Mckown v. Simon Prop. Group Inc, CASE NO. C08-5754BHS
| Decision Date | 07 January 2011 |
| Docket Number | CASE NO. C08-5754BHS |
| Court | U.S. District Court — Western District of Washington |
| Parties | BRENDAN MCKOWN, Plaintiff, v. SIMON PROPERTY GROUP, INC., d/b/a TACOMA MALL, Defendant. |
This matter comes before the Court on Defendant Simon Property Group, Inc.'s ("Simon") motion for summary judgment (Dkt. 75).1 The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants in part and denies in part Simon's motion for the reasons stated herein.
On November 12, 2008, Plaintiff Brendan McKown ("McKown") filed the complaint in this action in state court against Simon and IPC. Dkt. 1 at 4-12. On December 17, 2008, Simon removed the above-captioned case to this Court. Dkt. 1 at 13. In his complaint, McKown alleges that Simon: (1) failed to protect tenants and business invitees from foreseeable criminal conduct; (2) negligently rendered security measures and services; (3) negligently performed an undertaken duty; (4) negligently hired and/or failed to employ security personnel; and (5) breached an express and/or implied contract. Dkt. 1 at 7-10.
On November 10, 2010, Simon filed a motion for summary judgment seeking dismissal of McKown's claims asserting that the criminal acts involved were unforeseeable as a matter of law and that Simon's conduct was not the proximate cause of McKown's injuries. Dkt. 75. On November 29, 2010, McKown responded (Dkt. 81) and on December 3, 2010, Simon replied (Dkt. 82).
On November 20, 2005, Dominick S. Maldonado ("Maldonado") walked into the Tacoma Mall wearing a trench coat, under which he was concealing an MAK-90 rifle and an Intertec Tec-9 pistol, and carrying a guitar case containing ammunition. Dkt. 81-1 at 6, 10. Prior to entering the mall, Maldonado made a phone call to 911 informing the operator that he was carrying two weapons and that he was going to begin shooting. Id. at 6. The 911 operator then asked Maldonado where he was located and he answered, "follow the screams." Id. The 911 operator asked him the same question several more times to which he gave the same answer. The 911 operator then asked Maldonado for his name and he hung up the phone. Id.
After entering the mall, Maldonado stopped by a soda machine to load his rifle (Dkt. 81-1 at 12), passed by a T-Mobile kiosk multiple times and then began shooting. (Dkt. 75-1 at 69-74, 85-88). Over a period of approximately eight minutes, Maldonado shot seven people. Dkt. 75-1 at 54-57, 107. The last person Maldonado shot was McKown. Id. at 107. Next, Maldonado entered a Sam Goody store, took four peoplehostage, again called 911 and demanded to speak to a police negotiator. Id. at 54-57, 63. Maldonado held the hostages in the Sam Goody store for several hours and was eventually taken into police custody. Dkts. 75-1 at 110, 114 & 81-1 at 10.
On the day the shooting occurred, McKown was working as an assistant manager at Excalibur Cutlery, a store located inside the Tacoma Mall. Dkt. 75-1 at 99-100. At approximately noon, McKown left Excalibur to take the previous day's deposits to a bank deposit box located at the opposite end of the mall. Id. at 101-02. On his way to the deposit box, McKown stopped inside the Kits Camera store to visit some friends and while exiting the store heard sounds that he immediately recognized as gunshots. Id. at 102-05. After hearing the gunshots, McKown drew the handgun he was carrying in his waistband. Id. at 105. After several minutes of not hearing any additional gunshots, McKown put the handgun back in his waistband and continued standing near the entrance to Kits Camera. Dkt. 81-1 at 65. Maldonado then approached the Kits Cameras store and shot McKown several times. Dkts. 75-1 at 107 & 81-1 at 66.
Simon is the owner of the Tacoma Mall, a 1.3-million-square-foot shopping center located in Tacoma, Washington. IPC is a security company who was hired by Simon to provide uniformed, unarmed security personnel at the Tacoma Mall. At the time of the shooting, the Tacoma Mall had an intercom system that IPC security guards were not trained to use, was somewhat inaudible, and was inaccessible to the security guards on the weekends. Dkt. 81-1 at 20-21. At the time of the shooting, the Tacoma Mall did not have security cameras or a surveillance system, with the exception of IPC's unarmed security guards. See Dkts. 81-1 at 55-56, 98 & 84 at 136. IPC's policy in an emergency was to contact the Tacoma Police Department using a radio in IPC's office that was provided to the security guards for the purpose of contacting the police. Dkt. 81-1 at 45.
Simon is unaware of any incident, prior to November 20, 2005, in which someone was shot at the Tacoma Mall. Dkt. 75-1 at 128-29. Prior to November 20, 2005, Simon had never had any contact with Maldonado (id.) and Maldonado stated in a deposition that he rarely went to the Tacoma Mall (id. at 132-33). At the time of the shooting, there were four IPC security guards on duty at the mall. Dkt. 84 at 136. A mall patron knocked on the door of the IPC office and informed the security guard in the office that a shooting was taking place. Id. at 137-38. The IPC security guard then radioed the local police department to inform the dispatcher of the shooting. Id. at 138. The parties dispute the amount of time that elapsed between the start of the shooting and the IPC security guard reporting the shooting to the Tacoma Police Department.
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial-e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 ( Anderson, supra). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).
Simon seeks summary judgment on McKown's contract claim under Simon's contract with IPC for IPC to provide security services at the Tacoma Mall. Dkt. 75 at 2, fn. 1. According to Simon, the only basis for McKown to bring such a contract claim would be based on a theory that McKown is a third-party beneficiary of Simon's contract with IPC. Id. In his opposition to Simon's motion for summary judgment, McKown does not respond to Simon's motion regarding the contract cause of action. See Dkt. 81.
"The creation of a third party beneficiary contract requires that the parties intend that the promisor assume a direct obligation to the intended beneficiary at the time they enter into the contract." Burke & Thomas, Inc. v. Int'l Org. of Masters, 92 Wn.2d 762, 767 (1979). In his response to IPC's motion, McKown cites Lonsdale v. Chesterfield, 99 Wn.2d 353, 361 (1983), for the proposition that "[i]f the terms of the contract necessarily require the promisor to confer a benefit upon a third person, then the contract, and hence the parties thereto, contemplate a benefit to the third person." Dkt. 78 at 9-10 (quoting Lonsdale, 99 Wn. 2d at 361). However, in Lonsdale, the Washington Supreme Court specifically stated that "[t]he intent which is a prerequisite of the [third-party] beneficiary's right to sue is not a desire or purpose to confer a particular benefit upon him, nor a desire to advance his interests, but an intent that the promisor shall assume a direct obligation to him." Lonsdale, 99 Wn. 2d at 361 ().
Washington courts follow the objective manifestation theory of contracts in which the mutual assent of the parties is determined from their outward manifestations and "the unexpressed, subjective intentions of the parties are irrelevant." Olson v. The Bon, Inc., 144 Wn. App. 627, 633-34. Here, as the Court stated in its previous order granting summary judgment in favor of IPC based on the same contract at issue, the only outward manifestation is the...
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