bigdaddy1
Regular Member
If I am robbed while in a business that posts but not injured, I would assume that business would also be liable for my losses. Would that not be a reasonable assumption as there were no limitations listed?
-
We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
-
If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
-
Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.
How far does the liability go for business that post?
- Thread starter bigdaddy1
- Start date
bigdaddy1
Regular Member
I didnt think there was, but the article Flipper posted http://forum.opencarry.org/forums/showthread.php?97423-Legal-Discussion-of-Immunity seemed to indicate that injury or death were the only liability concern.
Teej
Regular Member
I, on the other hand, don't think you'd have a leg to stand on trying to pin them with liability.
Their insurance would probably settle out of court with you as it would be a: good will , and b: cheaper than defending.
Typically businesses are only held liable if there was cause to believe something was likely to happen and they neglected to do anything to prevent it...like failing to clean up a spill.
That was the motivation for the immunity clause....otherwise down the road someone getting shot by a lawful carrier would have been able to claim the business should have done something to prevent it (ie posting).
Their insurance would probably settle out of court with you as it would be a: good will , and b: cheaper than defending.
Typically businesses are only held liable if there was cause to believe something was likely to happen and they neglected to do anything to prevent it...like failing to clean up a spill.
That was the motivation for the immunity clause....otherwise down the road someone getting shot by a lawful carrier would have been able to claim the business should have done something to prevent it (ie posting).
bigdaddy1
Regular Member
There is no such thing as liability with out consequences.
Last edited:
Teej
Regular Member
With no offense intended, what are you trying to say here?
bigdaddy1
Regular Member
No offense taken, nor implied.
"I, on the other hand, don't think you'd have a leg to stand on trying to pin them with liability."
Your opening statement implies there is no liability. The law states there is liability. There are few other ways to read into your comment.
"Their insurance would probably settle out of court with you as it would be a: good will , and b: cheaper than defending"
Your second statement implies that IF there were a settlement it would be upon the graces of the insurance company. By posting that business is guaranteeing that patrons safety (hence the liability) and any settlement would be due to the negligence of that business for failing that duty. If you are denying my choice of self defense you are responsible for my safety.
There is no such thing as liability without consequences.
...than to open one's mouth and remove all doubt.
What law? How is the liability of a business that posts different than it was on October 31st? Let me save you some time: no difference whatsoever.
You're joking right.... right?
There's no such thing as the liability you describe. The TLW piece is pretty good. You may want to read it.
What law? How is the liability of a business that posts different than it was on October 31st? Let me save you some time: no difference whatsoever.
You're joking right.... right?
There's no such thing as the liability you describe. The TLW piece is pretty good. You may want to read it.
Last edited:
lockman
State Researcher
The result of not posting is statutory immunity from civil liability. It offers additional protection for businesses that choose not to post. It changes nothing for those that do.
I am interested to see how the insurance companies will react. Will rates differ for posted vs not posted businesses.
I am interested to see how the insurance companies will react. Will rates differ for posted vs not posted businesses.
mrmike.me
Regular Member
I gotta go with Bigdaddy1 on this one.
How is liability different? Well before the law was in effect we had limited ways to protect ourselves. Those limits were imposed by the state so the local business could not be held liable for limiting that right. Now the state has granted me the means to properly protect myself. If the store knowingly removes that right they are now liable to assume the responsibility to provide protection to me. If they fail to do so I can sue them and the law is on my side. This was explained in detail by a lawyer and insurance VP during a Green Bay Chamber of Commerce seminar on the new carry law. Not something I just pulled out of my ...
So you can say "no difference at all" but at least 2 lawyers, 1 insurance company and the GB Chamber disagree with you. Not saying your wrong, but I know the credentials of those guys so I'm going with them.
How is liability different? Well before the law was in effect we had limited ways to protect ourselves. Those limits were imposed by the state so the local business could not be held liable for limiting that right. Now the state has granted me the means to properly protect myself. If the store knowingly removes that right they are now liable to assume the responsibility to provide protection to me. If they fail to do so I can sue them and the law is on my side. This was explained in detail by a lawyer and insurance VP during a Green Bay Chamber of Commerce seminar on the new carry law. Not something I just pulled out of my ...
So you can say "no difference at all" but at least 2 lawyers, 1 insurance company and the GB Chamber disagree with you. Not saying your wrong, but I know the credentials of those guys so I'm going with them.
Teej
Regular Member
Please cite me the statute and/or case law that says a business is responsible for your safety from a third party while you're on their premises, short of having cause to believe said third party was going to come in and cause trouble and doing nothing about it.
If you're saying the store owner or an employee robbed you, that's a whole separate question (and there I'd agree with you fully). But for Person A to be robbed by Person B while standing in line at McHappyBurger's? I believe you're mistaken.
Is Bigdaddy1 the Lawyer at the GBCC Seminar?
