Sandy Hook Parents’ Law Suit Hinges on ‘Negligent Entrustment’ Argument

Attorney Joshua Koskoff thinks the PLCAA doesn't apply to Remington

courtesy ctpost.com

Anti-gun forces have long tried and failed to attack gun makers the way class action attorneys went after the tobacco companies. By suing them into submission, forcing them to change or end most of their marketing efforts and wringing billions of dollars out of them to compensate states for the damage done by their products (and line their own pockets). But in 2005, seeing the existential threat posed to the firearms industry by potentially defending hundreds of lawsuits over selling lawful products to consumers who wanted them, the firearms industry scored one of its greatest legislative wins; the Protection of Lawful Commerce in Arms Act.

The PLCAA holds gun makers harmless for crimes committed using their products. Just as no one considers the maker of the car used by Abdul Razak Ali Artan responsible for the deaths he caused when he drove into a crowd at Ohio State University, why should Daniel Defense be liable because Stephen Paddock used one of their rifles — which he purchased legally — to commit mass murder?

But that’s exactly what many in the anti-gun community want to see, including a group of parents of children who were murdered by Adam Lanza at Sandy Hook Elementary School.

(They) have filed a unique lawsuit against the gun manufacturers of the AR-15, the powerful semi-automatic assault rifle that allowed Lanza to carry out his rampage so quickly and with such lethal capability. They claim the manufacturers, Remington Arms and Bushmaster Firearms, bear responsibility for the massacre.

The law however, is clear. And thanks to the protections afforded by the PLCAA, other suits filed against gun makers — as in the aftermath of the Aurora theater shooting — haven’t gone well for the plaintiffs.

So far, the Sandy Hook families suit hasn’t fared much better.

The lawsuit — which is filed on behalf of the families of 10 victims — has wound its way to Connecticut’s highest court after a lower court judge dismissed the case and the plaintiffs appealed.

The lower court judge, Barbara Bellis, said in her decision that the case “falls squarely within the broad immunity” given to gun manufacturers under the federal law.

Still, the Connecticuty supreme court agreed to hear their appeal. So what makes them think they still have any chance of prevailing?

…the law allows for a sliver of wiggle room if the plaintiffs can prove “negligent entrustment.” In this case, the legal term means proving the manufacturers were reckless in that they knew they were selling deadly weapons and looking for violent young men as customers.

The plaintiffs’ lawyer, Joshua Koskoff, believes they can prove this.

Of course he does. At least, he’s convinced the group of parents he’s representing that he can.

The lawyer scoffed at the manufacturers’ classification of the weapon as a sporting rifle when it was meant for trained military personnel, not civilians.

“This has military roots going back to Vietnam,” Koskoff said of the gun. “They were trying to design the perfect killing machine for the world’s greatest military. It checked all the boxes.”

Save it for your arguments before the court, counselor. Not that you’re likely to be given that chance. One more reason for that is . . .

Remington has argued in filings that the rifle was lawfully purchased by Lanza’s mother, Nancy, whom the deranged man also killed. It says that Lanza bore sole responsibility for his criminal acts.

That’s right. However Bushmaster may have advertised their guns at the time, the rifle used by Adam Lanza to murder those children wasn’t even sold to him. His mother bought it. Legally. After passing all of the requisite background checks. So the company’s alleged marketing toward violent young men would seem to be a moot point.

Last month, Koskoff and lawyers for Remington and Bushmaster argued their cases before a panel of seven justices. The panel will decide in the coming months if the case can move forward to trial.

More than a dozen interested parties on both sides of the gun issue have filed amicus briefs in the case — and for good reason.

And here’s the real goal:

If the panel allows the case to go to trial, it would be a game-changer. A trial would open manufacturers up to the discovery process, forcing them to turn over documents on their focus groups, marketing schemes and emails.

Plaintiffs want the right to rifle through the internal documents and communications of companies like Remington, Ruger, Smith & Wesson, GLOCK and all the rest. Who knows what embarrassing communications and impolitic email strings regarding strategy they might dig up if given access. It would be a class action attorney’s dream come true.

