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On April 1, 2020, Florida’s Fourth District Court of Appeal upheld the dismissal of a negligence suit brought by victims of the massacre at the Pulse nightclub against the security company that employed the shooter, Omar Mateen. The court ruled that the employer, G4S, did not owe a legal duty to protect the plaintiffs from Mateen under the facts alleged in the complaint.
Facts Alleged in the Complaint
In Abad v. G4S Secure Solutions (USA), Inc., a group of survivors and decedents’ representatives sued G4S for negligence in connection with the tragic mass shooting that occurred at Pulse nightclub on June 12, 2016.
According to the allegations in the complaint, G4S was on actual notice of Mateen’s emotional instability, violent tendencies, and extremist views, yet still employed him as an armed security guard and provided him with firearms training. The plaintiffs alleged that G4S’s awareness of Mateen’s troubling behavior enabled him to commit a mass murder and created a duty of reasonable care owed to the victims.
G4S hired Mateen as a “Custom Protection Officer” in September 2007. Before hiring Mateen, G4S was aware that he had been dismissed from corrections officer training for suggesting he might bring a gun to class after the mass shooting that occurred at Virginia Tech in April 2007.
To qualify for a Florida Class “G” license permitting him to carry a firearm as armed guard, Mateen first had to pass a psychological fitness exam. Plaintiffs alleged that G4S faked the exam and falsely represented to the State of Florida that it had been completed by a licensed psychologist.
After he became licensed, G4S provided Mateen with firearms training, including target training on a live fire range. The training provided by G4S enabled Mateen to become a highly proficient gun user and an expert marksman.
During his ten years of employment, Mateen behaved erratically and threatened his co-workers. He boasted of having connections to al-Qaeda, Hezbollah, and the Boston Marathon bombers, and praised the army major who shot 45 people at Fort Hood, Texas. He told colleagues of a desire to “martyr himself.” These incidents were reported to G4S management, who transferred Mateen to a new location without testing his fitness for duty.
At his new post, Mateen worked with a former police officer who reported to G4S that Mateen “was unhinged and unstable,” “engaged in frequent homophobic and racist rants,” “talked about killing people,” and “threatened he would commit a mass shooting, killing enough people to set a record.” The co-worker repeatedly asked to be transferred away from Mateen and resigned when his requests were ignored.
Two weeks before the shooting, Mateen tried to buy body armor and ammunition from a licensed gun dealer without showing his Class “G” firearm license, and was rejected. A week later, he brought his license to a different dealer and bought the guns he later used in the mass shooting at Pulse.
Plaintiffs alleged that G4S created a broad zone of foreseeable risk to the general public by: 1) hiring Mateen as an armed guard despite his statements about the shooting at Virginia Tech; 2) training him in the use of firearms; 3) ignoring disturbing behavior on the job; and 4) assisting him in fraudulently obtaining a firearm license. Plaintiffs alleged that under these facts G4s owed them a legal duty of reasonable care.
Reasons for Dismissal
The Fourth DCA ruled that G4S’s actions as alleged in the complaint did not create a foreseeable zone of risk to the plaintiffs. As a result, there was no legal duty to protect them from the horrific actions of Omar Mateen.
Plaintiffs in negligence cases must show that the defendant owes them a legal duty. The existence of a duty is a legal question for the court to decide, and depends on whether the defendant’s conduct created a “zone of risk” that produced a foreseeable threat of harm to others. A duty may arise by law or from the particular facts of the case.
Plaintiffs argued that the facts created a foreseeable zone of risk that gave rise to a duty to protect them. They compared the case to United States v. Stevens, a 2008 wrongful death case in which the victim received a letter poisoned with anthrax that was traced to an Army research facility. The Florida Supreme Court held that the United States government owed a duty to the victim because: 1) the research facility processed a known hazardous substance; 2) the government knew the risks anthrax poses to the general public if not properly secured; and 3) the victim’s death was foreseeable due to the inadequate security measures in place at the facility. Plaintiffs argued that the acts of G4S enabled a mass shooting in the same way that the acts of the government enabled the mailing of an anthrax letter.
The 4th DCA disagreed for two reasons. First, it found that, unlike anthrax, guns are pervasive, and weapons training is an “intangible” that cannot be traced to any training provided by G4S. Second, it found that firearms are viewed as a benefit to society as a means of protection, whereas anthrax is generally viewed as harmful to society as an instrument of terror.
The 4th DCA also found that G4S’s actions would not have fallen into either exception to the general rule that a person has no legal duty to prevent the misconduct of third persons. Specifically, G4S did not have a special relationship with the plaintiffs, and it was not in control of the premises where the shooting occurred or the weapons that were used to commit the crime. The court also noted that Mateen was not under the control of G4S because he committed his crimes on his own time, with his own weapons, at a location of his own choosing.
Calling it “legally irrelevant,” the 4th DCA rejected the plaintiffs’ argument that Mateen was only able to buy the weapons he used in the shooting because G4S helped to falsify his qualifications for a Class “G” firearms license. The court said that since a Class “G” license is not a legal requirement to buy firearms, Mateen could have purchased the exact same weapons from another dealer without the license.
Finally, the court considered the policy implications of its decision for employers. It warned that plaintiffs’ failure to put any limits on the scope of the duty “would essentially result in G4S being strictly liable and an absolute guarantor of Mateen’s behavior while off duty at all times.”
Impact of Decision
The Fourth DCA’s decision in Abad shows the difficulties that victims of mass shootings face in trying to seek compensation from third parties who had no direct involvement in the incident. Although mass shootings have occurred with alarming frequency, they are still so rare and unpredictable that courts are reluctant to impose third-party liability for the criminal acts of the shooter. Even in a case like Abad where the third-party employer was on actual notice of the shooter’s violent tendencies and hateful ideology, the event was considered so unforeseeable that no duty to use reasonable care to prevent the attack was found.
However, the Fourth DCA stopped short of finding that an employer can never be liable for the violent criminal acts of its employees committed outside the workplace. In fact, the case may have been decided differently if Mateen had used a weapon provided by G4S to commit the crime, or if he had disclosed his intentions to a coworker prior to the shooting, or if he had used a company computer or phone to look for targets. As these horrific mass shooting events continue to occur, it seems all but inevitable that employers and other businesses will be burdened with a legal duty to take reasonable measures to prevent them.