Mass Shootings and Employer Liability
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This document summarizes a presentation on mass shootings and employer liability. It discusses how workplace violence is defined, statistics on mass shootings in the United States, potential theories of liability for employers, examples of lawsuits filed against employers and premises owners related to mass shooting incidents, and recommendations for how employers can prevent, prepare for, and mitigate risks of workplace violence and mass shootings.
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Mass Shootings and Employer Liability
- 1. 31st Annual Employment Law Seminar M A R R I O T T C I T Y C E N T E R H O T E L | S A LT L A K E C I T Y, U TA H PA R S O N S B E H L E . C O MN AT I O N A L E X P E R T I S E . R E G I O N A L L AW F I R M . Mass Shootings and Employer Liability Kelsie A. Kirkham 208.528.5234 | kkirkham@parsonsbehle.com
- 2. 2 Outline • Workplace Violence: Definition & Statistics • “Bring Your Gun to Work Law” • Theories of Liability • Examples of Mass Shootings • Prevent, Prepare, & Mitigate
- 3. 3 Workplace Violence Defined • Most policies define workplace violence to include not just actual physical violence, but also threatening or intimidating behavior. • OSHA defines “workplace violence” as an act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. • One model policy defines violence as including “physically harming others, shoving, pushing, harassing, intimidating, coercing, brandishing weapons, and threatening or talking of engaging in those activities.”
- 4. 4 Workplace Violence Statistics • Workplace violence incidences are on the rise in the U.S., leading to more lawsuits being filed against employers and premise owners in connection with active shooter incidents. • A November 2017 CNN analysis reported that despite having only 5 percent of the world’s population, the U.S. accounted for 31 percent of the public mass shootings between 1966 and 2012. • FBI study noted that approximately 70% of active shooter incidents took place in a commerce/business or educational environment.
- 5. 5 Mass Shooting Incidents 2014–2018 270 335 382 346 340 2014 2015 2016 2017 2018
- 6. 6 Mass Shootings in 2019
- 7. 7 Four Categories of Workplace Violence 1. Violent acts by criminals who have no other connection with the workplace. 2. Violence against employees by clients, customers or any others from whom an organization provides services. 3. Violence against coworkers, supervisors, or managers by present or former employees. 4. Violence committed by a person who has a personal relationship with an employee, e.g., abusive spouse or domestic partner.
- 8. 8 Warning Signs • Direct or veiled threats of harm • Intimidating, belligerent, harassing, bullying or other inappropriate and aggressive behavior • Bringing a weapon to work • Unusual statements related to workplace violence • Statements indicating desperation to the point of contemplating suicide • Substance abuse • Extreme changes in behavior
- 9. 9 Location Categories Study of 160 Active Shooter Incidents in the US Between 2000 – 2013
- 10. 10 “Bring Your Gun to Work” Law • Utah Law neither prohibits, nor expressly allows, excluding guns from business premises • Utah Protection of Activities in Private Vehicle Act (§ 34-45-103 Utah Code) – individual, property owner, business entity or employer may not effectively prohibit any individual from transporting or storing a firearm in a motor vehicle on any property designated for motor vehicle parking. • Employer Immunity (§ 34-45-104 Utah Code)
- 11. 11 Theories of Liability • OSHA • Workers’ Compensation • Tort Law ◦ Negligence ◦ Premises Liability ◦ Wrongful Death
- 12. 12 Theories of Liability: OSHA • Under the General Duty Clause, Section 5(a)(1) of OSHA of 1970, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a).
- 13. 13 Theories of Liability: Workers’ Compensation • Claims by employees • Employers will be liable for workers’ compensation to employees injured by workplace violence if the injury arises out of and in the scope of employment. • Workers’ compensation is the employee’s “exclusive remedy” against the employer. Utah Code Ann. § 34A-2- 105.
