As Dean Weingarten reported, the lawsuit filed against Bushmaster Rifles, wholesaler Camfour Holding, and retailer Riverview Gun Sales by survivors and family of Adam Lanza’s Sandy Hook attack was dismissed by a Connecticut court. It was exactly the kind of lawsuit that Congress had specifically barred in the federal Prevention of Lawful Commerce in Arms Act (PLCAA).

They sought monetary damages from a firearms manufacturer for injuries and deaths that, in the words of the court, “were caused solely by the criminal misuse of a weapon [by one person:] Adam Lanza.” Despite the clear and definitive judgement by lower court judge Barbara Bellis, the plaintiffs have appealed the decision to the Connecticut Supreme Court.

The PLCAA was enacted when plaintiffs’ attorneys and municipalities — flush with money and energy after successful lawsuits against tobacco companies — decided that the firearms industry presented the best way to enact their preferred policies and make a few dollars along the way.

Congress granted a general and broad immunity for firearms manufacturers against lawsuits for injuries coming from misuse of firearms. The law does, however, allow a number of exceptions under which suits may proceed.

One of those is for matters of negligent entrustment, a common law tort that occurs when a dangerous article is entrusted to a person whom the lender knows, or should know, is likely to use it in a manner involving unreasonable risk of harm to others.[1]

Negligent entrustment features prominently in Koskoff’s 62-page brief. This is far from a straightforward theory.

Bushmaster sold the product to the wholesaler who sold it to the retailer who sold it to Nancy Lanza. Who didn’t give the XM15 rifle to her savage child, but was, herself, murdered so that he could gain access to it.

The link between Bushmaster and Adam Lanza is attenuated, at best. The Bridgeport barrister’s answer? Argue that the Bushmaster XM-15 is so dangerous that civilians are totally unqualified to look at them.

His case ignores the literally millions of ordinary people, unaffiliated with the military or civilian law enforcement, who own and regularly use such rifles on a regular basis.

And boy does he presses that losing argument. My eyes started rolling on sentence one:

Half a century ago, soldiers in Vietnam bore witness to a feat of human engineering — a weapon of war so powerful, so accurate, and so destructive to the human body, it vanquished the need for skilled hands or forgiving terrain.[2]

Koskoff hangs his hat on the idea that the AR-15 is “built for mass casualty assaults.” It’s such a horrendous an object that only the extensive training and discipline supplied by the military — not to mention the “extensive protocols governing . . . the mental health of soldiers and officers” — keeps them from running amok with the rifles.

Indeed, he argues, in the hands of ordinary civilians their possession leads to “bloodshed.” Because of this, Bushmaster’s “entrustment” of the XM-15 to parties with the intention that they end up in civilian hands was negligent, thus triggering the tort. At least, so the plaintiffs claim.

The lJudge Bellis fairly laughed out of court Koskoff’s assertion that the “common law recognizes a class as broad as civilians to support a claim for negligent entrustment.”

The only claim on which Koskoff has at least a snowball’s chance in the infernal regions is the one filed against Bushmaster for violating Connecticut’s Unfair Trade Practices Act, which bars unfair or deceptive trade practices.

(The PLCAA also allows lawsuits to proceed in cases where a manufacturer or seller violated a state law applicable to the sale or marketing of the firearm, and the violation was the proximate cause of the injury.)

Koskoff claims that Bushmaster’s ad campaign for the XM-15 was deceptive. It promoted the “military virtues” of the XM-15 rifle to “video-game playing, military obsessed 18 year olds” thereby enticing the “wrong” sort of consumer to buy the rifle.

Judge Bellis dismissed this claim as well, holding that under precedent set by the Connecticut Supreme Court, “[a] plaintiff under CUPTA must allege some kind of consumer, competitor, or other commercial relationship with a defendant, and the plaintiffs here have alleged no such relationship.”

