Planned Parenthood of the Rocky Mountains can be sued for liability in the 2015 mass shooting at a Colorado Springs clinic that left three people dead, the state Supreme Court ruled 4-3 on Monday.

A “reasonable juror could find that [the shooter] was not the predominant cause of the plaintiffs’ injuries and that therefore PPRM’s action or inaction was a substantial factor in causing those injuries,” wrote Justice Richard L. Gabriel for the court’s majority.

Victims of the Nov. 27, 2015 shooting and their survivors sued Planned Parenthood Federation of America and Planned Parenthood of the Rocky Mountains after Robert Dear allegedly killed one person in the clinic’s parking lot, another inside the building and a police officer who responded. Dear, who proclaimed himself to be a “warrior for the babies,” has not been tried in state court due to a finding of incompetency. 

In December, U.S. Attorney Jason R. Dunn pursued, along with three murder charges, 65 charges against Dear for the federal crime of blocking the entrance to a clinic before the statute of limitations expired.

A state district court dismissed the liability lawsuit against Planned Parenthood, saying that no violent crimes had previously occurred at the Colorado Springs clinic, and that there was no indication of an imminent threat.

“Dear’s actions predominate by orders of magnitude on the issue of causation,” the judge in the case wrote.

A Colorado Court of Appeals panel reversed the decision by a 2-1 vote, relying on a 1987 Colorado Supreme Court case that held Taco Bell liable for the injury of a patron shot by a fleeing robber. 

“Here, plaintiffs have presented some evidence that the risk of an active shooter in the PPRM facility in Colorado Springs was known to PPRM,” wrote Senior Judge Sandra I. Rothenberg, citing general increases in threats against clinics, reports of security concerns by staff at Planned Parenthood of the Rocky Mountains, and the fact that the clinic had a part-time security guard.

Then-Judge John R. Webb dissented, finding that Dear’s alleged actions were so overwhelmingly destructive – as indicated by the multiple firearms and bombs he arrived with – that any negligence Planned Parenthood may have displayed did not substantially contribute to the carnage.

The Colorado Premises Liability Act allows people invited onto a landlord’s property to sue for damages if the owner shows a “failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.” In this instance, the Supreme Court had to decide whether Planned Parenthood had shown that a reasonable jury could only conclude that Dear’s actions were predominantly the cause of the death and injury.

“On the evidence,” wrote Gabriel, “we cannot say that PPRM has met this difficult standard.”

Planned Parenthood, the majority concluded, knew that a risk of violence existed at its facilities, noting that the organization offered to provide free bullet-resistant vests to its physicians.

“They knew that they were being targeted,” said Zach Elsner, a plaintiff’s attorney at the Sawaya Law Firm. “It’s not to say the Supreme Court is saying that Planned Parenthood was at fault for this…but there’s an issue as to whether there’s liability. Ultimately it will be up to a jury to decide if Planned Parenthood took adequate steps.”

The court’s majority noted that Planned Parenthood had installed security fencing at its Denver location, but not in Colorado Springs, and that the clinic could have had several additional preventive measures – but did not.

Gabriel did not comment on the merits of the plaintiffs’ liability case, but wrote that because of the known risks and the limited precautions the clinic had already taken, the lawsuit could continue.

Justices Monica M. Márquez and Brian D. Boatright joined Justice Melissa Hart in her dissent, which argued that a “dangerous consequence of this move is to subject a landowner to liability for the irrational actions of a mass murderer, who has no concern about detection or death.”

Hart described the ruling as creating a “heckler’s veto,” in which any business owner who receives a threat is suddenly liable for the violence that might result. Furthermore, because mass shooters do not engage in a rational cost-benefit analysis of their actions, “it is irrational to ask businesses – or jurors – to engage in the cost/benefit analysis of determining what sorts of preventative measures are sufficient to prevent or mitigate the harm caused by a shooter’s senseless acts of violence.”

She concluded by alluding to the adverse effect to women’s reproductive rights that the majority’s ruling could bring. Because facilities providing reproductive health procedures to women are likely targets of violence, they would need to incur high costs to fortify their premises, potentially affecting whether they could afford to operate. By evaluating potential liability based on “foreseeable threats,” Hart also wondered whether black churches or synagogues would now be required to beef up security, given their status as targets for hate groups.

Kate S. Hulme, an attorney with Cannon Law in Fort Collins, did not believe that the court had put a sudden burden on other potential targets.

“I do not think this opinion has increased liability for mass shootings based on the court’s opinion on Planned Parenthood,” she said. “Some locations may be disproportionately subject to those types of liability.” However, “to the extent that an injury, including a mass shooting, is something that a landowner could not reasonably anticipate, it will not be liable.”

The justices in the majority and those dissenting all agreed that the plaintiffs had not demonstrated that Planned Parenthood Federation of America had negligently supervised the Rocky Mountain affiliate.

The case is Rocky Mountain Planned Parenthood, Inc. v. Wagner.