A question for our legal experts - suing for not being able to carry

[Glenn E. Meyer]

So I've been reading the parking lot - gun in car debate in TX as well as the open-carry debate.

One point is that businesses fear liability of carry and thus want to ban it. Of course, in the debate on the TX forums, someone says - Well, wait till a business gets sued for not allowing carry and then there is an incident and they get sued. It's kind of an internet cliche.

But is it a viable legal doctrine? I searched on legal scholarly data bases and found some recent law reviews suggesting that the liability is the other way in their opinion. Businesses are more at risk if they allow carry (thus some states have provisions to reduce liability but even that isn't seen as absolute).

So for our legal experts, is it a viable lawsuit - a place forbids, a crime injures you and you claim that if you carried, you could have prevented the harm?

Would a lawyer take it on contingency?

Thoughts?

 

[Ditto_95]

There will always be an attorney that will take any case on contingency.

How the case turns out would of course be dependent on many factors.

Local - Is having a weapon considered the correct thing to do?

Demographics - is the area predominately left leaning or right leaning?

Judge selection - does the sitting judge have a bent toward legislating from the bench?

Case law - has there been similar cases brought before the court?

Plaintif - Are they upstanding in the community? Are they well known and liked?

Appearance - are the injuries sustained visable? Or are they mearly the vehicle in which to sue for lost rights?

Jury selcetion - This can make or break the whole case.

I forgot to mention, there are literally hundreds of thousands of people (perhaps millions) that carry a weapon in their vehicle, be it legal or not, despite what their workplace policy dictates.

 

[Glenn E. Meyer]

These are all factors but I'm looking for legal doctrine and literature about the issue. There is quite a bit about the liability of allowing carry with law reviews and precedents.

So is the internet cliche just ideal speculation or is there scholarship or precedent to back up speculation.

 

[Wag]

I'm not qualified as an attorney, however, it seems to me that the businesses are only trying to survive in a litigious society. Everyone is suing everyone for everything under the sun. As a result, if a madman walks into a business and shoots up the place, everyone who got hurt and the relatives who got killed will go sue-happy. Unfortunately, madmen are notoriously short of funds to be had in a lawsuit so the attorneys go after the only other target they can: The business owner.

It really sucks how such a suit could even be allowed to proceed because nobody should EVER be held responsible for the actions of other persons. And yet, this happens regularly. Lawyers chasing money.

That said, businesses do the only thing they are able to do: Give the APPEARANCE of acting in a way that protects people (who should be protecting themselves, as we all know) from harm. If you put up a sign that says, "No guns," the business can defend itself by saying, "But we had a sign!" It's insurance on top of insurance.

It would seem, by extention, that if a business puts of a sign that says, "We allow all firearms in this business," they would essentially be accomplishing the same purpose, ergo, giving people the option of NOT going inside if they feel they must.

Where it gets sticky is when statutory law makes it a crime to ignore signs which ban guns from the store. It could easily be understood that the store owner is never going to press charges against a gun carrying individual but you never know and besides, now that the law has made it a crime to ignore the signs, law-abiding citizens are placed at risk at several levels.

Myself, I just avoid such places and send a letter saying why they won't be seeing me or my friends any more.

The other side of the equation is how insurance companies (and their lawyers) pressure the businesses to put up such signs. They are protecting themselves from having to pay claims to sue-happy individuals as I mentioned above. If the business has the sign, the insurance company won't pay for a lost lawsuit claim for the same reasons mentioned.

Your point, however, is well taken. I would be more than happy to file suit against a company in that scenario, however, I'm not about to set myself up to get hurt in order to become the claimant/plaintiff. It would take a unique set of circumstances to provide just the right lawsuit as you've described.

--Wag--

 

[Ditto_95]

Just found this as a start:
"So far this hasn't come up much. I believe there have been a few cases, one dealing with a contractor's rule forbidding firearms at an arctic research station. Ah, here it is Chaffin v. United States, 176 F.3d 1208 (9th Cir., 1999).

