by Skyler M. Howton
Texas law is relatively settled regarding a business owner’s premises liability for the criminal acts of a third party. Generally, a property owner owes invitees a “duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known.” Del Lago Ptnrs. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010). But, the “premises owner has no duty to protect invitees from criminal acts by third parties” unless the one who controls the premises “knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee.” Id.; see also Timberwalk Apts. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). To determine reasonableness and foreseeability, a court will look to the proximity, regularity, frequency, similarity, and publicity of previous criminal conduct. Timberwalk, 972 S.W.2d at 757. If the court concludes that the act is foreseeable, it may find the business owner owed a duty of ordinary care to its invitees to protect them from the third-party crime. Id.
Texas law has changed recently regarding a private individual’s ability to carry openly a firearm, and business owners have indicated concern over whether the new law will affect premises liability law in Texas.
Fortunately for business owners, when applying the settled law to this new factual scenario, premises liability is not likely increased by the business owner’s election to allow or ban the open carry of firearms. The business owner will be legally compliant in its election to allow weapons and acting reasonably should the business owner ban weapons.
A person may obtain a license to openly carry a hand gun pursuant to Texas Government Code, Subchapter H, Chapter 411. Without answering the controversial questions related to open carry, Texas law does authorize licensed individuals to conceal or openly carry weapons onto businesses. And, it is unreasonable to argue that a business owner creates a duty to protect invitees when the business owner complies with such law.
A business owner may choose to prevent concealed or open carry on its property by following the notice and signage procedures under Texas Penal Code Sections 30.06 and 30.07. Tex. Penal Code Ann. §§ 30.06, 30.07 (West 2016).
When analyzing only Section 30.06 (before Section 30.07 was enacted), the Texas Attorney General concluded that banning the concealed carry of weapons does not make a business owner “liable for injuries to a patron inflicted by a license holder carrying a concealed handgun” because “a trier of fact would likely conclude that the business owner or operator had taken reasonable steps to prevent the injury by posting the sign prohibiting the carrying of concealed weapons to the premises.” Tex. Att’y Gen. Op. No. DM-363 (1995) at 12.
Though an older opinion and not directly applied to the new law, the same reasoning likely applies for business owners banning open carry on their premises today. If the business owner secures the property and bans openly-carried firearms, it is likely a court will find the business owner not liable for the injuries to its customers inflicted by third persons.
The court will also consider the reasonable measures taken to prevent crime, and the reasoning behind the 1995 Attorney General Opinion gives the business owner incentive to post the large signs prohibiting the open carry of weapons as described in Tex. Penal Code Ann. § 30.07(c)(3)(B). Posting signs could be seen as a “reasonable step” to prevent the injury of patrons, and the Attorney General seems to suggest that notice may be a factor in considering whether a business owner has met the duty of ordinary care to protect its patrons.
Texas law has enlarged how a license holder may carry, but Texas law has not enlarged where a license holder may carry. Thus, it appears Texas law has also not enlarged the liability on business owners when a third-party commits criminal conduct on the premises against invitees.
Skyler M. Howton is an associate at K&L Gates, LLP and can be reached at firstname.lastname@example.org. She thanks her firm’s summer associate, Haley King currently enrolled at SMU Dedman School of Law, with her assistance in preparing this article.