San Bernardino shooting victim lawsuits begin - Page 2

kilimanjaro · January 14, 2016, 04:53 PM

You're not going to have much of a case arguing that you should have been allowed to carry a gun, or that security should be provided if you can't carry one.

You can make an argument that your employer should have provided security when another employee was known to be a potential security risk. That's a specific argument and not the general one most folks seem trying to make after the fact.

**Aguila Blanca** · January 14, 2016, 04:58 PM

Quote:

Originally Posted by MurBob

The only flaw in this statement is the part where you describe this line of reasoning as "Not a major stretch to argue"..

I wrote that it's not a major stretch to "argue" ... I didn't say you'd win the argument.

The same argument appears periodically in gun and RKBA forums all across the Internet. Of course the anti-gun folks and the government entities contest the idea. They'd rather blame (and ban) the guns. Me? I'm just a simple-minded old guy who thinks that when somebody tells me I can't exercise my constitutional RKBA, that should be an indication that they have assumed responsibility for ensuring my safety.

62coltnavy · January 14, 2016, 11:29 PM

Let's start all over. Although reported as being a "lawsuit," what has actually happened is that one decedent's wife has filed a "government tort claim" with the County, as is a prerequisite to filing a lawsuit under the California Government Code. Such claims MUST be filed within six months of the injury or death (or up to one year if leave of court is granted on an appropriate motion after the six months has expired to file a late claim). The County will likely deny the claim, and then, maybe, a lawsuit will be filed.

In this particular case, the decedent was an employee of the County. Typically, an employee cannot sue the employer for on the job injuries or death unless the injury arises out of and in the course of employment (AOE/COE in worker's comp parlance). If workers' compensation applies, it is the EXCLUSIVE remedy against the employer.

That is not an open and shut question here: case law holds that Christmas parties, picnics, dinners, sports activities, etc. are not AOE/COE UNLESS attendance/participation was a condition of employment. However, in this case, there was also training going on concurrently and in the same facility, and this might be enough to bring the case within the scope of the comp law as establishing either conduct incident to employment and required attendance. "Damages" under the comp law for a death are set by statute.

If Comp does NOT apply, then this becomes a run of the mill lawsuit. The complaint will not set a specific demand for damages (that is prohibited by statute). Now I have not seen the claim, but as far as I can tell the lawyer has not stated precisely in what matter the County was "negligent." He will be required to do so in the complaint. A claim of deprivation of 2A rights is extremely unlikely, and even more unlikely to prevail, and for several reasons. First, the government owes no duty to any individual citizen (without a specific undertaking) to protect any individual from criminal misconduct. There is a specific governmental immunity in the Ca. Government Code so stating. Second, issuance of a CCW in California is discretionary, and it would have to be shown that the decedent had applied but been denied, and that the denial was an abuse of discretion by the Sheriff, because without one he could not carry anyway. Third, establishing gun free zones is a discretionary (policy making) endeavor of the County and/or State, for which there is a specific governmental immunity.

A more likely claim is a dangerous condition of public property. A premises liability liability claim requires that the premises were in a dangerous or defective condition, and that the governmental entity had notice and an opportunity to cure that defect prior to the injury. I think it is safe to assume that no such showing can or could be made here, given that the terrorists weren't on any watch list.

Obviously I am just speculating at this point, since no specific claim or complaint has been filed, but right now I don't see any substantial probability that a viable claim can or will be asserted. And there are other defenses that can be asserted, including the particularly important fact that the attack was an unforseen and unforeseeable criminal act by the attackers, attackers who were not acting in the course of their employment, and for whom the County will have no respondeat superior liability.

TXAZ · January 14, 2016, 11:48 PM

Nobody really 'wants their day in court'. The plaintiffs want a big check through a settlement. San B is seen as the easiest target. Since it's not the board of supervisors personal money, they probably care less about writing a check that they already have insurance to cover. Ultimately every taxpayer in San B will have to shell out a few nickels to a few dollars to cover just this one incident.

