contract-law liability civil-law firearms nevada
What are some possible law suits or civil actions the Las Vegas shooting victims could take?
<p>I assume that many, if not all of the businesses, corporations and individuals who were operating and supplying services at the time of the <a href="https://en.wikipedia.org/wiki/2017_Las_Vegas_Strip_shooting" rel="noreferrer">Las Vegas Strip shootings (Wikipedia)</a> - such as hotels, concert promoters, etc. - to guests and concert attendees had protected themselves against liability with contracts, entered into the customers by the purchase of tickets, payment for hotel rooms or verbal agreements.</p>

<p>And those contracts absolved the provider of civil liability for injuries from ordinary circumstances (tripping/falling injuries) and also possibly injuries and deaths from extraordinary circumstances (force majeure) such as the shootings.</p>

<p>But regardless of those contracts: are these some possible civil actions by the victims? (Yes, I know anyone can sue anyone in civil court). But <em>why</em> would any or all of these possibilities be thrown out - such as a lawsuit against a municipality re: governmental immunity - by summary judgment?</p>

<blockquote>
  <p>1) Could someone open a civil action against the city of Paradise
  <em>(where the incident occurred near but outside the boundaries of the
  city of Las Vegas)</em> for failure to provide security? Or are city/county
  municipalities immune? And is the state of Nevada immune?</p>
  
  <p>2) Could someone sue the concert promoters for failure to provide
  safety? And/or was that safety limited to the actual physical area of
  the concert?</p>
  
  <p>3) Could someone sue the hotel/casino for failure to provide general
  safety? What about failure to prevent the gunman from bringing weapons
  into the hotel/casino?</p>
  
  <p>4) What about the store that sold the firearms (or ammo or accessories) to the shooter? Even
  though those sales appear to have been legal in Nevada?</p>
  
  <p>5) Or one or more of the firearm companies themselves?</p>
  
  <p>6) What about the shooter, his estate and/or his family? I assume it
  can be alleged that they might have known of the shooter's plans
  and/or failed to intercede.</p>
  
  <p>7) And (possibly) more of an opinion: could a group of victims attain class
  action status against any of those government or private entities?</p>
</blockquote>

<p>You can sue anyone for anything. I will answer these on the assumption that the real question is whether there is a legal basis for such a suit.</p>

<blockquote>
  <p>1) Could someone open a civil action against the city of Las Vegas for
  failure to provide security? Or are city/county municipalities immune?
  And is the state of Nevada immune?</p>
</blockquote>

<p>This would not prevail. There is governmental immunity and there is no duty of care. And there is also no plausible argument, factually, that somebody in the government did something wrong.</p>

<p>Note also that a comment accurately notes that the incident took place in the City of Paradise rather than the City of Las Vegas, and the question has been revised accordingly.</p>

<p>Some states have a general victim's compensation fund that helps partially cover losses of crime victims, but I am not aware that Nevada has one.</p>

<blockquote>
  <p>2) Could someone sue the concert promoters for failures to provide
  safety? And/or was that safety limited to the actual physical area of
  the concert?</p>
</blockquote>

<p>No. The risks were unprecedented, unforeseeable, and there would have been no cost effective way to prevent them.</p>

<blockquote>
  <p>3) Could someone sue the hotel/casino for failure to provide general
  safety? What about failure to prevent the gunman from bringing weapons
  into the hotel/casino?</p>
</blockquote>

<p>The hotel/casino is not a guarantor of general safety. The trouble with "failure to prevent" is that the weapons were legally obtained and owned. While it could have raised suspicions, there was no crime or illegal activity to report due to the lax guns laws of the U.S. and Nevada.</p>

<p>Notably, in a similar suit arising out of the Aurora, Colorado theater mass shooting at a showing of <em>The Dark Knight Returns</em>, a court dismissed claims of those injured against the theater because the crime was not foreseeable at the time and because the crime was an intervening and superseding cause of the harm. The precedent is not directly applicable, since Nevada is in the 9th Circuit and is a different state, while Colorado is in the 10th Circuit. But, the principles of law that apply would be very similar and persuasive to a court in Nevada.</p>

<blockquote>
  <p>4) What about the store that sold the firearms to the shooter? Even
  though those sales appear to have been legal in Nevada?</p>
</blockquote>

<p>No. As you note, the sales appear to have been legal. If someone could show that the sales were made illegally, or worse, were made illegally with knowledge that this was intended, that would be a different story.</p>

