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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 12-10-2015, 1:23 PM
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Default Negligence and liability of gun-free zones

Can any lawyer(s) out there tell me if there is validity for someone (or the family of) who is injured or killed within a public gun-free zone to hold the organization/government entity liable for their injury or death like in the recent San Bernardino incident or at a school shooting? My logic and reasoning says that if a public entity/government organization impedes on your 2nd Amendment rights which covers you in your private home and on public property, then they must provide a sound alternative for security, otherwise, they should be 100% liable for all sustained injuries especially if the injured was a concealed weapons holder or was denied a carry permit by the local government like in LA, NYC, or Chicago. Also, if this sounds legitimate, has there been any precedent?

Further, if carry permit or ownership laws are restrictive in the above mentioned places, shouldn't said governments be liable for injuries in the private home/public for any felonious crime in general since those laws may have allowed for such crimes to occur/continue?

One lawyer friend of mine stated that it isn't likely possible to prove negligence because as he states:

"Negligence is generally defined as a duty owed, duty breached and damages flowing from that breach. The facility definitely owed its employees and any invitees on its premises to take reasonable precautions to prevent harm. But terrorists shooting up the place was definitely not a foreseeable form of harm anyone could have foreseen. There is no duty to take every type of precaution; or to prevent every type of harm; only those that are foreseeable, such as a loose stairway rail, broken elevator, hole in a floor, etc., etc.."

I disagree because it is the duty of government to ensure that the individual rights are not impeded upon. IMO, when the government breaches the 2A rights of individuals, then the repercussions of those policies should be borne by them. There is precedent in regards to breaches of the 1st amendment, so therefore, how is the 2nd amendment any different? Precautions like security guards, security alarm systems, police patrols, and so on exist because there is a reasonable fear of crime or violence. So, in the case of San Bernardino, those killed and injured should be able to form a class action suit against the city of San Bernardino because since they impeded on the 2nd amendment rights of all individuals and failed to put in place the measures necessary to prevent or stop such an event, right? If they don't want or cannot afford the liability, then, they cannot continue to do declare gun-free zones or it would be further negligence. Does my reasoning make sense from a legal standpoint? If not, why? If so, why isn't there a precedent or class action suits already for the many "mass shootings" that have already occurred?

Thoughts?

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Old 12-10-2015, 2:06 PM
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I think they need to look into the "Second Class citizen" angle. They provide security for the supervisors, but not for the rest of the people.

That creates 2 classes of citizens, and therefore the magical liberal word "discrimination".

Last edited by cncer; 12-10-2015 at 2:11 PM..
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Old 12-10-2015, 2:07 PM
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Fight Fire with Fire ---

https://en.wikipedia.org/wiki/Second-class_citizen
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Old 12-10-2015, 2:40 PM
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At issue is one of the major problems with those who make the rules, opposed to those forced to follow the rules made by them.

Qualified Immunity

Prosecutorial Immunity

Legislative Immunity

ETC

ETC

ETC

Those that make the rules, also make themselve IMMUNE from the rules and any backlash caused by the rules.

No mandatory OsamaCare for Osama bin Bama, or the members of Congess who stuck the rest of us with it.

No insider trading in stock market. It's illegal and people go to jail for it. Unless it is a Congressman or US Senator. Insider Trading is OK for them.

No GUN For YOU. Rules are made by people with not only immunity. But people who are also protected by people with guns, that you pay for. aka SECURITY DETAIL.

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Old 12-10-2015, 3:19 PM
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Let's take a hypothetical case where a private facility prohibits concealed carry on its premises. You are either an employee or customer of said facility. Do they have an obligation to protect you, and could you sue them for failure to provide protection in the event your life was threatened while on their property?

This is a tricky subject. I'm not a lawyer, so this is simply my opinion. First, this is a civil matter which means anyone can be sued for anything, regardless of how groundless the lawsuit might be. So just because you can sue doesn't mean you can win.

If you have a CCW but chose to comply with the facility's no-gun policy, they would likely argue you voluntarily accepted their restriction and the fact they couldn't protect you. I have no idea how a jury (or judge) would rule that.