But that’s still a long shot at best. More likely, this suit will end up just like the Phillips family’s poss-Aurora action against gun makers and online sellers of ammunition and gear — with the plaintiffs being ordered to pay Remington’s no doubt astronomical legal fees and court costs for bringing a frivolous suit they attorney should have known had no hope of succeeding.

And just like the Brady Campaign, when that bill comes due, Joshua Koskoff, Esquire, will be nowhere to be found.

 

 

comments

  1. avatar Jason says:

    Hmmm, it seems more reasonable to assert that the “negligent entrustment” falls squarely on the shoulders of the parents who handed their children over to the state for indoctrination. That the state failed to protect them or even allow for the opportunity of armed defense… well I suppose that’s not what they want to hear.

    1. avatar Cruzo1981 says:

      That’s very true. No one mentions the lack of security measures, ever.

    2. avatar Gov. William J Le Petomane says:

      Or the negligent entrustment committed by the plaintiffs in letting this lawyer handle the ca se.

    3. avatar Rokurota says:

      Sovereign immunity. Sorry.

  2. avatar Phil Wilson says:

    “The law however, is clear.”

    That should make the outcome clear. And I’m sure it does in our legal system, much more often than not. But it doesn’t always.

    1. avatar Baldwin says:

      Stay away from stupid people (“…clearly written law…” readers) in large numbers (courts) doing stupid things (wasting every ones time and money).

    2. avatar doesky2 says:

      For attempting to take my rights away by means of lawfare the families of Sandy Hook can go fvck themselves.

      There I said what needed to be said.

  3. avatar rick3 says:

    Shouldn’t the first two sentences read:
    “Anti-gun forces have long tried and failed to attack gun makers the way class action attorneys went after the tobacco companies: by suing them into submission, forcing them to change or end most of their marketing efforts and wringing billions of dollars out of them to compensate states for the damage done by their products.”

    1. avatar BLoving says:

      The promise of money may be motivating some of these plaintiffs – it is absolutely motivating the lawyers; but I would give the parents enough credit that they aren’t really interested in the money.
      No. What they want is much more visceral- they want revenge. Adam Lanza is dead, so is his mother – so there is no pound of flesh to get from either of them. These parents have nowhere else to look to that could serve as a proxy target for their anger.
      What they need most of all is a few years of intense therapy and counseling, something their lawyers really suck at providing.
      🤠

  4. avatar pwrserge says:

    This is more evidence we need drastic tort reform. There should be massive criminal penalties for filing frivolous suits and career ending repercussions for lawyers to argue them. The fact that the court even heard their appeal is absurd.

    1. avatar Geoff PR says:

      How many years did people laugh when plaintiffs sued tobacco companies for cancer death liability?

      It’s the same strategy, all over again…

      1. avatar pwrserge says:

        It doesn’t make it good law. The cancer litigation had teeth because the tobacco companies deliberately hid the dangers of their products. There is no such legal claim against gun manufacturers. In fact, such a claim would be ludicrous. Lawfare is a shitty way to run a nation. It’s why we need tort reform. Every time the commies lose democratically, the just find an activist judge to overturn the democratic process. This needs to stop. The best way to do that is to introduce massive consequences for abusing our legal system in such a manner.

        1. avatar SparkyInWI says:

          +1…..

  5. avatar Jonathan-Houston says:

    Marketed to violent, fantasy-driven young men or not, the fact remains that this manufacturer sells to distributors, who sell to retailers, who sell to individuals. Not only is the sale to an end user filtered through the legalities of each link of the supply chain, but this manufacturer resides all the way at the other end of that supply chain. They had nothing to do with the final sale to the mother, let alone the killer’s criminal acquisition of the firearm from her.

    This doctrine, in the context of this case, may as well be called the Abracadabra Claise, since it exists purely in make-believe and judicial activism. The state supreme court agreeing to hear this frivolous cri de coeur of a case should be an impeachable offense.

