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February 07, 2020 Feature

Liability for Mass Shootings: Are We at a Turning Point?

By Michael Steinlage
As mass shooting incidents become more frequent and widely reported, the perception of whether such events are foreseeable has begun to shift.

As mass shooting incidents become more frequent and widely reported, the perception of whether such events are foreseeable has begun to shift.

Kali9/E+ via Getty Images

When it comes to mass shootings, insurers historically have relied on the infrequency of such events, favorable liability laws, and their ability to selectively exclude gun-related injuries to justify a hands-off approach to assessing and managing such risks. For those insurers who do underwrite these risks, measuring and pricing the exposure can be difficult. However, with the number of mass shooting incidents increasing and the significant claims and liability that they spawn, recognizing and addressing these types of risks have taken on greater importance. The recent MGM Las Vegas shooting settlement announced in early October—$751 million of which reportedly will be funded by insurance—puts these risks firmly in the category of exposures that companies and insurers can no longer ignore.

Modern Mass Shootings: Understanding the Problem

The number of mass shooting events depends upon how you define them.1 Regardless, there is no question that they are increasing in frequency and impact. In the 50 years before the 1966 University of Texas tower shooting, there were just 25 public mass shootings in which four or more people were killed. Since then, the number of such shootings has risen dramatically, and many of the deadliest shootings have occurred within the past few years.2 Of the 220 incidents that occurred from 2000 to 2016, nearly half (107) took place in an education, retail, or government/military setting.3

Economic impacts. No matter where they occur, mass shootings cause a wide range of damage, loss, and expense for victims and impacted businesses. The economic losses can include:

  • Medical costs
  • Funeral expenses
  • Mental health counseling
  • Property damage (including repair and replacement of buildings)
  • Cleanup and extra expense
  • Additional security and security upgrades
  • Crisis management
  • Business interruption or event cancellation
  • Workers’ compensation, e.g., injury, death benefits, mental health (varies state by state)
  • Fines/penalties

Litigation over mass shootings. Mass shooting incidents also can lead to significant and unique litigation exposures. The businesses and people that may be targeted for liability in a mass shooting event are varied and depend upon the circumstances, and potentially can include:

  • Owners and operators of businesses or facilities where the shooting occurs
  • Event promoters
  • Security firms
  • Law enforcement4
  • Parents/relatives of the shooter
  • Employers
  • Mental health providers5
  • Retailers or gun shops where the assailant acquired weapons (if acquired illegally)
  • Straw purchasers
  • Organizations that fail to report disqualifying information to authorities6
  • Anyone in a position to know of and/or intervene in the shooter’s plan

While this article focuses on third-party liability for mass shootings, the first-party loss and workers’ compensation elements of such events can be equally significant. In some respects, property and workers’ compensation insurers have been more responsive to these types of risks, offering products that combine risk assessment and loss control with tailored coverages better designed to respond to the unique impacts and expenses that besieged businesses may face.7

Liability for Criminal Acts of Third Parties: Foreseeability

Insurers’ historical lack of focus on exposure from mass shootings is due, in part, to the fact that, in most jurisdictions, a business owner is not liable to a person injured by the criminal acts of a third party unless the criminal act was foreseeable. Section 344 of the Restatement (Second) of Torts provides in relevant part:

Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur.8

Only in situations where the place or character of an owner’s business, or its past experience, is such that it “should reasonably anticipate . . . criminal conduct on the part of third persons, either generally or at some particular time,” may an owner be under a duty to take precautions against it and to provide a reasonably sufficient number of servants to afford reasonable protection.9 Similarly, most states do not impose a special duty on an employer to protect an employee against criminal actions on the employer’s premises unless the act is foreseeable.10 Most states follow some version of the Restatement.11 In some states, this principle is reflected via statute.12

Foreseeability of mass shootings. Applying these principles, courts historically have found the actions of mass shooters to be so unexpected and remote that, as a matter of law, no rational juror could find that a business owner should have foreseen them.

An early example of this is Lopez v. McDonald’s Corp., a case arising out the 1984 mass shooting at a McDonald’s restaurant in San Ysidro, California, where an armed assailant indiscriminately shot patrons and employees and left 21 people dead and 11 others injured.13 Victims and survivors sued McDonald’s on theories of negligence and premises liability, arguing that the restaurant was in a high-crime area and negligent in failing to have private security. In response, McDonald’s claimed that the incident was so remote and unexpected that it fell outside of the restaurant’s general duty to protect patrons from reasonably foreseeable criminal acts.

