Recourse Is At Hand! Maybe.

[Hershmeister]

[quote name="PapaB" post="1143013" timestamp="1398519945"]Just google "criminal sues victim and wins", then start reading. The other problem of course is, even if the criminal loses the case, the victim has to spend thousands of dollars defending themselves. In effect, the victim loses twice, even when the case against them is dropped or unsuccessful.[/quote] Aint the civil tort system great? We seriously need "loser pays" laws

[Chucktshoes]

[quote name="Hershmeister" post="1143027" timestamp="1398522418"]Aint the civil tort system great?We seriously need "loser pays" laws[/quote] There are good arguments both for and against "loser pays" laws.

[midtennchip]

Aint the civil tort system great?

We seriously need "loser pays" laws

I respectfully disagree. Loser pays (in the true sense) protects wrongdoers far more than it helps the wrongly accused. Tennessee adopted a watered down "loser pays" rule that went into effect last year. However, if you do the research, Tennessee has not had a problem of any significance with unmerited lawsuits. If a lawsuit is filed that has virtually no chance to win, it is much more likely to get dismissed VERY early in the case than it is to get to settlement. And under current Tennesssee, could require the plaintiff to pay for costs, attorneys fees, and loss of income for the defendant. The "loser pays" statute only applies in certain cases and only if the case is dismissed within a short time.

Now, with the current discussion, I do think it is possible to bring a lawsuit against a business owner that prohibits carry in some very limited circumstances. Tennessee case law has recognized a limited duty for businesses to take measures to protect patrons when there is a known threat. Walmart got hit years ago in Memphis for failing to protect patrons because Walmart was well aware of some violent criminal activity in its parking lot. The case law is pretty clear, though, that the business must be aware of an "unreasonable risk" of violent activity on the premises under control of the business. If someone could show that violent crime was known to business (and probably not know to the patron) and that the prohibition contributed to death or injury, then there's a chance that liability would occur. Edited April 28, 2014 by midtennchip

[Guest theconstitutionrocks]

seems to me that if, as a homeowner, I am liable for an injury sustained on my property by someone legally present, that this same standard should apply to businesses as well.

[E4 No More]

I respectfully disagree. Loser pays (in the true sense) protects wrongdoers far more than it helps the wrongly accused. Tennessee adopted a watered down "loser pays" rule that went into effect last year. However, if you do the research, Tennessee has not had a problem of any significance with unmerited lawsuits. If a lawsuit is filed that has virtually no chance to win, it is much more likely to get dismissed VERY early in the case than it is to get to settlement. And under current Tennesssee, could require the plaintiff to pay for costs, attorneys fees, and loss of income for the defendant. The "loser pays" statute only applies in certain cases and only if the case is dismissed within a short time.

Now, with the current discussion, I do think it is possible to bring a lawsuit against a business owner that prohibits carry in some very limited circumstances. Tennessee case law has recognized a limited duty for businesses to take measures to protect patrons when there is a known threat. Walmart got hit years ago in Memphis for failing to protect patrons because Walmart was well aware of some violent criminal activity in its parking lot. The case law is pretty clear, though, that the business must be aware of an "unreasonable risk" of violent activity on the premises under control of the business. If someone could show that violent crime was known to business (and probably not know to the patron) and that the prohibition contributed to death or injury, then there's a chance that liability would occur.

So, if for instance, a bank were not to employ armed security and a patron was injured during a robbery then the bank is liable for said injury since banks get robbed quite frequently? Or if a business receives threats and does nothing then they are liable? For the latter I would assume a reasonable timeline comes into play such as customer makes threats, walks out to their car to get a gun, and then comes back in and starts shooting versus the same situation but the customer goes home to get the gun and comes back an hour or day later?

 

And thanks for chiming in, Chip. It's nice to see a lawyer's opinion in this matter.

 

EDIT: Doesn't employees being locked into Workmen's Compensation Laws effect this as well? An employee that's injured by violence cannot sue their employer like a customer can, correct?

