Liability in Times of Tragedy

02/11/2020 - Blog

*CONTENT WARNING: The below article mentions several sensitive subjects. Reader discretion is advised.*


CRE was caught up in a series of high profile lawsuits in 2019 which could potentially reshape the way property owners and operators assess risk.

An evolution in legal standards is leading to concern that more liability may fall on property owners and operators. Some of the lawsuits in recent years relate to national tragedies such as the El Paso Walmart shooting.

In the past, there have been courthouse decisions (particularly in Texas) stating that “generally premises aren’t liable for the acts of third-party violent offenders who enter their site without foreknowledge – essentially, if the landlord had no warning a crime might occur, it isn’t liable for the action of the criminal.”

Trends in the courtroom have changed, however, and it has become more common for liability to fall on the property owner.

Understanding the Risk

One lawsuit in particular was brought in relation to mass shootings and has the potential to increase liability for property owners.

The August 3rd, 2019 shooting in the El Paso Walmart involved Jessica and Guillermo Garcia. Following the tragedy and 13 resulting surgeries, the two remained in critical condition. After they stabilized, a lawsuit was filed against Walmart Inc., Walmart Stores Texas LLC, and the shooter himself.

Mass Shootings ChartThe reason the court agreed to hear this lawsuit against the property operator was due to the wording in a particular portion of a previous court decision: “violent offenders who enter [an owner’s] site without foreknowledge." As a number of Walmart stores experienced violent incidents in the recent past—to name just a few, there was a hostage situation at the Amarillo Walmart in 2016 and a shooting just two months prior to the El Paso incident—the Garcias argue that these previous incidents should have provided enough forewarning for Walmart to take protective measures.

Prevention is Possible

There have been several instances that prove that even the smallest deterrence can reroute a shooter. For example, the Pulse Nightclub shooter’s original target was Disney World, but when he saw the high level of security, he changed his target.

Whether purchasing active shooter insurance or staffing guards (which can range anywhere from $30 - $100 an hour), are all companies willing to pay a premium for protection that may or may not be necessary? How should businesses determine when and where to invest in additional measures?

Key Takeaways

This is a serious issue that requires attention from property and business owners alike. To best protect consumers, employees, and the property itself, certain measures can be taken to mitigate these risks.

Consider Your Location

There are many questions to ask when looking for a property to invest in:

  • What is the crime rate in this area/state? In that light, what precautions make sense?
  • What court decisions in this jurisdiction may impact our liability?

When purchasing a property there are many variables to keep straight, and EBI can help you think through potential liabilities.

Consider Your Systems

If you’ve already invested in a property, there are still measures you can take to protect your customers and employees. A thorough review of your systems may help ensure you’ve taken the protective measures needed to ensure the highest level of safety in an existing structure.

Contact us today to get more information and start a conversation.



[ii] Photo source:


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