The Legal Implications of the Route 91 Harvest Festival Shooting

It’s now been a little over a week since Las Vegas suffered the Route 91 shootings on October 1, 2017. It’s been an incredibly difficult week for us here in Las Vegas, especially as we still sit here wondering what on earth could make someone commit such a profoundly evil act against a group of strangers who were just trying to enjoy music and the company of friends.

There is more than enough already written about the deranged individual who meticulously plotted the shooting, but the point of this blog post is to address the inevitable legal ramifications of the shooting. I’ve already been asked by my family and friends about who will get sued over this tragedy and if the victims can win. There is no perfect answer at the moment, but this post is an attempt to break down who, if anyone, could be held potentially liable and why.

The shooter

Obviously, the shooter is liable for his intentional acts. There is more than enough proof to demonstrate who was shooting and what the results of that were. The victims of the shooting should obviously be making claims against the estate of the shooter to ensure that his money does not go to his heirs. One of the victims has already sued to freeze the shooter’s assets to ensure this does not happen.

This is a unique situation in a sense because the shooter evidently was financially well off when he died. Usually suing the estate of a shooter would be a relatively futile act because most deranged lunatics do not amass the type of wealth that he evidently did.

The manufacturer of the bump stock

At least one lawsuit has already been filed against the manufacturer of the bump stock. This likely was done for the sake of completeness in naming parties and also to garner headlines, but it is unlikely that the manufacturer of the bump stocks used here would be liable. Many, many people have tried to sue gun manufacturers before without success. As long as the government allowed them to be sold, the manufacturer will have a strong defense. This is especially true since the manufacturer would have no direct interaction with the shooter and thus could not have been placed on notice of the shooter’s possible intent.

Still, the law is changing all the time and the standard of care is a concept that evolves continuously. The tobacco industry was thought to be immune from lawsuits until they weren’t. The argument here is better than the usual argument against gun manufacturers, since it appears the bump stock was manufactured specifically to circumvent federal law banning sales of fully automatic weapons manufactured after 1986. Liability for the manufacturer still remains relatively unlikely in my opinion, however.

Gun stores that sold the guns

Current evidence suggests that all the guns were purchased legally from several different stores. Absent some compelling new evidence showing that the shooter made his intentions known or demonstrated clear and unequivocal signs of mental instability, the gun stores should not even be named in a lawsuit. No court is going to make a gun retailer the insurer against bad acts by the purchaser.

Mandalay Bay

The most common question out there seems to be whether Mandalay Bay and MGM could be held liable for the deaths and injuries here. It’s impossible to give a perfect answer because we do not yet have perfect information on the timeline leading up to the shooting. There are essentially two distinct arguments against Mandalay Bay, based on the current information known.

The first argument is that they should have known that the shooter was bringing that arsenal up to his room. The problem here is that the standard of care for hotels does not include evaluating the contents of any guests’ bags. There’s no reasonable expectation that security at Mandalay Bay should have been scanning the bags or boxes brought up by the shooter. The standard of care in the industry is based on what everyone else in the region does, and no hotel that I’m aware of has you pass your bags through any type of scanner before taking them to your room. Unless the shooter was walking in with an armful of rifles, it’s hard to argue Mandalay Bay should have been on notice of his intentions.

The second argument involves the chronology of the shooting, and may carry a little more weight depending on how the facts play out. Original reports were that the shooting began and then Mandalay Bay’s security went up to the 32nd floor to investigate. The security guard was shot by the shooter, called the police, and the police arrived shortly thereafter. Now, though, the chronology is shifting to suggest that perhaps Mandalay Bay’s security officer went up to the 32nd floor before the shooting. Then he radioed down to call for the police, but at the date of publishing this post it is unclear whether Mandalay Bay’s security actually did call the police or not at that point.

