From the desk of Josh Hayward: When can a business owner be liable for the criminal acts of a third party who causes injury to invitees?
Claims Pointer: Business owners are generally not liable for harm caused by third party criminal acts. However, under special circumstances, a landowner or possessor of land can be held liable to victims that are injured as a result of criminal acts. In this case, the Washington Supreme Court clarified that liability for criminal acts of a third party only arises when there is (1) imminent or immediate criminal harm or (2) the owner or possessor could foresee harm based on a history of prior acts that are similar in nature, close in time, and sufficient in number to put the owner on notice that criminal harm could occur again.
McKown v. Simon Property Group, Inc., 2015 WL 967917.
In 2005, Dominick S. Maldonado, wearing a dark trench coat and armed with two automatic weapons, entered the Tacoma Mall and began firing a gun at shoppers and employees, injuring seven. One of the employees, McKown attempted to stop Maldonado and was shot and injured in the process. There were only four unarmed security employees on the premises, no security cameras, and the mall intercom was inaudible and inaccessible the day of the shooting. McKown sued the property manager, Simon Property Group, Inc., for negligence for failing to protect him from foreseeable criminal conduct. The case was removed to federal court.
Simon filed a motion for summary judgment but the trial court found that it could not grant summary judgment because there was a genuine issue of material facts as to whether Maldonado’s criminal conduct was foreseeable. Simon moved for reconsideration on the basis that Washington uses the “prior similar acts on the premises” test for foreseeability of criminal acts, which requires that a plaintiff present evidence that “very similar criminal conduct has occurred on the premises in the past.” The trial court then vacated its holding and granted Simon’s motion. The trial court considered six other shootings and 3 gun-related incidents on the Tacoma Mall property but determined that they were too remote in time and not similar enough to satisfy the test. Plaintiff appealed.
The Ninth Circuit Court of Appeals acknowledged that the Washington Supreme Court interpretation of the law controls, but expressed its uncertainty about the state of the law in Washington. It pointed out that while the Washington Supreme Court recognized a duty to protect invitees from “imminent criminal harm” and “foreseeable criminal conduct” in 1997, the Washington Court of Appeals had since narrowed the scope of that duty. The Ninth Circuit asked the Washington Supreme Court to clarify the state of Washington law on the issue.
The majority of the Washington Supreme Court pointed out that the Ninth Circuit essentially asked two questions: (1) whether Washington applies the similar acts test as argued by Simon; and (2) how similar a prior act must be to create a question of fact for the jury (whether it will survive summary judgment).
(1) As to the first question, the court first set out that liability for criminal acts is the exception to the rule in Washington. The court explained that two situations give a landowner reason to know—when there is immediate or imminent harm or when, based on the landowner’s experience, place of business, or character of the business, there is a likelihood that a third party will cause harm to invitees. The court stated that while the prior criminal acts test is one basis for liability for criminal acts by third parties, it is not the only basis. Because the parties only addressed the issue of similar prior criminal acts, the court examined only that question in detail.
(2) Prior criminal acts put a landowner on notice of potential future criminal harm if they are sufficiently similar in nature, close in time, and sufficiently numerous to be foreseeable. A high crime neighborhood is not enough on its own to make criminal acts foreseeable to a landowner or business. The court summarized that in order for an owner or possessor of land to be liable for the criminal acts of a third person, the owner or possessor must know from experience of prior similar incidents.
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