Once again some advocates are advancing what they see as gun rights at the expense of the general rights of private property and contract. This time it’s a new state law that “allows any Tennessean with a valid gun permit to sue a property owner in the event of injury or death provided the incident occurred while in a gun-free zone.” More specifically, the “legislation places responsibility on the business or property owner of the gun-free area to protect the gun owner from any incidents that occur with any ‘invitees,’ trespassers and employees found on the property, as well as vicious and wild animals and ‘defensible man-made and natural hazards.'” The bill excludes situations where the law itself imposes the status of “gun-free zone,” but includes situations in which a Tennessee business adopts the status in order to follow the policy of its corporate owner or franchisor.
Traditional Anglo-American law grants to a property owner as a matter of course not only the right to exclude guns, but also to ask of customers and other invitees that, as a condition of their visit, they agree to assume the risk of some “defensible hazards” contemplated by the law, such as harm occasioned by roaming wild animals. Is it too much to ask that gun advocates promote the actual rights prescribed by the Second Amendment against government infringement — which certainly could use promotion right now — rather than infringe traditional individual property and contract liberties by inventing spurious new gun “rights”? [Tennessean via Bearing Arms] Earlier on laws restricting property owners’ rights to set rules against guns in parking lots here, here, here, here, related Roger Pilon at Cato, and, also with coverage of “off-duty conduct” as a protected class in discrimination law, here.
18 Comments
If you decide that in order to frequent your business, I must abandon my Constitutionally-protected Right to defend myself and others, then you assume responsibility for my safety.
Should some event occur in which I am injured or worse, then myself or my family should have legal recourse.
My concealed carry permit means that I have been fingerprinted, had my background checked by the FBI and trained according to the TN state standard.
Your little sign that makes it a misdemeanor to carry on your premises, will NOT stop any thug or terrorist intent on committing a felony.
Do you tell people what they can discuss? Do you tell people they cannot pray before they eat? Do you ban any large groups from getting together to discuss certain topics?
Then you don’t restrict the practice of 1st Amendment Rights.
Why would you restrict the practice of my 2nd Amendment rights then? Do you really think criminals will honor your sign? My “offensive” weapon may be the only thing that keeps you and other customers from getting killed.
The proliferation of gun-free zones is a classic case of over-lawyering, and one you should recognize as such. It is the results of insurance companies and company lawyers completely over-estimating the probability of a CHL holder causing harm on the premises. Essentially, a gun-free zone says that their customers should be rendered defenseless without compensation and that further, the lives and property of the defenseless customers are valued LESS than the lives of CRIMINALS who could harm them. After all, wounded/dead criminals and/or their families have a propensity to sue their victims and the premises in the aftermath of their discovery that said victims could fight back.
Is somebody up for re-election and is trying to get votes? I’m pretty sure that I can sue for failure to provide adequate security already, concealed carry permit or not. Why should concealed carry holders get special treatment?
I’ve posted on this subject before. I understand and respect the property owner’s rights, that’s why I leave my weapon locked in my vehicle, when I go into a “gun free” zone. I also believe that with the property owner’s rights comes the responsibility for the owner to provide for my security when I am in the owner’s business or have been invited on to their property.
My concern on this subject mainly dealt with an employer restricting my ability to have a weapon locked in my vehicle, in the parking lot. The statement that I made in earlier posts is that if my employer has this policy, they should be responsible for my security on my way to and from work, since their policy has restricted my ability to provide for my own security.
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I like Walter but he blew this one
As JH suggests, there is a distinction between a gun free Zone imposed by the proprietor’s personal belief, and a gun-free zone imposed on the proprietor by insurance companies, either reacting rationally to an abusive State tort system, or overreacting to an exaggerated liability threat. If the problem is insurance companies, it is not clear the the best remedy is even more latitude to the tort system.
Yes, it actually is too much to ask. There’s no reason why gun advocates should have to stick to only opposing violations of the Second Amendment. Free speech advocates, for example, don’t stick to opposing violations of the First Amendment. They also advocate things like anti-SLAPP laws, that are in the civil courts but still relate to the right even though they are not covered by the right.
I’m a card-carrying NRA member, but why shouldn’t I be able to declare my private property as hoverboard-free, selfie-stick-free, unicycle-free, or (heaven forbid!) gun-free?