    1. avatar Chris says:

      “..sells to distributors, who sell to retailers, who sell to individuals..”

      What you just described falls under RICO for conspiracy – if they were liable, which under PLCAA they are not. On that note, I keep wondering why nobody has tried to sue Mazda for a dui that led to a car crash and fatalities. Or Budweiser, for that matter. The parents of Sandy Hook can’t just sue their grief away, that lawyer must be laughing his ass off every night before he goes to sleep.

      1. avatar Geoff PR says:

        “I keep wondering why nobody has tried to sue Mazda for a dui that led to a car crash and fatalities. Or Budweiser, for that matter.”

        It’s been *tried* before, and laughed out of court.

        They are gonna keep throwing those lawsuits against the wall, until one day, one of them sticks.

        Then, the floodgates open…

        1. avatar pwrserge says:

          Which just goes to reinforce why we need tort reform in this country. The level of lawfare to achieve clearly political goals has gotten insane. They can’t win in the ballot box, so they do an end run around it.

      2. avatar Jonathan-Houston says:

        RICO does provide a highly malleable means for establishing a conspiracy, I agree. An actor need only have a general idea that his act furthered what he reasonably expected to be the underlying crime. He doesn’t have to know all the stages, players, or outcomes of the conspiracy. It’s a very powerful law; ask any 1980s Wall Street inside trader, who never imagined he’d be prosecuted under it like the underworld Mob bosses it was intended for.

        However, the existence of PLCAA is not all that precluded RICO’s application here. RICO itself is inapplicable. Thus, its conspiracy utility is moot.

        RICO conspiracy required what’s called a predicate offense, meaning the base, underlying crime the parties are conspiring to commit. Selling firearms in adherence with the law is not itself a crime, even with an unsavory marketing campaign focused on adults. So there’s nothing to conspire over.

        Second, RICO can be vicious in its treatment of assets on the civil side. Based on the charge alone, prosecutors can freeze assets, including assets that would have been used for the legal defense (which I find as bad as any offense King George III ever committed, but I digress). Moreover, prosecutors can seek triple damages from those convicted. Ouch!

        However, RICO’s civil remedies available to private individuals, as I understand it, are limited to recovering for damages to one’s property or business. I don’t see that murder of children or school faculty qualifies.

        1. avatar doesky2 says:

          What needs to be done is a RICO action against the gun grabber groups.

          Oh that wold be delicious.

  6. avatar Noishkel says:

    Well the only solution to this is to have these gun makers start suing these leftist scum bags right the hell back. It worked with Lucky Gunner and their problems from the Brady Center. So the only answer is to make it too damn expensive to even try to pull this BS ever again.

  7. avatar SueHappy says:

    “Our lives are irreparably damaged!” *

    *(…but a pity payday of a couple million bucks could dry a lot of tears.)

  8. avatar Hank says:

    Sounds like lube companies aught to be liable for the spread of AIDS for marketing to young gay men then, eh? Oh, doesn’t sound so great when the shoe is on the other foot, does it, lUberals?

  9. avatar former water walker says:

    If you didn’t succeed when Odumbo,Low-retta Lynch and co. were enthroned WHY do you think you’ll prevail now?!? Ambulance chase of the absurd. Yeah Lucky Gunner their dumbazzes…😖😫😡

  10. avatar Gov. William J Le Petomane says:

    THIS, is why lawyers will be the first to be lined up when the revolution comes.

  11. avatar Kendahl says:

    Assuming their suit fails and they are ordered to pay the defendants’ legal expenses, the parents could sue their lawyer for malpractice. Part of his duty is to warn them of the repercussions if they lose.

    1. avatar Gov. William J Le Petomane says:

      Good luck finding a lawyer to take that case.

  12. avatar ACP_arms says:

    “the law allows for a sliver of wiggle room if the plaintiffs can prove “negligent entrustment.” …
    The plaintiffs’ lawyer, Joshua Koskoff, believes they can prove this.”

