Wednesday, February 6, 2019

Guest Column: You Haven't Heard the Truth About the "Landowners Protection Act."

Attorney Shanda Yates submitted this column. 

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 bill2. 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 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. 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.

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. 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)4 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)5 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.

43 comments:

Anonymous said...

Shame on you for publishing this plaintiff lawyer drivel. It is not a business owner’s responsibility to become law enforcement. This isn’t hypothetical. The Double Quick in Bellini lost a lawsuit for negligence when some hoodlum shot a patron exiting the store. The Humphrey Co jury decided the Double Quick should pay their fellow citizen’s family millions of dollars. The government (sheriff and judges) can’t be held liable for not enforcing the law. This plaintiff attorney can’t get her money otherwise. This bill is long overdue

Kingfish said...

I'm so sorry you're triggered by a differing opinion. Heaven forbid you should be exposed to someone who disagrees with you. Sorry you were forced to read it. Oh wait, you weren't.

Anonymous said...

The Double Quick case got reversed. As in, the law already makes these cases hard. As they should. But businesses should not get absolute immunity.

Slip And Fall - said...

9:40 - Where the hell is Bellini?

but is the article's author suggesting an apartment owner is responsible for vetting the criminal (and other) history of its lease-applicants? Next she'll suggest leasing agents have a duty to determine the citizenship status of brown people with Texas tags.

And how emotionally clever to suggest a 'young girl is raped in the stairwell'. The horror!

Anonymous said...


@10:06-

So when a business owner gets screwed by a Hinds County "plaintiff friendly" jury he still has a good chance of getting a fair trial on appeal after spending another few hundred thousand dollars and years of Hell clearing him/herself??

With the cost of legal defense, the property owner is screwed even if they "win" the case in the 1st trial.

Anonymous said...

Based on reading the explanation, I am absolutely in favor of the bill.

Anonymous said...

Question: What about schools/colleges/universities that have regular incidents of threats/violence on campus, but that go unreported, and there is a school shooting? How would a judge/jury even know about their foreknowledge of risk? This bill seems to provide another layer of cover for administrative deception to ultimately hold harmless any/all school related acts of mass violence.....somebody probably came up with this bright idea while they were talking about the School Safety Act.....all of them, slick as snot....and only care about governmental insiders.

Anonymous said...

Negligent security cases against property owners are allowed in every state in this country. This is not some crazy Mississippi thing. This proposed bill would be a crazy Mississippi thing.

Anonymous said...

Here’s what the Jackpot Justice crowd REALLY hates about this bill: Joint and several liability. Some third party comes in your place and shoots the place up? Well, fault would be able to be assigned to the shooter and not so much on the property owner who has insurance and deep pockets when ther property owner did nothing wrong other than own the property. THAT’s what they are upset about. This damages the time honored tradition of roping someone into a suit just because they can pay.

Anonymous said...

7:43 - As opposed to roping someone into a suit who can NOT pay? You don't sue a turnip when seeking blood.

Anonymous said...

If you have ever patronized the Double Quick in Belzoni, you quickly realize you are a fish out of water and they need good security, or to tear it down. Place is like a breeding ground for hood rats.

10:21, I rent property and do a thorough background check and keep the results in the event something happens I can say I did my due diligence in checking my tenants. I would be wise for others to do the same. I have a duty to my neighboring property owners to insure my business decision doesn't negatively affect their lives.

Anonymous said...

Are we having a problem with sex rings being run from motels? Is that really a good example to leave this broken system in place? The playing field on these cases, which are largely unique to Hinds County, is not even close to even. And the fact that a business owner can’t even ask a jury to find the assailant at fault is beyond absurd. Makes perfect sense, right? A dude mugs someone and the only at fault party can be the landowner for not having armed security.

Anonymous said...

7:43 - clearly you aren't familiar with Miss. Code Ann. 85-5-7. Fault can ALREADY be assigned to anybody the jury feels responsible, named as a defendant or not. No, this bill wants to create ABSOLUTE IMMUNITY, plain and simple. Look at the sponsors and lobbiyists and you will see why.

Anonymous said...

