By Georgia D. Koutouzos, J.D.
State statute limiting firearms manufacturer/distributor liability is subject to different interpretations, prompting certified questions to the Nevada Supreme Court.
Dismissing negligence per se and negligent entrustment causes of action against the manufacturers and dealers that had sold the AR-15 rifles used in the October 2017 shooting that killed 59 people in Las Vegas, Nevada, the federal court in that state refused to dismiss a wrongful death claim against the defendants by the parents of one of the horrific event’s deceased victims. Noting that the Nevada statutory provision limiting the liability of firearms manufacturers and distributors has been subject to multiple reasonable interpretations, the federal court certified to the state’s highest court two questions, including whether a plaintiff asserting a wrongful death claim premised on allegations that firearms manufacturers and dealers knowingly violated federal and state machine gun prohibitions has a cause of action against the manufacturer or distributor of any firearm merely because the firearm or ammunition was capable of causing serious injury, damage or death, was discharged, and proximately caused serious injury, damage or death (Parsons v. Colt’s Manufacturing Co., LLC, April 10, 2020, Gordon, A.).
The parents of one of the individuals killed in the October 1, 2017 mass shooting in Las Vegas, Nevada, filed suit against the firearms manufacturers and dealers that had sold the AR-15 rifles used in the shooting. The decedent’s representatives asserted claims for negligence per se, negligent entrustment, and wrongful death. The companies moved to dismiss the complaint, arguing that the claims therein were barred by the Protection of Lawful Commerce in Arms Act (PLCAA) as well as state-law and common-law principles.
Federal law. The PLCAA provides that a qualified civil liability action may not be brought in any federal or state court, defining the term "qualified civil liability action" as "a civil action or proceeding brought by any person against a manufacturer or seller of a [firearm] … for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party." That definition is subject to six exceptions, however, including actions brought against a seller for negligent entrustment or negligence per se and actions in which a manufacturer or seller of a qualified product knowingly violated a state or federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief was sought. A "seller" is defined as an entity that is "engaged in the business" as a firearms dealer and is licensed to "engage in business" as a firearms dealer.
In the instant case, the decedent’s representatives did not allege facts showing that the manufacturers were "sellers" within the PLCAA’s meaning, the court held, dismissing their negligence per se and negligent entrustment claims on that basis and denying leave to amend their complaint because they could not allege plausible negligence per se or negligent entrustment claims even if they could allege facts showing that the manufacturers were sellers.
Wrongful death. The PLCAA permits "action[s] in which a manufacturer or seller of a qualified product knowingly violated a state or federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought." The representatives’ wrongful death claim was premised on the defendants’ violations of state and federal law provisions prohibiting firearms manufacturers and dealers from selling machine guns, with that term defined in federal law (and similarly in Nevada law) as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person."
The representatives alleged that the defendant companies knowingly violated the state and federal prohibition on machine guns by manufacturing and selling firearms that were designed to shoot automatically more than one shot, without manual reloading by a single function of the trigger, also alleging that AR-15s are designed to shoot automatically because they possess a design feature—an interchangeable stock—that facilitates full automatic fire by simple modification or elimination of the existing stock. In that respect, in claiming that the defendants knowingly manufactured and sold weapons "designed to shoot" automatically because they were aware that their AR-15s could be easily modified with bump stocks to do so, the representatives alleged a wrongful death claim that was not precluded by the PLCAA, the court determined.
As to causation, although the defendants argued that the Las Vegas shooter’s criminal conduct severed the chain of proximate causation, the court found that the representatives had pleaded facts from which a reasonable fact finder could conclude that his use of an AR-15 modified to shoot automatically in a mass shooting was reasonably foreseeable.
State law issue. Under Nevada law, "[n]o person has a cause of action against the manufacturer or distributor of any firearm or ammunition merely because the firearm or ammunition was capable of causing serious injury, damage or death, was discharged and proximately caused serious injury, damage or death." According to the defendants, the statute barred the wrongful death claim because the representatives did not allege that the AR-15s used in the October 1 shooting were defective. The representatives responded
That their suit fell outside of the statute’s reach because their central allegation was that the companies had violated federal and Nevada law by manufacturing and selling illegal machine guns. Thus, they were not suing the defendants "merely" because the firearms were capable of causing—and caused—their daughter’s death, they contended.
Noting that the text and legislative history were subject to multiple reasonable interpretations, the court certified to Nevada’s highest court the following questions:
- Does a plaintiff asserting a wrongful death claim premised on allegations that firearms manufacturers and dealers knowingly violated federal and state machine gun prohibitions have "a cause of action against the manufacturer or distributor of any firearm merely because the firearm or ammunition was capable of causing serious injury, damage or death, was discharged and proximately caused serious injury, damage or death[,]" under Nevada Revised Statutes §41.131? and
- Does Nevada Revised Statutes §41.131 allow a wrongful death claim premised on allegations that firearms manufacturers and dealers knowingly violated federal and state machine gun prohibitions because the statute is "declaratory and not in derogation of the common law"?
In the interim, the court denied that portion of the defendants’ motion to dismiss without prejudice to refiling it within 30 days of the Supreme Court of Nevada’s decision.
The case is No. 2:19-cv-01189-APG-EJY.
Attorneys: Matthew L. Sharp (Law Office of Matthew L. Sharp) for James Parsons and Ann-Marie Parsons. Jay Joseph Schuttert (Evans Fears & Schuttert LLP) for Colt’s Manufacturing Co., LLC and Colt Defense LLC.
Companies: Colt’s Manufacturing Co., LLC; Colt Defense LLC; Daniel Defense Inc.; Patriot Ordnance Factory; FN America; Noveske Rifleworks LLC; Christensen Arms; Lewis Machine & Tool Co.; LWRC International LLC; Discount Firearms and Ammo LLC; DF&A Holdings, LLC; Maverick Investments, LP; Sportsman’s Warehouse; Guns and Guitars Inc.
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