ADVERTISEMENT

Legal Opinions needed... Sandy Hook families sue Bushmaster

mjvcaj

mjvcaj

Hall of Famer
Jun 25, 2005
50,064
1,467
113
http://money.cnn.com/2014/12/15/news/companies/sandy-hook-bushmaster-newtown-lawsuit/

Now, I have no issue with stricter gun control laws and/or weaponry available to common citizens. I also feel for the families as I cannot imagine having to live with what happened. But, how can they families possibly win this case?

If the gunmaker was responsible for the killings, shouldn't automakers or alcoholic manufacturers be responsible for drunk driving accidents/deaths? In each case, someone made a choice.

So, if you were acting of counsel for the families, how would you frame this?
This post was edited on 12/15 3:39 PM by mjvcaj
 
Strict liability and product liability theories . . .

placing a combat-ready semi-automatic weapon in the stream of commerce, with really no defense available where that weapon is used to cause foreseeable damage.

Wili re: strict liability
 
Not applicable....


For the example to work....re; the speeding car, the auto manufacturer, the tire manufacturer, the fuel.....perhaps BP, they have deep pockets.. would have had to have been found liable...didn't happen...

define 'combat-ready'..doubt you or anyone else can....

in commission of a criminal act.....is murder a criminal act? theft...I believe the sick boy stole the firearms which were not his property....

lots of problems here for a prosecution of Bushmaster, or any other firearm manufacturer..
 
Are those readily available or does it depend on the state?

Maybe it is just auto weapons that are banned.

Also, can't you make a similar liability argument for other products? Say a car that allows people to drive it drunk?
 
You asked how a lawyer might "frame this" . . .

and I simply offered a general answer describing a couple of theories typically used in cases where dangerous instrumentalities are placed in the stream of commerce.

I'll let you do your own research from here . . . .
 
very poor analogy.

the purpose of a car is to transport, and any deaths are a tragic accident.


a gun has only one purpose, and that's to kill or injure whomever it's shot at.

the weapon used at Sandy Hook did exactly what it was designed and manufactured to do, and only what it was designed and manufactured to do.
 
This isn't something I've thought carefully about, but. . .

The real problem here is that, thanks to the NRA, the manufacturers of the world's most deadly product
enjoy the greatest immunity from suit. But in a world unwarped by gun nuts, reasonable people might wonder how personal firearms might be used so impersonally to kill strangers.

Is it feasible for manufacturers to implement remedial measures that would prevent someone else from firing a lawful owner's weapon, for example? Given the known propensity of people to shoot other people with guns, what exactly have gun manufacturers done to make this well known deadly misuse of their product more difficult to accomplish and escape? Have they taken any steps to insure that the guns and the bullets they emit can be ID'd if they're used to shoot schoolchildren?

A manufacturer of a lawnmower is way more wide open to suit than a gun manufacturer. Thankfully, the NRA doesn't care about lawn mowers.
 
Re: This isn't something I've thought carefully about, but. . .


Originally posted by Rockfish1:
Given the known propensity of people to shoot other people with guns, what exactly have gun manufacturers done to make this well known deadly misuse of their product more difficult to accomplish and escape?
Click to expand...
while you make some valid points, i will address the point i quoted you on.


that being, shooting other people isn't really a "misuse". (especially hand and "assault" type guns).

it's precisely what the gun was designed and manufactured to do.


these are "consumer products", whose function is, for people to shoot and kill other people with, as quickly and efficiently as possible..


when we have such brilliantly designed and well manufactured products, whose very purpose is to kill other people with as quickly and efficiently as possible, and we make these products readily available to virtually everyone,



WHAT COULD POSSIBLY GO WRONG?












This post was edited on 12/15 9:27 PM by i'vegotwinners
 
Lots of moving parts here

Generally speaking manufacturers of any consumer products are responsible for injuries if the products are (1) defective (as in manufacturing defect; like the brakes didn't work because of a broken brake line); (2) if the product isn't defectively manufactured but is defectively designed such as to present an unreasonable risk of danger when the product is used as intended (such as the GM products with defectively designed ignition switches) (3) or when the product is so inherently dangerous such that the product should not be made or sold at all (such as the three-wheeled ATV's). These are all theories of liability developed through the work of trial lawyers and evolution of the common law of torts. This is a gross simplification. If you want to put yourself to sleep with a more detailed statement of the law of products liability look at the Colorado Supreme Court opinion in Comacho v. Honda Ltd. This has to do with whether sissy bars must be standard equipment on motorcycles.