It's a game, and it's being played on the deaths of innocent victims. That's a really sad part about how easy it is to game the legal system.

kilimanjaro · January 15, 2016, 01:33 PM

Note that the Christmas party was held in the workplace, during working hours, and attendees were in pay status at the time.

This was not the weekend ball game or picnic that could be construed as not employment-related.

iraiam · January 16, 2016, 08:17 AM

I believe there is a similar lawsuit in Colorado over the Aurora movie theater shooting. The plaintiffs are suing the theater owners for failing to provide basic security.

If you as a property owner demand there be no weapons on your property (gun free zone), why then are you not required to provide basic security, not so much as a locked door, such as the shooter used in Aurora.

I know what it's like to work in a gun free zone, I do every day. At least I have the very small piece of mind that the parking lot and all outside doors have basic security devices.

Double Naught Spy · January 16, 2016, 08:54 AM

Quote:

If you as a property owner demand there be no weapons on your property (gun free zone), why then are you not required to provide basic security, not so much as a locked door, such as the shooter used in Aurora.

I know what it's like to work in a gun free zone, I do every day. At least I have the very small piece of mind that the parking lot and all outside doors have basic security devices.

Because you volunteered to work there and you agreed to the conditions in exchange for money. This has been covered already in the thread.

iraiam · January 16, 2016, 07:31 PM

Quote:

Because you volunteered to work there and you agreed to the conditions in exchange for money. This has been covered already in the thread.

That's true, but my point is there are multiple lawsuits against the Cinemark theaters where the shooting happened in Aurora CO, a posted gun free zone under the Colorado law requirements, the lawsuits have already been through some kind of legal procedure and allowed to move forward. I don't know any legal details, but if the issue was that cut and dried, then why were these lawsuits found valid enough to be allowed to move forward to trial instead of being thrown out.

**44 AMP** · January 16, 2016, 08:35 PM

Quote:

if the issue was that cut and dried, then why were these lawsuits found valid enough to be allowed to move forward to trial instead of being thrown out.

My guess would be a combination of two things.

First, everyone but the plaintiff and the defendant, gets PAID during the entire process (pro bono legal aid is the only exception I know of...)

Second, and possibly most important to the JUDGES is that if they allow the suits to continue, then 1) everybody gets their day in court, and 2) appeals over what ever the outcome it are contesting the JURY's verdict, not the Judge's ruling, so they don't get a (another?) black mark on their record, because their judgment was appealed.

of course, it could be something else, individual judges may be in sympathy to gun control, or something else, even...

**Frank Ettin** · January 16, 2016, 08:55 PM

Quote:

Originally Posted by iraiam

...I don't know any legal details, ....

Then you really don't understand what is happening, nor why it is happening. And that really means that you're in no position to draw any meaningful conclusions about the legal issues.

In fact, Judge Jackson in his order (attached) in the consolidated Colorado cases dismissed most of the claims brought against the theater. He allowed only the claim based on a Colorado Premises Liability Act to go forward stating (at page 13):

Quote:

... to get to a jury, the plaintiffs must first state a plausible legal claim and then show that there is genuine dispute of material fact for the jury to resolve. This Court today holds only that plaintiffs have sufficiently stated a claim to survive a motion to dismiss under Rule 12(b)(6)....

In other words, the plaintiffs have alleged certain material facts to be true. The court can not make the necessary factual determination as a matter of law and therefore can not dispose of the claim on a motion to dismiss (as it has other claims made by the plaintiff). Consequently, the case must move forward to the next steps -- discovery and most likely a motion for summary judgment by the theater.

iraiam · January 16, 2016, 10:05 PM

Quote:

In fact, Judge Jackson in his order (attached) in the consolidated Colorado cases dismissed most of the claims brought against the theater. He allowed only the claim based on a Colorado Premises Liability Act to go forward stating (at page 13):

As I understand this law, the outcome of these proceedings should be directly relevant to the question I posted in my first post in this thread.

**Frank Ettin** · January 17, 2016, 12:19 AM

Quote:

Originally Posted by iraiam

As I understand this law, the outcome of these proceedings should be directly relevant to the question I posted in my first post in this thread.