The language of the judge’s decision made it clear that precedent was the only reason she wasn’t letting the suit proceed, and therefore this was an issue ripe for review by the Connecticut Supreme Court.

Last year, in a Bloomberg-funded anti-gun blog, Widener University Professor (and anti-gun activist) John Culhane opined that this was “the only reasonable prospect of success” for the plaintiffs.

If I had to bet, I’d say that the Connecticut Court will affirm its own precedent. But I completely understood why Koskoff opened with a full clip of emotional imagery.

His only hope is to try to get the Court to forget the unintended consequences of their action should they allow CUPTA suits to flow forth, and instead, make the court believe in the false hope that letting Koskoff’s lawsuit proceed will, somehow, stop more attacks like the one that took place at Sandy Hook.

Notes

[1] Black’s Law Dictionary (6th ed., 1990).

[2] My eyes were rolling not simply because of the not-ready-for-a daytime soap opera wording used in Koskoff’s opening. I instinctively said to myself, “The AK-47, you mean?” As the late Col. David Hackworth put it:

I jumped down into the hole and pulled the AK out of the bog. “Watch this, guys,” I said, “and I’ll show you how a real infantry weapon works.” I pulled the bolt back and fired thirty rounds — the AK could have been cleaned that day rather than buried in the glug for a year or so. That was the kind of weapon our soldiers needed, not the confidence-sapping M-16.

Hackworth, About Face at p. 669 (1990).

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51 COMMENTS

  1. So what he needs to do is find a bunch of Connecticut lawyers who are willing to say “Congress be damned, Sandy Hook was terrible and the parents deserve their $3.47 each after the plaintiffs’ counsel gets their cut” and/or “Sandy Hook was terrible, and the company that made the gun deserves to be punished”, in the wake of the highly-publicized and highly-praised court decision in Oregon overturning Donny’s EO a couple weeks ago?

    Sorry to say, if I were Bushmaster, I wouldn’t be optimistic about this one.

    • What’s the big stink here. Sandy Hook was a hoax. No guns. No kids. No death. It was just a false flag to take our guns. Everyone should just stop talking about it like it was true. Gun owners know better and will not be fooled by government sanctioned theater.

        • Correct!
          In other news: fire can’t melt steel, the soundstage used to film the “moon landings” has been found and sailing far enough over the horizon will drop you off the world’s edge.

        • BLoving: “In other news: fire can’t melt steel, the soundstage used to film the “moon landings” has been found and sailing far enough over the horizon will drop you off the world’s edge.”

          Well, the “fire can’t melt steel” part was proven by Rosie O’Donnell on The View:

          “I do believe that it’s the first time in history that fire has ever melted steel. I do believe that it defies physics that World Trade Center tower 7—building 7, which collapsed in on itself—it is impossible for a building to fall the way it fell without explosives being involved. World Trade Center 7. World Trade [Center] 1 and 2 got hit by planes—7, miraculously, the first time in history, steel was melted by fire. It is physically impossible.”

          So, obviously, fore can’t melt steel. It is physically impossible.

        • Big Bill?

          “I do believe that it’s the first time in history that fire has ever melted steel. I do believe that it defies physics ”

          Would you please list your expertise in physics?

      • The proof of just how deep, widespread, and sinister the Sandy Hook conspiracy was, is that there’s absolutely no proof of it, huh?

        • Well the FBI agrees no one was murdered at Sandyhook. Their crime stats page confirm Zero Killed. Just a couple of curious facts about sandy hook. No children taken to the hospital, no emergency rooms or trauma centers placed on stand by, the memorial website was created the day before the event, and there was a fema drill going on in the same county on the same day…..hmm what other major events happened to have a DRILL happen the same day 9-11, Boston Marathon, Pearl Harbor…..

      • Hey Joe – your medications are in the small orange bottle with the white cap. I’m sure the nurse can help if you have trouble getting the cap off. Be sure to take them following a meal and drink plenty of water.

