imported post
ace1001 wrote:
Haven't these people opened themselves for a LOT of liability? When they disarm me they assume the responsibility for my defense. So if I am shot by an assailant at that point, they have failed in their responsibility and are liable for damages. Ace
Touchy subject. Yes, it is very logical to think as you do, but the other side applies as well. Let's say you're entertaining guests at your home. You don't like guns and have therefore asked others to leave their guns in the car. Someone barges in and kills two or three guests before being subdued by the rest. Would you consider yourself, as the host, liable because you discouraged having guns in your home?
"My house, my rules" supercedes most other rights including the 2A, and my rules can includenot only banning guns, but requiring youto waive liability for injury while on my property as a condition of entry, basically an "enterat your own risk" clause. Whether that holds up in court is, and has always been, decided on a case-by-case basis. You've seen "swim at your own risk" signsat publicpools and "beware of dog" and "no trespassing" signs on privacy fences. You're given fair warning that it is dangerous and/or unlawful to swim in the pool or climb over the fence. If it's a dangerous activity and there is no way to totally mitigate risk, or if it is unlawful to perform the activity, and injury results, the owner or proprietor USUALLY cannot be held liable unless they actively do something that was the proximate cause of your injury. Therefore, a "no-gun" sign is effectively an "enter at your own risk" sign, unless mall employees start shooting shoppers.
However, liability, as I said, is a funny thing and a case-by-case decision. You've probably heard aboutthe little boy who climbed over a locked 6-ft privacy fence with "no trespassing" signs posted just a couple of feet from where it's believed the boy climbed over, and drowned himself in the backyard pool. The parents of the drowned child sued the homeowner for wrongful death, *successfully*. There was probably some jury sympathy involved (how could you say no to the parents of a dead child?), but short of putting a locking cover on the pool (which can be difficult depending on pool shape and construction)there was littlethe homeowner could have done to prevent it, and the child caused his own death by ignoring all warnings and defeating reasonable measures to ensure security.
Let's go back to "proximate cause"; unless specifically defined otherwise, the actor whoeither directly orone-level indirectly causeda damaging event is the one heldliable for those damages. If an employee mops up a spill and does not put down a "wet floor" sign, and someone slips and hurts themself, the employee and, through agency, the employer are liable. In the case of a gunman in a gun-free zone, the mall's owners/managersdid not hire the gunman, did not persuade him to go into that mall,anddid not force his victimsto be inthe mall at the time. The gunman acted of his own free accord, and thebanning of lawful gun carry may or may not have increased the body count, depending on a lot of factors such as how long the shooting lasted, how many were shot and whether anyone that could have been armed was close enough to stop it before a given victim was shot. The gunman is the proximate cause, and he or his estate and next of kin bear liability. Ifany other partyis to be held liable, it must be proven that the damage would not have occurred or the damage to each seperate party would be less if this third party had not acted in a negligent or malicious manner.
I'll use Texas as an example even though open carry's illegal there; approximately 1% of Texas residents are CHL holders, and thus only 1 in 100 people in any given place, on average, are able to lawfully carry a weapon. Let's assume every CHL carries everywhere just to make the situation simple; unless that 1 person in the nearest 100 is in close proximity (handgun range, <15 yards)to the gunman, it is unlikely he/she will be able to react quickly enough to drop the gunmanafter just a few shots, and is extremely unlikely to stop the gunman before even the first shot is fired. It's possible, but the CHL would have to notice the suspicious person and the gun, and beat the gunman to the draw (which may or may not be justifiable use of deadly force depending on state and situation).So,innocent people aregoing to get hurt if a gunman walks into a mall, whether gun-friendly or gun-free. You say that the posting of a sign makes even those initial injuries the responsibility of the mall. I disagree for this very reason. And for this same reason, even if the mall DOES make it their responsibility to protect people by the use of armed guards, even 2 guards per 100 shoppers (that's a LOT of security staff) will not significantly increase the odds that injury or death resulting from a gunman scenario could be prevented.
Therefore, the mall, whether they allow or prohibit guns, cannot 100% guarantee any security measure and unless they explicitlystate that,cannot be held liable for a failure unless gross negligence is proven. They also cannot be held liable for failing to allow a CHL who may or may not have been there, may or may not have been close enough, and may or may not have fired quickly enough to save any given victim; there are too many variables in that supposition for anyone to reasonably assume the banning ofgun carrywas a significant factor to any one person's injury or death unlessa CHL was a victim themself and therefore was prevented from exercising an option they would be 100% justified in using. The mall'sonly liability would be that they negligently failed to enforce their rules, and that has to be proven in court; a gunman scenario is strong evidence to that fact, but not prima facie.
Do I think "gun-free" zones work? No.DoI think I should be allowed to carry anywhere I can legally go? Yes. However, I'm not the only person on this planet, and neither I nor the government supported by my taxes owns the shopping mall. I see no practical difference between the owner or lessee of that land and building and my ownership or lease of my home, and if I do not want guns in my home and a home invasion occurs, I am not the proximate cause of injury. That rests squarely with the gunman. The mall can be FOUND negligently liable under current precedent;there should be no law instated to PRESUME negligence (guilty until proven innocent anyone?).
