If you ban guns on your business property, do you become the “custodian” of your patrons’ safety?
You would under the logic behind legislative proposals in at least four states. Bills introduced over the past two years in Florida, Missouri, Tennessee, and Texas would establish legal liability of business owners for injury incurred by customers and/or employees prohibited from carrying legal weapons on premises.
Responding to the proliferation of “gun-free” and “no weapons” signs in retail establishments, legislators in Tennessee advanced a bill in 2016 mandating that any establishment open to the public that voluntarily prohibits firearms would “assume absolute custodial responsibility for the safety and defense of [a firearms] permit holder.”
The bill would have created a cause of action for a handgun permit holder who was killed, injured, or suffered any “compensable loss” because of a prohibition on firearms voluntarily posted by the property owner or operator. 1
Under the law, persons posting firearms prohibitions would assume responsibility for defending permit holders from “the conduct of other invitees, trespassers, employees of the person or entity, vicious animals, wild animals, and defensible manmade and natural hazards.”The responsibility would extend beyond the posted premises to any area a permit holder must travel from where his/her gun is stored.
Late in the session, the custodial provisions were stripped from the bill and it was amended to merely provide civil immunity for a business or property owner’s decision not to restrict firearms.
(The immunity is limited to that decision alone, however, and does not affect actions alleging other types of liability.)
In that respect, the final law enacted in Tennessee law is similar to a 2014 Wisconsin law that provides civil immunity to employers who allowed employees to carry licensed, concealed firearms on their premises. (Again, the immunity extends only to the decision to allow guns on premises, and would not impact claims of negligent hiring, negligent supervision, or other tort actions.)
In 2017, custodial liability bills resembling the original Tennessee bill were introduced in Florida, Missouri, and Texas, but they are still in committee.
Even if these bills are not passed, custodial liability arising from restrictions on firearms might still be enacted through case law. For property owners and managers, they mark a milestone in the privatization of liability for public safety.
The premise of custodial liability proposals is that businesses seeking to prohibit firearms on their premises are depriving...