Which merely demonstrates that you don't understand the law.

You asked in post 31:

Quote:

...If you as a property owner demand there be no weapons on your property (gun free zone), why then are you not required to provide basic security, not so much as a locked door, such as the shooter used in Aurora....

First, as you should be able to see from Judge Jackson's order, the theater's "no guns" policy was not raised in the plaintiffs' complaint nor did it figure in the judge's decision.

As noted at page 6 the Judge Jackson's order, the Colorado Premises Liability Act:

Quote:

....provides that Cinemark owes its theater patrons a duty to exercise reasonable care to protect them against dangers of which Cinemark knew or should have known. See Lombard v. Colorado Outdoor Education Center, Inc., 187 P.3d 565, 568 (Colo. 2008)...

So Cinemark's liability, if it has liability, would be based on (1) whether the danger of a rampage shooter, like Holmes, was a danger that Cinemark knew or should have known; and (2) if so, did it exercise reasonable care to protect against it. The answers to those questions require factual determinations beyond the scope of what a court can do in deciding a motion to dismiss for failure to state a claim upon which relief can be granted.

Premises liability for the acts of third parties is generally based on a two prong test: (1) is the particular danger reasonably foreseeable; and (2) what does the reasonable and prudent business do to protect against that risk. These generally present a high bar for a plaintiff, and cases finding businesses liable for the acts of third parties are rare.

Double Naught Spy · January 17, 2016, 09:51 AM

iraiam, do you know of a single successful case where a plaintiff has won a liability lawsuit on the basis of being denied being able to carry a gun?

Better yet, do you know of ANY cases where this has been part of the lawsuit??? What was the outcome of those cases? As noted by Frank, that doesn't seem to be on the radar in the Aurora case.

Dreaming100Straight · January 19, 2016, 04:50 AM

I didn't see anything about making a claim against a LEO or a LEA.

The article says the claim is for negligence but doesn't specify the negligent acts and/or omissions.

A law suit has NOT been filed. So far only a claim has been made against San Bernardino County. You cannot sue a governmental entity in CA unless a claim is first made and denied, or the time for the entity to respond to the claim passes with none made.

January 14, 2016, 11:48 PM	#29
TXAZ Senior Member Join Date: September 5, 2010 Location: McMurdo Sound Texas Posts: 4,322	Nobody really 'wants their day in court'. The plaintiffs want a big check through a settlement. San B is seen as the easiest target. Since it's not the board of supervisors personal money, they probably care less about writing a check that they already have insurance to cover. Ultimately every taxpayer in San B will have to shell out a few nickels to a few dollars to cover just this one incident. It's a game, and it's being played on the deaths of innocent victims. That's a really sad part about how easy it is to game the legal system. __________________ Cave illos in guns et backhoes

January 16, 2016, 08:17 AM	#31
iraiam Senior Member Join Date: September 6, 2012 Location: Lakewood, CO Posts: 1,057	I believe there is a similar lawsuit in Colorado over the Aurora movie theater shooting. The plaintiffs are suing the theater owners for failing to provide basic security. If you as a property owner demand there be no weapons on your property (gun free zone), why then are you not required to provide basic security, not so much as a locked door, such as the shooter used in Aurora. I know what it's like to work in a gun free zone, I do every day. At least I have the very small piece of mind that the parking lot and all outside doors have basic security devices. __________________ NRA Lifetime Member Since 1999 "I ask, sir, what is the militia? It is the whole people except for a few public officials." George Mason Last edited by iraiam; January 16, 2016 at 08:28 AM.

