McKown v. Simon Prop. Grp., Inc. (Majority and Concurrence)
Annotate this CaseThe Ninth Circuit Court of Appeals certified three questions to the Washington Supreme Court regarding the scope of landowners' or possessors' responsibility for harm that results when strangers commit criminal acts against invitees on business premises under Washington law. In 2005, Dominick Maldonado walked into the Tacoma Mall and opened fire on shoppers and mall employees, injuring seven people. At the time of the shooting, there were four unarmed security guards on duty and no security cameras. While the mall had an intercom system, it was inaudible and inaccessible on weekends, and the security guards were never trained to use it. Brendan McKown was one of the people injured, and brought a negligence action against the mall's lawdowner/possessor of the mall, landlord to the businesses in the mall, Simon Property Group, Inc. In his complaint, McKown alleged that Simon failed to exercise reasonable care to protect him from foreseeable criminal harm. After removing the case to federal district court, Simon moved for summary judgment, arguing Maldonado's acts were unforeseeable, and any negligence on Simon's part was not a proximate cause of McKown's injuries. The trial court denied Simon's motion, then on reconsideration, the trial court vacated its holding and granted the motion. 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. In answering the Ninth Circuit's questions, the Washington Supreme Court held 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, the Court did not decide the circumstances under which a duty would arise when the duty is based solely on the business's place or character.
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