On appeal, the court of appeal agreed that the attack was not foreseeable as a matter of law and that “the general character of McDonald’s nonfeasance did not facilitate its happening.”14 Regarding the restaurant’s duty to its patrons, the court held thus:

[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.15

The court of appeal agreed that property crimes experienced by the restaurant and general criminal activity in the area “[bore] no relationship to purposeful homicide or assassination.”16

Other courts similarly have held that the foreseeability of mass shootings cannot be established through local crime rates or general evidence of a criminally active environment.17

Duty to warn. Claims premised on a duty to warn have fared no better. In Commonwealth of Virginia v. Peterson, a case arising out of the 2007 slayings of 32 people on the Virginia Tech campus, the Virginia Supreme Court began its analysis from the “general rule” that a person does not have a duty to warn or protect another from the criminal acts of a third person unless a special relationship exists.18 After reviewing numerous cases where no duty to warn was found to exist, and considering the information known to the university at the time of the shootings, the Virginia Supreme Court concluded that even under “the less stringent standard of ‘know or have reasonably foreseen,’ there . . . [were] not sufficient facts from which th[e] [c]ourt could conclude” that a duty to warn students about potential criminal acts of a third party arose as a matter of law.19

Signs of a shift. As mass shooting incidents become more frequent and widely reported, the perception of whether such events are foreseeable has begun to shift. There were signs of this in Axelrod v. Cinemark Holdings, Inc., a case that arose from the shootings at the movie theater complex in Aurora, Colorado, in July 2012.20 There, the court noted its agreement with the holding in Lopez but observed that incidents that were “so unlikely to occur within the setting of modern life” in 1984 as to be unforeseeable were not necessarily so unlikely by 2012.21 Based on “the grim history of mass shootings and killings that have occurred in more recent times,” together with evidence of warnings that Homeland Security issued to theaters before the shooting22 and other policies that the theater had in place, the Alexrod court denied the theater owner’s motion for summary judgment, finding that plaintiffs had presented enough evidence to create a genuine dispute of fact as to whether defendants knew or should have known of such risks.23

Still, imposing liability on business owners for the criminal acts of third-party shooters remains a challenging legal case for victims to make. Even the theater owner in Alexrod ultimately was granted summary judgment on the issue of causation after the court found that a reasonable jury plausibly could not find that the theater’s actions or inactions were a substantial factor in causing the harm.24 Relying on decisions from the Columbine school shooting, the court held that even if the owner’s omissions in failing to provide certain safety and security measures contributed in some way to the injuries and deaths, the gunman’s premeditated and intentional actions were the predominant cause of plaintiffs’ losses.25

But signs of a shift continue to show. This year, in Wagner v. Planned Parenthood Federation of America, Inc., the Colorado Court of Appeals was asked to answer these same questions in connection with a 2015 mass shooting at the clinic of a nonprofit provider of family planning services.26 The plaintiffs in Wagner had presented specific evidence that the risk of an active shooter was known to the owner of the facility, as well as expert testimony regarding security measures that the clinic could have taken that might have prevented the attack or mitigated its consequences.27 After reviewing the history of decisions addressing foreseeability and causation, including Lopez and Alexrod, the court of appeals reversed the lower court’s finding that the shooting was not foreseeable as a matter of law.28 The court of appeals went one step further and reversed summary judgment for the defendant on the issue of causation, concluding that the trial court erred in determining as a matter of law that the defendant’s “contribution [was] infinitesimal as compared to [the shooter’s actions]” and instead holding that a jury could conclude that the defendant’s conduct was a substantial factor in the loss.29 The case is currently on appeal to the Colorado Supreme Court.

Gun Industry Immunity from Mass Shooting Claims

Another significant factor that limits the types of claims from mass shootings is the immunity granted to gun manufacturers, distributors, and dealers. In 2005, in response to a deluge of suits by cities and counties seeking to recover costs associated with gun violence,30 Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA), which sought to ensure that manufacturers and sellers of firearms and ammunition would not be liable “for the harm caused by those who criminally or unlawfully misuse firearm products.”31 The PLCAA requires dismissal of any civil liability action

brought by any person against a manufacturer or seller of a qualified product . . . for damages . . . or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.32

The PLCAA was held to apply retroactively to actions pending at the time of the act’s effective date,33 effectively ending most litigation threats to the industry.

Broad application to “qualified products.” The PLCAA has proved to be an effective and reliable fire wall against most claims or lawsuits that plaintiffs have mounted against the gun industry due to mass shootings. Most recently, in Prescott v. Slide Fire Solutions, LP, a case arising out the 2017 Las Vegas shooting, a federal district court in Nevada found that PLCAA immunity extended to the manufacturer of the bump stocks used by the shooter to increase the fire rate and resulting harm inflicted on the victims.34 The court specifically found that bump stocks are not an accessory but are “component parts” of a firearm, and therefore they are “qualified products” under the PLCAA.35

Exceptions to federal immunity. PLCAA immunity is subject to certain enumerated exceptions,36 and those exceptions have received increased scrutiny in recent years. The most commonly invoked exceptions in mass shootings are for claims of “negligent entrustment” and claims that the manufacturer or seller knowingly violated a state or federal statute applicable to the sale or marketing of the product.