    So he will be going after the killers mom and holding her responsible…. wait, can do that, she’s dead.

    Koskoff must be getting paid no matter what, because he has a real bad argument to go after Bushmaster.

    1. avatar Kendahl says:

      I believe her estate has already been sued.

  13. avatar ironicatbest says:

    “It has its roots all the way back to Vietnam, they WERE trying to design the world’s greatest killing machine. ” Really an M16 the world’s greatest killing machine? ICBM vs. M16, and the winner is,. ,,,,,,,,,,,

    1. avatar Geoff PR says:

      ICBM, call it 10 million on a good day.

      Communist, socialist, Marxist, whatever you wanna call it, has killed in the *hundreds* of millions.

      Just starting a new book, ‘Red Famine: Stalin’s War on Ukraine’ by Anne Applebaum.

      https://www.amazon.com/Red-Famine-Stalins-War-Ukraine/dp/0385538855

      I can guess the ending already…

    2. avatar Big Bill says:

      That particular idea might have merit if Bushmaster sold an M-16 to Lanza’s mom. But they didn’t.

    3. avatar LarryinTX says:

      Doofus also said something about for the greatest Army in the world, or such rot. Sorry, it was designed for the Vietnamese army, whose small stature precluded effective use of the M-14. Altogether, he was proving yet again that he has no idea what he’s talking about.

  14. avatar TwoJohnsonsAreBetterThanOne says:

    I’m surprised they’re not suing Hollywood that makes guns look cool and that has all kinds of money.

    1. avatar Southern Cross says:

      With Hollywood’s accounting they could say every movie ever lost money, so there’s no money to settle the lawsuit.

  15. avatar Kendahl says:

    There is nothing new about suing manufacturers when their products are misused. Three examples from the auto indusry:

    A dealer sold a used Firebird to a teenager who washed cars for them part time. He wrecked the car killing one of the other teens with him. The family sued the dealer for selling him the car and Pontiac for building something that would appeal to a teenage male.

    A woman put her young grandson in the front seat of her Chrysler minivan without benefit of a child seat or even a seat belt. She T-boned another woman when the latter ran a red light. The impact of the passenger side airbag turned the boy into a quadriplegic. The family claimed that Chrysler was at fault for its failure to design an airbag that wouldn’t break an unrestrained child’s neck.

    Two teenagers in a Fiat X1/9 flipped the car turning the passenger into a quadriplegic. The family sued Fiat claiming that the car was dangerous because it handled too well.

    So far, it hasn’t become a suit but, after James Fields drove a Challenger into a crowd of Charlottesville protesters, some idiot blamed Chrysler for building a car they believed encourages such bad behavior.

    1. avatar Gov. William J Le Petomane says:

      None of those examples involve holding a business liable for the criminal misuse of their legally sold product.

  16. avatar Smitty says:

    All these people want do is get paid.
    It’s just sickening. The lawyers are only there because they smell the possibility of money$. Greedy bastards!
    No amount of money will bring those children back.

  17. avatar TyrannyOfEvilMen says:

    It is unfortunate that Lanza chose to use an AR-15 to kill those little children but if there was a lawsuit that could be filed for “negligent entrustment”, it should be filed against the school district who failed have adequate measures to protect them.

    Of course, that’s not really fair but it’s a lot more fair than claiming that the gun manufacturer is somehow at fault for selling a legal item to Lanza’s mother.

  18. avatar strych9 says:

    “…the powerful semi-automatic assault rifle…”

    Who writes this shit? So much fail in so few words. Ignore the “semi automatic assault rifle” part for a second.

    Have you seen pictures of this kid? He was a shrimp. How exactly did he wield a “powerful” rifle with such deadly efficiency?

    Let’s see, the M16 came on as a replacement for the M14 because the M14 was (among other things) too powerful and too heavy for most trained soldiers to make rapid, well placed follow up shots. But now I’m supposed to believe that the AR-15, the civvie model with no giggle switch, is ultra powerful, yet handling it is so facile that this diminutive kid who looks like he’s never seen a free weight in his life can handle it with ease?