I don’t understand how a “consistent” Conservative can be OK with this.
@Jim Collins:
” I’m pretty sure that I can sue for failure to provide adequate security already, concealed carry permit or not. Why should concealed carry holders get special treatment?”
In most states, you’re wrong. If you are the victim of a crime, in many states, the owner or possessor of the property has no duty to protect you against assault by a 3d party. See e.g., Dykema v. Gus Macker Enterprises, Inc., 492 N.W.2d 472, 474 (Mich. Ct. App. 1992) (“The general rule is that there is no duty to aid or protect another.”). States following the Restatement (2d Ed.) of Torts, generally recognize an exception to this rule when there is a “special relationship” between the owner or possessor and the injured person. Recognized special relationships “include common carrier-passenger, innkeeper-guest, employer-employee, landlord-tenant, and invitor-invitee.” Id. 492 N.W.2d at 474. However, the special relationship doctrine usually is not extended to cover injuries caused by 3d parties, such as criminals. A few states, such as Kentucky, have adopted the formulation in the Restatement (3d Ed.) of Torts, which eliminates determining duties owned based on whether the person injured was an invitee, licensee or trespasser, in favor of factually based analysis on whether the injury was proximately caused by a risk which was reasonably foreseeable. In locations where there is a history of violent criminal activity, even before Kentucky adopted the Restatement 3d’s standards, an owner or possessor had a duty to invitees to protect them from criminal violence. The new Tennessee law appears to extend the reasonably foreseeable test to CCW holders on the assumption that they would protect themselves and others, but for the owner or possessor’s decision to prohibit the carrying of firearms on the premises. It further provides the owner or possessor immunity from an action based on the statute, which created a new cause of action but does not purport to restrict causes of action already recognized by Tennessee law, should the owner or possessor authorize CCW permit holders to carry firearms on the premises. So, “why should [CCW] holders get special treatment?” Apparently, because the Tennessee legislature decided that persons who can pass the back-ground check and undergo the required training should either be allowed to defend themselves, or the owner or possessor who prohibits that becomes very close to the insurer of the CCW holder, even if Tennessee law does not otherwise provide a remedy for the CCW holder against the owner or possessor.
You also stated:
“My concern on this subject mainly dealt with an employer restricting my ability to have a weapon locked in my vehicle, in the parking lot. The statement that I made in earlier posts is that if my employer has this policy, they should be responsible for my security on my way to and from work, since their policy has restricted my ability to provide for my own security.”
The statute isn’t express on this point, but by creating a new cause of action by statute, it arguably creates an implied exception to the exclusive remedy of the Tennessee workers’ compensation law. Generally, when an employee is injured on the job, workers’ compensation benefits are the exclusive remedy against the employer. Non-economic damages (e.g., damages for personal injuries) are not recoverable from the employer. A tort action against the 3d party who caused the injuries is still available (which is subject to the workers’ compensation insurer’s subrogation rights against any recovery), but, most criminals aren’t wealthy and most liability insurance policies contain exclusions from coverage for intentional acts. So, a right of recovery against the criminal who caused the injuries is fairly hollow. If the new statute is held to imply an exception to the workers’ compensation law’s exclusive remedy rule, then a CCW holder employee who was injured in a way that s/he could reasonably have prevented by use of a handgun to defend him/herself may be able to recover personal injury damages from his/her employer and the employer’s liability insurer. That will likely cause possessors and owners and their liability insurers to re-consider the risks of prohibiting CCW holders from carrying concealed handguns on their premises. I’d think you’d support that.
@ Robert Allen:
“but why shouldn’t I be able to declare my private property as . . . gun-free?”
You can do so, or not, at your choice. The Tennessee statute does not mandate a choice. Rather, if allocates liability for the foreseeable risks of harm arising from a decision to prohibit CCW holders the ability to protect themselves, to the owner or possessor who decides to prohibit firearms on the property. IMO, making the person who makes the choice potentially liable for the consequences of his/her decision is consistent with those who believe we should bear personal responsibility for the foreseeable consequences of our decisions. Whether that is a “Conservative” position, in today’s political climate, I will not venture an opinion on.