7:53 -- Here's a novel idea -- sue the person who is at fault, and recognize that sometimes the person who is at fault doesn't have any money and it isn't worth suing them. Just because someone has been wronged doesn't mean they are entitled to the money of someone who isn't at fault. "I want money and I don't care who has to pay it." -- Really? Well, if you are trial lawyer, I guess I'm not shocked.

Anonymous said...

The ONLY people making noise about this bill are Trial Lawyers who have enjoyed verdicts that result in insurance payments. When a criminal commits a crime, the owner of the property should not have to pay for the criminal's action by increased premiums. They can say this has something to do with business owner's cultivation or knowledge of an environment but that is a half truth at best. A property insurance company was forced to settle a suit for someone who was shot while walking down the road not even on the property that was insured. Tell me that is fair.

This b.s. is what is driving businesses and private medical clinics out of Jackson.

Anonymous said...

Shanda is a VERY smart lawyer who has represented people on both sides of this issue. And she is also right that this bill is unnecessary. The law already protects landowners from frivolous claims, because liability will only attach - and stick at the appellate level - if the owner/operator was really doing nothing to protect his patrons. And give her credit for being straightforward. While much of the Plaintiff's bar is using transparently bullshit arguments about making the community less safe, she is rightly focusing on the lack of redress for truly compensable claims if the bill passes. The organized Plaintiff's bar made the stupid mistake of trying to convince lawmakers and law enforcement that the bill would somehow encourage criminal activity. They lose credibility by making those spurious claims, and now the sheriffs are rightfully pissed at them. The sky will not fall if this bill passes, but it is unnecessary.

Anonymous said...

Wrong 8:52. As the law stands now, fault can’t be allocated to the assailant in these cases because his acts are intentional. That doesn’t fall within “fault “ under the current version of 85-5-7. I repeat: This is nonsensical and it’s beyond time to fix the mess.

Anonymous said...

I can't help but wonder how this bill would apply to this situation? If I, as a concealed firearm permit holder, leave my weapon in my vehicle because your store has a sign on the front door telling me firearms are not welcome inside but, while inside, I'm robbed, assaulted or whatever, will the store be responsible for their failure to protect me? After all, they were the ones that put me in the situation where I could not defend myself.

Anonymous said...

Don't blame property owners and the legislature for introducing this bill. Blame your fellow plaintiffs' lawyers for making it necessary in the first place.

Anonymous said...

Defense lawyer take on it:

1. Requiring that the conduct of the third party be proven to have occurred on the subject property is proper. This was driven by Hinds County cases where judges allowed cases to go forward where the injured party was injured at another location.
2. The "impelled" section essentially states that the operator of the premises invites the bad conduct. This language needs to be softened to a negligence standard. The existing language in the bill for this section is problematic.
3. A more specific atmosphere of violence definition is needed. Case law does not adequately define it, and some judges will allow the atmosphere of violence radius consideration to extend away from the defendant's location up to an unreasonable distance. Think about how much Jackson changes in quarter mile increments. However, making the standard "on the property" is also unreasonable. I think a better definition is needed, but this is not it. A three year look back period seems excessive, as a lot can change on a property pretty quickly (think access gates, renovations, etc.). I think two years is sufficient. Requiring a felony conviction is a joke. So, if someone is raped and killed on the property and the culprit is not caught or found guilty, then that is excluded? That is silly. Naming the predicate violent crimes and the number of instances in the required period (like a threshold number that creates a rebuttable presumption) that constitute an atmosphere of violence would be start. At least it creates a more predictable standard.
4. I don't know how an owner would know about the prior violent "nature" of a third party. This should be changed to actual knowledge (maybe a prior act of the third party on the property, etc. and the person was not banned or evicted, or disclosed conviction on rental application with no remedial action taken?). However, if you have a known problematic, violent tenant and you do nothing about it, that should be a basis for liability.
5. If this bill is tweaked, I think it could be helpful. As worded, it's a mess.

Anonymous said...

So will premiums decrease if this bill is passed since the insurance companies won't have to pay out claims? I'm waiting........

Anonymous said...

Can't wait for some of these out of state slumlords like Heritage Properties to start investing in the local community with all of this saved money from insurance premiums. Because that will definitely happen, right?

Anonymous said...

This will totally decrease insurance premiums, just like previous tort reform reduced insurance premiums for doctors. Oh wait, that didn't happen.

