Unfortunately, the short answer to this question is “yes.” Design firms are increasingly being asked to respond to civil lawsuits arising from mass shootings. Traditional defenses have been eroded. We believe that this is due to: 1) heightened standards of care applied to designers; 2) the broadening of legal foreseeability findings; and, 3) evolving public attitudes affecting courts and juries.
Can You, and Should You, Design for Worst-Case Scenarios?
Mass shooting events tragically inflict extreme harm, leaving behind deceased, wounded and traumatized victims of gun violence. In the past decade, well-publicized projects have been built in reaction to mass shootings. These projects have shone a spotlight on how thoughtful design concepts (e.g., intelligent fences, safe rooms) developed by architects and security consultants can help prevent, or at least lessen the impact of, these tragedies.
Security design practices have been around for centuries, but those that specifically contemplate mass shootings are attracting increased attention. For instance, enhancements designed in response to a mass shooting were incorporated into the new Sandy Hook school. The new school (on the same site) has “a winding entrance tucked away from the main road, myriad surveillance cameras, and floor-to-ceiling windows.”[1] The AIA is also actively promoting security-focused design, explaining “the idea is not that design can definitively protect people from an active shooter …, but rather that it can help discourage such threats or create delays that save lives.”[2]
Events at schools receive the most attention, but mass shootings can occur wherever people congregate. These human-caused tragedies have played out in all types of public and private spaces. Statistically, the most frequent location is at a commercial business open to the public. But in recent years, we have seen horrific events play out in every corner of the built environment, including grocery stores, nightclubs, movie theaters and concert halls. Media coverage and criminal prosecutions follow. But what happens when civil lawsuits are filed?
What Critical Issues are Litigated After Mass Shootings?
In a negligent design claim, a plaintiff must prove that the designer fell below the standard of care, and that this conduct contributed to the resulting damages. Notably, the harm must have been legally “foreseeable” or it can be tossed out of court. The standard of care is often defined by outside experts. Increasingly, experts and courts are stretching standard of care and foreseeability concepts well beyond previous limits.
Civil lawsuits are now routine after mass shootings. These cases are usually rooted in premises liability theories, alleging that the owner of a space failed to exercise reasonable care to warn against or prevent foreseeable harm. Litigation can also lead to the addition of negligence claims asserted directly against designers who worked on, but did not own or operate, the space. These claims – which can be brought by victims or owners – seek to cast a wider net of responsibility and pursue additional recovery sources. Today, designers have more risk for these types of claims than ever before. While winning these emotionally-charged claims on standard of care and foreseeability is not impossible, very few defendants want to go to trial.[3]
Focusing on security in design should be encouraged, and these efforts will help protect people. However, from a legal viewpoint, this work may have unintended consequences. This is because hindsight-based arguments that a design contributed – even in a small way – to damages from a mass shooting can effectively raise the standard of care from a “lessons learned” perspective. Experts will also argue that a mass shooting was foreseeable. Later cases have built on findings from earlier cases in circular fashion, expanding awareness of risk, spotlighting the evolving standard of care, and making foreseeability easier to prove in future cases.
Standard of care and foreseeability concepts are also progressing due to pronouncements and publications from “security design consultants” who remind owners and design firms to anticipate these events in the design phase. Cynically, there is a great deal of money to be made selling services and products in this expanding field, and many recommendations and products are unproven from a scientific perspective. Do they really work, or might they make a bad situation worse? Security design consultants always recommend conservative courses of action. Ask yourself, when you take on a new building project, do you always recommend a Threat Vulnerability Risk Assessment? Do you always retain a security consultant? Should budget concerns impact decisions? Many experts will opine that you are violating the standard of care if you do not pay enough attention to security in design.
In addition to standard of care expansion, as designing for the worst case becomes more commonplace, foreseeability contentions can become more supportable in court. Since foreseeability is an essential element of a claim, in many venues courts and juries will more likely find that a plaintiff can prove that a mass shooting was legally foreseeable. As we have already seen in some cases, finding that a mass shooting is foreseeable is more likely if a particular type of space or business is “attractive” to the shooter.
Our concerns have been heightened by rulings in an ongoing premises liability case arising from a mass shooting at a family planning clinic in Colorado. Initially, the judge followed precedent and granted summary judgment for the owner, reasoning that the shooter was the “predominant” cause of the deaths and injuries. She found that “a reasonably thoughtful person would not have predicted that a deranged man would appear … seeking to commit a mass murder.” However, this ruling was reversed on appeal, exposing owners and potentially others to increased risk from human-caused “threats or hazards that become known to their organizations.”[4]
Litigation Attitudes Towards Mass Shootings Continue to Evolve.
It is still rare for victims to sue design professionals directly. Most thoughtful decision-makers can be persuaded that, while security concepts are evolving, there is only so much that designers can do to address (in advance) future tragedies. However, as mass shootings have become more frequent, intensifying public outrage provides stronger footing for courts and juries to accept arguments in favor of victims pursuing negligent design claims. These cases, often rooted in “reptile” strategies, can undercut (or completely disregard) traditional design defenses.
Conclusion.
Despite the coverage of mass shootings throughout the country and in all types of spaces, the odds of a person falling victim to such an event remain thankfully low. And yet, because mass shootings are highlighted in the news, debated in government hearings and reexamined in studies, the public consumption of mass shooting news coupled with federal government inaction has contributed to what psychologists refer to as “national anxiety.” This “national anxiety” will affect court rulings and verdicts. In numerous courthouses nationwide, the efforts and attitudes of victims’ attorneys, expert witnesses, courts and juries are expanding the types of theories that can be alleged, and the potentially responsible defendants that can be sued. Designers must be cognizant of these dynamics – and the possibility of increased future exposure – when undertaking new projects, and certainly when responding to potential claims.
[1] Please see: “Sandy Hook Elementary School was rebuilt after the shooting, and it hides security in beautiful design,” https://www.businessinsider.com/new-sandy-hook-elementary-design-2016-8 (last visited September 22, 2021).
[2] Please see: “How Architecture and Design Can Hinder Active Shooters,” at https://www.architectmagazine.com/aia-architect/aiafeature/how-architecture-and-design-can-hinder-active-shooters_o (last visited September 23, 2021).
[3] These cases present questions of whether security measures that might have discouraged a mass shooting were considered. In the AIA publication cited above, architect Barbara Nadel offered that “[t]he owner will decide which elements from a risk assessment to pursue, as there’s a price tag attached. The architect should understand the potential liability if a catastrophic event occurs and they … have not adequately included established protective measures.”
[4] Please see: “Expanding Potential Exposure for Businesses,” The Colorado Lawyer (May 2021).