Nora Freeman Engstrom on Soto v. Bushmaster Firearms Int’l, LLC

In this Q&A, Professor of Law, Associate Dean for Curriculum, and Deane F. Johnson Faculty Scholar Nora Freeman Engstrom discusses a brief she co-authored, filed earlier this week in the Connecticut Supreme Court in the case, Soto v. Bushmaster Firearms Int’l, LLC.

Nora Engstrom
Stanford Law Professor Nora Freeman Engstrom

In Soto v. Bushmaster Firearms, what’s at stake?

Filed in 2014, Soto v. Bushmaster Firearms is a wrongful death lawsuit initiated by several families of those killed in Sandy Hook Elementary School in Newtown, Connecticut on December 14, 2012.  On that horrific day in 2012, in less than five minutes, twenty first-grade children and six adults were gunned down and killed, by twenty-year-old Adam Lanza.  At the time, Lanza was wielding a military-grade assault rifle, specifically, a weapon called an AR-15.  The families of some of the slain children are suing the maker and distributer of that assault rifle, seeking to hold them responsible for their children’s tragic deaths.

The plaintiffs argue that defendants, who were profiting handsomely from their sale of AR-15s, knew that if they kept selling these military-grade weapons to an untrained civilian population, individuals unfit to operate these weapons would gain access to them, with devastating consequences.  Still, plaintiffs argue, defendants chose to disregard that very high and patently obvious risk—and defendants chose to continue making these extraordinarily dangerous weapons freely available.  As plaintiffs’ Complaint explains, in filing this lawsuit, plaintiffs “seek nothing more and nothing less than accountability for the consequences of that choice.”

What’s your involvement in the suit?

The plaintiffs’ case is complicated, and it involves a wide range of issues, including the proper application of the Protection of Lawful Commerce in Arms Act, or PLCAA for short.  Passed by Congress in 2005, PLCAA limits the liability of firearms manufacturers and dealers in many circumstances, though PLCAA leaves open the possibility that manufacturers and dealers can still be held liable on a “negligent entrustment” theory.

I, along with Professor Alexandra Lahav of the University of Connecticut—and assisted by two wonderful Stanford Law School students, Lora Nicole Allan and Zachary R. Glubiak—have authored an amicus brief, signed by many of the nation’s top tort law scholars, that seeks to provide guidance on the contours of that common law tort.

What’s negligent entrustment?  What does it entail?

Negligent entrustment is a tort cause of action that’s been around for a very long time.  The idea is, if one party (the entrustor) negligently provides a dangerous instrumentality to another party (the entrustee) and the entrustee (the recipient of the thing) then turns around and harms a third party with that dangerous thing, the entrustor can be held liable.

Ruling in Soto, the lower court judge considered plaintiffs’ negligent entrustment theory but rejected it.  In my view, in rejecting the theory out of hand, the court erred.  The court essentially layered lots of requirements onto the cause of action that don’t fairly exist.

In our amicus brief, we seek to correct the record.  We do our best to explain to the Connecticut Supreme Court how the common law tort of negligent entrustment ought to be construed.

What’s the brief’s basic argument?

We argue that, properly construed, the negligent entrustment tort doesn’t set forth a long checklist plaintiffs must satisfy, or specify a laundry list of factors plaintiffs must fulfill.  Instead, the tort of negligent entrustment just boils down to one simple question: In entrusting its property to another, did the defendant take adequate precautions given the magnitude of the foreseeable risk?

Here, we argue that the plaintiffs have said enough that they’ve stated a negligent entrustment claim.  Consequently, they ought to survive a motion to dismiss (or a motion to strike, as it’s called in Connecticut).  This means that, once at trial, the plaintiffs won’t necessary prevail.  But it is at least possible that a properly-instructed jury will find that, in fact, the defendants did fail to take adequate precautions as they peddled military-grade assault weapons to an untrained civilian population.  If the jury finds that, then a tort of negligent entrustment should lie.

Then, in the latter part of the brief, we argue that, even if the plaintiffs have not stated a claim for negligent entrustment as the tort has traditionally been construed, the Connecticut Supreme Court can and should adapt its doctrine to changing times and circumstances.  The idea is that the story of the common law in general—and of tort law in particular—is one of continuous doctrinal evolution.  Tort law would have withered on the vine decades ago if it could not change or develop, in response to societal shifts and technological innovation.  Or, as the Connecticut Supreme Court has itself put it:  “The common law is not static, but is a dynamic and growing thing and its rules arise from the application of reason to the changing conditions of society.”

Here, we as a society are confronted with new weapons, distributed widely and used repeatedly to inflict unimaginable carnage.  Confronted with this societal challenge, if the Court must adapt existing law in order to endorse plaintiffs’ cause of action, the Court should do so.