      • That’s a B.S. hack, that’s NOT Joe R. TTAG has allowed a duplicate naming.

        “ALL GUNS AND GUN OWNERS ARE BAD AND SHOULD GO TO HELL”
        – TTAG

        See, I can do it too.

        The real “slim shady” Joe R.

  3. Shame that they aren’t trying to sue Lanza’s psychologist or the drug company that made the meds that he likely was/wasn’t taking. That would be slightly more rational than this circus that the Brady bunch and Bloomberg are behind.

    Regarding the highly exaggerated claims of Stoner’s rifle, yeah that’s exactly what most Nam vets would recall. lol even today there are those vets in the gun shops that recount what an awful weapon the M16 was when first issued. Whether it be accuracy issues to improper barrel twist and unstabilised rounds. Or lack lethality because the rounds were stabilized and failed to yaw. Not to mention various failures to function due to improper maintenance. There is a reason that many combat vets in Nam quickly abandoned their issued M16 for any M14 or Kalashnikov, and that wasn’t because the M16 was “a weapon of war so powerful, so accurate, and so destructive” etc./BS.

    As for the false advertising, the XM15 was marketed to the general public under the guise of being a soldiers weapon. A sad shame that America’s citizens have forgotten their duty to the country and the original intent of the 2nd Amendment. The only fraud here is that the gun isn’t select fire and that such weapons are more or less unobtainable to the militia.

    • My dad was enlisted in the 80s. He says he used to wake up in terror because he was dreaming of his weapon failing during a firefight.

      • Uncle George was an infantryman in the shit back in 1969. First chance he got after test firing his brand spankin’ new issued “plastic fantastic space gun”, he traded it off to a fellow from a different regiment along with some porno mags and god knows what else for his M14. Granted that the M14 wasn’t perfect, but as Uncle George said he could at least put something down when, rather than if, he hit it.

        • You would be surprised how many GIs used AK-47s when they could.
          It got so bad that it had to be specifically forbidden, and was still done.
          The A1 and the issuance of cleaning kits, and instructions to clean the weapon several times a day, made it much more reliable.
          Even today, the M16 and M4 must be cleaned frequently, while the AKs just keep rolling along.
          Don’t get me wrong, I’m not saying it’s not a good weapon; it is. What I’m saying is that the design isn’t anywhere the best out there.

    • To be fair, for the conditions they were in, the M14 / M1 design was an utter piece of shit. The open action more or less guarantees that shit will get into it and the big heavy wooden stocks don’t do well in high humidity environments. 100% of the problems with the M16 in Vietnam can be directly attributed to either shitty ammunition design (the powder spec being changed at the last minute with 0 testing) or shitty maintenance procedures. The M16/M4 family is an outstanding environmentally sealed system that far exceeds the performance of the AK in nasty conditions. (It’s far easier to get shit into an AK receiver than an M16/M4 receiver.) The only thing that kept the AK from being an utter piece of shit is the incredibly wide clearances on all parts that would let the gun run (for a while, at least) with a handful of sand in the action. An AR would choke almost instantly at the same treatment, but had the advantage of it being damn near impossible to get said sand into the receiver in the first place.

      I’ve had my M16A4 choke on me in the field. It generally happens in the sorts of conditions where more or less any mechanical system would fail rather quickly. (I had the dust cover pop open during a dust storm without me noticing and it took me a while to get the gun functional again.) To be fair, an AK in the same dust storm would have would up with the entire interior of the receiver more or less covered in grit because of the loose clearances on the dust cover and safety allowing plenty of point of ingress for the talcum powder consistency shit flying around.

      • In addition, early M-16s also did not have a chrome bore or chamber while AKs did. This combined with improper cleaning procedures, the high humidity environment, and dirty powder heavily contributed to failures in the field.