If Mandalay Bay called the police immediately upon learning of the shooting, it’s hard to argue that Mandalay Bay did anything that violated the standard of care. We do not expect hotels to handle violent criminals without police intervention. If, however, the police were not called following the shooting of the Mandalay Bar security officer, this could implicate Mandalay Bay in the liability because that delay could have potentially contributed to the deaths or injuries of the over 500 victims. A six-minute delay doesn’t seem like much, but the shooting evidently lasted a span of approximately 10-12 minutes in total. Reducing the response time by six minutes could have potentially limited the number of casualties.

Facts are still being sorted out, though, so it’s difficult to say whether Mandalay Bay will be held at all responsible. I would say that any lawyer who thinks he or she can sue Mandalay Bay under the first theory and get a quick settlement is delusional. Las Vegas hotels and casinos are intimately aware of the precedent set by their litigation decisions and MGM has too much at stake to roll over and pay a settlement simply because they sympathize with the victims. If this was two or three people injured, it may be a different story. Lawyers are a predictable group, and if MGM pays a settlement under a questionable theory of liability, MGM will be facing 500 more copycat suits in short order.

Festival organizer

The last potential party responsible here would be the festival organizer for Route 91. This was the only avenue of liability I could see early on because of all the stories of people unable to escape the festival grounds. While it would take substantial expert testimony and analysis to prove, it is not unreasonable to conclude that a festival organizer should anticipate a panic situation like this and provide a reasonable amount of emergency exits from the festival with clear markings and easy access in such an event. How many exits is enough, though? How much signage is required? How does a festival balance the need for ample exits with the countervailing need to keep out people who didn’t pay to attend the festival? These are difficult questions and factually intensive, but there is certainly a factual scenario I could envision where the festival organizers are held responsible for the injuries.

Conclusion

In summary, the shooter’s estate will certainly be liable for the deaths and injuries here. The gun stores are highly likely to not be liable. The bump stock manufacturer’s liability is up in the air, but if the lawsuit goes like virtually every other suit before it, the prospects don’t look good. A suit against Mandalay Bay would need a clear chronology demonstrating that Mandalay Bay failed to act reasonably in response to learning of the shooter’s presence in their hotel, but it’s unlikely they can be held liable for not screening the bags taken up by the shooter unless it was so obvious what was occurring that any reasonable person would have been suspicious. Finally, the festival organizer may be held liable if there is sufficient evidence to show that a lack of planning or design of the festival grounds contributed to the injuries incurred by the victims.

As I said above, though, the standard of care evolves continuously as our understanding changes. The above analysis holds true as to this incident only. Everyone in the world now knows that it’s possible to commit a heinous act like this in a new way that was never really pondered before, and every hotel operator will be charged with that knowledge. This makes a similar incident more reasonably foreseeable than the Route 91 shooting ever was. This potentially changes the standard of care moving forward. Hotels and casinos are currently struggling to decide how much this incident warrants changes in their procedures.

- Andrew R. Muehlbauer, Esq.

Update 10/17/2017: More lawsuits are rolling in, but the question has come up as to how you can sue for money damages when companies like Zappos are paying funeral costs and something like $10,000,000.00 is waiting to be distributed to victims. Setting aside the ethical question of whether you should be suing when you may already receive full compensation from charitable sources, these payments likely would never come into evidence in Nevada. Nevada uses the collateral source rule in cases like this, which says that receiving compensation from a third party is legally irrelevant to the claims of a plaintiff. 

 

Common Misconceptions on Nevada Employment Law and Things Every Employee Should Know

            I am routinely amazed at the amount of smart, educated people who have drastic misconceptions about their employment rights. The following is a brief discussion in plain English of a few things that everyone should know about employment law in Nevada and some advice on how to handle a potential employment dispute.

Nevada, like virtually every state, is an “at-will” employment state.