<blockquote>
  <p>5) Or one or more of the firearm companies themselves?</p>
</blockquote>

<p>No. The guns were not defective and were in compliance with federal regulations. Specifically, this is governed by the federal <a href="https://en.wikipedia.org/wiki/Protection_of_Lawful_Commerce_in_Arms_Act" rel="nofollow noreferrer">Protection of Lawful Commerce in Arms Act</a> which would also apply to the conversion kits that he purchased to make some of the firearms more like automatic weapons.</p>

<blockquote>
  <p>6) What about the shooter, his estate, and/or his family? I assume it
  can be alleged that they might have known of the shooter's plans
  and/or failed to intercede.</p>
</blockquote>

<p><em>Claims Against The Shooter</em></p>

<p>The shooter is dead, so he would be hard to serve with process (i.e. you can't sue dead people, you can only sue their estates). </p>

<p>Another way that crime victims often receive compensation is from restitution awards in a criminal case. But, in U.S. jurisprudence, criminal charges cannot be brought against dead people and are automatically dismissed if a defendant dies before he is convicted or after he is convicted but before the conviction is final.</p>

<p><em>Claims Against The Family</em></p>

<p>Family is not legally responsible for other family member's torts and crimes simply by virtue of being family members (although claims against a decedent's estate may impact them by reducing the inheritance that they might otherwise have received) and <a href="http://talkingpointsmemo.com/news/what-we-know-stephen-paddock" rel="nofollow noreferrer">there is no plausible reason to believe that anyone</a>, other than possibly his girlfriend, would have had any knowledge of his plans. He appears to have had a distant relationship with his brother who knew nothing, his parents are dead, he was not currently married, he divorced each of his two successive wives long ago, and he has no descendants.</p>

<p><em>Claims Against The Girlfriend</em></p>

<p>His girlfriend might have knowledge and involvement (her ID was used, but apparently without her consent while she was out of the country, and the $100,000 sent to the Philippines, probably for her, could be construed as a unilateral dying gift) and the FBI is investigating that, but there is no terribly good reason to think that she could foresee what was going to happen or acted negligently in some respect. <a href="http://www.cnn.com/2017/10/04/us/paddock-profile-house-cash-fence-invs/index.html" rel="nofollow noreferrer">She has denied having any knowledge in public statements made by her lawyer</a> - she says she thought he was just breaking up with her when he asked her to take a trip to see family in the Philippines and there is no immediate reason to doubt her statement. There is also not a general duty to report crimes which one suspects that someone you know will commit in the future. </p>

<p>One could argue that the shooter had an arsenal of guns that could have clued in the girlfriend, but so does about 3% of the total population, and a much larger proportion of the population that is wealthy and has a hunting hobby. So even if she'd told authorities about the arsenal, this concern probably would have been dismissed, and without causation there is no cause of action.</p>

<p><strong>The $100,000 sent to the girlfriend could probably be recovered for the creditors of his estate as a fraudulent transfer action against the recipient.</strong> This has nothing to do with the fault of the girlfriend. But, any gift made while someone has liabilities or anticipated liabilities in excess of his assets are voidable, and the tort liability anticipated in this case would have been far in excess of the shooter's assets.</p>

<p><em>Claims Against His Estate</em></p>

<p><strong>Claims for wrongful death absolutely can and should be filed in his estate.</strong> He was a wealthy man and there should be enough to at least make some payment to every victim. It may be necessary for a public administrator or a creditor to step forward to open the estate as it is unlikely that the shooter's family wants that job. They would not want the job because the heirs will almost surely get nothing from his probate estate because his tort liabilities almost certainly exceed his net worth. But, it is important that someone step up to serve as the executor of his estate, because otherwise his assets could be depleted by failures to pay debts resulting in penalties and seizures of collateral, and by failure to collect property to which his estate is entitled such as rent and mortgage payments owed to him or to companies he owns. </p>

<p><strong>There is a strict time limit for asserting claims against an estate that can often be a short as three months after the date of death.</strong> The relevant statute is as follows:</p>

