BRENDAN MсKOWN, a single individual, Appellant, v. SIMON PROPERTY GROUP, INC., a Delaware corporation doing business as Tacoma Mall; IPC INTERNATIONAL CORPORATION, an Illinois corporation, Appellees.
No. 87722-0
Supreme Court of the State of Washington
March 5, 2015
En Banc
MADSEN, C.J.
(not the court‘s final written decision)
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MADSEN, C.J.—This case concerns the scope of landowners’ or possessors’ responsibility for harm that results when strangers commit criminal acts against invitees on business premises. The Ninth Circuit Court of Appeals certified three questions to us regarding this duty under Washington law. In answering these questions, we hold 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
FACTS
On Sunday, November 20, 2005, Dominick S. Maldonado walked into the Tacoma Mall1 and opened fire on shoppers and mall employees, injuring seven people. 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. 1 Excerpts of R. at 18. Brendan McKown, an employee at one of the retail stores, tried to stop Maldonado, but was shot and wounded. After shooting McKown, Maldonado 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. Id. at 19-20. While the mall had an intercom system, it was inaudible and inaccessible on weekends, and the security guards were never trained to use it. Id. at 19.
McKown brought a negligence action in state court against Simon Property Group Inc., alleging, in part, that Simon failed to exercise reasonable care to protect him from
Simon moved the сourt to reconsider its decision, asserting that it had overlooked cases from lower appellate courts in Washington applying what Simon characterized as a “‘prior similar acts on the premises‘” test for the foreseeability of criminal acts. McKown v. Simon Prop. Grp., Inc., No. C08-5754BHS, 2011 WL 1085891, at *3 (W.D. Wash. Mar. 22, 2011) (court order). Under this test, Simon argued that third-party criminal conduct is reasonably foreseeable “‘only if plaintiff presents competent evidence that very similar criminal conduct has occurred on the premises in the past.‘” Id.
On reconsideration, the trial court vacated its holding and granted Simon‘s motion for summary judgment. McKown v. Simon Prop. Grp., Inc., No. C08-5754BHS, 2011 WL 1675032, at *5 (W.D. Wash. May 4, 2011) (court order). The court agreed with Simon that Washington appellate decisions have adopted a “‘prior similar acts on the premises‘” test for determining the foreseeability of criminal acts, and held it was bound to follow this authority because there was “‘no convincing evidence that the state
Applying this test, the court considered evidence of six other shootings and three other gun-related incidents on the Tacoma Mall premises but concluded these were not prior similar acts. Id. at *2-3. The court reasoned that these other incidents were significantly different in “nature, scale, and location” from the indiscriminate mass shooting inside the mall and that they were also remote in time, occurring between 5 and 13 years before the attack that injured McKown. Id. at *2-4. Concluding that the incident was therefore not foreseeable as a matter of law, so that Simon owed no duty to protect McKown from such third party criminal behavior, the district court dismissed his claims with prejudice and terminated the action. Id. at *5.
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. McKown v. Simon Prop. Grp. Inc., 689 F.3d 1086, 1088 (9th Cir. 2012). The court noted that in Nivens v. 7-11 Hoagy‘s Corner, 133 Wn.2d 192, 943 P.2d 286 (1997), this court adopted
- Does Washington adopt Restatement (Second) of Torts § 344 (1965), including comments d and f, as controlling law? See Nivens . . . , 133 Wash.2d 192 . . . .
- To create a genuine issue of material fact as to the foreseeability of the harm resulting from a third party‘s criminal act when the defendant did not know of the dangerous propensities of the individual responsible for the criminal act, must a plaintiff show previous acts of similar violence on the premises, or can the plaintiff establish reasonably foreseeable harm through other evidence? See Wilbert v. Metro. Park Dist. of Tacoma, 90 Wash.App. 304, 950 P.2d 522 (1998); see also Fuentes v. Port of Seattle, 119 Wash.App. 864, 82 P.3d 1175 (2004); Craig v. Wash. Trust Bank, 94 Wash.App. 820, 976 P.2d 126 (1999); Raider v. Greyhound Lines, Inc., 94 Wash.App. 816, 975 P.2d 518 (1999); cf. Nivens, [133 Wn.2d 192]; Christen v. Lee, 113 Wash.2d 479, 780 P.2d 1307 (1989); Passovoy v. Nordstrom, Inc., 52 Wash.App. 166, 758 P.2d 524 (1988) . . . ; Miller v. Staton, 58 Wash.2d 879, 365 P.2d 333 (1961).
- If proof of previous acts of similar violence is required, what are the characteristics which determine whether the previous acts are indeed similar?
The Ninth Circuit Court of Appeals’ opinion, setting forth the three certified questions to this court, makes clear that the focus of the Ninth Circuit‘s inquiry regarding prior acts is actually 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. See 689 F.3d at 1093. We address these questions herein.