I’m with John C on this one. If a property owner is liable when a visitor slips and falls on his front steps, why should he escape liability for this hazard, which he had a much more direct and informed role in causing?
1. Did the Tennessee Legislature go over a raft of incidents from over the years in which this scenario actually took place? I’d like to hear about it.
2. Are the victims in such scenarios unable to file premises liability or other tort suits to begin with? I seriously doubt it.
3. Could plaintiff’s counsel in such a suit make copious use of the “gun-free” zone as contributing factor? I see no reason why not.
4. How exactly do we establish causation in such situations? We’d have to assume that in any of them, the aggrieved packer could have taken out the attacker.
5. Are packers without the ability to, you know, decline to visit private gun-free zones? Anyone making them go? Nope, didn’t think so.
This is gimmicky, useless, hysterical and supremely butt-kissy legislation. I’ll side with Walter.
One of the most noted incidents…
On October 16, 1991, 35-year-old George Jo Hennard, an unemployed[3] merchant mariner who was described by others as angry and withdrawn, with a dislike of women and ethnic minorities, drove his blue 1987 Ford Ranger pickup truck through the plate-glass front window of a Luby’s Cafeteria in Killeen, Texas.[2] Yelling, “All women of Killeen and Belton are vipers! This is what you’ve done to me and my family! This is what Bell County did to me…This is payback day!” Hennard opened fire on its patrons and staff with both a 9mm Glock 17 pistol and a 9mm Ruger P89 pistol.[4][5] He stalked, shot, and killed 23 people, ten of them with single shots to the head, and wounded another 27 before committing suicide.[2] Approximately 140 people were in the restaurant.
It was National Boss’s Day and the restaurant was crowded.[6][7] At first, bystanders thought the crash was an accident, but the shooting started almost immediately.[1] The first victim was veterinarian Michael Griffith.[8] Another patron, Tommy Vaughn, threw himself through a rear window of the restaurant, sustaining injuries, but providing an escape route for himself and other customers.[1]
Hennard reloaded at least three times before fleeing to the bathroom after a brief shootout with police officers. During the shootout, Hennard was wounded by the police. The incident ended when he committed suicide by shooting himself in the head.[2][7]
Suzanna Gratia Hupp, who was present at the shooting where both of her parents were killed. She later testified that she would have liked to have had her gun during the shooting, but said, “it was a hundred feet away in my car” (she had feared that if she was caught carrying her gun she might lose her chiropractor’s license).[12] She testified across the country in support of concealed handgun laws, and was elected to the Texas House of Representatives in 1996.[
Not relevant to this Tennessee law. Hupp was prohibited from carrying her pistol by Texas state law, not the owners of Luby’s.
Anonymous Attorney
Your comment amounts to the contention that people already have the right to pursue the claims protected by the statute.
If what you say is true, then the statute is redundant but harmless and Walter’s claim that it advances gun rights at the expense of contract and private property rights is meritless.
I support fully the owners right to exclude guns from his property. However if he does exercise his right he should, as with the exercise of any right, be liable for any unnecessary harm arising from that exercise.
So if a private property owners says “no epipens allowed” and my child then dies from a bee sting shouldn’t I be able to sue? If there’s a sign that says “no shoes allowed” and then I step on broken glass and cut my foot shouldn’t I be able to sue? If a movie theater has a sign “no flashlights permitted” and then there’s some sort of emergency and I break my foot as everyone tries to exist in the darkness I still can’t sue? What if a hotel says “you can’t bring a fire extinguisher into your room” but then the hotels fire alarm fails and their sprinklers fail and finally I’m burned to death while trapped in my room, I still can’t sue?
I’m not a lawyer but it sure seems like there should be a responsibility on a property owner if they explicitly ban a specific thing.
Right now, people who don’t ban guns can be sued for damages inflicted by armed patrons — that’s why insurers pressure them to ban guns.
The policy should be balanced. The liability faced by businesses that ban guns should look like the liability faced by those who do not ban guns. We should not allow liability to force businesses to ban guns.
If a proprietor put up a sign in large type “No guns” and in small type “except licensed carriers in this State according to law”, would that give him the same protection as a simple “no guns” sign in the 95% of cases where the shooter was a criminal without a carry license?