Question on commercial property gun ban.

[alloy]

Some easy reading for Old Smoker
Pages 32 and 33 seem relevant to start.
Bottom of 38 gets into a few details about sign postings.

http://www.doj.state.wi.us/dles/cib/ConcealedCarry/ccw_frequently_asked_questions.pdf

 

[Willie Sutton]

For Old Smoker and other Wisconsin folks... the worst thing that can happen if you are caught "trespassing" with a firearm in a place that is properly posted is a Class B Forfeiture, meaning a maximum $1000 fine.

Since it's likely that the only time you would be discovered with a handgun in such a place is after you shot it, a $1000 fine v/s your life seems like a cheap problem to deal with. In the first (and only, to date) use of a firearm by a licensed CCW holder here, the prosecutor didn't even bother to seek the Forfeiture, even though the property was posted. So... <dunno>


Willie

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[C0untZer0]

I do see this as another avenue of attack for LCAV and the Brady Campaign, giving financial backing to anti-gun people who wish to sue property owners or businesses because a firearm was brought on to their their property or into their facility and it somehow caused the palintiff harm.

The old tactic was to go after gun manufacturers but the Protection of Lawful Commerce in Arms Act ended that.

I do think we need that legal principle extended to protect entities from tort action for not banning weapons on their premises.

I know for instance that Illinois will be in a legal limbo wih this issue when we get a concealed carry law. It's not an issue now because except for police officers and some rare exceptions, any one carrying is violating the law to begin with.

 

[Old Smoker]

Recently in Milwaukee, two guys tried to hold up a grocery store on the west side with shotguns. An individual with a concealed carry was in the store and stopped the hold up. The store had a conceal carry ban posted.
Back to my original. At a public event, baiinig concealed carry, isn't a good idea to begin with. Lets say an individual carried a weapon in against the ban, no checks preformed and the weapon he carried accidently discharged hitting a bystander. From my own experience in lawsuits, lawyers go after the deep pockets and include everyone in the suit, even the gate guard.
I'm sure, that at some point in the future there will be a lawsuit on this somewhere in Wisconsin.

 

[Armorer-at-Law]

Ok. What is the precedent for this theory? I'm not saying there isn't one, there are lots of stupid precedents in the legal system, I'm asking...

I'm not saying that there would be liability if the owner decides to ban. Only that there is some risk and that an argument could be made. I don't have examples of the argument being successfully made and liability found. However, under the law in WI, if you don't ban, you have a blanket immunity from liability from a third party shooting.

What other object can be banned and have the "banner" responsible for the actions of those who disregard the ban?

Second-hand smoke in the workplace, perhaps. Again, the law does not say the "banner" is liable, just that he does not have immunity from liability as he would if he didn't ban.

I would make the argument that any patron who walks past that sign has accepted a contract of sorts and the "danger" that goes with it.
They are not obligated to be there. It's not like they're being forced into combat without a gun.

And your argument may succeed at trial. But an immunity that would get the case dismissed before even filing an answer would be better.

If I were a business owner (I am) who was inclined to ban CC (I'm not), I would take the chance of being theoretically responsible.

Your choice. But the immunity from liability is a sure thing (at least as sure as anything under the law can be). I would think insurance companies would like the idea of liability immunity also.

 

[brickeyee]

#2 Does he really want to be responsible for the security of a patron because of not allowing a CC to enter with their firearm.

Only if he has knowledge of an unreasonable risk.

By banning ccw it could be argued that the business has assumed a duty to protect patrons.

And it will be laughed out of court.

You have no duty to protect against hazards outside of your control or knowledge.
Like a criminal entering the store and shooting someone.

The juice spill on aisle 3 is a bigger hazard if not promptly cleaned up than protecting patrons against an armed robber.

 

[MLeake]

brickeyee, it would NOT be laughed out of court, since that is the new law in Wisconsin...

No ban, full immunity.

Ban, take your chances in court.

 

[Brian Pfleuger]

I really think you guys are putting a severe "pro-gun" spin on the immunity issue.

The lack of a law not specifying immunity for banning concealed carry is because such immunity is implied by logic. You can't be held responsible for people who do something that you told them not to do.

I think my analogies are spot on, particularly since there are no examples presented to show that I am wrong.

You need immunity from actions that you allow. You ALLOW concealed carry or DON'T ban it, you need immunity from what might happen because people you specifically allow in your business might hurt someone.

You DON'T need immunity if you ban an activity and people partake in that activity anyway.

I really see no difference in claiming that you're responsible for someone running into the street if you told them NOT to but you have immunity if you DIDN'T tell them not to.

How about if I put a sign up that says "No Profanity" but some guy swears anyway and then some lady tells me her 5 year old heard him and is now using that word? Am I responsible because I put up a sign but wouldn't have been responsible without the sign? What a silly thing to argue!

If I put a "No Fishing" sign on my pond and some guy catches bass out of season, it's my fault but wouldn't have been if I HADN'T put up the sign? Ridiculous!!

Of course you're immune if somebody does something that you specifically ban and could never reasonably control!

 

[kinggabby]

I know if I was at work and someone walks in and attacks me there I can hold my work responsible seeing they do not allow me to carry my firearm in . And I think that is the essence of what people are saying here is that a company can be held accountable because they are not allowing people a way to protect themselves on that business' property. I mi9ght be wrong but that is how I view it.

 

[MLeake]

PK, what about signs for No Marijuana? If a proprietor has no such sign, should he be liable for any customer hiding a stash in his pocket?

In other words, why should the proprietor be expected to actively ban things of any sort, from the possession of his customers, unless the customers are openly displaying the items?

 

[Brian Pfleuger]

No. That's my whole point.