Just to make it worse, OSHA has a law that businesses must mitigate or eliminate known hazards from the workplace. It could be argued that firearms (or weapons in general) are a known hazard and therefore companies must prohibit them or run afoul of OSHA regs. I could see a business using that as an excuse to say they'd like to allow concealed carry but can't due to OSHA.

Ultimately someone with deep pockets (or a pro-gun lawyer willing to take it pro bono) who has a CCW but is shot on a premises that doesn't allow personal carry will have to take it to civil court to see what happens. Until then (and maybe even then) there's no way to really know what might happen.
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Old 11-28-2017, 2:04 AM
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Originally Posted by Gun Kraft View Post
Let's take a hypothetical case where a private facility prohibits concealed carry on its premises. You are either an employee or customer of said facility. Do they have an obligation to protect you, and could you sue them for failure to provide protection in the event your life was threatened while on their property?

This is a tricky subject. I'm not a lawyer, so this is simply my opinion. First, this is a civil matter which means anyone can be sued for anything, regardless of how groundless the lawsuit might be. So just because you can sue doesn't mean you can win.

If you have a CCW but chose to comply with the facility's no-gun policy, they would likely argue you voluntarily accepted their restriction and the fact they couldn't protect you. I have no idea how a jury (or judge) would rule that.

Just to make it worse, OSHA has a law that businesses must mitigate or eliminate known hazards from the workplace. It could be argued that firearms (or weapons in general) are a known hazard and therefore companies must prohibit them or run afoul of OSHA regs. I could see a business using that as an excuse to say they'd like to allow concealed carry but can't due to OSHA.

Ultimately someone with deep pockets (or a pro-gun lawyer willing to take it pro bono) who has a CCW but is shot on a premises that doesn't allow personal carry will have to take it to civil court to see what happens. Until then (and maybe even then) there's no way to really know what might happen.
Thanks for the input. Its been awhile, but I think that private facility has every right to dictate whether firearms can be on premises. A ccw holder can choose to go in or not go in which is his right. However, I also think that it becomes a liability if they choose to disarm their patrons but dont have security measures in place.

On public ground such as schools and government buildings, we should have the right to bear arms as per 2A, so if an incident did occur and there were no measures in place, the government should definitely liable.

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Old 11-28-2017, 6:37 AM
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This comes up from time to time.

The government/LEO/Fire etc have no duty/obligation/responsibility to protect you period.

Supreme court has ruled and CAL law (See attached) expressly exempts the Govt/LEO/CLEO etc from any obligation or lawsuit if you get hurt or killed for almost any reason.

For eye opening reading, read about the LA riots and the lawsuits after them which were summarily dismissed.

Most people are clueless and buy into the lie that the govt is there to protect you.

This is my go to argument against antis when ever they say I don't need guns. I ask them who will protect me and watch them stand dumbfounded and disbelieved when I go through all the exemption and lack of duties of the govt... but but but the Police are there to help, thin blue line, protect and serve..blah, blah, blah. Usually they leave pissed off, but some actually go and look it up and realize, yep we are on our own.
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Old 11-28-2017, 2:02 PM
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Something tells me this has been hashed out before.

Seems to me it comes down to whether or not the org/gov had a reasonable indicator that there was going to be violence directed at their patrons, employees, or people visiting their facilities. Which is why places get locked down if an employee on the facility's FB page mentions they own a gun.

In the San Berdoo case, if the practitioners of the religion of peace had the courtesy to ring up ahead of time and threaten to shoot up the place, I'm sure the gummint would've reacted, possibly in a ludicrous fashion.

Security guards and systems aren't there because they think there's going to be violence, they're there to hopefully deter people from stealing staplers and such.
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Old 11-28-2017, 7:46 PM
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The legal ins and outs of this issue are fascinating, but ultimately a dead end.
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Old 11-28-2017, 8:38 PM
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It would seem:

If the entity was following the law, then the entity would not be liable (School districts not allowing CCW on campus).

If the causative action is a legislative statute (no CCWs on campus) the legislature enjoys immunity from prosecution for legal actions taken under their employment, such as passing laws, so they would not appear to be liable.

