In McKown v. Simon Property Group, Inc., (No. 87722-0, filed 3/5/15), the Washington State Supreme Court addressed an issue that we have seen far too often in recent years; strangers committing criminal acts against others on a business premises.
On November 20, 2005, Dominick Maldonado walked into the Tacoma Mall and opened fire on shoppers and mall employees, ultimately injuring seven people. Upon entering the mall, 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. An employee at one of the retail stores, Brendan McKown, tried to stop Maldonado, but was shot and wounded. Maldonado then 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. The mall was equipped with an intercom system, but it was inaudible and inaccessible on the weekends and the security guards were never trained to use it.
McKown brought a negligence action in state court against the owner of the mall, Simon Property Group, Inc. He alleged that Simon failed to exercise reasonable care to protect him from foreseeable criminal harm. Simon removed the case to federal district court and after a period of discovery, filed a motion for summary judgment, asserting that the shooting was unforeseeable and that any negligence on their part was not a proximate cause of McKown’s injuries. The trial court believed that the evidence raised a genuine issue of material fact regarding whether or not the shooter’s criminal conduct was reasonably foreseeable and as a result, denied Simon’s motion for summary judgment.
Simon moved the court to reconsider its decision, asserting that they had not applied the “prior similar acts on the premises” test for the foreseeability of criminal acts that lower appellate courts in Washington had relied on. The trial court agreed with Simon, vacated its holding and granted their motion for summary judgment. The court agreed that Washington courts had previously followed the “prior similar acts on the premises” test and in applying it in the case at hand, found that there were no similar prior acts. In making this decision, the court considered evidence of six other shootings and three other gun-related incidents on the Tacoma Mall premises, but indicated that these other incidents were significantly different in “nature, scale, and location” from the mass-shooting perpetrated by Maldonado. They also noted that those other incidents were remote in time, having occurred some five to thirteen years prior to this incident. Ultimately, the trial court concluded that the incident was not foreseeable as a matter of law and that Simon therefore did not owe a duty to protect McKown from third party criminal behavior. The district court dismissed his claims with prejudice and terminated the action.
On appeal to the Ninth Circuit Court of Appeals, the court panel expressed uncertainty as to the scope of a landowner’s duty to protect business invitees from the criminal acts of third persons. In order to clarify this issue, the Ninth Circuit Court of Appeals certified to the Supreme Court of Washington a number of questions. The Supreme Court of Washington notes that the focus of the Ninth Circuit’s inquiry regarding prior acts is 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.
The Court makes an initial clarifying point on an issue that is often confused; foreseeability. They indicate that foreseeability as a question of whether a duty is owed is ultimately for the court to decide. They note that the existence of a legal duty is a question of law for the court and once a duty is found to exist from the defendant to the plaintiff, then the concepts of foreseeability serve to define the scope of the duty owed, which is a factual question for the jury.
In answering the first certified question, the court held that the Restatement (Second) of Torts section 344 is consistent with Washington law and more specifically, that comments d and f generally describe the contours of the duty owed. The court, in line with section 344, recognizes that a business owes a duty to its invitees to protect them from “reasonably foreseeable” criminal acts of third persons due to the fact that a special relationship exists between a business and an invitee. Comment d to section 344 clarifies that business owners are generally not responsible for the harm that results when strangers commit criminal acts on the business but they are under a duty to exercise reasonable care to give them protection. It goes on to say that in many cases, something as small as a warning could be considered sufficient care if the landowner reasonably believes that it will be enough to enable the visitor to avoid the harm or protect himself against it.
Comment f to section 344 adds that there are essentially two types of situations that may give rise to a duty—the first is where the landowner knows or has reason to know of the immediate or imminent harm, and the second is where the possessor of land knows, or has reason to know, based on the landowner’s past experience, the place of business, or the character of the business, there is a likelihood that harmful conduct of third parties will occur on his premises.
As for the second question presented to the court, the answer is clearer when the question is broken down in two parts: must a plaintiff show previous acts of similar violence on the premises, or can the plaintiff establish reasonably foreseeable harm through other evidence? The court answers no to the first part of the question, indicating that the plaintiff does not have to show previous acts of similar violence on the premises. In answering yes to the second part of the question, the court indicates that proving acts of similar violence is not the only way for a plaintiff to establish a duty as provided in the Restatement, but it is the one that they focus on because that is the only basis for liability that the parties meaningfully addressed and the only one the Ninth Circuit directed them to clarify.
Courts in many states agree that subjecting business owners to liability based on a broad foreseeability analysis would be extremely burdensome. This recognizes the fact that criminal activity is irrational and unpredictable and thus it is unjustifiable to make landowners effectively vicariously liable for the criminal acts of third parties. However, if a particular type of crime has repeatedly occurred on the premises in the recent past, a business may then have reason to anticipate that such a crime will happen again. If the criminal act is not similar in nature and location to the prior act or acts of violence, sufficiently close in time to the act in question, and sufficiently numerous, then the act is likely unforeseeable as a matter of law under the prior similar incidents test.
What does this mean for land and business owners going forward?
The McKown v. Simon Property Group, Inc. case does not add a great deal to a landowner’s duties to their invitees under Washington law, but it does clarify an often sticky point. Courts had impliedly recognized the notion in previous cases, but now the court explicitly holds that there is, in fact, a special relationship between a business and an invitee. In determining the extent of that duty, the court indicated that the Restatement (Second) of Torts Section 344, comments d and f provide an appropriate analysis to follow.
The Restatement recognizes that it would be an impossible burden on businesses to expect them to protect their invitees from every risk of harm caused by third parties and for that reason the prior similar incidents test is used. This is due to the fact that there is an expectation that if the business knows or has reason to know from past experience that there is a likelihood of harm that they would exercise reasonable care to protect their invitees. 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. The use of this approach ensures that businesses will only be exposed to liability when they have past experience of criminal conduct that makes similar conduct on the business premises foreseeable.
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