Canadian Underwriter

Occupiers’ liability laws ‘not really devised for a shooter situation’

September 18, 2014   by Greg Meckbach, ASSOCIATE EDITOR

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WINNIPEG — Companies should conduct annual training drills so employees know how to respond if a hostile person with a firearm enters the premises and starts shooting people, but lawyers “really do not have enough information yet” on the legal liability of property management organizations in such situations, two RIMS Canada conference speakers suggested this week.

Lance J. Ewing, industry practice group leader for real estate and hospitality and leisure at American International Group (AIG) Inc., cited several recent incidents during a session titled Active Shooter: Will Your Company Survive? Will You?

Ewing’s examples included the December 2012 Sandy Hook school shooting in Connecticut, in which 26 died, and a September 2013 shooting in Washington, D.C. in which a contractor for the United States Navy killed 12.

“You are not immune from this in Canada,” Ewing said Tuesday to risk managers attending the 40th annual RIMS Canada Conference at the RBC Convention Centre in Winnipeg. He cited several Canadian examples, including two shootings in less than three years at Montreal universities.

On Dec. 6, 1989, Marc Lepine shot and killed 14 women (and then himself) at the University of Montreal’s Ecole Polytechnique. On Aug. 24, 1992, Concordia University engineering professor Valery Fabrikant (who is now in jail) shot and killed four professors and wounded a university staff member.

Schools conduct fire drills, but “not one child in North American schools has died from a fire in over 25 years,” though there have been dormitory deaths, said Ewing, a former risk manager for Harrah’s Entertainment Inc. in Las Vegas who has a masters degree in occupational safety engineering. “Yet there are grade schools that are not training kids, teachers, custodians and front desk people on what to do if in fact that there is a shooting.”

Also speaking at Ewing’s session was Toronto-based litigation lawyer Howard Borlack, a founding partner of McCague Borlack LLP.

“If you invite someone into your premises, you have a duty to keep them safe,” Borlack said, but added the “basic legal principles” on occupiers’ liability “were not really devised for a shooter situation.”

So far, most legal claims involving such incidents have been settled out of court, Borlack suggested.

“The person that runs the mall or the store does not want to risk the …. huge award that could be given” by a court in a lawsuit, Borlack explained. “On the other hand, the plaintiffs that are bringing these claims do not want to risk that they won’t get anything.”

Borlack, whose practice areas include insurance coverage, subrogation and commercial litigation, gave several examples of questions that shootings raise about occupiers’ liability.

“What do you do in a movie theatre? What do you do in a mall, where it’s open to the public? When you go into a mall (in the future), is it going to be like an airport? Are we going to demand that every person be screened, and they are not allowed to bring in anything into theatre? The law evolves. The more (shootings happen), the more you can argue that it becomes foreseeable.”

Citing a City of New York Police Department study (of 230 incidents in the states of New York, New Jersey and Pennsylvania), 26% of perpetrators had “no connection” with their targets, Ewing said.

“They just arbitrarily walk into a place and shoot,” Ewing said, suggesting risk managers need to ensure that security staff are trained.

“Many times (security staff) know what to do if housekeeping has not picked up the trash, but they don’t know (what to do) related to an active shooter,” Ewing said. “Getting a training plan together is simply not enough anymore. You’ve got to practice and train, and every member in your company should be trained at least once a year.”

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