1/21/2015

To Post or Not to Post

The Impact of No-Guns Signs on Potential Civil Liability on the Retail, Restaurant, and Hospitality Industries

By Stacy D. Fulco , Nicole D. Milos

An armed robber enters a business and within minutes, two customers, an employee, and the robber are shot. How could this happen? A customer with a concealed carry license is in the store. He sees the robber and decides to take action. Unfortunately, things get out of hand and a lot of people are hurt.

Concealed weapons can be carried legally into stores, restaurants, and hotels in each of the 50 states and Washington, D.C. The liability implications of these laws on the retail and hospitality industries are not yet clear. Despite this uncertainty, companies have a big decision to make: to post or not to post no-gun signs on their doors. This may be a company’s biggest decision when it comes to defending a shooting case, but whether your civil liability for a shooting is increased or decreased with the use of a no-gun sign is greatly disputed.

The following is a point/counterpoint analysis of the pros and cons of posting no-gun signs from a civil liability defense perspective.

Position One: Post a No-Gun Sign

The first point of view is that the posting of a no-gun sign decreases civil liability. Once a property owner takes the affirmative action of posting a sign on her property that disallows entry to those persons who may be concealing a weapon, the property owner avails herself of two strategic advantages.

First, the property owner receives the benefit and protection of trespass law. Second, the landowner will have a strategic advantage to further the notice and foreseeability arguments applicable when seeking summary judgment based on the precedent law that a landowner cannot be held liable for the criminal actions of a third party.

The most obvious laws that are relevant to the concealed carry analysis are trespass laws. A person carrying a concealed weapon who enters a property that displays the state’s recognized concealed carry sign is automatically in violation of trespass law and subject to a criminal trespass charge. Utilization of the trespass laws also provides a defense for the landowner to a claim of profiling or discrimination from the offender.

The larger benefit of posting a sign is the number of defense arguments available to an owner when facing potential liability based on the criminal action of a third party. Prior to the imposition of concealed carry laws in general, if a shooting occurred and a suit was filed against a property owner, the property owner would argue that she was not liable for the criminal action of a third party.

Prior to concealed carry laws, the analysis of a dispositive motion seeking relief pursuant to this theory revolved around the foreseeability element, or whether it was foreseeable that a crime would be committed on the property by a third party. The court could consider a multitude of factors to determine foreseeability, including: the proximity of the crime to the property; any history of criminal activity on the property; criminal activity in proximity to the location of the store; the history of violent acts on the property; and the spontaneity of the event. Generally, all of these factors were considered in determining whether it was reasonable for the court to impose a duty upon the owner to foresee the criminal activity of the third party.

Prior to concealed carry laws, and especially in those jurisdictions like Cook County, Ill., where gun ownership was illegal, and in all counties where concealed carry was illegal, the only way a gun could be present on the property was if a criminal brought it onto the property. However, law-abiding citizens now are being granted permits to carry concealed weapons. So unless property owners specifically exclude weapons by posting no-gun signs, they must assume that patrons who sought and received concealed carry permits are patronizing their businesses and carrying their weapons.

Therefore, several additional factors now exist that may impact the analysis of a dispositive motion based on the fact that the property owner owes no duty to protect against the unforeseeable criminal acts of third parties. Since the passage of concealed carry laws, the court may consider the number of concealed carry permits that are issued within a given county, the legal gun sales in the area, and the number of firearm owners identification cards issued to people in the area. Finally, the court may consider the proximity between the property and businesses that cater to gun owners, such as those that sell ammunition or gun ranges.

By placing the no-gun sign, the business owner will argue that it has taken affirmative steps to disallow concealed weapons on the property. In turn, the business will argue that it lacked the requisite notice to anticipate that a person would break the law and bring a weapon onto the premise. However, the sign alone is not sufficient. If a business is unable to offer evidence of policies and procedures that were utilized at the time of the incident to enforce the no-gun policy, the sign will not be worth the paper it is printed on when it comes to providing a defense.

