Gun Makers Should Be Held Accountable, Tort Law Experts Say
By Sean Lally, Staff Writer
In April, thirteen professors specializing in tort law weighed in on the negligent entrustment appeal filed against Remington and Bushmaster Firearms, the makers of the AR-15. The case in question was brought forth by families who suffered as a result of the Sandy Hook school shootings. The professors – from universities such as Stanford, Yale and Brooklyn Law School – submitted a 35-page amicus brief outlining the ways in which common-law tort may be applied to the case at hand. The brief openly disagrees with the ruling of the state superior court, which found that negligent entrustment does not apply in this case. In their argument, the professors point out that negligent entrustment torts have frequently been applied to cases involving the sale of firearms.
According to Nora Freeman Engstrom, when it comes to negligent entrustment there is only one question that matters: “did the defendant take adequate precautions given the magnitude of the foreseeable risk?” In this case, the defendant sold military-grade weapons to a population without the proper training to use those weapons. So, Engstrom concluded, “the jury might ultimately find the defendant failed to take adequate precautions.”
Negligent entrustment is when one person (or entity) gives another person (or entity) a product knowing full well that the receiving party may do harm with said product. The attorneys representing the families argue that Remington made the Bushmaster AR-15 available to the public with the knowledge that untrained civilians would be using the weapon.
When Adam Lanza used the weapon at Sandy Hook Elementary School in 2012, he managed to fire 154 bullets in 5 minutes killing over 20 people.
The amicus brief considers the ways in which the tort of negligent entrustment has been applied in previous cases. According to the brief, courts have employed the theory in cases where “there are multiple entrustments.” This is important considering that Remington sold the AR-15 to a distributor (Camfour Holding LLP) who then sold the weapon to a gun shop where Lanza’s mother purchased the weapon. Importantly, the professors show that negligent entrustment is applicable even in cases where the defendant “lacked specific knowledge of the entrustee's incompetence.”
Josh Koskoff, one of the plaintiffs’ lawyers, said the brief, “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."
Engstrom had this to say regarding the brief: “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."
After Engstrom finished the manuscript (with the help of two law students), the other professors reviewed the brief and made additions. According to Anita Bernstein, professor from Brooklyn Law School, the brief does not go beyond the Second Amendment; rather, it contends that gun makers should be held accountable. She said, “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."
Last week, the Sandy Hook families filed a 36-page brief responding to Remington’s legal claims regarding negligent entrustment, arguing that the claims were misleading and inaccurate. According to the brief, “Defendants appear to suggest that the entrustor of a firearm can be liable for negligent entrustment only if it has specific knowledge about the particular person who uses the weapon to cause harm."
In short, this case will be a battle over the meaning and application of negligent entrustment. Thus, a win for the Sandy Hook families would be a real and symbolic win for victims of school shootings everywhere.