DONNA L. SOTO, ADMINISTRATRIX (ESTATE OFVICTORIA L. SOTO), ET AL.
v.
BUSHMASTER FIREARMS INTERNATIONAL, LLC, ET AL.
Argued
November 14, 2017
Palmer, McDonald, Robinson, Vertefeuille, Mullins, Kahn and
Elgo, Js. [*]
Procedural
History
Action
to recover damages for, inter alia, the wrongful death of the
named plaintiff's decedent resulting from the
defendants' alleged violation of the Connecticut Unfair
Trade Practices Act, and for other relief, brought to the
Superior Court in the judicial district of Fairfield, where
the court, Bellis, J., granted the motions
of the named defendant et al. to strike the amended complaint
and rendered judgment for the named defendant et al., from
which the plaintiffs appealed; thereafter, the court,
Bellis, J., granted the motion to strike
filed by the defendant Riverview Sales, Inc., and rendered
judgment thereon, and the plaintiffs filed a separate appeal.
Reversed in part; further proceedings.
Joshua
D. Koskoff, with whom were Alinor C. Sterling and Katherine
Mesner-Hage, for the appellants (plaintiffs).
James
Vogts, pro hac vice, and Christopher Renzulli, with whom were
Scott M. Harrington and, on the brief, Andrew A. Lothson, pro
hac vice, Scott C. Allan, Jonathan P. Whitcomb and Peter M.
Berry, for the appellees (defendants).
Howard
Zelbo, Evan A. Davis, pro hac vice, and Elizabeth Vicens, pro
hac vice, filed a brief for Trinity Church Wall Street as
amicus curiae.
James
J. Healy filed a brief for Nora Freeman Engstrom et al. as
amici curiae.
Matthew H. Geelan, Michael J. Dell, pro hac vice, and Rebecca
T. Dell, pro hac vice, filed a brief for Katie Bakes et al.
as amici curiae.
Vaughan Finn and Thomas H. Zellerbach, pro hac vice, filed a
brief for The Brady Center To Prevent Gun Violence as amicus
curiae.
John
J. Kennedy, Jr., Brendan K. Nelligan, Brad S. Karp, pro hac
vice, H. Christopher Boehning, pro hac vice, and Amy J.
Beaux, pro hac vice, filed a brief for the Law Center To
Prevent Gun Violence as amicus curiae.
George
Jepsen, former attorney general, Perry Zinn Rowthorn, former
deputy attorney general, Kimberly Massicotte, associate
attorney general, and Jeremy Pearlman, assistant attorney
general, filed a brief for the State of Connecticut et al. as
amici curiae.
Daniel
J. Klau filed a brief for CT Against Gun Violence et al. as
amici curiae.
David
N. Rosen and Alexander Taubes filed a brief for Newtown
Action Alliance et al. as amici curiae.
Kenneth R. Slater, Jr., David H. Thompson, pro hac vice,
Peter A. Patterson, pro hac vice, and John D. Ohlendorf, pro
hac vice, filed a brief for the Connecticut Citizens Defense
League, Inc., as amicus curiae.
Lawrence G. Keane and Victor E. Schwartz, pro hac vice, filed
a brief for the National Shooting Sports Foundation as amicus
curiae.
Robert
J. Chomiak filed a brief for the Connecticut Defense Lawyers
Association as amicus curiae.
Kenneth R. Slater, Jr., Paul D. Clement, pro hac vice, and
Erin E. Murphy, pro hac vice, filed a brief for the National
Rifle Association of America, Inc., as amicus curiae.
Joseph
P. Secola filed a brief for Gun Owners of America, Inc., et
al. as amici curiae.
OPINION
PALMER, J.
TABLE
OF CONTENTS
Page
I.
PROCEDURAL HISTORY ............... xx
II.
ALLEGED FACTS ................... xx
III.
NEGLIGENT ENTRUSTMENT ............ xx
IV.
WRONGFUL DEATH AND CUTPA: ISSUES OF STATE LAW
....................... xx
A.
CUTPA Standing .................. xx
B.
Statute of Limitations ................ xx
1.
Procedural History ............... xx
2.
Legal Principles ................. xx
C.
Connecticut Product Liability Act Preemption . xx
D.
CUTPA Personal Injury Damages ......... xx
V.
WRONGFUL DEATH AND CUTPA: ISSUES OF FEDERAL LAW
..................... xx
A.
PLCAA Overview .................. xx
B. The
Plain Language of the Statute ........ xx
1. The
Predicate Exception ............ xx
2. The
Statutory Framework ........... xx
3. The
Statement of Findings and Purposes. . . xx
4.
Absurd Result .................. xx
C.
Extrinsic Evidence of Congressional Intent . . . xx
1.
Canons of Statutory Construction ....... xx a. Clear
Statement Requirement ........ xx b. Ejusdem Generis
............... xx c. Statutory Exceptions To Be Construed
Narrowly .................... xx
2.
Related Legislation ............... xx
3. The
Legislative History of PLCAA ....... xx
VI.
CONCLUSION ...................... xx
On
December 14, 2012, twenty year old Adam Lanza forced his way
into Sandy Hook Elementary School in Newtown and, during the
course of 264 seconds, fatally shot twenty first grade
children and six staff members, and wounded two other staff
members. Lanza carried out this massacre using a Bushmaster
XM15-E2S semiautomatic rifle that was allegedly manufactured,
distributed, and ultimately sold to Lanza's mother by the
various defendants in this case. There is no doubt that Lanza
was directly and primarily responsible for this appalling
series of crimes. In this action, however, the
plaintiffs-administrators of the estates of nine of the
decedents-contend that the defendants also bear some of the
blame. The plaintiffs assert a number of different legal
theories as to why the defendants should be held partly
responsible for the tragedy. The defendants counter that all
of the plaintiffs' legal theories are not only barred
under Connecticut law, but also precluded by a federal
statute, the Protection of Lawful Commerce in Arms Act
(PLCAA), Pub. L. No. 109-92, 119 Stat. 2095 (2005), codified
at 15 U.S.C. §§ 7901 through 7903 (2012), which,
with limited exceptions, immunizes firearms manufacturers,
distributors, and dealers from civil liability for crimes
committed by third parties using their weapons. See 15 U.S.C.
§§ 7902 (a) and 7903 (5) (2012).
For the
reasons set forth in this opinion, we agree with the
defendants that most of the plaintiffs' claims and legal
theories are precluded by established Connecticut law and/or
PLCAA. For example, we expressly reject the plaintiffs'
theory that, merely by selling semiautomatic rifles-which
were legal at the time[1]-to the civilian population, the
defendants became responsible for any crimes committed with
those weapons.
The
plaintiffs have offered one narrow legal theory, however,
that is recognized under established Connecticut law.
Specifically, they allege that the defendants knowingly
marketed, advertised, and promoted the XM15-E2S for civilians
to use to carry out offensive, military style combat missions
against their perceived enemies. Such use of the XM15-E2S, or
any weapon for that matter, would be illegal, and Connecticut
law does not permit advertisements that promote or encourage
violent, criminal behavior. Following a scrupulous review of
the text and legislative history of PLCAA, we also conclude
that Congress has not clearly manifested an intent to
extinguish the traditional authority of our legislature and
our courts to protect the people of Connecticut from the
pernicious practices alleged in the present case. The
regulation of advertising that threatens the public's
health, safety, and morals has long been considered a core
exercise of the states' police powers. Accordingly, on
the basis of that limited theory, we conclude that the
plaintiffs have pleaded allegations sufficient to survive a
motion to strike and are entitled to have the opportunity to
prove their wrongful marketing allegations. We affirm the
trial court's judgment insofar as that court struck the
plaintiffs' claims predicated on all other legal
theories.
I
PROCEDURAL
HISTORY
The
plaintiffs brought the present action in 2014, seeking
damages and unspecified injunctive relief.[2] The
defendants include the Bushmaster defendants (Remington),
[3]
one or more of which is alleged to have manufactured the
Bushmaster XM15-E2S semiautomatic rifle that was used in the
crimes; the Camfour defendants, [4]distributors that
allegedly purchased the rifle from Remington and resold it to
the Riverview defendants; and the Riverview defendants,
[5]
retailers that allegedly sold the rifle to Adam Lanza's
mother, Nancy Lanza, in March, 2010.[6] The gravamen of the
plaintiffs' claims, which are brought pursuant to this
state's wrongful death statute, General Statutes §
52-555, [7] is that the defendants (1) negligently
entrusted to civilian consumers an AR-15 style assault
rifle[8] that is suitable for use only by
military and law enforcement personnel, and (2) violated the
Connecticut Unfair Trade Practices Act (CUTPA), General
Statutes § 42-110a et seq., [9] through the sale or
wrongful marketing of the rifle.
