A lawsuit by families of victims of the 2012 Sandy Hook Elementary School massacreagainst the manufacturer of the gun used in the shooting could hinge on a judge's interpretation of a 44-year-old judgment against an Arkansas cement company.
During a hearing Monday in front of Superior Court Judge Barbara Bellis, in which she heard arguments on Remington Arms Co.'s motion to dismiss the lawsuit, the plaintiffs' attorneys referred several times to the 1972 "cherry bomb" case as precedent for their "negligent entrustment" claim.
In a negligent entrustment case, a party can be held liable for entrusting a product, in the Sandy Hook case the Bushmaster AR-15 rifle, to another party who then uses it to harm a third party.
In the federal court case in Arkansas, the family of a 6-year-old girl sued a cement company after her hand was partially blown off by a cherry bomb that had been given to her by another child who had gotten it from an employee of the cement company. The company had used the firework to dislodge powdered cement when it became lodged in its silos.
A jury awarded the family $33,000. The Arkansas Cement Co. appealed to the 8th District Circuit Court but lost as the judges ruled under a theory of negligent entrustment that the cement company could be held liable.
"Having reason to know of the misuse to which the cherry bombs were being put and the possible tragic results upon such instrumentalities coming into the hands of children, especially those of a tender age, the injury here was clearly foreseeable and was proximately caused by the negligent entrustment," the judges wrote in their decision.
The issue of negligent entrustment is at the heart of the Sandy Hook case as well.
The lawsuit filed by nine victims' families and Natalie Hammond, a school administrator who was shot and survived, against Remington, Camfour, the distributor of the weapon, and Riverview Sales Inc., the dealer that sold the Bushmaster AR-15, alleges that Remington entrusted a weapon designed for the military in the hands of civilians to boost profits.
Riverview sold the gun to Nancy Lanza, the mother of shooter Adam Lanza, in 2010. On Dec. 14, 2012, Adam Lanza fired 154 bullets from the Bushmaster in five minutes inside Newtown's Sandy Hook Elementary School, killing 20 first-graders and six adults.
Negligent entrustment is one of the few legal exceptions under the federal Protection of Lawful Commerce in Arms Act or PLCAA, designed to grant immunity to gun manufacturers.
At least one legal expert said the Arkansas case could be enough for Bellis to rule the Sandy Hook case should proceed to trial.
"An old case that specifically doesn't look like it has anything to do with guns could have quite a bit to do with this gun lawsuit," said Georgetown Law Professor Heidi Li Feldman. "If the judge is looking for a little bit of precedent to hang her hat on to move the case forward, this Arkansas case could give her that."
An attorney for the plaintiffs, Josh Koskoff, told Bellis during Monday's hearing that this case was a "top down" negligent entrustment case, in which the Remington Arms Co. knew it was putting a lethal killing machine into civilians' hands.
The cherry bomb case was mentioned when Bellis asked the plaintiffs' attorneys if they had case examples to support the theory of negligent entrustment in this case.
Another plaintiffs' attorney, Katherine Mesner-Hage, acknowledged the argument may be a novel one, but that the Arkansas case does provide precedent.
Feldman said that in the Arkansas case the court ruled that even though the cement company did not actually give the cherry bomb to the 6-year-old girl, it could foresee that a dangerous product could cause an injury.
"The plaintiffs are tying it back to the Arkansas case by saying people who use this weapon on a regular basis, like police officers, have very careful procedures when this gun is in their hands, and none of those procedures are in place when civilians get them," Feldman said.
Remington's attorney James Vogts said that he's never heard of the "top down claim in any court before today."
"This is precisely what PLCAA is designed for, to prevent attorneys from coming up with these novel theories," Vogts said.
He ended his presentation by imploring Bellis to apply the federal law and dismiss the case. She has 120 days to rule on whether to throw the case out.