344 P.3d 661
Wash.2015Background
- On Nov. 20, 2005 a mass shooting occurred inside Tacoma Mall; an employee (McKown) was shot and sued Simon Property Group for negligence/premises liability claiming failure to protect invitees from foreseeable criminal acts.
- At the time of the shooting the mall had four unarmed guards, no security cameras, and a weekend-inaccessible intercom system; defendant moved for summary judgment arguing the attack was unforeseeable.
- The federal district court initially denied summary judgment, then on reconsideration granted it relying on Washington Court of Appeals decisions requiring "prior similar acts on the premises" to show foreseeability.
- The Ninth Circuit certified three questions to the Washington Supreme Court about (1) adoption of Restatement (Second) of Torts §344 (comments d & f), (2) whether prior similar acts are required to create a genuine issue of foreseeability, and (3) if so, what characteristics make prior acts "similar."
- The Washington Supreme Court held §344 (with comments d & f) is generally consistent with Washington law, clarified foreseeability’s dual role (duty as a legal question; scope as typically factual), and addressed the prior-similar-incidents framework while reserving the "place or character" theory for another day.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Does Washington adopt Restatement (Second) of Torts §344 (comments d & f)? | Nivens supports adoption; §344 governs business-invitee duty to protect from third-party criminal acts. | Any adoption should be limited; not an insurer standard. | Held: Yes — Washington generally adopts §344 and comments d and f as describing the duty. |
| 2. Is proof of prior similar acts on the premises required to create a genuine issue of foreseeability? | McKown argued the mall’s "place or character" and past incidents made harm foreseeable; prior acts not strictly required. | Simon argued Washington precedent (Court of Appeals) requires prior similar acts on the premises to create foreseeability. | Held: No — prior similar acts are not the only way to show a duty under §344; but prior-incident proof is the focus here and often the principal means to show notice. |
| 3. If prior similar incidents are required, what makes them similar? | (Pltf) Prior violent/gun incidents at the mall made the mass shooting foreseeable. | (Def) Past incidents were different in nature, location, timing, and too remote — so insufficient. | Held: Where duty is premised on past experience, plaintiff must show prior incidents that are sufficiently similar in nature and location, sufficiently close in time, and sufficiently numerous to put the business on notice that the injury was likely. |
| 4. Role of foreseeability (duty vs. scope)? | (Pltf) Foreseeability should be a jury question about scope of duty. | (Def) Court must decide whether a legal duty exists before jury considers scope. | Held: Foreseeability can determine existence of duty (question of law) and also limits scope of duty (normally a factual question for the jury); court clarifies the distinction. |
Key Cases Cited
- Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192 (1997) (adopted Restatement §344 framework for business-invitee duty to protect from third-party criminal acts)
- Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217 (1991) (discusses limits on imposing generalized duty and the role of foreseeability/notice)
- Christen v. Lee, 113 Wn.2d 479 (1989) (explains foreseeability limits scope of duty; legal/factual distinctions)
- Tae Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190 (2001) (rejects high-crime-area statistical proof alone as basis for imposing duty)
- Miller v. Staton, 58 Wn.2d 879 (1961) (allows evidence of prior patron conduct to show anticipated similar conduct)