Can an employer be held liable for a shooting by someone it hired — then fired — more than two years before the shooting occurred?
That’s a question at the heart of a lawsuit against WDBJ Channel 7, the local CBS affiliate. The case stems from a double murder and shooting Aug. 26, 2015, that killed two of the station’s journalists and seriously wounded another woman at Bridgewater Plaza in Moneta.
Reporter Alison Parker and cameraman Adam Ward died in the early morning ambush, and their interview subject, Vicki Gardner, was seriously wounded.
Their attacker was Vester Lee Flanagan II, a grudge-holding former Channel 7 reporter whom the station had fired 30 months earlier, in February 2013. He killed himself during a manhunt hours later, with one of two handguns he took to the ambush. Those he legally purchased about a month before the killings.
Gardner, who recently left her job as executive director of the Smith Mountain Lake Chamber of Commerce, is seeking $6 million compensation. And there’s little doubt that she’s a sympathetic figure in this case.
One of Flanagan’s bullets struck Gardner’s spine and ricocheted through her body, she told this newspaper for an Aug. 11 story that noted she was stepping down early from her job.
The wounds cost Gardner a kidney and parts of her intestines, and she still suffers from back pain that she expects will require future surgery. So far, her medical expenses total $221,850, according to court papers.
She’s represented by a Texas personal injury lawyer, David Gibbs, and attorney Bill Stanley of Moneta. I left a message for Stanley Monday, but he didn’t return the call.
Gardner’s lawsuit claims WDBJ hired Flanagan in March 2012 without performing criminal background checks.
“Had WDBJ conducted a reasonable investigation, it would not have hired Flanagan,” the lawsuit claims, noting a Florida TV station in 2000 fired Flanagan for misbehavior toward other employees, poor performance and using profanity on the job.
WDBJ was further negligent, the lawsuit contends, by allowing Flanagan’s employment to continue at the station for nine months “after the first complaint of Flanagan’s violent verbal abuse and threats of imminent criminal battery against its employees began.”
Legal actions for negligent hiring and retention can result in serious financial consequences. Some cases have led to jury verdicts in the millions.
An Arkansas jury in 2011 awarded $7 million to the family of a truck driver killed in a collision with another truck owned by a timber company, whose driver was at fault. The timber company had hired that driver 19 days before the accident, even though he had two previous license revocations. His employer was unaware of that because it failed to perform a $15 driving-record check.
A Texas jury in 2016 awarded $1 million to the family of a man shot and killed by a co-worker at a metal products company. The jury found the company negligent because the shooter had a previous conviction for carrying a firearm at work. And at the time of the killing, he was facing charges of making terroristic threats stemming from an earlier incident.
A different jury in Texas last year ordered an oil services company to pay $101 million to a man whose pickup was struck by the oil company’s truck. Its driver was hired despite three traffic convictions within the previous three years, and a “strict” company policy that barred hiring drivers with three convictions in that time frame.
One common factor in those cases is that employers were found liable for acts by current employees, rather than workers who had been fired years earlier, like Flanagan had been from WDBJ.
Gardner’s lawsuit raises the question as to whether employers are also liable for future actions of troublemaking ex-employees. That would require a crystal ball. And if employers are liable post-employment, for how long into the future does that liability last?
“I asked that same question,” said Roanoke attorney Tommy Strelka, who for more than a decade has specialized in representing employees. “I’ve never heard of a negligent retention case in which the overt act of violence occurred after the employment ended.”
Strelka called the case “an uphill battle,” and said “I wish [Stanley] luck with it.”
“It’s difficult for me to see how a Virginia court would find against the TV station,” said David Paxton, a senior partner at Gentry Locke who also specializes in employment law, usually on behalf of employers.
As a general rule, Virginia law provides “the employer has a duty to protect other employees and customers who come into their workplace,” Paxton noted. But in this case, the shooting occurred outside the workplace and the plaintiff was neither another employee nor a customer, but a “third party.”
Under most circumstances “there’s not a special duty [to protect] third parties,” Paxton said.
“I feel really badly for Gardner,” he added.