Position Two: Don’t Post a No-Gun Sign

The second point of view is generally the view of pro-gun groups. Under this school of thought, the use of no-gun signs increases civil liability. At the core of this argument is the concept that once a no-gun sign is posted, the business is giving a false impression of safety. While the average gun owner is likely to comply with the sign, criminals will not. Licensed concealed carry gun owners are now left unprotected from criminals. If the business fails to provide the safe environment it advertises, it may open itself up to civil liability.

Imagine a situation in which a shooting takes place and the customer who is injured is a concealed carry license holder. That customer will argue that the store required him to leave his gun in his car, causing him to be unable to protect himself when the store failed to provide a safe environment.

Looked at from a somewhat different perspective, if no-gun signs are posted and a shooting takes place, injured parties also could argue that the store failed to enforce its policy. Plaintiffs will evaluate the company’s internal policies and procedures to see how the business ensured it was keeping all open and concealed weapons off its property. If there are no such policies, or the policies are not being enforced, civil liability could be imposed. Therefore, if a business is going to post a no-gun sign but do nothing else, the question is whether that sign creates problems rather than providing protection.

The enforcement of the no-gun sign could create a real problem for businesses, especially if courts decide to take a hard-line position on it. Does reasonable enforcement require a security guard at the door who is trained to look for signs of a concealed weapon? It does not seem likely, but businesses need to anticipate that these are the types of arguments plaintiffs will raise in court.

Another argument being raised by the pro-gun groups, and will no doubt be raised in court, is that the use of no-gun signs actually increases the likelihood of criminal acts because the bad guys assume the business is an easy target. Criminals know they won’t be stopped by customers with concealed weapons, so criminals target businesses with no-gun signs.

Lastly, a very important concept to remember is that in states such as Alabama, Florida, Ohio, and Wisconsin—where there is statutory civil immunity when a concealed weapon causes an injury—the use of no-gun signs is counterproductive because it likely negates the civil immunity protection. So even if your business posts no-gun signs in Illinois and Arizona, think twice before using those signs where civil immunity applies. Even though we do not know how well the immunity will be upheld, there is no doubt it is irrelevant where no-gun signs are posted.

Choosing the Right Path

No one knows what the courts will actually do when faced with this decision. In our opinion, an analysis of the criminal acts of third parties throughout the country indicates that posting of no-gun signs would arguably give the defense a stronger position because you purposefully and intentionally decided guns should not be on your property. The use of signs seems to put a much more difficult burden on the plaintiffs to prove their cases.

Ask 100 people if they feel safer with or without no-gun signs posted, and you can bet that half will feel more safe and half will feel less safe. Every business must decide what is right for it. When making the decision, do not forget to speak with your litigation defense counsel and evaluate how future potential civil liability could be impacted by your decision.  

SIDEBAR: More RR&H Education

The CLM’s two-day Retail, Restaurant and Hospitality Conference takes place Feb. 5-6, 2014, in Orlando, Fla. Professionals from around the country will come together to learn from industry leaders as they discuss trends, strategies, and managing risks. The conference also includes networking opportunities to forge new relationships and catch up with old friends. Here is a glimpse of the topics that will be addressed; go the TheCLM.org to register or learn more:

  • Emerging Issues in Litigation and Coverage for Liquor Liability
  • Video Surveillance: Treasure or Trap?
  • GL and Workers’ Compensation Issues Unique to the Hotel Industry
  • Spoliation and Retail Post-Incident Investigations
  • Practical and Strategic Use of Social Media
  • Bed Bugs Risk and Litigation Strategies
  • Legionellosis: Evolving Expectations
  • Security Plans at Entertainment and Marketing Events
  • How to Be Secure in an Unsecure World

 



Stacy D. Fulco is a partner at CLM Member Firm Cremer, Spina, Shaughnessy, Jansen & Siegert LLC. She regularly represents companies within the retail, restaurant, hospitality, and property management industries and can be reached at sfulco@cremerspina.com, www.cremerspina.com.

Nicole D. Milos is a partner at CLM Member Firm Cremer, Spina, Shaughnessy, Jansen & Siegert LLC. She regularly represents companies within the retail, restaurant, hospitality, and property management industries and can be reached at nmilos@cremerspina.com, www.cremerspina.com.

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