ANALYSIS
I. Foreseeability as Both a Component of Whether Duty Exists and a Limitation on the Scope of Duty
We begin by clarifying the role of foreseeability under Washington tort law. McKown confuses duty, which is a question of law for the court, with the scope of duty,
Numerous cases repeat the principle that foreseeability determines the scope of the duty owed and is a question of fact for the jury. But that inquiry is not the same as the one here. The existence of a legal duty is a question of law for the court. See, e.g., Cummins v. Lewis County, 156 Wn.2d 844, 852, 133 P.3d 458 (2006) (“[i]n a negligence action, the determination of whether an actionable duty was owed to the plaintiff represents a question of law to be decided by the court“); Christensen v. Royal Sch. Dist. No. 160, 156 Wn.2d 62, 67, 124 P.3d 283 (2005) (“existence of a legal duty is a question of law and ‘depends on mixed considerations of logic, common sense, justice, policy, and precedent‘” (internal quotation marks omitted) (quoting Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 243, 35 P.3d 1158 (2001))); Schooley v. Pinch‘s Deli Market, Inc., 134 Wn.2d 468, 474-75, 951 P.2d 749 (1998); Tincani v. Inland Empire Zoological Soc‘y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994).
“Foreseeability is . . . one of the elements of negligence; it is more appropriately attached to the issues of whether defendant owed plaintiff a duty, and, if so, whether the duty imposed by the risk embraces that conduct which resulted in injury to plaintiff. The hаzard that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant‘s conduct was negligent.”
Maltman v. Sauer, 84 Wn.2d 975, 980, 530 P.2d 254 (1975) (emphasis omitted) (quoting Rikstad v. Holmberg, 76 Wn.2d 265, 268, 456 P.2d 355 (1969)).
In Christen, the court further explained foreseeability‘s limitation on the scope of duty:
The concept of foreseeability limits the scope of the duty owed. We have held that in order to establish foreseeability “the harm sustained must be reasonably perceived as being within the general field of danger covered by the specific duty owed by the defendant.” The limitation imposed thereby is important because, as this court has previously observed, “a negligent act should have some end to its legal consequences.” Foreseeability is normally an issue for the jury, but it will be decided as a matter of law where reasonable minds cannot differ.
113 Wn.2d at 492 (footnote and citations omitted) (quoting Maltman, 84 Wn.2d at 981; Hunsley v. Girard, 87 Wn.2d 424, 435, 553 P.2d 1096 (1976)).
Thus, we have held that foreseeability can be a question of whether duty exists and also a question of whether the harm is within the scope of the duty owed. In the latter sense, it is a question of fact for the jury. “‘Generally, the duty to use ordinary care is
This distinction is clear in Hutchins v. 1001 Fourth Avenue Assocs., 116 Wn.2d 217, 226, 802 P.2d 1360 (1991), when we discussed the difference between an inquiry into whether the landowner had notice of criminal activity sufficient to give rise to a duty, and foreseeability of harm as a limitation on the scope of a defendant‘s duty once duty is determined. The first inquiry described in Hutchins is whether a duty to protect against third party criminal conduct is owed at all. The second inquiry described in Hutchins, foreseeability of harm as a limit on the scope of the duty, considers whether the harm sustained is reasonably perceived as being within the general field of danger covered by the duty owed by the defendant. Id.; see also Christen, 113 Wn.2d at 491-92. In this way, foreseeability plays a role in both the legal and factual inquiries regarding duty and its scope.
II. Restatement (Second) of Torts § 344 (1965)
In answer to the first certified question, we reiterate that Restatement (Second) of Torts section 344 is generally consistent with Washington law, and that comments d and f generally describe the contours of the duty owed. See Nivens, 133 Wn.2d at 204-05. However, this court has followed a careful course when considering imposing liability on landowners or possessors in general. In 1986, the court was asked to abandon traditional premises liability standards of care owed by owners or occupiers of land in favor of a
A little over a decade later we recognized that a business owes a duty to its invitees to protect them from “reasonably foreseeable” criminal acts of third persons.3 In
Although, in Nivens, the court agreed that section 344 is generally consistent with state law, we have also continued to recognize that the limited duty of landowners to protect invitees from third parties is an exception to the general rule that there is no duty to protect others from the criminal acts of third parties. Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 195-96, 15 P.3d 1283 (2001); Nivens, 133 Wn.2d at 199; Hutchins, 116 Wn.2d at 223; Petersen v. State, 100 Wn.2d 421, 426, 671 P.2d 230 (1983). It is the special relationship between a business and its business invitee that under Washington law may lead to the duty to protect the invitee from the criminal acts of third persons.4
This is consistent with section 344 of the Restatement (Second) of Torts, which states:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
The language of section 344 necessarily requires a narrow interpretation of a landowner‘s potential duty. In subsection (a), the phrase “such acts” refers to its antecedent—“accidental, negligent, or intentionally harmful acts of third persons.” This language narrows the duty inquiry to whether the specific acts in question were foreseeable rather than whether the landowner should have anticipated any act from a broad array of possible criminal behavior or from past information from any source that some unspecified harm is likely.
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 premises:
A . . . possessor of land who holds it open to the public for entry for his business purposes is not an insurer of the safety of such visitors against the acts of third persons . . . . He is, however, under a duty to exercise
reasonable care to give them protection. In many cases a warning is sufficient care if the possessor reasonably believes that it will be enough to enable the visitor to avoid the harm, or protect himself against it. There are, however, many situations in which the possessor cannot reasonably assume that a warning will be sufficient. He is then required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons . . . may conduct themselves in a manner which will endanger the safety of the visitor.
Comment f further provides that to the extent that a duty is owed, it is a limited duty based on foreseeability. Accordingly, foreseeability is not merely used to determine the scope of a duty already owed, it is a factor in determining whether the duty is owed in the first place. Comment f explains:
Since the possessor is not an insurer of the visitor‘s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some pаrticular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
Id. cmt. f (emphasis added).
