Last month, a gunman entered an El Paso Walmart, shot and killed 22 people and injured more than two dozen others. A local El Paso attorney filed suit against Walmart claiming that store had insufficient security. Besides the shooter “Malo,” is the retailer Walmart responsible? What about the property manager? The property owner? The architect who designed the retail store?
None are likely to be held responsible – except Malo. While the public’s demand to find and collar “someone responsible” – especially when the shooter dies, sometimes there just isn’t anyone else.
First, a primer on common law negligence. It’s like a cookbook with a recipe. A Texas Court must find: (i) a (legally recognized) duty; that was (ii) breached; and that (iii) caused damages. And, the plaintiff must prove that the party responsible for the premises – Walmart, the property manager, the property owner or even less likely, the architect – knew or should have known that the violent crime was foreseeable and that the conditions on the premises amounted to an unreasonable risk of harm.
Even though the El Paso attorney claimed that Walmart did not have enough security, decades of established Texas case law defeat his claim. Recently, the Texas Supreme Court confirmed long-established Texas law that property owners such as Walmart, the property manager and the property owner have a duty “to use ordinary care to protect [their customers] from criminal acts of third parties” IF they “know or have reason to know of an unreasonable and foreseeable risk of harm to [their customer].” This duty is balanced – by law – between the “magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the [property owner].” While some of the El Paso victims filed suit, unless they can show that there was a warning of the crime or that there was a pattern of similar violent crimes, a verdict against any property owner is not likely.
Practically – Observations
Beyond lawsuits and without getting into a political debate, are there practical solutions? Perhaps.
Almost certainly the architect who designed the retail store – or the mall – has no duty for failing to design a space that deters mass shootings, but what if the space design makes it more difficult for law enforcement to terminate the threat? Or, what if a better design could have made it easier?
Understandably, architects and planners attempting to balance aesthetics and security have strong differences of opinion. Without treading into how retail marketing and design might be negatively impacted – by law – by creating architectural designs to make public areas safer, I offer the following: hardened architectural elements and technology; bullet proof windows; limited sight lines; egress from a variety of exits; safe rooms at strategic locations; emergency protocol that permits, exit doors to be closed and locked at the push of a button, perhaps trapping Malo; integrating security into overall design; placing windows higher and curving halls to deny line-of-sight; and bullet-proof glass, to name a few.
Tilting the Scales in Your Favor
When all is said and done, which is easier – the Property Owner stopping the violent crime from being committed or the architect designing a space that makes it more difficult for Malo to succeed? Should the demanding public expect to be able to punish both? Or neither?
Having said that, buildings being designed into the future will almost certainly have design changes to attempt to delay violent crimes. While the private sector is beginning to step in where policy has failed to effect architectural design changes and improve security deployment and tactics, creating a “massacre proof” environment is not likely.
Foreseeability and a Business Owner’s Liability for Criminal Acts of Others
Business Owners Don’t Have Crystal Balls: Foreseeability and Liability for Criminal Actions
Have Gun, Will Travel: Owner’s Liability to Patrons for Violent Acts