A family injured when a gunman opened fire in a Walmart in El Paso initiated what might be the first litigation following the mass shooting.

Jessica and Guillermo Garcia were both shot while their two children watched, and now they're alleging that Walmart was negligent by not providing proper security at the store to prevent the Aug. 3 shooting. They're seeking a court's permission to take depositions of Walmart Inc. and Walmart Stores Texas representatives to investigate potential legal claims against the retailer.

"Despite the crowd at the premises on the day of the shooting, Walmart failed to provide security guards to protect the patrons at the premises," said the petition in Garcia v. Walmart Inc.

Walmart spokesman Randy Hargrove wrote in an email that once Walmart is served with the lawsuit, it will respond with the court.

"This tragic event will be with us forever and our hearts go out to the families that were impacted. Safety is a top priority, and we care deeply about our associates and customers. We preserved what information we have, and we've worked meticulously with federal and local authorities as they documented everything that took place," Hargrove said.

In their Aug. 30 verified petition to take deposition, filed in El Paso County district court, the Garcia family alleged that Walmart failed in its duty of care to secure the store and keep people safe. By not providing a guard who would stop the shooter from coming into the store, Walmart created a hazardous condition for shoppers, the petition said.

If the court grants the pre-suit depositions, the Garcias' attorney intends to gather information about Walmart's companywide security measures. For the El Paso location, the Garcias are trying to learn what exact security measures were in place, the history of crimes occurring at the location, whether anyone has filed complaints over security at the store in the past five years, and how much Walmart budgeted for security at the store, among other things.

The Garcias are also asking the court to grant a temporary restraining order to stop Walmart from changing, altering or destroying the crime scene of the El Paso store, or other details or evidence of the shooting. Walmart has been renovating the store since it took possession back from law enforcement two weeks ago, noted the petition.

Plaintiffs attorney Rob Ammons, founding partner of The Ammons Law Firm in Houston, didn't immediately return a call or email seeking comment.

Previously, Ammons told Texas Lawyer that mass shootings have become so common in the United States that he feels they are foreseeable in any location that attracts mass gatherings of people.

"If you are going to operate as a store, with that many people in it, you need to be doing what's reasonable to protect those people," he said.

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