331 Conn. 53, 202 A.3d 262 (2019)
On December 14, 2012, twenty-year-old Adam Lanza forced his way into Sandy Hook Elementary School in Newtown, Connecticut, and over the course of less than four and one-half minutes fatally shot twenty-six people, including nine whose estates are represented by the plaintiffs, while wounding two others.1 Lanza carried out the attack using a Bushmaster XM15-E2S semiautomatic rifle that he had retrieved that morning along with multiple thirty-round magazines.2
Sometime prior to March 2010, the Bushmaster defendants manufactured the rifle and sold it to the Camfour defendants, who resold it to the Riverview defendants operating a retail gun store in East Windsor, Connecticut.3 In March 2010, Lanza's mother purchased the rifle from the Riverview defendants.4 The rifle is an AR-15 style weapon capable of rapid semiautomatic fire, accommodating large-capacity magazines, and firing bullets at high velocity that cause shockwaves through the body.5
In December 2014, the plaintiffs, as administrators of the estates of nine victims, filed this action in the Superior Court in the judicial district of Fairfield pursuant to the wrongful death statute, seeking damages from the manufacturers, distributors, and direct sellers of the rifle.6 The complaint alleged two primary theories: that the defendants negligently entrusted a military-grade assault rifle to civilian consumers and that they violated the Connecticut Unfair Trade Practices Act through the sale and through unethical, oppressive, immoral, and unscrupulous marketing that promoted the rifle for offensive combat missions.7
The defendants moved to strike the amended complaint. The trial court granted the motions in their entirety.8
Whether the plaintiffs pleaded a legally sufficient cause of action for negligent entrustment under Connecticut common law?9
A cause of action for negligent entrustment requires that the defendant entrusted a potentially dangerous instrumentality to a third person.10 The entrustor must know or should know that the person intends or is likely to use the instrumentality in a manner that involves unreasonable risk of physical harm.11 Such use must in fact cause harm.12
No. The rule requires actual or constructive knowledge that the direct entrustee is likely to use the item unsafely.13 The established facts show that Lanza's mother purchased the rifle from the Riverview defendants in March 2010 after the Bushmaster defendants manufactured it and the Camfour defendants distributed it.14 Yet the plaintiffs alleged no specific reason to believe that Lanza's mother was likely to use the rifle in an unsafe manner or that she would share it with Lanza.15
The plaintiffs instead sought to expand the doctrine to cover any commercial sale of assault weapons to civilians on the theory that societal costs outweigh benefits.16 The court rejected that expansion because the nexus between the defendants and the ultimate user was too attenuated and no case law supported liability on such facts.17
The plaintiffs did not plead a legally sufficient cause of action for negligent entrustment under Connecticut common law, so the trial court properly struck those claims.18
Whether the plaintiffs have standing under CUTPA to bring wrongful death claims as third-party victims without a consumer or commercial relationship with the defendants?19
CUTPA authorizes any person who suffers an ascertainable loss of money or property as a result of an unfair trade practice to bring an action.20 The statute contains no business relationship or privity requirement after the 1975 and 1979 amendments eliminated the original direct-purchaser limitation.21
Yes. The text of General Statutes § 42-110g (a) permits any person who suffers an ascertainable loss caused by a prohibited practice to sue.22 The legislative history confirms that the amendments removed any privity requirement to allow broader enforcement.23 The established facts show that the plaintiffs are administrators of estates of direct victims of the Sandy Hook shooting carried out with the rifle whose marketing the defendants allegedly conducted in an unethical manner.24
The link between the alleged wrongful marketing and the injuries is direct.25 This differs from the remote municipal claims in Ganim v. Smith & Wesson Corp.26 Prudential concerns do not bar standing here because the decedents are the most directly injured parties and no customer of the defendants has a better claim.27
The plaintiffs have standing under CUTPA to bring their wrongful death claims even without a consumer or commercial relationship with the defendants, so the trial court improperly struck the claims on that ground.28
Whether a wrongful death action predicated on a CUTPA violation must satisfy both the wrongful death statute of limitations and the CUTPA statute of limitations?29