Edited April 29, 2014 by SWJewellTN

[midtennchip]

So, if for instance, a bank were not to employ armed security and a patron was injured during a robbery then the bank is liable for said injury since banks get robbed quite frequently? Or if a business receives threats and does nothing then they are liable? For the latter I would assume a reasonable timeline comes into play such as customer makes threats, walks out to their car to get a gun, and then comes back in and starts shooting versus the same situation but the customer goes home to get the gun and comes back an hour or day later?

 

And thanks for chiming in, Chip. It's nice to see a lawyer's opinion in this matter.

 

EDIT: Doesn't employees being locked into Workmen's Compensation Laws effect this as well? An employee that's injured by violence cannot sue their employer like a customer can, correct?

Here's a fairly lengthy article on the case:

 

http://www.johndaylegal.com/lawyer-attorney-1804037.html

 

As a general matter, a business is not considered the "insurer of the safety of its customers" and has no "absolute duty to implement security measures."  However, a business does have a duty to take "reasonable steps" to protect customers if it is "reasonably foreseeable" that criminal acts against its customers may occur.  The idea is that "reasonableness" is the standard.  In an carry situation, the business would argue that its prohibition on carry was intended to protect customers, so the case would probably swing one way or the other upon the jury's belief in the effects of carrying a gun (i.e.:  business wins if jury believes prohibition is the right way to protect customers;  business loses if the jury believes individual carry is the way to protect customers).

 

As far as workers' comp goes, it is a little different.  The reason is that workers' comp is essentially a compromise between the business and the employee.  The employee does not have to prove that the business was at fault (as opposed to the criminal who injured the employee) and the business does not face uncertain amounts of damages.  

[Hershmeister]

Chip - i hear what you're saying regarding " loser pays" being chilling to bringing cases. At the same time, i have seen and been involved in civil litigation that both takes inordinately long time and at high cost to bring to conclusion. Even though the court ruled favorably to me, the cost to win is often not worth the cost to fight the battle. Its sad that often being right comes at such a cost that often one is better off being wronged.

[E4 No More]

Here's a fairly lengthy article on the case:

 

http://www.johndaylegal.com/lawyer-attorney-1804037.html

 

As a general matter, a business is not considered the "insurer of the safety of its customers" and has no "absolute duty to implement security measures."  However, a business does have a duty to take "reasonable steps" to protect customers if it is "reasonably foreseeable" that criminal acts against its customers may occur.  The idea is that "reasonableness" is the standard.  In an carry situation, the business would argue that its prohibition on carry was intended to protect customers, so the case would probably swing one way or the other upon the jury's belief in the effects of carrying a gun (i.e.:  business wins if jury believes prohibition is the right way to protect customers;  business loses if the jury believes individual carry is the way to protect customers).

 

As far as workers' comp goes, it is a little different.  The reason is that workers' comp is essentially a compromise between the business and the employee.  The employee does not have to prove that the business was at fault (as opposed to the criminal who injured the employee) and the business does not face uncertain amounts of damages.  

Sounds like a VERY subjective situation hinging on one's thoughts towards what's reasonable.

[midtennchip]

Chip - i hear what you're saying regarding " loser pays" being chilling to bringing cases. At the same time, i have seen and been involved in civil litigation that both takes inordinately long time and at high cost to bring to conclusion. Even though the court ruled favorably to me, the cost to win is often not worth the cost to fight the battle.

Its sad that often being right comes at such a cost that often one is better off being wronged.

Yes, absolutely right. But the true loser pay rules is an extreme result because litigation is rarely as "black and white" as most people would think. Most cases involve more than one claim and a true loser pays rule has some really odd results. Further, many cases are lost on reasons other than merit. Tennessee has adopted a hybrid system that, in my opinion, balances the issues.

As always, I would suggest not to view the entire system from one or two cases. The rules we have came into place over many years and, in most cases, take the right approach because they have been tested and modified as needed. Some cases are the exception to the rule, but those cases shouldn't define the rules for all cases.

[midtennchip]

Sounds like a VERY subjective situation hinging on one's thoughts towards what's reasonable.

Yes, as are most issues in court. Reasonableness is a very common term in most areas of the law.