      • Excellent points, indeed Eugene Stoner and his rifle were revolutionary. If it hadn’t been for the military constantly revising requirements, the M16 might have been designed right for the task from the get go. The other issue being that many of the upper brass resented the new rifle and were willing to let the “experiment” fail. Not to mention that for some odd reason, some people back then and even today, just don’t realize that guns need to be cleaned on occasion in order to function properly.

      • Let’s be clear: It wasn’t “shitty maintenance procedures” at all. It was the GI’s being told it was self-cleaning, AND NEEDED NO CLEANING. No cleaning kits were even issued.
        The way it’s being said here looks like this was the GI’s fault; it wasn’t. It was Robert McNamara’s fault, pure and simple. He ignored several advisers telling him a chrome chamber and bore were a combat necessity; his response was that if Stoner thought it was necessary, he would have put it on the rifle. McNamara’s wiz-kids knew more than anyone who understood combat and combat rifle design.
        They learned very quickly that they just didn’t understand anywhere near as much as they thought they did.
        It took many lives to learn that lesson.

        • To be fair, an un-chromed chamber would not be as much of an issue if they also didn’t use shitty ammo.

  4. The excerpt from Col. Hackworth’s book is telling. Our Marine battalion in Vietnam got 20 brand spanking new M-16’s for fam-firing in advance of our changeover from our M-14’s. We’d put 20 Marines on the firing line at a time with a magazine each and by the time the string of fire was done, half or more of them had their hands in the air with stoppages. As the rest of the battalion was shooting, I went down the firing line to where some Special Forces guys were firing some captured AK-47’s, SKS’s, and a PK machine-gun which they had literally dug up out of the ground. The were filthy and rusty and so was the ammunition for them – but they threw rounds downrange despite their cruddy condition. A lot of the guys made themselves and their M-14’s scarce when it was time to made the changeover to the M-16.

    • Heard a very similar story from a Vietnam vet at a gun show. Flat out refused to sign for his new m16 and threw it back on the truck in front of his Sargeant, who threatened to court martial him before the ranking officer on site tried one of the M16s, couldn’t make it through one mag, and told the delivery guy to take his guns and pound sand.

  6. I’m not getting worked up over lawyer words.

    This is Bloomberg throwing more good money after bad.

  7. “a weapon of war so powerful, so accurate, and so destructive to the human body, it vanquished the need for skilled hands or forgiving terrain”

    Please, remove your head from your ass.

  8. The court should award damages to the defendants and force the plaintiffs to pay the defendants lawyer & other costs. This is the definition of a frivolous lawsuit and the court needs to make it clear that a garbage suit like this comes with consequences.

    • If you really want to put an end to these kinds of frivolous lawsuits, “loser pays” should make the plaintiff’s attorneys responsible the defendant’s legal costs when the judge throws out the suit. If these vultures had to put some of their own money at risk, a whole lot fewer bullshit lawsuits would get filed.

  9. My guess is the Connecticut Supreme Court will disregard the law and overturn the lower court’s ruling not because it’s correct but because that’s what activist judges …. Oops! I’m sorry… tyrants… That’s what tyrants do.

  11. Oh, I had to stop after that quote about Vietnam. Does this guy understand that every combat soldier had not just an AR-15, but an actual *M*16, the select fire murder machine extraordinaire, and did he mention somewhere that despite that overwhelming, unsurpassed firepower we *LOST THAT DAMN WAR*???? Doesn’t that make it obvious that his description was punishable as perjury?

      • How? We began with a clear military objective: prevent Sout Vietnam from falling to the north. We pulled out (effectively surrendering in an indirect manner) and Saigon fell. At BEST, and if you really wanted to argue semantics, you could claim that we didn’t actually lose because it wasn’t directly our war and we left before the South lost. But there is simply no way to claim that we won.

        • We forced North Vietnam to sign the Paris Accords after the Tet offensive that accomplished our military objectives. What happened afterwards was the Demokkkratic congress didn’t live up to our end of the deal and failed to provide the military materiel assistance the South Vietnamese government needed to hold the territory we took back from the NVA and the Vietcong.