The
defendants moved to strike the plaintiffs' complaint,
contending that all of the plaintiffs' claims are barred
by PLCAA. The defendants also argued that, to the extent that
the plaintiffs' claims sound in negligent entrustment,
the plaintiffs failed to state a legally valid negligent
entrustment claim under Connecticut common law, and, to the
extent that their claims are predicated on alleged CUTPA
violations, they are legally insufficient because, among
other things, (1) the plaintiffs lack standing to bring a
CUTPA action, (2) the plaintiffs' claims are time barred
by CUTPA's three year statute of limitations; see General
Statutes § 42-110g (f); (3) personal injuries and death
are not cognizable CUTPA damages, and (4) the plaintiffs'
CUTPA claims are simply veiled product liability claims and,
therefore, are barred by General Statutes § 52-572n (a),
the exclusivity provision of the Connecticut Product
Liability Act (Product Liability Act).[10]
In
response, the plaintiffs argued that PLCAA does not confer
immunity on the defendants for purposes of this case because
two statutory exceptions to PLCAA immunity-for claims
alleging negligent entrustment (negligent entrustment
exception)[11] and for claims alleging a violation
of a statute applicable to the sale or marketing of firearms
(predicate exception)[12]-apply to their claims. The
plaintiffs further argued that, for various reasons, the
defendants' state law negligent entrustment and CUTPA
arguments were ill founded.
Although
the trial court rejected most of the defendants'
arguments, the court concluded that (1) the plaintiffs'
allegations do not fit within the common-law tort of
negligent entrustment, (2) PLCAA bars the plaintiffs'
claims insofar as those claims sound in negligent
entrustment, and (3) the plaintiffs lack standing to bring
wrongful death claims predicated on CUTPA violations because
they never entered into a business relationship with the
defendants. Accordingly, the court granted in their entirety
the defendants' motions to strike the plaintiffs'
amended complaint.
On
appeal, the plaintiffs challenge each of those
conclusions.[13] For their part, the defendants
contend, as alternative grounds for affirmance, that the
trial court improperly rejected their other CUTPA arguments.
We conclude that the majority of the plaintiffs' claims
were properly struck insofar as those claims are predicated
on the theory that the sale of the XM15-E2S rifle to
Lanza's mother or to the civilian market generally
constituted either negligent entrustment; see part III of
this opinion; or an unfair trade practice. See part IV B of
this opinion. We also conclude, however, that the plaintiffs
have standing to prosecute their CUTPA claims under
Connecticut law. See part IV A of this opinion. We further
conclude that PLCAA does not bar the plaintiffs from
proceeding on the single, limited theory that the defendants
violated CUTPA by marketing the XM15-E2S to civilians for
criminal purposes, and that those wrongful marketing tactics
caused or contributed to the Sandy Hook
massacre.[14] See part V of this opinion.
Accordingly, we affirm in part and reverse in part the
judgment of the trial court and remand the case for further
proceedings.
II
ALLEGED
FACTS
Because
we are reviewing the judgment of the trial court rendered on
a motion to strike, we must assume the truth of the following
facts, as alleged by the plain-tiffs.[15] Lanza carried out
the Sandy Hook massacre using a Bushmaster XM15-E2S rifle.
That rifle is Remington's version of the AR-15 assault
rifle, which is substantially similar to the standard issue
M16 military service rifle used by the United States Army and
other nations' armed forces, but fires only in
semiautomatic mode.
The
AR-15 and M16 are highly lethal weapons that are engineered
to deliver maximum carnage with extreme efficiency. Several
features make these rifles especially well suited for combat
and enable a shooter to inflict unparalleled carnage. Rapid
semiautomatic fire ‘‘unleashes a torrent of
bullets in a matter of seconds.'' The ability to
accommodate large capacity magazines allows for prolonged
assaults. Exceptional muzzle velocity makes each hit
catastrophic. Indeed, the plaintiffs contend, bullets fired
from these rifles travel at such a high velocity that they
cause a shockwave to pass through the body upon impact,
resulting in catastrophic injuries even in areas remote to
the direct wound. Finally, the fact that the AR-15 and M16
are lightweight, air-cooled, gas-operated, and magazine fed,
enabling rapid fire with limited recoil, means that their
lethality is not dependent on good aim or ideal combat
conditions.
These
features endow the AR-15 with a lethality that surpasses even
that of other semiautomatic weapons. ‘‘The net
effect is more wounds, of greater severity, in more victims,
in less time.'' That lethality, combined with the
ease with which criminals and mentally unstable individuals
can acquire an AR-15, has made the rifle the weapon of choice
for mass shootings, including school shootings.
The
particular weapon at issue in this case was manufactured and
sold by the Bushmaster defendants. Sometime prior to March,
2010, the Bushmaster defendants sold the rifle to the Camfour
defendants. The Camfour defendants subsequently sold the
rifle to the Riverview defendants, who operate a retail gun
store located in the town of East Windsor.
In
March, 2010, Lanza's mother purchased the rifle from the
Riverview defendants. Lanza, who was seven- teen years old at
the time, had expressed a desire to join the elite United
States Army Rangers unit. His mother bought the rifle to give
to or share with him in order to connect with him. However,
when Lanza turned eighteen on April 22, 2010, he did not
enlist in the military. Still, he gained unfettered access to
a military style assault rifle.
Eight
months later, on the morning of December 14, 2012, Lanza
retrieved the rifle and ten 30 round magazines. Using a
technique taught in the first person shooter video games that
he played, he taped several of those magazines together to
allow for faster reloading. He then drove to Sandy Hook
Elementary School.
Just
before 9:30 a.m., Lanza shot his way into the locked school
using the XM15-E2S.Heimmediately shot and killed Mary Joy
Sherlach as well as the school's principal. He
subsequently shot and wounded two staff members.
Lanza
next entered Classroom 8, where he used the rifle to kill two
adults and fifteen first grade children, including five of
the plaintiffs. Finally, he entered Classroom 10, where he
used the rifle to kill two adults and five first grade
children, including three of the plaintiffs. Nine children
from Classroom 10 were able to escape when Lanza paused to
reload with another magazine.
In
total, the attack lasted less than four and one-half minutes,
during which Lanza fired at least 154 rounds from the
XM15-E2S, killing twenty-six and wounding two
others.[16]
The
plaintiffs filed the present action in 2014 seeking damages
and injunctive relief. Each of the counts in the operative
first amended complaint is predicated on two distinct
theories of liability. First, the plaintiffs contend that the
AR-15 is a military grade weapon that is
‘‘grossly ill-suited'' for legitimate
civilian purposes such as self-defense and recreation. They
also allege that the AR-15 has become the weapon of choice
for mass shootings and, therefore, that the risks associated
with selling the weapon to the civilian market far outweigh
any potential benefits. The defendants continued to sell the
XM15-E2S despite their knowledge of these facts. Therefore,
the plaintiffs contend, it was both negligent and an unfair
trade practice for each of the defendants to sell the weapon,
knowing that it eventually would be purchased by a civilian
customer who might share it with other civilian users.
The
plaintiffs' second theory of liability is that the
defendants advertised and marketed the XM15-E2S in an
unethical, oppressive, immoral and unscrupulous manner. They
contend that the defendants have sought to grow the AR-15
market by extolling the militaristic and assaultive qualities
of their AR-15 rifles and, specifically, the weapon's
suitability for offensive combat missions. The plaintiffs
argue that the defendants' militaristic marketing
reinforces the image of the AR-15 as a combat weapon that is
intended to be used for the purposes of waging war and
killing human beings. Consistent with that image, the
defendants further promoted the XM15-E2S as a combat weapon
system by designating in their product catalogues that the
rifle comes ‘‘standard'' with a 30 round
magazine which, the plaintiffs allege, differs from how the
defendants promote and sell rifles for legal civilian
purposes such as hunting and sport shooting.[17]
The
plaintiffs further contend that the defendants unethically
promoted their assault weapons for offensive, military style
missions by publishing advertisements and distributing
product catalogs that (1) promote the AR-15 as
‘‘the uncompromising choice when you demand a
rifle as mission adaptable as you are, '' (2) depict
soldiers moving on patrol through jungles, armed with
Bushmaster rifles, (3) feature the slogan
‘‘[w]hen you need to perform under pressure,
Bushmaster delivers, '' superimposed over the
silhouette of a soldier holding his helmet against the
backdrop of an American flag, (4) tout the
‘‘military proven performance'' of
firearms like the XM15-E2S, (5) promote civilian rifles as
‘‘the ultimate combat weapons system, ''
(6) invoke the unparalleled destructive power of their AR-15
rifles, (7) claim that the most elite branches of the United
States military, including the United States Navy SEALs, the
United States Army Green Berets and Army Rangers, and other
special forces, have used the AR-15, and (8) depict a
close-up of an AR-15 with the following slogan:
‘‘Forces of opposition, bow down. You are
single-handedly outnumbered.''