Thus, comment f, like section 344 itself, contemplates two kinds of situations that may give rise to a duty—the first is where the landowner knows or has reason to know of 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 the business,
In Nivens, the court declined to “undertake an analysis of . . . foreseeability” because the plaintiff “did not base his case on a general duty of a business to an invitee.” Nivens, 133 Wn.2d at 205. However, we have previously considered whether the “place” of a business within a high-crime urban area justifies imposing a duty on the business to protect others from third party criminal acts. As a policy matter, we rejected the idea that location of the premises in an urban area with a high incidence of crime favors imposing a duty. Hutchins, 116 Wn.2d at 236. “[I]f the premises are located in an area where criminal assaults often occur, imposition of a duty could result in the departure of businesses from urban core areas—an undesirable result.” Id.; accord Kim, 143 Wn.2d at 199 (“this court has rejected utilization of high crime rates as a basis for imposing а tort duty“); see also Boren v. Worthen Nat‘l Bank of Ark., 324 Ark. 416, 428, 921 S.W.2d 934 (1996) (“[w]e . . . cannot say that it would be appropriate as a matter of policy to impose a higher duty on business owners who are willing to provide their services in ‘high crime areas’ or ‘near a housing project‘—most commonly the areas in which low and moderate income residents are to be found“); McNeal v. Henry, 82 Mich. App. 88, 90 n.1, 266 N.W.2d 469 (1978) (“[s]ome of our big cities have more than their share of destructive and violent persons, young and old, who roam through downtown department stores and other small retail businesses stealing and physically abusing legitimate patrons . . . . We fear that to hold businessmen liable for the clearly unforeseeable third-party
As this discussion shows, we answer the first certified question yes. Washington generally adopts Restatement (Second) of Torts section 344 comments d and f, as explained above. As for the second certified question, we answer no, as qualified by our discussion to this point.5 While proving acts of similar violence is not the only way for a plaintiff to establish a duty as provided in the Restatement and comment sections that we adopted in Nivens, it is the one we focus on here because that is the only basis for liability that the parties meaningfully address and the only one that the Ninth Circuit has asked us
In order to establish a genuine issue of material fact concerning a landowner‘s obligation to protect business invitees from third party criminal conduct under the prior similar incidents test, a plaintiff must generally show a history of prior similar incidents on the business premises within the prior experience of the possessor of the land.
We reject a broad notice rule requiring a landowner to protect business invitees from third party criminal conduct. We recognize the wisdom of the Supreme Court of Michigan when it stated:
Subjecting a merchant to liability solely on the basis of a foreseeability analysis is misbegotten. Because criminal activity is irrational and unpredictable, it is in this sense invariably foreseeable everywhere. However, even police, who are specially trained and equipped tо anticipate and deal with crime, are unfortunately unable universally to prevent it. This is a testament to the arbitrary nature of crime. Given these realities, it is unjustifiable to make merchants, who not only have much less experience than the police in dealing with criminal activity but are also without a community deputation to do so, effectively vicariously liable for the criminal acts of third parties.
MacDonald v. PKT, Inc., 464 Mich. 322, 335, 628 N.W.2d 33 (2001).
Under a broad notice rule, foreseeability would become an all-expansive standard for imposing a duty on a business to protect invitees from criminal assaults of third parties on the business premises.8 A broad notice rule or a totality of the circumstances
Decisions from the Courts of Appeals have recognized that such standards would fail to comport with this court‘s precedent. If a particular type of crime has occurred repeatedly on its premises in the recent past, a business may have reason to anticipate that such a crime will happen again. See, e.g., Johnson v. State, 77 Wn. App. 934, 943, 894 P.2d 1366 (1995) (foreseeability of rape of college student in front of her dormitory was a question of fact where there had been numerous rapes on campus each year). But if the criminal act that injures the plaintiff is not sufficiently similar in nature and location to the prior act(s) 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.
In Wilbert, 90 Wn. App. at 306, a man was shot at a private dance in a venue owned and rented out by the Metropolitan Park District. The court explained, “Ordinarily, foreseeability is a jury question and a criminal act can be held unforeseeable as a matter of law only ‘if the occurrence is so highly extraordinary or improbable as to be wholly beyond the range of expectability.‘” Id. at 308 (quoting Johnson, 77 Wn. App. at 942). Citing both Nivens and Christen, the court noted that “[w]here no evidence is presented that the defendant knew of the dangerous propensities of the individual responsible for the crime, and there is no history of such crimes occurring on the
In Raider, 94 Wn. App. at 817-18, the appellant was injured in a racially motivated shooting at a Greyhound bus station. Even though the bus terminal was a high crime area, the court found that the attack did not bear any relationship or similarity to past crimes that had occurred there, including a shooting. Id. at 820. Accordingly, the Court of Appeals, Division Three, held that the incident was unforeseeable as a matter of law. Id.
In Tortes v. King County, 119 Wn. App. 1, 6, 84 P.3d 252 (2003), a Metro bus passenger was injured when another passenger shot and killed the driver and the driverless bus plunged off a bridge. The Court of Appeals, Division One, held that the incident was unforeseeable as a matter of law because evidence did not support the fact of prior similar crimes on other buses. Id. at 8.
