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Mark O. Barton attracted virtually no attention when, on a hot summer day in 1999, he strolled into two office buildings in Atlanta’s Buckhead area. Video taken by security cameras showed the 44-year-old clad in Bermuda shorts and an untucked golf shirt. Barton emerged from 8 Piedmont Center and Securities Centre a mass murderer. Within minutes, the disturbed day trader, facing financial ruin after losses of nearly $500,000, had killed nine and injured numerous others in shooting sprees at two day-trading offices. Those killings came after he had bludgeoned his wife and two children to death. Hours later, he put a gun to his head and took his own life as police closed in on his minivan at an Acworth, Ga., gas station. The death toll for July 29, 1999, was 13. The massacre, shocking in its swiftness and scope, was the first such violent act to occur in the two Buckhead office buildings and in the day-trading industry. But was it foreseeable? That will be the key issue today in arguments on defense motions for summary judgment before a Fulton State Court judge. Lawyers also will argue about the nature of the day-trading industry. Thirteen suits were filed in the wake of Barton’s rampage. The plaintiffs — the injured and the families of those Barton killed — sued the two day-trading firms where Barton had traded and shot his victims. The plaintiffs also sued the building owners, property managers, the security company that serves both buildings, and Barton’s estate. But the focus of the plaintiffs’ cases is day trading, an industry they hope to put on trial should the cases survive summary judgment motions by the defendants. Day trading, they say, is every bit as addictive as gambling — stressful and financially ruinous to most traders. In short, they argue, it is a volatile and “dangerous” business. As one set of plaintiffs’ lawyers from Kilpatrick Stockton puts it in a brief, “Based on the nature of the day trading business, it was foreseeable that a client such as Mark O. Barton would lose most or all of his money, become emotionally unstable as a result and commit acts of violence such as occurred in this case.” To the defendants, such a claim is nothing short of preposterous. “A man going on a shooting rampage, killing his wife, his children, and numerous others is not likely to occur in the usual experience of persons,” defense attorneys John E. Hall Jr. and Manubir S. Arora wrote on behalf of Habersham Management Group and P.C. Associates, the property managers of the Piedmont Center building. “No matter how cynical a view one [may] take, the actions of Mark O. Barton were not and could not have been foreseeable. The defendants did not breach any duty to the plaintiff.” Arora and Hall are with Atlanta-based Hall, Booth, Smith & Slover. The defendants are asking Fulton State Court Judge Susan B. Forsling in Atlanta to grant them summary judgment, following litigation that has seen dozens of depositions and stacks of briefs. One group of plaintiffs’ lawyers, from Kilpatrick Stockton, acknowledges in briefs that the suits face considerable legal hurdles. The cases involve issues of first impression, the Kilpatrick attorneys write. They argue that Georgia tort law should evolve with the times. Here are the arguments as posed by both sides in selected briefs. � The Day-Trading Companies: All-Tech Investment Group and Equity Management (the corporation that leases the office space from Piedmont Center to All-Tech). Represented by Michael J. Gorby, Blake H. Frye and Matthew J. Ashby of Atlanta-based Gorby, Reeves, Peters & Burns. Under Georgia law, property owners and proprietors of businesses are not liable for damages caused by the illegal acts of third parties, unless the owners had reason to know a criminal act would be committed. Unless the criminal act was a reasonable, foreseeable consequence of the owner’s conduct, criminal acts, without which no injury would have occurred, are the proximate cause of the injury. “Thus, under Georgia law, a plaintiff cannot recover for an unforeseeable criminal attack because neither a duty nor proximate cause can be established,” the Gorby Reeves lawyers argue. Barton’s attack came with no warning, they say. The day trader, who owed All-Tech $30,000 in fees, had called a day or two before to say he would come by the office to pay his debt and add $150,000 to his account. No previous similar crimes had occurred at All-Tech. The plaintiffs’ argument that the nature of day trading makes it foreseeable that individuals will lose money and become violent fails “for a simple lack of evidence,” the defense lawyers write. Incidents of violence by individuals who have lost money are rare, they say. The issue is not whether the injuries could have been avoided if the defendants had taken certain steps, the Gorby lawyers contend. Rather, the issue is whether the shooting was a natural and foreseeable consequence of any negligence by the defendants. � Plaintiffs Yuzef Liberzon and Galina Gogenko. Represented by Michael Weinstock, Jan P. Cohen, Adam M. Gleklen and Jami M. Kohn of Atlanta-based Weinstock & Scavo. The defendants, the Weinstock lawyers contend, knew of the volatility, addictive nature and danger of day trading and could foresee “the overwhelming probability that someone like Mark Barton would lose his entire life’s savings and commit acts of violence.” The trader lost more than $400,000 from April 1998 until his death from trades he made on All-Tech’s computers. Barton, they argue, was a victim of the day-trading industry and its “predatory” practices, which included allowing customers to trade beyond their means, failing to screen traders or train them, encouraging them to get short-term loans from other traders, and failing to monitor their accounts for large losses. All-Tech, the plaintiffs’ lawyers say, facilitated Barton in overextending himself financially to generate fees when it should have provided