising, and it's really, badly misleading. And SpatCo is accused of defrauding everybody (investors, buyers, distributors, etc.) out of millions of dollars. If MIVsCo then files a successful complaint for violation of a fair trade law (such as the one here), the commissioner or a court might appoint a receiver for SpatCo. That receiver could then comb through the books, sell off some assets, and pay the aggrieved parties. Mind you, I'm not a commercial litigator, but that's my understanding of things.

Again, does that help?
 
One thing to consider about a statute of limitations defense -- it's disfavored. A defendant who gets off the hook because of the statute of limitations has prevailed not because his position is meritorious -- but only because the plaintiff was dilatory. So as long as the plaintiff filed his complaint in time, the lawsuit can go forward to a determination on its merits. The ordinary natural history of a lawsuit can include various "side trips", like leaves to amend a complaint, interlocutory appeals, etc. What counts is getting the whole process started in time.
 
Could we, for purposes of layic description, say that, for these very preliminary motions, that if they are appealed, the "clock" on the initial case, "stops" while those motions are considered and ruled upon?

I have noticed that so much of the actual process of law is just unimagined by too many. Which is also true of Architectures (and doubly so for all the legal obligations therein).
 
CapnMac said:
Could we, for purposes of layic description, say that, for these very preliminary motions, that if they are appealed, the "clock" on the initial case, "stops" while those motions are considered and ruled upon?
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Yes. That's accurate. In the legal world, we have to keep our eyes on lots of different clocks, when they run and when they are stopped. Statutes of limitations, speedy trial time, time to respond to motions, to appeal, to take various administrative steps . . . . I have frequently said that lawyers live and die by our calendars.
 
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