Sandy Hook Families To Sue Gunmaker

The Guardian is reporting that families of the victims of the shootings at Sandy Hook Elementary School are planning to sue Remington Outdoor Company – the makers of the Bushmaster Rifle used in the shootings.

According to the Guardian, the families have the powerhouse Connecticut firm of Koskoff, Koskoff, and Bieder.

From time to time, the possibility of litigation arising from the Sandy Hook shootings has been discussed in the Connecticut plaintiff’s bar. Most everyone, that I’ve read or heard, thought such an action was a long shot. Gun manufacturers have significant immunity from suit.

In March of 2013, Koskoff partner, Josh Koskoff, penned an editorial in the Hartford Courant that may offer some insight into the firm’s litigation strategy:

Perhaps the worst part of the arms act is that it creates a disincentive for gun companies to incorporate safety mechanisms that are available to prevent guns from being used by any one other than the permit holder. Everyone agrees that there is a rampant problem with guns falling into the hands of people other than the permit holder……

Just as car lovers continue to love cars despite air bags and seat belts, gun lovers will continue to love guns with this technology. Unfortunately, the gun industry sees no financial reason to incorporate these safety devices, given the law’s unique protection. They believe themselves largely immune from product liability lawsuits, unlike car manufacturers. So why would they invest in safety features that would make their products marginally more expensive and possibly affect sales?

We should not forget, however, that there is no “safe” gun when it is in the wrong hands. The technology exists to prevent the use of guns by other than the authorized user, but gun manufacturers have not applied it. Manufacturers should answer for this inherent flaw and litigants and the legal community need to continually test the limits of the 2005 arms act until it is repealed.

Don’t be surprised if Koskoff tries to test the theory that gun manufacturers aren’t using existing technology to implement safety measures that prevent guns from being used by unauthorized users.

In my opinion, given the existing immunity afforded to gun manufacturers, I believe this suit has little chance of success. Though it is impossible to weigh the relative merits of a case that hasn’t been filed. The initial pleadings (not referenced in the Guardian Article) will show what legal theories are being pursued.

Koskoff, Koskoff, and Bieder is a firm with lots of talent and resources. They have obtained some of the highest verdicts (possibly the highest) in State history. They have a history of picking fights against long odds and winning. The fact that Koskoff is bringing this case intrigues me. They are outstanding lawyers and I can’t imagine them taking on this fight if they didn’t believe there’s a chance they’ll win.

The suit is likely to be brought in Federal Court in Connecticut under the theory of diversity jurisdiction. In the event it is filed in State Court, I would expect the gun manufacturers to remove it to federal court.

From their, the defendants will use every motion possible to obtain judgment before the case gets to a jury – motions to strike, motions to dismiss, and motions for summary judgment. There will certainly be appeals.

This has the potential to be one of the most significant cases in Connecticut history.

CT Trial Lawyers: Sandy Hook Claim “ill advised”

I’m proud to be a member of the Connecticut Trial Lawyers Association. I was very pleased to find the following email in my inbox this morning:

The following official statement has been authorized by the Executive Officers of the Connecticut Trial Lawyers Association and comes as a result of recent press announcements concerning the notice filed with the Connecticut Claims Commissioner requesting permission to sue the State as a result of the tragedy at Sandy Hook.

“CTLA joins with all other citizens in CT in mourning the tragic loss of life in Newtown. We believe that the timing and circumstances of this action are ill-advised. We will continue to extend our heartfelt sympathies to the victims of the Newtown tragedy and we remain committed to joining the efforts of countless individuals in CT and around the country to find ways to assist the victims and families affected by this tragedy.”

Reading comments on various websites prompted me to write yesterday’s post. The majority of attorneys in the Connecticut Bar do outstanding things for their clients and communities. I’m happy to see the CTLA issue this statement on behalf of its members. I support it entirely.

About Potential Sandy Hook Lawsuit

Much has been made in recent days of the family of a six year old who attended Sandy Hook Elementary School seeking permission from the State to allow a lawsuit against the State.

Little of the commentary or reporting has been substantive.

I do not think this claim ever becomes a lawsuit. For the purpose of this post I’ll assume this family gets its day in court.

What’s the underlying cause of action?

The claim that the family is seemingly asserting is a cause of action for bystander emotional distress. You can read the claim here. Now it’s possible there’s more to it than that.

Attorney Irv Pinsky’s six-year-old client heard the “cursing, screaming, and shooting,” over the intercom Dec. 14 when a gunman entered Sandy Hook Elementary School and killed her friends.

 “You’re having a wonderful life and then the next thing you know your friends are all getting killed and you’re in danger,” Pinsky said Friday. CT News Junkie.

Another quote from the Courant:

“She was in her classroom, and over the loudspeaker came the horrific confrontation between the fellow who shot everybody and other people,” Pinsky said. “Her friends were killed. That’s pretty traumatic.”

With good reason, the law generally does not compensate people who witness terrible events. Terrible events happen frequently. Imagine if everyone who watched the planes strike the World Trade Center on television had a cause of action?

Connecticut recognizes a very limited set of circumstances when a bystander can recover emotional distress damages.

The Connecticut Supreme Court in Clohessy v. Bachelor,  237 Conn. 31 (1995) adopted a “reasonable foreseeability” rule and set forth a four-pronged test for the recognition of a cause of action for bystander emotional distress.

A bystander can recover if: “(1) … she is closely related to the injury victim, such as the parent or the sibling of the victim;  (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury …; (3) the injury to the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander’s emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.

The law requires that the bystander be closely related to the victim. Who is a close relative has been the subject of much litigation. However the following holds true:

The “closely related” condition remains an exacting requirement that still bars strangers, distant relatives, and friends from recovering for bystander emotional distress. Yovino v. Big Bubba’s BBQ, LLC, 49 Conn. Supp. 555, 564, 896 A.2d 161, 166-67 (Super. Ct. 2006).

In my opinion, there’s little substance to this story. It’s highly unlikely that the Connecticut Supreme Court will extend bystander liability to encompass “friends” – that’s too slippery of a slope.

Under existing law, it’s hard to see the cause of action (as reported in the press) surviving a motion to strike.

Of course, different attorneys see things differently. It’s possible Attorney Pinsky believes he can convince the Connecticut Supreme Court to expand liability to cover this situation. New causes of action do arise from time to time.

In my opinion, it’s a baseless claim if it ever becomes a claim. I can’t think of a good reason to try to assert this claim against the State.  To the extent there’s any claim it rests against the Estate of Adam Lanza.

On a personal level, it makes me sad. Sad that this kind of claim, that in my opinion the claim against the State has virtually no chance of success. In my opinion, it is divisive and unnecessary.