Conn. Judge Allows Newtown Lawsuit Against Gun Maker to Move Forward

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The Connecticut Law Tribune
April 14, 2016

Joshua Koskoff

Joshua Koskoff RobertVHarrington

A Connecticut Superior Court judge has denied a motion by a gun maker to dismiss the lawsuit filed by families of victims in the Sandy Hook school shooting. Lawyers for the victims' families are calling the ruling a "huge victory" in their effort to hold Remington Arms, the maker of the Bushmaster AR-15 rifle used by Adam Lanza, responsible for the Sandy Hook massacre.

"We are thrilled that the gun companies' motion to dismiss was denied," said one of the plaintiffs' lawyers, Josh Koskoff of Koskoff, Koskoff & Bieder in Bridgeport. "The families look forward to continuing their fight in court."

Remington Arms was among the defendant companies that sought dismissal of the lawsuit. Other defendants include firearm distributor Camfour, based in Westfield, Massachusetts; and Riverview Gun Sales, the now-closed East Windsor store where Lanza's mother legally purchased the Bushmaster rifle in 2010.

The plaintiffs in the lawsuit, filed in December 2014, include nine families of those who died in the shooting and survivor Natalie Hammond. They say the three defendants acted and continue to act negligently in their production, marketing and sale of the A$-15 rifle.

Remington's lawyer, James Vogts of Chicago's Swanson, Martin & Bell, argued in support of the motion to dismiss at a February hearing. Vogts could not immediately be reached for comment after the ruling by Judge Barbara Bellis.

Vogts argued at the earlier hearing that the federal Protection of Lawful Commerce in Arms Act largely shields firearms makers from civil liability for criminal acts committed with their products. "Congress has expressed clear intention that lawsuits against gun manufacturers shall not be brought and shall not proceed," said Vogts.

But Koskoff has argued the AR-15 serves no other purpose than to cause lethal harm, unlike other guns, which are primarily used for hunting or home defense. The plaintiffs argued that the 2005 federal law offers six exceptions, outlining circumstances when firearms makers and sellers can face liability. One exception involves the doctrine of "negligent entrustment." A party can be held liable for entrusting-or granting access-to a product to someone who is likely to use that product to harm a third party.

In the Newtown case, Koskoff told the judge, negligent entrustment occurred when the defendants allowed people without military or police training access to the semi-automatic AR-15. He said that military personnel undergo 100 hours of training before being entrusted with the rifle.

The other exemption cited by the plaintiffs is commonly called the "predicate exception." It states that a civil lawsuit can be brought when "a manufacturer or seller of a qualified [firearm] knowingly violated a state or federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought."

In previous lawsuits against gun makers and sellers in other jurisdictions, plaintiffs have cited state nuisance statutes in claiming the predicate exception. In the Connecticut case, Koskoff argued that the defendants violated the Connecticut Unfair Trade Practices Act. The lawsuit said the CUTPA violation occurred when the defendants sold assault rifled "in the civilian market" when they should have known that the firearms "had a continuing inherent or natural tendency to create danger and inflict injury, was offensive to public policy, and posed a serious risk to public health."

Bellis, in a highly technical 18-page ruling issued April 14, was not persuaded that the federal law - which she referred to by the acronym PLCAA - provided sufficient grounds to dismiss the suit.

"The court concludes that any immunity that PLCAA may provide does not implicate this court's subject matter jurisdiction," opined Bellis. "The court further concludes that the plaintiff's failure, if any, to bring this action within an exception to PLCAA goes to the legal sufficiency of the complaint rather than the court's jurisdiction. Accordingly, the defendants' motions to dismiss, in which they claim that the court lacks subject matter jurisdiction, cannot be granted on the basis of PLCAA."

A status conference on the case between the judge and the lawyers is scheduled for April 19.

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