Legal Immunities Mock the Law

18 July 2018

So there’s this gimmick, see? A special interest group of one sort or another goes before a legislature somewhere – a State Capital, or Washington D.C., and says, “We’re so important, but at the same time so helpless, that you must preserve and protect us, by making us immune from lawsuits.”

It’s a clever gimmick, too. It means, that instead of taking steps to make people safer, the immunized groups are just above the law – they can’t be sued for their wrongdoing. It’s not a new phenomenon – special interests having been trying this for years. Here’s a link to an article from 2004 showing actual laws that protected special interests from accepting their responsibility for harming others. Here’s one example:

In Arizona, the term “double header” has taken on a whole new meaning. The major league baseball park in Phoenix was designed so that people who leave the viewing area to buy hot dogs can still get hit in the head with foul balls coming through large openings in the walls. So, what did the ballpark owners and architects do to make the fans safer? More effectively separate the concession areas from the field of play? Of course not. Why should they, when it’s so much easier to just to make sure that if someone does get hit on the head, they can’t hold you responsible!

And this problem is still going on. Right now, for example, used car dealers are trying to get this special form of coddled protection from friendly legislatures:

Nine out of 10 Americans believe that car dealers shouldn’t sell used cars with safety defects. Despite this fact, dealers have successfully pushed in Tennessee and Pennsylvania — and are now trying to pass in New Jersey — legislation to allow used car dealers to sell used cars with unrepaired safety defects. . . . What’s more, the dealers would not be liable for resulting injuries or deaths caused by the safety defect. All the car dealer has to do is “disclose” (i.e. bury in paperwork) when selling the car that it’s under safety recall. But obviously, the whole idea is to allow these dealers to pressure and confuse customers into buying unrepaired cars, and then not be on the hook for selling them.

Doroshow, J. “’Hot Buys,’ ‘Low Mileage,’ ‘We’ll Finance!’ We’ll kill you.” July 3, 2018

These legislative immunities are dangerous: They carve out whole industries from the responsibility that tort law imposes, and give a free pass to unsafe or dangerous practices. And now, a whole new dimension in this bad business has come into play: “MGM Resorts Sues 1,000 Victims of Las Vegas Shooting, Seeking to Avoid Liability,” (by Richard A. Oppel, Jr., published in the New York Times on July 17, 2018).

You may recall the horror on October 1, 2017, In Las Vegas at the Mandalay Bay hotel, where, “from a room on the 32nd floor, Stephen Paddock shot and killed 58 people and wounded more than 500 others attending a country music concert below. It was the worst mass shooting in modern American history.”

The hotel is owned by MGM Resorts, and some of the victims have sued MGM for “what they call a failure to provide adequate security and for allowing Mr. Paddock to bring high-powered rifles and thousands of rounds of ammunition into his hotel room. Many more victims are expected to do the same.”

But here’s a twist:

Faced with potential lawsuits from hundreds of victims of last year’s mass shooting in Las Vegas, MGM Resorts International is trying an untested strategy: suing the victims first. . .
MGM is not suing for money, but the company wants a federal court to rule that it cannot be held liable for the shooting by more than 1,000 victims and others it named in the suits. The company said it named only people that have already sued or given notice that they intend to do so.

What? Why? How can this be? The possible answer is

based on a federal law passed after the Sept. 11 terror attacks, which is known as the Support Antiterrorism by Fostering Effective Technologies, or Safety, Act.

The law is intended to shield federally certified manufacturers of security equipment and providers of security services from liability should they fail to prevent a terrorist attack, which the law defines as an unlawful act that causes mass destruction to citizens or institutions of the United States. The Department of Homeland Security said in a publication that it has approved hundreds of applications for Safety Act protection for products and services including software, sensors and security planning.

MGM contends that under the law, which Congress passed in 2002, it is immunized from liability because it met two conditions: A security company that was hired for the concert had a certification from the Department of Homeland Security, and the shooting qualified, in the company’s view, as an “act of terrorism.”

It is a new theory, and one that has never been tested in court. In fact, MGM’s lawyer has asserted that “no court opinions apply or interpret the statute.” Lawyers for those who were killed or wounded in the shooting have reacted angrily,

calling the move an unprecedented and specious attempt to protect the company no matter what the facts eventually show. ‘It’s all about immunizing themselves from liability and staying out of state courts,’ said Craig Eiland, a lawyer in Austin, Tex., who represents hundreds of shooting victims. ‘They want to say that it does not matter how negligent MGM was” in allowing Mr. Paddock to stockpile an arsenal in his Mandalay Bay hotel room.

The stakes are high. If this interpretation of the law stands, if MGM wins, then the Federal judge will throw out all of the lawsuits filed by wounded victims, and the families of those killed. They’ll never get their day in court; never have a jury decide if MGM and its security forces were negligent in letting Mr. Paddock bring high-powered rifles and thousands of rounds of ammunition into his hotel room. Is that justice? Is that fair?

But there is a larger issue here – the scope and extent to which this law might protect other so-called security companies from liability, even for gross negligence. As Attorney Eiland said in the Times article,

MGM’s effort to use the law this way, if successful, could provide a road map for other companies to escape responsibility for future mass-casualty attacks.

“Their theory is that this security company goes to D.H.S. and gets some type of certificate, and so now MGM is immune, and everybody in the future who hires the company is immune,” he said. “It’s outrageous, and that’s not what the law is, and we would all be less safe.”

Why should this be? Why should federally certified manufacturers of security equipment and providers of security services be shielded from liability? If they exist to protect us all from terrorism, and they negligently, wrongfully fail to do so, why should they get a free pass? How are we safer? Is this what Congress intended? And if so, why? Why shield companies whose negligence contributes to the death or injuries of hundreds of people?

And here’s another thought: Maybe MGM and its security forces were NOT negligent in letting Mr. Paddock to bring high-powered rifles and thousands of rounds of ammunition into his hotel room. Why shouldn’t that be a question that the jury decides? That’s exactly what juries do. That’s exactly what juries should do.

These immunity laws – well, what do you think? Good idea, or bad?