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Active Shooter Incidents: Prevalence, Theories of Liability, and Best Practices for Risk Mitigation

By Nicole E. Bazzy, Esq.

The number of active shooter incidents in the United States more than doubled from 2010 through 2018 compared to the prior 10 years. The U.S. Department of Homeland Security defines an active shooter as, “an individual actively engaged in killing or attempting to kill people in a confined and populated area; in most cases, active shooters use firearms and there is no pattern or method to their selection of victims.” As the number of active shooter incidents in the United States has risen, the number of lawsuits arising out of these incidents has increased as well. However, few clear guidelines have emerged from these cases, and the outcomes have proven to be heavily dependent upon both the specific facts involved and the jurisdiction in which the case is heard.

What Types of Locations Do Active Shooters Target?

According to data from the Federal Bureau of Investigation (FBI), more than 40 percent of active shooter incidents occur in commercial locations. More than a quarter (26.7 percent) occur in businesses that are open to pedestrian traffic, slightly over an eighth (13.4 percent) occur in businesses that are closed to pedestrian traffic, and less than four percent occur in malls. Following commercial locations, the highest-risk locations for active shooter incidents are as follows:

  • Schools (preschool through high school) – 15.2 percent
  • Open spaces – 13.4 percent
  • Government facilities (non-military) – 6.9 percent
  • Colleges and universities – 5.4 percent
  • Healthcare facilities – 4.3 percent
  • Private residences – 4.3 percent
  • Houses of worship – 4.0 percent
  • Military facilities – 2.5 percent

Who is Liable Following an Active Shooter Event?

Like the substantial majority of all liability claims, lawsuits involving active shooter events are governed by the law of negligence. This includes both (i) negligence claims based on the theory of premises liability, and (ii) negligence claims based on a failure to meet the general duty of care that individuals, businesses, institutions, and government entities owe to others. In the employment context, employers may face claims under the Occupational Safety and Health Act (OSHA) as well.

1. Premises Liability

Under the law of premises liability, property owners and tenants owe a duty to protect their patrons and guests from harm caused by the reasonably foreseeable acts of third persons. Although active shooter incidents were once so rare as to be considered unforeseeable, the perception of foreseeability in relation to these incidents has changed.

Certainly, not all active shooter incidents are foreseeable, and many of the courts that have heard active shooter cases have reached this conclusion in denying plaintiffs’ claims for damages. However, depending on the circumstances involved, it is possible that property owners and tenants could face liability as the result of failing to exercise reasonable care in the face of foreseeable harm presented by an active shooter.

2. General Negligence

General negligence claims involve allegations of failing to exercise the care that a reasonably prudent person would exercise in the same circumstances. In order for a plaintiff’s claim to succeed, the plaintiff must prove that the defendant owed a duty to the plaintiff, the defendant breached that duty, the plaintiff suffered harm, and the defendant’s act was the proximate cause of the plaintiff’s harm.

In the active shooter context, general negligence claims can take various forms—from failure to adequately screen or train employees to failure to provide adequate warnings once an active shooter has been identified. While plaintiffs have pursued various types of general negligence claims against businesses, academic institutions, and other entities following active shooter incidents, the courts have generally been hesitant to award damages in these cases. However, recent court decisions indicate that the position of the courts relating to liability for these incidents appears to be shifting.  If the prevalence of active shooter incidents continues to grow, the analysis is likely to change, and businesses and institutions may become more prone to liability based on the foreseeability of these events.

3. OSHA

Under OSHA’s “general duty” clause, employers must provide a workplace, “free from recognized hazards that are causing or likely to cause death or serious physical harm.” An active shooter is considered a “recognized hazard” under OSHA. As a result, when an active shooter incident occurs in a place of employment, it is possible that employees could pursue statutory claims under OSHA in addition to pursuing premises liability and/or general negligence claims (assuming such claims are not barred by the state’s workers’ compensation statute).

 

What Can Businesses, Institutions, and Government Entities Do to Mitigate The Risks of Active Shooter Incidents?

Given the risks and growing prevalence of active shooter incidents in the United States, what can employers and others do to protect their employees, themselves, and others? When it comes to mitigating the risks associated with active shooter incidents, best practices fall into three categories:

  • Vigilance – Much of the active shooter litigation to date has focused on alleged failures to conduct adequate screening and monitoring. As a result, businesses and others should ensure that they have adequate security measures in place—both in terms of employee screening and in terms of monitoring activity on their premises. What is considered “adequate” in any particular circumstance will depend on the unique aspects of the business and its location.
  • Information – Business owners and leaders of academic, religious, and governmental institutions must remain informed about the latest developments in active shooter liability in their respective jurisdictions. They should also provide all personnel with appropriate training on the relevant policies and procedures, and they should have systems in place to warn employees, students, and others when risks arise.
  • Preparation – To the extent reasonably possible, businesses and institutions should be prepared to take responsive action when an active shooter incident occurs. For many, this will mean outlining an emergency plan and conducting simulated training exercises. Other steps that can be taken to prepare for the possibility of an active shooter include safeguarding entry and exit points, ensuring that exits are clearly marked, and working with the local police department to review and implement its guidelines as appropriate.

 

As a final note, active shooter insurance is available as a form of gap coverage. Active shooter insurance can include coverage for counseling, medical expenses, disability expenses, death benefits, and funeral expenses. Annual premiums can vary widely (from thousands to millions of dollars per year) and, when evaluating active shooter insurance policies, it is important to carefully review any exclusions that apply.