Last edited Tue Oct 13, 2015, 06:45 PM - Edit history (3)
So even if the federal law had not been passed, it seems like the parents would not have prevailed. It's outrageous that state law mandated that they pay the attorney fees. Plus it seems like they argued one of the exceptions under the federal law ( an action 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) but were unsuccessful. It seems that another federal statute and a state statute was included in their argument.
This discusses the Colorado Law:
"But a law passed in 2000 by the GOP-controlled Colorado General Assembly and signed into law by GOP Gov. Bill Owens turned Sandy and Lonnie Phillips’ pursuit of justice for shooting victim Jessica Ghawi into a nightmare: - See more at: http://coloradopols.com/diary/71448/pro-gun-columbine-backlash-snares-aurora-shooting-victims#sthash.JhGYniU5.Bxrjh0nA.dpuf"
http://coloradopols.com/diary/71448/pro-gun-columbine-backlash-snares-aurora-shooting-victims#sthash.JhGYniU5.dpbs
The Colorado General Assembly declared in 2000 the policy of the state that
“civil actions in tort for any remedy arising from physical or emotional injury, physical
damage, or death caused by the discharge of a firearm or ammunition shall be based
only upon an actual defect in the design or manufacture of such firearm or ammunition
or upon the commission of a violation of a state or federal statute or regulation and not
upon any other theory of liability.” C.R.S. § 13-21-501(1). This policy was codified in
C.R.S. § 13-21-504.5, which provides:
(1) A person or other public or private entity may not bring an
action in tort, other than a product liability action, against a
firearms or ammunition manufacturer, importer, or dealer for any
remedy arising from physical or emotional injury, physical
damage, or death caused by the discharge of a firearm or
ammunition.
(2) In no type of action shall a firearms or ammunition
manufacturer, importer, or dealer be held liable as a third party for
the actions of another person.
(3) The court, upon the filing of a motion to dismiss pursuant to rule
12 (b) of the Colorado rules of civil procedure, shall dismiss any
action brought against a firearms or ammunition manufacturer,
importer, or dealer that the court determines is prohibited under
subsection (1) or (2) of this section. Upon dismissal pursuant to
this subsection (3), the court shall award reasonable attorney
fees, in addition to costs, to each defendant named in the action.
(4) Notwithstanding the provisions of subsection (1) of this section,
a firearms or ammunition manufacturer, importer, or dealer may
be sued in tort for any damages proximately caused by an act of
the manufacturer, importer, or dealer in violation of a state or
federal statute or regulation. In any action brought pursuant to the
provisions of this subsection (4), the plaintiff shall have the burden
of proving by clear and convincing evidence that the defendant
violated the state or federal statute or regulation.
Addressing only immunity for
manufacturers and sellers of firearms and ammunition from claims based on harm
caused by third parties, the PLCAA does not represent a comprehensive regulatory
scheme. It does not create any causes of action, but relies on state law to do so: “[N]o
provision of this Act shall be construed to create a public or private cause of action or
remedy.” 15 U.S.C. § 7903(5)(C). There are no counterpart regulations to the PLCAA in
the Code of Federal Regulations. While the Colorado Immunity Statute provides
greater protection for sellers than the PLCAA, it does not interfere with federal policy in
any material way.
As explained above, plaintiffs have not adequately alleged their claims for
negligent entrustment and public nuisance. Accordingly, these claims fail even if the
sellers did not have statutory immunity.
A claim of negligence depends upon an identified duty of care. Whether a
defendant owes a duty of care to prevent an injury to another is a threshold question of
law. Smith v. City & County of Denver, 726 P. 2d 1125, 1126 (Colo. 1986). Colorado
law has long recognized there is no duty to act affirmatively to protect another from
criminal attack by a third person unless there is some special relationship between the
parties. Molosz v. Hohertz, 957 P.2d 1049, 1050 (Colo. Ct. App. 1998) (“Generally,
there is no duty to control the conduct of a third person so as to prevent him or her from
causing physical harm to another unless a special relationship exists between the actor,
here, the landlord, and the third person, which imposes a duty upon the actor to control
the third person’s conduct.”) Plaintiffs have not alleged that any defendant had a
special relationship to either them or their daughter.
Upon the foregoing, it is ORDERED that plaintiffs’ claims as to all defendants and
this civil action are dismissed. Pursuant to C.R.S. §13-21-504.5, defendants Lucky
Gunner and the Sportsman’s Guide are entitled to an award of reasonable attorney fees
and costs to be determined after filing motions pursuant to D.C.Colo.L.Civ.R.54.3 within
14 days after entry of judgment pursuant to this order.
http://webcache.googleusercontent.com/search?q=cache:whLEU10MqKEJ:blogs.reuters.com/alison-frankel/files/2015/07/phillipsvluckygunner-feeopinion.pdf+&cd=1&hl=en&ct=clnk&gl=us
It seems that a lot of states have passed their own legislation.
http://smartgunlaws.org/gun-industry-immunity-policy-summary/
It seems like they could tighten gun sales by the passing of a new federal or state statute:
(3) an action 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 six exceptions to the federal statute are:
There are six exceptions to the blanket civil immunity provided by the PLCAA:
(1) an action brought against someone convicted of “knowingly transfer[ing] a firearm, knowing that such firearm will be used to commit a crime of violence” by someone directly harmed by such unlawful conduct;
(2) an action brought against a seller for negligent entrustment or negligence per se;
(3) an action 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;3
(4) an action for breach of contract or warranty in connection with the purchase of the product;
(5) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or
(6) an action commenced by the Attorney General to enforce the Gun Control Act or the National Firearms Act.4
http://smartgunlaws.org/gun-industry-immunity-policy-summary/
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