- 14. 14 Theories of Liability: Tort Law • Third-party claims against employers for actions of employees • Negligence ◦ Negligent hiring ◦ Negligent supervision ◦ Negligent retention ◦ Negligent referral • Premises Liability
- 15. 15 Theories of Liability: Tort Law • Third-party claims against employers, landowners, and security companies for actions of non-employees • Negligence ◦ Negligent security ◦ Negligent performance of duty • Premises Liability
- 16. 16 Marjory Stoneman Douglas High School • February 14, 2018 – Parkland, Florida • 17 killed and 17 injured by gunman, Nikolas Cruz, 19-year-old student who had been expelled • Lawsuit named the school board, sheriff’s office, behavioral health center, school security guard, and school resource officer ◦ Failure to perform duty owed to students ◦ Negligent implementation of polices ◦ Willful disregard of policies
- 17. 17 First Baptist Church Mass Shooting • November 5, 2017 – Sutherland Springs, Texas • 26 killed and 20 injured by gunman, Devin Patrick Kelley • Kelley had a history of violent behavior • Lawsuit filed against gun store
- 18. 18 Mandalay Bay Mass Shooting • October 1, 2017 – Las Vegas, Nevada • 58 killed, 441 with gunshot wounds, and hundreds more injured in ensuing panic by shooter, Stephen Paddock • Premises liability/Negligence against the hotel and casino • Negligent security claims against security company
- 19. 19 Century Aurora Theater Mass Shooting • July 20, 2012 – Aurora, Colorado • Shooting by James Holmes at Century Aurora 16 theater complex left 12 dead, 58 with gunshot wounds, and another dozen injured in ensuing chaos • Negligent security claims under premises liability • Court determined that the mass shooting was not totally unforeseeable
- 20. 20 Tacoma Mall Mass Shooting • November 20, 2005 – Tacoma, Washington • Lawsuit against landowner and security company filed • One of the main issues in the lawsuit was the foreseeability of the attack • Prior mall shootings at different malls used against landowner in establishing foreseeability
- 21. 21 Navy Yard Mass Shooting • September 16, 2013 – Washington, D.C. • Aaron Alexis, fatally shot 12 people and injured 3 others in a mass shooting at the headquarters of the Naval Sea Systems Command inside the Washington Navy Yard • Shooter’s employer sued for negligent hiring and retention • Court allowed the case to proceed because employer knew of shooter’s mental health problems
- 22. 22 Prevent, Prepare, and Mitigate • Training ◦ Liability is on the employer to train their employees to recognize the indicators of the potential active shooter and how to respond when they are faced with an actual active shooter incident • Equipment ◦ Bulletproof glass ◦ Door locks from the inside ◦ Multiple exits ◦ Communication mechanism
- 23. 23 Prevent, Prepare, & Mitigate • Should employees be armed in the workplace? ◦ With the proper training, many suggest that security personnel should be armed to mitigate any threat that may occur ◦ Somebody who is trained can stop an incident the moment it occurs • Should managers be armed in the event of an active shooter? ◦ Increased potential liability for organization ◦ Usually not a sworn law enforcement officer, so the legal immunities ◦ Relying on inherent right of self-defense ◦ Manager could be seen as acting as an agent of the employer, which opens the company to potential agency liability claims if an incident occurred
- 24. 24 Prevent, Prepare, and Mitigate • In begins at the employment application • Workplace Violence Policy • Concealed Weapons Policy • Thoroughly investigate reports of job-related criminal or violent conduct • Provide counseling to troubled employees • Assess security measures • Train managers and employees • Multi-disciplinary assessment teams
- 25. 25 Prevent, Prepare, & Mitigate Prevention Building Security Cameras and Building Signs Restricted Keycard Access Metal Detectors Security Personnel Policies and Training Behavioral Monitoring Personnel Training
- 26. 26 Prevent, Prepare, & Mitigate • Planning Ahead with Named Peril Insurance ◦ Depending on the coverage, these policies provide not only liability protection but also provide trauma recovery resources ◦ Policies can provide coverage for such as lost business income, security, rest and rehabilitation, public relations, property damage crisis response, lost wages, counseling, medical, disability, and death benefits, litigation expense, liability coverage
- 27. Questions?
