Shooting Victims' Lawsuit Against El Paso Walmart Tests Security Responsibility Of Retail Landlords
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A family of four besieged by gunfire at a Walmart Supercenter in El Paso on Aug. 3 is at the center of a lawsuit filed against Walmart Inc., WalMart Stores Texas LLC and the shooter, Patrick Wood Crusius.
In the suit, shooting victims Jessica and Guillermo Garcia — who remains in critical condition after 13 surgeries — challenge a long-standing belief that retailers and shopping center owners aren't responsible for violent acts on their premises. Their suit alleges Walmart had no active security on-site during the mass killing, and contends that this lack was negligent.
The Garcias' case against Walmart could serve as a bellwether for security in retail and test the high burden of proof plaintiffs usually face when trying to make a landlord, property manager or business owner liable for violence on their property.
The Current Retail Security Landscape
While Walmart did not answer Bisnow's inquiry as to whether it had security on-site at the El Paso shooting location, news media reports and the Garcia lawsuit say no discernible security was on the premises when the gunman entered the front door and launched his attack.
El Paso Police spokesman Sgt. Enrique Carrillo told Bisnow Walmart previously had off-duty officers at El Paso Walmarts, but it stopped that practice sometime prior to the August shooting spree. Since the incident, the retailer is now using the services of off-duty El Paso police again, Carrillo said.
Walmart spokesperson Randy Hargrove told Bisnow the retailer has not publicly disclosed its internal process for determining security needs at each store, but said Walmart has a robust process for deciding store security needs in the form of security guards, off-duty police officers and non-uniformed officers on store premises.
Bisnow visited roughly 25 stores in Dallas-Fort Worth and Houston this month, including several Walmarts, Dick's Sporting Goods, Lowe's, Best Buys, Targets, Home Depots, Costcos and Walmart-affiliated Sam's Clubs, and observed security guards at only three locations.
One Houston-area Walmart had an unarmed uniformed security guard inside the store and a uniformed guard patrolling the parking lot in a marked pickup truck. The patrolling guard told Bisnow he had been instructed not to speak to media or he would be fired. Bisnow also came into contact with a security patrol car driving outside a Dick's Sporting Goods location at one Dallas-area mixed-use retail destination.
And at a Target and Best Buy-anchored power center in the Houston area, a uniformed guard patrolling in a cart told Bisnow his company keeps a regular patrol in the parking lot from 8:30 a.m. to 12:30 a.m. daily, looking for “anything abnormal.” He was unarmed and said he was instructed to call the police directly for “anything really serious.”
But at the other nearly two dozen locations, Bisnow found no clear active security at the front entrances or in the parking lots of the majority of stores. Bisnow wandered through many of the stores without coming in contact with security officers, although we wouldn't be able to detect officers or guards in plain clothes.
On-site security in most cases was limited to cameras and metal detectors at several sites, based on Bisnow's observations. An employee of one Dallas-area Walmart told Bisnow the store relies entirely on cameras for its security.
Bisnow also visited a Walmart in the Duluth, Georgia, area where on-duty police officers are typically parked out front, but when Bisnow arrived, no officers were there and no security was spotted anywhere in the store. In addition, Bisnow found no visible guard presence when visiting a Walmart in Westminster, California, although the publication is unable to determine whether non-uniformed guards were present.
“That’s fairly common [not to have guards at retail centers]," said Jeff Bettinson, a 19-year property management veteran and owner of iTrip Vacations Salt Lake City. "Mostly what they have is loss prevention and different companies will do it a different way."
Bettinson, who previously managed a major mall and retail strip and power centers in Utah, said unless a store is known for being located in a crime-infested neighborhood, armed guards or the hiring of off-duty police officers is generally not a common practice among stores or retail property managers.
The Legal Accountability Of Landlords And Retailers
Case law from the Texas Supreme Court says generally premises aren't liable for the acts of third-party violent offenders who enter their sites without foreknowledge — essentially, if the landlord had no warning a crime might occur, it isn't liable for the actions of the criminal.
If a plaintiff can show the crime was foreseeable and the likelihood of injury was high enough to outweigh the burden on the property owner or retailer to implement strategies to stave off the threat, then the landlord could be found liable.
But getting that verdict isn't easy.
“In Texas, you are probably going to find it is a little bit higher than [establishing] foreseeability, especially where you have the criminal act from a third party,” The Carson Law Firm attorney Russell Shrauner said. “You are going to need to bring evidence to support your claim that this landlord or the owner of this premises failed to meet their duty to the people where they were shopping, and you would have to show that maybe there was a rash of crimes in the parking lot or maybe there was a series of assaults or a series of thefts that resulted in things violent happening.”
In his recently filed lawsuit for the Garcia family against Walmart, The Ammons Law Firm attorney Patrick Luff argues the retailer knew of violence occurring at numerous Walmart stores across the country — including a hostage situation at an Amarillo Walmart in 2016 and a fatal shooting at a Mississippi Walmart less than two months before the El Paso incident — but continued to move forward with no guards or heightened security.
“From what we have been able to find out so far, there was no discernible security presence at the store when the shooting took place,” Luff said. “When you look at the original petition that we filed, I include what has been reported from the shooter that he went in and cased the place, and he didn’t see anything that deterred him at that time.”