    That’s like saying the new Corvette “is so powerful that people who passed drivers ed yesterday can race it with ease at Le Mans”. The statement is flat-the-fuck-out stupid and so is the person who wrote it.

    1. avatar Koolhed says:

      The theoretical AR-15 mentioned was clearly photographed inside the trunk of the car that Lanza drove to the school.

      Unless Lanza shot all the kids, then ran back out into the parking lot, put his gun away and then went back into the school to kill himself, it’s obvious that this gun CANNOT be the gun used in the school.

      1. avatar strych9 says:

        The photo I saw of the “trunk gun” looked like an AK variant or a Saiga style shotgun not an AR.

        Maybe there are other photos out there that I haven’t seen though.

        1. avatar Matt says:

          I watched on live television the video from a news helicopter, of officers opening the trunk of the car and ejecting one, very clear shot shell from the gun while it was still in the trunk. My brother and I were puzzled at the time because the profile of the gun looked like a G3 variant but it was clear as day a shot shell was ejected. It was a Saiga variant, which explains the shot shell and the the profile from above at a distance is sufficiently similar.

          The AR15 was clearly photographed in the school. If you care to review the pictures from the case, you will see it a number of times very clearly.

          What has never been made 100% clear though is if the rifle met the statutory definition of assault rifle at the time. Based on the pictures alone, I would say no. That was more than two no bueno features including a detachable magazine, pistol grip, collapsible/folding stock, bayonet lug, barrel shroud, flash hider and possibly IIRC a grenade launcher mount.

        2. avatar Big Bill says:

          Matt says: “What has never been made 100% clear though is if the rifle met the statutory definition of assault rifle at the time. Based on the pictures alone, I would say no. That was more than two no bueno features including a detachable magazine, pistol grip, collapsible/folding stock, bayonet lug, barrel shroud, flash hider and possibly IIRC a grenade launcher mount.”

          I hope you meant “assault weapon”, which is a made-up term, and means different things under different laws. IOW, its definition is subject to the whims of those who write laws. That the definitions are based as much on looks as function makes them absurd on their very face.

        3. avatar Matt says:

          Yes, assault weapon is what I meant. I accept 69 spankings in penance and further submit myself to the mercy of you kind souls.

          And you jogged my memory, select fire was and is another assault weapon qualifier in CT.

    2. avatar Scoutino says:

      Yes, the AR15 in 5.56 is so friggin powerful that you can’t use it to hunt white tailed deer in many states because the cartridge is considered underpowered.
      Wait, what? The way I heard it from gun grabbers it’s because there would be nothing left from the deer.

  19. avatar Johnathan says:

    Not to nitpick, but just to point out the only death from the OSU attack was the perpetrator himself who was shot by a responding officer.

  20. avatar doesky2 says:

    So was there a pro-gun group that can lay plausible claim to making PLACA happen?
    If so, kudos are in order for the foresight.

  21. avatar Glenn says:

    Negligent entrustment claim against a manufacturer is a huge stretch. To my knowledge, the only successful negligent entrustment claims under the PLCAA have been against the person (“seller”) who directly handed the firearm to the person who did the shooting. That is usually a requirement for any NE claim.

    The typical valid NE case involves me letting you use my car/jet ski/boat/wood chipper/gun even though I know or should know that you are either unlicensed, reckless or incompetent.

    Another requirement in some states (but not all) is that the thing entrusted has to be owned by the person handing it over. That’s bc once the thing is sold, the seller has no right to control what the buyer does with it.

    The problem with the PLCAA is that it suppllies its own crappy definition of “negligent entrustment.” By its own language it applies to “sellers,” but doesn’t apply to “selling” a gun TO someone; instead, it applies to “supplying” a gun “FOR USE” by someone who the seller knows or should know is likely to use it in a manner involving unreasonable risk of harm. The statue ISN’T clear bc manufacturers “sell” guns to distributors for the purpose of “supplying” the gun “for use” by someone else. I seriously doubt that’s the best way to read the statute, but damnit, that’s one interpretation bc whoever wrote it sucked.

