Mass shootings are primarily an “American phenomenon,” according to the crime violence research group Gun Violence Archive (GVA). The GVA defines a mass shooting as an event in which four or more individuals (besides the shooter) are shot and injured or killed in a single incident. Under this definition, there have been 2,697 mass shootings in the U.S. between 2014 and 2020.
According to data compiled by the FBI, between 2000 and 2008, an average of seven active shooter events happened each year. However, from 2009 to 2016, 210 such events – an average of about 21 per year – occurred. Nearly half of these incidents happened in education, retail, or government settings, but no matter where they occurred, significant economic losses, including the following, usually resulted:
- Medical costs
- Funeral expenses
- Counseling bills
- Property damage and cleanup
- Security upgrades
- Crisis management costs
- Business interruption/event cancellation
- Criminal fines or penalties
Although most active shooter incidents don’t last long – often less than 15 minutes – they cause devastating damage, loss, and expense for victims and affected businesses.
The Foreseeability of Active Shooter Events
In most jurisdictions, a business owner is not liable to someone injured by the criminal acts of a third party unless the act was foreseeable. According to Section 344 of the Restatement (Second) of Torts, “Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur.”
Historically, courts have found that the actions of mass shooters are so unexpected and remote that no rational juror could find that a business owner should have foreseen them. Claims based on the duty to warn have been equally unsuccessful, and numerous juries have found that no duty to warn existed. For example, Indiana’s imposing foreseeability law makes it extremely difficult for plaintiffs to recover in mass shooting cases. Mass shootings have also sparked numerous lawsuits, where courts are tasked with assigning liability to various businesses and individuals, such as:
- Owners and operators of venues where mass shootings occur
- Event promotors
- Security companies
- Law enforcement
- The shooter’s immediate family
- Employers
- Mental health professionals
- Gun shops where the shooter acquired weapons
- Organizations that fail to report gun ownership disqualifying information to authorities
- Anyone who might have intercepted the shooter’s plan but did not
Determining liability for active shooter events frequently begs the question – are these types of events foreseeable?
However, as mass shooting incidents happen more frequently and garner greater attention, the opinion regarding whether or not these events are foreseeable has started to swing. Georgia, for example, has taken a challenging but somewhat less restrictive approach to the foreseeability issue. In Shadow v. Federal Express Corporation, which is currently pending in the Georgia Supreme Court, plaintiff Melissa Shadow is appealing a court of appeals split decision regarding the issue of foreseeability of the risk of a workplace mass shooting. Shadow was shot by a fellow package handler who went on a shooting rampage at the Kennesaw FedEx package sorting facility where she worked.
This case has exposed a crucial split of the Georgia state appeals court regarding the foreseeability of active shooter acts: one line of cases favors the landowner or proprietors based solely on previous criminal acts on the premises. The other, based on known dangerous conditions or characters, questions whether such acts are indeed foreseeable. The outcome of future mass shooting cases might depend on which path the Georgia High Court elects to follow.
If you have questions, please contact Mel Hewitt at Isenberg & Hewitt.