Both of these exceptions recently were addressed by the Connecticut Supreme Court in Soto v. Bushmaster Firearms in connection with claims by families of the victims of the Sandy Hook school shooting against the manufacturer, distributor, and sellers of the assault rifle used by the gunman.37

The Connecticut Supreme Court upheld the dismissal of the plaintiffs’ negligent entrustment claims, finding that the plaintiffs failed to establish that the retail defendants had any reason to expect that the shooter’s mother, the direct purchaser of the rifle, was likely to use the rifle in a manner that would involve an unreasonable risk of physical harm.

With respect to the second exception to immunity, however, the Connecticut Supreme Court reversed the lower court and found that the plaintiffs had standing to pursue claims against the manufacturer under the Connecticut Unfair Trade Practices Act (CUTPA), despite the lack of a direct business relationship, based on its marketing of the assault rifle. The claims included novel arguments that the defendants marketed the rifle

in an unethical, oppressive, immoral, and unscrupulous manner by extolling the militaristic and assaultive qualities of the rifle and reinforcing the image of the rifle as a combat weapon . . . for . . . waging war and killing human beings.38

The supreme court held that the CUTPA claims came within the PLCAA’s exception for knowing violations of state or federal statutes applicable to the sale or marketing of a firearm, where the violation was a proximate cause of the alleged harm. On November 12, 2019, the U.S. Supreme Court denied the defendants’ petition for review of the Connecticut Supreme Court’s decision, freeing the way for the lawsuit to continue.

State-law variations. Some states have their own state versions of gun industry immunity that may not include the same exceptions as the PLCAA.

In the aftermath of the Aurora, Colorado, theater shooting, the U.S. District Court for the District of Colorado dismissed claims against the gun shops that sold the gunman ammunition and equipment used in the shootings, holding that the sellers were immune from liability under the Colorado immunity statute and that exceptions in the PLCAA did not apply.39

The patchwork of gun control laws across the United States also creates uncertainty for retailers. An example of this arose in connection with the 2017 church shooting in Sutherland Springs, Texas, when survivors sued the sporting goods retailer that sold the gun used in the attack, claiming that the gun and magazine were purchased illegally and negligently sold in violation of federal law. The lawsuit claimed that although the firearm was legal in Texas, the shooter was a resident of Colorado, where it is illegal to sell or possess a magazine that holds more than 15 rounds. Experts disagree on whether the lawsuit has merit. Nevertheless, the risk of such lawsuits has led many retailers to stop selling the most dangerous weapons and high-capacity magazines associated with mass shootings.

Liability of Content Providers and Social Media

Mass shooting victims and their families also have filed lawsuits against media outlets and content providers, claiming that they have encouraged or incited violence.

Columbine shooting. In the wake of the 2002 Columbine school massacre, for example, victims sued video-game makers and movie producers and distributors, alleging that violent movie and video games were the cause of the shootings.40 The U.S. District Court in Colorado held that (1) the perpetrators’ intentional violent acts were not foreseeable and were the superseding cause of the deaths; (2) under Colorado law, as predicated by the district court, intangible thoughts, ideas, and expressive content contained in movies and video games are not “products” as contemplated by the strict liability doctrine; and (3) movies and games are protected under the First Amendment.41

Pulse nightclub shooting. More recently, victims of the 2016 mass shooting at the Pulse nightclub in Orlando, Florida, brought an action against three major social media platforms used by ISIS to spread messages of violence and hate that inspired the shooter to perpetrate the shooting.42 The plaintiffs claimed that the access and platform the defendants provided to ISIS, which allowed the gunman to hear its messages and become radicalized, were a contributing cause of the shooting. The plaintiffs also brought claims under federal statutes that create causes of action for aiding acts of international terrorism and providing material support to terrorists and foreign terrorist organizations. The district court dismissed the claims, finding that the elements of the federal antiterrorism statute, including the requirement that defendants’ actions were a proximate cause of the injuries, were not met.

On appeal, the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal, finding that it was not foreseeable that the defendants’ actions, including their alleged failure to police and prevent violent content on their platforms, would lead to the shooting. The court also found that the content did not play a substantial factor in or directly cause the shooter’s “appalling act.”43

The Sixth Circuit fell short of finding that the defendants could never be liable for a terrorist attack facilitated through their platforms. However, the court appropriately observed that if the plaintiffs’ arguments were accepted, “Defendants would become liable for seemingly endless acts of modern violence simply because the individual viewed relevant social media content before deciding to commit the violence,”44 an outcome that courts have unanimously rejected.

