McKown v. Simon Prop. Grp., Inc.

• Decision Date: 05 March 2015
• Docket Number: No. 87722–0.,87722–0.
• Citation: 182 Wash.2d 752,344 P.3d 661
• Court: Washington Supreme Court
• Parties: Certification from the United States Court of Appeals for the Ninth Circuit in Brendan McKOWN, a single individual, Appellant, v. SIMON PROPERTY GROUP, INC., a Delaware corporation doing business as Tacoma Mall ; IPC International Corporation, an Illinois corporation, Appellees.

182 Wash.2d 752

344 P.3d 661

Certification from the United States Court of Appeals for the Ninth Circuit in Brendan McKOWN, a single individual, Appellant

v.SIMON PROPERTY GROUP, INC., a Delaware corporation doing business as Tacoma Mall ; IPC International Corporation, an Illinois corporation, Appellees.

No. 87722–0.

Supreme Court of Washington, En Banc.

March 5, 2015.

Darrell L. Cochran, Pfau Cochran Vertetis Amala PLLC, Tacoma, Jason Paul Amala, Pfau Cochran Vertetis Amala PLLC, Seattle, Rodney Bruce Ray, Margullis and Ray Attorneys At Law, PLLC, Tacoma, WA, for Appellant.

Thomas Jeffrey Keane, Thomas Jesse Degan Jr., Keane Law Offices, Seattle, WA, for Appellee.

Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, George M. Ahrend, Ahrend Law Firm PLLC, Ephrata, WA, for amicus counsel for Washington State Association for Justice Foundation.

Kristopher Ian Tefft, Washington Self–Insurers Association, Olympia, WA, for amicus counsel for Association of Washington Business.

Opinion

MADSEN, C.J.

¶ 1 This case concerns the scope of landowners' or possessors' responsibility for harm that results when strangers commit criminal acts against invitees on business premises. The Ninth Circuit Court of Appeals certified three questions to us regarding this duty under Washington law. In answering these questions, we hold that when a duty is premised on evidence of prior similar acts, a landowner or possessor owes a duty to protect business invitees from third party criminal conduct when such conduct is foreseeable based on past experience of prior similar acts. The prior acts of violence on the business premises must have been sufficiently similar in nature and location to the criminal act that injured the plaintiff, sufficiently close in time to the act in question, and sufficiently numerous to have put the business on notice that such an act was likely to occur. Based on the limited focus of the questions and the briefing, we do not decide the circumstances under which a duty would arise when the duty is based solely on the business's place or character.

FACTS

¶ 2 On Sunday, November 20, 2005, Dominick S. Maldonado walked into the Tacoma Mall¹ and opened fire on shoppers and mall employees, injuring seven people. Maldonado wore a dark trench coat concealing a MAK–90 rifle and an Intratec Tec–9 pistol, and carried a guitar case filled with ammunition. 1 Excerpts of R. at 18. Brendan McKown, an employee at one of the retail stores, tried to stop Maldonado, but was shot and wounded

. After shooting McKown, Maldonado took several hostages before finally surrendering to the police. At the time of the shooting, there were four unarmed security guards on duty and no security cameras. Id. at 19–20. While the mall had an intercom system, it was inaudible and inaccessible on weekends, and the security guards were never trained to use it. Id. at 19.

¶ 3 McKown brought a negligence action in state court against Simon Property Group Inc., alleging, in part, that Simon failed to exercise reasonable care to protect him from foreseeable criminal harm. Simon removed the case to federal district court, which has diversity jurisdiction under 28 U.S.C. § 1332. After a period of discovery, Simon filed a motion for summary judgment, asserting that the shooting was unforeseeable and that any negligence by Simon was not a proximate cause of McKown's injuries. The trial court found that the evidence raised a genuine issue of material fact as to whether the shooter's criminal conduct was reasonably foreseeable. See McKown v. Simon Prop. Grp., Inc., No. C08–5754BHS, 2011 WL 62144, at *5–6 (W.D.Wash. Jan. 7, 2011) (court order). Accordingly, it denied Simon's motion for summary judgment. Id. at *6–8.

¶ 4 Simon moved the court to reconsider its decision, asserting that it had overlooked cases from lower appellate courts in Washington applying what Simon characterized as a “ ‘prior similar acts on the premises' ” test for the foreseeability of criminal acts. McKown v. Simon Prop. Grp., Inc., No. C08–5754BHS, 2011 WL 1085891, at *3 (W.D.Wash. Mar. 22, 2011) (court order). Under this test, Simon argued that third-party criminal conduct is reasonably foreseeable “ ‘only if plaintiff presents competent evidence that very similar criminal conduct has occurred on the premises in the past.’ ” Id.

¶ 5 On reconsideration, the trial court vacated its holding and granted Simon's motion for summary judgment. McKown v. Simon Prop. Grp., Inc., No. C08–5754BHS, 2011 WL 1675032, at *5 (W.D.Wash. May 4, 2011) (court order). The court agreed with Simon that Washington appellate decisions have adopted a “ ‘prior similar acts on the premises' ” test for determining the foreseeability of criminal acts, and held it was bound to follow this authority because there was “ ‘no convincing evidence that the state supreme court would decide differently.’ ” Id. at *2 (quoting Nelson v. City of Irvine, 143 F.3d 1196, 1206–07 (9th Cir.1998) ).

