Foreseeing The Unforeseeable- Premises Security Litigation And Mass Casualty Events

Since 2006 there have been over 200 mass killing/casualty events in the United States.1 With the twenty-four hour information news cycle and the rise of social media, these types of mass casualty events have increased.2 The actual wrongdoer is not the landlord or business owner but the person who committed the crime, however outside of the criminal justice system, the assailants rarely have the means to even remotely compensate victims for the damages they have caused. Plaintiffs have increasingly sought to have landlords and business owners to fill that void. While courts have historically been reluctant to impose a duty upon landowners and business owners for the intentional acts by third parties in situations such as these, there has been a shift by some courts in how they view the foreseeability of these types of events.

Its well settled that "[a] possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose for physical harm caused by third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid harm, or otherwise to protect them against it." Restatement, Torts 2d, Section 344.

Generally, even where there is an extensive history of criminal conduct on a premises, the possessor cannot be held to a duty to take protective measures unless it is shown that she either knows, or has reason to know from past experience, "that there is a likelihood of conduct on the part of third persons * * * which is likely to endanger the safety of a visitor." Restatement, Torts 2d, Section 344. The foreseeability of a mass casualty event has been considered a question of duty for the courts to decide.

Until recently, courts have found a danger, such as a mass casualty event, so remote that as a matter of law no rational juror could find that a landowner should have known about it. Courts long held that "once-in-a-lifetime" acts of violence, such as mass shootings, were not foreseeable finding that such deranged and motiveless attacks, were "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 invitees from reasonably foreseeable criminal...