Insurance Coverage for Mass Shootings

Intentional acts excluded. Because insurance is intended to apply to events that are unexpected and unintended, direct coverage for a shooter almost always will be excluded. Courts generally do not hesitate to find intent to injure from the assailant’s actions and deny coverage to assailants on that basis.45 Learned treatises support the view that providing coverage for the intentional or willful misconduct of an insured is against public policy.46 Most states recognize that the court may infer intent to injure as a matter of law,47 even where the shooting is indiscriminate.48 Courts will look to the nature of the insured’s actions and other circumstances in determining whether intent can be inferred.

Jurisdictions and policy forms differ regarding the impact that mental illness can have on the existence of intent under the policy. In State Farm Fire & Casualty Co. v. Wicka, the Minnesota Supreme Court held that the insured’s acts were unintentional for purposes of the intentional act exclusion in the policy where the insured, because of mental illness or defect, either did not know the nature or wrongfulness of his act or was deprived of the ability to control his conduct regardless of any understanding of the nature of the act or its wrongfulness.49 In contrast, in Auto-Owners Insurance Co. v. Churchman, the Michigan Supreme Court held that an insane or mentally ill person can intend or expect the results of his actions within the meaning of the policy’s exclusionary clause.50

Homeowners and commercial liability policies also may contain a “criminal acts” exclusion. This exclusion typically bars coverage for bodily injury or property damage resulting from “a criminal act or omission.”51 The exclusion often is worded such that it applies regardless of (1) whether the insured person possessed the mental capacity to appreciate the criminal nature or wrongfulness of the act or omission, to conform his or her conduct to the requirements of the law, or to form the necessary intent under the law; or (2) whether the insured person actually is charged with, or convicted of, a crime. Injury resulting from a criminal act invokes the criminal act exclusion and precludes coverage as a matter of law.52 Intent to injure is immaterial to the applicability of the criminal acts exclusion.53

Innocent coinsureds. Even when coverage for the shooter is excluded, innocent insureds under the same policy still may be entitled to coverage. Generally, if the intentional act exclusion applies to injury or damage expected or intended by “the” insured, courts consider the intent of each insured separately. But if the exclusion applies to injury or damage expected or intended by “an” or “any” insured, courts often find that intent to injure on the part of one insured bars coverage for all insureds.54

Secondary actors: covered, but beware of exclusions. Coverage for third parties under separate liability policies generally is not impacted by the intentional nature of the underlying act. Thus, the negligence of a business in failing to warn or prevent an attack generally will qualify as an “accident” or “occurrence” that an insurer is obligated to defend, unless some broader exclusion applies.

One such exclusion is the “firearms” exclusion, which excludes coverage for bodily injury arising out of the “manufacture, importation, sales, distribution, gunsmithing, ownership, maintenance, or use of firearms or weapons.”55 In a recent decision, the U.S. District Court for the Middle District of Georgia denied coverage to the owner of a bar where a fatal shooting occurred, finding that the firearm exclusion in the policy applied to anyone’s use of a firearm.56

Another example is the “assault and battery” exclusion, which excludes coverage not only for bodily injury arising out of “actual or alleged assault or battery” but also for “any act or omission in connection with the prevention or suppression of such acts, including the failure to provide adequate security.”57 In Nautilus Insurance Co. v. EJIII Development Co., the insurer asserted this exclusion in response to a suit against its insured, a security firm, for failing to prevent a shooting at a Waffle House.58 The security firm’s standard general liability policy included an assault and battery exclusion but also was endorsed with a security and patrol agency professional liability coverage extension, which provided coverage for sums that the insured became legally obligated to pay as damages because of the rendering of or failure to render “professional services” in providing “security and patrol agency services.”59 The insured did not contest that the suit arose from an alleged assault and battery within the meaning of the exclusion, but argued that the professional liability endorsement overrides or negates the assault and battery exclusion. The court rejected this argument, finding that the exclusion was clear and unambiguous and applied to the professional liability endorsement.

Number of occurrences. Another important coverage issue in mass shooting cases is the number of occurrences. The number of occurrences comes into play where the insurance policy contains a “per-occurrence” limit of liability that is less than the policy’s aggregate limit. In this situation, a finding that the underlying claims arose from multiple occurrences expands the coverage available—at least until the total amount paid reaches the aggregate policy limit. Of course, if the policy does not contain an aggregate limit, the scope of coverage may be limited only by the number of occurrences.60 Conversely, if the policy contains a high retention or deductible written on a per-occurrence basis, a finding of multiple occurrences can reduce significantly the insured portion of a loss.61

Most jurisdictions recognize a relationship between the number of occurrences and the insured’s proximity to the act of shooting. If the event is viewed from the perspective of the perpetrator, there is a better argument for more occurrences.62 Alternatively, if the event is viewed from the perspective of another party—a business or a family member—there is a stronger argument for a single occurrence.63

The number of occurrences often comes down to whether a jurisdiction follows the “cause test” in determining an occurrence or focuses on the resulting injury. A substantial majority of jurisdictions apply the cause test, which determines the number of occurrences based on the cause of the injuries or damages. The minority rule is the “events test,” which focuses on the event for which the insured is held liable (e.g., a claimant’s injury or death at the hands of the shooter) rather than some earlier moment in the causal chain.