If a property owner/business were to ban firearms and not allow their presence, and an individual entered the facility, that would appear to be a voluntary acceptance of the individual's perceived risk. (Disneyland)

Take something as simple as a baseball game. The ticket usually indicates that, if you are hit by a bat or ball, you accept that liability. (Of course, when the broken bat flies into the third-base line seat, the lawyers want to claim that the nets should have run all the way to the foul pole.)
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Old 11-28-2017, 11:09 PM
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Quote:
Originally Posted by Dvrjon View Post
It would seem:

If the entity was following the law, then the entity would not be liable (School districts not allowing CCW on campus).

If the causative action is a legislative statute (no CCWs on campus) the legislature enjoys immunity from prosecution for legal actions taken under their employment, such as passing laws, so they would not appear to be liable.
I think that sums it up.

Prohibiting firearms, IMO, is analogous to the situation of snowfall on your property. If you just don’t do anything about snowfall, then it’s nature doing its thing. If someone is walking on your property and falls down and breaks their arm, that’s a shame, but you can only blame nature.

As soon as you do something, like shovel a path poorly such that it melts and refreezes into a more slippery path than if you had just left it alone (or prohibit people with ccw permits from carrying but perform no positive checks against people who may be carrying illegally) then you pick up some liability if it turns out you made things worse.

My opinion doesn’t matter though, because I live in California, and the mob doesn’t agree with me.
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Old 11-29-2017, 5:35 PM
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As a general proposition, an owner/possessor of real property owes no duty to patrons/invitees absent knowledge of a specific threat of harm. There are California Supreme Court cases discussing this very issue, not in the context of banning guns, but in the context of when a person is injured/raped/beaten/killed on private property. The lead case is In re Anne M., which involved a young woman who worked at a mall and was raped. She contended that the mall had a duty to provide security (or more security than it did). She lost. The only cases in which liability has been imposed has been in cases where a bar was sued that had knowledge of multiple criminal acts in the parking lot next door where its patrons usually parked. Held that it owed a duty to provide adequate lighting on its own building illuminating the lot, but that's about it.

Applying these cases, a business that bans firearms owes no duty to its patrons to protect against the criminal acts of third persons. Such was the conclusion of the Colorado case in the suit against the theater in the Aurora mass shooting, and, despite the creativity of the plaintiffs lawyers, I suspect will be the same result in the Mandalay Bay cases.
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Old 11-29-2017, 10:47 PM
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Quote:
Originally Posted by TruOil View Post
As a general proposition, an owner/possessor of real property owes no duty to patrons/invitees absent knowledge of a specific threat of harm. There are California Supreme Court cases discussing this very issue, not in the context of banning guns, but in the context of when a person is injured/raped/beaten/killed on private property. The lead case is In re Anne M., which involved a young woman who worked at a mall and was raped. She contended that the mall had a duty to provide security (or more security than it did). She lost. The only cases in which liability has been imposed has been in cases where a bar was sued that had knowledge of multiple criminal acts in the parking lot next door where its patrons usually parked. Held that it owed a duty to provide adequate lighting on its own building illuminating the lot, but that's about it.

Applying these cases, a business that bans firearms owes no duty to its patrons to protect against the criminal acts of third persons. Such was the conclusion of the Colorado case in the suit against the theater in the Aurora mass shooting, and, despite the creativity of the plaintiffs lawyers, I suspect will be the same result in the Mandalay Bay cases.
Fantastic input, and I'll certainly concede regarding private property as I do absolutely agree that the owner of private property should have full authority on their property. However, public property is what I am more fixated on. I find that defying 2A is breaking the law in the first place, so a gun free zone on public property should be deemed unconstitutional especially without provided security.

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Old 11-30-2017, 8:58 PM
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Quote:
Originally Posted by LockSAFGuy View Post
Fantastic input, and I'll certainly concede regarding private property as I do absolutely agree that the owner of private property should have full authority on their property. However, public property is what I am more fixated on. I find that defying 2A is breaking the law in the first place, so a gun free zone on public property should be deemed unconstitutional especially without provided security.