Before Act 35, you could have open carried. A business that forbade OC did not increase its liability (or do you think it did?) If you are correct, then does a non-posting business have the duty to provide protection for those under 21 or otherwise ineligible for a CWL? What if OC is permitted but CC is not? Is the liability in a posted business different in the case of somebody like yourself who might CC all the time vs somebody who never carries? What if you normally carry but don't one day? Is that negligence on your part? Anybody can sue anybody for just about any reason. The law is on your side? Which law is that? Nothing, repeat nothing has changed that increases the liability for a business which posts.
Before Act 35, you could have open carried. A business that forbade OC did not increase its liability (or do you think it did?) If you are correct, then does a non-posting business have the duty to provide protection for those under 21 or otherwise ineligible for a CWL? What if OC is permitted but CC is not? Is the liability in a posted business different in the case of somebody like yourself who might CC all the time vs somebody who never carries? What if you normally carry but don't one day? Is that negligence on your part? Anybody can sue anybody for just about any reason. The law is on your side? Which law is that? Nothing, repeat nothing has changed that increases the liability for a business which posts.
mrmike.me
Regular Member
Some of the questions you ask were raised at the seminar. The response was "The law implies that liability exists otherwise it could not be waived." Basically the lawyer was saying you can not waive what is not already there to waive. So the law is Act 35, section 21. In that section persons are granted immunity from liability. You can not grant immunity to something that is non existent. So you ask if I believe the company had liability before ... it would seem the legislature thought they did if they stopped you from OC. So maybe nothing did change, maybe your right ... seems the law makers agree with you. So nothing changed, people/businesses have always been liable. Now they have a way out of that liability.
littlewolf
Regular Member
Hypothetical.You post and something happens and the insurance company says ,sorry you posted and lost immunity !We No Pay... You don't post and they say Good WE No Have to Pay !
Either way the insurance co. is the winner.
msteinhilber
Regular Member
The way I read Act 35 sounds to me like a place of business opting to NOT post a sign prohibiting firearms on the premises is exempt from any liability say if a licensed individual discharged their firearm within the building and injured/killed another innocent patron while defending themselves. I don't interpret it to read that a business that does post has an increase in any liability (as in you can sue them if you are unable to defend yourself as they have posted). I think in the case of a place of business posting NO firearms would be protected from the first scenario (licensed individual injuring/killing another patron) simply because they were posted no firearms and thus the licensee would be liable, and in the case of you being robbed/injured/killed in a place of business posting NO firearms they would be found to not be liable because you made the conscious choice to patronize their place of business that was clearly posted and thus assumed the risk.
That's just my $.02.
That's just my $.02.
jpm84092
Regular Member
This Post Involves Unsettled Case Law
The whole matter of jurisprudence regarding Act 35 is uncharted territory in WI. On the one hand, the Wisconsin Bar Association believes that there is no change in liability for a business that posts a no weapons sign versus what existed on October 31, 2011. (Wishful thinking on their part, but just watch those lawyers jump to be plaintiff attorneys with the first civil liability case.) On the other hand, a previous post is correct in stating that it was the State of Wisconsin that barred the means of personal protection by means of a concealed weapon prior to November 1, 2011 and that after A-35 took effect this changes the civil liability landscape. This legislative act alters the "case law" landscape that existed prior to November 1, 2011 as legislation always trumps previous case law that was based on a law that was rendered moot by a subsequent law.
There are many points of interest and future contention that may yet have to be settled in a Court of Competent Jurisdiction in Wisconsin. And, the potential exists for the Legislature to take action to render moot a Court Ruling and/or Administrative Rule or Regulation that it believes was flawed in determining "legislative intent". (This has happened in Utah in the past when the Legislature has enacted laws overturning court rulings and/or Administrative Rules made by University Officials that the legislature said were flawed in their interpretation of legislative intent. And, a similar situation took place in Wisconsin when a Legislative Committee served formal notice on WI DOJ that its' Administrate Rules on Required Training violated the "legislative intent" of Act 35 of 2011. ) It is clear that the legislature was emphatic in their desire to shield businesses that do not post from civil liability and thus it is clear that the legislature believes and states as a matter of "legislative intent" that some form of civil jeopardy now exists post November 1, 2001 for businesses that exercise their private property right to ban concealed weapons on their premises. And, that this civil liability now exceeds the baseline liability in place prior to November 1, 2011. And, by extension, the wording of the Bill implies that it is the "intent of the legislature" to create this new civil liability for businesses that post. Absent a finding by the Wisconsin Supreme Court that this "legislative intent somehow violates the US or Wisconsin Constitution, my personal opinion is that legislative intent will prevail.
Thus, a plaintiff lawyer would likely be able to make a good case in a tort case that the wording of the law very clearly implies that the Legislative Intent was to attach civil liability to businesses that post to prohibit concealed carry by lawfully licensed citizens.