<blockquote>
  <p>147.040. Claims: Limit on time for filing</p>
  
  <ol>
  <li><p>A person having a claim, due or to become due, against the decedent must file the claim with the clerk within 90 days after the mailing
  for those required to be mailed, or 90 days after the first
  publication of the notice to creditors pursuant to NRS 155.020.</p></li>
  <li><p>A creditor who receives a notice to creditors by mail pursuant to subsection 5 of NRS 155.020 must file a claim with the clerk within 30
  days after the mailing or 90 days after the first publication of
  notice to creditors pursuant to NRS 155.020, whichever is later.</p></li>
  <li><p>If a claim is not filed with the clerk within the time allowed by subsection 1 or 2, the claim is forever barred, but if it is made to
  appear, by the affidavit of the claimant or by other proof to the
  satisfaction of the court, that the claimant did not have notice as
  provided in NRS 155.020 or actual notice of the administration of the
  estate, the claim may be filed at any time before the filing of the
  final account.</p></li>
  <li><p>The period of 90 days prescribed by this section is reduced to 60 days if summary administration is granted under chapter 145 of NRS.</p></li>
  </ol>
  
  <p>Nev. Rev. Stat. § 147.040.</p>
</blockquote>

<p>It is possible, and even likely, that filing new lawsuits against the shooter or his estate after his death, other than by filing a claim against his estate in a Nevada state probate case, would be barred by Nevada probate law, so that claims are concentrated in the claims process.</p>

<p>Also, while federal courts would usually have jurisdiction over a diversity lawsuit brought by an out of state plaintiff against an in state defendant, there is <a href="https://www.wnj.com/Publications/The-Probate-Exception-to-Federal-Diversity-Jurisdi" rel="nofollow noreferrer">a probate exclusion from diversity jurisdiction</a> that requires claims to be filed in the probate estate rather than in federal court.</p>

<p>The hardest question for the estate once it is liquidated will be how to allocate the estate's limited assets among unrelated debts of the decedent, claims of the deceased victims and claims of those victims who were injured or suffered property damage only. There are, of course, rules to govern that in the Nevada probate code and in case law. The primary rule that applies is as follows:</p>

<blockquote>
  <p>The debts and charges of the estate must be paid in the following
  order:</p>
  
  <ol>
  <li><p>Expenses of administration.</p></li>
  <li><p>Funeral expenses.</p></li>
  <li><p>The expenses of the last illness.</p></li>
  <li><p>Family allowance.</p></li>
  <li><p>Debts having preference by laws of the United States.</p></li>
  <li><p>Money owed to the Department of Health and Human Services as a result of the payment of benefits for Medicaid.</p></li>
  <li><p>Wages to the extent of $600, of each employee of the decedent, for work done or personal services rendered within 3 months before the
  death of the employer. If there is not sufficient money with which to
  pay all such labor claims in full, the money available must be
  distributed among the claimants in accordance with the amounts of
  their respective claims.</p></li>
  <li><p>Judgments rendered against the decedent in his or her lifetime, and mortgages in order of their date. The preference given to a mortgage
  extends only to the proceeds of the property mortgaged. If the
  proceeds of that property are insufficient to pay the mortgage, the
  part remaining unsatisfied must be classed with other demands against
  the estate.</p></li>
  <li><p>All other demands against the estate.</p></li>
  </ol>
  
  <p>Nev. Rev. Stat. § 147.195.</p>
</blockquote>

<p>Of course, often people end their lives and go on killing sprees when their situation is much worse than it appears and it could be that he has debts that left him on the verge of bankruptcy with nothing left for others to recover out of his estate.</p>

<p><em>Claims Against The Shooter's Liability Policies</em></p>

<p>The shooter almost certainly had comprehensive general liability insurance policies in his businesses and homeowner's insurance that cover him for liability for negligence. But, these policies are required as a matter of public policy, and do as a matter of commercial practice, have an intentional acts exclusion. So, there is no reasonable argument that he or his estate were covered by insurance for his acts.</p>

<p><em>Claims Against The Shooter's Life Insurance Policies and Retirement Plans</em></p>

<p>As a wealthy accountant, the shooter probably have life insurance and probably had retirement plans. If the beneficiary of these financial instruments was his estate, the analysis is unchanged (but the IRS has a priority claim for taxes due upon the distribution of the retirement plan assets). </p>

<p>Also, the fact that he killed himself does not invalidate his life insurance policy if it is incontestable (which is usually defined in the policy to mean at least two years old).</p>

<p>If the beneficiary of these financial instruments was someone other than his estate (particularly if the beneficiary designation is more than four years old, removing the fraudulent transfer act as a challenge to the designation), the default rule is that these assets are not available to his creditors including the shooting victims.</p>

<p>Some states allow an insolvent estate to invade certain non-probate transfers. </p>