Finally,
with respect to this second, wrongful marketing theory of
liability, the plaintiffs contend that the defendants'
marketing of the XM15-E2S to civilians for offensive assault
missions was a substantial factor in causing the
plaintiffs' injuries. Specifically, they contend that
Lanza had dreamed as a child of joining the elite Army
Rangers unit of the United States Army and was, therefore,
especially susceptible to militaristic marketing. They
further contend that he selected the XM15-E2S for his assault
from among an arsenal that included various less lethal
arms-at least three handguns, one shotgun, two bolt action
rifles, and three samurai swords-and that he specifically
chose the XM15-E2S not only for its functional capabilities,
including its assaultive qualities and efficiency in
inflicting mass casualties, but also because of its marketed
association with the military.[18] Finally, they contend
that Lanza was a devoted player of first person shooter games
featuring variants of the XM15-E2S and that he employed
techniques taught in those games to enhance the lethality of
his assault on the school. In other words, the plaintiffs
allege that the attack, had it occurred at all, would have
been less lethal and the carnage less grievous if Lanza had
not been encouraged by the defendants' marketing campaign
to select the XM15-E2Sashis weaponofchoice and taught by
violent video games how to kill with it most efficiently.
Additional facts and procedural history will be set forth as
necessary.
III
NEGLIGENT
ENTRUSTMENT
In
opposition to the defendants' motions to strike, the
plaintiffs argued that their claims were not barred by PLCAA
because the claims are predicated on allegations of negligent
entrustment and CUTPA violations, both of which satisfy
statutory exceptions to PLCAA immunity. In this part of the
opinion, we consider whether the trial court correctly
concluded that the plaintiffs' claims were legally
insufficient to the extent that those claims are predicated
on a theory of negligent entrustment. The trial court
concluded both that the plaintiffs had not sufficiently
pleaded a cause of action in negligent entrustment under
Connecticut common law and, in the alternative, that the
plaintiffs' allegations did not satisfy PLCAA's
statutory definition of negligent entrustment. See 15 U.S.C.
§ 7903 (5) (B) (2012).[19] The plaintiffs
challenge both conclusions on appeal. Because we agree with
the trial court that the plaintiffs have not pleaded a
legally sufficient cause of action in negligent entrustment
under our state's common law, we need not consider
whether negligent entrustment claims must meet stricter
requirements in order to satisfy the federal statutory
exception.
The
following additional procedural history is relevant to this
issue. In response to the defendants' motions to strike,
the plaintiffs argued that their claims are not precluded by
PLCAA because each of their claims is predicated in part on a
theory of negligent entrustment and PLCAA does not confer
immunity on sellers of firearms in actions for negligent
entrustment. See 15 U.S.C. § 7903 (5) (A) (ii)
(2012).[20] In its decision granting the
defendants' motions to strike, the trial court concluded
that an action for negligent entrustment will lie only when
the supplier of a dangerous instrumentality such as a firearm
knows or has reason to know that the direct
entrustee is likely to use the item unsafely. Because
the plaintiffs did not allege that there was any specific
reason to believe that the Cam-four defendants (as direct
entrustees of the Remington defendants), the Riverview
defendants (as direct entrustees of the Camfour defendants),
or Lanza's mother (as a direct entrustee of the Riverview
defendants) was incompetent to operate the XM15-E2Sorhad a
propensity to use the weapon in an unsafe manner, the court
granted all of the defendants' motions to strike with
respect to the plaintiffs' negligent entrustment theories
of liability.
We
commence our review of this issue with a brief discussion of
the history of and principles that animate the tort of
negligent entrustment. The cause of action for negligent
entrustment represents a departure from the general rule that
an individual cannot be held liable for the conduct of
others. It reflects a legitimate societal concern that a
person in possession of a dangerous instrument should bear
the responsibility of exercising care when entrusting that
instrument to another, given the serious risk to society if
items like firearms or automobiles should fall into unfit
hands. See J. Fisher, Comment, ‘‘So How Do You
Hold This Thing Again?: Why the Texas Supreme Court Should
Turn the Safety off the Negligent Entrustment of a Firearm
Cause of Action, '' 46 Tex. Tech. L. Rev. 489, 495,
501 (2014). The primary question that we must resolve is
whether these principles apply only when the entrustor
believes or has specific reason to believe that the
direct entrustee is likely to use the item unsafely
or, rather, whether they also apply when it is reasonably
foreseeable that the entrustment ultimately will lead to
injurious use, whether by the direct entrustee or by some
unknown third party.[21] If the former, then the trial court
properly found for the defendants on this issue as a matter
of law; if the latter, then the plaintiffs are correct that
the plaintiffs' claim presents an issue of fact to be
decided by a jury.
Although
the idea that it may be wrong to entrust a weapon or other
dangerous item to one likely to misuse it is as old as
civilization, [22] the common-law tort of negligent
entrustment traces its origins to Dixon v. Bell, 105
Eng. Rep. 1023 (K.B. 1816). See B. Todd,
‘‘Negligent Entrustment of Firearms, '' 6
Hamline L. Rev. 467, 467 and n.1 (1983). In Dixon,
the defendant sent a preadolescent girl to retrieve a loaded
gun, resulting in the accidental shooting of the
plaintiff's son. See Dixon v. Bell, supra, 1023.
In upholding a verdict for the plaintiff that the defendant
was liable for entrusting the girl with the care and custody
of the weapon, the court recognized that ‘‘he
well [knew] that the said [girl] was too young, and an unfit
and improper person to be sent for the gun . . . .''
Id.
American
courts began applying the doctrine of negligent entrustment
in the 1920s, following the advent of the mass produced
automobile; see J. Fisher, supra, 46 Tex. Tech. L. Rev. 493;
and Connecticut first recognized the common-law cause of
action in Turner v. American District Telegraph &
Messenger Co., 94 Conn. 707, 110 A. 540 (1920). In that
case, the defendant security company entrusted a loaded
pistol to an employee who later instigated a fight with and
ultimately shot the plaintiff, a customer's night
watchman. Id., 708-11 (preliminary statement of
facts). This court held that there was insufficient evidence
to support a verdict for the plaintiff on his negligent
entrustment claim because there was not ‘‘even a
scintilla of evidence that the defendant had or ought to have
had knowledge or even suspicion that [its employee] possessed
any of the traits . . . attributed to him by the plaintiff,
'' including that ‘‘he was a reckless
person, liable to fall into a passion, and unfit to be
[e]ntrusted with a deadly weapon . . . .''
Id., 716. ‘‘Without this vitally
important fact, '' the court concluded,
‘‘the plaintiff's claim falls to the ground .
. . .'' Id.
Other
Connecticut cases decided in the early twentieth century,
although not always expressly resolved under the rubric of
negligent entrustment, also suggested that a person can be
held liable for third-party injuries resulting from
another's use of a dangerous item only if the entrustment
of that item was made with actual or constructive knowledge
that misuse by the entrustee was foreseeable. In Wood v.
O'Neil, 90 Conn. 497, 97 A. 753 (1916), for example,
this court held that no cause of action in negligence could
be maintained against the parents of a fifteen year old boy
who accidentally shot a companion with a shotgun because the
parents, in permitting the boy to use the gun, had no
specific knowledge that he ‘‘was possessed of a
marked careless disposition.'' Id., 500.
Subsequently,
in Greeley v. Cunningham, 116 Conn. 515, 165 A. 678
(1933), we articulated the standards that govern a negligent
entrustment action in the context of automobiles, which since
has become the primary context in which such claims have
arisen. See generally J. Fisher, supra, 46 Tex. Tech. L. Rev.
489. In Greeley, the plaintiff alleged that the
defendant had been negligent in entrusting his car to an
unlicensed driver, who subsequently caused an accident while
attempting to pass the plaintiff's vehicle. See
Greeley v. Cunningham, supra, 517-18.
