Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Soto v. Bushmaster Firearms International, LLC

Supreme Court of Connecticut

March 19, 2019

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.