Anonymous said...

10:29 and 10:32 got jokes

Anonymous said...

If you are a conservative who believes in smaller government, and in government at the lowest level possible, you have to be against this bill. Juries are the most democratic form of "lawmaking" in this country. I, for one, trust my fellow citizens to have common sense and to adjudge what is "reasonable under the circumstances." Do some juries abuse that trust? Sure. That's what appellate courts exist for. What this bill does is create a top-down rule saying that juries cannot be trusted to resolve common sense disputes among their neighbors.

Anonymous said...

9:14, you and Shanda feel that there is no damage to the defendant because of the appealate courts. Nice lawyerly approach, that ignores the cost of defending at the circuit level, and the cost of defending in the Appeals Courts. For those of us in small businesses, that's not a reasonable response - but why should we not expect a reasonable response from those who profit from the process (yes, even those in the defense attorney profession benefit and profit from the process. Especially when it has to be carried to an appeal.)


Sue the person that was responsible for the wrong (if there was one). Just because there are no deep pockets available, you have no right to go looking for someone who pays insurance premiums to protect us from money grubbers like yourself.

Anonymous said...

12:21, yes you should be able to trust juries. And Judges, for that matter. But our history in MS has proven that to be an erroneous trust - judges being bought; lawyers giving speeches telling how the lawsuit was won prior to their being filed based on proper "contributions".

Love your response - that these things can be resolved at in the Appeals Courts. As has been said before, those Appeals Court cases don't come free - and are not immediate. No one other than defense lawyers look forward to going to COA or MSSC.

Anonymous said...

Life must be pretty good if this is the topic of a bill...…….holy shit. what a waste of time.

Anonymous said...

the insurance industry and their lobbyists along with the republican party political hackers all say passing this bill will reduce insurance premiums . thats the same song and dance they promised back in the tort reform days of 2002-03. tell me, have your insurance premiums decreased overt the past 17 years or do they cost more than ever and are steadily climbing?

Anonymous said...

8:52, with all due respect, clearly YOU are the one not familiar with Miss. Code Ann. 85-5-7 as fault cannot be apportioned to the person committing the crime under the statute as presently written. While I don't agree with all of the new proposals in Senate Bill 2901, I do believe that part of the statute does need to change. While I understand and agree that under certain circumstances a property owner may bear some fault for a crime that occurs on his/her/its property, it is grossly unfair for the property owner to bear ALL the blame and liability for a crime on its property and the person actually committing the crime to have no liability and be apportioned no fault. Surely you don't believe that the actual murderer or rapist should have no blame or liability apportioned to them.

Anonymous said...

10:32 Thought Heritage Properties was based right her in the Jackson area, no?

Anonymous said...

My neighbor's pool doesnt have a fence. When a 4-year old wanders over and falls in, no liability.

Good result?

Anonymous said...

8:36 - You're example is lacking one thing. Where's the third party?

Anonymous said...

When an long-standing auto body shop on west Northside Drive gets sued because a newly-opened juke joint's overflow crowd decides to park there on a Saturday nite and a shootout happens in the body shop parking lot 2 a.m. Sunday, should the body shop be sued? If it's the only insured party in this scenario, it will be.

Anonymous said...

The bill is overbroad and provides no incentive for the property owner to protect patrons. This is just another bill pushed by monied special interest groups that If passed into law, will pass on costs that should be borne by the business owner (in limited circumstances). Insurers, realtors and property owners are not high on the list of victims last time I checked the social order.

When the people decide to take back government from the special interest groups and their minions this corporate BS will die in committee as it did in the past. In the meantime, strap your sidearm to your pistol belt and enjoy the show. I know I will protect mine so best of luck to you and yours without any security at The District or the I-55 corridor. And without security to act as a deterrent, criminals will expand their operations to Madison and Flowood.

Anonymous said...

