It’s part of a now-familiar pattern. A gunman goes on a shooting rampage at a school, college, theater or mall. The victims’ families grieve, the politicians debate gun laws, and often within weeks or a few months, the first civil lawsuits are filed.
Sometimes the defendants are relatives of the shooter. Sometimes they are makers of video games. Sometimes they are gun manufacturers. But over the past 15 or so years, one thing seems clear: It’s fairly difficult for plaintiffs — the victim’s families — to win large verdicts or collect substantial settlements.
Already in Newtown, where 26 children and teachers were killed at Sandy Hook Elementary School, some lawyers are beginning to quietly question who might face liability. For instance, if the guns that shooter Adam Lanza used belonged to his mother, as reported, how did he get his hands on them? Should his mother, whom he also killed, have known that her emotionally troubled son’s access to a combat-style semi-automatic rifle might be a danger to others? Might his reported fondness for violent video games be a factor in litigation?
Most legal experts said it’s too early to know exactly what theories of liability may emerge in any lawsuits that arise from the shootings. But as the victims’ families look to the courts for at least some measure of justice, the estate of Lanza’s mother — who owned a large house in an upscale community — will certainly be a place to start. Others agreed the companies that manufactured the Bushmaster AR-15 rifle Lanza used in the school could also find themselves listed as defendants when lawsuits are filed.
“If there is a way to make the manufacturers pay I am all for it and would love to participate in taking down these blood profiteers,” said Michael Stratton, of the New Haven firm Stratton Faxon.
No ‘Rational Explanation’
Many trace the latest wave of school shootings to 1997, when 14-year-old Michael Carneal opened fire on a student prayer meeting in his Kentucky high school, killing three young girls. The girls’ families filed a massive lawsuit, seeking $33 million in damages from a group of entertainment companies that produced violent video games Carneal liked to play.
The lawsuit claimed that Carneal was imitating violence he saw in games. But in dismissing that lawsuit three years after it was filed, U.S. District Judge Edward Johnstone found the game makers could not be held liable because they could not have foreseen what Carneal would do. “This was a tragic situation, but tragedies such as this simply defy rational explanation and the courts should not pretend otherwise,” Johnstone wrote in his opinion.
A similar big-money lawsuit was filed following the April 1999 attack at Columbine High School in Colorado, during which 12 students and one teacher were killed and 26 others wounded. Lawsuits were filed by victims’ families against two dozen entertainment companies. The $5 billion claim for liability in that case was based on expert testimony from behavioral scientists, who said that violent video games and movies had influenced two students to commit the murders.
That lawsuit was also dismissed a few years later when a judge ruled that the companies could not have foreseen that viewers of their movies and those who played their video games would commit acts of violence. In the end, the families of the two students responsible for the killings, Eric Harris and Dylan Klebold, and two older friends who provided them with weapons settled one of the primary lawsuits. The settlement for $2.53 million was divided among the victims.
After this summer’s mass shooting at a Colorado movie theater, during at Batman movie, in which 12 were killed and 58 were injured, the first wave of lawsuits were filed within two months. They have targeted three entities: the theater, the gunman’s psychiatric doctors and Warner Bros., the studio behind the “Dark Knight” trilogy. “Somebody has to be responsible for the rampant violence that is shown today” in movies, Colorado attorney Donald Harpel told television news reporters.
The Colorado shooter used the same Bushmaster AR-15 assault rifle that was reportedly used in Newtown.
Stratton suggested that focusing on a gun company might be tempting course of action, but he also noted that it’s a tactically difficult battle to win. Under tort law, a defendant in a civil suit cannot be held liable unless it could reasonably foresee that death or injury would occur from its actions. Gun companies are further protected by a federal law that limits liability.
Still, said Stratton, “it’s always been my view that guns are ultra hazardous products and they ought to have extra liability associated with them, so even if they are stolen, misused or used in a crime, the manufacturer is responsible.”
Concerns about litigation were emphasized just a few days after the Newtown shootings, when Cerberus Capital Management announced it was selling off its subsidiary that manufacturing the Bushmaster rifle. In a statement the company said it was deeply saddened by the Sandy Hook deaths. That announcement, of course, was far from an acknowledgement of legal liability.
New Britain lawyer Ralph Sherman’s practice is centered on gun rights. He said he didn’t think gun companies could be legally blamed for the Sandy Hook shootings.