In Fuentes, 119 Wn. App. at 866, the appellant was injured when her car was carjacked while she was waiting in the airport‘s pickup drive for passengers. The carjacker was fleeing Port of Seattle police at the time. The Court of Appeals, Division One, held that the incident was unforeseeable as a matter of law because history of an assault in the parking garage and a car prowling problem were insufficient to establish foreseeability. Id. at 870-71.
CONCLUSION
In answer to the first certified question, the Restatement (Second) of Torts section 344 is generally consistent with Washington law and comments d and f generally describe the contours of the duty owed. See Nivens, 133 Wn.2d at 204-05. In answer to the Ninth Circuit‘s second inquiry, proving acts of similar violence is not the only way for a plaintiff to establish a duty аs provided in the Restatement. However, it is the one we focus on here because prior history of violence is really the only basis for liability that
We reserve comment on the circumstances under which the place or character of a business, without more, can give rise to a duty to protect invitees against third party criminal conduct.
Madsen, C.J.
WE CONCUR:
McKown v. Simon Property Group, Inc., et al.
No. 87722-0
STEPHENS, J. (concurring)
STEPHENS, J. (concurring)—The central question before us is whether a plaintiff bringing suit against a landowner must present evidence of prior similar acts of violence on the premises as a “prerequisite” to finding that criminal acts on the premises were foreseeable. See McKown v. Simon Prop. Grp., Inc., 686 F.3d 1086, 1093 (9th Cir. 2012) (court order) (quoting Wilbert v. Metro. Park Dist. of Tacoma, 90 Wn. App. 304, 309, 950 P.2d 522 (1998)). The majority does not clearly answer this question. On the one hand, it says such evidence is not required. See majority at 20 (“In answer to the Ninth Circuit‘s second inquiry, proving acts of similar violence is not the only way for a plaintiff to establish a duty as provided in the Restatement.” (citing
I would answer certified questions one and two directly: yes and no. While these are the same answers the majority seems to give, much of its unnecessary discussion of question three seems to undercut its stated answers. Because the third certified question is conditional, asking for the characteristics of a prior similar acts test only “[i]f proof of previous acts of similar violence is required,” McKown, 689 F.3d at 1087, I would not answer it. The majority‘s discussion of this question is dicta.
ANALYSIS
This case centers on our decision in Nivens v. 7-11 Hoagy‘s Corner, 133 Wn.2d 192, 943 P.2d 286 (1997), and subsequent decisions from the Court of Appeals that have applied a prior similar acts test to determining foreseeability. The certified questions begin from the premise that Simon Property Group Inc., a business owner, owes a duty of reasonable care to McKown, a business invitee.2
The majority criticizes McKown for confusing “duty, which is a question of law for the court, with the scope of duty, which is ordinarily a question for the trier of fact,” and insists that the certified questions ask about legal duty. Majority at 6-7. This is a critical mistake. The Ninth Circuit and the parties all understand, as did the trial court, that the issue before us concerns factual foreseeability, i.e., the scope of the duty arising out of the special relationship between Simon and McKown. See McKown, 689 F.3d at 1092 (“It is the scope of that duty that is dispositive.“), 1093 (quoting trial court as stating, “‘there is an issue for the jury as to whether the third party‘s criminal conduct is reasonably foreseeable only if plaintiff presents competent evidence that similar criminal conduct has occurred on the premises in the past‘” (emphasis added)); see also Br. of Appellees Simon Prop. Grp., Inc. & IPC Int‘l Corp. at 1 (describing certified questions as concerning “the scope of the duty that a business owes its invitees to protect them from criminal acts of third persons, and the foreseeability of such acts“). Certified question two is framed squarely in terms of factual foreseeability, asking what evidence is needed “[t]o create a genuine issue of material fact as to the foreseeability of the harm.” McKown, 689 F.3d at 1087.
Such foreseeability is ordinarily a question for the trier of fact unless there are no genuine issues of material fact and reasonable minds could not disagree. Christen v. Lee, 113 Wn.2d 479, 492, 780 P.2d 1307 (1989); see also Nivens, 133 Wn.2d at 205; Hansen v. Friend, 118 Wn.2d 476, 483, 824 P.2d 483 (1992); Niece v. Elmview Grp. Home, 131 Wn.2d 39, 50, 929 P.2d 420 (1997). A court should reject foreseeability as a matter of law only when the harm is “‘so highly extraordinary or improbable‘” that no reasonable person could be expected to anticipate it. Seeberger v. Burlington N. R.R., 138 Wn.2d 815, 823, 982 P.2d 1149 (1999) (quoting McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 323, 255 P.2d 360 (1953)). The federal court seeks guidance about whether evidence of prior similar acts on the premises is a prerequisite under Washington law to create a genuine issue of material fact. Part of this inquiry turns on whether this court follows the analysis set forth in section 344 of the Restatement.
(1) Does Washington adopt Restatement (Second) of Torts section 344, including comments d and f, as controlling law?
I agree with the majority that the answer to certified question one is yes. In Washington, the special relationship between a business and its invitee gives rise to a duty on the part of the business to exercise reasonable care to protect invitees from likely harm caused by third persons. Nivens, 133 Wn.2d at 202 (“What we have impliedly recognized in earlier cases, we now explicitly hold: a special relationship exists between a business and an invitee.“). In determining the existence and scope of the duty and the standard of care necessary to satisfy it, section 344 of the Restatement, and comments d and f thereto, provide the appropriate analysis because they are “consistent with and a natural extension of” our law. Id. at 204-05.
