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Florida Fourth DCA affirms dismissal of negligence lawsuits brought by Pulse nightclub shooting victims against employer of shooter.

On April 1, 2000, in Abad, et al, v. G4S Secure Solutions (USA), Inc., No. 4D18-2658, the Florida Fourth DCA affirmed a trial court’s dismissal of the plaintiff’s consolidated negligence lawsuits against the defendant security company. The lawsuits stemmed from the 2016 Pulse nightclub shooting in Orlando. The shooter, Omar Mateen, was employed by the security company at the time of the shooting as a “Custom Protection Officer,” a position which required him to carry a firearm, which in turn required him to obtain a Class G gun license from the State of Florida. Even though Mateen committed the shooting when he was off-duty and the security company had no connection to the nightclub where the shooting occurred, the plaintiffs alleged that they were owed a legal duty because they were in the foreseeable zone of risk to the general public created by G4S when it: (1) hired Mateen as an armed guard despite knowing he wanted to copy the Virginia Tech shooting; (2) trained him to become an expert marksman; (3) ignored disturbing and threatening behavior while on the job; and (4) assisted him in fraudulently obtaining a gun license that helped him purchase the weapons he used in the shooting.

The Fourth DCA observed that Florida law has recognized that a duty may arise from four sources: (1) statutes and other legislative enactments; (2) case law; (3) other judicial precedent; and (4) the general facts of the case. Jackson Hewitt, Inc. v. Kaman, 100 So. 3d 19, 28 (Fla. 2d DCA 2011). “Th[is] fourth category encompasses ‘that class of cases in which the duty arises because of a foreseeable zone of risk arising from the acts of the defendant.’” Id. The plaintiffs argued that G4S’s actions created a broader zone of risk to the general public and imposed a legal duty upon it regarding the safety of the shooting victims. The Fourth DCA’s opinion largely ignored the defendant’s alleged knowledge of Matten’s disturbing and threatening behavior and instead focused on his “free agency” and the “ubiquitous” nature of firearm ownership. The Court further noted that even if the defendant’s actions created a broader zone of risk to the general public, the inquiry would then turn to whether the duty of care created by this conduct extends to the misconduct of . . . a third party.” Dorsey v. Reider, 139 So. 3d 860, 864 (Fla. 2014). The Court acknowledged that there were two exceptions to the general rule in Florida that a person has no duty to prevent misconduct by a third party: (1) if a “special relationship between the defendant and the person whose behavior needs to be controlled or the person who is a foreseeable victim of such conduct,” Palmer v. Shearson Lehman Hutton, Inc., 622 So. 2d 1085, 1089 (Fla. 1st DCA 1993); or (2) the defendant is in actual or constructive control of the instrumentality, the premises on which the tort was committed or the tort-feasor, Daly v. Denny’s, Inc., 694 So. 2d 775, 777 (Fla. 4th DCA 1997). The Court found that none of these conditions were met in the case.