    Despite the above, the plaintiff still loses bc he can’t establish how the manufacturer could be expected to know what a particular person way down the supply chain is going to do. That’s why the plaintiff’s argument is that he can win by establishing only that Bushmaster knew the type of person who would use its weapons. That argument still sux and even if the CT Supremes bought it, the plaintiff would still lose; but it would force Bushmaster to spend alot of money to defend itself along the way, which is what they are really hoping for.

    The attorneys for the plaintiffs aren’t dumb or unethical. We should thank them for red teaming a poorly worded statute during a time when it’s possible to fix it.

    1. avatar Gov. William J Le Petomane says:

      ‘The attorneys for the plaintiffs aren’t… unethical.’ – So the lawyers are not only working pro-bono but are willing to fork over Remington’s attorney fees out of their own pockets when the court rules the lawsuit to be frivolous?

  22. avatar Mr Lizard says:

    So can this be appealed to the Supreme Court if the proggies on the CT court allow it to go forward?

    1. avatar Gov. William J Le Petomane says:

      If a state court violates feder al law, I would think so.

    2. avatar Big Bill says:

      If my understanding of how our legal system works is right, yes, it can be appealed all the way to SCOTUS.
      Of course, that doesn’t, in any way, force SCOTUS to actually hear the appeal, only to consider it. The SCOTUS actually hears only a small percentage of the appeals that reach it.

  23. avatar Larry says:

    The real focus should be the deliberate negligence in the face of known attacks on schools to provide the required measures to ensure no one can enter unless deliberately let in by staff. Sandy Hook did not install bullet proof doors, no radio links to law enforcement, no staff training to handle such situations, and refused to hire armed security that could have intervened and maybe stopped it! I hope this suit blows up in their faces and they are again forced to pay ALL LEGAL fees for those they are suing!

  24. avatar Jim Bullock says:

    Don’t guns sales at an FFL require checking against the “No guns for you!” database, which includes people designated mentally unfit, a task the govt has also taken on to itself.

    If anyone’s on the hook for “Negligent Entrustment” it’s the feebs.

  25. avatar Kyle says:

    Since almost every firearm used by civilians has military roots or is a military weapon and the right to keep and bear arms is about the right to possess the same basic weapons that soldiers use, that alone ought to disqualify the claims of the plaintiffs. I know it won’t though because the legal process is more complex for something like this and also the judges probably have no idea even about that fact (and the lawyers for the gun manufacturers may not know it either).

    I also would not put too much faith in the courts to stop something like this given how they refuse to block the absurd assault weapons bans.

  26. avatar DaveL says:

    For a court to rule that selling a rifle to an affluent soccer mom constitutes negligent entrustment would be to enact a new “assault weapon” ban, which Congress has repeatedly declined to do, by judicial fiat. Hell, it would practically be a Constitutional Amendment by judicial fiat. I certainly hope that Connecticut courts are not so brazen.

  27. avatar Big Bill says:

    Why am I not getting email notifications about follow-up comments?
    I properly check the “Notify me of follow-up comments by email” box.
    I keep asking this because on other forums where this is standard, I get such notifications. Is it really that hard to get a comments section to work properly, or replace a faulty comments system with one that works as advertised?

  28. avatar Jim Macklin says:

    Has the lawyer claimed that Mrs. Lanza gave teh gun to her son knowing that he planned to murder children?

    I seem to recall she tried to get teh State to restrain him teh state refused or was unable.

    Then she was murdered, the first victim.

    The lawyer should surrender his diploma and license.

  29. avatar Ian says:

    Did anyone happen to see the CBS News coverage of the oral arguments before the Connecticut Supreme Court? It was another example of anti-gun bias by the MSM.

    Follow the link below to see what I mean.

    http://www.politifactoid.com/2017-11-18_sandy-hook-csc.htm

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