                Many people I encounter think that Nevada employers need to have a good reason to fire you, but that simply is not true. The truth is they just need to not have a “bad reason” to fire you. “At-will employment” means that you and your employer can terminate your employment relationship at any point, for any reason, with or without notice. A lot of people automatically feel like this is unfair – shouldn’t your employer need a good reason to fire you? Most of us would agree, but what about the other side of the equation: do you need a good reason to quit? In an at-will employment position, you can quit whenever you want without giving notice, just like your employer can fire you whenever it wants (subject to some limitations discussed below) without notice. It seems unfair when you’re on the wrong end of an arbitrary termination, but it doesn’t seem unfair when you quit your job to get higher pay somewhere else. If you were subject to an employment contract, you could be denied the opportunity to take that higher paying job or you could theoretically owe money to your employer for the costs incurred by you breaking your contract. So I always tell people to be careful what you wish for – employment contracts aren’t always everything they’re cracked up to be. 

At-will employment and “right to work” are two very different things.

                Because Nevada is such a strong union state, a lot of people confuse “at-will” employment and “right to work,” but these are actually two very different things. “Right to work” just means that Nevada does not allow anyone to compel you to join a union to secure employment.  At-will employment is discussed above. Nevada is both an at-will employment state and a right to work state.

At-will employment does not mean there are no limitations on why your employer can fire you.

                Nevada has some exceptions to the at-will employment doctrine, however, that can potentially protect you: implied contracts and public policy exceptions. Implied contracts arise when your employer, through written or oral communications, indicates to you that your job is secure in some way. These types of implied contracts can be found in a variety of circumstances, such as when an employer states that you will only be fired for just cause, if the employee handbook includes a finite list of reasons for which you can be terminated, or if your employer pledges to only terminate you after progressive discipline is enacted. Trying to prove such contracts can be an uphill battle, though, and most employers are smart enough to write their employee handbooks with disclaimers.

                Public policy exceptions are situations where a court determines that Nevada has a strong interest in stopping someone from being fired for some act. Reporting illegal behavior, refusing to violate the law, or filing a worker’s compensation claim are a few of these exceptions. As you can probably tell, however, these exceptions usually only arise in “last resort” situations. You don’t want to plan to rely on public policy, because by that point you’re probably already in a bad position with your employer.

Advice on Handling a Potential Employment Dispute

                Employment law is one field of the law where the so-called “bright-line rules” can be elusive. This field involves a case-by-case analysis that considers the entire context of your situation, so it’s difficult to give blanket advice on how to handle any given situation – and be wary of those who tell you otherwise. The best advice you can get is:

·         Take a conservative approach when it comes to evaluating your rights and remedies in the workplace. This means you shouldn’t rely on anything unless you’ve got it in writing or there has been clear and convincing support given by someone with the power to speak on behalf of your employer.

·         Don’t listen to what happened to someone else and assume it applies to you – that person had his or her own context that you may not fully appreciate.

·         Document everything. If you think you’re headed for an employment dispute, start keeping notes of conversations and save e-mails on a separate device if you can.

·         Don’t consider suing anyone for revenge or because you feel you were treated unfairly. Only file suit if you have concrete and provable money damages. Otherwise litigation is guaranteed to be more headache than redemption.

 

Nevada Car Insurance from a Lawyer’s Perspective

Most people think of car insurance as something similar to a registration fee – it’s something that the government requires you to carry in order to drive a car on public roadways. Any litigator will tell you, however, that your insurance decisions are some of the most important decisions you can make when it comes to your future financial well-being. The first and most important issue any litigator will consider in the event of a car crash is the insurance status of all involved parties.

Based on my experience litigating auto accidents here in Las Vegas, I recommend getting at least 100/200 in bodily injury liability coverage, matching it with your Uninsured/Underinsured coverage, and $50,000.00 in property damage coverage. I also recommend getting $10,000.00 in Medical Payments coverage if you can afford it. Remember – the base coverage for your policy is the most expensive part. Upping your limits is comparatively cheap.

It is extremely unwise to drive around in a city like Las Vegas with the minimum Nevada coverage of $15,000 per person/$30,000 total bodily injury coverage. Here are some things to consider when picking your coverage:

1.       Unless you’re “judgment proof,” you risk having a catastrophic hit to your financial future if you only carry the minimums.