‘‘[Although] liability cannot be imposed [on] an
owner merely because he [e]ntrusts [his automobile] to
another to drive [on] the highways, '' the court
explained, ‘‘[i]t is . . . coming to be generally
held that the owner may be liable for injury resulting from
the operation of an automobile he loans to another when he
knows or ought reasonably to know that the one to whom
he [e]ntrusts it is so incompetent to
operate it, by reason of inexperience or other cause, that
the owner ought reasonably to anticipate the likelihood that
in its operation injury will be done to others.''
(Emphasis added.) Id., 518. This court proceeded to
set forth the elements of a cause of action sounding in
negligent entrustment of an automobile: (1) the owner of an
automobile entrusts it to another person (2) whom the owner
knows or should reasonably know is so incompetent to operate
it that injury to others should reasonably be anticipated,
and (3) such incompetence results in injury. Id.,
520.
Since
this court decided Wood, Turner, and
Greeley, it never has suggested that a cause of
action for negligent entrustment-whether involving a vehicle,
a weapon, or some other dangerous item-will lie in the
absence of evidence that the direct entrustee is likely to
use the item unsafely. Most jurisdictions that have
recognized a cause of action in negligent entrustment
likewise require that the actor have actual or constructive
knowledge that the specific person to whom a dangerous
instrumentality is directly entrusted is unfit to use it
properly. See, e.g., J. Fisher, supra, 46 Tex. Tech. L. Rev.
496; B. Todd, supra, 6 Hamline L. Rev. 467; S. Beal,
‘‘Saving Negligent Entrustment Claims, ''
Trial, February, 2007, p. 35.
In
accordance with the majority view, this also is the rule set
forth in the Restatement (Second) of Torts. Section 308 of
the Restatement (Second) provides that ‘‘[i]t is
negligence to permit a third person to use a thing . . .
[that] is under the control of the actor, if the actor knows
or should know that such person intends or is likely
to use the thing . . . in such a manner as to create an
unreasonable risk of harm to others.'' (Emphasis
added.) 2 Restatement (Second), Torts § 308, p. 100
(1965). Section 390, which further defines the tort of
negligent entrustment, provides that ‘‘[o]ne who
supplies . . . a chattel for the use of another whom the
supplier knows or has reason to know to be likely because of
his youth, inexperience, or otherwise, to use it in a manner
involving unreasonable risk of physical harm to himself and
others . . . is subject to liability for physical harm
resulting to them.'' 2 id., § 390, p.
314; see also B. Todd, supra, 6 Hamline L. Rev. 467 and n.5.
We take it as well established, then, that, in order to prove
negligent entrustment, a plaintiff must demonstrate that (1)
the defendant has entrusted a potentially dangerous
instrumentality to a third person (2) whom the entrustor
knows or should know intends or is likely to use the
instrumentality in a manner that involves unreasonable risk
of physical harm, and (3) such use does in fact cause harm to
the entrustee or others.
The
rule that a cause of action for negligent entrustment will
lie only when the entrustor knows or has reason to know that
the direct entrustee is likely to use a dangerous
instrumentality in an unsafe manner would bar the
plaintiffs' negligent entrustment claims. Specifically,
there is no allegation in this case that there was any reason
to expect that Lanza's mother was likely to use the rifle
in an unsafe manner.[23]
The
plaintiffs, recognizing that they cannot prevail under this
rule, invite us to adopt a different framework, one
‘‘that focuses on the existence of a nexus
between the defendant and the dangerous user-rather than the
number of steps between them . . . .'' In other
words, their proposal is that a party alleging negligent
entrustment need prove only that it was reasonably
foreseeable that, following the initial entrustment of a
dangerous instrumentality, that instrumentality ultimately
would come into the possession of someone who would use it in
an unsafe manner. A jury could find that standard satisfied
in this case, they contend, because (1) Remington allegedly
marketed its assault rifles to young men who play violent,
first person shooter video games and who, as a class, have a
history of using such rifles in real mass shootings, and (2)
there is evidence that individuals who legally purchase
weapons such as the AR-15 often share the weapons with family
members, including young men.
We
decline the plaintiffs' invitation to stretch the
doctrine of negligent entrustment so far beyond its
historical moorings. We recognize that some of our sister
state courts have permitted negligent entrustment actions to
proceed when, although there was no indication that the
direct entrustee was incompetent to use a dangerous item,
there was reason to believe that the entrustee would in turn
share the item with a specific third party who would
misuse it. This has been the case, for example, when a parent
or other agent purchased a weapon or vehicle for a child who
was present at the place and time of sale.[24] We need
not decide whether and to what extent Connecticut would
recognize a cause of action for negligent entrustment under
such circumstances, however, because, in the present case,
the plaintiffs do not allege that any of the defendants
possessed any knowledge or had any specific reason to believe
either that Lanza's mother would share the XM15-E2S with
her son or that he was especially likely to operate it
unsafely or illegally. In any event, the plaintiffs have
failed to cite to a single case, from any jurisdiction, that
allowed an action for negligent entrustment to proceed when
the nexus between a manufacturer of a product and the person
who ultimately used that product in an unsafe manner was as
attenuated as it is in the present case.[25]
We also
recognize that there is authority for the proposition that
entrustment may be deemed negligent when the entrustor has no
specific knowledge regarding the entrustee's personal
competence or character but knows that the entrustee is a
member of a class that is notoriously unfit to safely utilize
the entrusted item. See 2 Restatement (Second), supra, §
308, comment (b), p. 100. The plaintiffs argue that we should
apply that principle in this case because (1) gun buyers as a
class are known to sometimes share their weapons with family
members, including young males, and (2) young males, in turn,
are known to sometimes use assault weapons to commit mass
shootings. Once again, we decline the invitation to so
dramatically expand the scope of negligent entrustment
liability.
As we
noted, the tort of negligent entrustment saw its florescence,
if not its modern genesis, in the advent of the mass produced
automobile. See B. Todd, supra, 6 Hamline L. Rev. 467; A.
Cholodofsky, Note, ‘‘Torts: Does the Negligent
Entrustment Doctrine Apply to Sellers?'' 39 U. Fla.
L. Rev. 925, 928 (1987). In some instances, a person may be
unsuited to drive an automobile because he is reckless, or
inebriated, or otherwise distinctly unfit to drive safely on
the public roads. See A. Cholodofsky, supra, 926 and nn. 5-6.
It also is a matter of common sense and common knowledge,
however, that certain classes of people-e.g., young children
and blind persons-are inherently unfit to drive. Our laws
recognize as much. See General Statutes § 14-36 (c) and
(e) (establishing, among other things, age and vision
screening requirements for motor vehicle operator's
permit or license). Accordingly, one may be negligent for
entrusting an automobile to such users even in the absence of
any particular knowledge about their individual driving
skills, experience, or temperament. A jury reasonably might
conclude that the same is true with respect to firearms and
other weapons and dangerous equipment. See B. Todd, supra,
468-69.
The
plaintiffs' theory, however, is fundamentally different.
They do not contend that all gun buyers such as Lanza's
mother, or young men such as Lanza, are incapable of safely
operating an AR-15. The plaintiffs do not even contend that
such users usually or even frequently operate such weapons
unsafely or unlawfully. Rather, the plaintiffs contend that
it is objectively unreasonable to legally sell an assault
weapon to an adult buyer, for no other reason than that some
small subset of buyers will share weapons with their young
adult sons and some much smaller subset of young adult males
will use those weapons to commit terrible, random crimes. The
only plausible way to construe that claim-and we do not
understand the plaintiffs to deny this-is that any commercial
sale of assault weapons to civilian users constitutes
negligent entrustment because the social costs of such sales
outweigh the perceived benefits. Other courts have rejected
such a theory, as do we. See, e.g., McCarthy v. Sturm,
Ruger & Co., 916 F.Supp. 366, 370 (S.D.N.Y. 1996),
aff'd sub nom. McCarthy v. Olin Corp., 119 F.3d
148 (2d Cir. 1997); Merrill v. Navegar, Inc., 26
Cal.4th 465, 483-84, 28 P.3d 116, 110 Cal.Rptr.2d 370 (2001);
see also Phillips v. Lucky Gunner, LLC, 84 F.Supp.3d
1216, 1226 (D. Colo. 2015) (rejecting theory that unmediated
online sales of hazardous items represent negligent
entrustment), appeal dismissed, United States Circuit Court
of Appeals, Docket No. 15-1153 (10th Cir. July 21, 2015).
