McKown v. Simon Prop. Grp., Inc., 182 Wn. 2d 752

Summary

The Washington Supreme Court answered certified questions from the Ninth Circuit concerning a business owner's duty to protect invitees from third-party criminal conduct. The court held that Washington generally follows Restatement (Second) of Torts § 344 and comments d and f, and that a duty based on prior similar acts requires incidents sufficiently similar in nature and location, sufficiently close in time, and sufficiently numerous to provide notice of likely harm. The court did not decide when a duty may arise solely from the place or character of a business.

Holdings

1. Washington generally adopts Restatement (Second) of Torts § 344, including comments d and f, as consistent with Washington law and as describing the contours of a business possessor's limited duty to protect invitees from third-party criminal conduct.
2. Proof of prior similar acts is not the only way to establish a business's duty or the foreseeability of third-party criminal harm under § 344. The court declined to decide the circumstances under which the place or character of a business alone may create such a duty.
3. When a duty is premised on the possessor's prior experience, the plaintiff must generally show a history of prior similar incidents on the business premises. The prior incidents must be sufficiently similar in nature and location, sufficiently close in time, and sufficiently numerous to have placed the business on notice that similar criminal conduct was likely to occur.

Questions Presented

1. Whether Washington generally adopts Restatement (Second) of Torts § 344, including comments d and f, as governing the duty owed by businesses to invitees.
2. Whether a plaintiff must prove prior similar acts of violence on the premises to create a genuine issue of material fact regarding the foreseeability of third-party criminal harm.
3. If a prior-similar-incidents approach applies, what characteristics make prior incidents sufficiently similar to establish foreseeability.
4. Whether the place or character of a business, standing alone, can establish a duty to protect invitees from third-party criminal conduct.

Disposition

other