Soto v. Bushmaster Firearms International, LLC

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***********************************************

DONNA L. SOTO, ADMINISTRATRIX (ESTATE OF

VICTORIA L. SOTO), ET AL. v. BUSHMASTER

FIREARMS INTERNATIONAL, LLC, ET AL.

(SC 19832)

(SC 19833)

Palmer, McDonald, Robinson, Vertefeuille,

Mullins, Kahn and Elgo, Js.*

Syllabus

The plaintiffs, administrators of the estates of nine victims of the mass

shooting at Sandy Hook Elementary School on December 14, 2012,

brought an action in December, 2014, pursuant to this state’s wrongful

death statute (§ 52-555), seeking damages, among other relief, from the

defendants, the manufacturers, distributors and direct sellers of the

semiautomatic rifle that the perpetrator, L, used to shoot the victims.

Sometime prior to March, 2010, the rifle was manufactured by certain

of the defendants, sold to the defendant distributors, and then resold

to the defendant direct sellers, who operated a retail gun store in Con-

necticut. In March, 2010, L’s mother purchased the rifle from that store.

The rifle is capable of rapid semiautomatic fire, accommodates large

capacity magazines, and bullets fired therefrom travel at such a high

velocity that they cause a shockwave while passing through a human

body, often resulting in catastrophic injuries, even in areas remote to

the direct bullet wound. On the date of the shooting, L retrieved the

rifle, along with multiple thirty round magazines, drove to the school,

shot his way in, and proceeded to fatally shoot twenty-six people, includ-

ing the plaintiffs’ decedents, in less than four and one-half minutes. The

gravamen of the plaintiffs’ complaint was that the defendants negligently

entrusted to civilian consumers an assault rifle that is suitable for use

only by military and law enforcement personnel and violated the Con-

necticut Unfair Trade Practices Act (CUTPA) (§ 42-110a et seq.) through

the sale or wrongful marketing of the rifle. The plaintiffs’ first theory

of liability was that the rifle is a military grade weapon that is grossly

ill-suited for legitimate civilian purposes such as self-defense or recre-

ation, that the rifle and other similar semiautomatic weapons have

become the weapon of choice for mass shootings and, therefore, that

the risks associated with selling the rifle to the civilian market far

outweigh any potential benefits, that the defendants continued to sell

the rifle despite their knowledge of these facts, and that it therefore was

negligent and an unfair trade practice under CUTPA for the defendants

to sell the weapon, knowing that it eventually would be purchased by

a civilian customer who might share it with other civilian users. The

plaintiffs’ second theory of liability was that the defendants marketed

the rifle, through advertising and product catalogs, in an unethical,

oppressive, immoral, and unscrupulous manner by extolling the militaris-

tic and assaultive qualities of the rifle and reinforcing the image of the

rifle as a combat weapon that is intended to be used for the purposes

of waging war and killing human beings. The plaintiffs alleged that the

defendants advertised this rifle differently from how they would promote

and sell rifles intended for legal civilian purposes such as hunting and

recreation. In connection with this second theory of liability, the plain-

tiffs also alleged that the defendants’ marketing of the rifle to civilians

for offensive assault missions was a substantial factor in causing the

decedents’ injuries in that L’s attack, had it occurred at all, would have

been less lethal if L had not been encouraged by the defendants’ market-

ing campaign to select the rifle in question as his weapon of choice.

The defendants moved to strike the complaint, contending that all of

the plaintiffs’ claims were barred by the Protection of Lawful Commerce

in Arms Act (PLCAA) (15 U.S.C. §§ 7901 through 7903 [2012]), which,

subject to certain enumerated exceptions, immunizes firearms manufac-

turers, distributors, and dealers from civil liability for crimes committed

by third parties using their weapons. The defendants contended alterna-

tively that the plaintiffs failed to state a legally valid negligent

entrustment claim under Connecticut common law and that their claims

predicated on alleged CUTPA violations were legally insufficient

because, among other reasons, the plaintiffs lacked standing under

CUTPA, their claims were time barred by CUTPA’s three year statute of

limitations (§ 42-110g [f]), personal injuries and death are not cognizable

damages under CUTPA, and their CUTPA claims were barred by the

exclusivity provision of the Connecticut Product Liability Act (§ 52-

572n [a]). In granting the defendants’ motions to strike the plaintiffs’

complaint, the trial court concluded that the plaintiffs’ allegations did

not fit within the common-law tort of negligent entrustment, PLCAA

barred the plaintiffs’ claims insofar as those claims sounded in negligent

entrustment, and the plaintiffs lacked standing to bring wrongful death

claims predicated on CUTPA violations because they never entered into

a business relationship with the defendants. On appeal from the trial

court’s judgment in favor of the defendants, held:

1. The trial court correctly concluded that the plaintiffs did not plead a

legally sufficient cause of action based on negligent entrustment under

this state’s common law and, therefore, properly struck the plaintiffs’

claims predicated on that legal theory: the plaintiffs failed to establish

that the defendants had any reason to expect that L’s mother, the direct

purchaser of the rifle, was likely to use the rifle in an unsafe manner

or in a manner that would involve an unreasonable risk of physical

harm; moreover, this court declined the plaintiffs’ invitation to expand

the common-law doctrine of negligent entrustment to allow such a cause

of action to proceed on a theory that it was reasonably foreseeable to

the defendants that, following the initial entrustment of a dangerous

instrumentality, such as the rifle in question, that instrumentality would

come into the possession of someone like L, who would use it in an

unsafe manner, and, in any event, it was unnecessary to decide whether,

in the present case, a cause of action for negligent entrustment could

proceed under such a theory because the plaintiffs did not allege that

any of the defendants possessed any knowledge or had any specific

reason to believe either that L’s mother would share the rifle with L or

that L was especially likely to operate it unsafely or illegally; furthermore,

to the extent that the plaintiffs were seeking to pursue their negligent

entrustment claim on the theory that any commercial sale of assault

weapons to civilian users constitutes negligent entrustment because the

societal costs of such sales outweigh the perceived benefits, this court

followed the lead of other courts in rejecting that theory.

2. The trial court improperly struck the plaintiffs’ claims under CUTPA on

the ground that the plaintiffs lacked standing because they were third-

party victims who did not have a consumer or commercial relationship

with the defendants: upon review of the text of § 42-110g (a), the provi-

sion of CUTPA creating a private right of action for persons injured by

unfair trade practices, and its legislative history, and in light of the broad

scope and remedial purpose of CUTPA, this court concluded that CUTPA

authorizes any person who has suffered an ascertainable financial loss

caused by an unfair trade practice to bring an action under CUTPA,

regardless of whether they had a business relationship with the person

or entity that engaged in the prohibited practice; moreover, prior case

law on which the trial court had relied in striking the plaintiffs’ CUTPA

claims for lack of standing did not recognize a business relationship

requirement, notwithstanding the defendants’ claim to the contrary, and,

therefore, principles of stare decisis and legislative acquiescence did

not require this court to impose a business relationship requirement in

the context of this case; furthermore, the defendants could not prevail

on their claim that prudential concerns supported the restriction of

CUTPA standing to persons who have a direct business relationship

with the alleged wrongdoer, as none of the rationales that underlie the

standing doctrine, either generally or in the specific context of unfair

trade practice litigation, supported the denial of standing to the plaintiffs

in the present case, in which the link between the allegedly wrongful

conduct and the plaintiffs’ injuries was far more direct and less attenu-

ated than in other cases in which this court has held that the plaintiffs

lacked standing under CUTPA on the ground that the harms alleged

were too indirect, remote and derivative with respect to the alleged

wrongdoer’s conduct.

3. This court concluded that a cause of action for wrongful death predicated

on a CUTPA violation must comply with both the statute of limitations

applicable to wrongful death claims, § 52-555 (a), which is two years

from the date of death and no more than five years from the date of the

act or omission complained of, and the statute of limitations applicable

to CUTPA claims, § 42-110g (f), which is three years from the date of

the alleged violation, this court having reasoned that any limitation

period contained in a statute such as CUTPA, which creates a right of

action that did not exist at common law, constitutes an essential element

of the cause of action created thereunder, and that, under this state’s

wrongful death statute, an action will lie only insofar as the decedent,

had he or she survived, could have satisfied all of the elements of the

underlying theory of liability on which the allegedly wrongful death is

predicated; because it was undisputed that the manufacturing, distribu-

tion and final sale of the rifle to L’s mother all occurred at least three

years prior to the commencement of the present action, the plaintiffs’

wrongful death claims predicated on the theory that any sale of military

style assault weapons, such as the rifle in question, represented an unfair

trade practice were time barred by the applicable statutes of limitations,

but the plaintiffs’ wrongful death claims predicated on the theory that

the defendants violated CUTPA by advertising and marketing the rifle

in an unethical, oppressive, immoral, and unscrupulous manner were

not time barred, as most of the plaintiffs’ wrongful advertising and

marketing claims were phrased in the present tense and, thus, could be

interpreted to allege that the defendants’ wrongful conduct continued

through the time the complaint was filed, and as at least one allegation

reasonably could be interpreted to mean that the defendants’ wrongful

conduct had occurred at the time of the shootings, which was within

the limitation period.

4. The defendants could not prevail on their claim, as an alternative ground

for affirming the trial court’s judgment, that the exclusivity provision

of the Connecticut Product Liability Act, which provides that a product

liability claim under that act shall be in lieu of all other claims against

product sellers for harm caused by a product, barred the plaintiffs’

CUTPA claims that were predicated on the defendants’ allegedly wrong-

ful advertising and marketing of the rifle; the defendant failed to establish

that those claims amounted to product liability claims, as there were

no allegations, for example, that the defendants’ advertising and market-

ing of the rifle contained inadequate warnings that made the rifle unrea-

sonably dangerous.

5. Contrary to the defendants’ claim, personal injuries resulting in death

that are alleged to have resulted directly from wrongful advertising and

marketing practices are cognizable under CUTPA: although the term

‘‘actual damages’’ in § 42-110g (a) is not defined in CUTPA, the use of

that term in other statutes led this court to conclude that the term

‘‘actual damages’’ in § 42-110g (a) includes personal injuries, and prior

case law supported the conclusion that the term ‘‘ascertainable’’ in

that portion of § 42-110g (a) providing that a person who suffers ‘‘any

ascertainable loss of money or property’’ as a result of a prohibited

practice under CUTPA may recover actual damages in no way restricted

the damages that are available to plaintiffs who have been directly and

personally injured by an unfair trade practice; moreover, a contrary

reading of the statute would be inconsistent with the stated intent of

the legislature to provide broad protection from unfair trade practices

and to incentivize private enforcement of the law, several other courts

from other jurisdictions and a majority of Connecticut trial courts

addressing the issue have concluded that victims of unfair trade practices

may recover for personal injuries, and Federal Trade Commission rulings

and cases decided under the Federal Trade Commission Act (15 U.S.C.

§ 41 et seq. [2012 and Supp. V 2017]), which the legislature intended

would serve as a basis for interpreting CUTPA’s open-ended language,

supported the view that wrongful advertising that poses a genuine risk

of physical harm falls under the broad purview of the Federal Trade

Commission Act and, by incorporation, CUTPA.

6. The trial court correctly concluded that CUTPA, as applied to the plaintiffs’

allegations, fell within PLCAA’s ‘‘predicate’’ exception to immunity for

civil actions alleging that a firearms manufacturer or seller knowingly

violated a state or federal statute ‘‘applicable to the sale or marketing

of [a firearm], and the violation was a proximate cause of the harm for

which relief [was] sought,’’ and, accordingly, PLCAA did not bar the

plaintiffs’ wrongful death claims predicated on the theory that the defen-

dants violated CUTPA by marketing the rifle in question to civilians for

criminal purposes and that those wrongful marketing tactics caused or

contributed to the decedents’ injuries:

a. this court’s review of the text of the predicate exception set forth in

PLCAA, 15 U.S.C. § 7903 (5) (A) (iii), read in the context of the broader

statutory framework, led it to conclude that Congress did not intend to

preclude actions alleging that firearms manufactures or sellers violated

state consumer protection laws by promoting their firearms for illegal,

criminal purposes and, therefore, that CUTPA qualified as a predicate

statute insofar as it applied to wrongful advertising and marketing

claims:

(i) this court concluded that, although the word ‘‘applicable’’ in the

predicate exception is subject to more than one interpretation, the

most reasonable interpretation of the word is ‘‘capable of being

applied,’’ in accordance with the word’s ordinary, dictionary mean-

ing, and further concluded that, if Congress had intended to create

an exception to PLCAA for actions alleging a violation of any law

that is capable of being applied to the sale and marketing of firearms,

there was little doubt that state consumer protection statutes such

as CUTPA would qualify as predicate statutes under PLCAA, because

CUTPA prohibits unfair or deceptive acts in the conduct ‘‘of any

trade or commerce’’ and thus is capable of being applied to the sale

and marketing of firearms.

(ii) if Congress had intended to limit the scope of the predicate

exception to violations of statutes that are directly, expressly, or

exclusively applicable to firearms, it easily could have used such

language, as it had done in other federal statutes.

(iii) because the predicate exception expressly refers to state or

federal statutes applicable to the marketing of firearms, and because,

at the time PLCAA was enacted, no federal statute and very few

state statutes directly or specifically regulated the marketing or

advertising of firearms, the only logical reading of the predicate

exception was that Congress had in mind other types of statutes,

and this court presumed that Congress was aware, when it enacted

PLCAA, that both the Federal Trade Commission Act and its state

analogues, including CUTPA, had long been among the primary

vehicles for litigating claims that sellers of potentially dangerous

products, such as firearms, have marketed those products in an

unsafe or unscrupulous manner.

(iv) reading the predicate exception to encompass actions brought

to remedy illegal and unscrupulous marketing practices under state

consumer protection laws was consistent with the approach of the

Second Circuit Court of Appeals, which previously held that the

predicate exception encompasses laws that clearly can be said to

implicate the purchase and sale of firearms, as well as laws of general

applicability that courts have applied to the sale and marketing of

firearms, into which categories CUTPA squarely fell.

b. The congressional statement of findings and purposes set forth in

PLCAA at 15 U.S.C. § 7901 lent support for this court’s conclusion that

Congress did not intend to preclude under PLCAA the plaintiffs’ wrongful

advertising and marketing claims brought pursuant to CUTPA:

(i) this court read the congressional statement of findings and pur-

poses to indicate that Congress chose not to abrogate the well

established duty of firearms manufacturers and sellers to market

their firearms legally and responsibly, even though no federal laws

specifically govern the marketing of firearms, and, although the

statement of findings and purposes indicated that Congress sought to

immunize the firearms industry from liability for third-party criminal

conduct, it did not indicate that the firearms industry should be

able to evade responsibility for injuries that result if manufacturers

or sellers promote the illegal use of their products.

(ii) the statement of findings and purposes makes clear that Congress

sought to preclude only novel civil actions that are based on legal

theories without foundation in the common law and that would

expand civil liability in a manner never contemplated by Congress

or the state legislatures, and, as it is well established that statutes

such as CUTPA not only govern the marketing of firearms but also

prohibit advertisements that promote or model the unsafe or illegal

use of potentially dangerous products, there was no reason to think

that the present action represented the sort of civil action that

Congress sought to bar.

(iii) although the statement of findings and purposes emphasizes

the importance of preserving the rights enshrined in the second

amendment to the United States constitution, it was not clear, in

light of prior United States Supreme Court and other federal prece-

dent, that the second amendment’s protections extend to assault

weapons such as the rifle at issue in the present case.

c. The defendants could not prevail on their claim that construing a

statute of general applicability such as CUTPA to be a predicate statute

would lead to the absurd result that, if the predicate exception were to

encompass every statute that might be capable of being applied to the

sale or manufacturing of firearms, then virtually any action seeking to

hold firearms manufacturers or sellers liable for third-party gun violence

could proceed; the plaintiffs’ wrongful marketing claims may proceed

without crippling PLCAA, as those claims allege only that one specific

family of firearms sellers advertised one particular assault weapon in

an uniquely unscrupulous manner, promoting its suitability for illegal,

offensive assaults.

d. Extrinsic indicia of congressional intent also supported the conclusion

that CUTPA, as applied to the plaintiffs’ claims, qualified as a predicate

statute under PLCAA:

(i) applying the canon of statutory construction that a federal law

is not to be construed to have superseded the historic police powers

of the states unless that was the clearly expressed and manifest

purpose of Congress, and observing that the regulation of advertising

that threatens the public health, safety and morals has long been

considered a core exercise of the states’ police powers, this court

concluded that, because there was no indication in the statutory

text or statement of findings and purposes of PLCAA that Congress

intended to restrict the power of the states to regulate wrongful

advertising, particularly advertising that encourages consumers to

engage in egregious criminal conduct, it could not find that the

plaintiffs’ wrongful marketing claims under CUTPA were precluded

by PLCAA.

(ii) the defendants could not prevail on their claim that the canon

of ejusdem generis, which dictates that, when a statute sets forth

a general category of persons or things and then enumerates specific

examples thereof, and when the scope of the general category is

unclear, a rebuttable presumption may arise that the general cate-

gory encompasses only things similar in nature to the specific exam-

ples that follow, resolved in their favor any statutory ambiguity as

to whether CUTPA falls within the purview of the predicate excep-

tion, as the predicate exception expressly contains two examples

of statutes that are applicable to the sale or marketing of firearms,

none of which relates to consumer protection or unfair trade prac-

tices; the canon of ejusdem generis was inapplicable to the predicate

exception in the face of a contrary manifestation of legislative intent,

and the most reasonable interpretation of the legislative history

surrounding the inclusion of the two examples indicated that they

were added to the predicate exception not in an effort to define,

clarify, or narrow the universe of laws that qualify as predicate

statutes but, rather, simply to stave off the politically potent attack

that PLCAA would have barred actions such as one that had arisen

from a widely reported sniper attack involving a semiautomatic

weapon in the District of Columbia a few years prior to the passage

of PLCAA.

