Who is Liable for an Active Shooter Incident?


Anyone who knows me knows I am a diehard, ride or die Kansas City Chiefs fan. My friends knew where I was on Valentine’s Day 2024. I was in downtown Kansas City celebrating the Chief’s Super Bowl victory at the parade. We got to our spot along the parade route and to pass the time the fans in our area on the route were playing a game of catch across the street with Nerf footballs. Even the police officers who were providing protection in that area joined in as did the construction crew working on the building behind us. There were kids in front of us hoping for an autograph from one of the players and a couple little girls hoping that Taylor Swift would be at the parade and give them an autograph. Who knew that only two hours later that joy would become fear and sorrow.

Twenty-three people were shot, and a mother of two died. Half of the victims were under the age of 16. The Chiefs Super Bowl parade shooting was the forty-eighth mass shooting in 45 days of 2024. As I write this blog that number has grown in less than a week to 51. In 2023 there were 656 mass shootings – that is 1.8 shootings per day.

A mass shooting is defined by the FBI as any shooting where four or more are wounded or killed. Four people are charged with the shooting and if convicted will be held criminally liable. But who will the victims and their families hold civilly liable? The city of Kansas City? The Chiefs? Union Station? The 800 law enforcement personnel along the route? All those parties? And will a judge or jury find them liable for the criminal actions of the two adults and two juveniles?

To answer those questions, we need to look at the history of mass shootings and the shifting legal and insurance landscape.

The unfortunate frequency of mass shootings means businesses, schools, municipalities, and sports organizations need to be concerned about being found liable if they fail to provide adequate protection to keep attendees safe from being harmed by a mass shooter. In most instances, business owners are not liable for the criminal acts of others unless that act was reasonably foreseeable, or they were aware of a risk and had a duty to warn. Since 1984, after one of the first mass shootings, courts have been chipping away at what is foreseeable and if there is a duty to warn owed.

The first challenge to the foreseeability standard was the 1984 mass shooting at a San Ysidro McDonalds and the case of Lopez versus McDonalds. In that case, the victims and their families took the position that, because the area was high crime, McDonald’s was negligent in not employing private security. The courts found that McDonald’s could not have foreseen the actions of the shooter. The court reasoned that “the deranged and motiveless attack is so unlikely to occur within the setting of modern life that a reasonably prudent business enterprise would not consider its occurrence in attempting to satisfy its general obligation to protect business invitees from reasonably foreseeable criminal conduct.” Courts have held that the foreseeability of mass shootings cannot be established by local crime rates or criminal activity in the area.

The next area where victim’s families have sought to hold an entity liable for the actions of a mass shooter was the Virginia Tech shooting. The duty to warn was the basis for the lawsuit in the 2007 case of Commonwealth of Virginia versus Peterson for victims of the Virginia Tech shooting where the shooter killed 32 people. The argument was that the university had a duty to warn students and faculty about the actions of the shooter even though there was no special relationship between the school and the shooter. Like Lopez the courts did not find the school liable.

Enter Axelrod versus Cinemark Holdings and the 2012 mass shooting at the Aurora, Colorado movie theater. While the court still held withLopez, they did note that the likelihood of mass shootings had increased since 1984. That, coupled with Homeland Security’s warnings for movie theaters, caused the court to decline to dismiss the case. The court felt the facts did create a dispute as to whether the theater knew or should have known of the risk and done something.

Unlike the businesses that are thrust into the news or lawsuits due to the random acts of violence by third parties, the gun manufacturers, dealers, and distributors have been shielded from liability for the use of their guns and qualified products in mass shootings since 2005 under the US Protection of Lawful Commerce in Arms Act. The qualified products section of the law granted immunity to the manufacturer of the bump stock used in the Las Vegas music festival shooting. The law allows only for two exceptions: negligent entrustment of the weapon or that the dealer, retailer, or manufacturer knowingly violated state or federal law governing the sales and marketing of the weapon. The families of the Sandy Hook victims successfully sued Remington, the manufacturer of the gun used by the shooter, under the second exception. The gun manufacturer’s marketing of the weapon was found to have violated the law and been the proximate cause. Remington appealed the verdict to the US Supreme Court who declined to hear the case. Remington’s insurers settled the case for $73 million.

