Question on commercial property gun ban.

[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]

Originally Posted by ltc444

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:

Originally Posted by Armorer-at-Law

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

Originally Posted by Old Smoker

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.”

Originally Posted by Armorer-at-Law

• 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.

Originally Posted by peetzakilla

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.

[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]

Originally Posted by Spats McGee

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]

Originally Posted by peetzakilla

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."

Originally Posted by peetzakilla

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]

Originally Posted by 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.

[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]

Originally Posted by peetzakilla

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.