  • “Judgment proof” is the colloquial term to describe someone who has little to risk in a lawsuit. Maybe someone can get a huge judgment against you if you hit them, but there’s nothing they can do to collect it because you have no home equity, an old car, and no property worth anything.

  • I carried minimum limits when I was in college because I knew that I had nothing of value anyone could take and sell, and we no longer have “debtors’ prisons.”

  • Judgments hang around a long time, though. Even if you’re judgment proof today, you might not be in 2-3 years and the plaintiff in that case can usually still enforce his or her judgment against you at that time. The last thing you want is to finally be making good money only to find out that the plaintiff is garnishing your wages three years later. 

2.       Even a minor fender-bender can blow through $15,000.00 in bodily injury coverage in a matter of days or weeks.

  • The trend in Las Vegas is to seek out a pain management specialist immediately after an accident and get him or her to conduct a round of spinal injections at anywhere from $3,000.00 - $10,000.00 per session even in a very minor accident.

    • Although it’s ultimately up to the physician, I do not recommend this course of action to my plaintiff clients. You should always go with a conservative course of treatment first and only start injections if conservative methods fail. Not only is it healthier for you, but it also builds a better damages case if you have to go through litigation.

  • I had a case recently where my client rear-ended a woman at a stop light and caused some minor damage to her vehicle, but by the time we even got notice of the claim, she had racked up $100,000.00 in spinal injections because she had a sore neck and back.

    •  If my client only had $15,000.00 in limits, the insurer would have “tendered” (offered up) its $15,000.00 insurance limits and my client would be forced to pay the rest of it. Luckily my client was smart and had adequate coverage.

3.       Uninsured/Underinsured Motorist Coverage is great.

  • When you think about getting into an accident, who do you expect to hit you in Las Vegas? The cardiologist on his way to the hospital? An investment broker coming home from a long day at work? Or, more likely, a teenager texting his friends while he drives home or a drunk coming off a 12-hour bender?

  • Teenagers and drunks don’t exactly prioritize insurance in their monthly budget. You’ll be lucky if they even have the minimum insurance coverage.

  • If you have a good Uninsured/Underinsured policy, though, it doesn’t matter. That’s because you’ll get the at-fault driver’s insurance limits and then turn around and tell your insurer that they owe you the rest of your damages.

  • In Nevada, the Uninsured/Underinsured motorist coverage has to cover all damages you could recover from the at-fault driver if he was adequately insured. This means your insurer steps into the shoes of the drunk guy that hit you.

  • Don’t expect your insurer to just cough up the money, though. If you are dealing with them directly, they’re some of the most difficult adjusters you can find, in my experience. If you are dealing with them without a lawyer, expect them to offer you pennies on the dollar because they assume you’re bluffing. If you were serious about filing suit, you’d have a lawyer and they know it.

  • As long as your lawyer understands the policy, the laws of Nevada, and can lay out (“blackboard”) your damages you will present at trial, you can get a great recovery from your insurance carrier.

  • Be careful, though – talk to a lawyer before settling with the at-fault driver’s insurer. If you don’t know what you’re doing, you can screw up your claim.

4.       Medical payments coverage is also great. If you can afford it, bump up this coverage.

  •  “Medpay” coverage is fantastic because you can use it to pay your medical bills and your insurer has no right of subrogation in Nevada. This means you can sue the at-fault driver, collect damages for the bills you ran up and paid with Medpay, and your insurer doesn’t get a dime of that money.

  • You can also use it as bait with the medical providers to get them to reduce their liens and put more money in your pocket if you know how to handle the situation.

  • Everything in this world is negotiable if you have the right leverage. To a good lawyer, medical bills for your injuries are just an opening offer and not set in stone. 

Changes to Nevada’s Construction Defect Law – What Does it Mean for Homeowners?

