School back pack with handgun, school shooting conceptOn February 14, 2018, Marjory Stoneman Douglas High School in Parkland, Florida, was subject to a tragedy. 17 people were killed and 14 were wounded. See, e.g., NBC News, “Broward County Sherriff details timeline of Parkland Shooting,” Video, Feb. 15, 2018, at https://www.nbcnews.com/video/florida-school-shooting-timeline-detailed-by-sheriff-1162718787706 (last visited Feb. 21, 2018). The deaths and injuries occurred after a man entered the school, went into classrooms, and began shooting at the students and adults inside. See id. This was the eighth school shooting in the United States in 2018, which is an alarming number. See The Guardian, “How many US school shootings have there been in 2018 so far?”, Feb. 14, 2018. As a result of these grave events, people have responded with numerous requests to lawmakers about how to address gun violence.

Litigators have a unique position: they do not pass legislation, but they do deal with the aftermath of tragedies like the Parkland shooting. Survivors and victims’ loved ones may turn to attorneys for legal redress, and attorneys should be aware of the potential civil options that exist to help. How the judicial system responds to these heartbreaking situations is extremely important, and litigation about the legal effects of such situations can, in turn, assist legislators, schools, and others in determining how to prevent future incidents. This article examines the role of attorneys and expert witnesses in addressing the Florida tragedy and mass shootings, focusing on some civil remedies that may be available to those forced to deal with the fallout.

Discussion:

People have responded to the Florida shooting in myriad ways, from marches against gun violence to calls for legislation. Attorneys play an important role in coping with this and similar tragedies, and civil litigation may provide avenues for some redress. What follows is a list of some ways in which attorneys may use the legal system to respond to tragedies like the one at Douglas High School.

(1). School/Personnel Liability:

One angle attorneys may consider involves whether the school or its employees may be liable for the shooting. A number of factors may help determine whether a school or its employees are legally at fault. With respect to the school itself, attorneys and courts will have to resolve several matters, including whether the school was negligent and could be responsible under a premises liability theory, whether sovereign immunity excuses a public school from liability, whether immunity shields school employees, and which employees (if any) may be legally accountable.

The general issue of public school liability for a shooting has been resolved in different ways, depending on the state. For example, family members of the victims of an Ohio school shooting sued the school and its administrators for negligence. See, e.g., Mark Gillespie, “Judge: Administrators not liable for Ohio school shooting,” US News & World Report, Feb. 18, 2018. One day after the Florida shooting, an Ohio judge ruled that the administrators could not be held liable, and the court had previously decided that the school itself was not legally responsible. See id. In Indiana, however, an appellate court held that a school was not immune from liability when a shooting occurred on its premises. See, e.g., M.S.D. of Martinsville v. Jackson, 9 N.E. 3d 230 (Ind. App. 2014).

The law that would apply in the Florida shooting is somewhat unclear. Public schools are often treated as government entities and invoke sovereign immunity as a defense to litigation. However, one law review author set forth an argument for holding a Florida airport (and the county, which is also the county where the Parkland school is located) liable for a mass shooting that took place on its premises in 2017. See Rolando Pumariega, “Exploring an Alternative Way to Establish ‘Foreseeability’ in Negligent Security/Premises Liability Cases: How Adopting a Different Approach in Florida Could Subject Broward County to Liability for the Injuries and Deaths that Resulted from the Fort-Lauderdale-Hollywood International Airport Shooting,” St. Thomas Law Review, Mar. 17, 2017.

According to the Sherriff of Broward County, where the shooting occurred, the school and several teachers were aware of the shooter’s past threatening behavior and had expelled him for disciplinary reasons. See, e.g., German Lopez & Jen Kirby, “Marjory Stoneman Douglas High School shooting in Florida: what we know,” Vox, Feb. 16, 2018, at https://www.vox.com/policy-and-politics/2018/2/14/17013596/parkland-florida-high-school-shooting (last visited Feb. 21, 2018). In order to resolve potential legal claims against a public school, attorneys and courts will require the assistance of expert witnesses. For example, experts in premises liability, negligence, security, education, and government immunity can help determine whether a school bears any legal responsibility for shootings. In addition, experts in educational administration can play an important role in litigation of this kind. They can assess which (if any) individuals may have had a duty to protect individuals on school premises, and they can examine whether those duties were properly carried out. Foreseeability is often a factor in premises liability cases involving violent incidents, and experts can help address to what extent it is relevant to potential claims against a school or its employees.

