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Business Worry: Will Gunfire Victims Sue?

3 min read

A couple wounded last month in a mass shooting at a Texas Walmart filed suit against the Bentonville retailer, becoming the latest shooting victims to sue a business for failing to protect them.

Jessica and Guillermo Garcia said in their lawsuit that Walmart had a responsibility to protect its customers. “And Walmart failed to live up to this duty because it did not employ security guards to patrol the store,” according to a news release from the Ammons Law Firm of Houston, which represents the Garcias in the case filed in District Court of El Paso County, Texas.

The Garcias’ legal strategy — suggesting that a business failed to use reasonable care to protect its customers — is not new, said Timothy D. Lytton, a distinguished university professor at Georgia State University College of Law and editor of the book “Suing the Gun Industry.”

What’s new about the case and similar ones filed against businesses after mass shootings is how much money companies might have to pay in damages, he said.

“That liability exposure for a mass shooting is actually very considerable because the injuries are so lethal,” Lytton said. “It’s more than just your average slip-and-fall or mugging in the parking lot. This is something that carries major liability implications for businesses, and so this is of concern.”

In May, MGM Resorts said it could pay up to $800 million to settle suits stemming from the October 2017 mass shooting from one of its Las Vegas hotels in which 58 people were killed and more than 400 were injured.

Attorney Patrick Luff of Houston, who represents the Garcias, said that as more mass shootings occur, more families are likely to sue the businesses where the shooting occurred for not keeping them safe. “Since Columbine in 1999, mass shootings have just become more and more common,” he said.

Retailers should be re-evaluating their security measures — if they haven’t already, Luff told Arkansas Business.

The law, though, does not require a company to provide a 100% safe space, Lytton said. Stores, restaurants or any company that invites customers into its business has a responsibility “to take reasonable measures to protect people on the premises,” Lytton said. “So, given the current heightened risks or increasing frequency of mass shooting, part of that responsibility is to make sure that there are some safeguards in place.”

Making a business safer might include having security guards in stores and training employees what to do when there’s an active shooter, Lytton said.

The Garcias alleged that Walmart could have taken actions to make their El Paso store safer, but didn’t. Jessica Garcia was shot in both legs and her husband was shot several times, according to the lawsuit. They are seeking an unspecified amount of damages.

“This tragic event will be with us forever and our hearts go out to the families that were impacted,” Randy Hargrove, a Walmart spokesman said in a statement to Arkansas Business. “Safety is a top priority and we care deeply about our associates and customers.”

Following the shooting at the El Paso store, Walmart said it will stop selling handgun ammunition and ask that customers not openly carry firearms into its stores. Since then dozens of other retailers have similarly said that they don’t want customers openly carrying guns in their stores.

Hargrove said once the company is served with the Garcias’ lawsuit, it will respond.

The success of the suit will depend “on what a jury thinks ‘reasonable care’ would require Walmart to do in the circumstances,” Lytton said.

Stores will often argue that they owe no duty to customers. But Lytton said that in “the vast majority of jurisdictions” stores do have a duty. “The real question is whether or not they breached that duty by failing to take reasonable precautions,” he said.

Still, if the plaintiffs have a “plausible claim, stores are often quite quick to settle these claims,” he said. “Because in addition to the liability exposure, there are serious reputational concerns being pulled out into the press.”

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