Wrongful Death

Don't Judge MGM Too Harshly for Filing Suit on the Route 91 Shootings

 

This past week, it was announced that MGM was “suing” the victims of the Route 91 Harvest Festival shootings that occurred on October 1, 2017. The headlines were shocking, and the reactions on social media condemned MGM for its heartless legal maneuvering. In a world of “hot takes” where people want to get angry instead of informed, this is becoming all too common. Before you judge MGM, though, I would humbly suggest you consider three things.

1. MGM is Seeking Declaratory Relief, Not Money Damages.

MGM isn’t “suing” the victims in the traditional sense. MGM is filing for something called “declaratory relief.” Declaratory relief is what you seek when there is a dispute over the interpretation or application of the law and you want a judge to sort it out for you to give you finality and certainty. This is a departure from the typical rule stating that judges will not give “advisory opinions,” which means that you can’t just ask a judge what he or she thinks about an issue without actually having a claim.

MGM is trying to get a determination from a federal judge that a federal law on terrorism prevention applies to MGM to shield it from liability. In order to give the victims a fair chance to argue in opposition of this, MGM is required to include the victims in the lawsuit. It’s a concept that is incredibly important in the law: notice. MGM is placing all the victims on notice that they are asking the judge to rule that MGM is shielded from liability because they hired an appropriate third party to take anti-terrorism measures. MGM is required to bring the victims in and give them a full and fair opportunity to tell the judge why MGM should not be shielded from liability. If MGM didn’t include the victims in the suit, the ruling would not be effective against the victims because they would have had no chance to oppose MGM.

2. MGM Didn’t File First.

MGM was already facing hundreds of claims by victims and they waited almost a year to file for declaratory relief. Admittedly, this may have been a strategy in order to move every claim into federal court (which would likely be perceived as a more favorable venue for MGM in this case), but it also is worth remembering that MGM didn’t file the first lawsuit here – it is reacting to the lawsuits filed against it. The victims have every right to file suit, and we all sympathize with them. But when you start the war, the response is going to be... well, war-like. MGM’s lawyers have an obligation to the company to get the best result, and MGM’s board of directors have an obligation to its shareholders to preserve MGM’s assets as best as they can.

I know, it’s not a popular opinion to defend a large corporation or its lawyers, but I’m not trying to defend them – I’m trying to say that if the lawyers and the board decided not to file because they want to be “nice” to the victims, they’d arguably be violating their duties to the company. If this option exists, and the option appears to be the best plan to preserve MGM’s assets (when compared to the public relations hit they will take), the lawyers and the board are actually duty-bound to take the option. MGM is a corporation. No matter how many nice signs they post around Las Vegas or how much they tell you they care about you, the only people a company actually is supposed to care about are its shareholders. 

To put it another way – are the same people who are upset at MGM for filing this declaratory relief suit also upset that MGM was defending the state court lawsuits? Should MGM have just filed an Answer to the Complaint admitting liability and handing over all of its money? Certainly not. We expect that when you get sued, you will defend yourself and a jury of your peers will decide who prevails. It doesn’t mean you don’t sympathize with the victims, it doesn’t even always mean you don’t think you did anything wrong. I’ve defended wrongful death claims where my client was 100% to blame and we all knew it. You defend the case respectfully, and professionally, and you try and find a solution where your client can live with the result and the victims’ families receive something that makes their lives a little more bearable after their loss.

3. This Will Likely be the Fastest Way to Resolve these Lawsuits.

People unfamiliar with the litigation process likely have no concept of just how long cases like this would take to resolve in state court. When you have 20 different lawsuits with hundreds of different plaintiffs, you are almost guaranteed that these suits would take the full five years allowed under the law to complete – or even longer, in some cases. By going directly to federal court and seeking declaratory relief for its primary defense, MGM is actually fast-tracking the resolution here. The sole or primary issue in its federal suit will be the application of that federal law, and the discovery and briefing on that one issue will almost certainly resolve well in advance of any of the individual state court suits. When you have one issue to brief that is purely legal and not factual, you bypass a lot of things that cause litigation to drag on and on. Given the high visibility of this case and how many individual claims are reliant on the resolution, I would expect that the issue would get resolved in less than two years and possibly even sooner than that if the attorneys press the matter.

What this means is that MGM is actually going to speed up the resolution one way or the other. If MGM wins the declaratory relief suit, then they’ll argue they should be dismissed from all the state court actions immediately. This would leave Live Nation and the other defendants as the sole remaining parties, and would exert enormous pressure on those parties to settle because MGM will no longer be there with their massive pockets to share the potential burden. The state court suits currently involve finger-pointing at each other among the defendants and that usually is a substantial impediment to settlement because no one can agree on who should pay the most money. If you read my prior article on this, I think the best arguments are against Live Nation for the lack of appropriate emergency exits, not against MGM anyway.

If MGM loses, then MGM will remain in the state court suit and would know that its plan of raising this defense is likely no longer viable. This will likely cause MGM to evaluate its fact-based defenses (since its legal defense is out the window), and when a company is left solely with fact-based defenses against massive potential exposure, they usually are more willing to come to the bargaining table. MGM is trying to avoid going to trial here because they know that a jury will likely sympathize with the victims and may punish a large corporation at trial regardless of what fact-based defenses MGM can raise.

 

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.