Section 344 of the Restatement states:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for suсh a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
(Emphasis added.)
Recognizing that it would be an impossible burden on businesses to protect invitees from every risk of harm caused by third parties, the Restatement limits the scope of the duty owed. Comment f explains:
Since the possessor is not an insurer of the visitor‘s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a rеasonably sufficient number of servants to afford a reasonable protection.
Even when the business owner owes a duty under the circumstances, comment d explains that this does not make the business owner the insurer of an invitee‘s safety but merely requires the exercise of reasonable care:
A . . . possessor of land who holds it open to the public for entry for his business purposes is not an insurer of the safety of such visitors against the acts of third persons . . . . He is, however, under a duty to exercise reasonable care to give them protection. In many cases a warning is sufficient care if the possessor reasonably believes that it will be enough to enable the visitor to avoid the harm, or protect himself against it. There are, however, many situations in which the possessor cannot reasonably assume that a warning will be sufficient. He is then required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons . . . may conduct themselves in a manner which will endanger the safety of the visitor.
The principles set forth in section 344 of the Restatement are consistent with Washington precеdent. Washington courts have long recognized that the special relationship between a business owner and its invitees triggers a duty on the part of the owner to protect invitees from harm arising from the foreseeable conduct of third parties. See Niece, 131 Wn.2d at 44 (quoting Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 228, 802 P.2d 1360 (1991) (citing PROSSER AND KEETON ON THE LAW OF TORTS 383 (W. Page Keeton ed., 5th ed. 1984))); Hutchins, 116 Wn.2d at 223-24 (noting that “the usual case where a duty may be found to protect others from third party criminal assault involves a business and its invitee“); Passovoy v. Nordstrom, Inc., 52 Wn. App. 166, 172-73, 758 P.2d 524 (1988) (holding a business owes a duty to protect invitees from reasonably foreseeable harm by third persons); Miller v. Staton, 58 Wn.2d 879, 883, 365 P.2d 333 (1961) (holding that a business owner “owes the duty to his guests to exercise reasonable care to protect them from injury at the hands of a fellow guest“); Gurren v. Casperson, 147 Wash. 257, 258-59, 265 P. 472 (1928) (holding a business owner must protect invitees against injury caused by third persons).
In Nivens, we recognized that because an invitee “entrusts himself or herself to the control of the business owner over the premises and to the conduct of others on the premises,” this special relationship imposes a duty on business owners to exercise reasonable care to protect their customers “from imminent criminal harm and reasonably foreseeable criminal conduct by third persons.” 133 Wn.2d at 202, 205. To delineate the scope of this duty, we looked to section 344 of the Restatement because it is “consistent with and a natural extension of Washington law” and said we “expressly adopt it.” Id. at 204; see Passovoy, 52 Wn. App. at 172-73 (first endorsing and applying the Restatement rule); see also 16 DAVID K. DEWOLF & KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE § 1.19, at 38-39 (3d ed. 2006) (noting that Nivens “described the nature of the duty that is owed by adopting § 344 of the Restatement“).
Simоn argues that despite the language in the opinion, the court in Nivens did not actually adopt the Restatement and its comments because the plaintiff in that case did not rely on the general duty of care owed to him as a business invitee. Simon reads Nivens too narrowly. Even though the plaintiff in Nivens argued only that “a business generally owes a duty to provide security personnel to prevent criminal behavior on the business premises,” 133 Wn.2d at 205, our decision settled more than the bare question of whether a business owes a freestanding “duty” to provide armed guards. Before we could reach Nivens‘s specific claim about a business‘s alleged duty to provide security personnel, we first had to address the threshold question of whether a business owes any duty to invitees with respect to third-party acts. In the course of resolving this question, we recognized that “in certain circumstances the duty arising out of the special relationship between a business and an invitee described by section 344 of the RESTATEMENT may best be met by providing security personnel as part of the reasonable steps to forestall harm to invitees.” Id. at 206; see also id. at 208 (Sanders, J., dissenting) (observing that “hiring security guards may be one of many possible ways a business may discharge its general duty to protect invitees from third persons’ reasonably foreseeable criminal conduct“).3 What we declined to reach was the issue of whether the defendant was required to hire guards or take other precautions to discharge this duty because that question relates to the standard of care аnd Nivens did not argue that the general duty had been breached. Nivens, 133 Wn.2d at 205. Thus, while some of the discussion in Nivens seems to use the term “duty” to describe both duty and the standard of care, there can be little doubt that adoption of section 344 of the Restatement was necessary to the court‘s analysis.
A word should be said about the Restatement‘s use of the term “likely” and the concept of “foreseeability.” No case suggests any substantive difference between our common law rule and section 344 of the Restatement. While in theory an act might be described as foreseeable without any showing that its occurrence is likely, this court has never equated foreseeability with the bare possibility of harm or drawn a distinction between the common law and the Restatement‘s test. To the contrary, the court in Nivens clearly connected our precedent defining “foreseeability” with the test set forth in section 344 of the Restatement. Id. at 205 & n.3 (describing the Restatement‘s test as imposing the duty to protect invitees “from imminent criminal harm and reasonably foreseeable criminal conduct by third persons“; rejecting liability for criminal conduct that is “‘so highly extraordinary or improbable as to be wholly beyond the range of expectability‘” (quoting Jones v. Leon, 3 Wn. App. 916, 926, 478 P.2d 778 (1970))). Whether the term “likely” or the term “foreseeable” is used, the concept is the same: the landowner‘s duty is to protect invitees from harm that can be reasonably anticipated to arise. As comment f to Restatement section 344 explains, “If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.”
