Employer Liability for Active Shooters in the Workplace

In America today, mass shootings are a near-daily occurrence. According to data collected by the Gun Violence Archive, during the first seven months of 2022, 371 mass shootings took place in the U.S. that involved the injury or death of four or more people, not including the shooter. As a result, concerns about business liability for mass shootings have increased, requiring businesses to take various precautions to protect their workers against potential mass shootings.

The legal landscape concerning business liability for mass shootings has changed dramatically since a California court found McDonald’s was not liable for allegedly negligent security after a gunman opened fire on a San Ysidro, CA, McDonald’s in 1984, killing 21 people and wounding 19 others. (See Lopez v. McDonald’s Corp., 193 Cal. App. 3d 495 (1987).) The court found that McDonald’s could not be liable for the shooting largely because “the likelihood of this unprecedented murderous assault was so remote and unexpected.” Unfortunately, given the current proliferation of mass shootings, the court’s finding in Lopez is no longer the reality for businesses.

In 2020, the American Bar Association published an article by Michael Steiner entitled “Liability for Mass Shootings: Are We at a Turning Point,” which examined trends of business liability for mass shootings. Through his research, Steiner found that courts typically do not find business owners liable to individuals for the criminal acts of others unless those acts are foreseeable. An example of foreseeability that might establish liability would be the business receiving a specific threat before the act of violence occurred. As a result, businesses increasingly face lawsuits for failing to stop or identify a shooter before an incident occurs.

In two high-profile cases, businesses ultimately were not liable for mass shooting deaths. The plaintiffs’ legal theories in those cases continued to chip away at the historical notion that businesses could not possibly foresee a mass shooting. For instance, victims sued a Colorado Planned Parenthood clinic after a gunman opened fire because the clinic provided abortions, killing three and wounding eight. (See Wagner v. Planned Parenthood Federation of America, 471 P.3d 1089 (2019).) A jury found Planned Parenthood not liable. Colorado later passed a law stating that foreseeability for third-party criminal conduct cannot be based on a business providing controversial services or products.

Likewise, a string of civil lawsuits stemming from the Virginia Tech mass shooting, in which a student killed 32 people and injured 17 others, initially resulted in a jury verdict in favor of the plaintiffs. The Virginia Supreme Court overturned the verdict, finding that the university had no duty to warn students about potential third-party criminal acts. (See Commonwealth v. Peterson, 749 S.E.2d 307 (2013).)

Despite these court victories for businesses, some mass shootings have led to substantial settlements. For example, the mass shooting at a Las Vegas music festival by a gunman staying at an MGM property resulted in an $800 million settlement paid by MGM to the victims. Firearms manufacturers also are facing liability for mass shootings. After the U.S. Supreme Court declined to take up the case, Remington agreed to a $73 million settlement with the victims’ families from the 2012 Sandy Hook elementary school shooting.

As the potential for businesses to face liability for mass shootings increases, insurance companies may require businesses to take proactive steps to reduce their potential exposure to these risks. Some examples of these steps might include undergoing risk assessments, conducting active shooter training for employees, developing active shooter response plans, and beefing up security measures. Unfortunately, insurance premiums also may rise, and some policies may exclude coverage for these incidents altogether.

Congress recently passed the most comprehensive gun legislation in years, making it more difficult for some high-risk individuals to procure firearms. The new law does not diminish the number of already existing firearms. As a result, businesses, and school districts, in particular, should focus their efforts on preventing physical access to their locations. Metal detectors to screen visitors, the presence of security, and technology to lock down facilities automatically in case of emergency all can go a long way to protect against mass shooters.

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