Negligent Entrustment = An Extralegislative Gun Ban

[bushmaster1313]

Today a judge heard argument on whether a lawsuit should be allowed to proceed in Connecticut State Court alleging that the gun manufacturer was negligent in putting an AR15 type rifle into the stream of commerce. The plaintiffs must allege negligent entrustment to avoid dismissal under the Federal statute that would protect a manufacture from a suit like this absent negligence.

This is very troubling. If this suit is allowed to proceed, what will be next. Going after a non FFL who sells a gun on an online auction to a stranger and who ships the gun to an FFL for lawful transfer after a NICS test?'

If your local judges are elected, vote responsibly.

[CoMF]

When have firearm manufacturers started selling their products "direct"?

For those interested, yes, this story is very much real and happening right now.

Sandy Hook Families' Suit Against Gun Maker Will Test Federal Law

A good judge would never let this bogus suit see the light of day, since manufacturers cannot possibly know the intentions of end users. FFLs are another story, but the BG check pretty much comprises due diligence on their behalf...

Watch it closely, but don't panic.

[CoMF]

Gato, I don't want to see you run afoul of the board rules, so I'll post this for your benefit.

RULES - General Posting Rules

In particular:

The RULES:

The following topics are BANNED on this Board:
Abortion
Religion
Racial issues
Gay rights/homosexuality
General LEO bashing
Political Discussion and Comment
Do NOT participate in discussion of banned topics.

Seriously, it's not worth it.

Also...

[Retired LTC, USAR]

If the judge does allow it to proceed, and they ultimately win at the Supreme Court level,could we then sue the manufacture of any product when someone is killed by it?

[Peak53]

If this suit proceeds, could the seller allege that the government has a faulty background check system? Not sure where this ends.

[handejector]

I'm loathe to delete the eloquent arguments presented on tort law, but it is not the specific subject here.
This is a gun forum.

The topic of this thread is an extremely dangerous possibility for gun manufacturers:

Originally Posted by bushmaster1313

Today a judge heard argument on whether a lawsuit should be allowed to proceed in Connecticut State Court alleging that the gun manufacturer was negligent in putting an AR15 type rifle into the stream of commerce.

Think about that.
I would suggest that we watch the developments closely.

[BC38]

I thought the legal commerce clause had already been upheld as a viable defense in numerous cases like this. How many times does the legal system have to squash this BS before they stop trying? The Brady bunch lost a suit just like this just last year and had to reimburse the defendant something like a quarter of a million dollars in legal fees. I don't see where this one would be any different.

[dougb1946]

The FFL is licensed by the fed govt specifically to sell guns. Wouldn't this mean that the govt was negligent in issuing a license?

[bushmaster1313]

I went and looked up the statute

The findings and purposes, which make sense to a pro 2A reader, are here:

https://www.law.cornell.edu/uscode/text/15/7901

The definitions, are here:

https://www.law.cornell.edu/uscode/text/15/7903

The definition of Seller does not protect a non FFL type individual:

(6) SellerThe term “seller” means, with respect to a qualified product—
(A) an importer (as defined in section 921(a)(9) of title 18) who is engaged in the business as such an importer in interstate or foreign commerce and who is licensed to engage in business as such an importer under chapter 44 of title 18;
(B) a dealer (as defined in section 921(a)(11) of title 18) who is engaged in the business as such a dealer in interstate or foreign commerce and who is licensed to engage in business as such a dealer under chapter 44 of title 18; or
(C) a person engaged in the business of selling ammunition (as defined in section 921(a)(17)(A) of title 18) in interstate or foreign commerce at the wholesale or retail level.

The definition of "Negligent Entrustment" is:

(B) Negligent entrustment
As used in subparagraph (A)(ii), the term “negligent entrustment” means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.

The plaintiffs in Connecticut want to make putting an AR15 type of gun into the stream of commerce negligent entrustment under the theory that there is no legitimate use for such a gun.

[g8rb8]

Originally Posted by bushmaster1313

I went and looked up the statute

The findings and purposes, which make sense to a pro 2A reader, are here:

https://www.law.cornell.edu/uscode/text/15/7901

The definitions, are here:

https://www.law.cornell.edu/uscode/text/15/7903

The definition of Seller does not protect a non FFL type individual:
(6) SellerThe term “seller” means, with respect to a qualified product—
(A) an importer (as defined in section 921(a)(9) of title 18) who is engaged in the business as such an importer in interstate or foreign commerce and who is licensed to engage in business as such an importer under chapter 44 of title 18;
(B) a dealer (as defined in section 921(a)(11) of title 18) who is engaged in the business as such a dealer in interstate or foreign commerce and who is licensed to engage in business as such a dealer under chapter 44 of title 18; or
(C) a person engaged in the business of selling ammunition (as defined in section 921(a)(17)(A) of title 18) in interstate or foreign commerce at the wholesale or retail level.


The definition of "Negligent Entrustment" is:
(B) Negligent entrustment
As used in subparagraph (A)(ii), the term “negligent entrustment” means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.


The plaintiffs in Connecticut want to make putting an AR15 type of gun into the street of commerce negligent entrustment under the theory that there is no legitimate use for such a gun.

bushmaster1313,
Thank you for informing us of an important case.