In response to the first certified question, I would reaffirm our holding in Nivens that Washington law is “consistent with” section 344 of the Restatement. Id. at 204. I therefore turn to the second certified question, which asks whether evidence of prior similar acts is required to meet the Restatement‘s test.
(2) To create a genuine issue of material fact as to the foreseeability of the harm resulting from a third party‘s criminal act when the defendant did not know of the dangerous propensities of the individual responsible for the criminal act, must a plaintiff show previous acts of similar violence on the premises or can the plaintiff establish reasonably foreseeable harm through other evidence?
The answer to this question is no. The majority seems to agree. It acknowledges the Restatement contemplates two kinds of situations giving rise to a duty and does not require notice to be based solely on prior similar acts. Majority at 13; see also id. at 20 (“proving acts of similar violence may not be the only way for a plaintiff to establish a duty as provided in the Restatement“). Comment f recognizes a landowner may “know or have reason to know . . . that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any partiсular individual.”
Unfortunately, the lower appellate court opinions the Ninth Circuit identified read the Restatement too restrictively, applying a rote rule demanding proof of prior similar acts on the same premises. See Wilbert, 90 Wn. App. 304; Fuentes v. Port of Seattle, 119 Wn. App. 864, 82 P.3d 1175 (2003); Craig v. Wash. Trust Bank, 94 Wn. App. 820, 976 P.2d 126 (1999); Raider v. Greyhound Lines, Inc., 94 Wn. App. 816, 975 P.2d 518 (1999). These cases at best overstate the significance of prior acts and at worst recast what is intended to be a flexible standard as a one-size-fits-all test. Having rejected proof of prior similar acts as a prerequisite to establishing foreseeability, we should reject this approach. This court has consistently recognized that a wide array of evidence may be relevant to establishing the scope of a duty owed. In Miller, we allowed “[e]vidence of conduct of patrons on prior occasions . . . to show similar conduct could reasonably have been antiсipated.” 58 Wn.2d at 884-85. In Niece, we explained the question of foreseeability should go to the jury based on evidence showing the defendant was on notice of harm, including prior similar acts, prior business decisions, advice from risk assessors, and legislative recognition. 131 Wn.2d at 50-51 & n.10. In McLeod, we rejected the notion that foreseeability requires evidence of a specific type of prior incident as “unjustifiably restrict[ive].” 42 Wn.2d at 321. We explained that “the pertinent inquiry is not whether the actual harm was of a particular kind which was expectable” but “[r]ather, the question is whether the actual harm fell within a general field of danger which should have been anticipated.” Id.
Other lower courts have correctly observed that while prior similar acts are among the best evidence available to demonstrate that a business owner is on notice of a risk of harm to invitees, they are not the only relevant evidence. See, e.g., Passovoy, 52 Wn. App. at 172-73 (recognizing a business may be on notice that a shoplifter confronted by store detectives could cause harm to invitees, though no such harm had occurred on the premises in the past); Griffin v. W. RS, Inc., 97 Wn. App. 557, 567-70, 984 P.2d 1070 (1999) (holding business may be on notice of harm posed by intruder against invitee, even when no intruder had been identified and there had been no prior acts on the premises), rev‘d on different grounds, 143 Wn.2d 81, 18 P.3d 558 (2001).
Requiring evidence of prior similar acts as a prerequisite to suit would disserve the social interests of tort law. Courts have recognized thаt requiring such proof would give businesses “one free assault” and remove any incentive to take reasonable precautions against otherwise foreseeable criminal harm to invitees. See, e.g., Doe v. Grosvenor Ctr. Assocs., 104 Haw. 500, 92 P.3d 1010, 1021 (2004) (holding foreseeability is based on the totality of the circumstances not on a mechanical prior similar incidents rule); Bass v. Gopal, Inc., 395 S.C. 129, 716 S.E.2d 910, 914 (2011) (rejecting prior criminal incidents as the sine qua non of determining foreseeability). Moreover, it would suggest, absurdly, that a business owner who relocates after an incident occurs no longer owes a duty to use reasonable care, insofar as he has no past experience of prior acts on the new premises. Even states that embrace a modified similar acts test have not gone so far. See Ann M. v. Pac. Plaza Shopping Ctr., 6 Cal. 4th 666, 679 n.7, 863 P.2d 207, 25 Cal. Rptr. 2d 137 (1993) (recognizing that while a duty to supply security guards may require evidence of prior similar acts under California‘s sliding scale foreseeability inquiry such act need not be on the same premises), disapproved on another point in Reid v. Google, Inc., 50 Cal. 4th 512, 527, 235 P.3d 988, 113 Cal. Rptr. 3d 327 (2010), and superseded by statute on another point as recognized in Saelzler v. Advanced Grp. 400, 25 Cal. 4th 763, 767-68, 23 P.3d 1143, 107 Cal. Rptr. 2d 617 (2001).