Even among jurisdictions that follow the cause test, however, there is significant variation. Many courts identify a single underlying cause (e.g., the insured’s failure to warn) to which all resulting injuries are attributable. For instance, in Donegal Mutual Insurance Co. v. Baumhammers, the parents of a shooter were sued by victims of their son’s two-hour, three-township shooting spree for negligence in failing to confiscate their son’s weapon and notify law enforcement and mental health care providers of his unstable condition.64 Despite the different locations and time between shootings, the court rejected the argument that there were six occurrences. Because coverage was predicated on the parents’ inaction, and the resulting injuries to the several victims stemmed from that one cause, the court reasoned that the parents’ alleged single act of negligence constituted one accident or occurrence under the policy.65

Similarly, in RLI Insurance Co. v. Simon’s Rock Early College—a case involving a campus shooting spree that lasted 18 minutes, spanned a quarter mile, and resulted in two killed and four injured—the college’s excess insurer sought a declaration that the underlying aggregate limit of $3 million applied.66 The primary insurer counterclaimed, asserting that its single per-occurrence limit of $1 million applied. The court found a single occurrence, concluding that the school’s allegedly negligent acts or omissions in failing to prevent the assailant from using his gun was the occurrence under the primary policy.67 The court reasoned that occurrence must be defined to give meaning to the insured’s connection to liability, and must be an event over which it had some control.68

In contrast, in Koikos v. Travelers Insurance Co., the Florida Supreme Court, on a certified question from the U.S. Court of Appeals for the Eleventh Circuit, held that although the underlying lawsuit alleged that the insured restaurant owner failed to provide adequate security, each of a guest’s separate gunshots at other patrons constituted a separate occurrence.69 The court, citing decisions addressing coverage for clergy sexual abuse, rejected the insurer’s reliance on the continuous or repeated exposure language in the policy, finding that it was a mismatch for this type of circumstance. The court focused instead on the immediate injury-producing act that caused the damage rather than the underlying tortious omission for which the insured was being sued.70

Las Vegas Music Festival Shootings

The facts surrounding the Las Vegas music festival shootings are well-known. On October 1, 2017, a lone gunman opened fire on a crowd at the Route 91 Harvest Music Festival in Las Vegas. The attacker fired from adjacent rooms on the 32nd floor of the Mandalay Bay Hotel across the street from the festival. In the span of 10 minutes, the attacker fired hundreds of rounds of ammunition, killing 58 people and injuring more than 850, making it the deadliest mass shooting in modern history.

The owner of the hotel and concert venue (MGM), the concert promoter (Live Nation), and the security firm at the concert faced hundreds of lawsuits for allegedly failing to employ adequate security measures at the hotel and the concert venue that could have prevented or limited the shooting. MGM alone received prelitigation hold letters from at least 63 attorneys on behalf of 2,462 individuals.71 The lawsuits question, among other things, how the gunman was able to spend several days amassing an arsenal of assault-style weapons and ammunition in his rooms at the hotel without being detected.72 Victims also questioned why the hotel and police did not act more quickly to stop the gunman.

Between life and health insurance, workers’ compensation, and property and liability claims, the insurance industry initially estimated that it could pay more than $1 billion related to the massacre.73 MGM’s recent announcement that insurers will contribute up to $751 million to its settlement of victim liability claims suggests that estimate may have been low.

With the media attention and reputational exposure associated with mass shootings, it may be inevitable for an insurer and a policyholder to have different views regarding the level of defense that will be provided, the scope of coverage afforded under a policy, and whether claims should be settled. MGM was insured under a primary commercial general liability policy that provided coverage for claims subject to a “per-occurrence” limit of $1 million and a general aggregate limit of $25 million. The policy included an expanded definition of bodily injury that encompassed “mental anguish, mental injury, shock, fright or death resulting from bodily injury sustained by a person,” ensuring coverage for the full range of injuries suffered by survivors of the mass shooting. Even with this coverage, disagreement emerged earlier this year when MGM filed suit accusing its primary carrier of willfully refusing to pay defense costs and attempting to exhaust its coverage limit prematurely in order to end the duty to defend.74 In the end, however, it appears that MGM had a significant tower of excess liability coverage that avoided the need for coverage litigation. But not all businesses will be so well protected.