Accordingly, the plaintiffs' action cannot proceed under
the negligent entrustment exception to immunity under PLCAA.
IV
WRONGFUL
DEATH AND CUTPA: ISSUES OF STATE LAW
We turn
next to the question of whether the trial court properly
granted the defendants' motion to strike the
plaintiffs' wrongful death claims insofar as those claims
are predicated on alleged CUTPA violations. Because we have
concluded that the plaintiffs have not pleaded a legally
sufficient negligent entrustment claim under Connecticut
common law, PLCAA will bar the present action unless (1) the
plaintiffs have pleaded a cognizable CUTPA violation, and (2)
CUTPA constitutes a predicate statute for purposes of 15
U.S.C. § 7903 (5) (A) (iii).
In
their motions to strike, the defendants argued, among other
things, that (1) the plaintiffs' claims were barred by
CUTPA's three year statute of limitations, (2) damages
for personal injuries and death resulting therefrom are not
cognizable under CUTPA, (3) the plaintiffs' CUTPA claims
are precluded by the Product Liability Act; see General
Statutes § 52-572n (a); and (4) CUTPA is not a valid
predicate statute for purposes of PLCAA. The trial court
rejected each of these arguments. The court agreed with the
defendants, however, that CUTPA does not afford protection to
persons who do not have a consumer or other commercial
relationship with the alleged wrongdoer. Accordingly, the
court concluded that the plaintiffs lacked standing to pursue
wrongful death claims predicated on CUTPA violations.
On
appeal, the plaintiffs contend that the trial court
improperly struck their claims for lack of standing to pursue
them under CUTPA. For their part, the defendants claim that
the trial court's judgment can be affirmed on the
alternative ground that the court's other determinations
were improper.
As an
initial matter, we reiterate that the plaintiffs' CUTPA
based wrongful death claims are predicated on at least two
fundamentally distinct theories of liability. First, the
plaintiffs contend that the defendants violated CUTPA by
selling the XM15-E2S to the civilian market despite their
knowledge that there is no legitimate civilian use for such a
weapon, that assault weapons such as the AR-15 pose
unreasonable risks when used by civilians, and that
individuals unfit to operate such weapons likely would gain
access to them. In other words, the plaintiffs allege, in
essence, that any sale of any assault weapon to any civilian
purchaser in Connecticut is, ipso facto, an unfair trade
practice under CUTPA.
Second,
the plaintiffs contend that the defendants violated CUTPA by
advertising and marketing the XM15-E2S in an unethical,
oppressive, immoral, and unscrupulous manner that promoted
illegal offensive use of the rifle. Specifically, they allege
that the defendants:
• promoted use of the XM15-E2S for offensive, assaultive
purposes-specifically, for ‘‘waging war and
killing human beings''-and not solely for
self-defense, hunting, target practice, collection, or other
legitimate civilian firearm uses
• extolled the militaristic qualities of the XM15-E2S
• advertised the XM15-E2S as a weapon that allows a
single individual to force his multiple opponents to
‘‘bow down''
• marketed and promoted the sale of the XM15-E2S with
the expectation and intent that it would be transferred to
family members and other unscreened, unsafe users after its
purchase.
The
plaintiffs further allege in this regard that such
promotional tactics were causally related to some or all of
the injuries that were inflicted during the Sandy Hook
massacre.
For the
reasons that follow, we conclude that the trial court
improperly granted the defendants' motion to strike these
allegations in their entirety. We agree with the plaintiffs
that the trial court improperly concluded that they lack
standing to pursue any of their CUTPA claims against the
defendants. With respect to the plaintiffs' first theory
of CUTPA liability-that the sale of AR-15s to the civilian
population is ipso facto unfair-we agree with the defendants
that the trial court's judgment can be affirmed on the
alternative ground that the plaintiffs' claim is time
barred under the CUTPA statute of limitations. Cf. footnote
14 of this opinion. However, with respect to the
plaintiffs' second theory of liability-that the
defendants' wrongful marketing of the XM15-E2S for
illegal, offensive purposes was a causal factor in increasing
the casualties of the Sandy Hook massacre-we find the
defendants' various alternative bases for affirmance
unpersuasive.
A
CUTPA
Standing
Although
the plaintiffs brought their claims pursuant to the wrongful
death statute; General Statutes § 52-555; a wrongful
death action will lie only when the deceased person could
have brought a valid claim for the injuries that resulted in
death if he or she had survived. See part IV B of this
opinion. Accordingly, to survive a motion to strike, the
plaintiffs must be able to establish that they have standing
to pursue a CUTPA claim for their injuries. We first consider
whether the trial court properly concluded that the
plaintiffs lacked standing to bring the present action under
CUTPA because they were third-party victims who did not have
a direct consumer, commercial, or competitor relationship
(business relationship or privity requirement) with the
defendants. Because the principal evils associated with
unscrupulous and illegal advertising are not ones that
necessarily arise from or infect the relationship between an
advertiser and its customers, competitors, or business
associates, we hold that a party directly injured by conduct
resulting from such advertising can bring an action pursuant
to CUTPA even in the absence of a business relationship with
the defendant. Accordingly, we agree with the plaintiffs that
the trial court improperly struck their CUTPA based wrongful
death claims.
Whether
one must have entered into a consumer or commercial
relationship with an alleged wrongdoer in orderto have
standing to bring a CUTPA action presents a question of
statutory interpretation. The plain meaning of the statutory
text must be our lodestar. See General Statutes § 1-2z.
General
Statutes § 42-110g (a) creates a private right of action
for persons injured by unfair trade practices and provides in
relevant part: ‘‘Any person who suffers
any ascertainable loss of money or property, real or
personal, as a result of the use or employment of a method,
act or practice prohibited by section 42-110b, may bring an
action . . . to recover actual damages. . . .''
(Emphasis added.) On its face, the statute plainly and
unambiguously authorizes anyone who has suffered an
ascertainable financial loss as a result of an unfair trade
practice to bring a CUTPA action. Nothing in the text of the
statute indicates that the right afforded by § 42-110g
(a) is enjoyed only by persons who have done business of some
sort with a defendant.
Even if
we were to conclude that the statute is ambiguous in this
regard, we perceive nothing in the legislative history or
purpose of the statute that would support the defendants'
theory that something more than an ascertainable financial
loss caused by a prohibited act is necessary to confer
standing under CUTPA. When CUTPA originally was enacted in
1973, the statute authorized private actions for
‘‘[a]ny person who purchases or leases goods
or services from a seller or lessor primarily for personal,
family or household purposes and thereby suffers any
ascertainable loss of money or property, real or personal, as
a result . . . .'' (Emphasis added.) Public Acts
1973, No. 73-615, § 7 (P.A. 73-615), codified as amended
at General Statutes (Rev. to 1975) § 42-110g (a). It is
clear, then, that a direct consumer relationship initially
was required in order to bring a CUTPA action.
Over
the following decade, however, a series of amendments
eliminated that privity requirement. Of particular note are
the 1975 and 1979 amendments. In 1975, the legislature
amended the statute to confer standing on two distinct
classes of plaintiffs. See Public Acts 1975, No. 75-618,
§ 5 (P.A. 75-618). As amended, the statute provided that
CUTPA actions can be brought either by ‘‘any
person who purchases or leases goods or services from a
seller or lessor primarily for personal, family or household
purposes and thereby suffers any ascertainable loss . . . as
a result'' or by ‘‘[a]ny person who
suffers any ascertainable loss of money or property, real or
personal, as a result [of a prohibited practice] . . .
.'' P.A. 75-618, § 5, codified as amended at
General Statutes (Rev. to 1977) § 42-110g (a). In other
words, the legislature conferred standing on an additional
category of plaintiffs, namely, those whose injuries were not
the result of a direct consumer purchase or lease of goods or
services. Presumably recognizing that the original category
of CUTPA plaintiffs (consumer direct purchasers and lessors)
had become redundant insofar as it was merely a subset of the
new, broader category that had been added in the 1975
amendments-i.e., any person who suffers an injury as a result
of a prohibited practice-the legislature amended the statute
again in 1979 to eliminate the reference to direct
purchasers. See Public Acts 1979, No. 79-210, § 1,
codified at General Statutes (Rev. to 1981) § 42-110g
(a). As we previously have explained; see Vacco v.
Microsoft Corp., 260 Conn. 59, 86-87 and n.30, 793 A.2d
1048 (2002); it is clear from this history that, although a
business relationship initially was required to bring a CUTPA
action, the legislature chose to eliminate that privity
requirement and instead conferred standing on any person who
could establish an ascertainable loss as a result of an
unfair trade practice.