Under Washington law, the scope of a business owner‘s duty remains a question about what risks a reasonable person should anticipate and protect against, not simply what has passed. Once business owners have notice of a likely risk of harm to their invitees from third parties, they have a duty to take reasonable precautions to protect against such harm. Our precedent rejects a bright line test for forеseeability that would require evidence of prior similar acts on the same premises during the defendant owner‘s tenure.
This is wholly consistent with the Restatement approach. Under the Restatement, a business owner may be on notice of the risk of harm at all of his business locations following harm at one, so long as the premises are similar in operation and appearance. Likewise, prior experiences that do not lead to criminal charges—such as rowdy or boisterous crowds related to a sports game or a holiday—may put a business on notice of the likelihood of criminal assaults at subsequent events. See
Importantly, our adoption of the Restatement‘s test does not equate to McKown‘s suggestion that the foreseeability of harm may be established solely based on the “place or character” of the defendant‘s business. See
Our negative answer to certified question two does not mean that liability is a foregone conclusion. A landowner‘s duty is to exercise reasonable care; this does not translate into a duty to take extraordinary measures or become an insurer of patrons’ safety. As with all areas of negligence law, “[t]he financial burden, technical considerations, and other factual circumstances are all factors to be considered in determining whether or not [the defendant] complied with its duty to use reasonable care.” Bergland v. Spokane County, 4 Wn.2d 309, 319, 103 P.2d 355 (1940); see Keller v. City of Spokane, 146 Wn.2d 237, 242, 44 P.3d 845 (2002) (outlining the elements of negligence). Foreseeability remains a limitation on a business owner‘s duty; it is not a proxy for liability.
Having adopted comments d and f to section 344 of the Restatement and having rejected a rigid prior similar acts test as inconsistent with the Restatement and Washington law, I would not delve into the third certified question. The majority unnecessarily opines on the strict requirements of a test it recognizes is not exclusive in the first instance. It is enough to recognize that a range of evidence may be appropriate to establish foreseeability based on the Restatement‘s notice principle. Some evidence will undoubtedly weigh more heavily than other evidence, but our cases and the illustrations provided in the Restatement supply a variety of scenarios sufficient to give guidance.
With respect to the second certified question, I would state our holding in plain terms: to create a genuine issue of material fact as to the foreseeability of harm, a plaintiff need not always present evidence of prior similar acts. A plaintiff must present evidence from which reasonable minds could find the defendant knew or had reason to know the harm was likely to occur. Simply put, “prior similar acts on the same premises” is not a litmus test for foreseeability. See
CONCLUSION
I would answer the first two certified questions as follows:
(1) Washington law follows Restatement (Second) of Torts section 344, including comments d and f, as the test for determining a business owner‘s duty to its invitees.
(2) Washington law rejects a rigid “prior similar acts” test as a prerequisite for determining foreseeability. Although prior acts on the same premises may be relevant to whether the landowner was on notice of a foreseeable risk of harm to its invitees, proof of such acts is not necessary to create genuine issue of material fact.
In light of these answers to questions (1) and (2), it is unnecessary to answer the third certified question.
Stephens, J.
Gonzalez, J.
McKown v. Simon Prop. Grp., Inc.
No. 87722-0
Wiggins, J., concurring
WIGGINS, J. (concurring)—The United States Court of Appeals for the Ninth Circuit certified three questions to this court in order to determine whether Washington State adopted section 344 of the Restatement (Second) of Torts (1965) and, if so, to determine the contours of the duty imposed on business owners. I concur with the answers given in the majority opinion. I also concur with the majority to the extent that it holds that Washington imposes a duty upon business owners to either warn or protect invitees from third party harm when such harm is occurring or likely to occur.
I agree with the majority that we must impose meaningful and reasonable limits on the duty to protect against the criminal acts of others. Overly broad liability would essentially require business owners to take the government‘s police power into their own hands, creating a de facto private police force to protect invitees. Moreover, broad liability would deter businesses from operating in high crime areas, resulting in further deterioration in economically challenged neighborhoods. Such perverse incentives would sow the seeds of social harm.
Fortunately, the drafters of section 344 recognized this as an extension of liability from common law and, accordingly, limited the circumstances giving rise to liability. Section 344 states:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
Section 344 is, to put it charitably, dense, and subsections (a) and (b) must be read together. Subsection (a) imposes a duty to discover that harmful acts are either “being done” or are “likely to be done.” Id. Subsection (b) imposes a duty to warn or protect visitors against “the harm.” What is “the harm“? It is harm resulting from acts “being done” or “likely to be done.” Acts “being done” can refer to actions that are recurring on the premises on a regular basis or it can refer to contemporaneous acts, i.e., actions that are occurring at the moment of failure to discover.
The owner must also protect against acts that are not yet “being done” but that are “likely to be done.” It is this requirement—that the acts are “likely to be done“—that provides the key limitation on the owner‘s liability for the criminal acts of third persons.
In other words, a business owner is liable for failing to exercise reasonable care to either warn or protect visitors (subsection (b)) when the possessor discovers that harmful acts are either occurring or are likely to occur (subsection (a)). Subsection (a) establishes a duty to learn of or anticipate harmful acts. But liability does not attach for mere failure to discover. A possessor who fails to take reasonable steps to
The use of the term “likely” to limit liability is of particular importance because it suggests a significant probability of occurrence. Webster‘s defines “likely” as being “of such a nature or so circumstanced as to make something probable” and deems something “probable” when it “is based on or arises from adequate[,] fairly convincing[,] though not absolutely conclusive[,] intrinsic or extrinsic evidence or support.” WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1310, 1806 (2002).
