Every mass shooting incident reminds us that we are no longer dealing with “once in a lifetime” tragedies but with disturbingly regular occurrences that some may describe as “sufficiently foreseeable.”
Wherever a crowd gathers, it may now be reasonable to assume that organizations will be asked by society about measures undertaken to protect patrons and invitees from harm and, if an incident occurs, about the reasonableness of their failure to protect.
The frequency and severity of active shooter incidents and other acts of violence have businesses and organizations, including houses of worship, educational institutions and event organizers, on high alert. In 2018, more than half of all active shooter incidents occurred in areas of commerce, according to a Federal Bureau of Investigation report.
The list of places where incidents have occurred is already long and continues to grow, so many organizations are undertaking a realistic risk evaluation to determine what reasonable safeguards can be implemented to effectively eliminate or minimize the risk and at what cost.
The direct loss and damage caused by an incident can be extensive and severe. Moreover, liability claims made by victims and survivors pose a serious threat to an organization’s future.
Those with any involvement with an incident or connection to the shooter are likely to be sued, including property owners, business owners and employers. Others can be sued as well. The owner of the Las Vegas Mandalay Bay resort was sued following the country music festival mass shooting in 2017, a case that settled for a minimum of $735 million, according to the Las Vegas Review Journal. The concert promoter was sued and lawsuits have been filed against security companies, law enforcement agencies, employees and contractors.
Lawsuits commonly assert claims of negligence as the basis for holding an organization legally liable for an active shooter incident, which typically occurs when someone fails to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. Premises liability and negligent security claims are routinely brought against those who own, manage or maintain the area where an incident occurred. If a shooter is an employee, the employer is also likely to face claims of negligent hiring or negligent retention.
Proving negligence in these cases isn’t easy, but the dramatic increase in active shooter incidents could be making it easier for victims and survivors because the extent of one’s legal duty of care to another often depends on whether the harm was foreseeable.
Defendants have successfully argued that active shooters are not sufficiently foreseeable to create a duty of care. Without a duty of care, the argument is moot and there can be no proof of negligence. However, as active shooter incidents increase in frequency, severity and notoriety, defendants will have a harder time disclaiming liability on the grounds that the incident wasn’t foreseeable.
Businesses and organizations, even those with a moderate risk, are now consulting risk managers and insurance professionals to evaluate existing risk management protocols and insurance coverages in the context of this emerging threat.
Concerns about appropriate risk financing levels, insurance limits and managing the aftermath are being openly discussed. Questions are being asked about the role active shooter and other acts of violence insurance can play in financing the risk and whether the product offers an affordable solution.
Although active shooter insurance is affordable, it may not be the appropriate answer to the risk, particularly for those with little foot traffic and reasonable premises security measures already in place, such as doors that automatically lock and cameras that monitor visitors. These low-risk insureds should still contact a professional about conducting a risk assessment. However, for businesses and organizations with broader risk exposures, including those with significant foot traffic, active shooter insurance provides an affordable solution that should be considered.
Active shooter policies can vary among insurance companies and may include policy language that excludes acts from workplace violence or limits the definition of a “triggering event.” Some policies are broad and will provide primary liability protection, as well as voluntary coverage for victim expenses related to medical, dental and psychiatric care, rehabilitation, disability, death benefits and funeral expenses.
Coverage is also available for business expenses related to loss or interruption of business income, extra expenses, public relations, crisis consultants, employee counseling and additional or temporary security measures.
This is a difficult discussion to have, but one that is necessary to address this rapidly evolving and expanding risk. Have this discussion today, and rest knowing that you’ve taken the necessary action to protect your company, workforce and invitees.
Anita Byer is president of Setnor Byer Insurance & Risk.