As the cases discussed in this article demonstrate, even if an insured entity ultimately is found not liable for the actions of a mass shooter, the cost of defending businesses and building owners from claims arising out of mass shooting incidents is a significant exposure. Moreover, a time may come when public perception, institutional awareness and practices, and public policy converge to place greater duties and responsibilities on businesses, institutions, and professionals to act affirmatively to intervene and prevent mass shootings. Until then, count on insurance companies to continue responding to insureds’ concerns with new coverages and endorsements designed to help entities prepare for and respond to active assailant and mass shooting events.


1. The most widely used definitions range from at least four victims killed in a public setting (the most restrictive) to at least four victims injured in any setting (the most inclusive).

2. According to data from the Federal Bureau of Investigation (FBI) and the Advanced Law Enforcement Rapid Response Training Center at Texas State University, between 2000 and 2008, the United States experienced an average of seven active shooter events per year. From 2009 to 2016, there were 153 such events, or about 19 per year.

3. Protecting People and Operations from Active Shooter Threats, Marsh (Dec. 2017),

4. Chen v. Cty. of Santa Barbara, 2015 WL 1262150 (C.D. Cal. 2015) (alleging law enforcement “created a dangerous condition” by failing to reasonably investigate the shooter as part of “wellness check” despite being aware of his online postings and violent intentions); Andrade v. City of Somerville, 92 Mass. App. Ct. 425, 87 N.E.3d 108 (2017) (alleging that gun used to shoot victim had been wrongly returned to shooter by city’s police department).

5. Victims of the Aurora shooting sued a psychiatrist who worked for the University of Colorado, where the gunman attended school, and the university for failing to act on statements that the gunman allegedly made to the psychiatrist less than a month before the shooting. The claims were similar to claims made following the Virginia Tech massacre, where the gunman had numerous contacts with the school’s counseling center a year before the incident; demonstrated bizarre and troubling behavior, including suicidal and homicidal thoughts; and was even ordered by a judge to receive involuntary outpatient treatment, which the center never acted upon.

6. Victims of the church attack in Sutherland Springs, Texas, sued the air force and Department of Defense, alleging that the government was negligent in failing to report the gunman’s prior criminal conviction to the FBI background check system. The Department of Defense also faced lawsuits by several cities requiring it to fully report disqualifying criminal convictions to the agency that compiles the National Instant Criminal Background Check System database. In both cases, the lawsuits did not survive motions to dismiss. City of New York v. U.S. Dep’t of Def., 913 F.3d 423 (4th Cir. 2019).

7. These novel coverages include costs for crisis management, public relations, security consultants, forensic analysts, mental health services, recruitment costs and salaries to replace injured workers, no-fault medical expenses of victims, reasonable expenses of rest and rehabilitation, rewards leading to the arrest of assailants, business income coverage, relocation expenses of the insured and employees, cost of replacing buildings due to stigma, and security guard services on the anniversary of the event.

8. Restatement (Second) of Torts § 344 cmt. f (1965).

9. Id.

10. See, e.g., Circle K Corp. v. Rosenthal, 118 Ariz. 63, 574 P.2d 856 (1977) (“An employer in Arizona has a duty to provide its employees with a reasonably safe place to work and may be liable for mere failure to act to protect its employees from reasonably foreseeable criminal conduct.”); Wiener v. Southcoast Childcare Ctrs., Inc., 32 Cal. 4th 1138, 88 P.3d 517 (2004) (California law); A.H. v. Rockingham Publ’g Co., Inc., 495 S.E.2d 482, 486 (Va. 1998) (noting that an employer has no duty to protect an employee from third-party criminal acts unless the danger is “known or reasonably foreseeable” and concluding that knowledge of similar assaults in the preceding five years was not sufficient).

11. Commonwealth of Virginia v. Peterson, 749 S.E.2d 307 (Va. 2013) (As a general rule, a person does not have a duty to warn or protect another from the criminal acts of a third person. “This is particularly so when the third person commits acts of assaultive criminal behavior because such acts cannot reasonably be foreseen.”); McKown v. Simon Prop. Grp. Inc., 689 F.3d 1086, 1092 (9th Cir. 2012) (certifying question to the Washington Supreme Court); Delorenzo v. HP Enter. Servs., LLC, 2016 WL 6459550 (D.D.C. Oct. 31, 2016) (holding that “[w]here an injury is caused by the intervening criminal act of a third party, . . . liability depends upon a more heightened showing of foreseeability than would be required if the act was merely negligent,” but holding that a lower standard of foreseeability applies to claims of negligent supervision and retention); McKown v. Simon Prop. Grp. Inc., 344 P.3d 661 (Wash. 2015) (answering certified question).

12. See, e.g., Colo. Rev. Stat. § 13-21-115(3)(c)(I) (2018) (“[A]n invitee may recover for damages caused by a landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.”).

13. 193 Cal. App. 3d 495, 238 Cal. Rptr. 436 (1987).