Unfortunately, government has decided that it must control the law of torts like it wants control everything else. We have government regulations touching on all aspects of products and claims arising from use of products. Thus we have banned the sale of children's banned almost all claims against gun manufacturers and dealers and allowing free reign to sell all kinds of firearms without fear of claims arising out of .category (3) above. Categories (1) and (2) can still result in claims against gun manufacturers and providers.

If you look at the last link, you'll find 6 exceptions to the litigation ban against gun makers and providers. I think the Sandy Hook claim will involve exception 5. The claim will be that the exception to the exception outlined in #5 will not apply because the shooter was so crazy he wasn't acting voluntarily. This will be interesting.

Now for my rant as a former trial lawyer and as a political conservative. I don't understand how card carrying conservatives can justify interference with the judicial process through legislation. Conservatives gripe a lot about the judiciary legislating. Well these tort reform laws are nothing but congress and legislatures controlling the jury. I think the litigation ban in favor of gun makes and providers violates the seventh amendment to the constitution, but you won't see the conservative second amendment nut jobs talking about this violation of the constitution. The American jury is the purest form of a conservative approach to a situation. You have 12 citizens without the influence of lobbyists, money, or political pressure deciding important issues; such as what kinds of products are too dangerous to sell. Juries should decide about combat-ready guns and Kinder Eggs, not bureaucrats, lobbyists and members of congress.













This post was edited on 12/15 11:18 PM by CO. Hoosier
 
I am with you on this issue.

If they have to sue someone, it has to be the Congress, who did not legislate something to be done in such case or prevent such event to occur, I don't think Gun manufacturers are guilty.
 
BS

Probably 99% of guns are used for sport (shooting at targets, hunting, etc).
 
Re: Lots of moving parts here


Great post and very well reasoned. My problem is with the liberal take over of the Judicial system. Liberals comprise approximately 23% of our citizenship but the Bar Association one of the largest professional membership organizations in the world and their lobbyist control much of the legal agenda in our nation. I support them except when they allow things to get out of hand and a perfect example is the McDonalds hot coffee litigation. It makes us (lawyers) look like fools. If we allow the current laws to be enforced I foresee no problem but to expand the law creates issues for me. Ie will auto manufacturers ultimately be responsible for drunk driving deaths or knife producers for stabbings. There has to be some reasonableness and gun manufacturers are being singled out for their product and disdain by liberals. We tried to outlaw alcohol and look where that got us our spirit manufacturers ultimately responsible for the misuse of alcohol. I think not!
 
Re: Lots of moving parts here


I am OK with holding gun manufacturers liable so long as we hold schools and all parts of family and society jointly and severally liable for producing deranged dysfunctional idiots. Oh but what happens to personal responsibility it has to be part of equation?
 
A lawyer DID frame it

the complaint for plaintiffs is 40 pages long, more than half of which is listing 190 "facts" and then adopting them by reference to each of the plaintiffs. The complaint uses a term for the weapons "assault rifle" which has no meaning except in now expired federal law. It claims that defendants should have foreseen misuse, but doesn't mention that the weapon named could not have been placed into the stream of commerce unless and until it met state and federal restrictions on its manufacture and sale. It falsely says the weapon is used by the military. Automatic fire versions of the weapon are sold to the military, not the version stolen and used. The plaintiff's claim is part huge stretch, part out right lie.

This theory is to create a huge nuisance lawsuit, require several corporations to spend a lot of money preparing to defend, elicit a settlement in order to avoid massive defense costs and then collect 33 to 40% of the settlement for the lawyers.

Its exactly what would be expected from the plaintiff's bar.
 
You know . . .

I really don't have a horse in this race; my purpose was to answer mjvcaj's question. And I do realize that the skids have been greased in the gun manufacturer's favor with Congress's intervention in the judicial process (as CO cogently noted elsewhere).

Let's see how this plays out before y'all throw this lawsuit under the bus. A judge might rule in favor of the gun manufacturer at the summary judgment stage, and that won't be a surprise ruling at all. But if it gets to a jury, I could see how they could find this gun constituted a dangerous instrumentality and award significant damages to the parents of these kids.

"Tough shit" just doesn't seem like a very satisfactory response when you have this many dead . . . does it to you?
 
Here's the link to the federal law - Edited


enacted in 2005 that plaintiff's must overcome to have any live action in any court - state or federal- per the terms of the act.

According to a related article, there has never been a case brought like this, in the face of this federal law.

By its own terms, the statute says no action may be brought in federal or state court...