I don't need signs to absolve my self of some activity that I know nothing about and signs banning that activity do not somehow involve me.

Not having a sign banning marijuana does not make me liable.

HAVING a sign banning marijuana DOESN'T make me liable.

It's a ridiculous argument, that somehow telling people they CAN'T do something makes me responsible when they do it but if I HADN'T told them not to I wouldn't be responsible.

It's bizarre to me that it's even a discussion. You don't need immunity when someone does something that you specifically, publicly, visually told them NOT to do.

 

[Armorer-at-Law]

In none of the other examples given is the object that is used to perpetrate harmthe same object that is used to defend from harm.

The immunity clause in the law is not meant to expressly impose liability to one who bans, just to remove that concern from one who is considering not banning.

 

[poptime]

It looks like the business which does not ban is expressly free of liability. The business which does ban, common sense tells us that they should not be liable, yet it is not expressly written into law. And we all know of cases where people see dollar signs they run to a lawyer.

 

[Spats McGee]

I would like spatz to comment. He allways seems to have a good feel for these type questions.

Thanks for the vote of confidence, ltc. This is a little out of my area, as I work more with qualified and tort immunities for cities, LEOs and the like, but I’ll give this one a shot.

Before I do, though, I’m going to shamelessly rip off Armorer-at-Law’s disclaimer:

Disclaimer: I am a lawyer, but I am not your lawyer and I am not a Wisconsin lawyer. This is not legal advice.

I have a friend of mine, who operates a commercial business nearby. Wisconsin now allows concealed carry. He questioned whether he should post a ban on cc weapons. His insurance agent told him not to post, because he would then have to have someone at the gate patting down for guns. In other words if you ban cc in your business, you have to enforce it or otherwise your business is liable for any altercations by a cc person. Any legal guys have any comments?

As a law professor of mine used to say, “when in doubt, suspect a statute.”

• A person who does not prohibit an individual from carrying a concealed weapon on property that the person owns or occupies is immune from any liability arising from his or her decision. Wis. Stat. § 175.60(21)(b).
• An employer who does not prohibit one or more employees from carrying a concealed weapon is immune from any liability arising from that decision. Wis. Stat. § 175.60(21)(c).

My gut reaction, without doing any further research into Wisconsin law or its caselaw, is that:

a) Those who do not prohibit employees or patrons or employees from carrying are immune from liability; but
b) Those who do, are not.

That seems pretty clear from the statutes posted. Note that I’m not claiming that a business owner who bans CC is automatically liable for the actions of some third party who comes in and shoots the place up. What I am saying is that the issue of liability is open for the court or a jury to decide. For properties that do not prohibit CC, the legislature has made that decision.

Much of the remainder of this discussion seems to be more a disagreement over whether a plaintiff (who entered a "No CC posted" business and was harmed on the property) could succeed. Without many more facts to consider, we won't solve that one here today. What does seem clear is that if a business is posted "No CC," they are not entitled to immunity by statute. If they do not prohibit CC, statutory law says they're immune.

The lack of a law not specifying immunity for banning concealed carry is because such immunity is implied by logic. You can't be held responsible for people who do something that you told them not to do.

PK, if I understand your logic (and forgive me if I’m misunderstanding), your claim is that businesses that ban CC would have immunity because it’s implied by logic? Is that right?

Were I to play Devil’s advocate, my response would be: The legislature took the time to write a statute on immunity with respect to banning or allowing CC. They had ample opportunity to include language granting immunity to those who ban CC. They chose not to do so. Accordingly, the logical conclusion is that the legislature did not intend for businesses that ban CC to have immunity.

 

[vranasaurus]

I believe Wisonsin has adopted section 323 of the Restatement of Torts:

§ 323 Negligent Performance of Undertaking to Render Services

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.

By banning CC they are undertaking to provide for the safety and security of patrons by prohibiting them from having the means to do so for themselves. If they fail to exercise reasonable care in doing so they could be held liable because those who leave their guns in their car when entering are relying on that undertaking.

The issue would turn on whether the court found that it constituted an undertaking.

I imagine that insurance companies would like the insured to comply with any provisions of law that give added immunity.

 

[brickeyee]

No ban, full immunity.

Ban, take your chances in court.

Are you sure the immunity is not for actions of the CC?

By banning CC they are undertaking to provide for the safety and security of patrons by prohibiting them from having the means to do so for themselves. If they fail to exercise reasonable care in doing so they could be held liable because those who leave their guns in their car when entering are relying on that undertaking.

This is pretty well settled law in most places, and likely Wisconsin.
Reasonable care is the threshold.

Protecting patrons during an armed robbery would go well past reasonable care.

 

[Armorer-at-Law]

Are you sure the immunity is not for actions of the CC?

The person employer may have liability for other reasons or based on arguments other than the decision not to prohibit CC. See the language of the WI statute:

• A person who does not prohibit an individual from carrying a concealed weapon on property that the person owns or occupies is immune from any liability arising from his or her decision. Wis. Stat. § 175.60(21)(b).
• An employer who does not prohibit one or more employees from carrying a concealed weapon is immune from any liability arising from that decision. Wis. Stat. § 175.60(21)(c).

 

[vranasaurus]

Normally a business has no duty to protect patrons from an armed robber.

However, they can voluntarily assume that duty.

 

[ronto]

Don't take legal advice from an insurance agent or anyone else, including members of any forum. You want legal advice, ASK A LAWYER and get it in writing.

 

[vranasaurus]

If the third party action was forseeable, the business prohibited CC, and then failed to take action to protect them then they can certainly be liable.

The issue of liability for the actions of third parties revolves more around foresseability than anything else.