Question on commercial property gun ban.

[Glenn E. Meyer]

I'm no lawyer but we went around this once on the liability if you ban and the predictablility of a crime and the successful use of a gun by a CCW type.

At that time, our legal eagle opinion were that some doctrine of remote causation would be used by the banner. The event and defense is not directly predictable and thus liability would be limited.

Correct me if I got that wrong.

Also, it was thought that since the chance of success is low, lawyers might not want to take the case on contingency. Against a large company, or insurance firm - you would be in litigation for a long time.

From the discussion, because a state gives immunity to a location that allows, doesn't automatically mean a banner is liable and you will beat them in court. But I'm not a lawyer here.

 

[Brian Pfleuger]

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.

Sort of. They don't have immunity BECAUSE it's implied by logic, they have immunity because it is so logically obvious as to go without saying.

There's are MILLIONS of things that the legislatures pass laws for or against without addressing every possible facet of every possible scenario.

Laws are passed because an issue needs clarifying or becomes a problem or some such thing.

As I showed in my several examples, there is simply no logical way to explain that a person would lose immunity by actively banning a practice where he would have immunity if he had NOT banned the practice.

It seems completely nonsensical to me.

Imagine this scenario, which should satisfy the "same object used to protect as to kill" argument....

A business has a portable defibrillator. They do NOT put up a sign that says not to use it unless you're trained. The legislature passes a law that says anyone allowing untrained persons to use a defibrillator has immunity from damages. Now, imagine that they DO put up a sign that says "No Untrained Persons Allowed to Use Defibrillator". Suppose now that an untrained person uses it anyway and ends up killing someone.

Would anyone imagine that the business is now liable BECAUSE they posted a sign where they WOULDN'T have been without the sign?

Craziness, says I.

 

[MLeake]

PK, you could say it's crazy.

You could say the plaintiff would be facing steep odds.

What you could NOT say is that the business owner could not possibly be sued, and would not have to spend any money on a legal defense, because of guaranteed immunity.

OTOH, in Wisconsin, if the business owner did NOT have a ban, then you could make that argument.

 

[Spats McGee]

Sort of. They don't have immunity BECAUSE it's implied by logic, they have immunity because it is so logically obvious as to go without saying.

I see the argument, but I'm going to stick with "because the legislature didn't say it, businesses that ban cc do not have immunity."

As I showed in my several examples, there is simply no logical way to explain that a person would lose immunity by actively banning a practice where he would have immunity if he had NOT banned the practice.

But this starts from the premise that a business had immunity to begin with. I start from the contrary position that a business is not entitled to immunity. Businesses that choose not to ban cc have been granted immunity by the legislature. I guess there is some logical appeal to the idea that a business has immunity until it decides to ban cc, but as a general proposition, businesses do not have immunity to start with.

As a practical matter, a plaintiff who is injured as a result of a business decision to ban cc still has to show: (1) that the business had some sort of duty to him or her; (2) that the duty was breached; and (3) that his injury was proximately caused by the breach. Naturally, if I were counsel for the defendant business, I'd be jumping up and down, screaming two things: (1) foreseeability; and (2) intervening and superseding causation. If I can show a lack of foreseeability or an intervening or superseding cause, I can win.

 

[Armorer-at-Law]

I start from the contrary position that a business is not entitled to immunity.

That is how an analysis under the US system of laws would begin.

Imagine this scenario, which should satisfy the "same object used to protect as to kill" argument....

A business has a portable defibrillator. They do NOT put up a sign that says not to use it unless you're trained. The legislature passes a law that says anyone allowing untrained persons to use a defibrillator has immunity from damages. Now, imagine that they DO put up a sign that says "No Untrained Persons Allowed to Use Defibrillator". Suppose now that an untrained person uses it anyway and ends up killing someone.

Would anyone imagine that the business is now liable BECAUSE they posted a sign where they WOULDN'T have been without the sign?

Suppose that an untrained person refrains from using the defibtillator (because they obeyed the sign prohibiting them from using it) and the person in coronary arrest dies. An expert takes the stand and testifies that AEDs are so easy to use, anyone who can read and follow the instructions can use the device safely and properly. Another expert testifies that the person would not have died had the AED that was hanging right there on the wall been used.

Is there liability? Maybe, maybe not. But if the business had not posted the sign, it would have had immunity from liability and there would have been no trial.

 

[Brian Pfleuger]

But this starts from the premise that a business had immunity to begin with. I start from the contrary position that a business is not entitled to immunity.

The more I think about it, I would start from the position that there is nothing from which to have immunity.

It's not really immunity, it's that there is nothing from which to be immune.

I post a sign that says "Don't swim in my pond." It's a declaratory statement of prohibition. Your violating that sign is the only action. I didn't do anything from which I need be immune. I have only told you not to do something. YOU'RE the one who would need immunity.

Same thing with "Stay off my property with guns". I haven't done anything that requires immunity. Your having violated my sign with your gun is that action that would require immunity.

Specifically allowing CC is the opposite. They need immunity because they have actively allowed an action for which they can be responsible. The law gives them immunity from that action. You don't need immunity for posting a sign that tells someone else not to do something.

 

[Armorer-at-Law]

I give up.

 

[kinggabby]

The more I think about it, I would start from the position that there is nothing from which to have immunity.

It's not really immunity, it's that there is nothing from which to be immune.

I post a sign that says "Don't swim in my pond." It's a declaratory statement of prohibition. Your violating that sign is the only action. I didn't do anything from which I need be immune. I have only told you not to do something. YOU'RE the one who would need immunity.

