Re: Negligence liability for proprietors who exclude guns fromtheirproperty

[Yuri R. Linetsky]

Title: CWRU Signature

In enacting Ohio's concealed carry law is 2004, the state legislature addressed the issue of tort liability, providing immunity from civil suits to private employers who either prohibit or allow concealed carry by licensees on the employer's property: Ohio Revised Code 2923.126(2)(a)-- "A private employer shall be immune from liability in a civil action for any injury, death, or loss to person or property that allegedly was caused by or related to a licensee bringing a handgun onto the premises or property of the private employer, including motor vehicles owned by the private employer, unless the private employer acted with malicious purpose. A private employer is immune from liability in a civil action for any injury, death, or loss to person or property that allegedly was caused by or related to the private employer’s decision to permit a licensee to bring, or prohibit a licensee from bringing, a handgun onto the premises or property of the private employer. As used in this division, “private employer” includes a private college, university, or other institution of higher education." The statute does not appear to be limited only to employees of the "private employer," but applies to any CCW license holder visiting an employer's premises.  Since the statute is relatively new, I'm not aware of any Ohio case law on the subject.  So, at least in Ohio, someone thought that there could be a potential for tort claims against proprietors who exclude (or allow) guns. Yuri Yuri R. Linetsky, Esq Vis. Assistant Professor of Law Case Western Reserve University School of Law 11075 East Boulevard Cleveland, Ohio 44106 Direct: 216.368.6855 Main: 216.368.2766 Fax: 216.368.5137 y...@case.edu   Nelson Lund wrote: 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: firearmsregprof-boun...@lists.ucla.edu [mailto:firearmsregprof-boun...@lists.ucla.edu] On Behalf Of dtha...@mindspring.com 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" <jol...@gw.hamline.edu> Sent: Feb 8, 2009 6:49 PM To: Eugene Volokh <vol...@law.ucla.edu>, Firearms Regulation List UCLA <firearmsregprof@lists.ucla.edu> 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 jol...@gw.hamline.edu "Volokh, Eugene" <vol...@law.ucla.edu> 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 Firearmsregprof@lists.ucla.edu 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 Firearmsregprof@lists.ucla.edu 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 Firearmsregprof@lists.ucla.edu 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.

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