Who can be held liable in the age of mass shootings?

Mass casualty shootings in the U.S. have become tragically commonplace. From the Pulse Nightclub shooting in Orlando, to the Las Vegas massacre, injured victims and decedents' loved ones want justice and are hoping that premises liability will provide them with a viable path for both compensation and accountability.

In the deadliest mass shooting in our nation's history in Las Vegas last October, the killer shot through a broken window of a 32nd-floor hotel room at concertgoers, killing 58 people and injuring thousands of others. The shooter loaded his hotel room at the Mandalay Bay with an arsenal of weapons, including a bump stock -- a device that can convert semi-automatic weapons into fully automatic machine guns. From that perch, he unleashed terror on 22,000 innocent concertgoers below.

In the wake of the shooting, hundreds of victims and victims' survivors filed lawsuits in California and Nevada, naming various defendants including MGM (owner of the Mandalay Bay), Live Nation (organizer of the event), Slide Fire Solutions (manufacturer of the bump stock) and the shooter's personal estate. Many of the injured and their survivors reside in California, but another reason many cases were filed in California may be because attorneys feared that a Nevada jury would be sympathetic to casino defendants who help fuel their local economy.

For mass shooting victims suing the owners of the premises where the crime occurred, the most difficult hurdle is proving that the attack was reasonably foreseeable. In California, business owners owe a duty to their patrons to affirmatively take action to control wrongful conduct of third parties if the business owner has reason to anticipate it and the probability of injury resulting from it. Kentucky Fried Chicken of Cal., Inc. v. Superior Court, 14 Cal. 4th 814, 820 (1997). Plaintiffs must show that the premises owner was aware of similar criminal activity at or near the location and this is often difficult to prove. California courts then apply a balancing test between the foreseeability of the harm and the burden of the duty on the owner to prevent the harm.

California courts vary widely in their analyses of such cases. For example, in Ambriz v. Kelegian, a San Diego-area woman was raped in a common area of her apartment complex by a transient that had been seen around the complex for about eight months. The transient's presence had been reported to management and management was aware that the locks to gates into the complex were broken. 1146 Cal. App. 4th 1519, 1533 (2007).

In Ambriz, the court found that there was a triable issue of fact as to the foreseeability of the crime. But in Castaneda v. Olsher, the California Supreme Court held that a mobile home park owner was not liable for a resident's gunshot wound due to a shootout that occurred between gang members on the premises and that the owner had no duty to evict the gang members, even though the property manager suspected they were gang members, gang graffiti was present, and other residents had reported feeling threatened and harassed by gang members. See 41 Cal. 4th 1205, 1219-22. In Castaneda, even though there had been two prior gunshot incidents on and next to the premises, which did not involve the perpetrators, the court found that unless the victim showed that violence by the actual perpetrators of the shootout or their guests was highly foreseeable, the mobile home park owner was not liable. See id.

Courts in other jurisdictions have been reluctant to hold premises owners liable for the criminal conduct of third parties. In the Aurora, Colorado movie theater shooting of 2012, the federal court judge ruled that Cinemark was not liable -- instead it ruled that the premeditated and intentional act of the shooter was the proximate cause of the victims' injuries -- even though the shooting occurred just months after the Department of Homeland Security issued a warning to movie theater chains nationwide regarding the potential of violent attacks and Cinemark had not implemented safeguards such as alarms on exit doors and security guards.

The wounded and the survivors of the dead in the Las Vegas shooting may face similar hurdles. These victims do have unusual facts on their side. They allege that Live Nation, who promoted the concert, failed to adequately train security and erred by turning on floodlights after the shooting started, illuminating the way for the shooter. They also allege that Mandalay Bay was negligent by failing to investigate the shooter before he committed his crime after he refused to valet his car, brought 10 suitcases of firearms to his room over three days for a short hotel stay and set up his own surveillance cameras in the hallway; furthermore, plaintiffs allege that the hotel did not have an adequate emergency plan in place.

Some victims of the Las Vegas shooting are exploring alternative options for legal recourse. Some have filed a class action lawsuit in Nevada against the bump stock manufacturer, alleging that the company acted unreasonably and dangerously by selling this device. The defendants will likely argue that those claims are barred by the Protection of Lawful Commerce in Arms Act which statutorily offers a broad sheild for the gun industry from tort liability when criminals use their products. Other victims of the Las Vegas shooting are seeking recovery from the shooter's estate in a variety of ways, including by filing creditor's claims and petitions for the estate to be set up as a victim's fund.

While premises owners are not expected to be insurers of all events their property, they must be held responsible for failing to protect people from foreseeable events on their property. Irrespective of the outcome of these lawsuits, premises owners must take their duties to protect patrons more seriously in efforts to avoid liability which may in turn help prevent such attacks from occurring in the future. If the active shooter scenario is sadly becoming the new normal, business and property owners must respond accordingly.