Three warehouse employees who survived a workplace mass shooting can’t pursue a lawsuit against their employer despite an appeals court’s finding that workers’ compensation exclusivity didn’t apply to the case.
The Appellate Court of Maryland found that the employer wasn’t protected by the exclusivity provisions of the state’s Workers’ Compensation Act and the lawsuit couldn’t proceed because the workers couldn’t prove the incident was a foreseeable event.
However, the court cautioned that its opinion shouldn’t be read to suggest that mass shootings are unforeseeable as a matter of law.
Shooter was worker with access to warehouse
On Sept. 20, 2018, workers at a Rite Aid warehouse in Aberdeen, Maryland were the victims of a mass shooting.
The shooter, Snochia Moseley, was an employee of Abacus Corporation, a temporary agency that assigned Moseley to work at the warehouse. On the day of the incident, Moseley used her ID badge to gain access to the facility and open fire on her co-workers, killing three and wounding three more.
Haissaun, Shyheim and Michael Mitchell worked for a temporary agency known as Pinnacle Workforce Logistics at the Rite Aid warehouse. Haissaun, Shyheim’s brother and Michael’s son, was shot in the leg during Moseley’s attack and all three suffered ongoing emotional and physical repercussions from the trauma they experienced that day.
Circuit court grants companies summary judgment
The Mitchells filed a lawsuit against Rite Aid and Abacus in the Circuit Court for Baltimore County, alleging they had suffered damages caused by the companies’:
- negligent failure to provide adequate security at the Aberdeen facility, and
- negligent hiring and supervision of Moseley.
On Jan. 10, 2022, the circuit court granted summary judgment in favor of Rite Aid and Abacus, finding that:
- Rite Aid was the Mitchells’ controlling employer and was protected by the exclusivity provisions of the Maryland Workers’ Compensation Act, and
- there was no evidence that Abacus and Rite Aid could have known that Moseley was a violent threat.
On appeal with the Appellate Court of Maryland, the Mitchells argued that the circuit court erred in these, and other, findings.
Finding Rite Aid controlling employer was an error
The appeals court found that the circuit court erred, in part, by granting Rite Aid’s motion for summary judgment on the grounds of workers’ compensation immunity.
Specifically, the appeals court concluded that the circuit court made in error in finding that Rite Aid was the Mitchells’ employer because it maintained ultimate control over its facility and directed third-party supervisors on the services to be provided. There was a possibility, according to the appeals court, that the Mitchells remained employees of Pinnacle, free from Rite Aid’s control except for the final product of their work.
Workers failed to prove incident was foreseeable
However, the appeals court agreed with the circuit court that summary judgment was warranted for Rite Aid and Abacus because the Mitchells failed to prove that Moseley’s tragic shooting spree was foreseeable.
The Mitchells failed to establish the attack was a reasonably foreseeable criminal act because:
- there was no history of violent criminal activity in the vicinity of the facility
- there was no indication that Moseley posed a threat of violence, and
- the events immediately preceding the shootings were no indication of any imminent violent outburst.
The appeals court also stated that “this opinion should not be read to suggest that mass shooting are unforeseeable as a matter of law” as “the standards of care surrounding a business owner’s duty to
protect invitees from gun violence are not static and will continue to evolve in light of ‘common sense perceptions of the risks created by various conditions and circumstances.'”
Footnotes point to increasing concerns of workplace shootings
The footnotes of the appeals court decision contain some interesting facts worth noting about mass shootings in the workplace.
The court states that “even under the FBI’s relatively narrow definition of what constitutes a mass shooting, there were 61 mass shooting incidents across the United States in 2021, slightly more than one per week, as compared to 31 such incidents in 2017.”
Compare that to statistics from the Gun Violence Archive, which the court visited on Feb. 15, 2023, that defines a mass shooting to involve four or more people injured or killed, exclusive of the shooter. The archive’s numbers show “an increase from 349 mass shootings in 2017 to 690 mass shootings in 2021.”
This has led to private organizations increasing their demand for insurance policies covering liability for an active shooter event, according to the appeals court.
“As one insurer very recently reported, the company experienced a 10-15% increase in rates for its deadly weapons coverage, with clients seeking to purchase policies with limits of ‘$5-10 million in losses, compared to $1-3 million four years ago.'”
This has also led to Cal/OSHA proposing a regulation in May 2022 that would require employers to develop and implement workplace violence prevention programs, trainings and incident response plans. Federal OSHA is also considering workplace violence regulations and is currently working on a standard to address the problem in health care settings.
