The topic of mass shootings is an uncomfortable one. Yet, unfortunately, with mass shootings on the rise, we offer the following educational information about mass shooting liability as a public service to our readers. Nothing in this blog post should be considered legal advice. Reading this information does not create an attorney-client privilege. Each case is different. If you or a loved one has been impacted by a mass shooting, we recommend that you contact a qualified lawyer in your state. If you represent a business, school, event venue, or other workplace, you should contact your professional advisors for more information.
As of May 2021, the United States has seen several high-profile, tragic mass shootings, including incidents in Indiana, Texas, Colorado, Georgia, and Minnesota. Such incidents are not new, sadly. This year, the country has averaged more than one mass shooting a day, continuing an upward trend in recent years. As mass shootings become more frequent and deadlier, they’ve sparked greater scrutiny of mass shooting liability and potential financial damages for victims.
Long after stories of tragic gun violence disappear from headlines, behind the scenes, mass shootings may lead to civil lawsuits and other claims for financial damages. Depending on the circumstances of the shooting, numerous parties can potentially face liability for losses that occur to victims and their families. Some claims may also be covered by a new type of insurance—so-called “active shooter insurance”—that more companies are now purchasing.
What is a Mass Shooting?
There is not an agreed upon definition of mass shooting. Different data sources define and count mass shootings differently. For example, the Gun Violence Archive defines a mass shooting as when four or more people have been shot or killed (not including the shooter). By this definition, there were 417 mass shootings in 2019 and 610 in 2020.
By most metrics, mass public shooting incidents are on the rise, but they still make up a tiny overall percentage of gun deaths, despite the attention given to major incidents like the Pulse nightclub shooting in 2016 and the 2017 shooting at the Las Vegas country music festival.
Who Can Be Held Liable for a Mass Shooting?
The American Bar Association (ABA) notes that the businesses and individuals that may be targeted in civil lawsuits following a mass shooting event are varied and depend upon the circumstances. They can potentially include:
- Owners/operators of businesses/facilities where the shooting occurs
- Event promoters
- Security firms
- Law enforcement (for failing to investigate a shooter who exhibited violent intentions, or for failure to appropriately intervene in an active shooting incident)
- Parents/relatives of the shooter and others who are in a position to know of and/or intervene in the shooter’s plan
- Mental health providers (psychiatrists have been sued in the past for allegedly failing to act on statements made by a gunman prior to a shooting)
- Retailers or gun shops where the shooter acquired weapons (if they were acquired illegally)
- Straw purchasers (i.e. somebody who purchases a firearm for somebody else)
- Organizations that fail to report information to authorities that would have disqualified the shooter from legally purchasing a firearm
The Mandalay Bay Hotel shooting in Las Vegas illustrates the numerous parties that may be held liable for a shooting. NU Property & Casualty explains that the concert organizer; the hotel owner (MGM); gun, ammunition, and bump stock manufacturers; the shooter’s estate; ticket promoters; and possibly even the festival performers all faced possible liability exposures for the Las Vegas shooting.
Business Owner Liability and the Issue of Foreseeability
Business owners typically are not liable to a person injured by the criminal acts of a third party unless the criminal act was foreseeable. In other words, unless business owners can reasonably anticipate that a shooting will occur on their property, they can’t be held liable for a mass shooting.
Plaintiffs may reasonably argue today that a business owner knew, or should have known, about the risk of a mass shooting at their establishment.
Throughout the years, courts have ruled that mass shootings were not foreseeable due to their infrequency. But this argument has weakened over time given the increase in shooting frequency. Plaintiffs (the injured or families of deceased victims) may reasonably argue today that there is a genuine dispute of fact about whether business owners knew or should have known about the risk of a mass shooting.
It’s still difficult to impose liability on business owners, but some analysts see the recent $800 million settlement paid by MGM Resorts International in connection with the 2017 mass shooting in Las Vegas as a sign of a shift.
Active Shooter Insurance Coverage
Most general liability insurance policies do not cover mass shootings, although it may be possible in some circumstances for a mass shooting to constitute a covered “occurrence” under the policy. Regardless, the major liability costs associated with shootings—including medical costs, mental health counseling, and funeral expenses—means that more organizations are carrying a specific type of peril insurance policy known as “active shooter insurance” or “active assailant insurance.”
These policies can help to offset costs for counseling services, medical, disability, funeral expenses, and death benefits, litigation expenses, and post-shooting security upgrades. According to the Wall Street Journal, Belpre City Schools in southeastern Ohio purchased an active shooter plan that includes a $25,000 death benefit per victim and trauma counseling. Such a plan can cover civil lawsuits that allege matters such as failure to provide adequate security or ignoring the warning signs of a would-be shooter.
Questions About Mass Shooting Liability?
While victims of mass shootings may be within their rights to seek compensation from numerous parties, these cases present complex liability issues that continue to evolve in the courts. Specific legal questions about a mass shooting incident should be directed toward a qualified attorney in your state. For businesses, schools, and workplaces seeking further advice on liability or insurance coverage, your best resource is your current insurer or employment law counselor.
The above information is for educational purposes only and does not constitute legal advice or form a confidential lawyer-client relationship. If you need to speak to a Graham & Graham attorney, we ask that you call our office. Thank you.