I either misunderstand the definition of "seller" or you wrote something other than what you meant. My reading of the definition of "seller" is that is does NOT include individuals (i.e. someone not involved at a retail or wholesale level). Please clarify or explain.

Thank you.

[bushmaster1313]

The statute only protects persons who meet the definition of "Seller," which does not include regular folk who are not FFL's.

I will post the protection section tonight.

[bushmaster1313]

Originally Posted by bushmaster1313

The statute only protects persons who meet the definition of "Seller," which does not include regular folk who are not FFL's.

I will post the protection section tonight.

The protection from suit section states:

(a) In general
A qualified civil liability action may not be brought in any Federal or State court.

A qualified civil liability action is defined to be:

(5) Qualified civil liability action
(A) In generalThe term “qualified civil liability action” means a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product, or a trade association, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include—
(i) an action brought against a transferor convicted under section 924(h) of title 18, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;
(ii) an action brought against a seller for negligent entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a qualified product 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, including—
(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or
(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of title 18;
(iv) an action for breach of contract or warranty in connection with the purchase of the product;
(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or
(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of title 18 or chapter 53 of title 26.
(B) Negligent entrustment
As used in subparagraph (A)(ii), the term “negligent entrustment” means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.

(C) Rule of construction
The exceptions enumerated under clauses (i) through (v) of subparagraph (A) shall be construed so as not to be in conflict, and no provision of this chapter shall be construed to create a public or private cause of action or remedy.

(D) Minor child exception
Nothing in this chapter shall be construed to limit the right of a person under 17 years of age to recover damages authorized under Federal or State law in a civil action that meets 1 of the requirements under clauses (i) through (v) of subparagraph (A).

So the net result is that manufacturers and FFL's engaged in the business are immune from suit if they obey the law, so long as they did not knowingly sell to someone reasonably likely to do a bad thing with the gun.

The lawsuit in Connecticut alleges that because an AR15 type gun was used in the murders, the manufacturer, distributor and gun shop are not protected by the statute because the gun has no reasonable use.

[BC38]

Originally Posted by bushmaster1313

The protection from suit section states:


A qualified civil liability action is defined to be:



So the net result is that manufacturers and FFL's engaged in the business are immune from suit if they obey the law, so long as they did not knowingly sell to someone reasonably likely to do a bad thing with the gun.

The lawsuit in Connecticut alleges that because an AR15 type gun was used in the murders, the manufacturer, distributor and gun shop are not protected by the statute because the gun has no reasonable use.

Well, then the lawsuit should be dismissed in about 10 minutes - because tens of THOUSANDS of people own and use AR-15 rifles for the perfectly reasonable purposes of target practice, entertainment, hunting, and self defense.

[Retired Chief]

Gentlemen, this lawsuit is not based on logic or reason, it is based on emotion. The family members want to punish somebody, and the shooter is not available for them to punish. The attorney feels he will get a lot of publicity, the families will pay for it, and you never know, there might be a big payday! While Federal Rules allow the judge to make the plaintiff's attorney pay respondent's expenses, that is almost never done, and probably won't in this case, because they did at least allege a tort. I frankly don't see much chance of the Plaintiff's winning, but that's what I thought about the 20th or so person who sued after being hit by a foul ball at a professional baseball game. The courts had held in the previous 19 cases that when you went to the game, you assumed the risk of getting hit by a batted ball. Lo and behold, on the 20th case the court found the ball club liable for a nice chunk-a-change.
This is a case about people who feel like they have to do something, even if its wrong, and an attorney willing to accommodate them.
Hopefully, good sense will prevail, but remember a judge is not a judge because he is right, he is right because he is a judge. They are human too, and subject the same biases, prejudices and frailities a the rest of us. Good attorneys like settlements, because they are a sure thing while a trial is a roll of the dice.

[bushmaster1313]

And hard cases make bad law

[bushmaster1313]

Originally Posted by handejector

I'm loathe to delete the eloquent arguments presented on tort law, but it is not the specific subject here.
This is a gun forum.

The topic of this thread is an extremely dangerous possibility for gun manufacturers:



Think about that.
I would suggest that we watch the developments closely.

Today I heard on the radio that a judge is letting a suit in Connecticut proceed against the maker of the Bushmaster.

I found a link

Judge allows Newtown lawsuit against gun companies to move forward | PBS NewsHour

The ruling is by a state Judge in Connecticut.

IMHO this lawsuit should have been dismissed under the Protection of Lawful Commerce in Arms Act, the PLCAA.

Here is the negligent entrustment exception which wojuld need to be satisfied in order for the suit to proceed:

As used in subparagraph (A)(ii), the term “negligent entrustment” means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.

Unless something has not been reported, there is no way the seller could have known that the person to whom the product was supplied was likely to use it in an unreasonable manner. This case will come down to whether a semi-auto "assault weapon" is as a matter of law unreasonably dangerous in the hands of civilians.

One report says the gun was a Bushmaster XM15-E2S, which woujld make it a post-ban semi-auto, not an assault weapon under now or during the assault weapons ban, and I believe a non-assault weapon under Connecticut law when purchased by the killer's mother.