A jury must decide whether a Planned Parenthood facility was negligent in a mass shooting that killed three and wounded nine others, a Colorado appeals court ruled.

Planned Parenthood of the Rocky Mountains Inc. was on notice about the risk of anti-abortion violence before Robert Dear stormed the Colorado Springs health clinic in 2015, the Colorado Court of Appeals said Feb. 21 in a split decision.

Landowners generally aren’t liable for unforeseeable criminal acts on their property, but here there was evidence PPRM knew such violence was more than a possibility, the court said.

The ruling, which overturned a summary judgment ruling in favor of PPRM, cited disputed evidence over whether Dear’s criminal acts, as opposed to failed security, were the predominant cause of the deaths and injuries.

Dear, armed with four semiautomatic rifles, a shotgun, and explosives, shot several people in the clinic’s parking lot before he fired through a glass door and wounded more people inside.

A gun battle with police followed in which one officer was killed and five others were wounded, according to the decision.

Victims and survivors of the shootings argued in their suit that PPRM violated Colorado’s Premises Liability Act in failing to protect them from harm.

The appeals court agreed that the plaintiffs had raised genuine issues of material fact that PPRM was aware of “reasonable security measures” that could have prevented the harm and that PPRM was “sufficiently aware” of the threats against its clinics.

The court cited evidence that abortion clinics nationwide had seen “a dramatic increase in threats of violence and intimidation in recent years” and specific steps PPRM had taken to prepare for such incidents.

That evidence included active shooter awareness training for staff, offers of bulletproof vests for physicians, and employee complaints over inadequate security precautions at the clinic.

Judge John R. Webb dissented in part. “The actions of this mass shooter had a predominant effect on the plaintiffs’ injuries, thus preventing PPRM’s alleged negligence from being a substantial factor” upon which it could be held liable, he said.

Judge Sandra I. Rothenberg, sitting by designation, wrote the opinion, joined by Judge Elizabeth Harris.

Representation of the plaintiffs included McCormick & Murphy PC, The Law Offices of Joseph J. Archuleta, and Wilcox Law Firm LLC.

Taylor Anderson LLP and Spencer Fane LLP represented PPRM.

The case is Wagner v. Planned Parenthood, Colo. Ct. App., No. 17CA2304, 2/21/19.