Sherman pointed to the Protection of Lawful Commerce In Arms Act, which was signed into law by President George W. Bush in 2005. Passed with strong backing from the National Rifle Association and gun lobby, the law broadly shields manufacturers and gun sellers from liabilities that arise from unlawful use of their products. The law, which covers claims in both federal and state courts, specifically protects gun companies from damages related to mass shootings. “I’m pretty sure suing the gun companies is a dead issue,” Sherman said. “It’s the same thing as allowing someone to sue Ford because a driver drove drunk.”
The law was prompted, in part, by a settlements reached following the Washington, D.C.-area sniper shootings of 2002. Victim’s families agreed to accept $2.5 million from the then-maker of the AR-15, Bushmaster Firearms, and the Tacoma, Wash., store from which snipers John Allen Muhammad and Lee Boyd Malvo stole the semi-automatic rifle they used to kill 10 people. The plaintiffs claimed the store was negligent in allowing the men to steal the weapon.
According to the Brady Center to Prevent Gun Violence, which helped represent the plaintiffs, that settlement marked the first time a gun manufacturer agreed to pay damages to settle claims of negligent distribution of weapons.
The gun lobby responded by pushing through the 2005 law. But a recent decision by New York appeals court reinstated a gun liability lawsuit could open the door for claims against gun manufacturers and dealers if they knowingly violated gun laws, lawyers said.
The lawsuit was brought by relatives of a 16-year-old boy who was shot in Buffalo by someone who mistakenly thought he was rival gang member. The family sued the gun dealer who sold the murder weapon to another dealer, who then sold it to an illegal gun trafficking ring before the 2003 shooting.
In the October decision in Williams v. Beemiller Inc., the New York appeals court, reversing a lower court decision, ruled that the lawsuit can proceed against the manufacturer, Beemiller, for failing to ensure that the gun would be sold legally. The decision is being touted by anti-gun violence lawyers as a game-changer.
Since the 2005 law was passed, “the gun industry has been arguing in courts across the country that the law gives them immunity from civil liability,” said Jonathan Lowy, a Brady Center lawyer. “This decision holds that gun companies who knowingly supply the criminal gun market can be held accountable in court.”
So far, no one is even suggesting that Newtown schools, its administrators or the Town of Newtown did anything that could make them lawsuit defendants. In contrast, Virginia Tech University was recently held liable for the 2007 shooting rampage that left 32 people dead at the public school in 2007.
Earlier this year, a Christianburg, Va., jury found that school officials were slow to alert the student body of the existence of a gunman on campus and awarded $4 million to the families of two of the victims. The amount was later reduced to $100,000 under Virginia laws governing sovereign immunity. Those two plaintiffs had rejected part of an $11 million settlement that was reached with other victims.
The families of shooters have also been named in lawsuits. In 1998, two middle school students shot and killed four girls and a teacher at a Jonesboro, Ark., school. The lawsuit initially named the gun manufacturer and the parents of the shooters, though the gunmaker was dropped from the claim in 2000. The lawsuit against the parents, who were accused of failing to keep the weapons in a secure place in their homes, was later settled with one of the families.
“An owner of a dog can be held liable if the dog bites a stranger,” plaintiffs lawyer, Bobby McDaniel said at the time. ”It’s our view that parents hold a higher duty to train and supervise their children more than their dog and that they are liable if they fail to see the warning signs.”
Many questions remain about how Adam Lanza got his hands on the weapons he used, which were registered to his mother. If laws were broken by whoever sold the gun to Lanza’s mother, such as failing to follow federal record keeping requirements, the gun company could face liability, said Jeffrey Cooper, a Bridgeport personal injury lawyer.
Cooper, a partner at Cooper Sevillano in Bridgeport, recently handled a personal injury claim where a young man was shot and killed by a person under 18. In considering the liability of the shooter’s parents, Cooper said he learned that state law limits liability damages for parents of minors to $5,000. However, that limitation wouldn’t come into play with Lanza’s mother. “Her estate would definitely be open to a claim,” Cooper said.
Lanza’s father, who was divorced from his mother in 2009, could also face possible liability if he knew the guns were not secure or didn’t take steps to keep Lanza away from them. A lawsuit naming the parents would center on “whether you could somehow point to the fact that the parent didn’t properly secure the guns or didn’t lock them away,” Cooper said.•