MGM is suing the victims of the October 1, 2017 mass shooting where Stephen Paddock, from the 32nd floor of the Mandalay Bay hotel, killed 58 people and wounded 500 others attending an outdoor music concert. MGM is not suing for money. They are suing under the Federal Declaratory Judgment Act where a judge is asked to determine the rights of the litigants involved.
MGM is worried that it could be found negligent in allowing Paddock to bring high powered rifles and thousands of rounds of ammunition into his hotel room. Consequently, they are asking a judge to find that it is immune from liability for negligence under an obscure 2002 federal law called the Support Antiterrorism by Fostering Effective Technologies, or Safety, Act. That law provides immunity to federally certified manufacturers of security equipment and providers of security services should they fail to stop a terrorist attack. MGM argues that they hired a security company that was certified by the Department of the Homeland Security (“DHS”) and that the mass shooting constitutes an “Act of Terrorism.” MGM is asking the Court to rule that it is immune from all liability arising from the mass shooting.
A couple of thoughts. MGM has filed this lawsuit in the federal courts of California and in the federal courts of Nevada. To me, that smacks of justice shopping; in other words, seeking a sympathetic judge to rule in MGM’s favor. Second, what is an act of terrorism is defined by federal law and it is DHS who decides what constitutes an act of terrorism in our county. To date, the Las Vegas shooting has not been declared an act of terrorism. Unless that happens, MGM’s lawsuit must fail.
Third, does the fact that MGM hired a security company that has federal immunity automatically impose immunity on MGM? This is a question of first impression, meaning that a federal court has not previously answered this question.
My last thought on this concerns the obvious PR hit that MGM will take for suing the victims of a mass shooting. Although they have tried to “spin it” by arguing that they are doing the victims a favor by trying to get the legal issues resolved quickly, no one is going to buy that. That MGM is willing to take such an incredible PR hit suggests to me that there may very well be evidence out there that MGM was negligent and, in some way, facilitated Paddock’s ability to commit this heinous crime. If MGM is successful in having a court declare that it is immune from liability, this will preclude the lawyers for the victims from discovering MGM’s malfeasance. No one will know what MGM did or failed to do that causally allowed for this mass shooting.
Robert N. Hunn, Esquire is a partner in the Philadelphia and New Jersey law firm of Kolsby, Gordon, Robin & Shore.
