The Colorado Supreme Court on June 8 ruled on a closely watched premises liability case involving the 2015 Colorado Springs Planned Parenthood shooting. While the court gave a narrow ruling on a narrow question, some are concerned the majority opinion could burden landowners commonly targeted by violent extremists — such as abortion clinics, religious centers and minority-owned businesses — with heavy insurance and operating costs.
After Robert Dear killed three and injured nine others in Colorado Springs, victims of the shooting and their survivors sued Planned Parenthood of the Rocky Mountains under Colorado’s Premises Liability Act, alleging PPRM had a duty to provide a safe and secure environment. They argued that Dear’s attack was foreseeable because of the long history of attacks and threats against Planned Parenthood clinics, and PPRM should have implemented better security measures at the clinic.
PPRM had argued, and the trial court agreed, that the case should be dismissed on summary judgment because, as a matter of law, it didn’t cause and couldn’t have foreseen the shooting. The Court of Appeals reversed the trial court’s grant of summary judgment, concluding the victims had shown there were genuine issues of material fact as to whether PPRM had taken sufficient measures to protect the victims, and, therefore, the question of PPRM’s liability should be left to a jury.
The Colorado Supreme Court didn’t weigh in on the merits of the case, focusing instead on the narrow question of whether PPRM had shown that, “as a matter of law, Dear was the predominant cause of the plaintiffs’ losses such that no reasonable jury could reach a different conclusion.” In its majority opinion last week, the state’s highest court agreed with the Colorado Court of Appeals, finding there were genuine issues of material fact as to whether Dear was the sole legal cause of the victims’ injuries.
In reaching its decision, the high court considered the victims’ evidence that PPRM knew for years there was a risk of violence against its facilities, and the organization even warned new doctors of the risks of working there and offered bulletproof vests to physicians. The victims also offered testimony from a premises security expert who said that Dear probably would not have been able to carry out the attack had the PPRM facility taken proactive measures such as installing a fence, having a security guard on duty, installing steel doors and using electronic lockdown measures.
The plaintiffs had also brought negligence claims against PPRM’s parent organization, Planned Parenthood Federation of America. The trial court dismissed the claims against PPFA on summary judgment, and the Court of Appeals and Colorado Supreme Court affirmed the trial court’s decision.
A partial dissent penned by Justice Melissa Hart and joined by Justice Monica Márquez and Justice Brian Boatright expressed hesitation over the majority’s ruling that PPRM had failed to show Dear’s actions were the predominant cause of the victim’s injuries.
“The majority’s analysis, by focusing so exclusively on foreseeability, significantly changes our proximate cause jurisprudence,” Hart wrote. “In doing so, it ties the liability of the landowner to the nature of its business and ignores the reality that the overwhelming — the predominant — cause of harm to victims of mass shootings is the maniacal determination of the shooter himself.”
Although this was the first time the Colorado Supreme Court had taken up the issues raised in the Planned Parenthood case, federal judges have dismissed liability claims against property owners in connection with other Colorado mass shootings, including the Columbine High School and Aurora theater shootings. Hart wrote that she was “extremely troubled” that the majority, in deciding summary judgment would be inappropriate, had distinguished this case from those other cases because the PPRM shooting happened at a facility that had long been the subject of violent threats.
“[T]he reason for such threats, largely unacknowledged by the majority, is the well-known fact that PPRM provides abortions — a service fraught with political controversy and heated cultural divide,” the partial dissent states.
Hart wrote that the majority had created the “equivalent of a heckler’s veto” and a “perverse incentive” for abortion opponents to step up their threats in order to force clinics to “fortify” their premises, driving up operating costs and insurance rates. The burden of higher costs wouldn’t just fall on abortion clinics, she added, but could affect any business or landowner that has been the target of violent attacks or threats. “After today’s decision, antisemitic fanatics can impose additional costs on synagogues, and White supremacists can inflict the same on Black churches or businesses,” states the partial dissent.
NO CLEAR LINES
During oral arguments, the justices had pushed attorneys on both sides about where they would draw the line for landowner liability in mass shootings, but they hesitated to offer a clear test for which cases should be thrown out on summary judgment. Last week’s narrow ruling by the Supreme Court didn’t do much to draw that line in the sand.
“I believe that was by design. The Supreme Court was very careful to point out that their holding was very fact-specific to this case,” said attorney James Anderson, who filed an amicus brief on behalf of the Colorado Trial Lawyers Association in support of the victims.
Anderson said the CTLA, whose amicus brief was limited to issues related to the Colorado Premises Liability Act, was happy with how the court interpreted that law.
“The Premises Liability Act always presents the need for fact-specific analysis,” he said. “It turns out that there are very few questions of law — a lot of it’s very fact-specific. I believe that the spirit of this decision reflects that desire under the [PLA].”
Brownstein Hyatt Farber Schreck associate Julian Ellis said he expected this case, involving a heavily armed shooter intent on killing, to be straightforward when it came to the question of predominant cause.
“I thought, if there’s an instance in which there’s a poster child for predominant cause … this was the case. Obviously, the majority disagreed with that,” said Ellis, who filed an amicus brief on behalf of Colorado Civil Justice League and the Denver Metro Chamber of Commerce in support of PPRM.
Ellis said the decision leaves open questions about how to advise clients on protecting themselves from liability. For businesses or landowners subject to random acts of violence, “my advice is to be diligent,” he said, and to be responsive to new threats.
But for property holders who, like Planned Parenthood, are constant targets of violence, “it’s hard to say what you could do to insulate yourself from liability,” said Ellis, echoing the concerns Hart voiced in her partial dissent.
“Any enterprising plaintiff’s attorney can point to something that this particular category of property owners could have done differently to prevent the harm,” he said. “That’s good enough to … subject the property owner to costly litigation and potentially adverse judgment at trial.”