safeguards to halt his downward spiral. “This foreseeable chain of events led to Mark Barton’s heinous actions on July 29, 1999.” Workplace violence comes from stress and loss — the loss of a job, of security or money, they argue, citing a plaintiffs’ expert, psychologist Mark Braverman of Massachusetts who has authored a book on workplace violence. Barton’s financial losses, enabled by the defendants, led to his rampage, the plaintiffs’ lawyers say. His actions were not only foreseeable, but were “created by and resulting from Defendants’ own conduct. Had the defendants carried out their obligations, Mark Barton would have been stopped from trading and incurring further deleterious losses, which losses foreseeably led to his violent actions.” � Momentum Securities. Represented by Douglas F. Aholt and Laura W. Speed-Dalton of Atlanta-based Chambers, Aholt & Rickard. Day trading, Momentum’s lawyers argue, is an entrepreneurial endeavor. “The trader is in business for himself,” and Momentum’s traders understood the risks. Barton, who opened an account with Momentum just two months before the shootings, had signed forms indicating just that. The day-trading company, the defense lawyers argue, doesn’t supervise or advise traders. Momentum had called Barton to tell him he needed additional funds in his account to continue trading there and Barton had called the day of the shooting to say he was bringing that money, so he was expected when he arrived. Even Braverman, the plaintiffs’ expert, admitted that human behavior was difficult to predict, the Chambers Aholt lawyers say, and factors that may predispose individuals to violence can’t reliably be detected by tests or interviews. The plaintiffs can’t show that any preventative measures Momentum might have taken would have made a difference, nor can they prove a correlation between an individual losing money and then becoming violent, they add. “We have simply not gotten to a point where businesses have to engage in full body searches or an exhaustive psychiatric examination, to determine whether its customers are going to commit heinous acts,” they write. “Mark Barton, and only Mark Barton, is responsible for Plaintiffs’ injuries.” � Plaintiffs Harry Edward Higginbotham and Maryellen Higginbotham. Represented by David M. Zacks, Raymond G. Chadwick and Joseph H. Huff of Kilpatrick Stockton. Barton was out for revenge against Momentum and All-Tech for his financial losses, the plaintiffs’ lawyers contend. Momentum knew it was more likely than not that its customers would lose money, and should have known that one such ruined person could become violent and injure others. The key inquiry is not whether Momentum foresaw that Barton in particular would become violent or exactly what he might do, but whether the company should have anticipated that this general type of harm would result. “In view of the known riskiness of day trading, Momentum should have been able to foresee the probability that someone like a Mark Barton would lose substantial amounts of money and commit revenge acts of violence.” � The Building Owner and Manager: Piedmont Office Center. Represented by Thomas S. Carlock and Mary Katherine Greene of Atlanta-based Carlock, Copeland, Semler & Stair. Georgia law provides that commercial property owners aren’t liable for damages that occur within a leasehold such as All-Tech’s office, the Carlock Copeland lawyers argue, and All-Tech had exclusive possession and control over its leased offices. Nor can Piedmont Center be liable for alleged failures in security in the common areas of the building because plaintiffs can’t show a link between security in the common areas and Barton’s actions inside All-Tech’s offices. “Mere speculation that increased security would have deterred Mark Barton from entering Building Eight of Piedmont Center is just that, speculation,” the defense lawyers contend. Piedmont Center couldn’t have foreseen Barton’s killing spree, they continue, nor is there any evidence that Barton’s decision to kill was based on a lack of security. “Certainly, Mark Barton’s victims [who were in the day trading business] had more knowledge of his mental status and violent propensity than Piedmont Center did,” the defense brief says. And if they couldn’t foresee what occurred, clearly Piedmont Center could not have either. � Jones Lang LaSalle Management Services (Managers of Securities Centre). Represented by James T. McDonald Jr. and J. Stephen Berry of Atlanta-based Swift, Currie, McGhee & Hiers. “This case is about a tragedy LaSalle could not possibly have predicted or prevented,” the Swift Currie lawyers begin. In an attempt to show a shooting was foreseeable, the plaintiffs wrongly confuse financial risk with the risk of criminal attack, the defense attorneys continue, and can cite no other case where financial loss has led to murder. To argue that “financial loss was the foreseeable proximate cause of a madman’s rampage,” is both novel and outrageous, they write. “If these concepts were truly linked, then Buckhead’s dense collection of entrepreneurships, law firms, and investment firms (all of which involve significant financial risk) would be a war zone,” the Swift Currie lawyers argue. � Plaintiffs Liberzon and Gogenko. Represented by the Weinstock lawyers. Piedmont Center, despite common knowledge of the pressures of day trading, didn’t “screen its tenants for a likelihood of violent occurrences before leasing office space to them,” the plaintiffs’ team argues. Landlords have a duty to provide security within leased premises where tenants conduct “dangerous” activities, and Piedmont Center should have known it was leasing to a “dangerous” tenant when it leased to All-Tech. Had a security guard been posted on All-Tech’s trading floor, or within All-Tech’s offices, Barton’s attack “would have been thwarted or hindered, likely averting Plaintiffs’ injuries,” the Weinstock lawyers contend.

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