EDIT - having read the complaint and the 2005 Federal law - they're going for "negligent entrustment", one of the exceptions to the statutory bar on bringing an action. Long shot, apparently never litigated before, but probably expensive to defend. How they make negligent entrustment when the weapon was sold to an adult woman who had the requisite capacity to purchase and had the weapon stolen from her possession after she was murdered seems VERY long shot to me, but the only possible angle. No doubt plaintiff has forum shopped the case and believe they have a judge who will get them past summary judgment initially.



This post was edited on 12/16 9:14 AM by Ladoga

Federal Firarms Immunity
 
Fair enough and I understand

But I place the blame for every one of those deaths on the kid who pulled the trigger and his mother for giving him easy access to the guns.
 
Trial lawyers who oppose tort reform take a conservative position

Those who favor more goverment control of juries with statutes and regulations are being liberal.

Tort reform has turned politics inside out.
 
I don't know how this would apply to the Sandy Hook case but in the

pharmaceutical distribution business (Cardinal, McKesson) they can be held responsible for the illegal use of narcotics. Basically, if they sell to a "legal" entity and that legal entity then sells illegally (black market) the big distributors can be held responsible. The DEA reasons that the distributor would recognize abnormal buying patterns and have a responsibility to report the abnormal behavior.
 
Got it, and we're tracking . . .

fairly closely. After thinking about it, my next question to you was going to be whether the mother ought to have some liability here - civil (maybe criminal?) - for allowing a son who had a known mental illness to have access to the guns he used in the assault on the school.

From there it's a question of where does one draw the line. If the mother's knowledge of her son's mental illness places her under a responsibility because the harm caused by her son was reasonably foreseeable, how far up the distribution chain leading to her ownership - and his possession - of the guns does the responsibility go? That's the policy question, and might be the legal question, that is at issue.
 
Not unless her estate can be found

liable. He murdered her to get possession of her weapon.

Connecticut appears, however, to be a comparative fault state, so some of the liability - if there is ANY - or a lot of it, would be attributable to her even though she can't be sued.
 
I think it stops there.

I'm pro-gun and equally pro-personable responsibility. Here's a question. You have to prove that you're a responsible driver to get a license. I'd be all for having to prove you'll be a responsible gun owner to purchase one. The difference is that one of those is a privilege and the other a right. That would have to be sorted out.
 
Forgot about that . . .

guess the answer was already "yes".

I'll be interested in how Connecticut law deals with this. If I recall correctly, a lot of gun manufacturers were at one time, and may still be, headquartered in Connecticut.
 
I'm happy with the notion . . .

of "sorting it out". It means that we'd have to face the issue rather than have gun rights trump the deceaseds' rights ab initio.
 
As noted, I'm adamantly pro-gun

but in reading the Constitution, I'm not aware of any right that is completely unfettered in spite of the "shall not be infringed" language in the Second Amendment.
 
Maybe you can help me with this . . .

in Georgia the GOP-dominated legislature recently passed a right-to-carry law that includes the right to carry guns into church services. Is this intended to trump a church's policy to ban guns at church services? Are Quakers - theological pacifists from the beginning - now going to have to allow guns in their worship services?

I appreciate the notion of a right to bear arms, but I don't get it as being an absolute in the religious/philosophical sense, and that seems to be where the NRA has taken this.
 
The only thing I can say

is that should not be an issue for a Quaker. If some pro-gun advocate decided to show up at a Quaker service with a gun just to prove a point, that would disgust me. There are people like that out there and they don't do the pro-gun crowd any favors. It's just like the people who opt for open over concealed carry. Why rub people's noses in it? As for the legalities, that's for someone smarter than me.

The NRA is convinced that if you give anti-gunners an inch, they'll take a mile. There is some evidence to support that. I think if you sat down with any NRA executive for an off the record conversation, you'd often be surprised at some of the things they would be willing to compromise on. They just don't think they can show the slightest bit of weakness in public. That's something that you, as a lawyer, should be able to easily identify with.

This post was edited on 12/16 10:33 AM by RBabbitt
 
The problem with that is

Even if you think Congress should have legislated, would it have prevented this horrible event? I don't think you can say with certainty that it would.
 
How is that fair to business?

Sure, everyone loves to gang up on big business and hate on corporations.

But, in reality, is it not the job of those companies to develop innovative drugs? If those drugs are improperly used by others, how it is the drug companies fault?

In another example, if it came out that Whitney Houston OD'd on XYZ drug, what right does Whitney's estate have to sue the drug company for the irresponsible behavior and/or purposeful suicide of Whitney?

This goes back to the very problem of lack of individual responsibility that continues to persist in our society.
 
GRIN . . .

one of my favorite negotiation strategies is to do enough research on the subject matter of a contract and the parties negotiating it, and then take pre-negotiated positions based on their relative interests and history of negotiating. Then my client and I say "we think this is the deal that both parties can agree to", and we listen. There's no weakness in acknowledging others' legitimate needs . . . in fact, it can get deals done faster and with more trust because the other party sees you've made the effort to understand them and their needs first.

