Sandy Hook Elementary School in Newtown, Connecticut (Photo: Ron Frank/Shutterstock.com)
Thirteen law professors who specialize in common-law torts have thrown their weight behind a negligent entrustment appeal lodged against the makers of the AR-15 rifle used in the Sandy Hook school shooting.
Their 35-page amicus brief filed with the Connecticut Supreme Court Monday focuses on how negligent entrustment should apply to Remington and Bushmaster Firearms, the makers of the AR-15 rifle used in the massacre. The brief was submitted in an appeal to the state Supreme Court filed by attorneys representing some of the families of students and educators killed.
The professors are tort law experts from such universities as Stanford, Yale, Brooklyn Law School and the University of Connecticut School of Law.
While a state Superior Court previously ruled negligent entrustment doesn’t apply in this case, the professors’ brief claims the “flexible tort has been applied to a range of domains, including firearms.”
The brief’s co-author, Stanford law professor Nora Freeman Engstrom, said negligent entrustment boils down to one question. “That is, did the defendant take adequate precautions given the magnitude of the foreseeable risk? And, here, the jury might ultimately find the defendant failed to take adequate precautions in their sale of military grade assault weapons to an untrained civilian population.”
Negligent entrustment occurs when a party provides a product to another party knowing the receiving party may injure someone.
Attorneys for the families claim Remington, which sold the Bushmaster AR-15 used by Adam Lanza, knew or should have known the weapon was meant for war but was going to untrained civilians.
Lanza’s December 2012 shooting spree at the Sandy Hook Elementary School lasted about five minutes. Lanza fired 154 bullets in that time, killing more than two dozen people and injuring several others.
The professors focused on negligent entrustment given their expertise in common-law torts, and its importance for the case.
The brief describes how case law shows negligent entrustment can apply in cases involving firearms or slingshots; it applies when there are multiple entrustments, such as when an item passed between three or more parties; and it applies even if a defendant lacks knowledge of an entrustee’s incompetence.
“I don’t know if our brief will sway the court, but I want them to have our expertise and give them the tools they need to properly construe the tort of negligent entrustment,” Engstrom said. “If you look at the signers of the brief, they are among the most respected and influential voices in tort law in the United States today.”
The brief took about two weeks to put together and involved two Stanford law school students, Engstrom said. The other professors signed onto the brief after reviewing it and providing their input.
Brooklyn Law School professor Anita Bernstein said she believes the brief respects the Second Amendment while addressing the need to hold gun makers accountable. “Guns cause a huge amount of harm, and right now the manufacturers just aren’t paying for any of the destruction they’re profiting from.”
The families’ attorney, Josh Koskoff of Koskoff Koskoff & Bieder in Bridgeport, said he’s optimistic the high court will remand the case back to Bridgeport Superior Court to allow the families to continue with discovery.
The amicus brief, Koskoff added, “makes a sober and compelling analysis of how the common-law tort is not static, that it lives and breathes and that factual determinations are best made by a jury where reasonable minds can differ.”
The families first sued Remington and Bushmaster and others in Superior Court in 2014, alleging the companies shared liability for the deaths of those killed by Lanza. The families claim Remington sold the weapon to the distributor, Camfour Holding LLP, which in turn sold the rifle to gun shop Riverview Sales. Lanza’s mother bought the AR-15 from Riverview Sales.
Camfour and Riverview are listed as defendants, along with Remington and Bushmaster. Riverview has since gone out of business.
James B. Vogts and Andrew A. Lothson represent Remington. Vogts told the Connecticut Law Tribune that “Remington does not comment on any pending litigation.” Vogts and Lothson are with Swanson Martin & Bell in Chicago.
Scott Allan and Christopher Renzulli of White Plains, New York-based Renzulli Law Firm, represent Camfour. Both attorneys were not available for comment Thursday.
Peter Berry of Bloomfield-based Berry Law, represents Riverview. Berry was also not available for comment.
The defendants have until May 1 to file their next brief in the case. The families will then have until June 1 to reply to that brief.
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