Dear Eugene;
Not sure of all of the theories available in the States, but let me offer a few thoughts from the Commonwealth. There is at least one case in NSW which holds that an employer can be liable for a shooting of one of their employees by another one, and that case found liability even where the shooting took place off the premises. In Gittani Stone Pty Ltd v Pavkovic [2007] NSWCA 355 http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2007/355.html an employee stonemason was shot by a Mr Lee, a fellow employee. Lee had previously been seen to be irrational and threatened violence. The employer company was found in breach of its duty of care where it had not previously dismissed Lee who later, as a result of a dispute in the workplace, shot the employee plaintiff, Pavkovic; the court found that there was no break in the chain of causation because Lee was known to have irrational and violent tendencies due to previous incidents (see eg Ipp JA at [113]). They also rejected the argument that the harm was "too remote".
Of course prior threats of actual violence are a different matter to simple expression of support for violence at large- but perhaps not too great a leap.
In a slightly different case, though with some connections, in PAB Security Pty Ltd v Mahina [2009] NSWCA 125 (27 May 2009) http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2009/125.html a security firm was found to be in breach of its duty of care to its employed security guard when it knew he had been the subject of a direct threat of violence from an outraged evicted customer, who then returned and carried out the threatened violence (the firm should have agreed to the guard's request to rotate him off the door and inside the club to avoid harm from the aggressor.)
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931
>>> "Volokh, Eugene" <
VOLOKH@law.ucla.edu> 12/11/09 10:11 >>>
The Fort Hood shootings led me to think again of this question. Let's assume that something similar happened with a large private employer, say a military contractor; and let's assume that the murderer had killed non-employees, so worker's compensation laws wouldn't limit recovery against the employer. Would the employer be potentially liable on a negligent supervision / retention theory if it appeared that its employee, who eventually shot many people at the contractor site, had expressed support for jihadist violence against Americans, and the employer did nothing to monitor or remove the employee? Or would the contractor be immune, either on the theory that a person's political statements can't count in such situations, or perhaps on the theory that the plaintiffs couldn't shot but-for causation (perhaps because the employee could have equally committed the shootings even if he had been fired, since the contractor site wasn't limited-access)?
Eugene