According to the complaint filed by Kaya P.R. Stewart, Eumeka R. Stewart, and Samuel Stewart III in their Individual Capacities, and Eumeka R. Stewart and Samuel Stewart II, as Parents and Legal Guardians of O.S., a Minor, (“Plaintiffs”), on July 17, 2022, Jonathan Douglas Sapirman walked from his nearby residence, through the parking lot of the Greenwood Park Mall (the “Mall”), past multiple security patrols and video cameras, and entered the Mall at approximately 4:54 p.m.  During his walk, Sapirman wore or carried “a long, black backpack consistent with those used to tote rifles and other assault weapons.”  Appellants’ Joint Appendix Volume II at 40.  Sapirman entered the men’s restroom in a vestibule adjacent to the food court.  He spent more than an hour inside a stall during which he donned an ammunition vest and assembled several weapons with which he intended to carry out a mass shooting.  At 5:56 p.m., Sapirman exited the restroom carrying a loaded rifle in his hands and immediately shot and killed a male outside the restroom.  He then fired dozens of shots killing two people and injuring several others including Kaya Stewart. 

On January 30, 2024, Plaintiffs filed an Amended Complaint for Damages alleging: Count I, premises liability against Simon Property Group, L.P., a/k/a Simon Property Group, Inc., (“Simon”); Count II, negligence against Simon and Universal Protection Service, LLC d/b/a Allied Universal Security Services, LLC (“Universal Protection”); Count III, gross negligence against Simon and Universal Protection; and Count IV, negligent infliction of emotion distress against Simon and Universal Protection.  Simon filed a Motion to Dismiss alleging that such shootings are not normally to be expected and are not foreseeable, and that no duty arises.  Universal Protection also filed a Motion to Dismiss.  The trial court denied both motions to dismiss. 

On appeal, Simon argues that the circumstances do not amount to a negligence claim against Simon or Universal Protection because mass shootings at a business are not normally to be expected.  Universal Protection argues that the shooting was not foreseeable as a matter of law and there is no imminent harm exception to the foreseeability analysis.

The scheduled panelists are Chief Judge Altice, Judge Brown, and Judge Tavitas.