# Soto v. Bushmaster Firearms International, LLC

> Supreme Court of Connecticut · March 19, 2019 · 331 Conn. 53

URL: https://www.frixlaw.com/law-library/cases/4377353

## Case

- **Full name:** Donna L. SOTO, Administratrix (Estate of Victoria L. Soto), Et Al. v. BUSHMASTER FIREARMS INTERNATIONAL, LLC, Et Al.
- **Court:** Supreme Court of Connecticut
- **Decided:** March 19, 2019
- **Citations:** 331 Conn. 53; 202 A.3d 262
- **Precedential status:** Published
- **Opinion:** Opinion by Palmer
- **Judges:** Palmer
- **Cited by:** 59 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4377353

## How later opinions describe it (automated extraction)

- holding that the plaintiffs had failed to plead a legally sufficient cause of action for negligent entrustment under Connecticut law and that the plaintiffs’ action thus could not proceed under the PLCAA’s negligent-entrustment exception
- holding 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.”
- rejecting Defendant’s argument that a statute must explicitly prohibit the sale or marketing of firearms to qualify as a predicate statute: “It is clear, therefore, that consumer protection statutes such as the [Connecticut Unfair Trade Practices Act] long have been an establi…
- finding no indication in the text of the Act that Congress intended to restrict the power of the states to regulate wrongful advertising
- explaining that wrongful death statute does not create new cause of action and acknowledging derivative nature of wrongful death action

## Opinion text

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4377353. Public record. Not legal advice.