Winffel v. Westfield Prop. Mgmt., LLC
| Decision Date | 22 January 2020 |
| Docket Number | Civil Action No. TDC-19-0838 |
| Citation | 435 F.Supp.3d 686 |
| Parties | Norma I. WINFFEL, Brandon Winffel, Kayla Winffel, Julia Rodriguez, Alejandro Winffel, Carl Unger and Virginia Henderson, Plaintiffs, v. WESTFIELD PROPERTY MANAGEMENT, LLC, Montgomery Mall Owner, LLC, Professional Security Consultants and Professional Security Concepts, Inc., Defendants. |
| Court | U.S. District Court — District of Maryland |
Demosthenes Komis, Ronald A. Karp, Zachary King, Karp Wigodsky Norwind, Kudel & Gold, P.A., Rockville, MD, for Plaintiffs.
Brian T. Gallagher, Council Baradel Kosmerl and Nolan PC, Annapolis, MD, Dawn E. Boyce, Heather K. Bardot, Bancroft, McGavin, Horvath & Judkins, P.C., Fairfax, VA, for Defendants.
Plaintiffs Norma I. Winffel, Brandon Winffel, Kayla Winffel, Julia Rodriguez, Alejandro Winffel, Carl Unger, and Virginia Henderson have filed this tort action against Defendants Westfield Property Management, LLC, Montgomery Mall Owner, LLC, Professional Security Consultants, and Professional Security Concepts, Inc. in connection with the shooting deaths of two men in the parking lot of the Westfield Montgomery Mall in Montgomery County, Maryland. Pending before the Court is a Motion to Dismiss filed by Professional Security Consultants and Professional Security Concepts, Inc. Having reviewed the briefs and submitted materials, the Court finds that no hearing is necessary. D. Md. Local R. 105.6. For the reasons set forth below, the Motion to Dismiss will be DENIED.
For the purposes of deciding this Motion, the Court accepts the facts asserted in the Complaint as true. On the afternoon of May 5, 2016 at approximately 4:38 p.m., Eulalio Tordil shot and killed his wife at High Point High School in Prince George's County, Maryland. He fled the scene of the shooting and spent the night driving around the Washington, D.C. metropolitan area. During this time, the Prince George's County Police Department "put out a lookout Mr. Tordil's vehicle," and local media widely reported the murder and the fact that the suspect was still at large. Compl. ¶ 28, ECF No. 1.
The next morning, May 6, 2016, Tordil entered the parking lot of the Westfield Montgomery Mall ("the Mall"), which is located near Interstate 495, one of the primary routes connecting Prince George's County to Montgomery County. At the time, the Mall was owned and operated by Defendants Westfield Property Management, LLC ("Westfield") and Montgomery Mall Owner, LLC ("Montgomery Mall Owner"). The Mall had contracted with Defendants Professional Security Consultants and Professional Security Concepts, Inc. (collectively, "the PSC Defendants"), companies that specialize in "providing security services to malls, government municipalities, hotels and private communities." Compl. ¶¶ 16, 20. Under the contract, Professional Security Consultants was required to, among other things, "[c]reate a visible presence at the [Mall] to deter criminal activity," "[p]atrol parking areas," "[p]rovide a secure and safe environment for all ... customers and visitors" to the Mall, "[u]ndertake patrols of the ... vehicle parking areas ... to identify and deter security and safety risks," and "[p]rovide and maintain an environment which fosters crime reduction." Standard Contractor's Service Agreement at 13, 17, Pls.' Suppl.
Mem. Opp'n Mot. Dismiss Ex. 1, ECF No. 41-1.
Tordil entered the parking lot in order to steal a car. When he approached a woman near her vehicle, she began screaming and running toward Malcom Winffel ("Winffel") and Carl Unger, who happened to be walking through the parking lot. As she did so, Tordil began firing a gun at them. Winffel was struck twice in the chest, went into cardiac arrest
, and died after being transported to Suburban Hospital. Unger suffered serious injuries when he was struck three times in the back and once in the foot, but he survived. Tordil fled the area, shot and killed another individual at another location, and was finally arrested. He pleaded guilty in two separate cases to a total of three counts of murder and three counts of attempted murder.