(iii) the defendants could not rely on the canon that statutory excep-

tions, such as the predicate exception, must be construed narrowly

to preserve the primary purpose of the entire statutory scheme, as

the defendants misperceived the primary purpose of PLCAA, which

was not to shield firearms sellers from liability for wrongful or

illegal conduct.

(iv) the legislative history of similar federal legislation proposed but

not passed in the same year that PLCAA was introduced, which

would have bestowed PLCAA-type immunity on fast food restaurant

companies to protect them from actions seeking to hold them liable

for consumers’ obesity and related health problems, and which con-

tained substantially identical language to that set forth in the predi-

cate exception in PLCAA, made clear that the ‘‘applicable’’ statutes

for purposes of the predicate exception in the proposed legislation

were not limited to laws that directly and specifically regulated the

food industry but, rather, encompassed state consumer protection

laws, such as CUTPA, even though such provisions constituted laws

of general applicability that did not expressly address food and

beverage marketing or labeling.

(v) this court’s review of the legislative history of PLCAA led it to

conclude that Congress did not intend to limit the scope of the

predicate exception to violations of firearms specific laws or to

confer immunity from all claims alleging that firearms sellers vio-

lated laws governing unfair trade practices, as the sponsor and

cosponsors of the proposed legislation that became PLCAA empha-

sized that their primary concern was not with actions such as the

present one, in which individual plaintiffs who have been harmed

in a specific incident of gun violence seek to hold the sellers responsi-

ble for specific misconduct in selling the weapons involved, but,

rather, sought to preclude the rising number of frivolous actions

brought by municipalities and anti-gun activists that target the entire

firearms industry, and, furthermore, many legislators stated or

implied that the only actions that would be barred by PLCAA would

be ones in which a firearms manufacturer or seller bore no responsi-

bility or blame for the misuse of its firearms in the commission of

a crime or for the plaintiff’s injuries, and sought to foreclose only

novel legal theories and unprecedented tort theories, unlike the legal

theories advanced in the present case, that had been developed

by anti-gun activists with the goal of putting firearms sellers out

of business.

7. In light of this court’s holdings, the trial court’s judgment was reversed

insofar as it ruled that the plaintiffs lacked standing under CUTPA

and insofar as it concluded that the plaintiffs’ wrongful death claims

predicated on the theory that any sale of military style assault weapons

to the civilian market constituted an unfair trade practice were not time

barred, the trial court’s judgment was affirmed in all other respects,

and the case was remanded for further proceedings.

(Three justices dissenting in part in one opinion)

Argued November 14, 2017—officially released March 19, 2019

Procedural History

Action to recover damages for, inter alia, the wrongful

death of the named plaintiff’s decedent resulting from

the defendants’ alleged violation of the Connecticut

Unfair Trade Practices Act, and for other relief, brought

to the Superior Court in the judicial district of Fairfield,

where the court, Bellis, J., granted the motions of the

named defendant et al. to strike the amended complaint

and rendered judgment for the named defendant et al.,

from which the plaintiffs appealed; thereafter, the court,

Bellis, J., granted the motion to strike filed by the defen-

dant Riverview Sales, Inc., and rendered judgment

thereon, and the plaintiffs filed a separate appeal.

Reversed in part; further proceedings.

Joshua D. Koskoff, with whom were Alinor C. Ster-

ling and Katherine Mesner-Hage, for the appellants

(plaintiffs).

James Vogts, pro hac vice, and Christopher Renzulli,

with whom were Scott M. Harrington and, on the brief,

Andrew A. Lothson, pro hac vice, Scott C. Allan, Jona-

than P. Whitcomb and Peter M. Berry, for the appel-

lees (defendants).

Howard Zelbo, Evan A. Davis, pro hac vice, and

Elizabeth Vicens, pro hac vice, filed a brief for Trinity

Church Wall Street as amicus curiae.

James J. Healy filed a brief for Nora Freeman

Engstrom et al. as amici curiae.

Matthew H. Geelan, Michael J. Dell, pro hac vice,

and Rebecca T. Dell, pro hac vice, filed a brief for Katie

Bakes et al. as amici curiae.

Vaughan Finn and Thomas H. Zellerbach, pro hac

vice, filed a brief for The Brady Center To Prevent Gun

Violence as amicus curiae.

John J. Kennedy, Jr., Brendan K. Nelligan, Brad S.

Karp, pro hac vice, H. Christopher Boehning, pro hac

vice, and Amy J. Beaux, pro hac vice, filed a brief for the

Law Center To Prevent Gun Violence as amicus curiae.

George Jepsen, former attorney general, Perry Zinn

Rowthorn, former deputy attorney general, Kimberly

Massicotte, associate attorney general, and Jeremy

Pearlman, assistant attorney general, filed a brief for

the State of Connecticut et al. as amici curiae.

Daniel J. Klau filed a brief for CT Against Gun Vio-

lence et al. as amici curiae.

David N. Rosen and Alexander Taubes filed a brief

for Newtown Action Alliance et al. as amici curiae.

Kenneth R. Slater, Jr., David H. Thompson, pro hac

vice, Peter A. Patterson, pro hac vice, and John D.

Ohlendorf, pro hac vice, filed a brief for the Connecticut

Citizens Defense League, Inc., as amicus curiae.

Lawrence G. Keane and Victor E. Schwartz, pro hac

vice, filed a brief for the National Shooting Sports Foun-

dation as amicus curiae.

Robert J. Chomiak filed a brief for the Connecticut

Defense Lawyers Association as amicus curiae.

Kenneth R. Slater, Jr., Paul D. Clement, pro hac vice,

and Erin E. Murphy, pro hac vice, filed a brief for the

National Rifle Association of America, Inc., as amicus

curiae.

Joseph P. Secola filed a brief for Gun Owners of

America, Inc., et al. as amici curiae.

Opinion

TABLE OF CONTENTS

Page

I. PROCEDURAL HISTORY . . . . . . . . . . . . . . . xx

II. ALLEGED FACTS . . . . . . . . . . . . . . . . . . . xx

III.NEGLIGENT ENTRUSTMENT . . . . . . . . . . . . xx

IV. WRONGFUL DEATH AND CUTPA: ISSUES OF

STATE LAW . . . . . . . . . . . . . . . . . . . . . . . xx

A. CUTPA Standing . . . . . . . . . . . . . . . . . . xx

B. Statute of Limitations. . . . . . . . . . . . . . . . xx

1. Procedural History . . . . . . . . . . . . . . . xx

2. Legal Principles . . . . . . . . . . . . . . . . . xx

C. Connecticut Product Liability Act Preemption . xx

D. CUTPA Personal Injury Damages . . . . . . . . . xx

V. WRONGFUL DEATH AND CUTPA: ISSUES OF

FEDERAL LAW . . . . . . . . . . . . . . . . . . . . . xx

A. PLCAA Overview . . . . . . . . . . . . . . . . . . xx

B. The Plain Language of the Statute . . . . . . . . xx

1. The Predicate Exception . . . . . . . . . . . . xx

2. The Statutory Framework . . . . . . . . . . . xx

3. The Statement of Findings and Purposes. . . xx

4. Absurd Result . . . . . . . . . . . . . . . . . . xx

C. Extrinsic Evidence of Congressional Intent . . . xx

1. Canons of Statutory Construction . . . . . . . xx

a. Clear Statement Requirement . . . . . . . . xx

b. Ejusdem Generis . . . . . . . . . . . . . . . xx

c. Statutory Exceptions To Be Construed

Narrowly . . . . . . . . . . . . . . . . . . . . xx

2. Related Legislation . . . . . . . . . . . . . . . xx

3. The Legislative History of PLCAA . . . . . . . xx

VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . xx

PALMER, J. On December 14, 2012, twenty year old

Adam Lanza forced his way into Sandy Hook Elemen-

tary School in Newtown and, during the course of 264

seconds, fatally shot twenty first grade children and six

staff members, and wounded two other staff members.

Lanza carried out this massacre using a Bushmaster

XM15-E2S semiautomatic rifle that was allegedly manu-

factured, distributed, and ultimately sold to Lanza’s

mother by the various defendants in this case. There

is no doubt that Lanza was directly and primarily

responsible for this appalling series of crimes. In this

action, however, the plaintiffs—administrators of the

estates of nine of the decedents—contend that the

defendants also bear some of the blame. The plaintiffs

assert a number of different legal theories as to why

the defendants should be held partly responsible for the

tragedy. The defendants counter that all of the plaintiffs’

legal theories are not only barred under Connecticut

law, but also precluded by a federal statute, the Protec-

tion of Lawful Commerce in Arms Act (PLCAA), Pub.

L. No. 109-92, 119 Stat. 2095 (2005), codified at 15 U.S.C.

§§ 7901 through 7903 (2012), which, with limited excep-

tions, immunizes firearms manufacturers, distributors,

and dealers from civil liability for crimes committed by

third parties using their weapons. See 15 U.S.C. §§ 7902

(a) and 7903 (5) (2012).

For the reasons set forth in this opinion, we agree

with the defendants that most of the plaintiffs’ claims

and legal theories are precluded by established Con-

necticut law and/or PLCAA. For example, we expressly

reject the plaintiffs’ theory that, merely by selling semi-

automatic rifles—which were legal at the time1—to the

civilian population, the defendants became responsible

for any crimes committed with those weapons.

The plaintiffs have offered one narrow legal theory,

however, that is recognized under established Connecti-

cut law. Specifically, they allege that the defendants

knowingly marketed, advertised, and promoted the

XM15-E2S for civilians to use to carry out offensive,

military style combat missions against their perceived

enemies. Such use of the XM15-E2S, or any weapon for

that matter, would be illegal, and Connecticut law does

not permit advertisements that promote or encourage

violent, criminal behavior. Following a scrupulous

review of the text and legislative history of PLCAA, we

also conclude that Congress has not clearly manifested

an intent to extinguish the traditional authority of our

legislature and our courts to protect the people of Con-

necticut from the pernicious practices alleged in the

present case. The regulation of advertising that threat-

ens the public’s health, safety, and morals has long been

considered a core exercise of the states’ police powers.

Accordingly, on the basis of that limited theory, we

conclude that the plaintiffs have pleaded allegations

sufficient to survive a motion to strike and are entitled

to have the opportunity to prove their wrongful market-

ing allegations. We affirm the trial court’s judgment

insofar as that court struck the plaintiffs’ claims predi-

cated on all other legal theories.

I

PROCEDURAL HISTORY

The plaintiffs brought the present action in 2014,

seeking damages and unspecified injunctive relief.2 The

defendants include the Bushmaster defendants (Rem-

ington),3 one or more of which is alleged to have manu-

factured the Bushmaster XM15-E2S semiautomatic rifle

that was used in the crimes; the Camfour defendants,4

distributors that allegedly purchased the rifle from Rem-

ington and resold it to the Riverview defendants; and

the Riverview defendants,5 retailers that allegedly sold

the rifle to Adam Lanza’s mother, Nancy Lanza, in

March, 2010.6 The gravamen of the plaintiffs’ claims,

which are brought pursuant to this state’s wrongful

death statute, General Statutes § 52-555,7 is that the

defendants (1) negligently entrusted to civilian consum-

ers an AR-15 style assault rifle8 that is suitable for use

only by military and law enforcement personnel, and

(2) violated the Connecticut Unfair Trade Practices Act

(CUTPA), General Statutes § 42-110a et seq.,9 through

the sale or wrongful marketing of the rifle.

The defendants moved to strike the plaintiffs’ com-

plaint, contending that all of the plaintiffs’ claims are

barred by PLCAA. The defendants also argued that, to

the extent that the plaintiffs’ claims sound in negligent

entrustment, the plaintiffs failed to state a legally valid

negligent entrustment claim under Connecticut com-

mon law, and, to the extent that their claims are predi-

cated on alleged CUTPA violations, they are legally

insufficient because, among other things, (1) the plain-

tiffs lack standing to bring a CUTPA action, (2) the

plaintiffs’ claims are time barred by CUTPA’s three year

statute of limitations; see General Statutes § 42-110g

(f); (3) personal injuries and death are not cognizable

CUTPA damages, and (4) the plaintiffs’ CUTPA claims

are simply veiled product liability claims and, therefore,

are barred by General Statutes § 52-572n (a), the exclu-

sivity provision of the Connecticut Product Liability Act

(Product Liability Act).10

In response, the plaintiffs argued that PLCAA does

not confer immunity on the defendants for purposes of

this case because two statutory exceptions to PLCAA

immunity—for claims alleging negligent entrustment

(negligent entrustment exception)11 and for claims

alleging a violation of a statute applicable to the sale

or marketing of firearms (predicate exception)12—apply

to their claims. The plaintiffs further argued that, for

various reasons, the defendants’ state law negligent

entrustment and CUTPA arguments were ill founded.

Although the trial court rejected most of the defen-

dants’ arguments, the court concluded that (1) the plain-

tiffs’ allegations do not fit within the common-law tort

of negligent entrustment, (2) PLCAA bars the plaintiffs’

claims insofar as those claims sound in negligent

entrustment, and (3) the plaintiffs lack standing to bring

wrongful death claims predicated on CUTPA violations

because they never entered into a business relationship

with the defendants. Accordingly, the court granted

in their entirety the defendants’ motions to strike the

plaintiffs’ amended complaint.

On appeal, the plaintiffs challenge each of those con-

clusions.13 For their part, the defendants contend, as

alternative grounds for affirmance, that the trial court

improperly rejected their other CUTPA arguments. We

conclude that the majority of the plaintiffs’ claims were

properly struck insofar as those claims are predicated

on the theory that the sale of the XM15-E2S rifle to

Lanza’s mother or to the civilian market generally con-

stituted either negligent entrustment; see part III of this

opinion; or an unfair trade practice. See part IV B of this

opinion. We also conclude, however, that the plaintiffs

have standing to prosecute their CUTPA claims under

Connecticut law. See part IV A of this opinion. We

further conclude that PLCAA does not bar the plaintiffs

from proceeding on the single, limited theory that the

defendants violated CUTPA by marketing the XM15-

E2S to civilians for criminal purposes, and that those

wrongful marketing tactics caused or contributed to

the Sandy Hook massacre.14 See part V of this opinion.

Accordingly, we affirm in part and reverse in part the

judgment of the trial court and remand the case for

further proceedings.

II

ALLEGED FACTS

Because we are reviewing the judgment of the trial

court rendered on a motion to strike, we must assume

the truth of the following facts, as alleged by the plain-

tiffs.15 Lanza carried out the Sandy Hook massacre using

a Bushmaster XM15-E2S rifle. That rifle is Remington’s

version of the AR-15 assault rifle, which is substantially

similar to the standard issue M16 military service rifle

used by the United States Army and other nations’

armed forces, but fires only in semiautomatic mode.

The AR-15 and M16 are highly lethal weapons that are

engineered to deliver maximum carnage with extreme

efficiency. Several features make these rifles especially

well suited for combat and enable a shooter to inflict

unparalleled carnage. Rapid semiautomatic fire

‘‘unleashes a torrent of bullets in a matter of seconds.’’

The ability to accommodate large capacity magazines

allows for prolonged assaults. Exceptional muzzle

velocity makes each hit catastrophic. Indeed, the plain-

tiffs contend, bullets fired from these rifles travel at

such a high velocity that they cause a shockwave to pass

through the body upon impact, resulting in catastrophic

injuries even in areas remote to the direct wound.

Finally, the fact that the AR-15 and M16 are lightweight,

air-cooled, gas-operated, and magazine fed, enabling

rapid fire with limited recoil, means that their lethality is

not dependent on good aim or ideal combat conditions.

These features endow the AR-15 with a lethality that

surpasses even that of other semiautomatic weapons.

‘‘The net effect is more wounds, of greater severity, in

more victims, in less time.’’ That lethality, combined

with the ease with which criminals and mentally unsta-

ble individuals can acquire an AR-15, has made the rifle

the weapon of choice for mass shootings, including

school shootings.

The particular weapon at issue in this case was manu-

factured and sold by the Bushmaster defendants. Some-

time prior to March, 2010, the Bushmaster defendants

sold the rifle to the Camfour defendants. The Camfour

defendants subsequently sold the rifle to the Riverview

defendants, who operate a retail gun store located in

the town of East Windsor.

In March, 2010, Lanza’s mother purchased the rifle

from the Riverview defendants. Lanza, who was seven-

teen years old at the time, had expressed a desire to join

the elite United States Army Rangers unit. His mother

bought the rifle to give to or share with him in order

to connect with him. However, when Lanza turned eigh-

teen on April 22, 2010, he did not enlist in the military.

Still, he gained unfettered access to a military style

assault rifle.

Eight months later, on the morning of December 14,

2012, Lanza retrieved the rifle and ten 30 round maga-

zines. Using a technique taught in the first person

shooter video games that he played, he taped several

of those magazines together to allow for faster reload-

ing. He then drove to Sandy Hook Elementary School.