<p>I would need to do further research to determine how this applies in Nevada, but his probate estate might have a basis to recover some of the life insurance and retirement asset proceeds with third-party beneficiaries for the benefit of the insolvent estate. (There is also a choice of law issue presented. Many life insurance policies and retirement plans state that they are governed by the law of a particular state. It isn't always clear if that choice of law provision, or Nevada law, would control the question of whether an insolvent probate estate may access funds otherwise payable in a non-probate transfer to another beneficiary.)</p>

<p>The main statute in Nevada governing invalid non-probate transfers is Nev. Rev. Stat. § 155.093, et seq., and it does not allow an insolvent estate to secure those funds, but I am not an expert on Nevada probate law and there may be another exception that allows an insolvent estate to reach these amounts. A Nevada statute which could be applicable to override these beneficiary designations says:</p>

<blockquote>
  <p>SB 454, § 51. Creditor claim: General power created by powerholder</p>
  
  <ol>
  <li><p>Appointive property subject to a general power of appointment created by the powerholder is subject to a claim of a creditor of the
  powerholder or of the powerholder's estate to the extent provided in
  chapter 112 of NRS.</p></li>
  <li><p>Subject to subsection 1, appointive property subject to a general power of appointment created by the powerholder is not subject to a
  claim of a creditor of the powerholder or the powerholder's estate to
  the extent the powerholder irrevocably appointed the property in favor
  of a person other than the powerholder or the powerholder's estate.</p></li>
  <li><p>Subject to subsections 1 and 2, and notwithstanding the presence of a spendthrift provision or whether the claim arose before or after the
  creation of the power of appointment, appointive property subject to a
  general power of appointment created by the powerholder is subject to
  a claim of a creditor of:</p></li>
  </ol>
  
  <p>(a) The powerholder, to the same extent as if the powerholder owned
  the appointive property, if the power is presently exercisable; and</p>
  
  <p>(b) The powerholder's estate, to the extent the estate is insufficient
  to satisfy the claim and subject to the right of a decedent to direct
  the source from which liabilities are paid, if the power is
  exercisable at the powerholder's death.</p>
  
  <ol start="4">
  <li>As used in this section, “power of appointment created by the powerholder” includes a power of appointment created in a transfer by
  another person to the extent the powerholder contributed value to the
  transfer.</li>
  </ol>
  
  <p>Nev. Rev. Stat. § SB 454, § 51.</p>
</blockquote>

<p>The beneficiary designation could be reviewed as a power of appointment. Chapter 112 of the Nevada Revised Statutes is Nevada's Fraudulent Transfer Act.</p>

<blockquote>
  <p>7) And more of an opinion: could a group of victims attain class
  action status against any of those entities?</p>
</blockquote>

<p>Against the shooter's estate, yes. Against anyone else, there is not a valid cause of action unless new facts are revealed.</p>

<p>On the other hand, since the probate claims process consolidates claims into a single case at a single forum before a single judge, it would usually be unnecessary to file a class action in this situation.</p>

<p><strong>Other Possible Plaintiffs and Defendants</strong></p>

<p><em>The Hotel</em></p>

<p>The shooter damages the hotel's windows and his room, and he may not have paid his bill. These would be claims of the hotel in his estate.</p>

<p><em>Criminal Enterprise Victims</em></p>

<p><a href="http://talkingpointsmemo.com/edblog/what-did-he-do" rel="nofollow noreferrer">Josh Marshall at the Talking Points Memo</a> is among those who have suggested that his spending was far in excess of his apparent source of income, and that he may have been engaged in some form of illegal activity which could conceivably even have caused him to decide to end his life.</p>

<p>The shooter reported his source of income in real estate transactions as <a href="http://www.cnn.com/2017/10/04/us/paddock-profile-house-cash-fence-invs/index.html" rel="nofollow noreferrer">$1,000,000 per year from "gambling"</a>, which as Josh Marshall accurately points out, is pretty much impossible given the type of gambling that he engaged in which is overwhelmingly biased in favor of the House in the long run. Professional gamblers play games like poker where it is possible, at least in principle, to win in the long run without cheating. But, he didn't play those kinds of games with any frequency.</p>

<p>One of the more plausible explanations for why he would gamble so much is that it is a form of money laundering that allows him to turn ill gotten gains that he would use to purchase chips at casinos into gambling winnings, in exchange for the house's inevitable net gains from his bets in the long run (which can be a pretty small percentage transaction cost, on average, compared to other forms of money laundering).</p>