This is simply a classic case illustrating the extent our legislative and executive officials go when protecting the financial interests of their real masters. Those masters are not the common people. Everyone, including the scumbag ambulance chasing bar, knows that premises liability could use tweaking to ensure that abuse does not occur in courtrooms around our state. But they also know that the public should be protected from walking into dangerous traps when they think they are merely patronizing a legal business. The honest statesman concerned about his "constituents" would seek the balance between the two and make the law as equitable as possible. Sadly, in Mississippi, the governor, l.gov., and much of the legislature, see their 'constituents" are an entirely different group to be protected, and the common people ain't that group. The law of premises liability should be tweaked and reformed when needed to protect the common man not burned to protect those who can afford the lobby. This legislation is another embarrassment to the State of Mississippi, if that is possible!

Anonymous said...

8:36, respectfully, you're wrong in that example. This proposed bill has nothing to do with pool cases. This bill only applies to cases involving criminal acts performed by 3rd parties on another's property. In your example, the homeowner would still have liability.

Anonymous said...

still waiting for an answer to the question posed by feb 7@ 4:36..................9;02am has a big mouth , maybe he can have a go at it

Anonymous said...

I'm not 902, but I can say that my business's insurance has seen a decrease since tort reform. Can I prove a cause and effect? Of course not. But the fact that I'm not likely to face a ridiculous w/c case filed just as a fishing trip for info to create a mass tort case has let my w/c go back to where it belongs. And my bro in law's med Mal has decreased as well.

Anonymous said...

No security guard, no adequate lighting, prior criminal activity, panhandlers and vagrants allowed to mill around...leave. Take your business elsewhere. Businesses "invite" you to their premises seeking YOUR money so they can make a profit. Tax deductible business expenses include liability insurance policies and a security guard IF criminal activity has occurred on the premises, if the owner knew or should have known harm to customers they invited was reasonably foreseeable. If business owners don't give a damn about you then spend your money elsewhere. A few lawsuits and Kroger I-55 now has Hinds County deputies to help make sure customers are safe and they get to supplement their inadequate salaries. Trial lawyers became job creators! This is bad? and Shop online. Failed trial lawyer Baker who zeroed every civil liablity trial headed to the government teat. He said BP shouldn't have had to pay Mississippi a penny for the oil spill.Maybe the State should send the money recovered back. Uncompensated premises liability victims can then just go get on the government teat (SS Disability, Medicaid), ie, your tax dollars, instead of recovering from the responsible party's insurance carrier. On the teat like pandering Baker.

Anonymous said...

Shanda: Why are you posting in this third-person format at 9:14? Belly up and own your posts. Or do you think you gain credibility by posting "Shanda is right..."?

Anonymous said...

5:51 PM: You accuse the author of the article of posting anonymously in the 3rd person with zero evidence and wholly fail to challenge substance of the article while posting anonymously. If you knew Shanda you would know that she isn't posting anonymously. She put her name on an article that informs the public re terrible legislation. Most people, including all insurance defense lawyers would speak in opposition to the bill but cannot because they're a slave to some corporate interest group. Any objective observer agrees that the legislation is unnecessary yet also agrees that some protections are necessary for small business. So is this good or bad legislation? Do these poor corporations really need protection from Ashely Ogden's BS third party assault cases or are you simply a lazy defense lawyer that didn't do his homework and fell prey to one of his specious claims that got past summary judgment?

Anonymous said...

The liability relief in this proposed bill does not even compare to the liability protection our State government gives itself. The Mississippi Tort Claims Act blocks all liability not arising out of an injury caused by a dangerous condition on government property unless: (A) a government employee caused the condition, or (B) the governmental entity had (i) notice of the dangerous condition and (ii) adequate opportunity to fix it or warn against it. But even then there is no liability if (iii) the dangerous condition was obvious to someone being careful. MCA Sect. 11-46-9(v)

By contrast, a private business can be held 100% liable for damages caused by someone else if that business “should have known” there was a “dangerous” condition on its property. The private business doesn’t get the benefit of notice, an adequate time to fix or warn of the condition, or the right to claim the dangerous condition was obvious.

Additionally, the Mississippi Tort Claim Act gives only government defendants a very short one-year statute of limitations and limits plaintiffs to a trial by a judge (not a jury of one's peers) who, by the way, is a government employee.

