Gun Ruling Could Also Imperil Other Products; Suits Over Everything From Fast Food to Off-Road Vehicles Now OK in Connecticut
WASHINGTON, D.C. (March 14, 2019) – The Connecticut Supreme Court’s ruling today that a gun manufacturer could be liable – because of the marketing appeals it used – for deaths and injuries caused by a deranged gunman could open the doors to similar massive liability for other industries where the legal cases would probably be much stronger, argues public interest law professor John Banzhaf.
The same arguments could easily apply to fast food companies which marketed to young children by claiming that eating its products would make them stronger and help them succeed in sports, or to those which market off-road vehicles to youngsters seeking the excitement of using them for thrill and sports-type riding, rather than simple transportation, suggests Banzhaf.
Banzhaf has been dubbed "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," and "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars."
Connecticut's highest court ruled that Sandy Hook shooting victims are able to sue the manufacturer of the gun used in a mass killing despite several major legal hurtles which would not be present in liability cases for many other products, he says. The problems include the following.
First, the gun plaintiffs had to overcome a 2005 federal law that shields gun manufacturers from liability in most cases when their products are used in crimes. Other products generally enjoy no such protection, although some states have passed so-called "Cheeseburger Bills" which provide limited protection for foods alleged to have caused obesity. Banzhaf helped defeat a cheeseburger bill in Congress, so there is no federal protection for fast food companies.
Second, the major cause of the death and injuries at Sandy Hook was obviously a third party - the gunman, known in law as the "intervening cause" - who engaged in a felony often punishable by death. In many situations he would therefore become a "superseding cause," relieving the original defendant of liability. But when children become obese and contract diabetes or some other disease as a result, there is no third party which caused the result.
Third, while many would argue that it is highly unlikely - and certainly not "reasonably foreseeable" - that a person would pick a particular a gun to commit mass murder, it is certainly foreseeable that children encouraged by ads to eat more and more fast food would become obese, and that the obesity would lead to diabetes; a condition which until recently was rare in children. However, it has now been estimated that more than one third of all children now in school will be struck by diabetes.
And, as any emergency room doctor can tell you, especially in rural areas, injuries when teens, and even their younger siblings, go for thrill rides on off-road vehicles, the risk of serious injuries, including even paralysis from falls, is all too serious and readily foreseeable.
So, although today's decision may been seen largely as a victory for the victims and the families of victims of the Sandy Hook shootings, and potentially for those seeking to use tort civil liability as a weapon against the shooting of innocent victims, it could have a more wide spread impact.
Attorneys for children who became obese eating fast food, children injured while using off road vehicles, and other products where the advertising and other marketing strategies directly contributed to injuries, are likely to reconsider their chances of winning such law suits, especially in the lower courts of Connecticut where today's ruling is controlling.
"The regulation of advertising that threatens the public's health, safety, and morals has long been considered a core exercise of the states' police powers," Justice Richard Palmer wrote for the majority. This policy obviously applies far beyond guns used in mass shootings, and could easily be found to include advertising for fast foods, off-road vehicles, and many other products aimed at children, suggests Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf