Brendan McKown v. Simon Property Group Inc
2012 U.S. App. LEXIS 16296
9th Cir.2012Background
- McKown was shot during Maldonado’s eight-minute shooting rampage at the Tacoma Mall on Nov 20, 2005; Simon Property owns the mall and IPC provided security under a contract; McKown asserted state-law negligence claims (duty, breach, causation, damages) related to security and protection of tenants/invitees; district court granted IPC summary judgment and denied Simon’s summary judgment on negligence claims; the district court concluded foreseeability and proximate cause issues were for the jury, and allowed briefing on “prior similar acts” evidence; Simon reversed on reconsideration and the court considered evidence of prior gun incidents at the mall; the district court found McKown failed to show competent evidence of prior similar acts sufficient to go to the jury; the Ninth Circuit certified questions to the Washington Supreme Court due to unsettled state-law on duty/foreseeability in this context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Washington adopts Restatement § 344 (1965) as controlling law. | McKown relies on Nivens to support a broad duty to protect invitees. | Simon contends the scope of duty may be narrower under Washington law. | Too unclear; certification required. |
| Whether foreseeability of third-party criminal acts can be shown without prior acts on premises. | McKown can show foreseeability through other evidence, not just prior acts. | Foreseeability requires previous similar acts on premises. | Unclear; certification required. |
| If prior similar acts are required, what features determine similarity? | Evidence of prior incidents could be sufficient if sufficiently similar. | Only highly similar acts should count for foreseeability. | Unclear; certification required. |
| Whether the district court erred in applying a “similar acts on the premises” test under Washington law. | Test may be broader under Nivens and related cases. | Intermediate appellate decisions endorse a stricter similarity test. | Unclear; certification required. |
Key Cases Cited
- Nivens v. 7-11 Hoagy’s Corner, 943 P.2d 286 (Wash. 1997) (adopted Restatement § 344 and held duty to invitees for reasonably fore- seeable third-party harm)
- Christen v. Lee, 780 P.2d 1307 (Wash. 1989) (foreseeability not precluded by criminal acts; highly extraordinary acts may be outside duty)
- Wilbert v. Metro. Park Dist., 950 P.2d 522 (Wash. Ct. App. 1998) (intermediate court required prior similar acts to show foreseeability; test narrowed foreseeability evidence)
- Fuentes v. Port of Seattle, 82 P.3d 1175 (Wash. Ct. App. 2004) (foreseeability framework in intermediate courts; caution on duty scope)
- Craig v. Wash. Trust Bank, 976 P.2d 126 (Wash. Ct. App. 1999) (application of foreseeability standards to premises liability; prior acts context)
- Raider v. Greyhound Lines, Inc., 975 P.2d 518 (Wash. Ct. App. 1999) (foreseeability and prior incidents evidence guidance)
- Passovoy v. Nordstrom, Inc., 758 P.2d 524 (Wash. 1988) (premises liability foreseeability principles authoritative)
- Miller v. Staton, 365 P.2d 333 (Wash. 1961) (older foreseeability guidance in Washington premises cases)
- McLeod v. Grant Cnty. Sch. Dist. No. 128, 255 P.2d 360 (Wash. 1953) (early foreseeability standard in Washington)
- Rikstad v. Holmberg, 456 P.2d 355 (Wash. 1969) (duty scope and foreseeability discussed in context of harms)