Luff said he believes an armed guard or a visible security team can make a life or death difference in active shooter cases.
“We have a number of cases where we have seen an active shooter try to pass over a target because of the visible security presence,” Luff said. “The one that immediately comes to mind is the Pulse nightclub shooter, who was originally intending to go into Disney World, but saw the security presence there and decided to go somewhere else.”
The Garcia family's suit against Walmart attempts to prove negligence and premises liability and highlights the company's documented issues with security. An August 2016 Bloomberg article reported more than 200 violent crimes at Walmart locations in the first seven months of 2016, roughly one a day, and featured police officers criticizing Walmart for its volume of incident reports, saying the company relies too heavily on local police due to lack of on-site deterrents.
“The allegations we make in our original petition are that Walmart has a long history of staffing security positions that are profit-based and not customer-based,” Luff said.
The cost of hiring well-trained armed guards varies based on geographic region, city, business location and the skills requested from the guard, according to Aegis Security & Investigations expert Jeff Zisner. But Zisner puts hourly armed-guard rates in the $30 to $50 range, with top-trained professionals sometimes demanding upward of $100 per hour for certain assignments.
In a pre-litigation filing, Luff's firm asked Walmart for information on any active shooter training programs initiated by the retailer, the number of Walmart or Sam's Club store locations with at least one security guard on duty, and information on all crimes that occurred at the El Paso store in the past five years.
He also highlighted the Amarillo Walmart hostage situation in 2016 and asked the retailer for internal communications and any documentation that may show management or security discussions that occurred at the El Paso store or nationally after that event.
This information could support the plaintiffs' contention that Walmart knew of the security risks patrons and staffers face at stores nationwide and failed to provide proper security to mitigate the risk.
“Safety is a top priority,” Walmart's Hargrove said in response to Bisnow’s inquiry regarding the lawsuit. “We care deeply about our associates and customers, and once we are served with the complaint, we will respond appropriately with the court. This tragic event will be with us forever and our hearts go out to the families that were impacted.”
Should There Be More Security?
Whether a well-trained security presence is placed at a retail center is largely based on each store's individual history, Zisner said — is it near a bad neighborhood or a past crime scene, or are there other factors that put it at higher risk?
Traditionally, retail security is focused on loss prevention. The hiring of an armed guard is normally reserved for when there is a likelihood of crime based on facts known to the property owner or manager at the time of hiring, he said.
“Really the only reason you would have an armed guard is if you anticipate that guard being forced to deploy their weapon to stop an attack against life.”
Zisner laid out the questions businesses may ask themselves when trying to figure out if armed security is needed — “What’s the history of instances happening? What are the chances of a future event happening? What’s the police response time? Is the guard equipped and trained properly?”
There is another factor, he added.
“Is the management willing to pay a premium for someone who is armed and pay a premium for someone who is better trained or better equipped to respond better?”
Thompson Insurance Inc. insurance broker Drew Gunn said case law on this issue of landlords or property managers becoming liable for having no guards is still untested, and he has been brokering active-shooter insurance policies to retailers and businesses as protection meanwhile.
He said whether retailers believe they are liable or not in active-shooter cases, the insurance is becoming necessary in the wake of shootings nationwide. When a shooting occurs, lawsuits often follow, and Gunn said everybody usually gets served from the landlord to the property manager down to the tenant.
“The case law is not extraordinarily tested. Some of these things end up settling out of courts, so there are no punitive damages that are brought. But that’s the reason to carry the insurance coverage because then the insurance will pay for the legal expenses of the insured and also for any settlements,” Gunn said.
Who should consider better security and active-shooter insurance? Gunn said a slew of cases have made it clear who is a target.
“If you are in a large retail space with high-flow traffic, [you] ... could be a setting for an active shooter type of event.”
But armed guards on-site is not a panacea to all of retail's problems. Bettinson said retailers could face backlash if hired guards exert excessive force, hurting patrons or employees and creating extra liability.
No matter how a case turns out, it really comes down to one thing, attorney Luff said.
“I guess a larger question, putting aside the issue of legal liability, is if you feel that you have any sort of obligation at all to your clients or your customers, then doing nothing at all is unacceptable,” Luff said.
While this is more of a policy or societal argument, the legal argument is more complex and harder to make stick based on cases publicized so far.
Gunn points out that one of the worst active shooter cases in the U.S. is the young man who carried a gun into an Aurora, Colorado, movie theater, killing and injuring dozens of trapped moviegoers in the summer of 2012.
The theater company faced a lawsuit for failing to provide adequate security, but the judge dismissed the suit, saying a lack of security was not a substantial factor in causing the shooting, the Denver Post reported at the time.
Another Colorado case went in the opposite direction. A judge reportedly overruled a ruling to dismiss an active shooter case against a Planned Parenthood clinic in Colorado, finding that the premises had enough knowledge of threats of potential violence to implement reasonable security measures, Bloomberg reports.
It is in this gray area between how a premises' past shapes its future and security expectations where Walmart falls today, according to Luff's lawsuit.
Whether the court agrees could shape how retail landlords around the country need to handle security at their properties.