(2). Commercial Liability:

After many mass shootings, individuals ask how shooters obtained the weapons and ammunition they used to commit such violence. In Florida, the shooter legally purchased the AR-15 style assault rifle and multiple magazines he used during the school shooting. See Bart Jansen, “Florida shooting suspect bought gun legally, authorities say,” USA Today, Feb. 15, 2018. Gun manufacturers and dealers have a large degree of legal immunity from lawsuits because of the Protection of Lawful Commerce in Arms Act (PLCA), a federal law passed in 2005. See Zusha Elinson, “AR-15 Style Rifles: Popular and Easily Customized,” The Wall Street Journal, Feb, 16, 2018.

However, the federal law’s immunity is not universal and has six exceptions. One exception is “negligent entrustment,” and the family of a victim of the Sandy Hook school shooting is currently suing the manufacturer, wholesaler, and seller of the gun that was used in that tragic incident. See, e.g., Tina Bellon, “Newtown families seek to hold gunmaker accountable in Connecticut court,” Reuters, Nov. 14, 2017. That lawsuit is currently being reviewed and will be determined by the Connecticut Supreme Court. See id.

In Florida, some parties may suggest a relying upon a similar theory to file suit against gun-makers and dealers. Attorneys will require the guidance of expert witnesses to help determine whether a case for manufacturer/seller liability can be made. The experts who may weigh in on this matter are myriad: experts in product liability and firearms, gun sales/commerce, and marketing and advertising are all valuable. These witnesses can assess whether a manufacturer or dealer’s ads and marketing were designed to appeal to certain types of people. See id.

One factor that may affect the outcome of actions to hold gun-makers and sellers legally accountable is what a gun’s alleged purpose is, versus what the weapon is actually used for. One publication noted that the most deadly shootings since 2012 all involved similar weapons: an AR-15-style assault rifle. See Zusha Elinson, supra. This fact and other data that experts can provide may impact the outcome of lawsuits that request exceptions to the PLCA.

With respect to the Florida shooting, experts in the gun industry, firearm regulation, law enforcement, and marketing may help determine whether the specific facts in the Parkland tragedy should result in gun manufacturer and seller liability.

(3). Government Liability:

Public schools are frequently considered an extension of government actors and receive many of the same protections. However, in the Parkland case, there are several other government agents and organizations that some individuals feel are potentially liable. If the legal theory implicating Broward County for the mass shooting at a public airport is tenable, attorneys may consider suing that same county where the Douglas school shooting occurred. Others have suggested that the state of Florida bears some legal responsibility for failing to take certain precautions after the mass shooting at the Pulse nightclub in Orlando.  Legal actions against state or local governments may arise, and the extent to which sovereign immunity applies may be an issue. The success of such lawsuits may hinge upon expert witnesses, who can provide information on whether state or local governments owe a particular duty to individuals and, if so, what that duty entails. Experts in negligence, constructive knowledge, local and state policy, immunity, and gun violence may help attorneys and courts determine the outcome of prospective cases.

In addition, the FBI was alerted to a post by the shooter on a 2017 YouTube video about his plan to be a “professional school shooter.” See BBC News, “Florida shooting: FBI and teachers warned about Nikolas Cruz,” Feb. 15, 2018. The FBI was also given information on January 5, 2018, which warned about the shooter’s “gun ownership, desire to kill people, erratic behavior, and disturbing social media posts, as well as the potential of him conducting a school shooting,” according to a statement it released. See, e.g., BBC News, “Florida school shooting: FBI under pressure over failure to act,” Feb. 17, 2018. This information has led some individuals to consider whether the US government should face litigation over the Parkland shooting. Given that a judge recently allowed a group of children to sue the federal government for not protecting the environment (and therefore, endangering their health), cases involving the Florida shooting and using a similar legal theory could arise. In such an event, experts in law enforcement, federal immunity, firearms, and other areas may be the key to whether such actions succeed. Witnesses with expertise in negligence and what duty the federal government may have owed certain individuals would also be valuable in such lawsuits.

Conclusion:

The school shooting at Douglas High School in Florida is “the deadliest school shooting in five years.” Lopez & Kirby, supra. Many legal analysts are considering who bears legal responsibility for that tragedy. Aside from the criminal proceedings against the individual shooter, a number of civil lawsuits may arise in the aftermath. Attorneys contemplating various legal theories will be greatly assisted by expert witnesses, who can help resolve whether certain parties should be held liable. Litigation that arises in response to the shooting may help survivors and victim’s loved ones find closure, and such lawsuits may also assist everyone to figure out how to best prevent future violence.