<p>If so, others may have claims against his estate, that compete with the claims of the shooting victims, under statutes such as RICO, based upon this conduct if there was any.</p>

<p><em>Criminal Conspiracies</em></p>

<p>Of course, if evidence came out that this was actually done at the direction of some criminal syndicate (perhaps to raise the price of gun company stocks?), that would be another thing entirely and one could sue the other conspirators (as well as prosecuting them criminally), but there is nothing strong enough to file a case in court that would survive an attorneys' Rule 11 obligations to file claims with a genuine factual basis at this point. It would be an avenue to investigate on the long shot possibility that this conspiracy theory was true. Such conspiracies are not entirely unprecedented. One mass shooting incident in Germany recently that was originally believed to be a terrorist attack turned out to have been motivated by a desire to influence the financial markets.</p>

<p><em>Life Insurance Policies</em></p>

<p>Everyone who has a life insurance policy that was killed could make a claim against that policy. The harder legal question is whether people who had only "accidental death" life insurance policies could make claims in this case.</p>

<p><em>Worker's Compensation Claims</em></p>

<p>Everyone who was killed or injured while on the job at the scene (e.g. roadies for the concert, security guards, police, photographers working the show) could make a worker's compensation claim against their employer's worker's compensation policy. This would include medical costs, lost wages and funeral expenses.</p>

<p><em>Health Insurance</em></p>

<p>Everyone with health insurance who was injured who was not on the job could make a health insurance claim for their medical costs.</p>

<p><em>CGL, Auto and Homeowner's Insurance Claims</em></p>

<p>Most comprehensive general liability insurance (CGL) policies of businesses would cover property damage in this incident. Most automobile insurance policies (but certainly not all) would cover damage to a car in this incident. Most homeowner's and renters insurance policies would cover property damage to property other than a vehicle in this incident.</p>

<p>It wouldn't be unusual for a CGL policy for the concert organizers or the venue would have a provision that covers medical expenses up to a small dollar limit for injuries sustained by invitees (i.e. concert goers) at the concert or venue as the case might be. But, it wouldn't be unusual for there to be no such coverage.</p>

<p><em>Travel Insurance Claims</em></p>

<p>From the comments:</p>

<blockquote>
  <p>Many tourists from the UK would have travel insurance. Other European
  countries probably as well. I checked the online terms of a random UK
  company, they would pay for the cost of hospital treatment or funeral
  in case of "unexpected injury", and I seriously hope they wouldn't
  claim that if someone fires a gun at you, an injury would be
  "expected". Plus travel related expenses, like transport home, just
  losing your flight etc. The one I checked wouldn't pay for disability
  except for "personal injury", that is something you caused yourself.
  And no compensation, just the actual financial loss.</p>
</blockquote>

<p><em>Tort Claims Of People Not Personally Injured</em></p>

<p>The tort of negligent infliction of emotional distress tort, which is <a href="http://nevadalaw.info/elements-for-the-claim-of-negligent-infliction-of-emotional-distress/" rel="nofollow noreferrer">recognized by Nevada</a>, while by its terms applicable only to "negligence" cases not at issue here, allows recovery by someone who had a near miss with physical harm and suffers emotional distress as a result. There is a reasonable chance that Nevada courts would allow this tort to be applied to "near miss" cases of intentional physical injury. Pretty much anyone on the scene (roughly 22,000 people) could arguably make such a claim against the shooter's estate.</p>

<p>Spouses of people who are injured can often make <a href="http://www.clearcounsel.com/spouse/" rel="nofollow noreferrer">a claim for "loss of consortium"</a> in Nevada for physical harm to their spouse, even if they are nowhere near the scene of the incident. These claims could be made against the shooter's estate. This would allow claims by several hundred people in this situation.</p>

<p>Many of the wrongful death claims would be statutory claims of next of kin, rather than claims brought by their estates. these would be brought against the shooter's estate.</p>

<p><strong>Trivia Point</strong></p>

<p>If this had happened on certain Indian Reservations, there probably would have been federal liability to all Indians harmed in the attack, as the federal government has liability for all criminal harm caused by "bad men" on the Indian Reservations in question to Indians under the treaties creating those reservations. But, obviously, the Las Vegas strip is not in Indian Country, even though many casinos in the U.S. are in Indian Country.</p>

<p>Parties can sue for all the above reasons, however as a practical whether those suits are <strong>successful</strong> will depend on so many factors and variables it is literally impossible to answer this question as it is stated.  </p>