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First, many government buildings in California have security. Those that do not have security do not typically ban concealed carry, except of course schools. Second, state governmental liability is found under its own set of laws (called the Government Claims Act), and the basic operating principle is that state and local governments are immune from tort liability except where they agree to be sued. That said, the rules for premises liability generally parallel the common law (i.e. judge made) rules for premises liability. Which means unless the governmental entity has notice of a "dangerous condition" of its property, it is not liable.
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Old 12-03-2017, 10:06 PM
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Your on the right track but using the wrong example OP,

Take school aged children 1st through 10th grade, they are compelled to attend school and have no legal method to provide protection for themselves. The school and by extension the state should be compelled to provide an adequate level of protection for those students being that the state is forcing them to be there. On top of that the state should be required to hold life insurance policies for those kids to cover any expenses incurred should they fail to protect those children in the event of a tragedy.

Or

Take students of the University of California system of schools, Governor Brown has made it a felony for a student to use a firearm to protect their life while on campus. Even if that student has a valid California LTC. Because the state has barred students from carrying a firearm on the University property I would argue they must take responsibility for your life while on their (our) property. BY paying tuition you have a contract with the state to ensure that you are provided with a safe learning environment. Logically this must include protecting your life while you are on the property.
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Old 12-04-2017, 8:39 AM
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At the risk of derailing a legal philosophy debate, I offer you this:


Except as otherwise provided by statute:
(a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.
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Old 12-04-2017, 12:20 PM
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we as free peopls need to vote with our pocket books, by not shopping were guns are prohibited. AND letting said company know this with letters.

and/or risking ( pending your states laws) and just carry a loaded gun every where.

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Old 12-04-2017, 6:41 PM
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Just don't obay the law.
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Old 12-05-2017, 5:15 PM
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The most important part of that particular statute is the language "except as otherwise provided by statute..." The statutes that follow that one are all of the exceptions. But it does demonstrate the point I made above--you can only sue the state on the terms it sets.
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Old 12-05-2017, 8:11 PM
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Thank you, Arvo Van Alstyne.
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Old 12-05-2017, 10:14 PM
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The government or law enforcement has no duty to protect. You can look up the case Warren v. District of Columbia.
https://en.wikipedia.org/wiki/Warren...ct_of_Columbia

In that case, the police failed to protect the victims even when the victims were facing imminent danger. However, the police won. Having said that, when you're on public land and got hurt, there's no reason for anyone to be liable for your injuries due to the law denying you a CCW or any kind of protection.
Let's say if you're on public street, a terrorist hurt you. Do you think that you can sue the government and win, because they failed to prevent the terrorist from hurting you?
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Old 12-05-2017, 10:30 PM
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Quote:
Originally Posted by pacrat View Post
At issue is one of the major problems with those who make the rules, opposed to those forced to follow the rules made by them.

Qualified Immunity

Prosecutorial Immunity

Legislative Immunity

ETC
Correct. Outside of that, you, your company, a venue, or promoter/organizer can purchase one of three types of insurance policies:

1) An Active Shooter Policy, assists in expense reimbursement to third-parties for injuries, funerals, crisis management, counseling, property damage, etc., but does not apply to employees. Many of these policies are now adding situations other than just use of firearms, including cars, poisons, toxic gasses, bombs, etc. Terrorism is excluded.

2) Workplace Violence Policy primarily for covering employees and guests in a workplace violence situation, not specific to any weapon used. Terrorism is excluded.

3) Terrorism coverage (not to be confused with TRIA/coverage under the Terrorism Risk Insurance Act which is about as useless as an utter on a chicken.). This is full coverage for what may happen during a terrorist attack, and does not have to be certified/ratified as terrorism by a governing body/Congress in the way that is required. While there have been many incidents where private sectors considered numerous attacks to be terrorists actions on US soil these past 16 years, not a single incident within our borders since 9/11-WTC has been considered a terrorist attack by our U.S. government. In most all cases, the media implied it, but our illustrious government never certified it, either as foreign or domestic.