The relevant portion:

"Finally, Chaffin contends that the government's insistence on prohibiting firearms at the site creates an issue of fact as to the government's liability under Restatement § 410, which authorizes employer liability where the employer has given negligent instructions to an independent contractor, see Moloso, 644 P.2d at 217. Restatement § 410 provides:
The employer of an independent contractor is subject to the same liability for physical harm caused by an act or omission committed by the contractor pursuant to orders or directions negligently given by the employer, as though the act or omission were that of the employer himself.
The district court correctly observed that the government never gave the contractor any specific directions about bear safety. However, the record read in the light most favorable to Chaffin leaves unresolved questions about the relationship between the government as landowner and the contractor as Chaffin's employer."

Due to these issues of fact, the issue was sent back. I haven't heard about it since. But the holding means there was a jury issue on the prohibition of firearms, as well as several other issues. And this was a suit against the Gov'ment and its contractor--not an easy suit to bring to trial. A suit against a private employer would face no FTCA restrictions.

You could certainly argue that the presence of nogoodnicks, the high crime rate or whatever should have caused the employer to change its policy regarding firearms."

http://www.thehighroad.org/archive/index.php/t-48302.html

After all this time there should be more out there.

 

[Chief Engineer]

What teeth do the "No Firearms permitted" signs really have? It is my understanding, right or wrong, if you are legally carrying concealed, and you get busted,(your fault), the most that can happen is you will be asked to leave. Just as the "shirt and shoes required" signs, you will be asked to leave. Now, if you refuse to leave, you could be summoned for tresspassing.
I am not a lawyer, so take it for what you paid for it.

I need to add, I am not talking of places where carrying is by law not allowed, schools, court houses ect.

 

[scpapa]

"What teeth do the "No Firearms permitted" signs really have? It is my understanding, right or wrong, if you are legally carrying concealed, and you get busted,(your fault), the most that can happen is you will be asked to leave. Just as the "shirt and shoes required" signs, you will be asked to leave. Now, if you refuse to leave, you could be summoned for trespassing"

This is dependent on the state of occurrance. Is true for some states, but not others.

scpapa

 

[Wildalaska]

Glen.

Foreseeability and Causation.

Kinsman I and Kinsman II
http://law.justia.com/cases/federal/appellate-courts/F2/338/708/333293/

http://law.justia.com/cases/federal/appellate-courts/F2/388/821/160404/

WildthatsmylegalresearchfortodayAlaska ™©2002-20

 

[Aguila Blanca]

What teeth do the "No Firearms permitted" signs really have? It is my understanding, right or wrong, if you are legally carrying concealed, and you get busted,(your fault), the most that can happen is you will be asked to leave. Just as the "shirt and shoes required" signs, you will be asked to leave. Now, if you refuse to leave, you could be summoned for tresspassing.
I am not a lawyer, so take it for what you paid for it.

Trespassing is not the issue. This is about employers prohibiting their employees from having guns in their cars when parked during the work day -- effectively disarming said employees during their daily commutes to and from work.

The problem is that the consequence of being found out isn't being asked to leave the property, it's being asked to leave your job.

 

[Don H]

What teeth do the "No Firearms permitted" signs really have? It is my understanding, right or wrong, if you are legally carrying concealed, and you get busted,(your fault), the most that can happen is you will be asked to leave. Just as the "shirt and shoes required" signs, you will be asked to leave. Now, if you refuse to leave, you could be summoned for tresspassing.
I am not a lawyer, so take it for what you paid for it.

In some states, Texas for example, a properly posted notice can have force of law behind it resulting in a possible criminal conviction.

 

[Glenn E. Meyer]

So Ken, it seems that you getting shot and not being able to defend yourself because of banned carry - would be viewed as a remote and indirect consequence. Thus, recovery would be denied.

The store or the school could argue that the number of shootings is probabilitistically low given the total amount of normal commerce.

The absolute number of school shootings is low as compared to the odds of other injury.

The odds that you would carry the day is unknown.

