Businesses’ liability at issue when considering whether to allow guns on premises

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Thursday, November 3, 2011
— Wisconsin’s new concealed carry law may be a simple concept, yet it’s anything but for businesses trying to decide whether they will permit or prohibit the concealed carrying of weapons on or in their properties.

Permit it, and the business is granted immunity if someone is injured or killed.

Put up signs and prohibit it, and the business loses that immunity.

Either way, there are a variety of liability issues that must be considered.

“It’s really a business decision as much as anything,” said Steve Werner, an attorney with the Janesville office of Murphy Desmond who represents clients nationally in all aspects of their business operations.

“There are many legal implications for customers, employees and guests of the business.”

Werner made a presentation on the concealed carry law Wednesday at Forward Janesville.

Representatives of about 25 area businesses gathered, and most had more questions than answers. While several said their companies planned to prohibit weapons, a handful of others said they would allow them. Many others said they hadn’t reached a decision.

Werner said the new law carries the presumption that properly licensed individuals can carry concealed weapons with certain site-specific exceptions.

Businesses, he said, must decide whether to permit or prohibit customers and employees from carrying weapons.

Werner offered his perspectives Wednesday for educational purposes, not legal advice.

He said a solid strategy is for a business to start with the idea that it will permit concealed carry and therefore be immune from its decision.

“Then convince yourself why you should change that based on specific business decisions,” he said. “Immunity is at least something; it’s a starting point.”

From that point on, things can become murky, he said, noting that experts are uncertain where the scope of immunity ends and legal liability begins.

“If you’re doing something negligent, you may be liable,” he said. “There are really no clear-cut answers.”

Pressed for examples of negligence, Werner suggested a business that permits concealed carry. It is aware of a particularly difficult customer who shows up with a concealed weapon and ultimately injures someone.

Is the business liable because it should have taken steps not to upset the customer?

On the flip side, he said, consider a business that prohibits weapons and doesn’t have the immunity offered by the law.

“Say you’re a bank that’s been robbed several times and someone comes in and starts shooting,” Werner said. “Are you liable because you were aware of the potential for another robbery but didn’t allow people to protect themselves.

“Neither case is necessarily negligent, but we just don’t know. Ultimately, the courts will decide on a case-by-case basis.”

Businesses must balance their concealed carry decision with myriad employment policy considerations. They include a responsibility to provide a safe workplace, whether weapons will be restricted or prohibited, how weapons are defined and what the rules are for reporting—or not reporting—perceived violations.

From a practical perspective, Werner said businesses should ask themselves whether a prohibition would prevent injury or death and whether it will boost employee and customer safety and comfort.

“If you put up a sign that says ‘No Weapons,’ and someone is really hell-bent on injuring or killing someone … is a policy going to stop them?”

Last updated: 6:59 pm Thursday, December 13, 2012

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