You Haven’t Heard the Truth About the “Landowners Protection Act”

Guest post by: Shanda M. Yates[1]

You have no doubt seen at least one article discussing the “Landowners Protection Act” which is pending before both the House and Senate.  But, if you aren’t a lawyer or one of the large corporate sponsors of the bill, have you paid attention?  Many supporters of the Act have gone out of their way to convince the public that these bills mean nothing to the average citizen; that your life will not be impacted.  Some have even gone so far as to grossly misstate the scope and reach of the proposed bill[2].  However, what you haven’t heard is the truth.

Contrary to what supporters of the Act have been circulating in the media this week, the proposed, overly broad legislation is not needed to protect “innocent property owners” against being sued anytime a crime occurs on their property[3].  Why? Because the current law handed down by the Mississippi appellate courts already does that.  Under the current law, claims against a business owner stemming from a third-party criminal assault or attack on the business owner’s property will only survive under very limited circumstances.  Such claims are only viable if (1) the property owner knew that the third-party was a violent or dangerous person yet failed to take reasonable action to remove the person from the property or (2) that the property was located in an “atmosphere of violence” and the property owner had knowledge of same yet failed to implement reasonable security measures.[4]  Current law also places limits on what is sufficient to constitute an “atmosphere of violence” and even which evidence may or may not be used to establish the existence of same.[5]

In a nut shell, and without any “legalese,” the law currently limits the scope of a property owner’s liability to instances where the property owner failed to act reasonably.  That’s right – to avoid civil liability under the existing law a property owner simply has to enact reasonable measures to protect its customers, patrons or tenants. [6]  Seems reasonable, right?

Nonetheless supporters and backers of the proposed Act want to remove all liability of a property owner in virtually every context in which a crime is committed on its property.  Property owners would no longer have a duty to “act reasonably” to protect its customers, patrons, and tenants from violent criminal activity that it knows is occurring on its property.

If you are still unsure as to whether the proposed Act is a really awful idea, consider a few simple examples that illustrate the overwhelming public safety concerns posed by the ill-conceived and poorly written legislation:

Example 1:          Under Section 2(3)[7] of this Act, an apartment complex owner who rents an apartment to a man who has previously raped multiple women would be immune from liability when that same man rapes a young girl in a stairwell of the apartment complex.  Even if the apartment complex knew of the man’s prior criminal history when it leased the apartment to the rapist.

Example 2:          Under Section2(1)(b)[8] of the proposed Act, the owner of a hotel could turn a blind eye to a child sex-trafficking ring that is being run out of the hotel.  Instead of imposing a duty of “reasonableness” on the hotel owner in this situation, the proposed legislation would provide immunity to the hotel owner unless one of the girls who was repeatedly raped on the property could prove that the hotel owner “actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of the third-party.”  It would no longer be enough that the hotel owner knew about what was occurring on the property and failed to reasonably react to same.  Under the proposed Act, the hotel owner would escape all civil liability unless it could be shown that the owner actively encouraged the young girls’ repeated rapes.

The bottom-line is that the proposed Act is contrary to the general public safety of Mississippi citizens.  The proposed Act is overly broad and creates gaping loopholes by which commercial property owners can avoid liability at the expense of Mississippians.

Please contact your state representatives, Tate Reeves, the Lieutenant Governor, Philip Gunn, the Speaker of the House, and Mark Baker, Chairman of the House Judiciary A Committee, and tell them that you do not support this law. 

 

[1] Shanda Yates is currently a partner at Burns & Associates, PLLC.  Since 2007 her practice has been limited almost exclusively to premises liability cases, such as those at issue in the Landowners Protection Act.  Yates’ practice has been equally divided between representing business owners/operators and persons injured on commercial property.  Yates has published articles and taught seminars relevant to maintaining safe businesses.  She is an AV-rated attorney, a current member of the Mississippi Association for Justice and is the past editor of the Mississippi Defense Lawyers Quarterly.

[2] “#MSLeg: ‘A gross misuse of your position.’ Meeting over controversial bill ends in shouting,” Clarion Ledger, February 5, 2016

[3] NPR with Mark Baker this morning

[4] See, e.g., Knox v. Kroger, 98 So. 3d 441 (Miss. 2012) (“where an alleged dangerous condition is the threat of an assault, the requisite cause to anticipate the assault may arise from (1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists on the premises.”)

[5] See, e.g., Knox v. Kroger, 98 So. 3d 441 (Miss. 2012) (holding that a plaintiff had failed to offer sufficient evidence of the existence of an “atmosphere of violence” on Kroger’s parking lot where plaintiff only offered evidence of three purse snatchings in the parking lot and failed to offer any evidence of prior violent attacks).

[6] See, e.g., Fenelon v. Jackson MetroCenter Mall, Ltd., 172 So. 3d 760 (Miss. Ct. App. 2012) (holding that “a landowner is not an insurer of the invitee’s safety, but does owe an invitee the duty to keep the premises reasonably safe” and “as a general principle, premises owners are not strictly liable for all injuries occurring on their properties as a result of criminal acts of third parties.”)

[7] Section 2(3) states “Civil liability may not be based on the prior violent nature of the third party whose acts or omissions proximately caused the claimed injury or damage.”

[8] Section 2(1)(b) states: “The conduct of the person who owns, leases, operates, maintains or manages the property actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party”

  • Roland Tembo

    Well, there goes any incentive for business owners to keep their premises reasonably safe. Attacked by a criminal at a property with a history of crime and owned by people who refuse to take any steps to address the crime? Too bad!

  • Macy Hanson

    I am sympathetic to the arguments that having to go the appellate courts for relief in cases with “bad judgments” (although I have never heard of any Defendant who got popped at trial admitting that the verdict was reasonable) is not a good remedy. But, what is the alternative? We just prohibit most, if not all, civil causes of action? If your only goal is eliminating “frivolous” lawsuits, then I guess a complete ban on civil trials would be effective.

    Aren’t most landlords getting the on the mandatory arbitration bandwagon, anyway? Now you have to go to arbitration with complete immunity for landlords in the event that the underlying claim involved any criminal activity?

    The insurance and corporate defense lawyers will end up putting all of us out of business. And, more importantly, it will lead to a shutting of the courthouse door for civil litigants. Forced arbitration, complete immunity for criminal acts (already a problem in MTCA cases), plea deals in criminal matters. My God, it is going to be tough getting anything to a jury.