Just before 9:30 a.m., Lanza shot his way into the

locked school using the XM15-E2S. He immediately shot

and killed Mary Joy Sherlach as well as the school’s

principal. He subsequently shot and wounded two

staff members.

Lanza next entered Classroom 8, where he used the

rifle to kill two adults and fifteen first grade children,

including five of the plaintiffs. Finally, he entered Class-

room 10, where he used the rifle to kill two adults and

five first grade children, including three of the plaintiffs.

Nine children from Classroom 10 were able to escape

when Lanza paused to reload with another magazine.

In total, the attack lasted less than four and one-half

minutes, during which Lanza fired at least 154 rounds

from the XM15-E2S, killing twenty-six and wounding

two others.16

The plaintiffs filed the present action in 2014 seeking

damages and injunctive relief. Each of the counts in

the operative first amended complaint is predicated on

two distinct theories of liability. First, the plaintiffs

contend that the AR-15 is a military grade weapon that

is ‘‘grossly ill-suited’’ for legitimate civilian purposes

such as self-defense and recreation. They also allege

that the AR-15 has become the weapon of choice for

mass shootings and, therefore, that the risks associated

with selling the weapon to the civilian market far out-

weigh any potential benefits. The defendants continued

to sell the XM15-E2S despite their knowledge of these

facts. Therefore, the plaintiffs contend, it was both neg-

ligent and an unfair trade practice for each of the defen-

dants to sell the weapon, knowing that it eventually

would be purchased by a civilian customer who might

share it with other civilian users.

The plaintiffs’ second theory of liability is that the

defendants advertised and marketed the XM15-E2S in

an unethical, oppressive, immoral and unscrupulous

manner. They contend that the defendants have sought

to grow the AR-15 market by extolling the militaristic

and assaultive qualities of their AR-15 rifles and, specifi-

cally, the weapon’s suitability for offensive combat mis-

sions. The plaintiffs argue that the defendants’ milita-

ristic marketing reinforces the image of the AR-15 as

a combat weapon that is intended to be used for the

purposes of waging war and killing human beings. Con-

sistent with that image, the defendants further pro-

moted the XM15-E2S as a combat weapon system by

designating in their product catalogues that the rifle

comes ‘‘standard’’ with a 30 round magazine which,

the plaintiffs allege, differs from how the defendants

promote and sell rifles for legal civilian purposes such

as hunting and sport shooting.17

The plaintiffs further contend that the defendants

unethically promoted their assault weapons for offen-

sive, military style missions by publishing advertise-

ments and distributing product catalogs that (1)

promote the AR-15 as ‘‘the uncompromising choice

when you demand a rifle as mission adaptable as you

are,’’ (2) depict soldiers moving on patrol through jun-

gles, armed with Bushmaster rifles, (3) feature the slo-

gan ‘‘[w]hen you need to perform under pressure,

Bushmaster delivers,’’ superimposed over the silhou-

ette of a soldier holding his helmet against the backdrop

of an American flag, (4) tout the ‘‘military proven perfor-

mance’’ of firearms like the XM15-E2S, (5) promote

civilian rifles as ‘‘the ultimate combat weapons system,’’

(6) invoke the unparalleled destructive power of their

AR-15 rifles, (7) claim that the most elite branches of

the United States military, including the United States

Navy SEALs, the United States Army Green Berets and

Army Rangers, and other special forces, have used the

AR-15, and (8) depict a close-up of an AR-15 with the

following slogan: ‘‘Forces of opposition, bow down. You

are single-handedly outnumbered.’’

Finally, with respect to this second, wrongful market-

ing theory of liability, the plaintiffs contend that the

defendants’ marketing of the XM15-E2S to civilians for

offensive assault missions was a substantial factor in

causing the plaintiffs’ injuries. Specifically, they con-

tend that Lanza had dreamed as a child of joining the

elite Army Rangers unit of the United States Army and

was, therefore, especially susceptible to militaristic

marketing. They further contend that he selected the

XM15-E2S for his assault from among an arsenal that

included various less lethal arms—at least three hand-

guns, one shotgun, two bolt action rifles, and three

samurai swords—and that he specifically chose the

XM15-E2S not only for its functional capabilities,

including its assaultive qualities and efficiency in

inflicting mass casualties, but also because of its mar-

keted association with the military.18 Finally, they con-

tend that Lanza was a devoted player of first person

shooter games featuring variants of the XM15-E2S and

that he employed techniques taught in those games to

enhance the lethality of his assault on the school. In

other words, the plaintiffs allege that the attack, had it

occurred at all, would have been less lethal and the

carnage less grievous if Lanza had not been encouraged

by the defendants’ marketing campaign to select the

XM15-E2S as his weapon of choice and taught by violent

video games how to kill with it most efficiently. Addi-

tional facts and procedural history will be set forth

as necessary.

III

NEGLIGENT ENTRUSTMENT

In opposition to the defendants’ motions to strike,

the plaintiffs argued that their claims were not barred

by PLCAA because the claims are predicated on allega-

tions of negligent entrustment and CUTPA violations,

both of which satisfy statutory exceptions to PLCAA

immunity. In this part of the opinion, we consider

whether the trial court correctly concluded that the

plaintiffs’ claims were legally insufficient to the extent

that those claims are predicated on a theory of negligent

entrustment. The trial court concluded both that the

plaintiffs had not sufficiently pleaded a cause of action

in negligent entrustment under Connecticut common

law and, in the alternative, that the plaintiffs’ allegations

did not satisfy PLCAA’s statutory definition of negligent

entrustment. See 15 U.S.C. § 7903 (5) (B) (2012).19 The

plaintiffs challenge both conclusions on appeal.

Because we agree with the trial court that the plaintiffs

have not pleaded a legally sufficient cause of action in

negligent entrustment under our state’s common law,

we need not consider whether negligent entrustment

claims must meet stricter requirements in order to sat-

isfy the federal statutory exception.

The following additional procedural history is rele-

vant to this issue. In response to the defendants’

motions to strike, the plaintiffs argued that their claims

are not precluded by PLCAA because each of their

claims is predicated in part on a theory of negligent

entrustment and PLCAA does not confer immunity on

sellers of firearms in actions for negligent entrustment.

See 15 U.S.C. § 7903 (5) (A) (ii) (2012).20 In its decision

granting the defendants’ motions to strike, the trial

court concluded that an action for negligent entrust-

ment will lie only when the supplier of a dangerous

instrumentality such as a firearm knows or has reason

to know that the direct entrustee is likely to use the

item unsafely. Because the plaintiffs did not allege that

there was any specific reason to believe that the Cam-

four defendants (as direct entrustees of the Remington

defendants), the Riverview defendants (as direct

entrustees of the Camfour defendants), or Lanza’s

mother (as a direct entrustee of the Riverview defen-

dants) was incompetent to operate the XM15-E2S or had

a propensity to use the weapon in an unsafe manner,

the court granted all of the defendants’ motions to strike

with respect to the plaintiffs’ negligent entrustment the-

ories of liability.

We commence our review of this issue with a brief

discussion of the history of and principles that animate

the tort of negligent entrustment. The cause of action

for negligent entrustment represents a departure from

the general rule that an individual cannot be held liable

for the conduct of others. It reflects a legitimate societal

concern that a person in possession of a dangerous

instrument should bear the responsibility of exercising

care when entrusting that instrument to another, given

the serious risk to society if items like firearms or auto-

mobiles should fall into unfit hands. See J. Fisher, Com-

ment, ‘‘So How Do You Hold This Thing Again?: Why

the Texas Supreme Court Should Turn the Safety off

the Negligent Entrustment of a Firearm Cause of

Action,’’ 46 Tex. Tech. L. Rev. 489, 495, 501 (2014). The

primary question that we must resolve is whether these

principles apply only when the entrustor believes or

has specific reason to believe that the direct entrustee

is likely to use the item unsafely or, rather, whether

they also apply when it is reasonably foreseeable that

the entrustment ultimately will lead to injurious use,

whether by the direct entrustee or by some unknown

third party.21 If the former, then the trial court properly

found for the defendants on this issue as a matter of

law; if the latter, then the plaintiffs are correct that the

plaintiffs’ claim presents an issue of fact to be decided

by a jury.

Although the idea that it may be wrong to entrust a

weapon or other dangerous item to one likely to misuse

it is as old as civilization,22 the common-law tort of

negligent entrustment traces its origins to Dixon v. Bell,

105 Eng. Rep. 1023 (K.B. 1816). See B. Todd, ‘‘Negligent

Entrustment of Firearms,’’ 6 Hamline L. Rev. 467, 467

and n.1 (1983). In Dixon, the defendant sent a preado-

lescent girl to retrieve a loaded gun, resulting in the

accidental shooting of the plaintiff’s son. See Dixon v.

Bell, supra, 1023. In upholding a verdict for the plaintiff

that the defendant was liable for entrusting the girl

with the care and custody of the weapon, the court

recognized that ‘‘he well [knew] that the said [girl] was

too young, and an unfit and improper person to be sent

for the gun . . . .’’ Id.

American courts began applying the doctrine of negli-

gent entrustment in the 1920s, following the advent of

the mass produced automobile; see J. Fisher, supra, 46

Tex. Tech. L. Rev. 493; and Connecticut first recognized

the common-law cause of action in Turner v. American

District Telegraph & Messenger Co., 94 Conn. 707, 110

A. 540 (1920). In that case, the defendant security com-

pany entrusted a loaded pistol to an employee who later

instigated a fight with and ultimately shot the plaintiff,

a customer’s night watchman. Id., 708–11 (preliminary

statement of facts). This court held that there was insuf-

ficient evidence to support a verdict for the plaintiff on

his negligent entrustment claim because there was not

‘‘even a scintilla of evidence that the defendant had or

ought to have had knowledge or even suspicion that

[its employee] possessed any of the traits . . . attrib-

uted to him by the plaintiff,’’ including that ‘‘he was a

reckless person, liable to fall into a passion, and unfit

to be [e]ntrusted with a deadly weapon . . . .’’ Id., 716.

‘‘Without this vitally important fact,’’ the court con-

cluded, ‘‘the plaintiff’s claim falls to the ground

. . . .’’ Id.

Other Connecticut cases decided in the early twenti-

eth century, although not always expressly resolved

under the rubric of negligent entrustment, also sug-

gested that a person can be held liable for third-party

injuries resulting from another’s use of a dangerous

item only if the entrustment of that item was made with

actual or constructive knowledge that misuse by the

entrustee was foreseeable. In Wood v. O’Neil, 90 Conn.

497, 97 A. 753 (1916), for example, this court held that

no cause of action in negligence could be maintained

against the parents of a fifteen year old boy who acci-

dentally shot a companion with a shotgun because the

parents, in permitting the boy to use the gun, had no

specific knowledge that he ‘‘was possessed of a marked

careless disposition.’’ Id., 500.

Subsequently, in Greeley v. Cunningham, 116 Conn.

515, 165 A. 678 (1933), we articulated the standards that

govern a negligent entrustment action in the context

of automobiles, which since has become the primary

context in which such claims have arisen. See generally

J. Fisher, supra, 46 Tex. Tech. L. Rev. 489. In Greeley, the

plaintiff alleged that the defendant had been negligent

in entrusting his car to an unlicensed driver, who subse-

quently caused an accident while attempting to pass the

plaintiff’s vehicle. See Greeley v. Cunningham, supra,

517–18. ‘‘[Although] liability cannot be imposed [on] an

owner merely because he [e]ntrusts [his automobile]

to another to drive [on] the highways,’’ the court

explained, ‘‘[i]t is . . . coming to be generally held that

the owner may be liable for injury resulting from the

operation of an automobile he loans to another when

he knows or ought reasonably to know that the one to

whom he [e]ntrusts it is so incompetent to operate it,

by reason of inexperience or other cause, that the owner

ought reasonably to anticipate the likelihood that in its

operation injury will be done to others.’’ (Emphasis

added.) Id., 518. This court proceeded to set forth the

elements of a cause of action sounding in negligent

entrustment of an automobile: (1) the owner of an auto-

mobile entrusts it to another person (2) whom the

owner knows or should reasonably know is so incompe-

tent to operate it that injury to others should reasonably

be anticipated, and (3) such incompetence results in

injury. Id., 520.

Since this court decided Wood, Turner, and Greeley, it

never has suggested that a cause of action for negligent

entrustment—whether involving a vehicle, a weapon,

or some other dangerous item—will lie in the absence

of evidence that the direct entrustee is likely to use the

item unsafely. Most jurisdictions that have recognized

a cause of action in negligent entrustment likewise

require that the actor have actual or constructive knowl-

edge that the specific person to whom a dangerous

instrumentality is directly entrusted is unfit to use it

properly. See, e.g., J. Fisher, supra, 46 Tex. Tech. L.

Rev. 496; B. Todd, supra, 6 Hamline L. Rev. 467; S. Beal,

‘‘Saving Negligent Entrustment Claims,’’ Trial, Febru-

ary, 2007, p. 35.

In accordance with the majority view, this also is the

rule set forth in the Restatement (Second) of Torts.

Section 308 of the Restatement (Second) provides that

‘‘[i]t is negligence to permit a third person to use a thing

. . . [that] is under the control of the actor, if the actor

knows or should know that such person intends or is

likely to use the thing . . . in such a manner as to

create an unreasonable risk of harm to others.’’ (Empha-

sis added.) 2 Restatement (Second), Torts § 308, p. 100

(1965). Section 390, which further defines the tort of

negligent entrustment, provides that ‘‘[o]ne who sup-

plies . . . a chattel for the use of another whom the

supplier knows or has reason to know to be likely

because of his youth, inexperience, or otherwise, to use

it in a manner involving unreasonable risk of physical

harm to himself and others . . . is subject to liability

for physical harm resulting to them.’’ 2 id., § 390, p. 314;

see also B. Todd, supra, 6 Hamline L. Rev. 467 and n.5.

We take it as well established, then, that, in order to

prove negligent entrustment, a plaintiff must demon-

strate that (1) the defendant has entrusted a potentially

dangerous instrumentality to a third person (2) whom

the entrustor knows or should know intends or is likely

to use the instrumentality in a manner that involves

unreasonable risk of physical harm, and (3) such use

does in fact cause harm to the entrustee or others.

The rule that a cause of action for negligent

entrustment will lie only when the entrustor knows or

has reason to know that the direct entrustee is likely

to use a dangerous instrumentality in an unsafe manner

would bar the plaintiffs’ negligent entrustment claims.

Specifically, there is no allegation in this case that there

was any reason to expect that Lanza’s mother was likely

to use the rifle in an unsafe manner.23

The plaintiffs, recognizing that they cannot prevail

under this rule, invite us to adopt a different framework,

one ‘‘that focuses on the existence of a nexus between

the defendant and the dangerous user—rather than the

number of steps between them . . . .’’ In other words,

their proposal is that a party alleging negligent

entrustment need prove only that it was reasonably

foreseeable that, following the initial entrustment of a

dangerous instrumentality, that instrumentality ulti-

mately would come into the possession of someone

who would use it in an unsafe manner. A jury could

find that standard satisfied in this case, they contend,

because (1) Remington allegedly marketed its assault

rifles to young men who play violent, first person

shooter video games and who, as a class, have a history

of using such rifles in real mass shootings, and (2)

there is evidence that individuals who legally purchase

weapons such as the AR-15 often share the weapons

with family members, including young men.

We decline the plaintiffs’ invitation to stretch the

doctrine of negligent entrustment so far beyond its his-

torical moorings. We recognize that some of our sister

state courts have permitted negligent entrustment

actions to proceed when, although there was no indica-

tion that the direct entrustee was incompetent to use

a dangerous item, there was reason to believe that the

entrustee would in turn share the item with a specific

third party who would misuse it. This has been the case,

for example, when a parent or other agent purchased

a weapon or vehicle for a child who was present at the

place and time of sale.24 We need not decide whether

and to what extent Connecticut would recognize a

cause of action for negligent entrustment under such

circumstances, however, because, in the present case,

the plaintiffs do not allege that any of the defendants

possessed any knowledge or had any specific reason

to believe either that Lanza’s mother would share the

XM15-E2S with her son or that he was especially likely

to operate it unsafely or illegally. In any event, the

plaintiffs have failed to cite to a single case, from any

jurisdiction, that allowed an action for negligent

entrustment to proceed when the nexus between a man-

ufacturer of a product and the person who ultimately

used that product in an unsafe manner was as attenu-

ated as it is in the present case.25

We also recognize that there is authority for the prop-

osition that entrustment may be deemed negligent when

the entrustor has no specific knowledge regarding the

entrustee’s personal competence or character but

knows that the entrustee is a member of a class that

is notoriously unfit to safely utilize the entrusted item.

See 2 Restatement (Second), supra, § 308, comment (b),

p. 100. The plaintiffs argue that we should apply that

principle in this case because (1) gun buyers as a class

are known to sometimes share their weapons with fam-

ily members, including young males, and (2) young

males, in turn, are known to sometimes use assault

weapons to commit mass shootings. Once again, we

decline the invitation to so dramatically expand the

scope of negligent entrustment liability.

As we noted, the tort of negligent entrustment saw

its florescence, if not its modern genesis, in the advent

of the mass produced automobile. See B. Todd, supra,

6 Hamline L. Rev. 467; A. Cholodofsky, Note, ‘‘Torts:

Does the Negligent Entrustment Doctrine Apply to Sell-

ers?’’ 39 U. Fla. L. Rev. 925, 928 (1987). In some

instances, a person may be unsuited to drive an automo-

bile because he is reckless, or inebriated, or otherwise

distinctly unfit to drive safely on the public roads. See

A. Cholodofsky, supra, 926 and nn. 5–6. It also is a

matter of common sense and common knowledge, how-

ever, that certain classes of people—e.g., young chil-

dren and blind persons—are inherently unfit to drive.

