MGM, the owner of both the hotel from which the mass murderer shot, and the packed concert venue where so many were seriously injured, may not be legally liable for this Mandalay Bay incident, but it and/or other owners are more likely be to be found financially liable now that such events have suddenly become reasonably foreseeable, says public interest law professor John Banzhaf.
To hold the hotel liable, plaintiff's lawyers would have to establish at least three elements of the civil tort of negligence: (1) that the hotel was negligent for failing to notice allegedly suspicious activities by a guest; (2) that it should have been able to reasonably foresee that a guest would break a window and use a high powered rifle to kill attendees hundreds of yards away; and (3) that the hotel had a legal duty to protect concert patrons from this type of danger, especially if they were not not known to be guests at the hotel.
It has been suggested that (1) [negligence] can be shown by the failure of hotel employees to be suspicious when a guest checked in with at least 10 suitcases, suitcases which may have been extraordinarily heavy because they contained guns and ammunition, and/or that he remained holed up in his room for several days without room service.
But it apparently is not that uncommon for guests to bring in many suitcases, even heavy ones, since they may contain books, exercise equipment, etc. which would make them heavier than ordinary suitcases, and to remain ensconced in their rooms without room service or cleaning for many reasons.
Item (2) [foreseeability] could also be difficult to establish since nothing like this has ever reportedly happened before, here or abroad. While sniper shootings have unfortunately become so common that they can reasonably be foreseen in general, most have apparently been from the tops of structures, open windows, cars, or from on-the-ground concealment, not from breaking windows in a high rise building.
Item (3) [duty] may also be difficult to establish, since hotels have generally been held to have a legal duty only to persons (including guests, employees, etc.) lawfully on their premises, or perhaps to persons immediately outside on the sidewalk where they could be hurt by objects thrown or dropped from an open window, explosions from bombs, gas leaks, or other events, etc. This legal duty would not normally extend to someone hundreds of yards away.
Ordinarily, a potential defendant is liable only to persons to whom it can reasonable foresee being endangered by its negligence, not to people hundreds of yards away with no physical connection. Here, since MGM reportedly owned the venue where the injuries occurred as well as the hotel from which the shots were fired, and therefore owed some duty of care to anyone lawfully on its premises (e.g., concert goers), duty might possibly be found.
However, if Stephen Paddock had rented a room near some unrelated venue - for example, Fenway Park - and shot from one of its rooms, it would be far more difficult to find that the hotel owned much of a duty to persons hundreds of yards away in a completely separate and independent venue.
However, all of this has now changed, since what may once not have been reasonably foreseeable has now become - by virtue of it already having occurred in a very public way - all too foreseeable. Perhaps the best known example of this occurred in 1982.
Prior to that time, few if any drug manufacturers took any precaution to prevent tampering with drugs sold over the counter at drugstores because it was not foreseeable that a madman would open such drug bottles and add poison. But once that happened to bottles of Tylenol in Chicago, such tampering obviously became reasonable foreseeable.
As a result, a failure to take reasonable steps to protect customers from this new now-reasonably-foreseeable danger would constitute negligence, and form the basis for financial liability to anyone injured by a similar poisoning in the future. As a result, drug companies changed to tamper-resistant packaging to protect against any repetition of this now foreseeable behavior.
So, now that this shooter-from-broken-windows behavior is clearly foreseeable, what can be done? The law says that companies should take precautions which are "reasonable" - i.e., not unreasonably expensive for the companies (e.g., opening and searching every bag or inspecting every room every day), nor unreasonably intrusive upon its guests.
For example, the Wynn resort has begun scanning guests with metal detectors and putting their bags through X-ray machines. The fact that a major company has taken this action indicates that it is not unreasonably expensive or burdensome, especially since it similarly protects its guests as well as others against shooting incidents within the hotel itself, explosions by homemade bombs brought in by guests, and even the use of heavy machinery to loot safe deposit boxes or other valuables.
Owners or operators of venues for large scale public events such as concerts or sports may have a more difficult time taking reasonable steps to protect their attendees from gunfire from locations within several hundred yards of the site. After all, they cannot be expected to put up giant shields of bulletproof glass.
But, suggests Banzhaf, they might scan nearby buildings for any windows which suddenly break - a task which might even be performed by a properly programmed computer fed with one or more high resolution cameras trained on any nearby buildings, and overseen by a trained operator. If publicly announced, such measures might deter similar conduct in the future from another murderous sniper. At the very least, such surveillance by humans and/or computers might provide valuable seconds of warning during which fans could try to take cover.
A more complete response, and one which would still not be prohibitively expensive, would be for the venue to couple spotters with its own snipers set up to shoot into broken windows if a madman tried shooting from windows he had just broken out.
After all, in the Vegas shooting, it reportedly took law enforcement over 70 minutes to break into the shooter's room. While he had long since stopped shooting by that time, it appears that he was able to shoot for approximately 10 minutes without any interruption. At hundreds of rounds per minute, that's a lot of shots into a crowd which had little place to run.
If, on the other hand, a venue under such an attack had trained snipers in place to shoot into any rooms from which shots are fired at the crowd, those sniper shots would probably stop the murderous attack, or at least least make it far more difficult for it to continue until a breech of the room can occur, argues Banzhaf.
In short, says Banzhaf, this event will irrevocably alter our perceptions about what dangers can reasonably be foreseen, and the duties of responsible corporations to take reasonable steps to reduce those dangers. That's exactly what happened when Tylenol bottles were poisoned, when terrorists took over airplanes with knives, when another terrorist was found to have created a shoe bomb which could have downed an airplane, and in other similar instances. What had previously been unforeseeable suddenly became very foreseeable, and imposed a new duty to take reasonable care.
Exactly what those steps will be remain to be seen, but could include x-ray and/or magnetic screening of the luggage of guests staying in high rise hotels in populous areas, better training of hotel staff to notice and report activities which may seem suspicious, the posting of spotters during outdoor sporting events, concerts, and similar mass gatherings, and possibly even the posting of specially trained counter snipers to fire back if another madman likewise opens fire on a large crowd concentrated for an event in a confined area.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418