To counter - one would resort to the vivid instances and high negative consequences of such incidents. One would have to point to successful rampage prevention - Jeanne Assam for instance or Pearl, Mississippi.

To counter - the Tacoma mall guy who got shot, the Tyler, TX guy who got shot, etc.

Then, there is the property rights side show.

Is that how it would go? But I ain't Perry Mason.

 

[Wildalaska]

So Ken, it seems that you getting shot and not being able to defend yourself because of banned carry - would be viewed as a remote and indirect consequence. Thus, recovery would be denied.

Remote and indirect, with an intervening criminal act, your choice to enter the premises

Not enough meat to the but fors....

If the store owner is liable, so is the gun maker, the dealer etc...

But hey, I haven't seen one shyster lawyer crack from the crowd....I rest my case: The only bad lawyer is the one who is not your lawyer...



WildlawsuitsareonlybadifitsnotyouroxethatgotgoredAlaska
™©2002-2011

 

[blakdawg]

I'm an attorney but not a personal injury attorney - and I'm from California, which is generally culturally hostile to the idea of self-defense.

The traditional rule in tort litigation is that a person is not responsible for the criminal acts of third parties. So I'd start out with the idea that it's tough to hold XYZ Corp liable if Bad Guy comes on the XYZ's premises and hurts or kills someone, especially where Bad Guy isn't an XYZ employee.

That traditional rule has been somewhat eroded, at least in CA, to envision liability where criminal activity can be anticipated - it is no longer ridiculous to think about a suit against a property owner if an attack occurs in, say, a parking lot/facility or in an otherwise isolated place, particularly if the property owner hasn't made a reasonable effort to provide lights/cameras/security. Such a case would be much stronger if the plaintiff could show a history of criminal activity. Liability wouldn't flow strictly from the fact of the attack - but from the property owner's failure to take reasonable steps to deter attack. If a property owner *had* posted warnings about criminal activity, used lights and cameras, provided security patrols, etc., the property owner's position would be much better.

I don't think it's unreasonable to think that if it's possible to find liability where a property owner has failed to take adequate security precautions, that it would also be possibile to find liability where a property owner has deliberately acted to reduce/inhibit an injured party's own security precautions.

The injured party may still have a lot of work to prove that being able to CCW would've created a better result given the specific attack, which isn't necessarily a given. If the bad guy is willing to shoot first or otherwise begin an attack with a lot of violence or from ambush, it may be that even a person with a CCW will be at such a disadvantage that the ultimate result won't be different.

 

[Tinner]

Understanding Blakdawg right. We should back and elect men in offices to approve laws that are more open and protect and permit ccw carriers to protect them selves. With out the interference of employers and public in general. Doesn't the castle doctrine cover this?

 

[danez71]

I think blakdogg hit it pretty well. State and local laws/precident will skew the interpretation as well.


I think that type of lawsuit is coming though.

Such as in my case for example (I'm in AZ), at my place of work:

We have employees and independant contractors that represent the company and perform the same hands on work - Same job function and duties, work side by side, and report to the same superiors.

The employees have a no-weapons policy per the employee manual.

The independant contractors do not as the employee manual does not apply.

In AZ you can CC with-out a permit unless signs are posted.

There are NO signs posted to not bring weapons into the building.

There are NO security cameras or security guards.

There have been people of my profession targeted and assulted and or killed; though usually out in the field and not in the office.


Not only have they NOT attempted to create a safe enviornment for all, they have "willfully and purposefully" singled out and required their employees to be at a disadvantage over all others while knowing that this profession has a history of being the target of violent crimes.


(On a side note, I have done my 'duty' to inform the company and have it documented. I will not remind them.)

 

[Frank Ettin]

...The traditional rule in tort litigation is that a person is not responsible for the criminal acts of third parties. So I'd start out with the idea that it's tough to hold XYZ Corp liable if Bad Guy comes on the XYZ's premises and hurts or kills someone, especially where Bad Guy isn't an XYZ employee.