Our laws recognize as much. See General Statutes § 14-

36 (c) and (e) (establishing, among other things, age

and vision screening requirements for motor vehicle

operator’s permit or license). Accordingly, one may be

negligent for entrusting an automobile to such users

even in the absence of any particular knowledge about

their individual driving skills, experience, or tempera-

ment. A jury reasonably might conclude that the same

is true with respect to firearms and other weapons and

dangerous equipment. See B. Todd, supra, 468–69.

The plaintiffs’ theory, however, is fundamentally dif-

ferent. They do not contend that all gun buyers such

as Lanza’s mother, or young men such as Lanza, are

incapable of safely operating an AR-15. The plaintiffs

do not even contend that such users usually or even

frequently operate such weapons unsafely or unlaw-

fully. Rather, the plaintiffs contend that it is objectively

unreasonable to legally sell an assault weapon to an

adult buyer, for no other reason than that some small

subset of buyers will share weapons with their young

adult sons and some much smaller subset of young

adult males will use those weapons to commit terrible,

random crimes. The only plausible way to construe that

claim—and we do not understand the plaintiffs to deny

this—is that any commercial sale of assault weapons

to civilian users constitutes negligent entrustment

because the social costs of such sales outweigh the

perceived benefits. Other courts have rejected such a

theory, as do we. See, e.g., McCarthy v. Sturm, Ruger &

Co., 916 F. Supp. 366, 370 (S.D.N.Y. 1996), aff’d sub

nom. McCarthy v. Olin Corp., 119 F.3d 148 (2d Cir.

1997); Merrill v. Navegar, Inc., 26 Cal. 4th 465, 483–84,

28 P.3d 116, 110 Cal. Rptr. 2d 370 (2001); see also Phil-

lips v. Lucky Gunner, LLC, 84 F. Supp. 3d 1216, 1226

(D. Colo. 2015) (rejecting theory that unmediated online

sales of hazardous items represent negligent entrust-

ment), appeal dismissed, United States Circuit Court

of Appeals, Docket No. 15-1153 (10th Cir. July 21, 2015).

Accordingly, the plaintiffs’ action cannot proceed under

the negligent entrustment exception to immunity

under PLCAA.

IV

WRONGFUL DEATH AND CUTPA:

ISSUES OF STATE LAW

We turn next to the question of whether the trial

court properly granted the defendants’ motion to strike

the plaintiffs’ wrongful death claims insofar as those

claims are predicated on alleged CUTPA violations.

Because we have concluded that the plaintiffs have not

pleaded a legally sufficient negligent entrustment claim

under Connecticut common law, PLCAA will bar the

present action unless (1) the plaintiffs have pleaded a

cognizable CUTPA violation, and (2) CUTPA consti-

tutes a predicate statute for purposes of 15 U.S.C. § 7903

(5) (A) (iii).

In their motions to strike, the defendants argued,

among other things, that (1) the plaintiffs’ claims were

barred by CUTPA’s three year statute of limitations,

(2) damages for personal injuries and death resulting

therefrom are not cognizable under CUTPA, (3) the

plaintiffs’ CUTPA claims are precluded by the Product

Liability Act; see General Statutes § 52-572n (a); and

(4) CUTPA is not a valid predicate statute for purposes

of PLCAA. The trial court rejected each of these argu-

ments. The court agreed with the defendants, however,

that CUTPA does not afford protection to persons who

do not have a consumer or other commercial relation-

ship with the alleged wrongdoer. Accordingly, the court

concluded that the plaintiffs lacked standing to pursue

wrongful death claims predicated on CUTPA violations.

On appeal, the plaintiffs contend that the trial court

improperly struck their claims for lack of standing to

pursue them under CUTPA. For their part, the defen-

dants claim that the trial court’s judgment can be

affirmed on the alternative ground that the court’s other

determinations were improper.

As an initial matter, we reiterate that the plaintiffs’

CUTPA based wrongful death claims are predicated on

at least two fundamentally distinct theories of liability.

First, the plaintiffs contend that the defendants violated

CUTPA by selling the XM15-E2S to the civilian market

despite their knowledge that there is no legitimate civil-

ian use for such a weapon, that assault weapons such

as the AR-15 pose unreasonable risks when used by

civilians, and that individuals unfit to operate such

weapons likely would gain access to them. In other

words, the plaintiffs allege, in essence, that any sale of

any assault weapon to any civilian purchaser in Con-

necticut is, ipso facto, an unfair trade practice under

CUTPA.

Second, the plaintiffs contend that the defendants

violated CUTPA by advertising and marketing the

XM15-E2S in an unethical, oppressive, immoral, and

unscrupulous manner that promoted illegal offensive

use of the rifle. Specifically, they allege that the defen-

dants:

• promoted use of the XM15-E2S for offensive,

assaultive purposes—specifically, for ‘‘wag-

ing war and killing human beings’’—and not

solely for self-defense, hunting, target prac-

tice, collection, or other legitimate civilian

firearm uses

• extolled the militaristic qualities of the XM15-

E2S

• advertised the XM15-E2S as a weapon that

allows a single individual to force his multiple

opponents to ‘‘bow down’’

• marketed and promoted the sale of the XM15-

E2S with the expectation and intent that it

would be transferred to family members and

other unscreened, unsafe users after its pur-

chase.

The plaintiffs further allege in this regard that such

promotional tactics were causally related to some or

all of the injuries that were inflicted during the Sandy

Hook massacre.

For the reasons that follow, we conclude that the

trial court improperly granted the defendants’ motion

to strike these allegations in their entirety. We agree

with the plaintiffs that the trial court improperly con-

cluded that they lack standing to pursue any of their

CUTPA claims against the defendants. With respect to

the plaintiffs’ first theory of CUTPA liability—that the

sale of AR-15s to the civilian population is ipso facto

unfair—we agree with the defendants that the trial

court’s judgment can be affirmed on the alternative

ground that the plaintiffs’ claim is time barred under

the CUTPA statute of limitations. Cf. footnote 14 of this

opinion. However, with respect to the plaintiffs’ second

theory of liability—that the defendants’ wrongful mar-

keting of the XM15-E2S for illegal, offensive purposes

was a causal factor in increasing the casualties of the

Sandy Hook massacre—we find the defendants’ various

alternative bases for affirmance unpersuasive.

A

CUTPA Standing

Although the plaintiffs brought their claims pursuant

to the wrongful death statute; General Statutes § 52-

555; a wrongful death action will lie only when the

deceased person could have brought a valid claim for

the injuries that resulted in death if he or she had sur-

vived. See part IV B of this opinion. Accordingly, to

survive a motion to strike, the plaintiffs must be able

to establish that they have standing to pursue a CUTPA

claim for their injuries. We first consider whether the

trial court properly concluded that the plaintiffs lacked

standing to bring the present action under CUTPA

because they were third-party victims who did not have

a direct consumer, commercial, or competitor relation-

ship (business relationship or privity requirement) with

the defendants. Because the principal evils associated

with unscrupulous and illegal advertising are not ones

that necessarily arise from or infect the relationship

between an advertiser and its customers, competitors,

or business associates, we hold that a party directly

injured by conduct resulting from such advertising can

bring an action pursuant to CUTPA even in the absence

of a business relationship with the defendant. Accord-

ingly, we agree with the plaintiffs that the trial court

improperly struck their CUTPA based wrongful death

claims.

Whether one must have entered into a consumer or

commercial relationship with an alleged wrongdoer in

order to have standing to bring a CUTPA action presents

a question of statutory interpretation. The plain mean-

ing of the statutory text must be our lodestar. See Gen-

eral Statutes § 1-2z.

General Statutes § 42-110g (a) creates a private right

of action for persons injured by unfair trade practices

and provides in relevant part: ‘‘Any person who suffers

any ascertainable loss of money or property, real or

personal, as a result of the use or employment of a

method, act or practice prohibited by section 42-110b,

may bring an action . . . to recover actual damages.

. . .’’ (Emphasis added.) On its face, the statute plainly

and unambiguously authorizes anyone who has suf-

fered an ascertainable financial loss as a result of an

unfair trade practice to bring a CUTPA action. Nothing

in the text of the statute indicates that the right afforded

by § 42-110g (a) is enjoyed only by persons who have

done business of some sort with a defendant.

Even if we were to conclude that the statute is ambig-

uous in this regard, we perceive nothing in the legisla-

tive history or purpose of the statute that would support

the defendants’ theory that something more than an

ascertainable financial loss caused by a prohibited act

is necessary to confer standing under CUTPA. When

CUTPA originally was enacted in 1973, the statute

authorized private actions for ‘‘[a]ny person who pur-

chases or leases goods or services from a seller or lessor

primarily for personal, family or household purposes

and thereby suffers any ascertainable loss of money or

property, real or personal, as a result . . . .’’ (Emphasis

added.) Public Acts 1973, No. 73-615, § 7 (P.A. 73-615),

codified as amended at General Statutes (Rev. to 1975)

§ 42-110g (a). It is clear, then, that a direct consumer

relationship initially was required in order to bring a

CUTPA action.

Over the following decade, however, a series of

amendments eliminated that privity requirement. Of

particular note are the 1975 and 1979 amendments. In

1975, the legislature amended the statute to confer

standing on two distinct classes of plaintiffs. See Public

Acts 1975, No. 75-618, § 5 (P.A. 75-618). As amended,

the statute provided that CUTPA actions can be brought

either by ‘‘any person who purchases or leases goods

or services from a seller or lessor primarily for personal,

family or household purposes and thereby suffers any

ascertainable loss . . . as a result’’ or by ‘‘[a]ny person

who suffers any ascertainable loss of money or prop-

erty, real or personal, as a result [of a prohibited prac-

tice] . . . .’’ P.A. 75-618, § 5, codified as amended at

General Statutes (Rev. to 1977) § 42-110g (a). In other

words, the legislature conferred standing on an addi-

tional category of plaintiffs, namely, those whose injur-

ies were not the result of a direct consumer purchase

or lease of goods or services. Presumably recognizing

that the original category of CUTPA plaintiffs (con-

sumer direct purchasers and lessors) had become

redundant insofar as it was merely a subset of the new,

broader category that had been added in the 1975

amendments—i.e., any person who suffers an injury as a

result of a prohibited practice—the legislature amended

the statute again in 1979 to eliminate the reference to

direct purchasers. See Public Acts 1979, No. 79-210, § 1,

codified at General Statutes (Rev. to 1981) § 42-110g (a).

As we previously have explained; see Vacco v. Microsoft

Corp., 260 Conn. 59, 86–87 and n.30, 793 A.2d 1048

(2002); it is clear from this history that, although a

business relationship initially was required to bring a

CUTPA action, the legislature chose to eliminate that

privity requirement and instead conferred standing on

any person who could establish an ascertainable loss

as a result of an unfair trade practice.

This conclusion finds additional support in the legis-

lative proceedings pertaining to the various 1970s

amendments. From the start, CUTPA prohibited unfair

trade practices associated not only with the actual sale

and distribution of products and services, but also with

the advertising and offering of those products and ser-

vices for sale.26 However, when the House of Represen-

tatives debated Substitute House Bill No. 5613, the bill

that ultimately became No. 78-346 of the 1978 Public

Acts, several representatives expressed concerns that

the original file copy of that bill might be understood

to mean that unfair advertising would no longer consti-

tute a prohibited trade practice. In explaining the need

to amend the bill, Representative Raymond C. Ferrari

cautioned that CUTPA should not be watered down so

as to ‘‘require the actual sale of an item as opposed to

simply allow[ing] the enforcement under an advertise-

ment . . . .’’ 21 H.R. Proc., Pt. 10, 1978 Sess., p. 3987.

Representative Robert F. Frankel expressed similar

sentiments. See 21 H.R. Proc., Pt. 11, 1978 Sess., p.

4319 (‘‘we would actually be rolling back some of the

coverage of [CUTPA] wherein we would be requiring

a sale of advertised products before the Commissioner

[of Consumer Protection] could become involved’’).

The fact that the legislature sought to ensure that adver-

tising alone—even advertising that never results in a

sale—could constitute a prohibited practice suggests

that an actual business relationship was not deemed to

be a precondition for a CUTPA action following the

1975 amendments.

It is true that the primary concern of those representa-

tives during the 1978 hearings was to prevent the

Department of Consumer Protection (department) from

being stripped of its authority to aggressively enforce

CUTPA violations relating to false or misleading adver-

tising. It is, of course, possible that the legislature

wanted the department to be able to curtail wrongful

advertising campaigns at their inception, without hav-

ing to wait until consumers were harmed before taking

legal action, but intended that private individuals not

have standing to sue unless and until they had pur-

chased goods or services in reliance on such advertise-

ments. It bears emphasis, however, that the legislative

history of CUTPA is replete not only with references

to the broad scope and remedial nature of the act27 but

also with statements specifically indicating a legislative

awareness that the department and the Office of the

Attorney General were not equipped to prosecute every

unfair trade practice and a concomitant belief that it

was important to incentivize broad enforcement action

by private litigants.28 See, e.g., Hinchliffe v. American

Motors Corp., 184 Conn. 607, 615 and nn. 4–5, 618, 440

A.2d 810 (1981).

More directly on point is the testimony of Assistant

Attorney General Arnold Feigen, which was offered on

behalf of Attorney General Carl Ajello and Commis-

sioner of Consumer Protection Mary Heslin, before the

General Law Committee. See Conn. Joint Standing Com-

mittee Hearings, General Law, Pt. 4, 1979 Sess., p. 1159.

Testifying in favor of the 1979 amendment that elimi-

nated the direct purchaser requirement language,

Feigen explained that ‘‘[n]umerous arguments have

been raised in both state and federal courts that [a]

plaintiff, in order to sue, must be a purchaser or a lessee

of a seller . . . .’’ Id. ‘‘The amendment,’’ he opined,

‘‘will now allow a suit by any person who suffers any

ascertainable loss of money or property.’’ Id. Those

statements, although not dispositive of the question

before us, provide support for the plaintiffs’ theory that

the legislature intended to eliminate the business rela-

tionship requirement when it amended CUTPA. See

Vacco v. Microsoft Corp., supra, 260 Conn. 86–87 and

n.30.

The defendants, while implicitly acknowledging that

the plain language of § 42-110g (a) no longer imposes

a business relationship requirement, offer two argu-

ments as to why we should continue to read such a

requirement into the statute. First, they contend that

the trial court properly concluded that our prior cases

and those of the Appellate Court have recognized a

business relationship requirement and that principles

of stare decisis and legislative acquiescence counsel

against departing from those decisions. Second, the

defendants contend that prudential concerns support

limiting CUTPA standing to persons who have a direct

business relationship with the alleged wrongdoer. We

consider each argument in turn.

In support of its conclusion that our cases impose a

business relationship requirement, the trial court relied

on this court’s decisions in Vacco v. Microsoft Corp.,

supra, 260 Conn. 59, and Ventres v. Goodspeed Airport,

LLC, 275 Conn. 105, 881 A.2d 937 (2005), cert. denied,

547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006).

Neither decision compels such a result.

In Vacco, we recognized that the legislature, by

‘‘ ‘deleting all references to ‘‘purchasers, sellers, lessors,

or lessees’’ ’ ’’ in § 42-110g (a) in 1979, had eliminated

CUTPA’s privity requirement. Vacco v. Microsoft Corp.,

supra, 260 Conn. 88. We proceeded to clarify, however,

that the elimination of the privity requirement did not

mean that anyone could bring a CUTPA action, no mat-

ter how attenuated the connection between his or her

injuries and a defendant’s allegedly unfair trade prac-

tices. ‘‘Notwithstanding the elimination of the privity

requirement,’’ we explained, ‘‘it strains credulity to con-

clude that CUTPA is so formless as to provide redress

to any person, for any ascertainable harm, caused by

any person in the conduct of any trade or commerce.’’

(Internal quotation marks omitted.) Id. We further

observed, however, that CUTPA liability could reason-

ably be cabined in the same manner as with common-

law tort actions: ‘‘[N]otwithstanding the broad language

and remedial purpose of CUTPA, we have applied tradi-

tional common-law principles of remoteness and proxi-

mate causation to determine whether a party has

standing to bring an action under CUTPA.’’ (Footnote

omitted.) Id. Notably, we cited Ganim v. Smith & Wes-

son Corp., 258 Conn. 313, 780 A.2d 98 (2001), as an

example of a case in which the alleged harms suffered

by the plaintiffs—the city of Bridgeport and its mayor—

as a result of gun violence were ‘‘too remote and deriva-

tive’’ with respect to the challenged conduct for the

plaintiffs to have standing to bring a CUTPA claim.

Vacco v. Microsoft Corp., supra, 88–89, citing Ganim

v. Smith & Wesson Corp., supra, 344, 365. We proceeded

in Vacco to apply the same three part remoteness analy-

sis that we had applied in Ganim, ultimately concluding

that the plaintiff lacked standing because his injuries

were too remote in relation to the defendant’s allegedly

anticompetitive conduct. Vacco v. Microsoft Corp.,

supra, 90–92; see Ganim v. Smith & Wesson Corp.,

supra, 353. Accordingly, Vacco stands for the proposi-

tion that standing to bring a CUTPA claim will lie only

when the purportedly unfair trade practice is alleged

to have directly and proximately caused the plaintiff’s

injuries. This remoteness requirement serves the same

function as a privity requirement, as it mitigates any

concerns associated with imposing limitless liability on

CUTPA defendants.

