In a landmark decision the Connecticut Supreme Court this week reinstated a lawsuit filed by Sandy Hook school-shooting victims against Remington, one of the nation’s largest gun manufacturers.
Families of nine victims and one survivor of the Newton, Connecticut school shooting sued Remington Outdoor Co. Inc. and other defendants, including a gun wholesaler and a local retailer, alleging wrongful marketing and unethical advertising under the Connecticut Unfair Trade Practices Act (CUTPA). In the narrow 4-3 ruling, justices dismissed a case against the defendants based on negligent entrustment.
Some are hailing the decision as a landmark victory against gun violence. Since passage of the The Protection of Lawful Commerce in Arms Act (PLCAA) (15 U.S.C. §§ 7901 through 7903,) gunmakers have enjoyed near complete immunity for liability over gun violence. With certain specific exceptions, the PLCAA immunizes firearms manufacturers, distributors, and dealers from civil liability for crimes committed by third parties using their weapons.
Our Massachusetts product liability attorneys note this claim illustrates the many ways in which a product liability lawsuit can hold manufacturers accountable. However, this particular lawsuit has a narrow, treacherous pathway to success as Remington will almost certainly appeal to the U.S. Supreme Court, which must decide whether to allow state consumer law to trump federal protections in place to protect gunmakers.
State Consumer Protections vs. Federal Immunity from Liability
The New York Times reports Connecticut Supreme Court justices heard the case in November 2017, where they peppered Remington representatives with questions about advertisements that touted the AR-15 semiautomatic rifle as being able to “single-handedly” overcome “forces of opposition.” Examples of advertising for the high-capacity firearm included slogans like “Consider your man card reissued.”
Plaintiff attorneys contended it was dangerous marketing of an assault rifle sure to appeal to troubled young men. On December 14, 2012, Adam Lanza, 20, killed his mother in their Newton home, before shooting his way into the elementary school, where he went on a killing spree with a Bushmaster AR-15 before taking his own life.
“Congress did not intend to immunize firearms suppliers who engage in truly unethical and irresponsible marketing practices,” the court’s majority opinion noted. Connecticut law “does not permit advertisements that promote or encourage violent, criminal behavior.”
Congress has passed laws aimed at shielding a number of American industries from liability over injury or death caused by their products, including the airplane manufacturing and rental car industries.
The General Aviation Revitalization Act of 1994 limited liability for manufacturers of general aviation aircraft. Production of private aircraft by companies like Cessna and Mooney had declined from 18,000 in 1978 to fewer than 1,000 in the late 1980s. A number of companies struggled to remain financially solvent and blamed the cost of product liability litigation for drastically curbing construction. It’s the reason that to this day private aviation enthusiasts know there are very few small planes on the secondary market that were manufactured in the late 1980s or early 1990s. The vast majority of today’s used airplanes were manufactured in the heydays of the 1970s. Curbing manufacturer liability did not stem the tide, as Mooney and countless others have ceased production or gone out of business.
More recently, the Graves Amendment (49 U.S.C. § 30106) passed in 2005 and aims to shield rental car companies from the vicarious liability associated with traffic collisions involving rental vehicles. Vicarious liability alleges the owner of a vehicle acted inappropriately (via negligent entrustment or some other means) in allowing their vehicle to be used by an at-fault party. You will note similar argument was just rejected by the Connecticut Supreme Court in the case against gun manufacturers.
There have been many challenges to these immunity laws. However, in few cases have state laws been permitted to trump such federal immunities.
Seeking Damages from Gunmakers
The Connecticut justices ruled the lower court was correct in dismissing the lawsuit based on PLCAA, but the judge was incorrect not to let the case proceed on the CUTPA allegations. The case was originally filed in 2014 in state court, before being moved to federal court. A federal judge then returned it to state court. State Superior Court Judge Barbara Bellis had initially allowed the case to proceed to trial before ultimately dismissing it based on the broad immunity offered gunmakers under federal law.
Industry watchers expect Remington to appeal the case to the U.S. Supreme Court. The Connecticut Supreme Court ruled Connecticut consumer law could be applied under the PLCAA and it will now be up to the nation’s highest court to decide whether to allow such a loophole in federal protections granted to gunmakers.
U.S. Sen. Richard Blumenthal called the decision “a ‘wow’ moment in American legal history, and compared it to the initial lawsuits filed decades ago against big tobacco, which ultimately resulted in a $246 billion settlement.
“It breaks open the seemingly impenetrable shield — unjust and unfair — enjoyed uniquely by the arms manufacturers,” Blumenthal told the Hartford Courant.
The case has been vigorously contested by Remington and gun-rights organizations, including the National Rifle Association. As our Massachusetts product liability lawyers have written previously, being forced into litigation typically forces these companies and organizations to release a treasure trove of documents that are often more damning than reaching a large settlement.
Remington had argued the alleged violation of Connecticut Trade Practices Act were legally insufficient and that the state’s consumer law did not recognize damages for personal injury or wrongful death. In 2014, it built a new plant in Huntsville, Alabama, to manufacturer the AR-15 style sei-automtic rifle. The case had been delayed after Remington filed for bankruptcy protection last year. It emerged from bankruptcy in May 2018 after just three months as part of a reproved restructuring involving nearly $1 billion in debts. Established in 1816, it is America’s oldest gunmaker.
If you are the victim of Massachusetts product liability, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777.
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