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.