Business Liability & Gun Laws – Customer Safety Not Always First?

Business Liability & Gun Laws – Customer Safety Not Always First?
January 10, 2013 jamesludlow

Like many who have watched the news over the past weeks, I was horrified by the school shootings in Newtown, Connecticut.  Tragedies like this force everyone to consider personal safety and what steps should be taken to prevent gun violence.   In fact, during a recent Christmas dinner with friends and family at my home, there was a lively discussion between a friend who is a certified NRA instructor in gun safety, and several college students who held somewhat of a different point of view.  Actually, it was a refreshing change from the usual discussion of sex, religion, and politics!

While the media is focused on whether gun ownership should be restricted, there is different gun law in Indiana that I’m more worried about.  To illustrate my concern, imagine going to a liquor store and waiting in line to buy a six-pack of beer for an upcoming basketball game on television.  You then notice that someone walks up to the check-out clerk, pulls out a gun, and demands the contents of the cash register.   In response, however, the clerk pulls out a pistol and there is an exchange of gunfire.  Because the clerk is more skilled in operating a cash register than with using a gun, unfortunately he accidently shoots a customer while the robber escapes.

Is the liquor store legally responsible for the injured customer?  Not in Indiana.  Rather, if the liquor store employee had a good faith belief that they were at risk of “great bodily harm”, as is usually the case with every armed robbery, the employee has the right to attempt to stop the robbery by using a gun, even if this creates an increased risk of harm for customers.  The practical result is that if an innocent customer gets shot by mistake, the business has no legal responsibility.

This is in stark contrast with the recommendations of law enforcement agencies and security experts who advise that  in the event of a robbery the best procedure is for store employees to give the robbers the cash they are demanding and to offer no resistance. This is because studies have shown that in the vast majority of cases thieves will take whatever cash is immediately available and run out the door without hurting anyone.  For this reason, most businesses instruct their employees not to resist a robbery attempt.

This is a sensible approach, since the alternative is to place the decision of forcibly resisting an armed robbery in the hands of retail employees, managers, waitresses, or bartenders.  Good hard working people to be sure, but they usually have no training regarding how to use a gun, especially when innocent customers may be in the line of fire.  Most importantly, while property or cash is usually insured and can be replaced, people cannot.  Unfortunately, Indiana courts have overlooked this distinction.  To illustrate this point, I will summarize two cases that describe existing Indiana law.

The first case, Yingst v. Pratt (1966), involved a tavern where an armed robber was demanding the contents of a cash register.   Instead of handing over the contents of the register, the tavern owner tried to grab the robber’s gun.  The owner and robber then wrestled over the gun and eventually rolled onto a floor near a table where several customers were hiding.  The gun discharged and unfortunately one of the customers was shot and seriously wounded.  The robber was eventually subdued and arrested.

The wounded customer later sued the tavern owner, claiming that the owner was negligent for attempting to disarm the robber rather than simply giving him the small sum of cash that was in the cash register, especially since the tavern was full of customers.

After a trial, a jury found that the tavern owner was negligent and awarded compensation for his injuries.  However, the tavern owner appealed this verdict and argued that his actions were excused as an act of self-defense to protect his property and to stop a crime in progress.  The Indiana Court of Appeals agreed, throwing out the jury verdict and ruling that the tavern owner and his insurer owed no compensation to the injured customer.

In its decision, the Court of Appeals noted that there is a “great public interest in the prevention of crime” and therefore a victim of a crime is excused from acts of resistance that might otherwise create liability to an injured person.  The court also stated that a victim who is resisting a crime has no obligation to protect others around him.  In other words, the tavern owner had no legal obligation to consider the safety of his customers when he decided to resist the robbery.

A second and more recent case, Carbo vs. Lowe (1988), involved the attempted robbery of a liquor store.  In that case, two robbers who were wearing ski masks and had handguns entered a store.  Unfortunately, a city bus driver who was an innocent customer and wearing a public transportation uniform was also in the store.  Upon seeing the robbers, the clerk pulled out a .357 Magnum revolver.

When the robbers saw the clerk raise his gun, there was an exchange of gunfire.  While this shooting was taking place, the innocent customer dove over a counter to take cover.  Unfortunately, the clerk thought he was one of the robbers and shot him.  Meanwhile, the robbers ran from the store and were never apprehended.  However, the bus driver, who was married and had several children, later died.

The widow of the bus driver then filed a wrongful death lawsuit against the liquor store, claiming that the store’s employee was negligent in shooting her husband.   After a trial, the jury ruled that the liquor store employee was negligent and awarded the widow and her children a verdict of $500,000. The liquor store appealed, with the result that the Indiana Court of Appeals vacated the jury’s verdict and ruled that no compensation was owed to the bus driver’s family.

In making this ruling, the Court of Appeals stated that it was undisputed that the clerk was acting in self-defense to stop a robbery, and that therefore the employee and the store could not be held liable for the accidental shooting of the customer.  Rather, the Court stated that “the [clerk’s] actions were excused just as they would have been had he fired at one of the actual robbers and the bullet had struck [the innocent customer] by accident.”

While I am fully supportive of the right of business owners and their employees to defend themselves and their property, the shooting of an innocent customer should have some legal consequence if the employee’s acts were negligent.  Most businesses claim that nothing is more important than the safety of their customers and would never argue, at least in a public forum, that they should be excused from accidently killing an innocent customer.   As people can never be replaced, Indiana law should be changed to reflect this policy.  If you agree, call your state representative and tell them so!

If you would like to discuss this or any topic that I have mentioned in these blog articles, or if you or a loved one has been seriously injured or killed in any type of accident, call or e-mail James Ludlow to discuss your case. My firm can be reached toll-free at (877) 897-9466 or by filling out the simple form on the Contact Us page.