¶ 6 Applying this test, the court considered evidence of six other shootings and three other gun-related incidents on the Tacoma Mall premises but concluded these were not prior similar acts. Id. at *2–3. The court reasoned that these other incidents were significantly different in “nature, scale, and location” from the indiscriminate mass-shooting inside the mall and that they were also remote in time, occurring between 5 and 13 years before the attack that injured McKown. Id. at *2–4. Concluding that the incident was therefore not foreseeable as a matter of law, so that Simon owed no duty to protect McKown from such third party criminal behavior, the district court dismissed his claims with prejudice and terminated the action. Id. at *5.

¶ 7 On appeal, a panel of the Ninth Circuit Court of Appeals acknowledged it was bound to follow this court's interpretation of Washington law but expressed uncertainty as to the scope of a landowner's duty to protect business invitees from the criminal acts of third persons. McKown v. Simon Prop. Grp. Inc., 689 F.3d 1086, 1088 (9th Cir.2012). The court noted that in Nivens v. 7–11 Hoagy's Corner, 133 Wash.2d 192, 943 P.2d 286 (1997), this court adopted Restatement (Second) of Torts § 344 (1965), which imposes a duty on businesses to protect invitees “ ‘from imminent criminal harm and reasonably foreseeable criminal conduct by third persons.’ ” McKown, 689 F.3d at 1092 (quoting Nivens, 133 Wash.2d at 205, 943 P.2d 286 ). However, the scope of landowner liability for criminal acts appears to have been narrowed after Nivens by Washington's intermediate appellate courts. To clarify the scope of a Washington landowner's duty to protect invitees from criminal conduct, the Ninth Circuit Court of Appeals certified to this court the following three questions:

1) Does Washington adopt Restatement (Second) of Torts § 344 (1965), including comments d and f, as controlling law? See Nivens v. 7–11 Hoagy's Corner, 133 Wash.2d 192, 943 P.2d 286 (1997)....

2) To create a genuine issue of material fact as to the foreseeability of the harm resulting from a third party's criminal act when the defendant did not know of the dangerous propensities of the individual responsible for the criminal act, must a plaintiff show previous acts of similar violence on the premises, or can the plaintiff establish reasonably foreseeable harm through other evidence? See Wilbert v. Metro. Park Dist. of Tacoma, 90 Wash.App. 304, 950 P.2d 522 (1998) ; see also Fuentes v. Port of Seattle, 119 Wash.App. 864, 82 P.3d 1175 (2004) ; Craig v. Wash. Trust Bank, 94 Wash.App. 820, 976 P.2d 126 (1999) ; Raider v. Greyhound Lines, Inc., 94 Wash.App. 816, 975 P.2d 518 (1999) ; cf. Nivens, 943 P.2d 286 ; Christen v. Lee, 113 Wash.2d 479, 780 P.2d 1307 (1989) ; Passovoy v. Nordstrom, Inc., 52 Wash.App. 166, 758 P.2d 524 (1988)...; Miller v. Staton, 58 Wash.2d 879, 365 P.2d 333 (1961).

3) If proof of previous acts of similar violence is required, what are the characteristics which determine whether the previous acts are indeed similar?

Id. at 1087–88.

¶ 8 The Ninth Circuit Court of Appeals' opinion, setting forth the three certified questions to this court, makes clear that the focus of the Ninth Circuit's inquiry regarding prior acts is actually twofold: (1) whether this court would apply a “similar acts on the premises” test based on the facts and legal theories argued in the McKown case and, if so, (2) “how similar” must such prior acts be to the criminal conduct at issue in order to create a jury question on whether the criminal conduct was reasonably foreseeable. See 689 F.3d at 1093. We address these questions herein.

¶ 9 Notably, the Ninth Circuit's inquiry seeks a framework to evaluate “previous acts of similar violence on the premises,” but the Ninth Circuit did not ask for a framework for evaluating “other evidence” on which the landowner's duty might be based. Id. at 1087. While the parties appear to view “other evidence” as meaning “place or character,” which is an alternative circumstance to the “past experience” at issue in this case under Restatement comment f, the parties offer neither a definition of “place or character” nor a framework for evaluating the circumstances under which “place or character” justify imposing a duty. Instead, the briefing focuses on the history of shootings and gun-related violence at the Tacoma Mall, that is, the “past experience” circumstance under Restatement comment f. Thus, in light of the facts of this case, the focus of the parties' briefing, and the resulting framing of the questions by the Ninth Circuit, it does not appear that consideration of the “place or character” alternative in Restatement comment f is necessary to answer the certified questions or to resolve this case. Accordingly, we leave for an appropriate future case any inquiry concerning the circumstances under which the “place or character” of a business can give rise to a duty to protect invitees against third party criminal conduct. See id. at 1094 (...