This
conclusion finds additional support in the legislative
proceedings pertaining to the various 1970s amendments. From
the start, CUTPA prohibited unfair trade practices associated
not only with the actual sale and distribution of products
and services, but also with the advertising and offering of
those products and services for sale.[26] However, when the
House of Representatives debated Substitute House Bill No.
5613, the bill that ultimately became No. 78-346 of the 1978
Public Acts, several representatives expressed concerns that
the original file copy of that bill might be understood to
mean that unfair advertising would no longer constitute a
prohibited trade practice. In explaining the need to amend
the bill, Representative Raymond C. Ferrari cautioned that
CUTPA should not be watered down so as to
‘‘require the actual sale of an item as opposed
to simply allow[ing] the enforcement under an advertisement .
. . .'' 21 H.R. Proc., Pt. 10, 1978 Sess., p. 3987.
Representative Robert F. Frankel expressed similar
sentiments. See 21 H.R. Proc., Pt. 11, 1978 Sess., p. 4319
(‘‘we would actually be rolling back some of the
coverage of [CUTPA] wherein we would be requiring a sale of
advertised products before the Commissioner [of Consumer
Protection] could become involved''). The fact that
the legislature sought to ensure that advertising alone-even
advertising that never results in a sale-could constitute a
prohibited practice suggests that an actual business
relationship was not deemed to be a precondition for a CUTPA
action following the 1975 amendments.
It is
true that the primary concern of those representatives during
the 1978 hearings was to prevent the Department of Consumer
Protection(department)from being stripped of its authority to
aggressively enforce CUTPA violations relating to false or
misleading advertising. It is, of course, possible that the
legislature wanted the department to be able to curtail
wrongful advertising campaigns at their inception, without
having to wait until consumers were harmed before taking
legal action, but intended that private individuals not have
standing to sue unless and until they had purchased goods or
services in reliance on such advertisements. It bears
emphasis, however, that the legislative history of CUTPA is
replete not only with references to the broad scope and
remedial nature of the act[27] but also with
statements specifically indicating a legislative awareness
that the department and the Office of the Attorney General
were not equipped to prosecute every unfair trade practice
and a concomitant belief that it was important to incentivize
broad enforcement action by private litigants.[28] See,
e.g., Hinchliffe v. American Motors Corp., 184 Conn.
607, 615 and nn. 4-5, 618, 440 A.2d 810 (1981).
More
directly on point is the testimony of Assistant Attorney
General Arnold Feigen, which was offered on behalf of
Attorney General Carl Ajello and Commissioner of Consumer
Protection Mary Heslin, before the General Law Committee. See
Conn. Joint Standing Committee Hearings, General Law, Pt. 4,
1979 Sess., p. 1159. Testifying in favor of the 1979
amendment that eliminated the direct purchaser requirement
language, Feigen explained that ‘‘[n]umerous
arguments have been raised in both state and federal courts
that [a] plaintiff, in order to sue, must be a purchaser or a
lessee of a seller . . . .'' Id.
‘‘The amendment, '' he opined,
‘‘will now allow a suit by any person who suffers
any ascertainable loss of money or property.''
Id. Those statements, although not dispositive of
the question before us, provide support for the
plaintiffs' theory that the legislature intended to
eliminate the business relationship requirement when it
amended CUTPA. See Vacco v. Microsoft Corp., supra,
260 Conn. 86-87 and n.30.
The
defendants, while implicitly acknowledging that the plain
language of § 42-110g (a) no longer imposes a business
relationship requirement, offer two arguments as to why we
should continue to read such a requirement into the statute.
First, they contend that the trial court properly concluded
that our prior cases and those of the Appellate Court have
recognized a business relationship requirement and that
principles of stare decisis and legislative acquiescence
counsel against departing from those decisions. Second, the
defendants contend that prudential concerns support limiting
CUTPA standing to persons who have a direct business
relationship with the alleged wrongdoer. We consider each
argument in turn.
In
support of its conclusion that our cases impose a business
relationship requirement, the trial court relied on this
court's decisions in Vacco v. Microsoft Corp.,
supra, 260 Conn. 59, and Ventres v. Goodspeed Airport,
LLC, 275 Conn. 105, 881 A.2d 937 (2005), cert. denied,
547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006).
Neither decision compels such a result.
In
Vacco, we recognized that the legislature, by
‘‘ ‘deleting all references to
‘‘purchasers, sellers, lessors, or
lessees''' '' in § 42-110g (a) in
1979, had eliminated CUTPA's privity requirement.
Vacco v. Microsoft Corp., supra, 260 Conn. 88. We
proceeded to clarify, however, that the elimination of the
privity requirement did not mean that anyone could
bring a CUTPA action, no matter how attenuated the connection
between his or her injuries and a defendant's allegedly
unfair trade practices. ‘‘Notwithstanding the
elimination of the privity requirement, '' we
explained, ‘‘it strains credulity to conclude
that CUTPA is so formless as to provide redress to any
person, for any ascertainable harm, caused by any person in
the conduct of any trade or commerce.'' (Internal
quotation marks omitted.) Id. We further observed,
however, that CUTPA liability could reasonably be cabined in
the same manner as with common-law tort actions:
‘‘[N]otwithstanding the broad language and
remedial purpose of CUTPA, we have applied traditional
common-law principles of remoteness and proximate causation
to determine whether a party has standing to bring an action
under CUTPA.'' (Footnote omitted.) Id.
Notably, we cited Ganim v. Smith & Wesson Corp.,
258 Conn. 313, 780 A.2d 98 (2001), as an example of a case in
which the alleged harms suffered by the plaintiffs-the city
of Bridgeport and its mayor- as a result of gun violence were
‘‘too remote and derivative'' with
respect to the challenged conduct for the plaintiffs to have
standing to bring a CUTPA claim. Vacco v. Microsoft
Corp., supra, 88-89, citing Ganim v. Smith &
Wesson Corp., supra, 344, 365.We proceeded in
Vacco to apply the same three part remoteness
analysis that we had applied in Ganim, ultimately
concluding that the plaintiff lacked standing because his
injuries were too remote in relation to the defendant's
allegedly anticompetitive conduct. Vacco v. Microsoft
Corp., supra, 90-92; see Ganim v. Smith & Wesson
Corp., supra, 353. Accordingly, Vacco stands
for the proposition that standing to bring a CUTPA claim will
lie only when the purportedly unfair trade practice is
alleged to have directly and proximately caused the
plaintiff's injuries. This remoteness requirement serves
the same function as a privity requirement, as it mitigates
any concerns associated with imposing limitless liability on
CUTPA defendants.
Although
our decision in Ventres could be read to suggest
that the plaintiff must have a business relationship with the
defendant, a closer review indicates that it does not stand
for this sweeping proposition. In that case, a land trust and
a conservancy (property owners) alleged that the named
defendant, Goodspeed Airport, LLC, among other defendants,
had violated CUTPA by trespassing on the property owners'
land. See Ventres v. Goodspeed Airport, LLC, supra,
275 Conn. 109, 112. We concluded, as a matter of law, that,
even if the property owners had been able to prove their
allegations, none of the alleged conduct would have risen to
the level of a CUTPA violation. See id., 156-58.
As an
alternative, independent basis for upholding the trial
court's decision to strike the property owners' CUTPA
claims, we briefly considered the property owners'
contention that a CUTPA plaintiff is not required to allege
any business relationship with a defendant, summarily
rejecting that claim on the ground that the property owners
had provided noauthority for the proposition. Id.,
157-58. Significantly, in contrast to the present case,
Ventres did not involve allegations that a business
relationship between the defendants and a third party had
resulted in the harm alleged. Therefore, we had no occasion
to discuss or apply the proximate cause analysis set forth in
Vacco. See Vacco v. Microsoft Corp., supra,
260 Conn. 90-92. In other words, there was no business
relationship that could result in any causal connection to
the injury alleged.
Accordingly,
the court in Ventres did not hold that every CUTPA
claim requires a business relationship between a plaintiff
and a defendant. Indeed, we did not analyze that issue, and
at no point did we examine either the text or the legislative
history of the statute, both of which, as we previously
explained, strongly suggest that the legislature did not
intend to impose a privity requirement We thus conclude that
the principles of stare decisis and legislative acquiescence
do not preclude us from construing § 42-110g (a) de novo
in the present case to address this question See Igartua
v. Obama, 842 F.3d 149, 160 (1st Cir 2016) (Torruella,
J, concurring in part and dissenting in part)
(‘‘[c]onsidering the cursory treatment given to
this issue by the . . . panel [in the prior decision], our
hands are not tied by stare decisis''), cert. denied
sub nom. Igartua v. Trump, U.S., 138 S.Ct. 2649, 201
L.Ed.2d 1050 (2018).
