Brendan McKown v. Simon Property Group Inc , 689 F.3d 1086 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENDAN MCKOWN, a single 
individual, No. 11-35461
Plaintiff-Appellant,
D.C. No.
v. 3:08-cv-05754-BHS
SIMON PROPERTY GROUP INC, a  Western District of
Delaware corporation doing Washington,
business as Tacoma Mall; IPC Tacoma
INTERNATIONAL CORPORATION, an
Illinois corporation, ORDER
Defendants-Appellees.

Filed August 6, 2012
Before: Ronald M. Gould, Jay S. Bybee, and Carlos T. Bea,
Circuit Judges.
COUNSEL
Darrell L. Cochran (argued), Jason P. Amala, Pfau Cochran
Vertetis Amala PLLC, Seattle, Washington, for the plaintiff-
appellant.
T. Jeffrey Keane, Keane Law Offices, Seattle, Washington,
for the defendants-appellees.
8711
8712 MCKOWN v. SIMON PROPERTY GROUP
ORDER
For the reasons explained below, we respectfully certify to
the Washington Supreme Court the following questions:
1) Does Washington adopt Restatement (Second) of Torts
§ 344 (1965), including comments d and f, as controlling law?
See Nivens v. 7-11 Hoagy’s Corner, 943 P.2d 286 (Wash.
1997).
2) To create a genuine issue of material fact as to the fore-
seeability of the harm resulting from a third party’s criminal
act when the defendant did not know of the dangerous pro-
pensities 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, 950 P.2d 522 (Wash. Ct. App. 1998); see
also Fuentes v. Port of Seattle, 82 P.3d 1175 (Wash. Ct. App.
2004); Craig v. Wash. Trust Bank, 976 P.2d 126 (Wash. Ct.
App. 1999); Raider v. Greyhound Lines, Inc., 975 P.2d 518(Wash. Ct. App. 1999); cf. Nivens, 943 P.2d 286; Christen v.
Lee, 780 P.2d 1307 (Wash. 1989); Passovoy v. Nordstrom,
Inc., 758 P.2d 524 (Wash. 1988), review denied, 112 Wash.
2d 1001 (1989); Miller v. Staton, 365 P.2d 333 (Wash. 1961).
3) If proof of previous acts of similar violence is required,
what are the characteristics which determine whether the pre-
vious acts are indeed similar?
***
The acts of violence underlying this tort case are horrific.
On November 20, 2005, Plaintiff-Appellant Brendan
McKown was shot and injured by Dominick S. Maldonado
inside the Tacoma Mall during Maldonado’s eight-minute
shooting rampage. At the time, McKown was working in one
of the stores in the Mall. Co-Defendant-Appellee Simon Prop-
MCKOWN v. SIMON PROPERTY GROUP 8713
erty owned the Mall, and IPC International, the other co-
defendant-appellee, contracted with Simon to provide security
services at the Mall. In Washington state court, McKown
brought state law negligence claims against the defendants to
recover damages for his injuries, and the defendants removed
to federal court on grounds that there was diversity jurisdiction.1
The district court granted summary judgment to the defen-
dants, and McKown appealed to our court.
While we are conscious of the very real human suffering
presented in this case, the questions with which we are con-
fronted would be perfect for a first-year torts exam. What is
the scope of the defendants’ duty to protect McKown from
harm from such a shooting? Were these acts of violence fore-
seeable to the defendants? In answering these questions, we
must look to Washington law. But, as we explain below, we
are unsure of what the answers are. We therefore certify the
above questions to the Washington Supreme Court in the
hope that the court will honor our request and clarify these
important and recurring questions.
I.
Because this is an appeal from a grant of summary judg-
ment to the defendants, we relate the facts in the light most
favorable to McKown as the nonmoving party. Olsen v. Idaho
State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir. 2004).
A.
On November 20, 2005, a man named Dominick S. Mal-
donado walked into the Tacoma Mall, in Tacoma, Washing-
ton. Maldonado was wearing a trench coat and carrying a
concealed MAK-90 rifle, a concealed Intertec Tec-9 pistol,
and a guitar case containing ammunition. After entering the
1
McKown also brought contract claims against the defendants, but he
does not press those on appeal.
8714 MCKOWN v. SIMON PROPERTY GROUP
mall, Maldonado stopped near a soda machine and loaded his
rifle, passed by a T-Mobile kiosk multiple times, and then
began shooting. Over a period of approximately eight min-
utes, Maldonado injured seven people, the last of which was
McKown.
McKown’s injuries occurred in the course of his attempt to
intervene. McKown, who was legally armed with a handgun,
had been hiding in a store with several other people when he
saw Maldonado. Here is McKown’s harrowing account of
what occurred next:
[Maldonado] turned, I got my hand in here. . . . I
[said] . . . young man, I think you need to put your
weapon down. He spins around, I draw and right as
I aim and I’m pulling the trigger back, first shot hits
me in the abdomen. Kicks my gun arm into the air.
