Statutory Interpretation – Negligence Claim

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WI Court of Appeals – District I

Case Name: Yasmeen Daniel, et al. v. Armslist, LLC, et al.

Case No.: 2017AP344

Officials: Lundsten, P.J., Blanchard, and Fitzpatrick, JJ.

Focus: Statutory Interpretation – Negligence Claim

This is a tort action arising from a mass casualty shooting at a salon in Brookfield, Wisconsin. It is alleged that the shooter, Radcliffe Haughton, bought the firearm and ammunition he used in the shooting after responding to a “for sale” post that appeared on a website, Armslist.com. Yasmeen Daniel, the daughter of shooting victim Zina Daniel Haughton and the administrator of her mother’s estate, has filed multiple tort claims against Armslist, LLC, which created and operated Armslist.com.  Significant to Daniel’s claims, when Radcliffe purchased the firearm and ammunition, he was prohibited by a state court domestic violence injunction from possessing a firearm.

The circuit court dismissed Daniel’s complaint against Armslist in its entirety, based on the federal Communications Decency Act of 1996 (“the Act”). See 47 U.S.C. § 230(c)(1) and (e)(3) (October, 1998). As pertinent here, the Act creates what Armslist argues is immunity from any “liability” that “may be imposed under any State or local law” for a “provider” of “an interactive computer service” under a theory of liability that “treat[s]” the provider “as the publisher or speaker of any information provided by another information content provider.” See id. The court concluded that Armslist has immunity under this provision of the Act because Daniel alleges only that Armslist “passively displays content that [was] created entirely by third parties” and “simply maintain[ed] neutral policies prohibiting or eliminating certain content,” and because Daniel “fails to allege facts which establish … that Armslist [was] materially engaged in creating or developing the illegal content on its page.”

We reverse the order dismissing the complaint as to the Armslist defendants. Applying a plain language interpretation to the Act, we agree with Daniel that the allegations in the complaint, which are that Armslist used website design features to facilitate illegal firearms purchases, do not seek to hold Armslist liable on a theory prohibited by the Act. Stated in the terms used in the Act, we conclude that the allegations do not seek to hold Armslist liable under a theory of liability that “treat[s]” Armslist “as the publisher or speaker of any information provided by another information content provider,” which is the protection at issue here that the Act provides. We reject Armslist’s argument because the Act provides immunity to website operators, such as Armslist, only when the allegations treat the website as the publisher or speaker of third-party content, and the Act does not protect a website operator from liability that arises from its own conduct in facilitating user activity, as is the case here.

There is a separate issue, which does not involve immunity under the Act, namely, the court’s dismissal of a claim of negligence per se. On this issue, we agree with Daniel that, as Armslist effectively concedes, the circuit court erred in dismissing this claim. Accordingly, we reverse dismissal of the complaint as to the Armslist defendants, including the dismissal of the negligence per se claim, and remand.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.