The payment of the Remington verdict and the music festival shooting settlement by the property owners and their insurers for $800 million have contributed to the changing legal and insurance landscape.

The number of mass shootings has made it harder for insurers to predict what clients are at risk for such an incident and what policies may need language to exclude unintended coverage of the consequences of the shooter’s actions. Insurers can be called upon to pay for medical and funeral costs, property damage to the location, mental health counseling and crisis management, workers’ compensation benefits, biohazard cleanup and repairs, extra security, and loss of income/ business interruption while businesses are shut down as a crime scene for investigators.

Add to those damages the cost to defend the suits, fines and penalties from local government, loss of future business and damage to their reputations, and mass shootings represent a significant exposure to insurers and insureds alike.

The entities facing exposure from mass shootings can include the business and property owners, municipalities, schools, security and law enforcement, promoters, parents and family of the shooters (as supported by the recent guilty verdict of the Michigan high school shooter’s mother), employers, gun shops or retailers where the shooter purchased the gun and ammunition, or anyone in a position to have intervened in the shooter’s plans, but didn’t.

Entitles can be held liable for active shooter incidents that occur on their premises if:

  1. The acts of the shooter were reasonably foreseeable. As the number of mass shootings increases the possibility of a judge or jury finding the event was reasonably foreseeable does too.
  2. The organization’s security measures, or Emergency Action Plans (EAP) were ineffective and failed to provide protection from the shooter’s actions.
  3. The organization failed to take steps to avoid or minimize the incident, or to warn attendees once they learned of a hazard or parties posing risks, creating the possibility of negligence.

Standard commercial, homeowners, and liability policies excluded intentional acts from coverage because insurance is intended to cover unintentional and unexpected acts. As such direct liability for a shooter will almost always be excluded. Providing coverage for intentional acts continues to be considered against public policy. As the frequency of active shooter incidents increases so does the existence of specific policy exclusions that can eliminate coverage for the incident.

Policies exclusions include:

  1. Criminal acts, barring coverage for bodily injury or property damage caused by criminal acts. The party’s intent to cause injury isn’t necessary to invoke the exclusion, only them being charged with or convicted of a crime.
  2. Firearms exclusions that exclude coverage for bodily injury arising out of the manufacture, importation, sales, distribution, gunsmithing, ownership, maintenance, or use of firearms or weapons.
  3. Assault and Battery exclusions that exclude bodily injury arising out of actual or alleged assaults and battery or any failure to provide adequate security.

As standard policies exclude coverage, specialized coverage called active shooter, or deadly weapons or active assailant insurance has entered the market. These policies provide coverage for costs of litigation and services related to investigating and defending against lawsuits, providing onsite counseling for victims or damages caused by active shooter incidents. Whether the coverage is capped at the per occurrence limit or the aggregate limit depends on the jurisdiction and if the court determines the multiple injuries and suits arose from a single underlying cause or act of negligence or a series of events leading to the injury of each victim. If all the victims are found to be the result of a single cause or occurrence, then the policy limit available for damages and defense is limited to the per occurrence limit. If the court finds that each victim is a separate occurrence, then the larger aggregate limit will be the funds available for the active shooter incident.

Insurers and entities need to stay alert to the ever-changing landscape of how the courts and juries assess liability for active shooter incidents over time in response to precedent setting verdicts making new case law, legislatures creating new laws, and societal demands for justice. While current juries may still be inclined to say that the cause is the shooter’s actions and that companies can’t be expected to know they were going to be the next target, that may not remain realistic.

Brenda McDermott, CPCU, CLP, SCLA, CIIP, SCLA, ARM, AIDA, AIC is a workers’ compensation claims specialist in The Hartford’s Major Case Unit. She is a past international Rookie, Claims Professional of the Year, Risk Management Professional of the Year and International CWC Speak-Off winner. She was the 2022 Region V Insurance Professional of the Year. She has been a long-term member of IAIP and served in multiple offices at the local, state, and regional levels. A past Region V RVP she is currently serving as the Region V Marketing Director and Assistant to the RVP. She is co-chair of the international Marketing and Today’s Insurance Professional Task Force. She is an MAL in Region V from Missouri.

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