So in light of the above, is it the private sector that has a duty of care which must be applied?

For that answer, just look to who is being sued in the Las Vegas shooting incident.

.
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Old 12-06-2017, 7:18 AM
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The government or law enforcement has no duty to protect. You can look up the case Warren v. District of Columbia.
https://en.wikipedia.org/wiki/Warren...ct_of_Columbia

In that case, the police failed to protect the victims even when the victims were facing imminent danger. However, the police won. Having said that, when you're on public land and got hurt, there's no reason for anyone to be liable for your injuries due to the law denying you a CCW or any kind of protection.
A more directly applicable read would probably be Kennedy v. Ridgefield.

Quote:
In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court established a two-prong analysis for qualified immunity cases.   First, a court must determine whether-resolving all disputes of fact and credibility in favor of the party asserting the injury-the facts adduced at summary judgment show that the officer's conduct violated a constitutional right.  Saucier, 533 U.S. at 201, 121 S.Ct. 2151.   If the court determines that the conduct did not violate a constitutional right, the inquiry is over and the officer is entitled to qualified immunity.

However, if the court determines that the conduct did violate a constitutional right, Saucier's second prong requires the court to determine whether, at the time of the violation, the constitutional right was “clearly established.”  Id. A right is clearly established if its “contours” are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.”  Id. (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).   Even if the violated right is clearly established, the Saucier Court recognized that, in certain situations, it may be difficult for a police officer to determine how to apply the relevant legal doctrine to the particular circumstances he or she faces.   It held, therefore, that if an officer makes a mistake in applying the relevant legal doctrine, he or she is not precluded from claiming qualified immunity so long as the mistake is reasonable.   That is, if “the officer's mistake as to what the law requires is reasonable, ․ the officer is entitled to the immunity defense.”  Id. at 205, 121 S.Ct. 2151.
So a sheriff denying you a ccw would only open him or her up to liability if it had been clearly established that doing so violated your second amendment right to bear arms. If that were true we’d be shall issue already and we wouldn’t be having this conversation.
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Old 12-06-2017, 1:59 PM
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Quote:
Originally Posted by champu View Post
A more directly applicable read would probably be Kennedy v. Ridgefield.



So a sheriff denying you a ccw would only open him or her up to liability if it had been clearly established that doing so violated your second amendment right to bear arms. If that were true we’d be shall issue already and we wouldn’t be having this conversation.
True. And under current California law, the issuance of a license is a discretionary act--for which there is total immunity.
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Old 12-06-2017, 2:00 PM
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Thank you, Arvo Van Alstyne.
He DA MAN! Well he would be if he was still alive. Great resource.
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Old 12-06-2017, 2:06 PM
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Originally Posted by CALI-gula View Post

So in light of the above, is it the private sector that has a duty of care which must be applied?

For that answer, just look to who is being sued in the Las Vegas shooting incident.
Just because they have been sued does not mean they will be held liable. The Aurora movie theater was sued--and it won on a summary judgment motion on the basis that no duty was owed under the circumstances. The same is true of Vegas. I fail to see how the Mandalay owed any duty to spy on its guest an ascertain that he had some evil intent, or to prevent him from breaking out nearly unbreakable windows to engage in his spree, in order to protect people who were not even on its property but in fact a quarter mile away. Moreover,as discussed above, the spree was a criminal act by a third party, for which there is no liability absent notice, of which there was none. The theory against the music venue may have a shot--the theory is inadequate security (a loser given the range involved) and the failure to provide adequate exits in the even of an emergency. The latter may have some traction, but it is not particularly compelling, since limited access was the only way the venue could make sure that people attending had paid to be there.
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Old 12-07-2017, 10:49 AM
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Quote:
Originally Posted by TruOil View Post
Just because they have been sued does not mean they will be held liable. The Aurora movie theater was sued--and it won on a summary judgment motion on the basis that no duty was owed under the circumstances. The same is true of Vegas. I fail to see how the Mandalay owed any duty to spy on its guest an ascertain that he had some evil intent, or to prevent him from breaking out nearly unbreakable windows to engage in his spree, in order to protect people who were not even on its property but in fact a quarter mile away. Moreover,as discussed above, the spree was a criminal act by a third party, for which there is no liability absent notice, of which there was none. The theory against the music venue may have a shot--the theory is inadequate security (a loser given the range involved) and the failure to provide adequate exits in the even of an emergency. The latter may have some traction, but it is not particularly compelling, since limited access was the only way the venue could make sure that people attending had paid to be there.
Nobody ever said that would not be. That's not the point. That's never the point, whether the lawsuit is frivolous or even fantasy. My point flew over your head entirely, as is the case with most of the general public that see this as a need to place blame in order for protection to exist.

