While Robert Dear has yet to stand trial for killing three and injuring nine others in a 2015 shooting spree at a Colorado Springs Planned Parenthood clinic, a civil case stemming from the tragedy has made its way up to the state’s highest court.
The Colorado Supreme Court is hearing oral arguments today to consider whether an attacker “who acts to cause mass casualties and without regard to his own survival or capture,” is the “predominant cause of harm,” relieving the landowner of liability under the Colorado Premises Liability Act. Personal injury and defense lawyers, business coalitions, patient access advocates and tort reform groups are watching to see how the court rules. Some worry a ruling against Planned Parenthood could impose heavy costs on business owners, while the shooting victims say a jury should decide whether the clinic and its parent organization bear some responsibility due to inadequate security measures.
In 2016, several of Dear’s victims and their survivors sued Planned Parenthood of the Rocky Mountains under the state’s Premises Liability Act, asserting the attack was foreseeable and PPRM could have done more to protect visitors to its clinic.
PPRM has argued that Dear’s attack was so premeditated, swift and violent — and he was so determined to kill — that his actions were the sole legal cause of the victims’ injuries. “He is the proverbial poster child for predominant cause,” attorneys for the organization wrote in their opening brief to the Supreme Court.
The trial court agreed and dismissed the claim against PPRM on summary judgment because, it said, the attack was not foreseeable and “the predominant cause was plainly Robert Dear’s actions, not the actions or inactions of PPRM.”
A divided Court of Appeals reversed the summary judgment ruling, finding that the plaintiffs showed evidence raising issues of material fact about whether PPRM was aware of the potential for attacks and whether it knew of security measures that could have prevented harm to the victims. According to the appellate court and the victims, these issues must be resolved by a jury.
Among the issues the victims want a jury to decide is whether Dear’s shooting spree was foreseeable enough that PPRM should be held liable. They point to security measures PPRM took prior to the shooting, including active shooter training, hiring of a part-time security guard and FBI warnings to Planned Parenthood clinics around the country as evidence PPRM could have stepped up security to protect visitors.
“I think the concern is, at what point does the duty of the landowner stop?” said Ruebel & Quillen member Jeffrey Ruebel, who filed an amicus brief on behalf of the Colorado Defense Lawyers Association in support of Planned Parenthood.
“In other words, is the foreseeability a valid limitation on the liability of the owner of the property?” Ruebel said. “Or is it a situation where a landowner needs to just be taking whatever steps possible to protect anyone coming on the property, even if it may be something that you don’t necessarily anticipate or foresee.”
PPRM and supporters say the Court of Appeals decision sets a costly precedent for property owners in an age in which mass shooters have targeted everywhere from nightclubs and theaters to airports and elementary schools. In one of five amicus briefs filed in support of Planned Parenthood, the Colorado Civil Justice League and Denver Metro Chamber of Commerce argue the COA’s decision could result in what amounts to “a mass-shooting tax on Colorado landowners and businesses.”
The potential costs for property owners include the expense of heightened security, as well as higher insurance premiums and increased litigation costs. An amicus brief for the group Coloradans Protecting Patient Access argued that the security measures suggested in the PPRM case, such as perimeter walls and impenetrable doors, are especially burdensome for health care facilities, which must allow for easy access by the public.
“Access to healthcare should not, as a matter of public policy, be hampered by imposing the expectation that a hospital should be a ‘fortress,’” the brief said.
Planned Parenthood and advocates also argue the COA’s decision expands landowner liability under a statute intended to limit it.
“If you look at the purpose and the history of the Premises Liability Act, the primary purpose was to clarify the scope of the law and to narrow it to confined instances of liability,” said Brownstein Hyatt Farber Schreck associate Julian Ellis, who filed the brief on behalf of CCJL and the Denver Metro Chamber of Commerce.
“And we thought the Court of Appeals decision and some of the language that was used went against the grain on what the Premises Liability Act was intended to do,” Ellis said.
Concerns over how the Premises Liability Act has been construed extend to both sides. The Colorado Trial Lawyers Association, represented by Ralph Ogden of Wilcox & Ogden, filed an amicus brief in support of Dear’s victims. The position the organization took in the case was, in Ogden’s words, “really a pretty narrow one.”
“We wanted to ensure that the Premises Liability Act was not construed beyond its statutory language,” Ogden said, explaining that the statute allows for three defenses, and Planned Parenthood’s “predominant cause” defense isn’t one of them.
“The way the district court applied the law, it added a court-made, fourth affirmative defense,” Ogden said. “And we wanted to be sure that the Supreme Court did not buy that argument.”
That doesn’t mean Planned Parenthood can’t make a causality argument, it’s just not a legal determination for the court to make, according to Ogden. “Planned Parenthood has the right to argue to a jury that the shooter was totally responsible for everything that happened to the plaintiffs,” he said. “But that’s for the jury, and not a judge, to decide.”
If the Supreme Court agrees with the trial court, Ogden said, “I’m not sure it would have any direct applicability beyond active shooter cases.” But it could open the gate to other court-made defenses being added to the statute in other cases, he said.
“We want to be sure that nobody starts engrafting stuff onto the Premises Liability Act that the legislature didn’t put there,” Ogden said. “And if the legislature thinks that a predominant cause defense should be there, the legislature will certainly add it.”
The Supreme Court will consider other issues in the case, including whether the COA was wrong to conclude the Planned Parenthood Federation of America didn’t owe a duty of care to visitors to its Colorado affiliate.
While federal judges have dismissed premises liability claims related to the Columbine High School and Aurora theater shootings, this is the first time a similar active shooter case has hit the state appellate courts, according to Ogden.
Those watching the case hope the Supreme Court’s decision will help clarify liability in circumstances that have become all too common today but weren’t a major concern when the state’s Premises Liability Act went into effect in the 1980s. “We live in a different time than 30 years ago. We have mass shootings and people have active shooter guidelines that, even 20 years ago, we wouldn’t have seen,” Ruebel said.