That traditional rule has been somewhat eroded, at least in CA, to envision liability where criminal activity can be anticipated - it is no longer ridiculous to think about a suit against a property owner if an attack occurs in, say, a parking lot/facility or in an otherwise isolated place, .... Such a case would be much stronger if the plaintiff could show a history of criminal activity....

Yes, foreseeability is the first hurdle to liability. In general, as I recall the cases, a business has had liability for damages resulting from the criminal acts of third parties only when the plaintiff was able to establish some special reason why such acts were foreseeable, e. g., a high crime rate in the area and/or prior criminal activity.

...particularly if the property owner hasn't made a reasonable effort to provide lights/cameras/security....

If there is some reason why a special risk of harm is foreseeable, then the business may have a duty to take what a jury will conclude are reasonable steps to mitigate that risk.

...The injured party may still have a lot of work to prove that being able to CCW would've created a better result given the specific attack, which isn't necessarily a given....

But here's the rub. In order to find a business liable, once the foreseeability has been established of a special risk of harm from the criminal acts of third parties, the plaintiff must establish that something the business did, or failed to do, was the proximate cause of the injury. So if the business' conduct complained of is the business' policy of not allowing legally carried weapons on premises, the plaintiff will need to show that (1) but for the business' policy, he would have been armed; and (2) but for the business' policy, he would have been able to successfully defend himself. This could turn out to be an enormous hurdle.

And it could be a whole lot more complicated. For example, assuming a foreseeable risk, a business is only obliged to take reasonable steps to mitigate that risk. Is allowing folks to carry guns on premises reasonable? I don't know.

I could imagine a business making the argument in a State in which there is no training requirement for a concealed weapons permit that it would be unreasonable to assume that an armed private citizen would be sufficiently proficient to defend himself without putting other business invites at risk.

I have no idea how all of this would sort out. I toss it out solely for the purposes of illustrating the sorts of issues that will have to be addressed by courts.

So bottom line, if I were still working for a living and doing this kind of thing, no, I wouldn't take the case on contingency.

 

[Glenn E. Meyer]

Dropping in for a moment, because I'm swamped at work.

I thought of that training angle that Fiddletown mentions. Hey, I should have been Perry Mason.

Thanks so much for the great discussion, BTW.

Later

Glenn

 

[zukiphile]

Would a lawyer take it on contingency?

Not this one.

The presence of an intervening criminal act only in the instance of the disarmed patron being injured is so great an asymmetry that I wouldn't want to compare it to a business that knows about and condones carry having some kind of liability in the case of an accident.

I also can't get past the foreseeability hurdle. If the danger of an interveneing criminal act was so obvious that the business owner was duty bound to let you carry, isn't it also so obvious that you should have just avoided the place?

 

[blakdawg]

I also can't get past the foreseeability hurdle. If the danger of an interveneing criminal act was so obvious that the business owner was duty bound to let you carry, isn't it also so obvious that you should have just avoided the place?

I think that's a good point, but it assumes that the danger was equally foreseeable to the plaintiff and to the defendant; and/or that the plaintiff had a meaningful opportunity to avoid the place.

The defendant will likely have the best data available about the risks of that particular location - but an out-of-town or first-time visitor may have no clue.

I'm sure not saying it's an easy case to win.

 

[Frank Ettin]

I also can't get past the foreseeability hurdle. If the danger of an interveneing criminal act was so obvious that the business owner was duty bound to let you carry, isn't it also so obvious that you should have just avoided the place?

...The defendant will likely have the best data available about the risks of that particular location - but an out-of-town or first-time visitor may have no clue...

I tend to agree that the defendant will most likely have the best data. Consider the Denny's case near Seattle. The plaintiff was able to put on considerable evidence that Denny's was on notice about special risks created by its policy of staying open in the early morning hours.

I see more difficulty with the causation element. I think a jury is going to have some problems with the plaintiff's claim that if he had only had his gun everything would have been just fine. Remember, the jury will most likely not have any "gun savvy" folks on it.