Split Georgia court says FedEx not liable for warehouse shooting

Cobb County police investigate the scene at the guard shack after a shooting at a FedEX Corp facility at an airport in Kennesaw
Cobb County police investigate the scene at the guard shack after a shooting at a FedEX Corp facility at an airport in Kennesaw, Georgia April 29, 2014. REUTERS/Tami Chappell
  • Shooting that injured six was not foreseeable, court says
  • Dissenting judge says previous incidents put FedEx on notice

(Reuters) - A divided Georgia state appeals court has ruled that FedEx Corp cannot be held liable for injuries that an employee sustained during a 2014 mass shooting at a warehouse by another worker, because the company could not have foreseen the rampage.

The Georgia Court of Appeals, First Division, in a 2-1 decision on Tuesday, said a history of threats and violence by workers at the warehouse did not mean that the shooting, in which plaintiff Melissa Shadow and five other people were injured before the shooter committed suicide, was likely to occur.

Shadow had argued that a series of incidents at the Kennesaw, Georgia warehouse and other FedEx facilities, and the prevalence of mass shootings in the U.S., was enough to put the company on notice.

"Were we to adopt Shadow’s standard of foreseeability, we would essentially be holding, as a matter of law, that a mass shooting event is foreseeable to every organization and premises owner, and would essentially make owners liable to insure an invitee’s safety," Judge Todd Markle wrote.

Tennessee-based FedEx and its lawyers at Weinberg Wheeler Hudgins Gunn & Dial did not immediately respond to requests for comment on Wednesday. Neither did Shadow's lawyers at Isenberg & Hewitt.

In April 2014, FedEx employee Geddy Kramer entered the Kennesaw warehouse early one morning, shot a security guard and then proceeded to shoot Shadow and several other people before taking his own life.

Shadow filed a lawsuit in Georgia state court in 2015 against FedEx, the company that employed the facility's security guards, and Kramer's estate. She alleged negligence, failure to warn and failure to provide adequate security, among other claims.

A state judge in February 2020 granted summary judgment to FedEx. She said the company could not be held liable for Shadow's injuries under state law because the shooting was not foreseeable.

Shadow appealed, arguing that the judge had applied too high of a bar at the summary judgment stage. Shadow said FedEx could have foreseen the shooting because of several other violent incidents at the Kennesaw warehouse and other facilities.

In 2011, for example, a fired employee in Kennesaw threatened to shoot other workers, according to filings in the case. Later that year, there was a domestic violence incident at a FedEx facility in Illinois in which the perpetrator committed suicide, prompting the company to update its workplace safety policies.

But the First Division on Tuesday said those incidents were not sufficiently similar to the 2014 shooting to place FedEx on the hook.

Most of the incidents cited by Shadow involved only verbal threats, and the Illinois shooting was not a random act, Markle wrote. And the mere fact that mass shootings can occur did not render the Kennesaw shooting foreseeable, the judge said, joined by Judge Elizabeth Gobeil.

Judge Anne Barnes in dissent said that requiring a previous nearly identical incident in order to hold FedEx liable for the shooting was "the equivalent of a one free bite rule."

"I do not believe that our law requires that human beings must be shot or die to establish that workplace violence is predictable," Barnes wrote. "If it is predictable, it is foreseeable, and if no action is taken therefrom it is negligent."

The case is Shadow v. FedEx Corp, Georgia Court of Appeals, First Division, No. A21A0072.

For Shadow: Melvin Hewitt of Isenberg & Hewitt

For FedEx: Christopher Byrd of Weinberg Wheeler Hudgins Gunn & Dial

Read more:

Six hurt, suspect dead in Georgia FedEx facility shooting

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.