Although our decision in Ventres could be read to

suggest that the plaintiff must have a business relation-

ship with the defendant, a closer review indicates that

it does not stand for this sweeping proposition. In that

case, a land trust and a conservancy (property owners)

alleged that the named defendant, Goodspeed Airport,

LLC, among other defendants, had violated CUTPA by

trespassing on the property owners’ land. See Ventres

v. Goodspeed Airport, LLC, supra, 275 Conn. 109, 112.

We concluded, as a matter of law, that, even if the

property owners had been able to prove their allega-

tions, none of the alleged conduct would have risen to

the level of a CUTPA violation. See id., 156–58.

As an alternative, independent basis for upholding

the trial court’s decision to strike the property owners’

CUTPA claims, we briefly considered the property own-

ers’ contention that a CUTPA plaintiff is not required

to allege any business relationship with a defendant,

summarily rejecting that claim on the ground that the

property owners had provided no authority for the prop-

osition. Id., 157–58. Significantly, in contrast to the pre-

sent case, Ventres did not involve allegations that a

business relationship between the defendants and a

third party had resulted in the harm alleged. Therefore,

we had no occasion to discuss or apply the proximate

cause analysis set forth in Vacco. See Vacco v. Microsoft

Corp., supra, 260 Conn. 90–92. In other words, there

was no business relationship that could result in any

causal connection to the injury alleged.

Accordingly, the court in Ventres did not hold that

every CUTPA claim requires a business relationship

between a plaintiff and a defendant. Indeed, we did not

analyze that issue, and at no point did we examine

either the text or the legislative history of the statute,

both of which, as we previously explained, strongly

suggest that the legislature did not intend to impose a

privity requirement. We thus conclude that the princi-

ples of stare decisis and legislative acquiescence do not

preclude us from construing § 42-110g (a) de novo in

the present case to address this question. See Igartua

v. Obama, 842 F.3d 149, 160 (1st Cir. 2016) (Torruella,

J., concurring in part and dissenting in part) (‘‘[c]onsid-

ering the cursory treatment given to this issue by the

. . . panel [in the prior decision], our hands are not

tied by stare decisis’’), cert. denied sub nom. Igartua

v. Trump, U.S. , 138 S. Ct. 2649, 201 L. Ed. 2d

1050 (2018).

Next, we consider the defendants’ argument that this

court has, for prudential reasons, set various limitations

on the types of parties that may bring CUTPA claims.

The defendants contend that similar policy rationales

counsel in favor of imposing a business relationship

requirement. In two of the cases that the defendants

cite in support of this proposition, however, this court

concluded that CUTPA simply did not govern the con-

duct at issue, and, therefore, we did not consider the

question of standing. See Haynes v. Yale-New Haven

Hospital, 243 Conn. 17, 34, 699 A.2d 964 (1997) (medical

malpractice claims are not subject to CUTPA); Russell

v. Dean Witter Reynolds, Inc., 200 Conn. 172, 180, 510

A.2d 972 (1986) (CUTPA does not apply to deceptive

practices in purchase and sale of securities). In the third

case on which the defendants rely, namely, Jackson v.

R. G. Whipple, Inc., 225 Conn. 705, 627 A.2d 374 (1993),

this court concluded that third parties lacked CUTPA

standing only in the context of the unique professional

relationship between attorneys and their clients. See

id., 729. Accordingly, the cases that the defendants cite,

which address unique professional service contexts and

relationships, provide little support for the general

proposition that CUTPA does not confer standing out-

side the limited confines of a business relationship

between the CUTPA plaintiff and defendant.

We need not decide today whether there are other

contexts or situations in which parties who do not share

a consumer, commercial, or competitor relationship

with an alleged wrongdoer may be barred, for pruden-

tial or policy reasons, from bringing a CUTPA action.

What is clear is that none of the rationales that underlie

the standing doctrine, either generally or in the specific

context of unfair trade practice litigation, supports the

denial of standing to the plaintiffs in this case. ‘‘Standing

. . . is a practical concept designed to ensure that

courts and parties are not vexed by suits brought to

vindicate nonjusticable interests and that judicial deci-

sions [that] may affect the rights of others are forged

in hot controversy, with each view fairly and vigorously

represented.’’ (Internal quotation marks omitted.)

Slimp v. Dept. of Liquor Control, 239 Conn. 599, 609, 687

A.2d 123 (1996). As we explained in Ganim v. Smith &

Wesson Corp., supra, 258 Conn. 313, there are several

reasons why standing traditionally has been restricted

to those parties directly injured by a defendant’s con-

duct: ‘‘First, the more indirect an injury is, the more

difficult it becomes to determine the amount of [the]

plaintiff’s damages attributable to the wrongdoing as

opposed to other, independent factors. Second, recog-

nizing claims by the indirectly injured would require

courts to adopt complicated rules apportioning dam-

ages among plaintiffs removed at different levels of

injury from the violative acts, in order to avoid the risk

of multiple recoveries. Third, struggling with the first

two problems is unnecessary [when] there are directly

injured parties who can remedy the harm without these

attendant problems.’’ (Internal quotation marks omit-

ted.) Id., 353.

Ganim, in fact, provides an instructive contrast to

the present case. In Ganim, the mayor and the city of

Bridgeport brought an action against handgun manufac-

turers, trade associations, and retail gun sellers to

recoup various municipal costs associated with gun

violence, including increased police and emergency ser-

vices, loss of investment, and victimization of Bridge-

port’s citizens. Id., 315–16, 326–27. We concluded that

the municipal plaintiffs lacked standing under CUTPA

because the ‘‘harms claimed . . . [were too] indirect,

remote and derivative with respect to the defendants’

conduct . . . .’’ Id., 353. Moreover, we observed that

one easily could identify several sets of potential plain-

tiffs who were more directly harmed by the defendants’

alleged misconduct than was the city: ‘‘[A]ll [of] the

homeowners in Bridgeport who have been deceived

by the defendants’ misleading advertising, all of the

persons who have been assaulted or killed by the misuse

of the handguns, and all of the families of the persons

who committed suicide using those handguns.’’ Id., 359.

In the present case, by contrast, the plaintiffs allege

that the defendants’ wrongful advertising magnified the

lethality of the Sandy Hook massacre by inspiring Lanza

or causing him to select a more efficiently deadly

weapon for his attack. Proving such a causal link at

trial may prove to be a Herculean task.29 But if it can

be proven—and the posture in which this case reaches

us requires that we assume it can30—the link between

the allegedly wrongful conduct and the plaintiffs’ injur-

ies would be far more direct and less attenuated than

in Ganim.

More fundamentally, in this case, unlike in Ganim,

it is the direct victims of gun violence who are challeng-

ing the defendants’ conduct; no private party is better

situated than the plaintiffs to bring the action. A claim

that a defendant’s advertisements unethically promote

illegal conduct is fundamentally different from one

alleging false or misleading advertising. The primary

harm associated with the latter is that a consumer will

rely to his or her detriment on the advertiser’s represen-

tations; it is in the misinformed purchase of the product

or service that the wrong becomes fully manifest. Actual

customers, then, typically will be the parties most

directly and adversely impacted by the alleged wrong.

The gravamen of a wrongful advertising claim, by

contrast, is that an advertisement models or encourages

illegal or unsafe behavior. In such instances, the imme-

diate victims are just as likely to be third parties who

are not customers, whether it be individuals who engage

in inappropriate conduct inspired by the advertisements

or the direct victims of that conduct. For example, when

an especially racy sports car commercial disclaims,

‘‘professional driver, closed course, do not attempt this

at home,’’ the perceived risk is not merely—or even

primarily—that viewers will purchase that particular

vehicle and drive it unsafely as a result of the commer-

cial. Of at least equal concern is the possibility that

noncustomer viewers will emulate the commercial

when driving their own vehicles, violating motor vehicle

laws, and possibly causing injury to themselves or oth-

ers, including passengers or pedestrians.

In the present case, the wrong charged is that the

defendants promoted the use of their civilian assault

rifles for offensive, military style attack missions. The

most directly foreseeable harm associated with such

advertising is that innocent third parties could be shot

as a result. The decedents are the ones who got shot.

If the defendants’ marketing materials did in fact

inspire or intensify the massacre, then there are no

more direct victims than these plaintiffs; nor is there

any customer of the defendants with a better claim to

standing. That is to say, if these plaintiffs cannot test

the legality of the defendants’ advertisements pursuant

to § 42-110g, then no one can. For these reasons, we

conclude that the trial court improperly determined

that the plaintiffs lack standing to assert wrongful death

claims predicated on the defendants’ alleged CUTPA

violations.

B

Statute of Limitations

Having concluded that the plaintiffs have standing to

bring the present action, we must turn our attention to

whether the judgment of the trial court dismissing the

plaintiffs’ action may be affirmed on an alternative

ground. Although its determination that the plaintiffs

lacked standing to bring wrongful death claims predi-

cated on alleged CUTPA violations disposed of the case

before it, the trial court considered, in the interest of

completeness, the defendants’ arguments regarding the

legal sufficiency of the plaintiffs’ CUTPA claims. We

first consider the defendants’ argument that the plain-

tiffs’ claims are time barred because they did not comply

with CUTPA’s three year statute of limitations.

1

Procedural History

The following additional procedural history is rele-

vant to this claim. The complaint alleges that Lanza’s

mother purchased the rifle in question in March, 2010,

and that it was manufactured and distributed sometime

prior to that date. Lanza carried out the Sandy Hook

massacre on December 14, 2012, on which date all of the

decedents died. The plaintiffs delivered their summons

and complaint to a state marshal on December 13, 2014.

The defendants moved to strike the plaintiffs’ wrong-

ful death claims on the theory that those claims are

predicated on underlying CUTPA violations and that

private actions brought pursuant to CUTPA are subject

to a three year statute of limitations. See General Stat-

utes § 42-110g (f).31 They argued that, because all of the

relevant transfers of the rifle occurred no later than

March, 2010, and because the present action was not

initiated until more than four years later, in December,

2014, the plaintiffs’ CUTPA claims are time barred.

The trial court, like the defendants, proceeded on the

theory that the date of the alleged CUTPA violations

was, at the very latest, March, 2010, when the Riverview

defendants sold the rifle to Lanza’s mother. The court

was not persuaded, however, that CUTPA is the control-

ling statute of limitations for purposes of the present

action. Rather, the court emphasized that, although the

plaintiffs’ claims were predicated on a theory of liability

sounding in unfair trade practices, those claims were

brought pursuant to § 52-555, the wrongful death stat-

ute. That statute has its own statute of limitations,

which requires that a wrongful death action ‘‘be brought

. . . within two years from the date of death,’’ and its

own statute of repose, which requires that a wrongful

death action ‘‘be brought [no] more than five years from

the date of the act or omission complained of.’’ General

Statutes § 52-555 (a). Because process was served

within two years of the date of the decedents’ deaths

and within five years of the date on which the rifle was

sold, the court concluded that the action would not be

time barred if the statute of limitations contained in

§ 52-555 (a) controls.

The trial court therefore sought to resolve the appar-

ent conflict between the statutes of limitations con-

tained in §§ 42-110g (f) and 52-555 (a). Relying on the

decision of the Appellate Court in Pellecchia v. Connect-

icut Light & Power Co., 139 Conn. App. 88, 90, 54 A.3d

658 (2012) (adopting trial court’s memorandum of deci-

sion in Pellecchia v. Connecticut Light & Power Co.,

52 Conn. Supp. 435, 54 A.3d 1080 [2011]), cert. denied,

307 Conn. 950, 60 A.3d 740 (2013), the trial court con-

cluded that, when a wrongful death claim is predicated

on an underlying theory of liability that is subject to

its own statute of limitations, it is the wrongful death

statute of limitations that controls. Because the court

concluded that the CUTPA statute of limitations did

not apply, and because the action was brought within

two years of the decedents’ deaths and within five years

of the initial sale of the rifle, the court also concluded

that the plaintiffs’ wrongful death claims were timely.

Accordingly, the court did not have reason to consider

whether the plaintiffs’ claims predicated on a wrongful

advertising theory of liability, which could be premised

on conduct postdating the sale of the rifle, were timely.

2

Legal Principles

Turning to the governing legal principles, we first

consider whether the trial court correctly determined

that, when a wrongful death claim is predicated on an

underlying theory of liability that is subject to its own

statute of limitations, the plaintiffs need only satisfy

the statute of limitations contained in § 52-555 (a). The

trial court was correct that, in the ordinary case, § 52-

555 (a) supplies the controlling statute of limitations

regardless of the underlying theory of liability. This

court applied that rule in Giambozi v. Peters, 127 Conn.

380, 16 A.2d 833 (1940), overruled in part on other

grounds by Foran v. Carangelo, 153 Conn. 356, 216 A.2d

638 (1966), in which the court held that the statute of

limitations of the predecessor wrongful death statute,

rather than the limitations provision applicable to medi-

cal malpractice claims, governed in a wrongful death

action based on malpractice. Id., 385; see also Ecker v.

West Hartford, 205 Conn. 219, 245, 530 A.2d 1056 (1987)

(suggesting that statute of limitations contained in § 52-

555 may control in wrongful death actions predicated

on contract and warranty theories of liability). The legis-

lative history of the 1991 amendments to the wrongful

death statute reflecting the current statutory language;

Public Acts 1991, No. 91-238, § 1; makes clear that

Giambozi continues to accurately reflect the intent of

the legislature in this respect. See 34 H.R. Proc., Pt.

14, 1991 Sess., pp. 5170–72, remarks of Representative

Michael P. Lawlor (expressing view that there would

be cases in which plaintiffs would be able to maintain

wrongful death action under 1991 amendment to § 52-

555 even though statute of limitations applicable to

underlying medical malpractice would have run).

As the defendants emphasize, however, it is well

established that different rules apply to statutes, such

as CUTPA, that create a right of action that did not

exist at common law. See Greco v. United Technologies

Corp., 277 Conn. 337, 345 n.12, 890 A.2d 1269 (2006).

For such statutes, we have said that the limitations

provision ‘‘embodies an essential element of the cause

of action created—a condition attached to the right to

sue at all. The liability and the remedy are created by

the same statutes, and the limitations of the remedy

are, therefore, to be treated as limitations of the right.

. . . It follows that the statutory provision or provisions

prescribing the limitation must be strictly observed if

liability is to attach to the claimed offender. Failure to

show such observance results in a failure to show the

existence of a good cause of action.’’ (Internal quotation

marks omitted.) Blakely v. Danbury Hospital, 323

Conn. 741, 748–49, 150 A.3d 1109 (2016); see also id.,

749 (time limitation is ‘‘essential and integral’’ to exis-

tence of cause of action); Avon Meadow Condominium

Assn., Inc. v. Bank of Boston Connecticut, 50 Conn.

App. 688, 699–700, 719 A.2d 66 (time limitation that is

contained within statute that creates right of action that

did not exist at common law is limitation of liability

itself, and, accordingly, CUTPA statute of limitations is

jurisdictional), cert. denied, 247 Conn. 946, 723 A.2d

320 (1998), and cert. denied, 247 Conn. 946, 723 A.2d

320 (1998).

The plaintiffs respond that, regardless of whether the

statute of limitations contained in § 42-110g (f) amounts

to an essential element of a CUTPA cause of action, it

need not be satisfied in the present case because this

is not a CUTPA action. Rather, their claims are wrongful

death claims, for which CUTPA merely provides the

underlying theory of wrongfulness.

That argument, although perhaps facially attractive,

is precluded by a long line of cases holding that Con-

necticut’s wrongful death statute does not create a new

cause of action, independent of any claims that the

decedent might have had during his or her life. Rather,

the wrongful death statute merely allows the adminis-

trator of an estate to append to an already valid claim

an additional element of damages consisting of costs

associated with the decedent’s death. See, e.g., Sand-

erson v. Steve Snyder Enterprises, Inc., 196 Conn. 134,

149, 491 A.2d 389 (1985); Foran v. Carangelo, supra,

153 Conn. 360; Shaker v. Shaker, 129 Conn. 518, 520–21,

29 A.2d 765 (1942); see also Kling v. Torello, 87 Conn.

301, 305–306, 87 A. 987 (1913). A necessary consequence

of this principle is that a cause of action for wrongful

death predicated on a CUTPA violation will lie only

insofar as the decedent, had he or she survived, could

have satisfied all of the essential elements of the CUTPA

claim. See, e.g., Roque v. United States, 676 F. Supp.

2d 36, 42 (D. Conn. 2009) (plaintiff must prove elements

of negligence claim in wrongful death action predicated

on negligence); Nolan v. Morelli, 154 Conn. 432, 435, 226

A.2d 383 (1967) (plaintiff must establish that decedent

could recover damages under Dram Shop Act in wrong-

ful death action predicated on that statute); see also

Schwarder v. United States, 974 F.2d 1118, 1129 (9th

Cir. 1992) (Alarcon, J., concurring in part and dissenting

in part) (‘‘[a] majority of the state courts that have

considered the question have held that a survivor can-

not bring a wrongful death action if the decedent was

barred from [bringing a claim for his injuries] in his

lifetime, because the wrongful death claim is essentially

derivative of the injury to the decedent’’); W. Keeton

et al., Prosser and Keeton on the Law of Torts (5th Ed.