Disclaimer - I am not an Attorney and am not licensed to practice law by any State. My words reflect my personal opinion and any forum member who wishes a competent opinion should consult a lawyer in Wisconsin who has studied Wisconsin Firearms Law, including the one that took effect on November 1, 2011.
Yellow Cat Out -
The whole matter of jurisprudence regarding Act 35 is uncharted territory in WI. On the one hand, the Wisconsin Bar Association believes that there is no change in liability for a business that posts a no weapons sign versus what existed on October 31, 2011. (Wishful thinking on their part, but just watch those lawyers jump to be plaintiff attorneys with the first civil liability case.) On the other hand, a previous post is correct in stating that it was the State of Wisconsin that barred the means of personal protection by means of a concealed weapon prior to November 1, 2011 and that after A-35 took effect this changes the civil liability landscape. This legislative act alters the "case law" landscape that existed prior to November 1, 2011 as legislation always trumps previous case law that was based on a law that was rendered moot by a subsequent law.
There are many points of interest and future contention that may yet have to be settled in a Court of Competent Jurisdiction in Wisconsin. And, the potential exists for the Legislature to take action to render moot a Court Ruling and/or Administrative Rule or Regulation that it believes was flawed in determining "legislative intent". (This has happened in Utah in the past when the Legislature has enacted laws overturning court rulings and/or Administrative Rules made by University Officials that the legislature said were flawed in their interpretation of legislative intent. And, a similar situation took place in Wisconsin when a Legislative Committee served formal notice on WI DOJ that its' Administrate Rules on Required Training violated the "legislative intent" of Act 35 of 2011. ) It is clear that the legislature was emphatic in their desire to shield businesses that do not post from civil liability and thus it is clear that the legislature believes and states as a matter of "legislative intent" that some form of civil jeopardy now exists post November 1, 2001 for businesses that exercise their private property right to ban concealed weapons on their premises. And, that this civil liability now exceeds the baseline liability in place prior to November 1, 2011. And, by extension, the wording of the Bill implies that it is the "intent of the legislature" to create this new civil liability for businesses that post. Absent a finding by the Wisconsin Supreme Court that this "legislative intent somehow violates the US or Wisconsin Constitution, my personal opinion is that legislative intent will prevail.
Thus, a plaintiff lawyer would likely be able to make a good case in a tort case that the wording of the law very clearly implies that the Legislative Intent was to attach civil liability to businesses that post to prohibit concealed carry by lawfully licensed citizens.
Disclaimer - I am not an Attorney and am not licensed to practice law by any State. My words reflect my personal opinion and any forum member who wishes a competent opinion should consult a lawyer in Wisconsin who has studied Wisconsin Firearms Law, including the one that took effect on November 1, 2011.
Yellow Cat Out -
Teej
Regular Member
If a store owner left a weapon on the counter and someone grabbed it and used it...yeah, they would be liable.
If their employee attacks you unlawfully...they are liable.
If they used metal detectors or guards and a criminal got something past...they might be liable.
But to expect a store that doesnt screen everyone to assume liability for the actions of everyone who walks in? Are you serious?!?! What moron would be willing to run a business in that world?
If their employee attacks you unlawfully...they are liable.
If they used metal detectors or guards and a criminal got something past...they might be liable.
But to expect a store that doesnt screen everyone to assume liability for the actions of everyone who walks in? Are you serious?!?! What moron would be willing to run a business in that world?
davegran
Regular Member
In a country where you can be successfully sued for serving a hot drink, what do you think would happen to a storekeeper who disarmed a customer who was then subsequently a shooting victim in the store?
Brass Magnet
Founder's Club Member
The landscape has infact changed for businesses that chose to post. Now that there are a lot more people that will be carrying for their protection I can definitely see a posted business losing a lawsuit if only because of the frequency of posting and carrying. Remember, civil court does not require "beyond a reasonable doubt". If a business posts and then does not provide means to make sure their policy is being followed, that could certainly indicate negligence. The landscape also provides more probability that a plaintiff can prove he/she would have been carrying if allowed.
Teej
Regular Member
In a country where you can be successfully sued for serving a hot drink, what do you think would happen to a storekeeper who disarmed a customer who was then subsequently a shooting victim in the store?
Major difference...and setting aside for a moment the fact that I believe that case is ludicrous....(the woman received exactly what she expected when she bought it, then was dumb enough to park the car and pull the top off the coffee with it sitting between her legs. Nobody wants McD's to serve coffee at bath temperature. I think this case is a prime example of what's wrong with the justice system. You seem to think it doesn't go far enough.)
In the coffee case, the lawsuit was about a product the injured party purchased from the store.
Holding a store owner liable for 3rd party action would be like the woman successfully suing Ford for making the car it happened in and the maker of the sweatpants that stuck to her body with hot coffee.