January 17, 2016, 09:51 AM	#38
Double Naught Spy Senior Member Join Date: January 8, 2001 Location: Forestburg, Montague Cnty, TX Posts: 12,717	iraiam, do you know of a single successful case where a plaintiff has won a liability lawsuit on the basis of being denied being able to carry a gun? Better yet, do you know of ANY cases where this has been part of the lawsuit??? What was the outcome of those cases? As noted by Frank, that doesn't seem to be on the radar in the Aurora case. __________________ "If you look through your scope and see your shoe, aim higher." -- said to me by my 11 year old daughter before going out for hogs 8/13/2011 My Hunting Videos https://www.youtube.com/user/HornHillRange

January 14, 2016, 04:53 PM	#26
kilimanjaro Senior Member Join Date: November 23, 2009 Posts: 3,963	You're not going to have much of a case arguing that you should have been allowed to carry a gun, or that security should be provided if you can't carry one. You can make an argument that your employer should have provided security when another employee was known to be a potential security risk. That's a specific argument and not the general one most folks seem trying to make after the fact.

January 14, 2016, 11:29 PM	#28
62coltnavy Senior Member Join Date: February 1, 2011 Posts: 356	Let's start all over. Although reported as being a "lawsuit," what has actually happened is that one decedent's wife has filed a "government tort claim" with the County, as is a prerequisite to filing a lawsuit under the California Government Code. Such claims MUST be filed within six months of the injury or death (or up to one year if leave of court is granted on an appropriate motion after the six months has expired to file a late claim). The County will likely deny the claim, and then, maybe, a lawsuit will be filed. In this particular case, the decedent was an employee of the County. Typically, an employee cannot sue the employer for on the job injuries or death unless the injury arises out of and in the course of employment (AOE/COE in worker's comp parlance). If workers' compensation applies, it is the EXCLUSIVE remedy against the employer. That is not an open and shut question here: case law holds that Christmas parties, picnics, dinners, sports activities, etc. are not AOE/COE UNLESS attendance/participation was a condition of employment. However, in this case, there was also training going on concurrently and in the same facility, and this might be enough to bring the case within the scope of the comp law as establishing either conduct incident to employment and required attendance. "Damages" under the comp law for a death are set by statute. If Comp does NOT apply, then this becomes a run of the mill lawsuit. The complaint will not set a specific demand for damages (that is prohibited by statute). Now I have not seen the claim, but as far as I can tell the lawyer has not stated precisely in what matter the County was "negligent." He will be required to do so in the complaint. A claim of deprivation of 2A rights is extremely unlikely, and even more unlikely to prevail, and for several reasons. First, the government owes no duty to any individual citizen (without a specific undertaking) to protect any individual from criminal misconduct. There is a specific governmental immunity in the Ca. Government Code so stating. Second, issuance of a CCW in California is discretionary, and it would have to be shown that the decedent had applied but been denied, and that the denial was an abuse of discretion by the Sheriff, because without one he could not carry anyway. Third, establishing gun free zones is a discretionary (policy making) endeavor of the County and/or State, for which there is a specific governmental immunity. A more likely claim is a dangerous condition of public property. A premises liability liability claim requires that the premises were in a dangerous or defective condition, and that the governmental entity had notice and an opportunity to cure that defect prior to the injury. I think it is safe to assume that no such showing can or could be made here, given that the terrorists weren't on any watch list. Obviously I am just speculating at this point, since no specific claim or complaint has been filed, but right now I don't see any substantial probability that a viable claim can or will be asserted. And there are other defenses that can be asserted, including the particularly important fact that the attack was an unforseen and unforeseeable criminal act by the attackers, attackers who were not acting in the course of their employment, and for whom the County will have no respondeat superior liability.

January 15, 2016, 01:33 PM	#30
kilimanjaro Senior Member Join Date: November 23, 2009 Posts: 3,963	Note that the Christmas party was held in the workplace, during working hours, and attendees were in pay status at the time. This was not the weekend ball game or picnic that could be construed as not employment-related.

January 19, 2016, 04:50 AM	#39
Dreaming100Straight Senior Member Join Date: February 3, 2013 Posts: 1,235	I didn't see anything about making a claim against a LEO or a LEA. The article says the claim is for negligence but doesn't specify the negligent acts and/or omissions. A law suit has NOT been filed. So far only a claim has been made against San Bernardino County. You cannot sue a governmental entity in CA unless a claim is first made and denied, or the time for the entity to respond to the claim passes with none made.