Thursday, April 30, 2015

Business Owners Could Be Liable for Gun Violence Unless They Post "No Guns Allowed" Signs

NGVAC Tell and Compel Initiative


Since “Concealed Carry” has become the law of the land, and open carry is allowed in several states, National Gun Victims Action Council (NGVAC) has speculated that property owners would be liable for gun injuries on their property if they did not ban guns. Now, Mayer Brown LLP, a top-ranked international real estate, finance and litigation law firm, has weighed in on the question at our request.

Mayer Brown, named “Firm of the Year” in the Appellate Law category by U.S. News & World Report for the second consecutive year, advises that “a property owner who did not put up the [no guns allowed] signs” would face the argument that it was entirely “foreseeable” that gun violence, injury or death “would occur, since he or she failed to prohibit” guns carried either concealed or openly on his property. Click Link for Illinois Property Owners Research Memorandum

Just as supermarkets would be responsible if someone slipped on a spilled liquid and coffee shops would be responsible if someone burned themselves with a hot liquid, property owners are governed by a “common-law standard of care,” Mayer Brown LLP told us, that requires them to provide a safe environment for employees, visitors and customers. Failure to satisfy the common-law standard of care has resulted in massive financial awards against property owners. Several years ago, airlines, theme parks and health clubs began to be sued under this precept for failing to keep external defibrillators available for customers and employees.

Property owners who fail to put up signs banning guns may well be found guilty of not maintaining a “common-law standard of care” and face significant financial risks, says Mayer Brown. Even defending such a suit would prove extremely costly.


  1. Also, keep in mind that two can play this game. I've already heard conservative trial lawyers, on several occasions, jest about places that ban lawful carry and suggesting that these places should have a duty to protect you--at least by hiring armed security.

    While this was said in jest, if the suits suggested in this post start being brought, nothing stops people bringing lawsuits under this alternative theory in gun-friendly jurisdictions. Imagine the scene of the tearful mother who left her carry piece in the car and lost her daughter to a robber's bullet when the pharmacy they were getting the daughter's asthma medication at was robbed. If only she'd had her gun, or if only the store had hired a security team to provide a safe environment for its employees and customers. What do you think a Texas jury would do with that case? Could you say it would have no chance at all?

    Heck, this cause of action even has the slight saving grace of not opening the floodgates to as many new suits--except maybe lawsuits saying that if you ban people from bringing their own defibrillators to the gym, hotel, or pool then you must supply one yourself. (Why would you ban defibrillators? Well because they might use it improperly or have a defective one and kill the person they're trying to save. They don't have the training EMT's have!)

    1. Precisely, SJ. In fact, when Illinois went from "no issue" to "shall issue," this very question was raised:

      The I-Team has found that the new concealed carry law fails to address who has liability if there is an incident in a gun-free zone.

      As the first 13,000 permits are arriving, no-guns-allowed signs are going up some at businesses in Chicago and across the state. But the I-Team has found that the new state law fails to address who has liability if there is an incident in a gun-free zone.

      In fact, years ago, before there even was legal concealed carry in Illinois, legislation was introduced that would hold the owner of a "gun free" establishment liable for triple damages to anyone harmed by violence there, given a reasonable presumption that not having been disarmed may have helped:

      Creates the Gun-free Zone Criminal Conduct Liability Act. Provides that any person, organization, or entity or any agency of government, including any unit of local government, that creates a gun-free zone is liable for all costs, attorney's fees, and treble damages resulting from criminal conduct that occurs against an individual in the gun-free zone, if a reasonable person would believe that possession of a firearm could have helped the individual defend against such conduct.

      The legislation went nowhere, of course, but it definitely shows that, as SJ says, two can play at that game.

      Besides, who is more likely to obey the "No Guns Allowed" sign--the woman who carries a firearm for self-defense, or the deranged monster who wants to rack up a spectacular body count in his last moments?

    2. The only problem is only you gun rights fanatics believe guns make us safer. Reasonable people see that guns do more harm than good and their absense is a good thing.

    3. So I guess this is one of those rare cases where the "fanatics" are in the majority, and only 30% of people are "reasonable".

  2. Not sure if this posted the first time--Trying again.

    This is the type of hair brained idea I expect out of trial lawyers--it comes from chasing the dollars on the bleeding edge of how far they can push things.

    Could banning guns become part of the duty of care required by businesses? Sure, it could theoretically happen in some very anti-gun jurisdictions, but I have my doubts since it would open the door to all sorts of other requirements to ban legal items.

    E.g. Must a business put up signs banning tobacco on their premises to protect from lawsuits when someone lights up in spite of no smoking signs? Must businesses ban pets from the property to avoid liability if someone is bitten? Must businesses ban all other forms of weapons including all pocket knives, chemical sprays, etc. to prevent liability?

    This rule would be a payday for trial lawyers, but it would be a nightmare for our already overburdened courts as all of these examples would suddenly become far more viable cases than they are today.

    Of course, these cases don't have to be won to have their desired effect on businesses--the last line up there sums the goal up nicely: "Even defending such a suit would prove extremely costly." Here's where our American Rule (as opposed to the English Rule where the loser pays the winners attorneys' fees) provides a perverse incentive because it lets frivolous litigants who know they have no chance of winning get away with filing suits and winning settlements just to make them go away. After all, why would the local market want to be dragged through the press and pay its lawyers a $10,000 when they can post a sign, pay a $10,000 settlement, and not deal with the bad press?

  3. i see this as a double edged sword that has the potential for major backlash. The comparison to being burned by hot coffee or slipping on a wet floor, while on the surface seem comparable have major problems when compared to carry. Key being that both the hot coffee and wet floors are the direct responsibility of the store. Until they become the property of the customer. I can sort of get behind the idea of a store being liable for a slip and fall, provided that it was un marked and no due diligence was done, a customer being burned but the coffee is a little outside of what I would consider a legitimate suite because hey coffee is hot, a little bit of Darwin in action. As far as holding a store responsible for a gun use within its jurisdiction I don't agree because the individual is not under the control of the store. An extreme example, but a logical extension of the concept would be, say someone gets shot while standing in a park, can they sue the city that owns the park? Or if I get my foot runover at a ford dealership, can I sue ford motor company?

    1. The wet floor and allowing guns on the premises is the same thing, both the responsibility of the owners who allow them.

  4. Then of course, there's the consequences of telling a segment of your customers that you don't want their money.

    "Toby Keith’s I Love this Bar and Grill at Stonebridge at Potomac Town Center closed for good early Saturday morning, according to John Thomas, vice president of operations for the company."

    "The much-anticipated restaurant opened in December 2013 at Potomac Town Center after year’s worth of delays. but on Dec. 27, 2013, Breitbart News reported that Keith’s new restaurant has these words affixed to the front window: “No Guns Permitted.”

    “Telling gun owners they weren’t welcome with their “No Guns” sign probably didn’t help the bottom line.” quipped Virginia Citizens Defense League’s Philip Van Cleave"