Next,
we consider the defendants' argument that this court has,
for prudential reasons, set various limitations on the types
of parties that may bring CUTPA claims. The defendants
contend that similar policy rationales counsel in favor of
imposing a business relationship requirement. In two of the
cases that the defendants cite in support of this
proposition, however, this court concluded that CUTPA simply
did not govern the conduct at issue, and, therefore, we did
not consider the question of standing. See Haynes v.
Yale-New Haven Hospital, 243 Conn. 17, 34, 699 A.2d 964
(1997) (medical malpractice claims are not subject to CUTPA);
Russell v. Dean Witter Reynolds, Inc., 200 Conn.
172, 180, 510 A.2d 972 (1986) (CUTPA does not apply to
deceptive practices in purchase and sale of securities). In
the third case on which the defendants rely, namely,
Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 627
A.2d 374 (1993), this court concluded that third parties
lacked CUTPA standing only in the context of the unique
professional relationship between attorneys and their
clients. See id., 729. Accordingly, the cases that
the defendants cite, which address unique professional
service contexts and relationships, provide little support
for the general proposition that CUTPA does not confer
standing outside the limited confines of a business
relationship between the CUTPA plaintiff and defendant.
We need
not decide today whether there are other contexts or
situations in which parties who do not share a consumer,
commercial, or competitor relationship with an alleged
wrongdoer may be barred, for prudential or policy reasons,
from bringing a CUTPA action. What is clear is that none of
the rationales that underlie the standing doctrine, either
generally or in the specific context of unfair trade practice
litigation, supports the denial of standing to the plaintiffs
in this case. ‘‘Standing . . . is a practical
concept designed to ensure that courts and parties are not
vexed by suits brought to vindicate nonjusticable interests
and that judicial decisions [that] may affect the rights of
others are forged in hot controversy, with each view fairly
and vigorously represented.'' (Internal quotation
marks omitted.) Slimp v. Dept. of Liquor Control,
239 Conn. 599, 609, 687 A.2d 123 (1996). As we explained in
Ganim v. Smith & Wesson Corp., supra, 258 Conn.
313, there are several reasons why standing traditionally has
been restricted to those parties directly injured by a
defendant's conduct: ‘‘First, the more
indirect an injury is, the more difficult it becomes to
determine the amount of [the] plaintiff's damages
attributable to the wrongdoing as opposed to other,
independent factors. Second, recognizing claims by the
indirectly injured would require courts to adopt complicated
rules apportioning damages among plaintiffs removed at
different levels of injury from the violative acts, in order
to avoid the risk of multiple recoveries. Third, struggling
with the first two problems is unnecessary [when] there are
directly injured parties who can remedy the harm without
these attendant problems.'' (Internal quotation marks
omitted.) Id., 353.
Ganim,
in fact, provides an instructive contrast to the present
case. In Ganim, the mayor and the city of Bridgeport
brought an action against handgun manufacturers, trade
associations, and retail gun sellers to recoup various
municipal costs associated with gun violence, including
increased police and emergency services, loss of investment,
and victimization of Bridgeport's citizens. Id.,
315-16, 326-27. We concluded that the municipal plaintiffs
lacked standing under CUTPA because the ‘‘harms
claimed . . . [were too] indirect, remote and derivative with
respect to the defendants' conduct . . . .''
Id., 353. Moreover, we observed that one easily
could identify several sets of potential plaintiffs who were
more directly harmed by the defendants' alleged
misconduct than was the city: ‘‘[A]ll [of] the
homeowners in Bridgeport who have been deceived by the
defendants' misleading advertising, all of the persons
who have been assaulted or killed by the misuse of the
handguns, and all of the families of the persons who
committed suicide using those handguns.''
Id., 359.
In the
present case, by contrast, the plaintiffs allege that the
defendants' wrongful advertising magnified the lethality
of the Sandy Hook massacre by inspiring Lanza or causing him
to select a more efficiently deadly weapon for his attack.
Proving such a causal link at trial may prove to be a
Herculean task.[29] But if it can be proven-and the
posture in which this case reaches us requires that we assume
it can[30]-the link between the allegedly
wrongful conduct and the plaintiffs' injuries would be
far more direct and less attenuated than in Ganim.
More
fundamentally, in this case, unlike in Ganim, it is
the direct victims of gun violence who are challenging the
defendants' conduct; no private party is better situated
than the plaintiffs to bring the action. A claim that a
defendant's advertisements unethically promote illegal
conduct is fundamentally different from one alleging false or
misleading advertising. The primary harm associated with the
latter is that a consumer will rely to his or her detriment
on the advertiser's representations; it is in the
misinformed purchase of the product or service that the wrong
becomes fully manifest. Actual customers, then, typically
will be the parties most directly and adversely impacted by
the alleged wrong.
The
gravamen of a wrongful advertising claim, by contrast, is
that an advertisement models or encourages illegal or unsafe
behavior. In such instances, the immediate victims are just
as likely to be third parties who are not customers, whether
it be individuals who engage in inappropriate conduct
inspired by the advertisements or the direct victims of that
conduct. For example, when an especially racy sports car
commercial disclaims, ‘‘professional driver,
closed course, do not attempt this at home, '' the
perceived risk is not merely-or even primarily-that viewers
will purchase that particular vehicle and drive it unsafely
as a result of the commercial. Of at least equal concern is
the possibility that noncustomer viewers will emulate the
commercial when driving their own vehicles, violating motor
vehicle laws, and possibly causing injury to themselves or
others, including passengers or pedestrians.
In the
present case, the wrong charged is that the defendants
promoted the use of their civilian assault rifles for
offensive, military style attack missions. The most directly
foreseeable harm associated with such advertising is that
innocent third parties could be shot as a result. The
decedents are the ones who got shot.
If the
defendants' marketing materials did in fact inspire or
intensify the massacre, then there are no more direct victims
than these plaintiffs; nor is there any customer of the
defendants with a better claim to standing. That is to say,
if these plaintiffs cannot test the legality of the
defendants' advertisements pursuant to § 42-110g,
then no one can. For these reasons, we conclude that the
trial court improperly determined that the plaintiffs lack
standing to assert wrongful death claims predicated on the
defendants' alleged CUTPA violations.
B
Statute
of Limitations
Having
concluded that the plaintiffs have standing to bring the
present action, we must turn our attention to whether the
judgment of the trial court dismissing the plaintiffs'
action may be affirmed on an alternative ground. Although its
determination that the plaintiffs lacked standing to bring
wrongful death claims predicated on alleged CUTPA violations
disposed of the case before it, the trial court considered,
in the interest of completeness, the defendants'
arguments regarding the legal sufficiency of the
plaintiffs' CUTPA claims. We first consider the
defendants' argument that the plaintiffs' claims are
time barred because they did not comply with CUTPA's
three year statute of limitations.
1
Procedural
History
The
following additional procedural history is relevant to this
claim. The complaint alleges that Lanza's mother
purchased the rifle in question in March, 2010, and that it
was manufactured and distributed sometime prior to that date.
Lanza carried out the Sandy Hook massacre on December 14,
2012, on which date all of the decedents died. The plaintiffs
delivered their summons and complaint to a state marshal on
December 13, 2014.
The
defendants moved to strike the plaintiffs' wrongful death
claims on the theory that those claims are predicated on
underlying CUTPA violations and that private actions brought
pursuant to CUTPA are subject to a three year statute of
limitations. See General Statutes § 42-110g
(f).[31] They argued that, because all of the
relevant transfers of the rifle occurred no later than March,
2010, and because the present action was not initiated until
more than four years later, in December, 2014, the
plaintiffs' CUTPA claims are time barred.
The
trial court, like the defendants, proceeded on the theory
that the date of the alleged CUTPA violations was, at the
very latest, March, 2010, when the Riverview defendants sold
the rifle to Lanza's mother. The court was not persuaded,
however, that CUTPA is the controlling statute of limitations
for purposes of the present action. Rather, the court
emphasized that, although the plaintiffs' claims were
predicated on a theory of liability sounding in unfair trade
practices, those claims were brought pursuant to
§ 52-555, the wrongful death statute. That statute has
its own statute of limitations, which requires that a
wrongful death action ‘‘be brought . . . within
two years from the date of death, '' and its own
statute of repose, which requires that a wrongful death
action ‘‘be brought [no] more than five years
from the date of the act or omission complained of.''