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Trollfest '09

Trollfest '07 was such a success that Jackson Jambalaya will once again host Trollfest '09. Catch this great event which will leave NE Jackson & Fondren in flames. Othor Cain and his band, The Black Power Structure headline the night while Sonjay Poontang returns for an encore performance. Former Frank Melton bodyguard Marcus Wright makes his premier appearance at Trollfest singing "I'm a Sweet Transvestite" from "The Rocky Horror Picture Show." Kamikaze will sing his new hit, “How I sold out to da Man.” Robbie Bell again performs: “Mamas, don't let your babies grow up to be Bells” and “Any friend of Ed Peters is a friend of mine”. After the show, Ms. Bell will autograph copies of her mug shot photos. In a salute to “Dancing with the Stars”, Ms. Bell and Hinds County District Attorney Robert Smith will dance the Wango Tango.

Wrestling returns, except this time it will be a Battle Royal with Othor Cain, Ben Allen, Kim Wade, Haley Fisackerly, Alan Lange, and “Big Cat” Donna Ladd all in the ring at the same time. The Battle Royal will be in a steel cage, no time limit, no referee, and the losers must leave town. Marshand Crisler will be the honorary referee (as it gives him a title without actually having to do anything).


Meet KIM Waaaaaade at the Entergy Tent. For five pesos, Kim will sell you a chance to win a deed to a crack house on Ridgeway Street stuffed in the Howard Industries pinata. Don't worry if the pinata is beaten to shreds, as Mr. Wade has Jose, Emmanuel, and Carlos, all illegal immigrants, available as replacements for the it. Upon leaving the Entergy tent, fig leaves will be available in case Entergy literally takes everything you have as part of its Trollfest ticket price adjustment charge.

Donna Ladd of The Jackson Free Press will give several classes on learning how to write. Smearing, writing without factchecking, and reporting only one side of a story will be covered. A donation to pay their taxes will be accepted and she will be signing copies of their former federal tax liens. Ms. Ladd will give a dramatic reading of her two award-winning essays (They received The Jackson Free Press "Best Of" awards.) "Why everything is always about me" and "Why I cover murders better than anyone else in Jackson".

In the spirit of helping those who are less fortunate, Trollfest '09 adopts a cause for which a portion of the proceeds and donations will be donated: Keeping Frank Melton in his home. The “Keep Frank Melton From Being Homeless” booth will sell chances for five dollars to pin the tail on the jackass. John Reeves has graciously volunteered to be the jackass for this honorable excursion into saving Frank's ass. What's an ass between two friends after all? If Mr. Reeves is unable to um, perform, Speaker Billy McCoy has also volunteered as when the word “jackass” was mentioned he immediately ran as fast as he could to sign up.


In order to help clean up the legal profession, Adam Kilgore of the Mississippi Bar will be giving away free, round-trip plane tickets to the North Pole where they keep their bar complaint forms (which are NOT available online). If you don't want to go to the North Pole, you can enjoy Brant Brantley's (of the Mississippi Commission on Judicial Performance) free guided tours of the quicksand field over by High Street where all complaints against judges disappear. If for some reason you are unable to control yourself, never fear; Judge Houston Patton will operate his jail where no lawyers are needed or allowed as you just sit there for minutes... hours.... months...years until he decides he is tired of you sitting in his jail. Do not think Judge Patton is a bad judge however as he plans to serve free Mad Dog 20/20 to all inmates.

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Jackson Jambalaya is the home of Trollfest '07. Catch this great event which promises to leave NE Jackson & Fondren in flames. Sonjay Poontang and his band headline the night with a special steel cage, no time limit "loser must leave town" bout between Alan Lange and "Big Cat"Donna Ladd following afterwards. Kamikaze will perform his new song F*** Bush, he's still a _____. Did I mention there was no referee? Dr. Heddy Matthias and Lori Gregory will face off in the undercard dueling with dangling participles and other um, devices. Robbie Bell will perform Her two latest songs: My Best Friends are in the Media and Mama's, Don't Let Your Babies Grow up to be George Bell. Sid Salter of The Clarion-Ledger will host "Pin the Tail on the Trial Lawyer", sponsored by State Farm.

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If you get tired come relax at the Fox News Tent. To gain admittance to the VIP section, bring either your Republican Party ID card or a Rebel Flag. Bringing both will entitle you to free drinks.Get your tickets now. Since this is an event for trolls, no ID is required, just bring the hate. Bring the family, Trollfest '07 is for EVERYONE!!!

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