In the first place, liability insurance covers for defense costs which is the primary reason you have it; that aside, and my taking it out of that context, in cases like I sighted with the Active Shooter policy, it does not even take into consideration liability. These are expense and crisis-management policies that do not use liability as the trigger. The event itself is the trigger.

They cover solely on the basis that the event happened, regardless of liability. It's an expense reimbursement policy, with no deductible, with a "no fault" consideration no different that what you might have with an earthquake policy.

So your rebuttal is misdirected. Much of what you stated about the Las Vegas, I was already contemplating as it was happening.

My intention and advice was to indicate there are insurance policies that those who are most likely to harbor these risks can purchase to protect themselves regardless of liability. You can pay out of pocket, or have an insurance company pay for it; there is a choice, and a small investment can protect against a large loss which is not only logical but financially wise for those who may inevitably suffer these potential exposures.

Additionally, the 'Century 16' movie theater in Aurora would not have the same expectations as did the Promoter and/or Mandalay have in duty of care and liability, when comparing their general, customary and day-to-day operations of their respective businesses. I can cite about a dozen conditions of liability for the Promoter and/or Mandalay, but sure as hell I'm not going to post those details here, for you, or anybody else.

Where you say "I fail to see how...." is where the steps in to do its job.


.

Last edited by CALI-gula; 12-07-2017 at 10:58 AM..
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Old 12-07-2017, 1:04 PM
TruOil TruOil is offline
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Quote:
Originally Posted by CALI-gula View Post
Nobody ever said that would not be. That's not the point. That's never the point, whether the lawsuit is frivolous or even fantasy. My point flew over your head entirely, as is the case with most of the general public that see this as a need to place blame in order for protection to exist.

In the first place, liability insurance covers for defense costs which is the primary reason you have it; that aside, and my taking it out of that context, in cases like I sighted with the Active Shooter policy, it does not even take into consideration liability. These are expense and crisis-management policies that do not use liability as the trigger. The event itself is the trigger.

They cover solely on the basis that the event happened, regardless of liability. It's an expense reimbursement policy, with no deductible, with a "no fault" consideration no different that what you might have with an earthquake policy.

So your rebuttal is misdirected. Much of what you stated about the Las Vegas, I was already contemplating as it was happening.

My intention and advice was to indicate there are insurance policies that those who are most likely to harbor these risks can purchase to protect themselves regardless of liability. You can pay out of pocket, or have an insurance company pay for it; there is a choice, and a small investment can protect against a large loss which is not only logical but financially wise for those who may inevitably suffer these potential exposures.

Additionally, the 'Century 16' movie theater in Aurora would not have the same expectations as did the Promoter and/or Mandalay have in duty of care and liability, when comparing their general, customary and day-to-day operations of their respective businesses. I can cite about a dozen conditions of liability for the Promoter and/or Mandalay, but sure as hell I'm not going to post those details here, for you, or anybody else.

Where you say "I fail to see how...." is where the steps in to do its job.


.
The OP is about the potential liability of land owners who ban firearms on the property for criminal acts on or adjacent to their premises. As is apparent from my comment, I was responding to only a small portion of your post, i.e., your inference that liability questions are indicated in the identity of the persons being sued in the Vegas shooting. This thread is not about insurance or the conditions under which it may defend and indemnify, or for that matter refuse to do so. I have little doubt that the Mandalay is extremely well insured, but that isn't particularly on point for this discussion.
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