A wrongful death action predicated on a CUTPA violation must comply with both the two-year-from-death and five-year-from-act statute of limitations in General Statutes § 52-555 (a) and the three-year statute of limitations in General Statutes § 42-110g (f).30 This is because the wrongful death statute does not create an independent cause of action.31 Any limitation period in a statute creating a right of action that did not exist at common law is an essential element of that right.32
Yes. Because the wrongful death statute is derivative, the decedent must have been able to satisfy all elements of the underlying CUTPA claim, including its statute of limitations.33 The established facts show that the manufacturing, distribution, and final sale of the rifle to Lanza's mother all occurred at least three years before the December 2014 filing.34 Claims based on the theory that any sale of assault weapons to civilians is an unfair trade practice are time-barred.35
However, the wrongful marketing claims, which are phrased in the present tense and reasonably allege conduct continuing through the time of the shootings, fall within the three-year period.36
A wrongful death action predicated on a CUTPA violation must satisfy both statutes of limitations; the sale-based claims are time-barred while the wrongful marketing claims are not.37
Whether the exclusivity provision of the Connecticut Product Liability Act bars the plaintiffs' CUTPA claims predicated on wrongful advertising and marketing?38
The exclusivity provision of the Product Liability Act, General Statutes § 52-572n (a), bars only claims seeking to recover damages caused by a defective product.39 It does not preclude CUTPA claims that allege unfair trade practices in advertising and marketing without asserting a product defect such as inadequate warnings.40
No. The plaintiffs' wrongful marketing claims allege that the defendants promoted the XM15-E2S for illegal offensive assault missions in an unethical and unscrupulous manner.41 They do not allege that the rifle contained inadequate warnings making it unreasonably dangerous.42 The established facts contain no allegations that the advertising rendered the product defective.43 The claims therefore fall outside the scope of the Product Liability Act exclusivity provision.44
The exclusivity provision of the Connecticut Product Liability Act does not bar the plaintiffs' CUTPA claims predicated on wrongful advertising and marketing.45
Whether personal injuries resulting in death that are alleged to result directly from wrongful advertising and marketing practices are cognizable under CUTPA?46
The term 'actual damages' in General Statutes § 42-110g (a) includes personal injuries.47 The ascertainable loss requirement does not restrict the types of damages recoverable once standing is established.48 This reading is consistent with the remedial purpose of CUTPA, FTC precedent treating physically dangerous advertising as unfair, and decisions of other jurisdictions and Connecticut trial courts.49
Yes. The established facts allege that the defendants' unethical marketing of the XM15-E2S for offensive combat missions was a substantial factor in Lanza's selection of the rifle and in the lethality of the attack that killed the decedents.50 Because the statute permits recovery of actual damages for ascertainable losses caused by unfair trade practices, and because wrongful advertising that creates a genuine risk of physical harm falls within CUTPA's purview, personal injuries resulting in death are cognizable.51
Personal injuries resulting in death that are alleged to result directly from wrongful advertising and marketing practices are cognizable under CUTPA.52
Whether CUTPA, as applied to the plaintiffs' allegations of wrongful marketing, qualifies as a predicate statute under the Protection of Lawful Commerce in Arms Act?53
The predicate exception in 15 U.S.C. § 7903 (5) (A) (iii) preserves actions alleging that a manufacturer or seller knowingly violated a state statute applicable to the sale or marketing of firearms when the violation proximately caused the harm.54 CUTPA qualifies because it is capable of being applied to the sale and marketing of firearms and has in fact been applied to regulate unethical firearms advertising.55
Yes. The ordinary meaning of 'applicable' is 'capable of being applied,' and CUTPA prohibits unfair acts in any trade or commerce.56 The established facts show that the plaintiffs allege the defendants marketed the XM15-E2S to civilians for illegal offensive assaults in an unethical manner that was a substantial factor in the Sandy Hook massacre.57 This application of CUTPA to wrongful marketing falls within the predicate exception, consistent with the statutory text, the statement of findings and purposes, the Second Circuit's decision in New York v. Beretta U.S.A. Corp., and the absence of any clear congressional intent to preempt state regulation of dangerous advertising.58
CUTPA, as applied to the plaintiffs' allegations of wrongful marketing, qualifies as a predicate statute under the Protection of Lawful Commerce in Arms Act, so PLCAA does not bar those claims.59