I'm probably even less of a torts expert than Eugene, but I wonder if it might be relevant that a shopper willingly enters a mall in full knowledge that the owner has forbidden guns to be carried there?
Nelson Lund George Mason Volokh, Eugene wrote: > 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. >>> >> _______________________________________________ >> To post, send message to [email protected] To >> subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof >> >> Please note that messages sent to this large list cannot be >> viewed as private. Anyone can subscribe to the list and read >> messages that are posted; people can read the Web archives; >> and list members can (rightly or wrongly) forward the >> messages to others. >> >> > _______________________________________________ > To post, send message to [email protected] > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others. > _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
