I stress again that I'm not a torts expert. But I am pretty
sure that there's nothing unusual about negligence claims brought based
on action, as opposed to a failure to act. If I sue you claiming that
you hit me because you were driving dangerously, I'm suing you based on
your action.
But that's not enough. Among other things, there has to be a
showing that the property owner was negligent in his actions. Say, for
instance, X is injured in a mall in an argument with Y, the proprietor
of a store in the mall, when Y takes out a gun and shoots X. And say
that X sues the mall owner on the grounds that the mall owner continued
renting to Y knowing that Y kept a gun on the property. The mall owner
has acted -- he continuing renting to Y knowing that Y kept a gun on the
property. The question is whether the mall owner's renting to Y was
indeed unduly risky, so that the mall owner would be negligent.
Likewise, if X is injured in a no-guns-allowed mall by Z, and X
can show that he more likely than not would not have been injured had he
(X) been able to bring a gun -- itself something of a problem -- then he
would *at least* have to show that the mall owner was negligent, in that
the no-guns policy was indeed unduly risky (compared to the
alternative).
My suspicion is that there is not enough social science evidence
to show either policy -- either that letting commercial renters keep
guns on the premises, or blocking visitors from bringing guns on the
promises -- is on balance unduly risky compared to the alternative to
each of these policies. There is suspicion, but there isn't enough
proof. This suggests to me that reasonable mall owners can choose
either policy, and the opposite of either policy (both policies are
different hypotheticals; I'm not claiming that they are each other's
opposite), without being negligent.
I may well be wrong on all this; I say again that I'm not a
torts expert. But simply saying that the mall owner acted in disarming
the public doesn't resolve the matter any more than does simply saying
that the mall owner acted in renting to a property owner who kept a gun
on the property.
Eugene
> -----Original Message-----
> From: [email protected]
> [mailto:[email protected]] On Behalf Of
> [email protected]
> Sent: Sunday, February 08, 2009 5:57 PM
> To: Firearms Regulation List UCLA
> Subject: Re: Negligence liability for proprietors who exclude
> guns fromtheirproperty
>
> Might be an interesting distinction, along the lines of (from
> Torts 101, 30 years ago)--
>
> If you see a drowning person, and decide it's more
> interesting to answer your voicemail, there is no liability.
>
> If you deter someone else from responding -- "Don't worry,
> he's just pulling a prank" -- there is liability.
>
> -----Original Message-----
> >From: "Joseph E. Olson" <[email protected]>
> >Sent: Feb 8, 2009 6:49 PM
> >To: Eugene Volokh <[email protected]>, Firearms Regulation
> List UCLA <[email protected]>
> >Subject: Re: Negligence liability for proprietors who
> exclude guns from theirproperty
> >
> >I don't teach either torts or criminal law.
> >
> >With that intro, I've always thought that one thing
> distinguishes this case from the usual negligence case.
> Usually negligence results from a failure to act. We then go
> looking for whether the person had a "duty" to act which he
> owed to the injured person.
> >
> >In the posted property situation, the landlord has
> affirmatively acted to prevent the injured party from
> exercising a right of effective self-protection that he would
> otherwise have. That is, the landlord has not only not
> protected the patron (failed to act) but the landlord has
> blocked the patron (by affirmatively substituting his choice
> for that of the patron) from protecting himself. The
> landlord has created a risk -- of an attack WITHOUT personal
> protection -- that did not exist before. The landlord has
> negated the permit holder's judgement as to the need and
> means of protection without supplying an effective
> alternative. For that DELIBERATE ACT, shouldn't liability follow?
> >
> >**************************************************
> >Professor Joseph Olson, J.D., LL.M.
> o- 651-523-2142
> >Hamline University School of Law (MS-D2037) f- 651-523-2236
> >St. Paul, MN 55113-1235
> c- 612-865-7956
> >[email protected]
> >
> >
> >>>> "Volokh, Eugene" <[email protected]> 02/08/09 5:19 PM >>>
> >The question of whether proprietors who enforce no-guns rules can be
> >held liable for crimes against visitors, on the theory that the rule
> >contributed to the crime and the proprietor was negligent, is an
> >interesting one.
>
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