Gunmakers Liability May Be Limited By Federal Law

Gunmaker’s Liability

Brien Roche

Gunmakers are generally considered to be immune from liability. What protects them is a federal statute called “The Protection of Lawful Commerce and Arms Act” (PLCAA).

PLCAA does have several exceptions. One of them was exposed during a recent settlement against Remington based upon the Sandy Hook, CT massacre. In that case an AR-15-style semi-automatic weapon made by Bushmaster was used to kill 20 first-graders and 6 adults.

Over the last 3 years there have been 600 mass shootings per year according to the Gun Violence Archive. A mass shooting is defined by them as involving an injury or death for 4 or more people including the shooter.

The Sandy Hook case rested on 2 exceptions in the PLCAA. One of them says that the gun company can be sued for what is called “negligent entrustment”. In the Sandy Hook case, the plaintiffs alleged that the manufacturer knew that these rifles were unsuitable for civilians. They further alleged that they knew that one of them could end up in the hands of a disturbed individual.

Gunmaker’s Liability-Marketing

The other exception is what is called the “Predicate Exception”. That holds the gunmaker potentially liable if they knowingly violate an existing state or federal law pertaining to the sale or marketing of firearms and this was a cause of harm.

The plaintiffs in Sandy Hook alleged that there was a violation under the CT Unfair Trade Practices Act.

In their lawsuit, they reviewed the history of the AR-15-style rifle. They explained features that made it so deadly. The lawsuit described the massacre that was caused by this particular shooter.

The trial court in that case dismissed the claim, stating that neither exception applied. The CT Supreme Court disagreed as to the claim based on the Unfair Trade Practices Act. What the court said in that case was that the plaintiffs could sue Remington over the marketing but not the sale of the rifle. The Supreme Court however expressed skepticism as to whether or not the plaintiffs could establish the causal connection.

As part of the settlement in that case, it was agreed that the discovery could be released. As of this date, that discovery has not been released. That prospective release will be significant.