1984) § 127, p. 955 (‘‘[t]he wrongful death action for

the benefit of survivors is, like other actions based on

injuries to others, derivative in nature, arising out of

and dependent [on] the wrong done to the injured per-

son and thus barred when his claim would be barred’’

[footnote omitted]). It is clear, then, that the plaintiffs’

wrongful death claims must comply not only with the

statute of limitations that governs wrongful death

actions but also with CUTPA’s statute of limitations.

Accordingly, because it is undisputed that the manufac-

ture, distribution, and final sale of the rifle to Lanza’s

mother all occurred at least three years prior to the

commencement of the present action, we conclude that

the trial court should have struck as time barred the

plaintiffs’ wrongful death claims predicated on a theory

that any sale to the civilian market of military style

assault weapons such as the AR-15 represents an unfair

trade practice. Cf. footnote 14 of this opinion.

That determination, however, is not fatal to all of the

plaintiffs’ claims. As we discussed, the plaintiffs also

pleaded, in the alternative, that the defendants violated

CUTPA by advertising and marketing the XM15-E2S in

an unethical, oppressive, immoral, and unscrupulous

manner. Although the complaint does not specifically

allege on what dates or over what period of time such

marketing activities occurred, most of the plaintiffs’

wrongful marketing claims are phrased in the present

tense and, therefore, may be understood to allege that

those activities continued through the time the com-

plaint was filed. In addition, the plaintiffs’ allegation

that Lanza selected the XM15-E2S on the morning of

the assault ‘‘because of its marketed association with

the military’’ reasonably could be interpreted to mean

that such marketing schemes remained in place at the

time of the massacre, during the limitation period.

Accordingly, because we are compelled to construe the

complaint liberally, in the manner most favorable to

sustaining its legal sufficiency, we conclude that, for

present purposes, the plaintiffs’ wrongful advertising

theory is not barred by CUTPA’s statute of limitations.32

C

Connecticut Product Liability Act Preemption

We next consider whether the trial court correctly

determined that § 52-572n (a), the exclusivity provision

of the Product Liability Act, does not bar the plaintiffs’

CUTPA claims. Section 52-572n (a) provides that ‘‘[a]

product liability claim as provided in [the Product Lia-

bility Act] may be asserted and shall be in lieu of all

other claims against product sellers, including actions

of negligence, strict liability and warranty, for harm

caused by a product.’’ The defendants contend that all

of the plaintiffs’ CUTPA claims ultimately boil down

to the argument that the XM15-E2S is unreasonably

dangerous for sale to the civilian market and, therefore,

that manufacturers and distributors of that weapon

should be held strictly liable for any injuries resulting

from its misuse. They contend that this is ‘‘nothing more

than a [P]roduct [L]iability [A]ct claim dressed in the

robes of CUTPA’’; Gerrity v. R.J. Reynolds Tobacco

Co., 263 Conn. 120, 129, 818 A.2d 769 (2003); and that,

pursuant to § 52-572n (a), the Product Liability Act pro-

vides the exclusive remedy. We are not persuaded.

As we have explained, the plaintiffs’ wrongful death

claims are predicated on two distinct theories of unfair

trade practice: (1) the sale of assault rifles such as the

XM15-E2S to the civilian market is inherently unreason-

able and dangerous; and (2) the defendants marketed

and promoted the XM15-E2S in an unethical, oppres-

sive, immoral, and unscrupulous manner. The defen-

dants’ primary argument with respect to the Product

Liability Act relates to the plaintiffs’ first theory of liabil-

ity. Because we have concluded that claims predicated

on the plaintiffs’ first CUTPA based theory of liability

are time barred, however, we need not determine

whether those claims also are precluded by § 52-572n

(a). Cf. footnote 14 of this opinion.

With respect to the plaintiffs’ second theory of liabil-

ity, the defendants fail to offer any explanation as to

why the allegation that they wrongfully marketed the

XM15-E2S by promoting the gun’s use for illegal pur-

poses—offensive, military style assault missions—

amounts to a product defect claim.33 There is no allega-

tion in the present case, for example, that the marketing

for the XM15-E2S contained inadequate warnings that

made the weapon unreasonably dangerous.

The defendants’ sole argument in this regard is their

contention that, in Merrill v. Navegar, Inc., supra, 26

Cal. 4th 465, the California Supreme Court rejected

allegations of wrongful firearms marketing as disguised

product liability claims. We read Merrill differently. It

is true that the California Supreme Court concluded

that many of the negligent marketing and distribution

claims at issue in that case were barred by a California

statute that provided that a gun manufacturer may not

be held liable in a product liability action on the basis

that the benefits of its product fail to outweigh the

product’s risk of injury when discharged. Id., 470; see

Cal. Civ. Code § 1714.4 (a) (Deering 1994) (repealed in

2002). But the claims in Merrill, while dressed in terms

of negligent marketing and distribution, were substan-

tially similar to the claims of the plaintiffs in the present

case, namely, that the sale of assault weapons to the

civilian market is inherently unreasonable because

those weapons have no legitimate civilian purpose. See

Merrill v. Navegar, Inc., supra, 470, 480–81.

The only claims at issue in Merrill that were akin to

the plaintiffs’ immoral advertising claims were their

allegations that Navegar, Inc. (Navegar), a gun manufac-

turer, advertised its semiautomatic assault pistols ‘‘as

tough as your toughest customer’’ and as featuring

‘‘excellent resistance to finger prints,’’ which might have

suggested that the weapons were especially well suited

for criminal use. (Internal quotation marks omitted.)

Id., 471. In holding that the trial court had properly

granted Navegar’s motion for summary judgment with

respect to those ‘‘more inflammatory aspects of Naveg-

ar’s advertising’’; id., 489; however, the California

Supreme Court relied not on the immunity provision

in California’s product liability statute but, rather, on

the facts that (1) the plaintiffs in Merrill expressly disa-

vowed any claims based on the specific content of

Navegar’s advertising; id., 474, 487–88; and (2) there

was no evidence that the shooter in that case ever had

seen, let alone had been inspired by, any of Navegar’s

allegedly inappropriate promotional materials. Id., 471,

473, 488–91. Accordingly, we do not read Merrill as

supporting the defendants’ contention that the wrongful

advertising claims in the present case are merely

masked product defect claims.

The defendants have offered no other arguments as

to why the plaintiffs’ wrongful advertising claims repre-

sent veiled product liability claims. Accordingly, we

conclude that those claims are not precluded by § 52-

572n (a). See Gerrity v. R.J. Reynolds Tobacco Co.,

supra, 263 Conn. 124, 128 (analyzing language of exclu-

sivity provision and concluding that claim that tobacco

companies violated CUTPA by targeting minors with

their cigarette advertising did not allege product defect

and, therefore, was not precluded by Product Liabil-

ity Act).

D

CUTPA Personal Injury Damages

We next consider the defendants’ argument that per-

sonal injuries resulting in death do not give rise to

cognizable damages for purposes of CUTPA.34 As we

explained, an action for wrongful death will lie only if

the deceased, had he or she survived, would have had

a valid claim for the injuries that resulted in death. See

part IV B of this opinion. For that reason, the plaintiffs

can prevail on their CUTPA based wrongful death

claims only if CUTPA permits the recovery of damages

for the decedents’ injuries. As a matter of first impres-

sion, we hold that CUTPA permits recovery for personal

injuries that result directly from wrongful advertising

practices.35

Whether personal injuries give rise to cognizable

CUTPA damages presents a question of statutory inter-

pretation. We begin by setting forth the relevant statu-

tory language. Subsection (a) of § 42-110g contains two

clauses potentially relevant to the issue before us. First,

subsection (a) creates a private right of action for ‘‘[a]ny

person who suffers any ascertainable loss of money or

property, real or personal, as a result of the use or

employment of a method, act or practice prohibited by

section 42-110b . . . .’’ This provision is known as the

ascertainable loss clause. Second, subsection (a) pro-

vides that any person so injured ‘‘may bring an action

. . . to recover actual damages.’’ This provision of sub-

section (a) is known as the actual damages clause.

The view of the plaintiffs is that these two clauses

serve distinct, independent functions within the statute

and that only the actual damages clause restricts the

types of damages that are available. Specifically, they

contend that, although one must suffer some ascertain-

able loss of money or property in order to have standing

to bring a CUTPA action, once the standing require-

ments set by the ascertainable loss clause have been

satisfied, a successful plaintiff may recover not only for

those financial losses but for any and all actual dam-

ages. Relying on DiNapoli v. Cooke, 43 Conn. App. 419,

427, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d

124 (1996), cert. denied, 520 U.S. 1213, 117 S. Ct. 1699,

137 L. Ed. 2d 825 (1997), the plaintiffs further contend

that the term ‘‘actual damages’’ is synonymous with

compensatory or general damages and excludes only

special damages such as nominal and punitive damages.

Certainly, they contend, that term is sufficiently expan-

sive to encompass personal injuries.

The defendants, by contrast, argue that the ascertain-

able loss clause modifies and cabins the meaning of

the actual damages clause. In their view, the fact that

a plaintiff must have suffered some manner of financial

loss to bring a CUTPA action implies that the legislature

intended to limit recovery to damages of that sort. Inso-

far as both of these interpretations of the statutory

language are facially plausible,36 we conclude that the

statute is ambiguous and that we may properly look

to extratextual sources to ascertain the intent of the

legislature. See General Statutes § 1-2z.

The legislative histories of CUTPA and of the model

legislation on which CUTPA is based are largely silent

with respect to the question of personal injury damages.

R. Langer et al., 12 Connecticut Practice Series: Con-

necticut Unfair Trade Practices, Business Torts and

Antitrust (2018–19 Ed.) § 6.7, pp. 849, 851. Nevertheless,

four considerations persuade us that the legislature did

not intend to bar plaintiffs from recovering for personal

injuries resulting from unfair trade practices, at least

under circumstances such as those presented here.

First, although both the plaintiffs’ and the defendants’

interpretations of the statutory language are facially

plausible, the plaintiffs’ reading of § 42-110g (a) is more

reasonable. While the term ‘‘actual damages’’ is not

defined in CUTPA, the term is used in other statutes in

such a manner as to leave no doubt that actual damages

include personal injuries. For example, General Stat-

utes § 53-452 (a) provides in relevant part that ‘‘[a]ny

person whose property or person is injured by [a com-

puter crime committed in violation of] section 53-451

may bring a civil action in the Superior Court to enjoin

further violations and to recover the actual damages

sustained by reason of such violation . . . .’’ (Empha-

sis added.)

In addition, the plaintiffs’ interpretation of the statute

better comports with our analysis in Hinchliffe v. Amer-

ican Motors Corp., supra, 184 Conn. 612–20. In that

case, we considered the closely related question of

whether the ‘‘ascertainable loss’’ requirement means

that a CUTPA plaintiff must be able to prove that he

or she has suffered actual damages in a particular

amount. Id., 612–13. We rejected that reading of the

statute, concluding that the ascertainable loss and

actual damage clauses of § 42-110g (a) serve distinct

purposes and that the legislature did not intend the

term ‘‘ascertainable’’ to modify ‘‘actual damages.’’ Id.,

613–15. We also cited favorably the view of one legal

scholar that ‘‘the only function served by a threshold

‘loss’ requirement in a consumer protection statute is

to guard against vicarious suits by self-constituted attor-

neys general when they spot an apparently deceptive

advertisement in the newspaper, on television or in a

store window.’’ Id., 615 n.6, citing D. Rice, ‘‘New Private

Remedies for Consumers: The Amendment of Chapter

93A,’’ 54 Mass. L.Q. 307, 314 (1969). That view, if correct,

strongly supports the conclusion that the presence of

the ascertainable loss clause in the statute in no way

restricts the damages that are available to plaintiffs who

have been directly and personally injured by an unfair

trade practice.

Second, we frequently have remarked that ‘‘CUTPA’s

coverage is broad and its purpose remedial.’’ (Internal

quotation marks omitted.) Cheshire Mortgage Service,

Inc. v. Montes, 223 Conn. 80, 113–14, 612 A.2d 1130

(1992); see also 12 R. Langer et al., supra, § 2.5, p. 81.

As we explained in part IV A of this opinion, whereas

unfair trade practices such as false advertising and

other forms of commercial deception tend to result

primarily in financial harm, a principal evil associated

with unethical and unscrupulous advertising is that

viewers or innocent third parties will be physically

injured as a result of dangerous or illegal conduct

depicted in the advertisements. See, e.g., Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525, 556–61, 121 S. Ct.

2404, 150 L. Ed. 2d 532 (2001). That is precisely what

the plaintiffs in the present case allege. If personal injur-

ies are not recoverable under those circumstances, then

no recovery will be available for a substantial category

of unfair trade practices, and the threat of private litiga-

tion will not serve as a deterrent to such conduct. That

outcome would be inconsistent with the stated intent of

the legislature to provide broad protection from unfair

trade practices and to incentivize private enforcement

of the law.

Third, it is well established that the legislature

intended that Federal Trade Commission (FTC) rulings

and cases decided under the Federal Trade Commission

Act (FTC Act), 15 U.S.C. § 41 et seq. (2012 and Supp.

V 2017), would ‘‘serve as a lodestar’’ for interpreting

CUTPA’s open-ended language.37 Russell v. Dean Witter

Reynolds, Inc., 200 Conn. 172, 179, 510 A.2d 972 (1986).38

Notably, the FTC itself has construed the FTC Act as

prohibiting practices that are physically dangerous to

consumers. See J. Beales III, ‘‘Advertising to Kids and

the FTC: A Regulatory Retrospective That Advises the

Present,’’ 12 Geo. Mason L. Rev. 873, 876 (2004). In In

re International Harvester Co., 104 F.T.C. 949, 1088

(1984), for example, the FTC held that a manufacturer’s

failure to disclose safety risks associated with fuel gey-

sering in its tractors represented an unfair trade prac-

tice that violated the FTC Act. In reaching this

conclusion, the FTC relied on the fact that fuel gey-

sering is a hazard that creates a substantial risk of injury

or death: ‘‘There clearly has been serious consumer

injury. At least one person has been killed and eleven

others burned. . . . Many of the burn injuries have

been major ones, moreover, resulting in mobility limita-

tions, lasting psychological harm, and severe disfigure-

ment. . . . These injuries are of a kind that satisfies

the . . . unfairness test. It is true that they involve

physical rather than economic injury, but the

[u]nfairness [s]tatement reaches such matters.’’ (Cita-

tions omitted.) Id., 1064; see also In re LabMD, Inc.,

Docket No. 9357, 2016 WL 521327, *12 (F.T.C. January

14, 2016) (‘‘unquantifiable health and safety risks’’ can

give rise to unfair trade practice injuries).

Of particular relevance to the present action, the FTC

has, on multiple occasions, found violations of the FTC

Act when companies have advertised or promoted their

products in a manner that is likely to result in physical

injury, even in the absence of product sales. For exam-

ple, the FTC has required companies to refrain from

advertising that depicts young children operating bicy-

cles and tricycles in an unsafe or unlawful manner; In

re AMF, Inc., 95 F.T.C. 310, 313–14 (1980); advertising

the use of electric hairdryers by children in close prox-

imity to a filled bathroom sink; In re Mego Interna-

tional, Inc., 92 F.T.C. 186, 189–90 (1978); and adver-

tising that depicts children attempting to cook food

without close adult supervision; In re Uncle Ben’s, Inc.,

89 F.T.C. 131, 136 (1977); as well as promotional give-

aways that expose young children to unguarded razor

blades. In re Philip Morris, Inc., 82 F.T.C. 16, 19 (1973).

The FTC concluded that such marketing activities had

the tendency to induce behavior that involves an unrea-

sonable risk of harm to person or property and, there-

fore, constituted unfair trade practices.

In 1997, Federal Trade Commissioner Roscoe B.

Starek III underscored the FTC’s interest in combat-

ing unfair trade practices that may result in physical

injuries to children: ‘‘Although injury must be both sub-

stantial and likely’’ to draw the FTC’s attention, ‘‘unwar-

ranted health or safety risks can suffice.’’ R. Starek

III, ‘‘The ABCs at the FTC: Marketing and Advertis-

ing to Children,’’ Address at the Minnesota Institute

of Legal Education (July 25, 1997), available at

https://www.ftc.gov/public-statements/1997/07/abcs-

ftc-marketing-and-advertising-children (last visited

March 8, 2019). More recently, the FTC has taken an

interest in the marketing of violent movies, songs, and

video games to children. See, e.g., Federal Trade Com-

mission, Report to Congress, ‘‘Marketing Violent Enter-

tainment to Children: A Sixth Follow-up Review of

Industry Practices in the Motion Picture, Music

Recording & Electronic Game Industries (December,

2009), available at 2009 WL 5427633. It is clear, then,

that wrongful advertising that poses a genuine risk of

physical harm falls under the broad purview of the FTC

Act and, by incorporation, CUTPA.

Fourth, we observe that courts in several of our sister

states have concluded that victims of unfair trade prac-

tices may recover for personal injuries. See, e.g., Pope

v. Rollins Protective Services Co., 703 F.2d 197, 203 (5th

Cir. 1983) (applying Texas law); Maurer v. Cerkvenik-

Anderson Travel, Inc., 181 Ariz. 294, 297–98, 890 P.2d

69 (App. 1994); Maillet v. ATF-Davidson Co., 407 Mass.

