A response to mass shootings: Expand protections by imposing liability

prev
next

A. Vince Colella
Moss & Colella

On Wednesday, May 26, 2021, 57-year-old Samuel Cassidy left his home with a duffle bag filled with two semi-automatic handguns and 11 magazines. He arrived at the VTA Light Rail Yard, where he had worked as a technician for several years, moments before the first shift. As the employees arrived, they were met with a barrage of gunfire. Within minutes police responded. Despite the quick response time, 10 people were killed, including the shooter. In the aftermath, law enforcement learned that Cassidy had more than a five-year history of being unstable, disgruntled, and filled with vitriol for the rail yard; thus, raising the question as to whether the tragedy could have been avoided.

Since the beginning of this year, there were a reported 232 mass shootings in the United States as of this writing. Mass shootings are defined as incidents where four or more people, not including the assailant, are injured or killed. According to Gun Violence Archive, Michigan citizens have fallen victim to nine mass shootings, adding to the list of 901 people killed across the country since the beginning of the year.

One of the deadliest shootings in recent memory occurred at the Mandalay Bay Hotel in Las Vegas. On October 1, 2017, a 64-year-old man opened fire upon a crowd attending the Route 91 Harvest Music Festival. More than a thousand rounds were fired from a 32nd floor suite of the hotel. Initial reports estimated the number of dead at 60 people and 500 injured. However, it was later discovered that during the panic to flee the festival, the injury totals rose to 867. Similar to the VTA Light Rail incident, the Las Vegas shooter was found dead in his room from a self-inflicted gun shot wound. Victims of the Las Vegas shooting filed a group action against the hotel and casino. Plaintiff lawyers were critical of how hotel security were unable to detect the nefarious nature of the situation prior to the attack. During discovery it was learned that the shooter entered the hotel with a stockpile of firearms (20 in all) along with thousands of rounds of ammunition, posted a “do not disturb” sign, drilled holes in the walls and mounted cameras to monitor law enforcement — all without questions being raised by hotel management. The case settled for a record $800 million dollars despite the hotel’s claim that it had no duty to protect the patrons of the concert from third party acts of criminal violence.

In Michigan, there has been a judicial erosion of the duty to protect against criminal acts of third parties. In Mason v Royal Dequindre, 455 Mich 391 (1997), the Supreme Court recognized a business owner’s responsibility for taking reasonable measures to protect its guests from foreseeable acts of violence that were deemed to be preventable. However, the court fell short of overruling a previous pronouncement that business owners are not required to provide armed and visible security guards to deter criminal conduct. Williams v Cunnigham, 429 Mich 495 (1988). Later, the Supreme Court overruled the portion of Mason that required a “merchant” i.e., business owner, to take precautions against criminal conduct that may have been reasonably anticipated in lieu of merely being required to expedite law enforcement where the owner knows or should know that violence is afoot. McDonald v Pine Knob Theater, 464 Mich 322 (2001). An exception has been recognized where a business owner expressly assures the safety of its customers (an airline’s unaccompanied travel program for minors). Garza v Northwest Airlines, Inc, 305 F. Supp. 2d 777 (E.D. Mich. 2004).

Perhaps the Michigan courts should give deference to the Restatement of Torts, 2d.§ 344 recognizing that while a business is not the insurer of a visitor’s safety, it is required to act if it knows or has reason to know that criminal acts are occurring or are about to occur. In a majority of these mass shootings, there are “red flags.” The duty to inspect a property for hazardous conditions in the physical structure should include an ancillary responsibility to monitor the business for potentially dangerous behavior of the visitors themselves. The fact is, these incidents are not always “random.”
In the case of the VTA shooting, the rail yard was aware that Cassidy was explosively angry with a radio dispatcher, complained about pay and vacation, and was otherwise an aggrieved malcontent.
Employers and business owners should not be permitted to bury their head in the sand and ignore obvious signs of trouble to avoid accountability. The duty to investigate and reasonably respond to a threat of harm should be paramount to opening a business to the public. While not all acts of violence are preventable, customers should be assured that business owners take reasonable measures to protect against violence in their establishments - or be held liable.

—————

A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.