Las Vegas Shooting - Will Liability Change U.S. Security Forever?

 

 

 

 

 

 

 

 

Substantial loss of life often leads to change. This is a fact, regardless if this change is eventually for the better. Governments feel compelled to act, parliaments enact laws and (especially in the litigious United States) multi-million dollar verdicts change policies in even the richest defendants.

 

Will the Las Vegas massacre lead to any kind of change in the U.S.?

 

In Australia most firearms were banned following a tragic shooting which ended the lives of 35 of people and wounded 23 more; the U.S. will not likely follow the same path due to the widescale support of the 2nd amendment in the United States and doubts whether even such a drastic step there would stop deranged individuals from carrying out similar acts in the future.

 

But as previously noted, loss of life often leads to change and with the firearms industry seemingly immune from drastic changes, what form of change can be expected to take in America?

 

Already, hundreds of lawsuits have been filed by victims of the LV concert attack and their families. These lawsuits are aimed at the estate of the Steven Paddock, the perperator of the attack who took his own life, the manufacturer of the 'bump stock', which allegedly assisted Paddock with firing his guns more rapidly but more interestingly, also against 'Live Nation', the event organizers and MGM Resorts International, a multi-billion dollar global hospitality and entertainment company which owns the Mandalay Bay Hotel.

 

The plaintiffs allege that the event organizers were negligent for failing to provide an adequate exit plan and adequate security at the event and that the Mandalay Bay Hotel failed to identify 'red flags' which could have prevented Paddock's attack, failed to respond to the incident in a timely manner and should have generally been better prepared for such an attack.

 

While it remains unclear, at this time, whether the plaintiffs will be able to prevail in court against the Mandalay Hotel, their argument of 'negligence' is a very interesting one and could potentially change U.S. security forever.

 

'Negligence' in the tort law setting is, generally speaking, a breach of a duty of care which the alleged malfeasor owed to the victim. In order to prevail, the plaintiff will need to prove that the defendant owed him a duty of care, that he did not act as a reasonable person, leading to the breach of this duty and resulting in the plaintiff's damages.

 

Ultimately, the courts will need to determine whether the Mandalay Bay Hotel owed a duty of care to the thousands of people attending the concert across the street from the hotel and if so, whether the hotel was negligent in any of the stages leading up to the event or during the event, however, the mere size of the potential verdict in this case which involves some 22,000 spectators, the hundreds wounded, 58 killed and all others affected by the event, might be enough to push through a change even if ultimately the parties reach an out of court settlement or if the court fails to recognize the plaintiffs' claims.

 

'Negligence' - a layman explanation

 

In order to better understand the legal term 'negligence', let us examine the tragic events of 9/11.

 

As previously noted the term 'negligence' consists of a 'duty of care' and a breach of that duty. In order for a 'duty of care' to exist, the risk, among other factors, must have been 'reasonably foreseeable' to the defendant.

 

Were the 9/11 attacks foreseeable?

 

The intent of extremists to target the United States was widely known.

 

The potential for highjacking commercial aircraft was also well known prior to 9/11.

 

What is believed to have been a new concept is the intentional crashing of aircraft by highjackers, but this is, unfortunately, not true.

 

Prior to the terrible events of 9/11, several commercial aircraft have been intentionally crashed: Egypt Air flight 990 was intentionally crashed in 1989. The aircraft's pilot is believed to have committed suicide, killing all those on board. Ethiopian Airlines Flight 961, in 1996, is a similar event where hijackers intentionally crashed a commercial aircraft. Finally, Eastern Air Lines Shuttle Flight 1320 is another attempt by a highjacker to crash an aircraft which took place in 1970 and was foiled by the pilots who were ultimately able to overcome the highjacker who instructed them to "fly east until the plane ran out of fuel".

 

Other, similar events, have also taken place, making this threat known to the airline security industry. What was also known was that the Israelis were employing a very simple method to counter highjackings: locking cockpit doors during flights.

 

The conclusion must, therefore, be that the attacks were reasonably foreseeable, at least by airline security personnel.

 

The next question is therefore whether a 'breach of the duty of care' occurred when the highjacked aircraft were allowed to crash their aircraft into the World Trade Center Twin Towers?

 

Should World Trade Center security executives have reasonably expected an attack of a 'standard' nature on their buildings? The answer to this question is positive, given their 'status symbol' and the fact that they had already been previously attack with a car borne bomb.

 

But even if an attack with an aircraft were to be reasonably expected by World Trade Center executive, which is questionable, could anything be reasonably expected to be done by these individuals to prevent this? The answer is of course, no. While they should have been expected to plan for an evacuation and carry out an evacuation once the attack occurred, they could not have been reasonably expected to prevent the aircraft from being highjacked or flown into the buildings they protect.

 

Should the airline security executives (along with elements of the U.S. govt. overseeing air travel) be expected to foresee the threat of crashing highjacked aircraft and be required to take reasonable action to prevent it? The answer to these questions is, based on what has been previously explained, 'yes' because the threat was previously known, the motivation existed, and because, as previously mentioned, a cheap and effective solution existed and already in place on Israeli flights.

 

The hundreds of millions of dollars paid to families of the 9/11 victims, unfortunately, support this finding.

 

Conclusion

 

As previously noted, it will be ultimately up to the U.S. court system to determine whether any of the parties in question was negligent. However, given, the potential monetary value of this case and the length of time it is expected to be processed through the legal system, including appeals (this 9/11 lawsuit was only recently settled), which will almost certainly be filed, organizations subject to this type of risk should begin to reexamine their security practices.

 

 

 

*Perry Novotny is an attorney licensed to practice law in Israel and New York and a principal of the world’s first security law firm which deals with the legal aspects of security including issues related to liability and threat mitigation. Mr. Novotny is a former member of the Israel National Police, a licensed firearms instructor and a reserve officer in the IDF JAG corps.