185, 192, 552 N.E.2d 95 (1990). Although we recognize

that the statutory language at issue in those cases was

not identical to the language at issue in this case, we

nevertheless find it significant that sister courts have

understood personal injuries to fall within the scope of

the harms to which broadly worded consumer protec-

tion statutes are directed. In addition, we note that a

majority of Connecticut trial courts addressing the issue

have concluded that damages for personal injuries can

be recovered under CUTPA. 12 R. Langer et al., supra,

§ 6.7, p. 850. For all of these reasons, we conclude that,

at least with respect to wrongful advertising claims,

personal injuries alleged to have resulted directly from

such advertisements are cognizable under CUTPA.

V

WRONGFUL DEATH AND CUTPA:

ISSUES OF FEDERAL LAW

Having concluded that the plaintiffs have pleaded

legally cognizable CUTPA claims sounding in wrongful

marketing, we next consider whether the trial court

properly determined that PLCAA does not bar the plain-

tiffs’ wrongful death claims. Our review of the federal

statute persuades us that the trial court correctly con-

cluded that CUTPA, as applied to the plaintiffs’ allega-

tions, falls within one of PLCAA’s exceptions.

A

PLCAA Overview

PLCAA generally affords manufacturers and sellers

of firearms39 immunity from civil liability arising from

the criminal or unlawful use of their products by third

parties. 15 U.S.C. §§ 7902 (a) and 7903 (5) (A) (2012).40

Congress carved out six exceptions to this immunity,

pursuant to which firearms sellers may be held liable

for third-party crimes committed with their products.

See 15 U.S.C. § 7903 (5) (A) (2012). The exception at

issue in the present case, the predicate exception; see

footnote 12 of this opinion and accompanying text; per-

mits civil actions alleging that ‘‘a manufacturer or seller

of a [firearm] knowingly violated a State or Federal

statute applicable to the sale or marketing of the [fire-

arm], and the violation was a proximate cause of the

harm for which relief is sought . . . .’’ 15 U.S.C. § 7903

(5) (A) (iii) (2012). The question presented by this

appeal is whether CUTPA qualifies as such a predicate

statute, that is, a ‘‘statute applicable to the sale or mar-

keting of [firearms] . . . .’’ (Emphasis added.) 15

U.S.C. § 7903 (5) (A) (iii) (2012). The answer to this

question necessarily hinges on the meaning and scope

of the statutory term ‘‘applicable.’’ See Ileto v. Glock,

Inc., 565 F.3d 1126, 1133 (9th Cir. 2009), cert. denied,

560 U.S. 924, 130 S. Ct. 3320, 176 L. Ed. 2d 1219 (2010).

‘‘[W]e begin by setting forth the rules and principles

that govern our interpretation of federal law. With

respect to the construction and application of federal

statutes, principles of comity and consistency require

us to follow the plain meaning rule . . . .’’ (Internal

quotation marks omitted.) CCT Communications, Inc.

v. Zone Telecom, Inc., 327 Conn. 114, 140, 172 A.3d

1228 (2017). ‘‘Under the [federal] plain meaning rule,

[l]egislative history and other tools of interpretation

may be relied [on] only if the terms of the statute are

ambiguous.’’ (Internal quotation marks omitted.) Web-

ster Bank v. Oakley, 265 Conn. 539, 555, 830 A.2d 139

(2003), cert. denied, 541 U.S. 903, 124 S. Ct. 1603, 158

L. Ed. 2d 244 (2004). ‘‘If the text of a statute is ambigu-

ous, then we must construct an interpretation consis-

tent with the primary purpose of the statute as a whole.

. . . Thus, our interpretive process will begin by inquir-

ing whether the plain language of [the] statute, when

given its ordinary, common meaning . . . is ambigu-

ous.’’ (Citations omitted; internal quotation marks omit-

ted.) Id., 555–56. In assessing ambiguity, the meaning

of the statute must be evaluated not only by reference

to the language itself but also in the specific context

in which that language is used, as well as in the broader

context of the statute as a whole. New York v. Beretta

U.S.A. Corp., 524 F.3d 384, 400 (2d Cir. 2008), cert.

denied, 556 U.S. 1104, 129 S. Ct. 1579, 173 L. Ed. 2d

675 (2009).

B

The Plain Language of the Statute

Both the plaintiffs and the defendants contend that

the plain language of the predicate exception, read in

the context of the broader statute, unambiguously

favors their position. In this part of the opinion, we

explain why the plaintiffs’ interpretation of the statutory

language is plainly the more reasonable one. We con-

sider the text of the predicate exception itself, the

broader statutory framework, the congressional state-

ment of findings and purposes, and the defendants’

argument that treating CUTPA as a predicate statute

would lead to absurd results.

Although we agree with the plaintiffs that their read-

ing of the statutory language is the better one, we recog-

nize that the defendants’ interpretation is not implau-

sible. Therefore, in part V C of the opinion, we also

review various extrinsic sources of congressional intent

to resolve any ambiguities. Our review of both the statu-

tory language and these extrinsic sources persuades us

that Congress did not mean to preclude actions alleging

that firearms companies violated state consumer pro-

tection laws by promoting their weapons for illegal,

criminal purposes.

1

The Predicate Exception

When construing a federal law in which key terms

are undefined, we begin with the ordinary, dictionary

meaning of the statutory language. See, e.g., Maslenjak

v. United States, U.S. , 137 S. Ct. 1918, 1924,

198 L. Ed. 2d 460 (2017). Looking to dictionaries that

were in print around the time PLCAA was enacted,

we find that the principal definition of ‘‘applicable’’ is

simply ‘‘[c]apable of being applied . . . .’’ Black’s Law

Dictionary (10th Ed. 2014) p. 120; accord Webster’s

Third New International Dictionary (2002) p. 105.

If Congress had intended to create an exception to

PLCAA for actions alleging a violation of any law that

is capable of being applied to the sale and marketing

of firearms, then there is little doubt that state consumer

protection statutes such as CUTPA would qualify as

predicate statutes. CUTPA prohibits ‘‘unfair methods

of competition and unfair or deceptive acts or practices

in the conduct of any trade or commerce.’’ (Emphasis

added.) General Statutes § 42-110b (a). Accordingly, the

statute clearly is capable of being applied to the sale

and marketing of firearms. The only state appellate

court to have reviewed the predicate exception con-

strued it in this manner; see Smith & Wesson Corp. v.

Gary, 875 N.E.2d 422, 431, 434–35 and n.12 (Ind. App.

2007) (predicate exception unambiguously applies to

any state law capable of being applied to sale or market-

ing of firearms), transfer denied, 915 N.E. 978 (Ind.

2009).

It is true that secondary dictionary definitions of

‘‘applicable’’ might support a narrower reading of the

predicate exception. Webster’s Third New International

Dictionary, for example, also defines ‘‘applicable’’ as

‘‘fit, suitable, or right to be applied: appropriate . . .

relevant . . . .’’ Webster’s Third New International Dic-

tionary, supra, p. 105. Pursuant to such definitions, the

Ninth Circuit concluded, it would not be unreasonable

to read PLCAA to exempt only those state laws that

are exclusively relevant to the sale or marketing of

firearms. See Ileto v. Glock, Inc., supra, 565 F.3d 1134.

If Congress had intended to limit the scope of the

predicate exception to violations of statutes that are

directly, expressly, or exclusively applicable to fire-

arms, however, it easily could have used such language,

as it has on other occasions.41 The fact that the drafters

opted instead to use only the term ‘‘applicable,’’ which

is susceptible to a broad reading, further supports the

plaintiffs’ interpretation. See, e.g., Scholastic Book

Clubs, Inc. v. Commissioner of Revenue Services, 304

Conn. 204, 219, 38 A.3d 1183 (‘‘the legislature knows

how to . . . use broader or limiting terms when it

chooses to do so’’ [citation omitted]), cert. denied, 568

U.S. 940, 133 S. Ct. 425, 184 L. Ed. 2d 255 (2012).

2

The Statutory Framework

In construing the predicate exception, we also must

consider the broader statutory framework. The plain-

tiffs’ contention that CUTPA qualifies as a predicate

statute as applied to their wrongful marketing claims

finds additional support in the repeated statutory refer-

ences to laws that govern the marketing of firearms.

There is no doubt that statutes that govern the adver-

tising and marketing of firearms potentially qualify as

predicate statutes. The predicate exception expressly

provides that the ‘‘qualified civil liability actions’’ from

which firearms sellers are immune shall not include ‘‘an

action in which a manufacturer or seller of a [firearm]

knowingly violated a State or Federal statute applicable

to the sale or marketing of the [firearm] . . . .’’42

(Emphasis added.) 15 U.S.C. § 7903 (5) (A) (iii) (2012).

Importantly, however, at the time PLCAA was

enacted, no federal statutes directly or specifically regu-

lated the marketing or advertising of firearms. In addi-

tion, only a handful of states have enacted firearm

specific laws that address in any way the marketing

function, and none of those purports to comprehen-

sively regulate the advertising of firearms.43 It would

have made little sense for the drafters of the legislation

to carve out an exception for violations of laws applica-

ble to the marketing of firearms if no such laws existed.44

If Congress intended the predicate exception to

encompass laws that prohibit the wrongful marketing

of firearms, and if no laws expressly and directly do

so, then the only logical reading of the statute is that

Congress had some other type of law in mind. What

type? At both the federal and state levels, false, decep-

tive, and other forms of wrongful advertising are regu-

lated principally through unfair trade practice laws such

as the FTC Act and its state analogues.45 We must pre-

sume that Congress was aware, when it enacted PLCAA,

that both the FTC Act and state analogues such as

CUTPA have long been among the primary vehicles for

litigating claims that sellers of potentially dangerous

products such as firearms have marketed those prod-

ucts in an unsafe and unscrupulous manner. See Good-

year Atomic Corp. v. Miller, 486 U.S. 174, 185, 108 S.

Ct. 1704, 100 L. Ed. 2d 158 (1988) (Congress is presump-

tively knowledgeable about pertinent federal and state

law). CUTPA, for example, has long been construed to

incorporate the FTC’s traditional ‘‘cigarette rule,’’ which

prohibits as unfair advertising that is, among other

things, ‘‘immoral, unethical, oppressive and unscrupu-

lous.’’46 Ivey, Barnum & O’Mara v. Indian Harbor Prop-

erties, Inc., 190 Conn. 528, 539 and n.13, 461 A.2d

1369 (1983).

Reading the predicate exception to encompass

actions brought to remedy illegal and unscrupulous

marketing practices under state consumer protection

laws is consistent with the approach followed by the

United States Court of Appeals for the Second Circuit,

whose decisions ‘‘carry particularly persuasive weight

in the interpretation of federal statutes by Connecticut

state courts.’’ (Internal quotation marks omitted.) CCT

Communications, Inc. v. Zone Telecom, Inc., supra,

327 Conn. 140. In New York v. Beretta U.S.A. Corp.,

supra, 524 F.3d 384, the Second Circuit considered

whether PLCAA barred the municipal plaintiffs’ action

alleging that distribution practices of the defendant fire-

arms manufactures and sellers violated a New York

criminal nuisance statute; see N.Y. Penal Law § 240.45

(McKinney 2008); by marketing guns to legitimate buy-

ers with the knowledge that those guns will be diverted

into illegal markets. See New York v. Beretta U.S.A.

Corp., supra, 389–90. The court concluded that the

action should have been dismissed because the nui-

sance statute was a law of general applicability that

had never been applied to the firearms trade and simply

did not ‘‘encompass the conduct of firearms manufac-

turers of which the [municipal plaintiffs] complain[ed].’’

Id., 400. Notably, in reaching that conclusion, the Sec-

ond Circuit held that the predicate exception encom-

passes not only laws that expressly regulate commerce

in firearms but also those that ‘‘clearly can be said to

implicate the purchase and sale of firearms,’’ as well

as laws of general applicability that ‘‘courts have applied

to the sale and marketing of firearms . . . .’’47 Id., 404.

CUTPA falls squarely into both of these categories.

Statutes such as the FTC Act and state analogues

that prohibit the wrongful marketing of dangerous con-

sumer products such as firearms represent precisely the

types of statutes that implicate and have been applied

to the sale and marketing of firearms. In the early 1970s,

for example, the FTC entered into consent decrees with

three firearms sellers relating to allegations that they

had precluded their dealers from advertising their guns

at lower than established retail prices.48 A few years

later, the FTC ordered Emdeko International, Inc., a

marketing company, to refrain from predatory and mis-

leading advertising regarding various consumer prod-

ucts, including firearms. See In re National House-

wares, Inc., 90 F.T.C. 512, 580–81 (1977).

CUTPA also has been applied to the sale of firearms.

For example, in Salomonson v. Billistics, Inc., Superior

Court, Judicial District of New London, Docket No. CV-

88-508292 (September 27, 1991), the plaintiff prevailed

on his claim that the defendant gun dealer’s sales prac-

tices relating to the sale of a Ruger pistol and three

remanufactured semiautomatic rifles violated CUTPA.49

Id. The court specifically found that the defendant’s

conduct was ‘‘oppressive’’ and, therefore, violated the

second prong of the cigarette rule, the same standard

at issue in the present case. Id.

Equally important, regulation of firearms advertising

in our sister states frequently has been accomplished

under the auspices of state consumer protection and

unfair trade practice laws.50 It is clear, therefore, that

consumer protection statutes such as CUTPA long have

been an established mechanism for regulating the mar-

keting and advertising schemes of firearms vendors.

The FTC Act and its various state analogues also have

been applied in numerous instances to the wrongful

marketing of other potentially dangerous consumer

products, especially with respect to advertisements that

promote unsafe or illegal conduct.51 See S. Calkins,

‘‘FTC Unfairness: An Essay,’’ 46 Wayne L. Rev. 1935,

1962, 1974 (2000). Although Congress temporarily cur-

tailed the FTC’s authority to regulate unfair commercial

advertising in 1980, that authority was reinstated in

1994. Id., 1954–55.

Subsequently, just a few years before Congress began

considering predecessor legislation to PLCAA, the FTC

entered into a new consent decree addressing wrongful

advertising. In In re Beck’s North America, Inc., Docket

No. C-3859, 1999 FTC LEXIS 40 (F.T.C. March 25, 1999),

the commission prohibited the publication of advertise-

ments that portrayed young adult passengers consum-

ing alcohol while sailing, in a manner that was unsafe

and depicted activities that ‘‘may also violate federal

and state boating safety laws.’’ Id., *2. The consent

decree prohibited the ‘‘future dissemination . . . of

any . . . advertisement that . . . depicts activities

that would violate [federal laws that make] it illegal to

operate a vessel under the influence of alcohol or illegal

drugs.’’ (Citations omitted.) In re Beck’s North America,

Inc., File No. 982-3092, 1998 FTC LEXIS 83, *15–16

(F.T.C. August 6, 1998). More generally, the FTC cau-

tioned that it ‘‘ha[d] substantial concern about advertis-

ing that depicts conduct that poses a high risk to health

and safety. As a result, the [FTC] will closely scrutinize

such advertisements in the future.’’ Id., *15.52

Because Congress clearly intended that laws govern-

ing the marketing of firearms would qualify as predicate

statutes, and because Congress is presumed to be aware

that the wrongful marketing of dangerous items such

as firearms for unsafe or illegal purposes traditionally

has been and continues to be regulated primarily by

consumer protection and unfair trade practice laws

rather than by firearms specific statutes, we conclude

that the most reasonable reading of the statutory frame-

work, in light of the decision of the Second Circuit in

New York v. Beretta U.S.A. Corp., supra, 524 F.3d 384,

is that laws such as CUTPA qualify as predicate statutes,

insofar as they apply to wrongful advertising claims.53

3

The Statement of Findings and Purposes

When it drafted PLCAA, Congress included a state-

ment of findings and purposes. See 15 U.S.C. § 7901

(2012). In his dissenting opinion, Justice Robinson reads

this statement to support the position of the defendants.

On balance, however, we conclude, for the following

reasons, that the congressional findings and purposes

also lend support to the plaintiffs’ interpretation of

the statute.

First, Title 15 of the 2012 edition of the United States

Code, § 7901 (a) (4), provides that ‘‘[t]he manufacture,

importation, possession, sale, and use of firearms and

ammunition in the United States are heavily regulated

by Federal, State, and local laws . . . [s]uch [as] . . .

the Gun Control Act of 1968, the National Firearms Act

. . . and the Arms Export Control Act . . . .’’ (Cita-

tions omitted; emphasis added.) Notably, this provision,

which expressly references various firearms specific

laws, makes no mention of the marketing function. By

contrast, the very next finding expressly references the

‘‘lawful . . . marketing . . . of firearms . . . .’’54 15

U.S.C. § 7901 (a) (5) (2012). Reading these two findings

in concert, it is clear that Congress chose not to abro-

gate the well established duty of firearms sellers to

market their wares legally and responsibly, even though

no federal laws specifically govern the marketing of

firearms.

Second, although the findings indicate that Congress

sought to immunize the firearms industry from liability

for third-party criminal conduct, they emphasize that

that immunity extended only to ‘‘harm that is solely

caused by others . . . .’’ (Emphasis added.) 15 U.S.C.

