Mckown v. Simon Prop. Group Inc, CASE NO. C08-5754BHS
| Decision Date | 22 March 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 Proerty Group, Inc.'s ("Simon") motion for reconsideration. Dkt. 94. The Court has considered the pleadings filed in support of and opposition to the motion and the remainder of the file and hereby grants in part Simon's motion to the extent that the parties may file additional briefs as discussed below for the reasons stated herein.
Plaintiff Brendan McKown ("McKown") filed the instant action in state court on November 12, 2008. Dkt. 1 at 4-12. On November 10, 2010, Simon filed its motion for summary judgment. Dkt. 74. On January 7, 2011, the Court granted in part and denied in part Simon's motion. Dkt. 86. On January 20, 2011, Simon filed its motion for reconsideration of the Court's order. Dkt. 94. On January 27, 2011, the Court requested a response from McKown to Simon's motion for reconsideration. Dkt. 97. On February7, 2011, McKown filed a response to the motion (Dkt. 98) and on February 10, 2011, Simon replied (Dkt. 99).
For a more complete factual and procedural background, see the Court's orders on Defendant IPC International Corporation's ("IPC") and Simon's motions for summary judgment. Dkts. 83 & 86.
Motions for reconsideration are governed by Local Rule CR 7(h), which provides as follows:
Motions for reconsideration are disfavored. The court will ordinarily deny such motions in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence.
Simon's motion for reconsideration requests that the Court reconsider its order granting in part and denying in part its motion for summary judgment. Dkt. 94. Specifically, Simon requests that the Court reconsider its conclusion that a reasonable jury could find that McKown's injuries were the result of reasonably foreseeable criminal conduct. Id. The Court has considered McKown's motion for reconsideration and the remainder of the file and concludes that McKown has shown manifest error in the Court's order on summary judgment regarding the foreseeability of McKown's injuries as discussed below.
Foreseeability limits the scope of the duty owed to invitees by the owner or occupier of land. See Christen, 113 Wn. 2d at 492. "[T]o establish foreseeability 'the harm sustained must be reasonably perceived as being within the general field of danger covered by the specific duty owed by the defendant.'" Id. (quoting Maltman v. Sauer, 84 Wn. 2d 975, 981 (1975)). This limitation ensures that there is some end to the legal consequences of a negligent act. Id. "Forseeability is normally an issue for the jury, butit will be decided as a matter of law where reasonable minds cannot differ." Christen, 113 Wn. 2d at 492 (citing Rikstad v. Holmberg, 76 Wn. 2d 265, 268-69 (1969)).
Washington courts have held that "an intervening act [including one that is criminal in nature,] is not foreseeable if it is 'so highly extraordinary or improbable as to be wholly beyond the range of expectability.'" Christen, 113 Wn.2d at 492 (quoting McLeod v. Grant Cnty. Sch. Dist. 128, 42 Wn.2d 316, 323 (1953)). The Washington Supreme Court's further explanation of this principle in Rikstad is instructive:
It is not, however, the unusualness of the act that resulted in injury to plaintiff that is the test of foreseeability, but whether the result of the act is within the ambit of the hazards covered by the duty imposed upon defendant.
* * *
The courts are perfectly accurate in declaring that there can be no liability where the harm is unforeseeable, if 'foreseeability' refers to the general type of harm sustained. It is literally true that there is no liability for damage that falls entirely outside the general threat of harm which made the conduct of the actor negligent. The sequence of events, of course, need not be foreseeable. The manner in which the risk culminates in harm may be unusual, improbable and highly unexpectable, from the point of view of the actor at the time of his conduct. And yet, if the harm suffered falls within the general danger area, there may be liability, provided other requisites of legal causation are present.
76 Wn. 2d at 269 (quoting Harper, Law of Torts, 14, § 7; 2 Restatement, Torts, 1173, § 435).
Here, Simon concedes, for purposes of its motion for summary judgment, that it owed a duty to McKown, as one of its business invitees, to protect him from reasonably foreseeable criminal conduct. See Dkt. 75 at 10, fn. 6; see also Nivens, 133 Wn. 2d at 202-03. However, Simon argues that Maldonado's actions in shooting at strangers in the Tacoma Mall were not reasonably foreseeable as a matter of law and therefore Simon had no duty to prevent Maldonado from shooting McKown. Dkt. 75 at 9-14. McKown maintains that a reasonable jury could conclude that Maldonado's actions were reasonably foreseeable because a mall shooting fell within the general field of foreseeable danger. Dkt. 81 at 13-17. Therefore, McKown argues, the issue of foreseeability is a question for the jury and Simon's motion should be denied. Id. at 17.
The Court concludes that, based on the evidence on record, a reasonable jury could find that McKown's injuries were the result of reasonably foreseeable criminal conduct. Based on the evidence, the Court cannot conclude that Maldonado's shooting of McKown was "so highly extraordinary or improbable as to be wholly beyond the range of expectability" (see McLeod, 42 Wn.2d at 323), and therefore cannot conclude that the shooting was unforeseeable as a matter of law. Whether McKown's injuries were "within the ambit of the hazards covered by the duty imposed upon" Simon will be a question of fact for the jury. See Rikstad, 76 Wn.2d at 269.
As the Court stated in its order on Simon's motion for summary judgment, in Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 202-03, the Washington Supreme Court specifically held that an owner or occupier of land owes its business invitees a duty of reasonable care to protect them from reasonably foreseeable criminal conduct by third persons on the premises. Dkt. 86 at 7. In denying Simon's motion and concluding that the foreseeability of McKown's injuries resulting from Mr. Maldonado's criminal conduct was a question for the jury, the Court relied on Nivens, as well as other Washington Supreme Court negligence cases that did not involve business owners and their invitees. Id. at 8-9. In its motion for reconsideration, Simon argues that the Court erred in not relying on the "prior similar acts on the premises test" set forth in multiple Washington appellate court cases which states that "there is a jury issue as to whether the third party's criminal conduct is 'reasonably foreseeable' only if plaintiff presents competent evidence that very similar criminal conduct has occurred on the premises in the past." Dkt. 94 at 5 (...
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