Same thing with "Stay off my property with guns". I haven't done anything that requires immunity. Your having violated my sign with your gun is that action that would require immunity.

Specifically allowing CC is the opposite. They need immunity because they have actively allowed an action for which they can be responsible. The law gives them immunity from that action. You don't need immunity for posting a sign that tells someone else not to do something.

You do not seem to get the idea of what people are trying to say. They are talking about good people not following the no gun signs as far as they are immune which they would not . They are saying that if you do not restrict CC then you are immune. And second they are saying that if you do restrict CC that you may not be immune from damages caused from not allowing me to CC on your premises if something was to happen where a gun possibly could have prevented a injury .

 

[Old Smoker]

Just reading all the posts, leads me to belive, that ther is no agreement by non legal on this matter. I guess will just have to wait to see when an incident is tested in court.

 

[Spats McGee]

But this starts from the premise that a business had immunity to begin with. I start from the contrary position that a business is not entitled to immunity.

The more I think about it, I would start from the position that there is nothing from which to have immunity.

It's not really immunity, it's that there is nothing from which to be immune.

I post a sign that says "Don't swim in my pond." It's a declaratory statement of prohibition. Your violating that sign is the only action. I didn't do anything from which I need be immune. I have only told you not to do something. YOU'RE the one who would need immunity.

Same thing with "Stay off my property with guns". I haven't done anything that requires immunity. Your having violated my sign with your gun is that action that would require immunity.

Specifically allowing CC is the opposite. They need immunity because they have actively allowed an action for which they can be responsible. The law gives them immunity from that action. You don't need immunity for posting a sign that tells someone else not to do something.

Yes, and no. (Now there's a good lawyer answer, isn't there? ) What I will grant you, is that for a business licensee to be injured as a result of the decision to prohibit cc, most cases will involve some intervening third-party (such as an armed robber), who comes in and injures the would-be cc'er. Any decent lawyer will promptly argue that the wounded cc'er was injured as a result of the third party's actions, not as a result of the business' decision to prohibit cc. However, that's something that the jury (or the court) could find after a trial. What I'm arguing is that, under the WI statutes posted, there should never be a trial.

Ponds and swimming pools may be a slightly different kettle of fish, in that they may be considered "attractive nuisances," but I'm going to skip over that aspect, as it's not relevant here. You, as the owner of the pond, can create some legal shelter for yourself from a premises liability suit, in the event that someone goes swimming in the pond and is thereby injured. This is why stores put down "wet floor" signs when there's a spill on Aisle 9. If someone in the store were to slip and fall, they wind up with what's commonly known as a "slip and fall" lawsuit (premises liability), and they're trying to create a situation where the injured person (plaintiff) knew or reasonably should have known that there was a wet, slippery floor on Aisle 9, but chose to disregard the commonly-known dangers (assumption of risk).

In the case of "no cc," the WI legislature has decided that, in the event a business owner (or employer) decides to prohibit cc, everything stays the same, legally. The business gets no special immunity, nor does it automatically assume responsibility for the safety of licensees on the premises. Such a business takes its chances with the jury. OTOH, if a business opts not to prohibit cc, and a business licensee is injured as a result of that decision, the business is immune.

How about an example? Back in August or September, a man was killed at a convenience store here in LR. The business owners are now being sued in a wrongful death action, on a theory of premises liability. For the sake of argument, let's move this event to Wisconsin to show how this works. Also, let's add a couple of facts to make this fit the argument. For purposes of this argument, let's add a couple of facts. First, let's assume that the killing happened inside the store. Second, let's assume that the victim was a would-be cc'er.

1) If the business is posted to prohibit cc, there is no immunity for the business. The business owners are now faced with answering a complaint, responding to discovery, going through depositions, etc. Assuming that there are genuine issues of material fact, the case will survive a motion for summary judgment (if one is filed), and they're going to trial. Unless the case is found to be frivolous, the business owners are probably facing $15K-20K in legal fees, even if they win. And they may face an appeal after that.

2) If the business is not posted to prohibit cc, their lawyer will file a Motion to Dismiss, based on that statute, and the case will (most likely) be dismissed. If the Motion to Dismiss is successful, there will be no more discovery, no depositions, no trial. They probably face less than $1K in legal fees.

Even if you're right, that there's nothing from which to be immune, the business owners in Arkansas face Scenario #1, becasue we don't have the same statute as WI.

 

[Glockstar .40]

ummm?? whats the point of the sign? if they're concealing how is he gonna know??

 

[brickeyee]

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).

This is (at best) another typical poorly worded law.

From other readings it would appear the law was intended to grant immunity for actions of the CWP holder, not alter the existent immunity of a property owner for unforeseen events.

To hold a property owner liable in almost every state you must show they had knowledge of a hazard, and have failed to take reasonable steps to mitigate the hazard (and other conditions).

If you Are hit by a car walking across a parking lot there is not a lot of liability of the parking lot owner, and even less if they posted stop signs and a speed limit. They will point to this as being reasonable.
Preventing anyone from speeding in the lot would be a lot harder.

This does not prevent filing of a suit, but makes prevailing very difficult.
Attorneys (like everyone else) prefer to be paid.

Damage suits are often taken on contingency, anticipating a victory to pay the bill.
This has the effect of limiting suits with low chances of prevailing, unless the complainant has deep enough pockets to pay the attorney and is willing to risk their money.