Norma Winffel v. Montgomery Mall Owner, LLC ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1674
NORMA I. WINFFEL, Individually and as Personal Representative of the Estate of
Malcolm Winffel; BRANDON WINFFEL; KAYLA WINFFEL; JULIA
RODRIGUEZ; ALEJANDRO WINFFEL; CARL UNGER; VIRGINIA
HENDERSON,
Plaintiffs - Appellants,
v.
MONTGOMERY MALL OWNER, LLC; PROFESSIONAL SECURITY
CONSULTANTS; PROFESSIONAL SECURITY CONCEPTS, INC.;
WESTFIELD PROPERTY MANAGEMENT, LLC;
Defendants - Appellees,
and
WESTFIELD, LLC,
Defendant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Lydia Kay Griggsby, District Judge. (8:19-cv-00838-LKG)
Argued: January 26, 2023 Decided: April 4, 2023
Before NIEMEYER, RUSHING, and HEYTENS, Circuit Judges.
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Affirmed by unpublished opinion. Judge Heytens wrote the opinion, in which Judge
Niemeyer and Judge Rushing joined.
ARGUED: Jack A. Gold, KARP, WIGODSKY, NORWIND, KUDEL & GOLD, P.A.,
Rockville, Maryland, for Appellants. Brian Thomas Gallagher, COUNCIL, BARADEL,
KOSMERL & NOLAN, P.A., Annapolis, Maryland; Heather Kathleen Bardot,
MCGAVIN, BOYCE, BARDOT, THORSEN & KATZ, P.C., Fairfax, Virginia, for
Appellees. ON BRIEF: Zachary William James King, Demosthenes Komis, KARP,
WIGODSKY, NORWIND, KUDEL & GOLD, P.A., Rockville, Maryland, for Appellants.
N. Tucker Meneely, COUNCIL, BARADEL, KOSMERL & NOLAN, P.A., Annapolis,
Maryland, for Appellees Montgomery Mall Owner, LLC, and Westfield, LLC.
Unpublished opinions are not binding precedent in this circuit.
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TOBY HEYTENS, Circuit Judge:
A man shot and killed his wife while she was picking up their children at a high
school. The next day, he shot two strangers—Malcolm Winffel and Carl Unger—while
attempting a carjacking in a mall parking lot about 14 miles away. Winffel died; Unger
was seriously injured. The shooter fled the scene and killed another person before being
apprehended. He is now serving a life sentence.
Seeking compensation for their losses, Winffel’s estate, Winffel’s spouse, Unger,
and Unger’s spouse sued the mall’s owners and a company that provided security services
for the mall in federal district court. 1 The only basis for federal jurisdiction is diversity of
citizenship, and all agree the case is governed by Maryland law. The complaint’s unifying
allegation is that the mall’s owners and the security company failed to provide adequate
security to keep patrons safe.
Defendants moved for summary judgment on five grounds, including that they owed
no legal duty to plaintiffs, they did not breach any duty they had, and any breach was not
the proximate cause of the alleged injuries.
The district court granted summary judgment for defendants. The court questioned
plaintiffs’ assertion “that the defendants breached a duty of care by failing to identify [the
1
Plaintiffs also sued a company called Professional Security Concepts, Inc. But the
only contract in the record is between one of the mall’s owners and defendant Professional
Security Consultants, and plaintiffs have not challenged defendants’ assertion that
Professional Security Concepts “had no contract with or connection to the mall at issue.”
Mall Br. 3 n.2; see Oral Arg. 27:42–28:08. We thus affirm the district court’s grant of
summary judgment for Professional Security Concepts on that basis.
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shooter] as a threat to Mall patrons and by failing to deter [him] from entering the Mall on
May 6, 2016.” JA 416. It also faulted plaintiffs for failing to provide any “indication of
what th[e] standard of care would be” even “at this mature stage in this litigation.” JA 415.
In the end, however, the district court rested its decision on the ground that “defendants did
not owe a duty of care to” plaintiffs. JA 416. We review both the district court’s grant of
summary judgment and its interpretation of state law de novo. See Colorado Bankers Life
Ins. Co. v. Academy Fin. Assets, LLC, 60 F.4th 148, 151, 153 (4th Cir. 2023).
We agree with the district court that plaintiffs failed to create a genuine dispute of
material fact about whether the mall’s owners had a legal duty to protect them. As plaintiffs
admit, the general rule in Maryland is that “there is no duty to protect a victim from the
criminal acts of a third person.” Pls.’ Br. 26 (quoting Corinaldi v. Columbia Courtyard,
Inc., 873 A.2d 483, 489 (Md. Ct. Spec. App. 2005)). And although Maryland courts have
recognized three circumstances when “a landowner may be held liable when someone is
injured by third party criminal activities on the premises,” Troxel v. Iguana Cantina, LLC,
29 A.3d 1038, 1050 (Md. Ct. Spec. App. 2011), this case falls outside them.
First, plaintiffs cannot establish a duty based on the mall owners’ “prior knowledge
of similar criminal activity—evidenced by past events—occurring on the premises.”