As you probably have heard, Governor Sandoval recently signed into law Assembly Bill No. 125 (“AB 125”) that drastically changed the landscape of construction defect claims in Nevada. Nevada had been at the forefront of pro-homeowner legislation for about two decades in this field. Lawyers flocked to Nevada to practice construction defect law because of the drastic increase in the number of cases Nevada’s “Chapter 40” statute had brought about.  AB 125 was passed for many reasons, but the primary purpose was undoubtedly to curb that trend.

There are many provisions of the Bill that will have a substantial impact on litigation in Nevada, but the most important provision for the general public is certainly the changes to the statute of repose. A statute of repose is a lot like a statute of limitation, which is the more familiar term to most. It sets a deadline for an injured party to bring his or her claim. If you don’t file a lawsuit or do something else to toll (postpone) the statute, then you could be barred from filing a lawsuit.

Under the old system, homeowners would have anywhere from 6-12 years after purchasing their new home from a builder to bring a construction defect lawsuit. Construction defect lawsuits included everything from minor issues, like paint peeling, all the way to the big problems, like foundation cracking. Due to the statute of repose, you would see homeowners that were nearing the end of their statutory period filing lawsuits to “preserve” the statute and get the builder to come out and repair anything that was wrong with their home (or, in the alternative, write a check). Many times these lawsuits will act as a whole-home checkup and facelift because the definition of a “construction defect” under the statute was so broad that almost anything could qualify. The threat of attorney fees and expert fees encouraged homebuilders to pay substantial settlements just to get rid of the claims.

The problem with the old statute of repose was that the language of the statute was so poorly written that no one could be 100% certain of when their home was beyond the statute. I won’t bore you with the finer points of the law here, but the concept of the statute was a good one: defects that were obvious had shorter statutory periods and hidden/concealed defects had longer periods. The execution of this plan was horrible, however, and most lawyers in Las Vegas just assumed that any owner of a home built less than 12 years ago was capable of filing a lawsuit. 

This is all gone now. In AB 125, the legislature has changed it to one uniform statute of repose: six years from substantial completion of your home. Substantial completion is essentially the date that your home is fit for occupancy, and is defined in the statute in more detail. This statute is going to apply retroactively, meaning that it will apply even to homes that were built before AB 125 was passed.  So if your home was built from 2003 - 2009, this law will bar you from filing a lawsuit against the builder in the very near future.

There is a one-year grace period built into the new statute, however, to protect homeowners who may be affected by this drastic change of policy. If your statute of repose is set to expire this year and your claim “accrued” prior to the effective date of AB 125 (which is February 24, 2015) you may still be able to file a lawsuit as long as you do it quickly.   

I have litigated thousands of homes in construction defect litigation here in Nevada, representing clients who sue and who get sued, and I was initially very happy to see reforms being made to construction defect law in Nevada. The system that was designed to protect homeowners was routinely abused to the point where even well-built, quality homes were joining construction defect litigation and putting small businesses into bankruptcy. The majority of the changes are good ones, which should help builders and insurance companies return to Nevada and help our economy grow over the next decade.

I believe the change to the statute of repose was a mistake, however. There needed to be revisions to the statute of repose, but reducing it to a blanket six years goes too far. I have litigated hundreds of homes that didn’t show any signs of soil movement or structural damage until the homes were at least 4-5 years old. My top civil engineer expert witness has repeatedly said that many homes with expansive soils will not show their full signs of damage until five years or more after construction.

The best advice I can give you if your home was built from 2003-2009 is to take the time now to investigate your home. Have a home inspector come out and check your home or talk to a construction expert and have him or her take a look around your home if possible. Most of us cannot possibly identify signs of problems that are on the horizon; we can only spot the most obvious of defects. Hopefully your home is in great shape and you’ll have the peace of mind that comes with having it inspected. If not, the time to act is now. There is no guarantee you will succeed on your claim, but you will lose your right to even try if you don’t take action this year. 

- Andrew R. Muehlbauer, Esq.