Who Is Liable in “Mass Shootings” and Other Acts of Public Violence?
As the recent mass shooting incidents in El Paso and in Dayton, Ohio, have tragically demonstrated, we live in a society where acts of “planned” or “premeditated” public violence have become a matter of great concern in regard to public safety. Although we will avoid the very real issues of concern to both the law enforcement and civil libertarian communities, at The Doan Law Firm we believe that both public businesses and private employers have both a moral and legal duty to protect the public and their employees from harm should such an incident occur.
In today’s post, we will discuss the legal doctrines that hold a business, or employer, liable for injuries that involve their customers and/or employees. We will then offer suggestions that may be of interest to those who have been injured as a result of planned public violence and believe that a business/employer could have done more to prevent such injuries.
For the purpose of this post, we will define an act of planned public violence to be any action committed with the intent of causing injury to as many victims as possible. The victims may be chosen based on any number of factors such as ethnic background, occupation, or chosen at random. Thus, “mass shootings,” use of explosives (“bombings”), and arson are acts of planned public violence regardless of their intended targets.
Traditionally, the person or persons deemed responsible for such acts have faced criminal charges and the owner of the location where the attack occurred has not been held to have made at least a partial contribution to the injuries received by others, be they customers or employees.
In our opinion, an employer and/or a business could be found liable for the consequences of an act of public violence if it:
- Failed to anticipate that a planned act of public violence could occur on its premises.
- Failed to implement an emergency action plan that would be activated if such an incident occurred.
- Failed to provide sufficient security personnel to at least deter someone who is planning an act of public violence.
We will explain our position in the following sections.
Failure to anticipate
Regardless of what you believe to be the causes behind acts of planned public violence, it is a fact that such acts have occurred in the past, are probably being planned now, and will likely occur in the future. Since it is impossible to prevent such violence from occurring, the most effective measure to reduce the number of potential casualties in such incidents is to recognize the possibility that they could occur and to plan according to a “worst case” scenario.
Failure to implement an emergency action plan
Public building, and most privately-owned structures, are required by law to have a plan in place to deal with emergencies such as fire, gas leaks, or even earthquake damage. As of this writing, there are no laws that require similar plans for incidents involving planned public violence. However, a business cannot escape liability for what could be viewed as some act of negligence by arguing that there was no law requiring it to take some action, particularly if the safety of the customer/visitor is at issue.
Given the number of incidents related to workplace violence and acts of “domestic terrorism” such as mass shootings, it is almost inconceivable that any owner/employer has not implemented some type of emergency action plan that would be activated at the first clear sign of danger to employees and/or customers.
It is well known that the presence of a “badge and uniform” are effective in deterring criminal activity in both the public and private sectors. Most security personnel, both uniformed and “plain clothed,” are either employees of a business or are furnished by an outside contractor. In either case, their responsibilities to the public are restricted by their job descriptions or the terms of a professional services contract.
Unfortunately, security in most retail shopping centers is focused on “loss prevention:” efforts to prevent property crimes such as vandalism or criminal activities such as shoplifting and theft by employees. In most such cases, on-site security personnel do not have the legal authority to do anything other than “detain and contact,” which means they can only “detain” a suspicious actor and “contact” local law enforcement to begin the process that could lead to criminal charges. Thus, most “on-site” security is of little (if any) value in responding to an act of public violence. Since this fact is well known to employers, inadequate security could be seen as negligence.
In law, whoever has control over a place of business or employment is said to owe certain duties to its customers, its employees, and to the public in general. These duties include protecting the public and its employees from any conditions, both real and/or easily foreseeable, that are capable of causing an injury. If a business or an employer is aware that a potential danger exists and does not take prompt, effective measures to eliminate that danger, the business/employer is said to have breached its duty and may be held liable if an injury occurs.
Although we admit that the question of a business’s or employer’s liability in cases of planned public violence is relatively new and has yet to be ruled on by the courts, we also feel that the issues raised in previous sections of this post could be seen as negligence if a business/employer failed to consider those issues in formulating its emergency planning.
If you, or a family member, were injured during an act of planned public violence, we invite you to contact the business/employer personal injury lawyer at The Doan Law Firm to arrange a free, no obligation, review of the facts in your injury case and a discussion of the legal avenues that may be open to you.
When you contact out firm, we never charge you any type of fee to review your case and never require you to hire us as your legal counsel. If we agree that a lawsuit is in order, and that you would like to have us represent you in court, we are willing to assume full responsibility for all aspects of preparing your case for trial in exchange for an agreed-upon percentage of the settlement that we will win for you.