Assault

January 13, 2020

Further erosion of the ban of lawsuits against gun manufacturers

Lots-of-Guns-300x200 As I explored in a previous blog, the Protection of Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”) has shielded gun manufacturers from suit since its enactment in 2005. The law bars any civil liability action against a firearms dealer or manufacturer, except for certain limited exceptions. My previous blog revolved around the parents of the victims killed in the Sandy Hook massacre, who survived summary judgment on a motion conceived under PLCAA filed by the defendant, Remington Arms Company. Now, the city of Kansas City is bringing a claim against a manufacturer and several firearms dealers, which may further chip away at the Act’s once impenetrable protection.

PLCAA’s protection is broad. 1515 U.S.C. § 7902 provides that “[a] qualified civil liability action may not be brought in any Federal or State court” against a firearms manufacturer or dealer. The definition of a qualified civil liability action is explored in § 7902, which defines the term broadly, encompassing ostensibly all civil claims against licensed gun dealers and manufacturers. However, § 7903(A) identifies certain claims that will not be considered a qualified action.

Contractual disputes or claims for breach of warranty are not qualified actions. § 7903(5)(A)(iv). Neither are claims related to defective design or manufacture of a firearm. § 7903(5)(A)(v). Claims arising out of negligent entrustment, where a manufacturer or a dealer puts a firearm into the hands of someone likely to injure themselves or others, are permitted. § 7903(5)(A)(ii; § 7903(5)(B). Similarly, if a manufacturer or dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, immunity from suit is not available. § 7903(5)(A)(i).

December 3, 2019

Sandy Hook families’ lawsuit against gun manufacturer proceeds: Supreme Court declines to intervene in Connecticut action

by Neumann Law Group

One of the most horrific mass shootings in the nation’s history occurred at Sandy Hook Elementary in Newtown, Connecticut. The shooter killed 20 children, all between the ages of 6 and 7, as well as 6 adults before killing himself. The families of those killed have brought a number of legal actions in response to the devastating losses they sustained on November 30, 2012.

Parents of children killed have brought several legal actions under various legal theories. One of the successful suits was against the shooter’s mother’s estate. Since she was also killed in the rampage, her estate was liable for injuries resulting from her negligent acts that contributed to the killing. The plaintiff’s claimed she negligently kept a Bushmaster AR-15 unsecured, allowing her troubled son access to the weapon. The parties settled for $1.5 million to be divided among the plaintiffs.

One family brought suit against the town and school district, alleging the school was unprepared and the response was insufficient. The trial court dismissed the case in 2018, ruling that the situation was so unexpected, intense, and wildly dangerous that hindsight regarding safety protocols could not be deemed negligent.

November 6, 2017

Appeals Court Holds City Exempt from Suit Under Massachusetts Torts Claims Act

by Neumann Law Group

A 28-year-old man was seriously injured when a Somerville resident shot him in the neck, paralyzing him from the neck down. His family filed suit for negligence, arguing that the gun the shooter used had been wrongly returned to the shooter by the Somerville police department and the city of Somerville. The police department had previously confiscated the weapon in the course of revoking the shooter’s license to carry. The Massachusetts Court of Appeals concluded that the city’s conduct was “based upon” licensing activity described in section 10(e) of the Massachusetts Torts Claims Act (MTCA) and that therefore the city was exempt from liability in this Massachusetts personal injury case.The victim was shot outside the shooter’s parents’ home in November 2013. The victim was visiting one of the building’s tenants and preparing to walk home when the shooter came out and confronted him and two other men. The victim had a bullet lodged in his neck and was hospitalized for a prolonged period. He’s currently a quadriplegic.

At the resulting criminal trial, the shooter’s lawyer maintained the shooting was in self-defense. He claimed that the victim and the two other men would not let the shooter back into his parents’ home and attacked him when he threatened to call the police. But prosecutors argued that a cellphone video made by the shooter showed he escalated the incident and made attempts to make it appear to be self-defense.

Although the police department was waiting for the decision of the Massachusetts Executive Office of Public Safety and Security (EOPSS) regarding whether it could issue the shooter a new license, the department returned the guns to him following the lower court’s ruling. The EOPSS thereafter notified the department that the shooter was disqualified due to his juvenile record, and at a subsequent hearing, the lower court agreed.