14. Id. at 509.

15. Id. at 509–10.

16. Id.

17. Sigmund v. Starwood Urban Inv., 475 F. Supp. 2d 36 (D.D.C. 2007).

18. Commonwealth of Va. v. Peterson, 749 S.E.2d 307, 311 (Va. 2013).

19. Id. at 311.

20. 65 F. Supp. 3d 1093 (D. Colo. 2014).

21. Id. at 1099.

22. A release issued by the U.S. Department of Homeland Security to Cinemark and other theater chains in May 2012 noted recent incidents of concern, including “a communication from an al-Qa’ida-linked extremist advocating attacks on U.S. theaters.” Id. The government had “no specific or credible information indicating that terrorists plan to attack theaters in the United States” but warned that “recent incidents demonstrate that mass gatherings such as those associated with theaters likely remain attractive terrorist targets.” Id.

23. Id. at 1102.

24. Nowlan v. Cinemark Holdings, Inc., 2016 WL 4092468 (D. Colo. June 24, 2016).

25. Id.

26. — P.3d —, 2019 WL 989316 (Colo. App. Feb. 21, 2019).

27. Id. at *8.

28. Id. at *4–5.

29. Id. at *9.

30. See, e.g., City of New York v. Beretta U.S.A. Corp., 315 F. Supp. 2d 256 (E.D.N.Y. 2004); In re Firearm Cases, 126 Cal. App. 4th 959, 24 Cal. Rptr. 3d 659 (2005).

31. Ileto v. Glock, Inc., 565 F.3d 1126, 1135 (9th Cir. 2009) (quoting 15 U.S.C. § 7901(a)(5) (2005)).

32. 15 U.S.C. § 7903(5)(A).

33. Jefferies v. Dist. of Columbia, 916 F. Supp. 2d 42 (D.D.C. 2013).

34. Prescott v. Slide Fire Sols., LP, 2018 WL 4409369 (D. Nev. Sept. 17, 2018).

35. Id. at *8–9.

36. 15 U.S.C.A. § 7903 (West 2005).

37. Soto v. Bushmaster, 331 Conn. 53, 202 A.3d 262 (2019).

38. Id. at 86–87.

39. Phillips v. Lucky Gunner, LLC, 84 F. Supp. 3d 1216 (2015) (holding that the PLCAA did not preempt the Colorado statute, which prohibited causes of action that were otherwise permitted under federal law).

40. Sanders v. Acclaim Entm’t, Inc., 188 F. Supp. 2d 1264 (D. Colo. 2002).

41. Id. at 1272–73, 1276.

42. Crosby v. Twitter, Inc., 303 F. Supp. 3d 564 (E.D. Mich. 2018).

43. Crosby v. Twitter, 921 F.3d 617 (6th Cir. 2019).

44. Id. at 626.

45. Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d 286 (Pa. 2007) (finding no coverage for insured who went on two-hour shooting spree, killing five people in three different townships); Germantown Ins. Co. v. Martin, 595 A.2d 1172 (Pa. Super. Ct. 1991) (injuries caused by a shooting spree were expected or intended and, thus, were not covered under the policy; insured’s intent to shoot and kill “everyone” in a house could be transferred to a victim whose identity or presence was unknown to the insured at the time); Cal. Ins. Code § 533 (West 1972) (“An insurer is not liable for a loss caused by the wilful act of the insured. . . .”).

46. Couch on Insurance § 101:22 (3d ed. 2006).

47. Allstate Ins. Co. v. Pond Bar, No. 3-97-cv-1310, 1995 WL 568399, at *9 (D. Minn. May 19, 1995) (intent inferred as a matter of law where the insured engaged in a “shooting rampage” resulting in the death of several individuals); State Farm Fire & Cas. Co. v. Bomke, 849 F.2d 1218, 1219 (9th Cir. 1988) (finding intent to harm inherent in the actions of an accomplice).

48. Woida v. N. Star Mut. Ins. Co., 306 N.W.2d 570, 572–74 (Minn. 1981) (intent inferred where the insured was involved in shooting a gun at a truck with the knowledge that the truck was occupied, despite the insured’s insistence that he did not mean to injure anyone); Safeco Ins. Co. of Am. v. Butler, 118 Wash. 2d 383 (Wash. 1992) (injuries stemming from insured firing pistol into truck were not caused by an “accident” within the meaning of the policy).

49. 474 N.W.2d 324 (Minn. 1991).

50. 489 N.W.2d 431 (Mich. 1992).

51. See, e.g., Liebenstein v. Allstate Ins. Co., 517 N.W.2d 73, 75 (Minn. Ct. App. 1994).

52. Id.; Slayko v. Sec. Mut. Ins. Co., 98 N.Y.2d 289, 774 N.E.2d 208 (N.Y. 2002) (holding criminal activity exclusion did not violate public policy); Auto Club Grp. Ins. Co. v. Booth, 797 N.W.2d 695 (Mich. Ct. App. 2010) (holding that trial court erred when it granted summary judgment to insured concerning the applicability of the criminal act exclusion in homeowners insurance policy, where the defendant pleaded no contest to a misdemeanor charge of careless, reckless, or negligent discharge of a firearm resulting in injury; ordered summary judgment in favor of insurer).

