Legal Liability and Mass Shooter Events: A Changing Liability Picture

Who is responsible for the damage inflicted by violent assailants who produce casualties on a mass scale? The individual perpetrator? The business without security measures in place? Gun manufacturers? The way we answer this question sets the course for how we prepare for a respond to these incidents on a national scale, and that answer may be changing. As the frequency of these incidents increases there is an increasingly popular legal argument that their “foreseeability” does as well. Foreseeability is a legal term of art used to determine whether an entity has a duty to those who enter their premises. If these events are deemed more foreseeable, businesses and insurers may become more liable.

For most of American history most insurers have not covered mass shooter incidents because they were deemed so rare that no reasonable site owner could have foreseen their occurrence. Thus, they were essentially immune from liability as a matter of law as there was no duty to protect invitees in their establishments from the risk of a mass shooter. But by nearly every measure, the frequency of these incidents has drastically increased over the past 20 years. Using the FBI’s definition of “one or more individuals actively engaged in killing or attempting to kill people in a populated area,” there were three active shooter incidents in 2000. In 2021 there were 61 incidents with 243 casualties, and in 2022 there were 50 incidents with 313 casualties. Active Shooter Incidents in the United States in 2022, FBI.gov. There have been a myriad of reasons put forward to explain the cause of this increase, from a mental health crisis to gun control deficiencies. Whatever the explanation, the fact remains that this problem does not appear to be subsiding and may continue to worsen, and courts have taken notice.

In light of the above, courts around the country have begun to show movement towards viewing these incidents as more foreseeable for business owners and likewise-situated entities. State courts in Kansas, Iowa, Missouri, Minnesota, Idaho, Nevada, South Dakota, Hawai’i, Florida, Indiana, Wyoming, Colorado, and Massachusetts have all moved away from a restrictive look at foreseeability requiring specific incidents of similar crimes on or near the establishment, to a “totality of the circumstances” test that can take into account any number of other factors. Texas, New York, and Washington are now the only remaining states to use the more conservative specific circumstances test, though this was tested in Washington in a recent case arising from the 2005 Tacoma Mall shooting. While the Washington Supreme Court affirmed the validity of the specific circumstances test, they nonetheless only did so on prompting from the Ninth Circuit Court of Appeals, and left open the possibility that “other evidence” may be effectively used to establish that a duty exists. See McKown v. Simon Prop. Grp., Inc., 182 Wash.2d 752, 344 P.3d 661 (Wash. 2015).

While tests applied by courts in these cases appear to be liberalizing and more cases are making it to trial, there are also a number of settlements that have occurred prior to trial involving significant sums of money. For example, in October 2020 a court approved an $800 million settlement for the victims of the 2017 Las Vegas shooting, and in 2022 Sandy Hook families settle with firearms maker Remington for $73 million.

The legal landscape surrounding mass casualty attacks and the liability of premises-owners is changing. Gone are the days when a shop owner could confidently rely on the unforeseeability of a mass shooting event to prevent a lawsuit from getting to trial. Consequently, insurance for these types of incidents is increasing in cost, rising more than 10 percent in 2022 alone according to an Insurance Journal analysis. As this shift occurs it becomes more important for business owners and others who have invitees on their premises to take steps to prepare, not only to protect life and property, but also to protect themselves legally should the worst occur.