Troxel, 29 A.3d at 1050. Plaintiffs submitted no evidence of previous shootings or
attempted carjackings at the mall. Rather, in opposing defendants’ summary judgment
motion, plaintiffs presented evidence of—at most—two previous incidents of violence
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during the three-year period before the shooting that gave rise to this case. 2 That is far
fewer than those involved in plaintiffs’ self-described best case, which featured at least 12
aggravated assaults, two robberies, a rape, two assaults on police officers, and “up to five
fights per night on college nights” during a similar period. Troxel, 29 A.3d at 1051;
see Oral Arg. 6:44–7:36. If two violent incidents at a large commercial shopping center
over three years sufficed to flip the presumption that business owners have no duty to
protect patrons against third-party criminal activity, the exception would quickly swallow
the rule.
Second, this is not a case when the property owner knew of “prior conduct of the
assailant” that made the harm “foreseeable and preventable.” Corinaldi, 873 A.2d at 492.
Until now, Maryland courts appear to have applied this doctrine only to assailants who had
prior run-ins with a particular landowner rather than those—like the shooter here—who
committed their previous crimes elsewhere. See id. (citing University of Maryland Eastern
Shore v. Rhaney, 858 A.2d 497 (Md. Ct. Spec. App. 2004), which involved a student who
attacked his roommate in a dorm room after committing assaults elsewhere on campus).
And even if Maryland courts might extend the doctrine to cover a circumstance where a
particular assailant was, for example, repeatedly attacking people in mall parking lots, that
2
Before this Court, plaintiffs also cite an expert’s testimony that he had reviewed
unspecified “historical data” referencing a rape at some point “over, I think, the last four
or five years.” JA 351. Even assuming this portion of the expert’s testimony would be
admissible, plaintiffs do not challenge defendants’ assertion that they never relied on it in
opposing the defendants’ summary judgment motion. We thus decline to consider the
testimony in our analysis. See, e.g., Bell v. Brockett, 922 F.3d 502, 513 (4th Cir. 2019).
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is a far cry from what we have here. Instead, the only prior conduct of the assailant appeared
to be a domestic crime 14 miles away from the mall. Any duty imposed under such a theory,
therefore, would not be limited to the mall but would seemingly reach every business (and
perhaps every landowner) throughout a large and densely populated area. We do not think
the Maryland courts would take that step.
Finally, this is not a time when a property owner “had knowledge of events
occurring immediately before the actual criminal activity that made imminent harm
foreseeable.” Troxel, 29 A.3d at 1050. In Corinaldi v. Columbia Courtyard, Inc., 873 A.2d
483 (Md. Ct. Spec. App. 2005), for example, Maryland’s intermediate appellate court
concluded this standard could be satisfied where a hotel employee learned someone had a
gun at a large nighttime party at which people had been heard arguing. Id. at 494–95. Here,
in contrast, the record reveals no evidence from which a reasonable factfinder could
conclude a deadly attack against mall patrons was imminent.
We also hold the district court correctly granted summary judgment to the security
company. Plaintiffs insist Maryland’s highest court would adopt the doctrine set forth in
Section 324A of the Restatement (Second) of Torts and, under that doctrine, the security
company owed them a legal duty. For their part, defendants point to the absence of any
Maryland statute or case law announcing such a rule and urge this Court not to “expand
the law” in such a manner. Mall Br. 16.
Whether (and if so when) to impose a legal duty on those who contract to provide
security services is a matter with significant policy implications, and any prediction we
offered could be superseded at any time by the Maryland courts. But we need not resolve
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that duty issue to resolve this case in favor of the security company because “we may affirm
on any grounds apparent from the record.” Pitt Cnty. v. Hotels.com, L.P., 553 F.3d 308,
311 (4th Cir. 2009) (alterations and quotation marks omitted). We thus hold the district
court correctly granted summary judgment to the security company because plaintiffs
failed to create a genuine dispute of material fact about whether any breach of duty was the
proximate cause of the harms for which they seek relief.
Plaintiffs assert the security company was short-staffed on the morning of the
shooting and had not patrolled the relevant parking lot during the two hours before the
shooter’s attack. Having reviewed the record, however, we see no evidence that extra staff
or more frequent patrols would have prevented the shooting. See Pittway Corp. v. Collins,
973 A.2d 771, 786 (Md. 2009) (“[N]egligence is not actionable unless it is a proximate
cause of the harm alleged.”). Nor—even “at this mature stage in this litigation,” JA 415—
have plaintiffs identified any other concrete, reasonable actions that would have prevented
the shooting. Plaintiffs’ silence on this point is all the more telling given that there was an
armed police officer sitting in a marked patrol car about 50 yards from the scene of the
shooting, whose presence neither deterred the shooter nor prevented him from escaping on
foot.
* * *
What happened at the mall was undeniably tragic. Because we see no reason to
believe Maryland’s highest court would impose tort liability here, however, the judgment
of the district court is
AFFIRMED.
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