§ 7901 (a) (6) (2012); see also 15 U.S.C. § 7901 (b) (1)

(2012) (principal purpose of PLCAA is to prohibit

causes of action ‘‘for the harm solely caused by the

criminal or unlawful misuse of firearm products’’

[emphasis added]); Ileto v. Glock, Inc., supra, 565 F.3d

1158 (Berzon, J., concurring in part and dissenting in

part) (same). The statement of findings and purposes

further provides that the purpose of PLCAA is ‘‘[t]o

preserve a citizen’s access to a supply of firearms and

ammunition for all lawful purposes, including hunting,

self-defense, collecting, and competitive or recreational

shooting.’’ (Emphasis added.) 15 U.S.C. § 7901 (b) (2)

(2012). In the present case, the plaintiffs allege that the

defendants illegally marketed the XM15-E2S by promot-

ing its criminal use for offensive civilian assaults, and

that this wrongful advertising was a direct cause of the

Sandy Hook massacre. At no time and in no way does

the congressional statement indicate that firearm sell-

ers should evade liability for the injuries that result if

they promote the illegal use of their products.

Third, the findings make clear that Congress sought

to preclude only novel civil actions that are ‘‘based on

theories without foundation in hundreds of years of the

common law and jurisprudence of the United States

and do not represent a bona fide expansion of the com-

mon law,’’ recognition of which ‘‘would expand civil

liability in a manner never contemplated . . . by Con-

gress . . . or by the legislatures of the several States.’’

15 U.S.C. § 7901 (a) (7) (2012). As we previously dis-

cussed, however, it is well established that the FTC Act

and state analogues such as CUTPA not only govern the

marketing of firearms, but also prohibit advertisements

that promote or model the unsafe or illegal use of poten-

tially dangerous products. Accordingly, there is simply

no reason to think that the present action represents the

sort of novel civil action that Congress sought to bar.55

The dissent relies on one other provision of the state-

ment of findings and purposes that purportedly disquali-

fies CUTPA, as applied to the plaintiffs’ wrongful

marketing theory, as a potential predicate statute. Spe-

cifically, the statement emphasizes the importance of

preserving the rights enshrined in the second amend-

ment to the United States constitution. See 15 U.S.C.

§ 7901 (a) (1), (2) and (6) (2012).

There is no doubt that congressional supporters of

PLCAA were committed to Americans’ second amend-

ment freedoms and sought to secure those freedoms

by immunizing firearms companies from frivolous law-

suits. It is not at all clear, however, that the second

amendment’s protections even extend to the types of

quasi-military, semiautomatic assault rifles at issue in

the present case. See District of Columbia v. Heller,

554 U.S. 570, 627, 128 S. Ct. 2783, 171 L. Ed. 2d 637

(2008) (indicating that second amendment’s protection

does not extend to ‘‘ ‘dangerous and unusual weapons’ ’’

and, therefore, that M16s and related military style rifles

may be banned); Kolbe v. Hogan, 849 F.3d 114, 143 (4th

Cir.) (reading Heller to mean that second amendment

does not protect right to possess assault weapons fea-

turing high capacity magazines, such as AR-15), cert.

denied, U.S. , 138 S. Ct. 469, 199 L. Ed. 2d 374

(2017); New York State Rifle & Pistol Assn., Inc. v.

Cuomo, 804 F.3d 242, 257 (2d Cir. 2015) (assuming for

sake of argument that second amendment does apply

to semiautomatic assault weapons such as AR-15 but

upholding outright prohibitions against civilian owner-

ship of such weapons), cert. denied sub nom. Shew v.

Malloy, U.S. , 136 S. Ct. 2486, 195 L. Ed. 2d 822

(2016); see also Friedman v. Highland Park, 784 F.3d

406, 410–12 (7th Cir.), cert. denied, U.S. , 136 S.

Ct. 447, 193 L. Ed. 2d 483 (2015); Fyock v. Sunnyvale,

779 F.3d 991, 999 (9th Cir. 2015); Heller v. District of

Columbia, 670 F.3d 1244, 1261 (D.C. Cir. 2011). Accord-

ingly, we conclude that, on balance, PLCAA’s statement

of findings and purposes also bears out the plaintiffs’

interpretation of the statute, namely, that illegal market-

ing is not protected.56

4

Absurd Result

We next address the defendants’ argument that con-

struing a statute of general applicability such as CUTPA

to be a predicate statute would lead to an absurd result.

As one judge has articulated, ‘‘the predicate exception

cannot possibly encompass every statute that might be

‘capable of being applied’ to the sale or manufacture

of firearms; if it did, the exception would swallow the

rule, and no civil lawsuits would ever be subject to

dismissal under . . . PLCAA.’’ (Emphasis omitted.)

Ileto v. Glock, Inc., supra, 565 F.3d 1155 (Berzon, J.,

concurring in part and dissenting in part).

Of course, to surmount PLCAA immunity via the pred-

icate exception, there must be at least a colorable claim

that a defendant has, in fact, violated some statute,

resulting in harm to the plaintiff. Accordingly, Judge

Berzon’s argument appears to be predicated on the

assumptions that (1) most states have public nuisance

statutes or similar laws, such as the California nuisance

statutes at issue in Ileto, and (2) virtually any action

seeking to hold firearms sellers liable for third-party

gun violence could allege a colorable violation of those

statutes because the mere act of selling the weapons

involved might be deemed to create a public nuisance.

We will assume, without deciding, that Judge Berzon

is correct that, as a general matter, the predicate excep-

tion cannot be so expansive as to fully encompass laws

such as public nuisance statutes insofar as those laws

reasonably might be implicated in any civil action aris-

ing from gun violence.57 Although we believe that the

plaintiffs’ primary allegations—that any sale of assault

weapons to the civilian market constitutes an unfair

trade practice—would falter on this shoal, we need not

address that issue more fully in light of our determina-

tion that those allegations are time barred. See part IV

B of this opinion. What is clear, however, is that the

plaintiffs’ wrongful marketing allegations may proceed

without crippling PLCAA. Those claims allege only that

one specific family of firearms sellers advertised one

particular line of assault weapons in a uniquely unscru-

pulous manner, promoting their suitability for illegal,

offensive assaults. As we have stated throughout this

opinion, we do not know whether the plaintiffs will be

able to prove those allegations to a jury. But we are

confident that this sort of specific, narrowly framed

wrongful marketing claim alleges precisely the sort of

illegal conduct that Congress did not intend to immu-

nize. For this reason, CUTPA’s prohibition against such

conduct appears to fall squarely within the predicate

exception and does not lead to an absurd result.

C

Extrinsic Evidence of Congressional Intent

Other courts that have construed the predicate excep-

tion are divided as to whether the exception unambigu-

ously encompasses laws, such as CUTPA, that do not

expressly regulate firearms sales and marketing but are

nevertheless capable of being and have been applied

thereto. Compare Ileto v. Glock, Inc., supra, 565 F.3d

1133–35 (predicate exception is ambiguous), and New

York v. Beretta U.S.A. Corp., supra, 524 F.3d 401 (same),

with Smith & Wesson Corp. v. Gary, 875 N.E.2d 422,

431, 434 and n.12 (predicate exception unambiguously

applies), and New York v. Beretta U.S.A. Corp., supra,

405–407 (Katzmann, J., dissenting) (same). In part V B

of this opinion, we explained why the plain text of 15

U.S.C. § 7903 (5) (A) (iii) strongly suggests that CUTPA,

as applied to the plaintiffs’ claims, qualifies as a predi-

cate statute. In this part, we explain why extrinsic indi-

cia of congressional intent support the same conclu-

sion. These indicia include canons of statutory con-

struction, closely related legislation, and the legislative

history of PLCAA.

1

Canons of Statutory Construction

Under the law of the Second Circuit, if the plain

language of a statute is ambiguous, we then consider

whether any ambiguities may be resolved by the appli-

cation of canons of statutory construction and, failing

that, through review of the legislative history. E.g.,

United States v. Rowland, 826 F.3d 100, 108 (2d Cir.

2016), cert. denied, U.S. , 137 S. Ct. 1330, 197

L. Ed. 2d 517 (2017). In the present case, three canons

of construction are potentially relevant.

a

Clear Statement Requirement

We begin with the well established canon that a fed-

eral law is not to be construed to have superseded the

historic police powers of the states unless that was the

clearly expressed and manifest purpose of Congress.

E.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516,

112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992); Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91

L. Ed. 1447 (1947); Federal Housing Finance Agency

v. Nomura Holding America, Inc., 873 F.3d 85, 112 n.30

(2d Cir. 2017), cert. denied, U.S. , 138 S. Ct. 2679,

201 L. Ed. 2d 1073 (2018), and cert. denied sub nom.

Findlay v. Federal Housing Finance Agency, U.S.

, 138 S. Ct. 2697, 201 L. Ed. 2d 1073 (2018). The

regulation of advertising that threatens the public

health, safety, and morals has long been considered a

core exercise of the states’ police powers. See, e.g.,

Altria Group, Inc. v. Good, 555 U.S. 70, 77, 129 S. Ct.

538, 172 L. Ed. 2d 398 (2008); Semler v. Oregon State

Board of Dental Examiners, 294 U.S. 608, 611–12, 55

S. Ct. 570, 79 L. Ed. 1086 (1935); Varney & Green v.

Williams, 155 Cal. 318, 321, 100 P. 867 (1909), overruled

in part on other grounds by Metromedia, Inc. v. San

Diego, 26 Cal. 3d 848, 610 P.2d 407, 164 Cal. Rptr. 510

(1980); State v. Certain Contraceptive Materials, 7

Conn. Supp. 264, 277–78 (1939), rev’d on other grounds,

126 Conn. 428, 11 A.2d 863 (1940). Accordingly, we will

find the plaintiffs’ CUTPA action to be superseded by

PLCAA only if that is the clearly expressed intent of

Congress.58

In the case of PLCAA, there is no indication in the

statutory text or statement of findings and purposes

that Congress intended to restrict the power of the

states to regulate wrongful advertising, particularly

advertising that encourages consumers to engage in

egregious criminal conduct. Indeed, sponsors of the

legislation repeatedly emphasized during the legislative

hearings that they did not intend to abrogate well estab-

lished legal principles.59 Accordingly, in the absence of

a clear statement in the statutory text or legislative

history that Congress intended to supersede the states’

traditional authority to regulate the wrongful advertis-

ing of dangerous products such as firearms, we are

compelled to resolve any textual ambiguities in favor

of the plaintiffs.

b

Ejusdem Generis

The defendants contend that a different canon of

construction, namely, ejusdem generis, essentially

resolves any statutory ambiguity in their favor. Specifi-

cally, from the fact that PLCAA provides two examples

of predicate federal statutes, both of which specifically

relate to firearms, the defendants infer that all predicate

statutes must be of that same ilk.60 We are not per-

suaded.

When it drafted the predicate exception, Congress

set forth two examples of statutes that are applicable

to the sale or marketing of firearms. PLCAA provides

that entities engaged in the firearms business are not

immune from liability with respect to ‘‘an action in

which a manufacturer or seller of a [firearm] knowingly

violated a State or Federal statute applicable to the sale

or marketing of the [firearm] . . . including—

‘‘(I) any case in which the manufacturer or seller

knowingly made any false entry in, or failed to make

appropriate entry in, any record required to be kept

under Federal or State law with respect to the [firearm],

or aided, abetted, or conspired with any person in mak-

ing any false or fictitious oral or written statement with

respect to any fact material to the lawfulness of the

sale or other disposition of a [firearm]; or

‘‘(II) any case in which the manufacturer or seller

aided, abetted, or conspired with any other person to

sell or otherwise dispose of a [firearm], knowing, or

having reasonable cause to believe, that the actual

buyer of the [firearm] was prohibited from possessing

or receiving a firearm . . . under subsection (g) or (n)

of section 922 of title 18 [of the United States Code]

. . . .’’61 15 U.S.C. § 7903 (5) (A) (iii) (2012) (setting

forth record keeping and unlawful buyer exceptions).

The defendants argue that we can discern the scope

of the predicate exception by applying ejusdem generis.

That canon applies when a statute sets forth a general

category of persons or things and then enumerates spe-

cific examples thereof. In those cases, when the scope

of the general category is unclear, a presumption, albeit

a rebuttable one, may arise that the general category

encompasses only things similar in nature to the spe-

cific examples that follow. See, e.g., 2A N. Singer & S.

Singer, Statutes and Statutory Construction (7th Ed.

2014) § 47:17, pp. 364–68. Several courts have acknowl-

edged the potential relevance of the canon when con-

struing the predicate exception. See, e.g., New York v.

Beretta U.S.A. Corp., supra, 524 F.3d 401–402.

It is well established, however, that ejusdem generis,

like other canons of construction, is merely a tool to

assist us in gleaning the intent of Congress; it should

not be applied in the face of a contrary manifestation

of legislative intent. Helvering v. Stockholms Enskilda

Bank, 293 U.S. 84, 88–89, 55 S. Ct. 50, 79 L. Ed. 211

(1934); 2A N. Singer & S. Singer, supra, § 47:22, pp.

400–404. This is particularly true, for example, when

the legislative history of a statute reveals a contrary

intent. See 2A N. Singer & S. Singer, supra, § 47:22,

pp. 404–405.

In the case of PLCAA, the legislative history of the

statute makes clear why Congress specifically chose to

include the record keeping and unlawful buyer excep-

tions when drafting the final version of the predicate

exception. Bills substantially similar to PLCAA had

been introduced in both the 107th Congress and the

108th Congress. See S. 1805, 108th Cong. (2003), H.R.

1036, 108th Cong. (2003); H.R. 2037, 107th Cong. (2001).

Those bills contained the same exemption for ‘‘State

or Federal statute[s] applicable to the sale or marketing

of [firearms]’’ that ultimately was codified at 15 U.S.C.

§ 7903 (5) (A) (iii). H.R. 2037, supra, § 4; accord S. 1805,

supra, § 4; H.R. 1036, supra, § 4. Notably, however, they

did not include the record keeping or the unlawful buyer

exception. Indeed, they did not offer any specific exam-

ples of predicate statutes.

The legislative history indicates that the record keep-

ing and unlawful buyer illustrations were added to the

bill that became law during the 109th Congress not to

define or clarify the narrow scope of the exception but,

rather, because, in 2002, two snipers had terrorized the

District of Columbia and surrounding areas. One of the

snipers allegedly stole a Bushmaster XM-15 semiauto-

matic rifle identical or similar to the one at issue in the

present case from a gun dealer with a history of lax

inventory control procedures.62 In 2003, the families of

the victims of the sniper attacks brought a civil action

against the gun dealer that ultimately resulted in a $2.5

million settlement.63 During the legislative debates,

many of the members who spoke in opposition to the

bill that ultimately became PLCAA argued that the bill

would have prevented victims of the sniper attacks from

bringing an action against that gun dealer, even though

the dealer’s carelessness had allowed the snipers to

obtain the assault weapon.64 Indeed, it was in part for

that very reason, and the public outcry over the sniper

attacks, that prior versions of the bill failed to pass.65

To deflect these potent political attacks, the author

and other supporters of the 2005 incarnation of the bill

pointed to the recently added record keeping and illegal

buyer exception language as evidence that victims of

the sniper attacks would not have been barred from

pursuing their action under the predicate exception.66

Indeed, several legislators strongly suggested that these

examples of predicate statutes were specifically added

to PLCAA to make clear that the lawsuits arising from

the sniper attacks would not have been barred by

PLCAA.67

The most reasonable interpretation of this legislative

history, then, is that the record keeping and unlawful

buyer illustrations were included in the final version of

PLCAA not in an effort to define, clarify, or narrow the

universe of laws that qualify as predicate statutes but,

rather, simply to stave off the politically potent attack

that PLCAA would have barred lawsuits like the one

that had arisen from the widely reported Beltway sniper

attacks. There is no other plausible explanation for

why Congress chose to modify the predicate exception

language contained in the 2001 and 2003 bills, which

otherwise was ‘‘virtually identical’’ to the language in

PLCAA. 151 Cong. Rec. 2561 (2005), remarks of Senator

Larry Edwin Craig; see also id., 18,096, remarks of Sena-

tor Craig (indicating that bill is same for all intents and

purposes as version introduced during 108th Congress,

with addition of clarifying examples).

This conclusion is bolstered by the fact that Congress

was fully aware that there are many types of federal

statutes and regulations, filling ‘‘hundreds of pages,’’

that specifically govern the firearms industry. 151 Cong.

Rec. 18,059 (2005), remarks of Senator Thomas Allen

Coburn. Indeed, 18 U.S.C. § 922 is dedicated to delineat-

ing dozens of different unlawful acts relating to the

production, distribution, and sale of firearms. Congress

could have simply identified 18 U.S.C. § 922, or the

other federal firearms laws to which Senator Coburn

alluded, as examples of predicate statutes. Instead, the

author of PLCAA opted to highlight only the two specific

subsections of 18 U.S.C. § 922—subsection (g) and

(n)—that would have barred the Beltway snipers from

obtaining the weapon used in the shootings.

Under similar circumstances, when it is clear that

examples have been included in a statute for purposes

of emphasis or in response to recent, high profile events,

rather than to restrict the scope of coverage, both the

United States Supreme Court and the lower federal

courts have declined to apply canons, including ejus-

dem generis, to construe a statutory provision overly

narrowly.68 For similar reasons, we conclude that the

ejusdem generis canon is not applicable to the predi-

cate exception.

c

Statutory Exceptions To Be Construed Narrowly

Citing Commissioner of Internal Revenue v. Clark,

489 U.S. 726, 739, 109 S. Ct. 1455, 103 L. Ed. 2d 753

(1989), the defendants rely on another canon, con-

tending that the predicate exception, like other statu-

tory exceptions, must be construed narrowly to pre-

serve the pr

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