- 28. 28 Thank You • Kelsie A. Kirkham 208.528.5234 kkirkham@parsonsbehle.com
Editor's Notes
- • Workplace Violence and shootings in the spotlight • Sanchez CNN Allowing Guns in the Workplace Introduces Liability Risk
- The Gun Violence Archive – a nonprofit that collects and maps gun-related violence in the U.S. Mass Shooting is defined as 4 or more people shot or killed in a single incident, not involving the shooter 2016 – highest number of workplace homicides since 2010 2014 (270) --- 2015 (335) --- 2016 (382) --- 2017 (346) --- 2018 (340)
- As of May 12, 2019 --- 119 mass shooting incidents
- With Mass Shootings on the Rise, Employers Need to Actively Manage Threats
- According to some reports, more than 75% of the perpetrators of mass violence had, before the attack, made concerning statements or exhibited risky behavior. Once a threat is identified, prevention or risk reduction protocols should be employed. If the venue does not have identification or prevention protocols in place, there is potential that the venue will be held liable for its failure to protect people from injuries that were “reasonably foreseeable.” With Mass Shootings on the Rise, Employers Need to Actively Manage Threats
- 2000 low (1) --- 2010 high (26) Commerce – 73 of 160 --- 44 of 73 open to pedestrian traffic --- 6 of 73 malls --- 23 of 73 closed to pedestrian traffic Education – 39 Government – 16 Open space -15 Residence – 7 Houses of Worship – 6 Health Care – 4
- Utah Protection of Activities in Private Vehicle Act (§ 34-45-103 Utah Code), with exception, prohibits any individual, property owner, business entity or employer from establishing, maintain or enforcing any policy or rule that has the effect of prohibiting any individual from transporting or storing a firearm in a motor vehicle on any property designated for motor vehicle parking. Employer Immunity – 34-45-104 – A person that owns or controls a parking area that is subject to this chapter and that complies with the requirements of Section 34-45-103 is not liable in any civil action for any occurrence resulting from, connected with, or incidental to the use of a firearm, by any person, unless the use of the firearm involves a criminal act by the person who owns or controls the parking area
- The thrust of each lawsuit is that the venue did not do enough to anticipate or prevent the incident Gun-related incidents can result in liability under several different legal theories, including: OSHA, Workers’ Compensation, Tort Law Claims can be brought by employees and by third-parties. If a property owner fails to provide reasonably adequate security measures. An employer failing to perform a background check, ignoring threats, failing to protect their employees, customers, etc. Someone who has prior knowledge of an attack or who helped assist the perpetrator in any way. Someone who illegally sells or makes available to the perpetrator a weapon, ammunition, etc.
- While there is no federal law establishing an employer's duty to prevent workplace violence, an employer has a duty to provide a safe working environment under OSHA. Many workplace violence prevention policies purport to be based upon the general duty clause. OSHA can issue citations to employers that violate the OSH Act general duty clause (29 U.S.C. § 654(a)(1); 29 U.S.C. § 658(a))
- Foreseeability and reasonableness are the tests
- Usually in premises liability claims, reasonability plays an important role in determining liability. Is it reasonable to expect a hotel to check every single bag of every patron of the hotel? Is it reasonable for a hotel to go several days without entry into a patron’s room? Does the hotel even have a legal duty to those at the concert?
- Active Shooter in the Workplace: How to Respond with a Survivor’s Mindset & Limit Liability and Long-Term Consequences
- Allowing Guns in the Workplace Introduces Liability Risk Not sworn LE – legal immunities that such officers have for liability to themselves and the employer will not attach
- Allowing Guns in the Workplace Introduces Liability Risk