Consistent with Webster‘s, we should define “likely” to mean that the harmful act of a third party is more probable than 50 percent; this limits the scope of duty for business owners, imposing liability only when the act was likely to occur. In order to cross this threshold, the plaintiff must present evidence showing that the defendant knew, or should have known,1 that the harm was likely to occur. Section 344 and its
The majority opinion and concurring opinion (Stephens, J.) acknowledge that liability arises only for an event that is imminent or presently occurring or is likely to occur. Majority at 13 (“comment f, like section 344 itself, contemplates two kinds of situations that may give rise to a duty—the first is where the landowner knows or has reason to know of 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 the business, or the character of the business, there is a likelihood that harmful conduct of third parties will occur on his premises“); concurrence (Stephens, J.) at 5 (“Liability cannot be imposed unless the landowner is on notice of likely harm.“), 13 (“Once business owners have notice of a likely risk of harm to their invitees from third parties, they have a duty to take reasonable precautions to protect against such harm.“).
While I agree with the majority‘s analysis of foreseeability, it is important to consider as well the section 344 requirement that harm be likely. This is necessary because an injury that is foreseeable may or may not arise from an event that is likely. We made this point clearly in Ayers v. Johnson & Johnson Baby Products Co., 117 Wn.2d 747, 818 P.2d 1337 (1991). There we rejected the defendant‘s argument that the Washington product liability act equated foreseeability with likelihood:
foreseeability is a matter of what the actor knew or should have known under the circumstances; it turns on what a reasonable person would have anticipated. The likelihood, or probability, that an event would occur, on the other hand, does not depend on what a reasonable person would have anticipated under the circumstances, but on an assessment of all relevant facts, including those available only in hindsight. Thus harm might be likely but unforeseeable, or foreseeable but unlikely.
Foreseeability is not the same as likelihood because the two terms refer to different concepts. An injury is foreseeable if “[t]he hazard that brought about or assisted in bringing about the result [is] among the hazards to be perceived reasonably and with respect to which defendant‘s conduct was negligent.” Rikstad v. Holmberg, 76 Wn.2d 265, 268, 456 P.2d 355 (1969). Or, as we stated in McLeod v. Grant County School District No. 128, “‘The sequence of events, of course, need not be foreseeable. The mannеr in which the risk culminates in harm may be unusual, improbable and highly unexpectable, from the point of view of the actor at the time of his conduct. And yet, if the harm suffered falls within the general danger area, there may be liability, provided other requisites of legal causation are present.‘” 42 Wn.2d 316, 322, 255 P.2d 360 (1953) (quoting FOWLER VINCENT HARPER, A TREATISE ON THE LAW OF TORTS § 7, at 14 (1933)). In other words, while “foreseeable” refers to whether the harm was within the general danger created, “likely” within the context of section 344 refers to whether the actions of a third party actor were probable.
Foreseeability remains a necessary inquiry, certainly. I would adopt the majority‘s foreseeability analysis while also requiring that the plaintiff show that the harm was likely. Mere foreseeability is insufficient—the plaintiff must also show that the harm was likely. Such a reading is consistent with public policy and the language and comments to section 344.
CONCLUSION
In light of the foregoing, I concur in the majority opinion‘s answers to the three certified questions as follows:
(1) Yes, Washington adopted section 344 of the Restatement (Second) of Torts (1965), including comments d and f, as controlling law.
(2) No, proof of prior similar incidents is not required to determine the reasonable foreseeability of harm resulting from a third party‘s criminal acts. I would hold, however, that facts establishing both a reasonable foreseeability and a likelihood of the harmful criminal acts of a third party are necessary for the inquiry as to whether a possessor has a duty to protect its invitees from the harm.
(3) We need not reach question three because proof of prior similar incidents is not required.
Wiggins, J.
I concur.
Notes
Notably, a recent Federal Bureau of Investigation study of active shooter incidents from 2000 to 2013 does not suggest that malls are any more susceptible to mass shootings than are other public spaces. J. Pete Blair & Katherine W. Schweit, TEX. STATE UNIV. & U.S. DEP‘T OF JUSTICE FED. BUREAU OF INVESTIGATION, A Study of Active Shooter Incidents in the United States between 2000-2013 (2014), available at http://www.fbi.gov/news/stories/2014/september/fbi-releases-study-on-active-shooter-incidents/pdfs/a-study-of-active-shooter-incidents-in-the-u.s.-between-2000-and-2013). The study of active shooter incidents shows that while 45.6 percent of incidents occur in places of commerce, 27.5 percent occur in businesses open to the public, 14.4 percent occur in businesses closed to the public, and 3.8 percent occur in malls, which incidentally equals the number of incidents in houses of worship. Id. at 13. Educational institutions account for 24.4 percent of active shooter incidents, with another 10.0 percent on government propеrty, 9.4 percent in public spaces, 4.4 percent in residences, and 2.5 percent in health care facilities. Id. In light of these statistics and without a concrete proposal for determining the parameters of a duty created by the “character” of a business, we leave that question for another day.