August 8, 2017

District Court Allows Football Player’s Massachusetts Sexual Assault Lawsuit to Move Forward

by Neumann Law Group

A former student and his parents filed a federal lawsuit alleging that the Chelmsford public school system and its employees failed to take sufficient steps to protect the student from a sexual assault at a school-sponsored football camp and from subsequent bullying and harassment by teachers and other students at Chelmsford High School (CHS). The case alleges negligence, among other federal and state law violations. The defendants–the Town of Chelmsford, the Chelmsford School Committee (CSC), and various other school officials–moved to dismiss. Last month, the United States District Court for the District of Massachusetts granted in part and denied in part the motions to dismiss.The case alleges that for years, CHS embraced a culture that put winning first and encouraged bullying and harassment of student-athletes to make them “tough enough” to win championships. The Town, the CSC, and the former Superintendent allegedly knew about and condoned this “winning” sports culture, in which ordinary rules did not apply to star athletes.

In September 2012, the victim enrolled as a freshman at CHS. He was a special-needs student with an Individualized Education Plan under the federal Individuals with Disabilities Education Act (IDEA). In October 2012, during freshman football, three students forced another student to urinate in the victim’s cleats. The family reported the incident to the athletic director, and the three students were suspended for one game.

In August 2013, CHS held its annual football camp at Camp Robindel in New Hampshire. The students stayed in bunkhouses with no regular adult supervision, despite CHS having knowledge of hazing and bullying that took place at past football camps. In the bunkhouse, the victim was hit in the face with powder, and the video recording was posted to social media. He had his food, iPod, and cellphone stolen. He was pelted with milk and repeatedly picked up by his underwear. The lawsuit alleges the hazing culminated in at least three of the victim’s teammates holding him down and raping him with a broomstick.

May 3, 2017

Massachusetts Appeals Court Upholds Ruling for State Following Mental Hospital Rape

by Neumann Law Group

A plaintiff identified only as “Jane J.” filed suit against the state of Massachusetts under the Massachusetts Tort Claims Act (MTCA). She alleged that while she was involuntarily committed to a state psychiatric hospital, a male patient raped her while she was in the recreation room. The issue before the Massachusetts Court of Appeals was whether the hospital’s failure to segregate its patients’ use of the recreation room by gender established legal causation for the rape. The appeals court concluded that it did not and accordingly affirmed the order of summary judgment for the state.In March 2009, Jane J. was committed to the state hospital for a competency evaluation after being charged with assault and battery, pursuant to Massachusetts General Law Section 15. In her lawsuit, Jane J. alleged that roughly a month into her commitment, a fellow patient raped her in the common room.

March 1, 2017

Former Student Blames Massachusetts College for his Drunken Aggression

by Neumann Law Group

A former student is suing a college in Massachusetts for negligent supervision. Specifically, the 22-year-old student believes the college is to blame for his binge drinking and subsequent assault conviction.In 2014, he pleaded guilty in Salem Superior Court to punching three students at the college. He allegedly “sucker punched” the students as they were walking across the campus in the early morning hours of February 2nd–an act the trial judge referred to as a “knockout game.”

December 14, 2016

Former Student Sues Boston University Following Alleged Campus Rape

by Neumann Law Group

A 20-year-old student–identified in legal papers only as Jane Doe–filed suit against Boston University this month, claiming the school failed to protect her from an alleged assault last fall.The plaintiff was a junior at BU when she allegedly awoke to find former MIT basketball player Samson Donick sexually assaulting her in her dorm room, asking her, “Baby, do you want some more?” In the ensuing criminal case, Donick pleaded not guilty after being indicted by a grand jury this May. He has since left Boston for his home in Tiburon, California.

August 11, 2016

Massachusetts Court of Appeals Vacates Extension of Harassment Order for Insufficient Evidence

by Neumann Law Group

The Massachusetts Court of Appeals recently held that a plaintiff’s harassment order was wrongfully extended because there was insufficient evidence of harassment. Specifically, there was no evidence that the defendant acted with intent to cause fear, intimidation, abuse, or damage to property.Defendant Kinzy Reason and plaintiff Elizabeth Gassman lived in the same apartment in Brighton, Massachusetts. Reason lived in an apartment unit directly below Gassman, who played the piano frequently–a source of continued annoyance and distress for Reason.

June 21, 2016

Massachusetts Court of Appeals Upholds Multi-million Dollar Judgment for Victims of Sexual Abuse by Father

by Neumann Law Group

The Massachusetts Court of Appeals recently upheld a multi-million dollar judgment in favor of two daughters sexually abused by their father continuously for several years.Defendant William Kelley sexually molested and abused his two daughters, identified in court fillings as B.K. and W.K., on myriad occasions. He allegedly molested B.K. 3-5 times per week when she was between the ages of 12 and 15, and he continued to molest her on occasion when she was 16 and 17. Kelley would enter B.K.’s room almost nightly, undress, get into her bed, and fondle her. He encouraged her to masturbate and sleep in the nude, and he explained to her how to give a hand job.