Christine Taylor
Editor’s note: This column was written by Christine Taylor, a Principal Partner at The Towne Law Firm, P.C. in the firm’s Albany, N.Y., office, who focuses her practice in the areas of Hospitality Law, Business Law, Labor and Employment Law, Real Estate Law, Trusts and Estate Law and Litigation. Park owners can email info@townelaw.com for a chance to have their questions answered in future columns.
As terrible news floods our screens with shootings at major events and small businesses — along with a recent shoot-out at an RV park in Arizona — it begs the question: what should campground owners do? The answer is not a simple one but can be broken down into two categories: (1) what you are legally required to do; and (2) what you are legally able to do.
Although, as with everything, there are differing laws in each state that you will want to consult before implementing any policies, the Fourteenth Amendment of the United States Constitution prohibits any law from abridging one’s rights and freedom, and the Fourth Amendment protects one’s privacy by prohibiting unreasonable searches and seizures, which can impede on one’s ability to protect their Campground. So, what can be done?
First and foremost, campground owners should consider developing an active shooter policy. Having an active shooter policy can mitigate the risk of injury, death of employees and campers, destruction of property, disruption of business operations and potential reputational harm. Additionally, having an active shooter policy can make employees and campers feel safe. An active shooter policy usually contains the following: (1) a prevention plan or strategy; (2) employee guidelines and instructions should a shooting occur; (3) an emergency action plan for employees and campers; and (4) a response plan.
As a part of the active shooter policy, campground owners may want to think about implementing a bag search as employees and campers enter the Campground. These bag searches must be voluntary, so it is important that if you plan to implement bag searches, you let your employees and campers know ahead of time. Since most campgrounds are private businesses, campgrounds can mandate bag searches prior to entering the grounds; however, you want to ensure that during the bag searches, there is no physical contact with the bag owner.
Campground owners should be wary of mandating bag searches when guests or employees leave the grounds, as requiring such could be seen as false imprisonment if a person refuses the search. Likewise, if bag searches are implemented, then everyone’s bags must be searched to avoid discrimination claims. As always, before implementing this policy, you should consult with your local law enforcement.
As this all seems daunting, can you choose to do nothing?
Note that there may be a legal liability should an employee or a camper be injured in an active shooter event due to the lack of a well-rounded active shooter policy and related training. For an employee, legal liability would be founded upon negligence of the business; namely, that the business has a duty to behave in a responsible manner to its employees, which may include formulating an active shooter policy so that employees are educated as to what protocol needs to be followed to maximize their safety. Furthermore, based on the current change in sentiment, by not implementing an active shooter policy, your campground is taking a risk of injury to its customers, employees and reputation.
To further cement this changing landscape, I point you to an unfortunately well-known 2017 mass shooting event at the MGM in Las Vegas. The families and victims impacted by this incident sued MGM Las Vegas which ultimately led to a $751 million settlement — why did the business pay? Historically, courts would not have found the business liable — what changed?
Back in 1984, a mass shooting took place in California at a McDonald’s where 21 were left dead and 11 injured. The victims and their families sued McDonald’s and they lost. The court found that the shooting was not foreseeable and that that it was “so unlikely to occur within the setting of modern life that a reasonably prudent business enterprise would not consider its occurrence in attempting to satisfy its general obligation to protect business invitees from reasonably foreseeable criminal conduct.” Thus, not foreseeable, no duty and ultimately no liability.
In 2007, courts still felt the same, when in Virginia, a case arising out of the 2007 shooting of 32 people on the Virginia Tech campus, the court again deduced that at the time of the shootings, this was not a foreseeable occurrence so they had no duty to warn.
Starting in 2012, the courts reasoning began to change: what was unforeseeable in 1984, is now unfortunately likely to be legally considered foreseeable. As more shootings happen, the Court has slowly begun to shift, imposing liability on the business as well. In Axelrod v. Cinemark Holdings, Inc., when deciding on a motion for summary judgment if a case should proceed, the court stated that based on “the grim history of mass shootings and killings that have occurred in more recent times” coupled with evidence of a perceived risk, that there was a genuine dispute as to whether the defendant should have known of such a risk, and if so, could thereafter be found liable. Although ultimately this business owner was eventually let off, this demonstrates the changing interpretation of the courts.
Now, this brings us back to the MGM case — without the certainty that they would not be found liable, it can be assumed that MGM made the economic decision to settle instead of risking a worse outcome in front of a jury. This is due to the fact that we are now in a time where businesses may be held liable if they choose to do nothing.
Additionally, I would also caution that, if your campground mandates active shooter policies, training or bag searches, but falls short of performing or partaking in them, there can also be a legal liability. For instance, missing training or not adhering to the policies in place can also open your business up to negligence claims for not performing the duty you owed and promised. Therefore, if you are considering instituting a policy, make sure that you follow it strictly.
Lastly, there has been discussion regarding insurance coverage, as part of the MGM Las Vegas settlement was paid for by insurance and thus, the expansion of coverage might be something for campground owners to look into with their agents and carriers.
As with most things, we can neither predict nor prevent all outcomes, but we as business owners must carefully weigh our options when considering what policies to implement and what it means both for our legal liability and the safety of our guests and employees.
