Sandy Hook shooting – Wrongful death lawsuit against Bushmaster Firearms – Connecticut Supreme Court allows case to proceed on the theory of wrongful advertising and marketing

On March, 14, 2019 the Connecticut Supreme Court issued its decision in Soto v. Bushmaster Firearms International, LLC, https://jud.ct.gov/external/supapp/Cases/AROcr/CR331/331CR865.pdf (majority opinion), https://www.jud.ct.gov/external/supapp/Cases/AROcr/CR331/331CR865E.pdf (dissent).  This is the wrongful death case arising from the Sandy Hook shooting.  The complaint pleaded two theories of liability:  (1) the defendants negligently entrusted to civilian consumers a semiautomatic rifle (“assault rifle”) that is suitable for use only by military and law enforcement personnel; and  (2) the defendants violated the Connecticut Unfair Trade Practices Act (CUTPA) by advertising and marketing the rifle in an unethical, immoral and unscrupulous manner, namely, by extolling its militaristic and assaultive qualities and reinforcing its image as a combat weapon, the intended use of which is waging war and killing human beings. 

The trial court granted the defendants’ motion to strike the complaint.  In a 4-3 decision, the supreme court affirmed the dismissal of the negligent entrustment action but reversed the dismissal of the CUTPA action, holding that the allegations of wrongful marketing and advertising of a firearm stated a valid claim for unfair trade practices under CUTPA.  The defendants argued that the CUTPA claim was barred by the federal Protection of Lawful Commerce in Arms Act (PLCAA).  However, the court held that CUTPA meets the “predicate exception” in the PLCAA itself “for civil actions alleging that a firearms manufacturer or seller knowingly violated a state or federal statute ‘applicable to the sale or marketing of [a firearm] and [that] the violation was a proximate cause of the harm for which relief is sought.’”  In rejecting the defendants’ PLCAA defense, the majority concluded that if Congress had intended the PLCAA to provide immunity from liability for violation of state consumer protection laws, the statute would have included explicit language to that effect.  The dissent vigorously disagreed with the majority’s holding that CUTPA was a “predicate statute” that qualified for the “predicate exception” from the PLCAA.

Needless to say, this is a highly controversial decision, already the subject of extensive commentary.  The next step will be lengthy and contentious discovery, after which the defense will undoubtedly file a motion for summary judgment, which will almost certainly bring the case up to the United States Supreme Court for review, regardless of whether the motion is granted or denied at the state trial and supreme court level.

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