I get a lot of comments from small companies when I'm negotiating on behalf of mega-companies, that they're surprised my negotiating positions are based on the relative positions and merits of the parties, because most often they only hear the "we're big and you're not, so you do thinks our way" negotiation. Negotiations are a prime opportunity to build trust regarding difficult topics . . . but building trust is not possible when one or both parties have determined that trust is either not desirable or even possible. Hence Congress . . . .
 
Well

Starting out pretty close to where you've already figured you'll end up is not a tactic you often see used in the high profile cases most of us non-lawyers are privy to. I suspect even the richest of companies like to hold down legal costs, so I'm not that surprised to discover that not all negotiations are contentious. Pro-gun and anti-gun? It ain't gonna happen. Both sides are going to fight for every square inch of territory. Compromise was once the rule rather than the exception on many issues that are now just as contentious as the gun argument.
 
Wait . . . what?

Of COURSE business has responsibility to control its distribution of controlled substances and dangerous instrumentalities. That is simply an application of the 'individual responsibility" principle you are advocating, but to the business creating the controlled substances and dangerous instrumentalities.

The corporate veil only shields the owner's non-corporate assets . . . it's not designed to shield the amounts invested in the corporation too.
 
Totally prevented? Maybe not . . .

let's substitute a double-barreled shotgun for the assault rifle and see what difference it might have made. (1) The shooter would have been able to kill at least one, and maybe a few, individuals before he was confronted with force. But he would have had to take time to reload . . . which would have reduced the number of shots fired and therefore also likely reduced significantly the number of deaths. (2) With a shotgun, the shot pattern would likely have hit more kids with one shot, and that may have exacerbated the number of deaths/injuries per shot, but it also would have required the shooter to be closer to his targets to be kill-effective.

So totally prevented, no . . . but then that's not necessarily the right question to ask or standard to apply, is it . . . .
 
Let's focus on Nyquil for a second

Why should business be responsible for the irresponsible use of its products to make Meth? I don't believe it should. If some idiot decides to make meth and they die, the Corporation should not be held liable. I'm not just talking about the owners, I am talking about the company itself.

The drug listed its intended purpose, warnings, etc. 99.9% of people that use do so responsibly. Why should a drugmaker or firearms maker be held accountable for terrible decisions of individuals?
 
The answer to the question is

There is a lot of money to be made, potentially by the plaintiff and definitely by the defense, win or lose.
 
If others' terrible decisions are foreseeable . . .

Then manufacturers should take reasonable measures to obviate them.

Imagine that I leave my (imaginary) Rolex on my beach towel while I go for a swim. When I return, it's gone. Someone has stolen it. That person is a thief, but I'm also responsible for my own loss, because the theft was foreseeable.
 
Let's do . . .

since I'm at home with one Mother%$*&#$ of a cold . . .

. . . Nyquil contains an ingredient - dextromethorphan HBr - that is presumably safe in the dosages described on the box (15mg per dose). MucinexDM contains the same ingredient also presumably safe in the dosages described on the box (60mg per dose) . . .

MucinexDM does two things, it suppresses cough and it helps loosen mucus so that the user can cough up a lung and spit it out. It does not help control the mucus in the nasal passages . . .

Nyquil also suppresses cough (the meth ingredient in both drugs does this) and helps control the amount of mucus in the nasal passages . . .

Nyquil does offer a warning not to use any other drugs with acetaminophen in it because the over use of acetaminophen can result in severe liver damage . . .

. . . but nowhere on the Nyquil package is there a warning against use of Nyquil containing any other product with dextromethorphan HBr in it . . . I had to find that on the internet. Why is that? Should Nyquil be held liable if use of either product containing dextromethorphan HBr were to become habit-forming?

BTW based on the research I've done I'm taking Vicks' Sinex products with the MucinexDM, and that combination allows me relative relief from the symptoms of the cold, so long as I don't mind coughing up my lungs on occasion to get rid of the mucus that has drained in there during the night. Sinex does not have dextromethorphan HBr or the expectorant in MucinexDM, but does provide a measure of relief for the nasal passages, which helps keep mucus from draining into the lungs . . . .
 
You must log in or register to reply here.

Similar threads

outside shooter

Families of Sandy Hook victims reach $73 million settlement with Remington

Replies
19
Views
2K
The Water Cooler
mcmurtry66
M
ADVERTISEMENT

Latest posts

ADVERTISEMENT
Top Bottom
Back