Unger, his wife Virginia Henderson, Winffel's widow Norma Winffel, Winffel's children Brandon Winffel and Kayla Winffel, and Winffel's parents Julia Rodriguez and Alejandro Winffel filed this civil action against Defendants, asserting wrongful death and survival claims as to Winffel and negligence and loss of consortium claims as to Unger. All the claims are based on a theory of negligence by Defendants. Although Westfield and Montgomery Mall Owner have filed an Answer to the Complaint, the PSC Defendants have filed the pending Motion to Dismiss.
In the Motion to Dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), the PSC Defendants assert that Plaintiffs have failed to state a plausible claim for relief. Specifically, they argue that the Complaint lacks sufficient facts to establish two of the elements of a negligence claim. First, they contend that the allegations do not support a finding that they had a special duty to protect Winffel or Unger from the acts of third persons, and that they did not have sufficient notice of the threat posed by Tordil to trigger a general duty to protect the two men. Second, they argue that even if they owed a duty of care to Winffel and Unger, Plaintiffs have not adequately pleaded that any breach of that duty was the proximate cause of Plaintiffs' injuries.
To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim is plausible when the facts pleaded allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Legal conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver , 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) ; Lambeth v. Bd. of Comm'rs of Davidson Cty. , 407 F.3d 266, 268 (4th Cir. 2005).
In order to establish a claim of negligence, a plaintiff must prove that (1) the defendant had a duty to protect the plaintiff from injury; (2) the defendant breached that duty; (3) the plaintiff suffered an injury or loss; and (4) the breach proximately caused the loss or injury. Patton v. U.S. of Am. Rugby Football , 381 Md. 627, 851 A.2d 566, 570 (2004) (citation omitted).
The PSC Defendants first argue that the Complaint fails to allege sufficient facts to establish that they had a duty to protect visitors to the Mall such as Winffel and Unger (collectively, "the Victims"). Whether there was such a duty is a question of law. 100 Inv. Ltd. P'ship v. Columbia Town Ctr. Title Co. , 430 Md. 197, 60 A.3d 1, 9 (2013) (citation omitted). Generally, "a private person is under no special duty to protect another from criminal acts by a third person." Scott v. Watson , 278 Md. 160, 359 A.2d 548, 552 (1976) (citing Restatement (Second) of Torts § 315 (Am. Law Inst. 1965) ). Such a duty, however, may exist when established by statute or by the existence of a special relationship between the parties. Id. Here, Plaintiffs point to, among other sources, a section of the Restatement (Second) of Torts as establishing a special relationship between the PSC Defendants on the one hand and the Victims on the other. In particular, section 324A states that:
Restatement (Second) of Torts § 324A (Am. Law Inst. 1965). Courts applying Maryland law have consistently treated section 324A as part of Maryland's tort law. See Brady v. Ralph M. Parsons, Co. , 327 Md. 275, 609 A.2d 297, 300 n.2 (1992) (); Sheridan v. United States , 969 F.2d 72, 74 n.3 (4th Cir. 1992) (); see also In re Sabin Oral Polio Vaccine Prods. Liability Litig. , 774 F. Supp. 952, 954-55 (D. Md. 1991) (citations omitted) ( that "[i]t is undisputed that the doctrine [set forth in section 324A ] is part of the tort law of ... Maryland"); E.G. Rock, Inc. v. Danly , 98 Md.App. 411, 633 A.2d 485, 491 (Md. Ct. Spec. App. 1993) ().
Among other examples, the Restatement provides the following illustration of how liability under section 324A may arise:
The A Telephone Company employs B to inspect its telephone poles. B negligently inspects and approves a pole adjoining the public highway. Because of its defective condition the pole falls upon and injures a traveler upon the highway. B is subject to liability to the traveler.
Restatement (Second) of Torts § 324A cmt. d, illus. 2. Likewise, Plaintiffs assert, where the owners of the Mall...
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