        • To be absolutely accurate we did NOT lose the war. We lost the political battle at home which resulted in a degradation of our resolve to fight hard enough to actually win. The consequence of that situation was that we had to either keep sending a stream of young Americans to die in that jungle with no hope of a final victory, or to withdraw and cut our losses.

          A country, and an army, should never go into battle without a firm plan and resolve to ‘Make the other poor bastard die for his country” until they give up. If that’s not the plan, stay home. If you can’t convince the majority of your citizens that it’s a worthwhile endeavor, stay home.

    • “Does this guy understand that every combat soldier had not just an AR-15, but an actual *M*16”

      To be fair, the first batch were not labeled M-16, but AR-15. I know, I saw several. They were select fire, but AR-15s.

  12. I guess this guy also doesn’t think our civilian police force should have ARs or M4s. Considering they are just for military use.

  13. How about suing the car manufacturers for making a vehicle Adam Lanza used to drive himself to the school? If not for the car he would have to walk the distance and that would have been too much.

  14. If anything you would think the negligent entrustment (or similar) angle would work the best against the state for allowing the sale via the use of the state’s background system. After all, they vetted and approved the transaction. They checked Nancy’s background and failed to catch the domestic and mental health issues in play, precisely the reason the background check system is supposed to exist.

    • I agree that the State should be the bad guy here, since it ALLOWED the firearm to be sold in the State, and a decision to ban a weapon is a political one (for which there is sovereign immunity). Moreover, the argument, if allowed, would allow claims against all manufacturers of AR or AK style semiautomatic rifles (which is the goal, of course, but it flies in the fact of the PLCCA) on no more basis that they shouldn’t have built or sold any such firearm in the first place. The negligent marketing claim fails for two reasons: the gun wasn’t sold to Adam, and there is no evidence that his mother relied on any marketing at all in her decision as to which AR style weapon to purchase; and to boot, it is pretty obvious that SHE didn’t buy it to engage in mass mayhem.

  15. The whole thing is garbage. Even if it weren’t barred by applicable statute, it would fail some of the basic principles of tort liability by holding a third party responsible for the intentional criminal acts of another. But even if we ignored *that*, there is also an entirely other problem of causation because the shooter *MURDERED THE GUN’S OWNER TO STEAL THE GUN*, he was not the lawful buyer nor in any way intended by the manufacturer or retailer to possess that weapon.

    Also, Sandy Hook conspiracists can DIAF.

    • You would think so, but you’d be wrong. Obviously.
      Judges today (well, far too many of them anyway) are swayed more by emotion than the law. It’s why our justice system is considered a “crap shoot” by so many. You just never know what a court will decide, no matter what the law clearly says.
      The law exempting the gun industry from nuisance suits is an example. I suppose it would be more correct to say the way the law is described is a good example.
      I have seen it said, in print or on video, by people who know better, that the law exempts gun makers from any suits brought against them, which it most definitely does not. But perception becomes reality for far too many people. The simple use of Google (or any other search engine) is not put to use by those who just KNOW what is the truth. Why check when you already know?

  16. Yes, let’s sue the manufacturers of his shoes, socks, undies, deoderant, etc. while we are at it.

    And people wonder how inept our justice system can be for entertaining merit-less cases like these.

  17. So using the same logic with cars, if a child steals his parents corvette (a high speed killing machine designed specifically to exceed speed limits) and that child runs over thus killing his classmates while they stand in front of school….we sue GM for making a car they know will be used to break the speed laws? Same argument for alcohol.

    • Why yes…Yes you can. In fact, in the 10th edition of Black’s, negligent entrustment adds examples:

      negligent entrustment (1944) The act of leaving a dangerous article (such as a gun or car) with a person who the lender knows, or should know, is likely to use it in an unreasonably risky manner.

      NEGLIGENT ENTRUSTMENT, Black’s Law Dictionary (10th ed. 2014)

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