4th DCA Declines to Impose Duty of Care on Security Company Employer of Pulse Nightclub Shooter
Security companies may be liable for criminal acts committed by their security guards while on duty under theories of negligent hiring and negligent supervision. But must a security company prepare itself for litigation as a result of the commission of a crime by an off-duty security guard?
This question of liability arose from the tragic mass shooting at Pulse Nightclub in Orlando in June 2016. In Asael Abad vs. G4S Secure Solutions (USA), Inc., victims argued that Omar Mateen’s (the shooter) employer, G4S Secure Solutions, a security company, should be held liable. Victims argued that G4S trained Mateen in firearm usage despite alleged repeated notice of his instability and G4S’s alleged falsification of a psychological report in order to obtain a Class G firearm license for him. The Fourth District Court of Appeals disagreed, upholding a trial court’s dismissal of the lawsuit at the pleading stage.
The Fourth DCA refused to recognize a cognizable duty of care noting, “Mateen was an individual with free agency who was outside of G4S’s control and who committed crimes on his own time, with his own weapons, at a location of his choosing.”
Refusing to expand liability to the degree called for by the plaintiffs, the Fourth DCA emphasized the importance of limiting liability for acts committed outside the scope of employment. The Fourth DCA noted that spatial and temporal limits are necessary to prevent the standard of liability from evolving into strict liability.
In asserting that the unique case facts imposed a legal duty on G4S, the plaintiffs relied on United States vs. Stevens, a 2008 Florida Supreme Court case. In Stevens, the Florida Supreme Court held that a government research facility owed a legal duty to the general public to properly secure anthrax after a decedent-victim received mail containing anthrax traced to the facility. The plaintiffs likened G4S’s actions in positioning Mateen to commit a mass shooting to the facility’s actions in failing to properly protect against a terroristic use of anthrax. The 4th DCA distinguished Stevens on the basis that Stevens dealt with an ultra-hazardous substance that, by its nature, is inherently harmful to the public.
The 4th DCA also addressed whether a duty of care owed by G4S to the general public would apply to the misconduct of Mateen – a third-party criminal actor. In finding no duty of care as related to Mateen’s misconduct, the 4th DCA reasoned that G4S neither controlled the premises where the shooting occurred nor the firearm used to commit the shooting. It addressed G4S’s alleged fraud in obtaining a Class G firearm license for Mateen by noting that the license was not a prerequisite to him obtaining a firearm (i.e., the firearm was obtainable irrespective of the license).
A security company, or any employer for that matter, may have a moral obligation to the public to intervene where it foresees the commission of criminal conduct by its employee outside of his or her employment. But, under the Abad ruling, whether an employer has a legal obligation turns largely on the nature of its business, as well as the level of control exerted over the location and instrumentality of the crime.