Can the Pulse nightclub be sued for the Orlando shooting?

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There has been some discussion and speculation in the media about whether the patrons or survivors will be able to bring a lawsuit against Pulse for the injuries or deaths that occurred in the shooing.  The answer is “probably not.”

First, please understand that I am licensed to practice law only in New York.  However, when I was a claims adjuster at AIG, I worked on cases throughout the United States. While there may be  state by state idiosyncrasies, there are certain aspects of premises liability law that follow general rules nationwide.  This article will focus on those general legal principles.

I have represented people who have been injured in clubs in assaults by either club employees or fellow patrons.  This blog post will focus on the latter.

In order for an establishment to be held liable for the acts of one of its patrons, the club or bar must have been on notice of the patron’s behavior.  A bar cannot be held liable for the spontaneous acts of a patron.  How would a bar be put on notice?  There are several possible scenarios.

One way that a bar could be put on notice is in the form of an over-served patron.

Establishments that sell alcohol are not supposed to serve someone who is visibly intoxicated.  The laws governing this type of claim are called “dram shop” laws.  If a patron is visibly intoxicated, a bar tender should be trained to stop serving this customer.  If the bartender continues to serve this person, and he or she then causes an injury, the bar can be held liable.  Many dram shop cases center on a drunken patron who leaves the bar and crashes his or her car into an innocent third party.

A dram shop case could also involve a situation where a bar tender continues to serve a patron who then assaults someone inside or outside of the bar, causing an injury.  The injured person would have a claim if he or could show that the bar tender knew or should have known that the assailant was intoxicated, yet alcohol service was continued.

Negligent security cases unrelated to over serving drunken patrons are much harder to prove.  If a patron of a club makes a complaint to a bar tender, bouncer, security guard, or some other such club employee about a specific person, and the club fails to remove that person who then attacks someone; the injured party would have a claim.  This type of a situation is called “actual notice,” because the bar, through its employees was actually on notice that there was a potential for injuries, and proper risk management steps were not taken to avoid.

Actual notice of a security risk could also occur if someone who had been a problem at the bar returned and was not deal with.  For example if someone had been belligerent, picked fights etc. at a bar, and then returned a week later, one could make the argument that the bar had a duty to remove that person, or at least keep an eye on him or her so more injuries would not occur on the premises.

Another way a negligent security case could be proved would be if the bar had “constructive notice” of the problem.  This means that while there may not have been any actual complaints, the bar staff should have realized that this person or group was causing trouble, and had the potential to cause injuries.  If someone is acting overly boisterous, clearly bothering other patrons, bumping into people, etc. it is the duty of the bar staff to neutralize this situation before an injury occurs.  If the bar staff permits someone continue to act in a dangerous manner, and then an injury ensues, the bar can be help liable.  Whether or not a bar knew or should have known about a situation that leads to violence is very fact specific.  Each case is different and only an experienced injury lawyer can properly prosecute such a claim.

Pulse Shooting

While I do not have all of the facts of the shooting, it seems as if this was a completely spontaneous act.  A lone madman entered a club, without warning, and began shooting.  There was no possible way that the owners or employees of the club could have known about this or prepared for it.  The club had neither constructive, nor actual notice of the shooter’s vicious propensities.  Unless there is evidence that the shooter had been there before and made threats, I cannot see how the shooting at Pulse could fit into any of the categories enumerated above.  For this reason, I do not believe there will be any viable lawsuits against Pulse.  While suits may be filed, they will most likely be dismissed.  Sadly, compensation for the victims and their families will have to come from victims compensation funds set up by the donations of people from around the world.

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About Matthew Haicken

I have been practicing personal injury and insurance law since my graduation from law school in 2007. In addition to years as a practicing lawyer, I also spent three years working at a large insurance company where I worked with excellent lawyers from around the country. This experience has proven invaluable. I gained insight into how insurance companies evaluate claims, and I learned the tactics they employ to fight personal injury lawsuits. I enjoy helping people through difficult situations and making a positive impact on the lives of my clients. When not practicing law, I am actively involved in NYSTLA, the New York State Trial Lawyers Association. We are a group that lobbies on behalf of injury victims. I believe the courthouse doors should be open to everyone, regardless of his or her immigration status, or financial situation. I am committed to fighting for a strong civil justice system that enables people who have been harmed to hold wrongdoers accountable.

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