53. Liebenstein, 517 N.W.2d at 75.

54. Allstate Ins. Co. v. Freeman, 432 Mich. 656, 443 N.W.2d 734 (1989) (holding that a husband who negligently made a gun available to his wife was not covered where the intentional act exclusion referred to “an insured”).

55. See, e.g., Hudson Specialty Ins. Co. v. Snappy Slappy LLC, No. 5:18-CV-00104-TES, 2019 WL 1938801, at *1 (M.D. Ga. May 1, 2019) (granting motion for reconsideration).

56. Id. at *3.

57. See, e.g., Nautilus Ins. Co. v. EJIII Dev. Co., No. 1:17-cv-2048-TCB (N.D. Ga. July 19, 2018).

58. Id.

59. Id. at *1.

60. See, e.g., Mason v. Home Ins. Co., 532 N.E.2d 526, 527–28 (Ill. App. Ct. 1988).

61. Nicor, Inc. v. Associated Elec. & Gas Ins. Servs. Ltd., 860 N.E.2d 280, 287 (Ill. 2006).

62. See N.H. Ins. Co. v. RLI Ins. Co., 807 So. 2d 171 (Fla. 3d Dist. Ct. App. 2002) (holding that three gunshots fired by a condominium resident, each of which injured a different person, constituted three occurrences under the condominium association’s insurance policy); Am. Indem. Co. v. McQuaig, 435 So. 2d 414 (Fla. Dist. Ct. App. 1983) (insured, who claimed insanity, fired three shotgun shots in a two-minute period, injuring two different people; court held that there were three occurrences); State Farm Lloyds, Inc. v. Williams, 960 S.W. 2d 781, 785 (Tex. Ct. App. 1997) (liability of insured shooter, who was covered under a homeowners policy, arose out of the shootings, and more than one per-occurrence limit applied).

63. Bomba v. State Farm Fire & Cas. Co., 379 N.J. Super. 589 (App. Div. 2005) (The plaintiffs argued each gunshot was a separate occurrence. The court found that there was one occurrence—the negligence of the gunman’s parents in permitting him to have access to the firearms in their home.); Travelers Indem. Co. v. Olive’s Sporting Goods, Inc., 2997 Ark. 516 (1989) (finding the sale of the weapons was the occurrence where insured store sold a pistol and shotgun to a would-be assailant, who used the weapons to shoot a police officer and kill and wound several others).

64. 938 A.2d 286 (Pa. 2007).

65. Id. at 295.

66. RLI Ins. Co. v. Simon’s Rock Early Coll., 54 Mass. App. Ct. 286 (2002).

67. Id. at 291.

68. Id. at 293.

69. 849 So. 2d 263, 271–73 (Fla. 2003).

70. Id. at 273.

71. In re Route 91 Harvest Festival Shootings in Las Vegas, Nev., on Oct. 1, 2017, No. MDL 2864, 2018 WL 4905479, at *2 (U.S. Jud. Panel MDL Oct. 3, 2018).

72. Over the course of six days, the shooter stockpiled an arsenal of weapons and associated equipment and ammunition, including 14 AR-15 rifles (all equipped with bump stocks and 12 of which had 100-round magazines), eight AR-10 rifles, a bolt-action rifle, and a revolver. He brought the weapons to his room in large cases, often with the help of hotel bellhops. On September 30, he placed “Do not disturb” signs on the doors of both rooms. The shooter interacted with Mandalay Bay employees more than 10 times during his stay, including twice on the day of the shooting. LVMPD Preliminary Investigative Report 1 October / Mass Casualty Shooting Event: 171001-3519, Las Vegas Metropolitan Police Dep’t (Jan. 18, 2018).

73. Sonali Basak & Hannah Levitt, Insurers Face Potential $1 Billion in Claims for Las Vegas Mass Shooting, Ins. J. (Nov. 13, 2017),

74. MGM Resorts Int’l v. Zurich Am. Ins. Co., 2:19-cv-01051-JCM-NJK (D. Nev. filed June 19, 2019).

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Michael Steinlage is an attorney practicing insurance, reinsurance, and business litigation with Larson King, LLP, in St. Paul, Minnesota, and the former chair of the TIPS Excess Surplus Lines and Reinsurance Committee.

This article is revised from a paper originally presented at the 27th Annual TIPS Insurance Coverage Litigation Committee Midyear Program. The views and observations expressed in this paper are solely for the purpose of discussion and do not reflect the official position of the author, his law firm, or their clients.