Can You Be Held Liable for a Mass Shooting on Your Property? (GSX 2021)

Silver linings have been hard to come by during the pandemic, but among them is the fact that mass shootings last year were at the lowest level in more than a decade. That’s according to data compiled by The Associated Press, USA Today and Northeastern University that tracks mass killings—defined as four or more dead, not including the shooter. Two public mass shootings took place in 2020, and both happened before the lockdowns took hold.

Nevertheless, the gun violence epidemic in our nation is an ongoing security threat that every building owner and facility manager needs to consider, a point that was underscored in the presentation at GSX titled, “Mass Shooting Liability: What Every American Business Has to be Concerned With,” by Michael Haggard, managing partner at The Haggard Law Firm.

“You can’t say you didn’t see a mass shooting incident happening anymore. That foreseeability box has been checked,” Haggard said.

The numbers validate that claim. Prior to 2011, mass shootings in the U.S. happened every 200 days on average; after 2001, that number plummeted to an incident happening every 64 days, Haggard pointed out. In the first nine months of 2019, there were 21 deadly mass shootings, and 47% of all such tragic incidences have happened in the past eight years.

Even the GSX show is an example of the trend. This year, there are several exhibitors on the floor demonstrating products that can detect active shooters or gunshots in a facility and alert authorities. “We didn’t have this [at GSX] 10 years ago. It’s a new ball game,” Haggard pointed out.

[Related: AI Concepts for Security]

How Business Can Be Held Liable in Mass Shootings

The question business owners and security professionals need to ask is, how can a business be held responsible for a random act of violence by a deranged individual? Generally speaking, Haggard said there are three prongs to establish liability in a court of law:

Reasonable foreseeability
Adequate security not provided
Could have been avoided/negligence

In the past, Haggard noted that juries would not likely have found a company liable for an act of gun violence. Citing the 1984 case Lopez v. McDonald’s, in which an assailant opened fire in the restaurant killing 20 and injuring 11, the judge remarked that there was absolutely no way McDonald’s could have foreseen or prevented the tragedy from happening.

The tide of liability is changing, however. Haggard pointed to the 2007 Virginia Tech shooting, in which a student took the lives of 32 of his classmates. It was revealed later that the perpetrator’s angry, violent writings had raised concern among some of his professors and fellow students prior to the events of April 16.

In other words, Haggard said schools had a duty to warn if they knew or should have known if a student might act violently—what’s also known as “warning theory.” Virginia Tech was found liable in a jury trial, but the state’s Supreme Court later overturned the decision. More recently, a court awarded $800 million to the victims of the mass shooting at MGM Resorts in Las Vegas in 2017, in which 58 people were killed and hundreds wounded in the deadliest shooting in modern U.S. history.

“No matter what type of business you or facility you own, this could be your problem,” Haggard warned.

Anticipating Risk and Taking Action

“Litigation trends will change,” Haggard said, noting that liability cases against tobacco companies were non-existent just several decades ago. But what won’t change is the fact that security professionals “are at the forefront of anticipating risk.”

As such, he suggested facility and security staff work together to determine the foreseeability of the risks to their businesses. For instance, the fact that mass shootings are on the rise increases the probability of an attack, which is higher for certain types of businesses or facilities such as schools or soft targets and crowded places (ST-CPs). Even for businesses that don’t fall into a high-risk category, owners and security teams need to do their due diligence, determining how much traffic and how many people their location will draw—something that happens all too infrequently.

“I can tell you in maybe 10% of the cases we have, have I ever sat across from a security manager who said, ‘Yeah, I have the crime statistics for the area.’ They have every other demographic in the world,” Haggard said, “but crime statistics? Not at all. That’s a huge problem in our cases.”

Security professionals and facility executives need to take several steps to mitigate their risk of liability in the event of a mass shooting or other violent incident happening on their property, including:

Understanding the threats and risks of their venue
Designing and implementing appropriate security measures
Training security and other staff to recognize an active shooter or a threat to their property
Raising awareness among staff and patrons
Reporting security incidents or suspicious activities

While having security measures in place is important, they must also be followed consistently. Staff must also receive regular training to ensure that risks and liabilities are reduced.
Haggard said public awareness is getting better, thankfully, with facilities like airports repeating important messages like “If you see something, say something” (Note: These signs abound at GSX). But ultimately, the epidemic of gun violence will not be solved in Washington, D.C., he said.

“It will be solved by the security industry,” he concluded.