Indiana Supreme Court Justice Derek R. Molter, second from right, asks a question Thursday during oral arguments for an appeal as part of a victims lawsuit against the Greenwood Park Mall for the 2022 mass shooting.
Video screenshot
By Noah Crenshaw | Daily Journal
ncrenshaw@dailyjournal.net
For The Republic
Attorneys made their case Thursday for whether or not the Indiana Supreme Court should hear an appeal of a lawsuit filed by victims of the 2022 Greenwood Park Mall shooting.
For about an hour Thursday morning, the justices heard arguments for an appeal filed by Simon Property Group and Allied Universal Event Services to dismiss the lawsuit filed by Kaya Stewart and her family. Stewart was one of several people who were injured during the 2022 mass shooting at the Greenwood Park Mall but survived.
A Marion County judge had denied Simon’s and Allied Universal’s request to dismiss the lawsuit in 2024, but the companies appealed the decision to the Indiana Court of Appeals, which held arguments last year. In June, an appellate court panel upheld the trial court’s decision, leading the companies to appeal it to the Indiana Supreme Court.
On the afternoon of July 17, 2022, a 20-year-old gunman entered the Greenwood Park Mall at an entrance near the food court with a backpack containing guns. He went into the bathroom near the food court for an hour to prepare for the shooting.
He opened fire around 5:56 p.m., killing Victor Gomez and Pedro and Rosa Mirian Rivera de Pineda. He also injured Stewart, a 22-year-old female, and her 12-year-old relative before he was fatally shot by 22-year-old Seymour resident Elisjsha “Eli” Dicken, the armed bystander hailed as a “good Samaritan.”
The shooting itself lasted for 15 seconds, ending when Dicken shot the gunman.
In January 2024, Stewart and her family sued the mall’s owner and security company for negligence in failing to prevent the shooting, saying Stewart suffered severe, life-threatening injuries from being shot. She was sitting at a table in the food court near where the gunman opened fire. The gunman first shot at the juvenile relative with her, missing them but striking several items they had in their hands, according to the lawsuit.
Stewart’s attorneys allege the mall and the security agency’s negligence caused her and the juvenile to be in fear for their safety, and to obtain bodily injuries and other damages. Stewart’s mother, who was present at the mall the day of the shooting, and her father are co-plaintiffs in that lawsuit.
The lawsuit alleges Simon had a “duty of reasonable care” to protect Stewart, the juvenile and other patrons against dangers the mall knew or should have known.
Stewart’s attorneys also allege that both Simon and Allied had a duty to provide a safe shopping mall for customers, but failed. The mall and the security agency should have taken “reasonable steps” to prevent the shooting from occurring, according to the lawsuit.
Stewart’s lawsuit is the first of three lawsuits to be filed against Simon and Allied Universal regarding the 2022 mall shooting. The families of Victor Gomez and Pedro and Rosa Mirian Rivera de Pineda, who were killed in the shooting, filed their own respective lawsuits last July against the companies, claiming wrongful death and that the companies were negligent in failing to prevent the incident.
Before the Indiana Supreme Court, arguments focused on the application of existing precedent for determining foreseeability in premises liability cases. These cases focus on the liability of a property owner when someone is hurt or killed.
Mike Limrick, an attorney for Simon, argued that Simon and Allied should not be held responsible for guaranteeing safety for people on their property on the basis that mass shootings are not “normally foreseeable. Because of this, the lawsuit should be dismissed at the pleading stage — the initial phase of a lawsuit where documents are filed, he said.
Limrick also argued that the analysis based on precedent should be based on actual knowledge of a serious risk of harm.
“When we start talking about ‘should have known,’ then we start slipping further and further toward strict liability and making proprietors insurers of their patron safety — ‘you should have known this, you should have known that,’” he said. “‘It really should be when you actually know something, there’s a serious enough risk of probable harm. That’s when we’re going to apply a duty here, and that, again, is not this case.”
Gabriel Hawkins, an attorney for the Stewarts, argues that the Supreme Court should affirm the trial court’s decision to allow discovery so they can learn more about the facts surrounding the shooting, including what Simon and Allied Universal knew about the gunman and when they knew it. Hawkins said the common law duty requiring a premises owner to take reasonable measures once they have actual knowledge of an imminent threat is well-grounded in court precedent.
Hawkins has a “good faith basis” to believe the mall and/or Allied Universal had knowledge of imminent harm, he said.
“I have [indicators] that make me say that that knowledge is present,” Hawkins said. “Do I know for sure? Of course not. It’s hard to know what’s in the mall’s head. I have no idea, no ability to say what these guards knew or did not know? But I have facts that give me a good face basis for saying it’s more than just a possibility that they knew.”
In rebuttal, Limrick addressed the arguments about the need for discovery to learn more information. There needs to be a “thorough-enough” investigation for someone to allege in good-faith they have the facts necessary to state a claim. He said the case was thoroughly investigated by law enforcement and publicly reported, so there was more knowledge than typically available.
Edward O’Brien, an attorney for Allied Universal, argued that actual knowledge of an imminent threat triggers a duty to act. He cited cases where escalating tensions or explicit threats were present, arguing that these types of allegations don’t exist in this case.
“We have very general allegations that an arguably suspicious-looking person went into the bathroom for an hour and was unattended,” O’Brien said.
Chief Justice Loretta Rush noted that those cases were at the summary judgment phase, after discovery. This case hasn’t had discovery yet.
O’Brien said this was correct, but argued it wasn’t sufficient to meet the pleading standard just by saying there was knowledge he’d been seen. Additionally, the main case cited as precedent didn’t just say that sudden shootings are unforeseeable to premise owners, but that sudden shootings are unforeseeable as a matter of law.
The Supreme Court did not make a decision Thursday. They plan to discuss the issue, with the first decision to be whether the case will be transferred to the court.
Claims made in filing a lawsuit represent only one side of the case and may be contested in later court action.