General Statutes § 52-555 (a). Because process was
served within two years of the date of the decedents'
deaths and within five years of the date on which the rifle
was sold, the court concluded that the action would not be
time barred if the statute of limitations contained in §
52-555 (a) controls.
The
trial court therefore sought to resolve the apparent conflict
between the statutes of limitations contained in §§
42-110g (f) and 52-555 (a). Relying on the decision of the
Appellate Court in Pellecchia v. Connecticut Light &
Power Co., 139 Conn.App. 88, 90, 54 A.3d 658 (2012)
(adopting trial court's memorandum of decision in
Pellecchia v. Connecticut Light & Power Co., 52
Conn. Supp. 435, 54 A.3d 1080');">54 A.3d 1080 [2011]), cert. denied, 307
Conn. 950, 60 A.3d 740 (2013), the trial court concluded
that, when a wrongful death claim is predicated on an
underlying theory of liability that is subject to its own
statute of limitations, it is the wrongful death statute of
limitations that controls. Because the court concluded that
the CUTPA statute of limitations did not apply, and because
the action was brought within two years of the decedents'
deaths and within five years of the initial sale of the
rifle, the court also concluded that the plaintiffs'
wrongful death claims were timely. Accordingly, the court did
not have reason to consider whether the plaintiffs'
claims predicated on a wrongful advertising theory of
liability, which could be premised on conduct postdating the
sale of the rifle, were timely.
2
Legal
Principles
Turning
to the governing legal principles, we first consider whether
the trial court correctly determined that, when a wrongful
death claim is predicated on an underlying theory of
liability that is subject to its own statute of limitations,
the plaintiffs need only satisfy the statute of limitations
contained in § 52-555 (a). The trial court was correct
that, in the ordinary case, § 52-555 (a) supplies the
controlling statute of limitations regardless of the
underlying theory of liability. This court applied that rule
in Giambozi v. Peters, 127 Conn. 380, 16 A.2d 833
(1940), overruled in part on other grounds by Foran v.
Carangelo, 153 Conn. 356, 216 A.2d 638 (1966), in which
the court held that the statute of limitations of the
predecessor wrongful death statute, rather than the
limitations provision applicable to medical malpractice
claims, governed in a wrongful death action based on
malpractice. Id., 385; see also Ecker v. West
Hartford, 205 Conn. 219, 245, 530 A.2d 1056 (1987)
(suggesting that statute of limitations contained in §
52-555 may control in wrongful death actions predicated on
contract and warranty theories of liability). The legislative
history of the 1991 amendments to the wrongful death statute
reflecting the current statutory language; Public Acts 1991,
No. 91-238, § 1; makes clear that Giambozi
continues to accurately reflect the intent of the legislature
in this respect. See 34 H.R. Proc., Pt. 14, 1991 Sess., pp.
5170-72, remarks of Representative Michael P. Lawlor
(expressing view that there would be cases in which
plaintiffs would be able to maintain wrongful death action
under 1991 amendment to § 52-555 even though statute of
limitations applicable to underlying medical malpractice
would have run).
As the
defendants emphasize, however, it is well established that
different rules apply to statutes, such as CUTPA, that create
a right of action that did not exist at common law. See
Greco v. United Technologies Corp., 277 Conn. 337,
345 n.12, 890 A.2d 1269 (2006). For such statutes, we have
said that the limitations provision ‘‘embodies an
essential element of the cause of action created-a condition
attached to the right to sue at all. The liability and the
remedy are created by the same statutes, and the limitations
of the remedy are, therefore, to be treated as limitations of
the right. . . . It follows that the statutory provision or
provisions prescribing the limitation must be strictly
observed if liability is to attach to the claimed offender.
Failure to show such observance results in a failure to show
the existence of a good cause of action.'' (Internal
quotation marks omitted.) Blakely v. Danbury
Hospital, 323 Conn. 741, 748-49, 150 A.3d 1109 (2016);
see also id., 749 (time limitation is
‘‘essential and integral'' to existence
of cause of action); Avon Meadow Condominium Assn.,
Inc. v. Bank of Boston Connecticut, 50
Conn.App. 688, 699-700, 719 A.2d 66 (time limitation that is
contained within statute that creates right of action that
did not exist at common law is limitation of liability
itself, and, accordingly, CUTPA statute of limitations is
jurisdictional), cert. denied, 247 Conn. 946, 723 A.2d 320
(1998), and cert. denied, 247 Conn. 946, 723 A.2d 320 (1998).
The
plaintiffs respond that, regardless of whether the statute of
limitations contained in § 42-110g (f) amounts to an
essential element of a CUTPA cause of action, it need not be
satisfied in the present case because this is not a CUTPA
action. Rather, their claims are wrongful death claims, for
which CUTPA merely provides the underlying theory of
wrongfulness.
That
argument, although perhaps facially attractive, is precluded
by a long line of cases holding that Connecticut's
wrongful death statute does not create a new cause of action,
independent of any claims that the decedent might have had
during his or her life. Rather, the wrongful death statute
merely allows the administrator of an estate to append to an
already valid claim an additional element of damages
consisting of costs associated with the decedent's death.
See, e.g., Sanderson v. Steve Snyder Enterprises,
Inc., 196 Conn. 134, 149, 491 A.2d 389 (1985); Foran
v. Carangelo, supra, 153 Conn. 360; Shaker v.
Shaker, 129 Conn. 518, 520-21, 29 A.2d 765 (1942); see
also Kling v. Torello, 87 Conn. 301, 305-306, 87 A.
987 (1913).A necessary consequence of this principle is that
a cause of action for wrongful death predicated on a CUTPA
violation will lie only insofar as the decedent, had he or
she survived, could have satisfied all of the essential
elements of the CUTPA claim. See, e.g., Roque v. United
States, 676 F.Supp.2d 36, 42 (D. Conn. 2009) (plaintiff
must prove elements of negligence claim in wrongful death
action predicated on negligence); Nolan v. Morelli,
154 Conn. 432, 435, 226 A.2d 383 (1967) (plaintiff must
establish that decedent could recover damages under Dram Shop
Act in wrongful death action predicated on that statute); see
also Schwarder v. United States, 974 F.2d 1118, 1129
(9th Cir. 1992) (Alarcon, J., concurring in part and
dissenting in part) (‘‘[a] majority of the state
courts that have considered the question have held that a
survivor cannot bring a wrongful death action if the decedent
was barred from [bringing a claim for his injuries] in his
lifetime, because the wrongful death claim is essentially
derivative of the injury to the decedent''); W.
Keeton et al., Prosser and Keeton on the Law of Torts (5th
Ed. 1984) § 127, p. 955 (‘‘[t]he wrongful
death action for the benefit of survivors is, like other
actions based on injuries to others, derivative in nature,
arising out of and dependent [on] the wrong done to the
injured person and thus barred when his claim would be
barred'' [footnote omitted]). It is clear, then, that
the plaintiffs' wrongful death claims must comply not
only with the statute of limitations that governs wrongful
death actions but also with CUTPA's statute of
limitations. Accordingly, because it is undisputed that the
manufacture, distribution, and final sale of the rifle to
Lanza's mother all occurred at least three years prior to
the commencement of the present action, we conclude that the
trial court should have struck as time barred the
plaintiffs' wrongful death claims predicated on a theory
that any sale to the civilian market of military style
assault weapons such as the AR-15 represents an unfair trade
practice. Cf. footnote 14 of this opinion.
That
determination, however, is not fatal to all of the
plaintiffs' claims. As we discussed, the plaintiffs also
pleaded, in the alternative, that the defendants violated
CUTPA by advertising and marketing the XM15-E2S in an
unethical, oppressive, immoral, and unscrupulous manner.
Although the complaint does not specifically allege on what
dates or over what period of time such marketing activities
occurred, most of the plaintiffs' wrongful marketing
claims are phrased in the present tense and, therefore, may
be understood to allege that those activities continued
through the time the complaint was filed. In addition, the
plaintiffs' allegation that Lanza selected the XM15-E2S
on the morning of the assault ‘‘because of its
marketed association with the military'' reasonably
could be interpreted to mean that such marketing schemes
remained in place at the time of the massacre, during the
limitation period. Accordingly, because we are ...