Kicks out and contorts my legs into uncomfortable,
unduplicatable [sic] positions like up and out and up
and back. And I’m trying to bring my gun arm down
and I prayed the most un-Christian prayer of my life,
which was: “please, God, let me shoot this guy
before he kills somebody else.” . . . [The pain] was
horrible, horrible. . . .
So point is, I’m trying to bring my gun arm down
to shoot him. You know, I’m thinking I’m doing my
dying actions here, and then he hits me again and
again and again and again. . . .2
Maldonado then took several people as hostages in a Sam
Goody record store for several hours, but he was eventually
taken into custody. McKown was left paralyzed. Maldonado
was convicted of several crimes of violence and sentenced to
163 years in prison.
2
For clarity, some punctuation has been altered from that in the deposi-
tion transcript.
MCKOWN v. SIMON PROPERTY GROUP 8715
Simon Property owns the Tacoma Mall, a 1.3 million-
square-foot shopping center located in Tacoma, Washington.
In September 1999, Simon and IPC had entered into a “Secur-
ity Services Contract” to provide security at the mall. In Janu-
ary 2003, the contract was renewed, and it was then amended
in 2004. Under the contract, IPC was to provide “security ser-
vices and equipment at the [Mall].”
B.
On November 12, 2008, McKown filed a complaint against
Simon and IPC in Pierce County Superior Court in the state
of Washington, and the defendants removed to federal district
court based on diversity. In his complaint, McKown alleged
five state law causes of action against defendants: (1) failure
to protect tenants and business invitees from foreseeable crim-
inal conduct; (2) negligent rendering of security measures and
services; (3) negligent performance of undertaken duty; (4)
negligent hiring and/or failure to employ security personnel;
and (5) breach of express and/or implied contract.
Each defendant moved for summary judgment. The district
court first granted IPC’s motion and dismissed all claims
against IPC. The district court held that IPC owed no duty of
care to McKown because McKown failed to show that
McKown’s status as a business invitee of Simon, for whom
IPC contracted to provide security services, created a “special
relationship” between IPC and McKown. McKown filed a
motion for reconsideration, which the district court denied.3
However, the district court denied Simon’s motion for sum-
mary judgment regarding the tort claims. The district court
3
Western District of Washington, Local Rule CR 7(h) provides: “Stan-
dard. Motions for reconsideration are disfavored. The court will ordinarily
deny such motion in the absence of a showing of manifest error in the
prior ruling or a showing of new facts or legal authority which could not
have been brought to its attention earlier with reasonable diligence.”
8716 MCKOWN v. SIMON PROPERTY GROUP
held that the issues of foreseeability of the criminal acts and
Simon’s proximate cause for McKown’s injuries were issues
for the jury. The district court stated that it could not conclude
that Maldonado’s shooting was “so highly extraordinary or
improbable as to be wholly beyond the range of expectabili-
ty,” (quoting Christen, 780 P.2d at 1313); thus, it could not
conclude that the shooting was unforeseeable as a matter of
law.
Simon filed a motion for reconsideration. The district court
granted Simon’s motion in part on the ground that the court
had overlooked case law from Washington state intermediate
appellate courts delimiting a “prior similar acts on the prem-
ises test” to determine whether foreseeability of third-party
criminal conduct is a question for the jury. To address this
standard, the district court gave McKown the opportunity to
file additional briefing to present “evidence of relevant prior
similar acts.”
McKown presented in his supplemental briefing the decla-
ration of Darrell L. Cochran, McKown’s attorney, and eighty-
six pages of exhibits, including news articles, police incident
reports, and court records as evidence of six shootings and
three other incidents involving guns at the Tacoma Mall.
McKown, the non-moving party, summarized this evidence as
follows:
Between 1992 and 2005, the Tacoma Mall was the
location of six separate shootings:
• In May 1992, mall security ejected two groups of
men who were arguing inside the Tacoma Mall.
As one group waited at the Mall’s bus center, the
other group drove by and fired six to eight shots.
• In November 1992, a young man was shot sev-
eral times in the Tacoma Mall parking lot. His
MCKOWN v. SIMON PROPERTY GROUP 8717
friends drug [sic] him through the Mall, leaving
a trail of blood.
• In March 1993, another young man was shot in
the Tacoma Mall parking lot as he walked up to
a car. The wounded man staggered into the Mall.
In its news report of the shooting, the News Tri-
bune noted that three months earlier a man had
reported to the police that he had been robbed at
gunpoint outside the Sears store at the Mall.
• In August 1994, up to thirteen shots were fired at
the Tacoma Mall. The News Tribune reported
that “[b]ullets flew inside the Tacoma Mall on
Saturday, hitting within feet of scattering shop-
pers.”
The Pierce County prosecutor testified that
“three uninvolved witnesses were in the direct
line of fire and they all dove for cover.” She also
noted that “[t]here were 13 shell casings found in
the parking lot at the Mall and one entrance door
was shattered. At least five bullets struck the
entrance area of the Mall.” When one of the
shooters was sentenced, he was ordered to pay
restitution to the Tacoma Mall and was ordered
to have no contact with the Tacoma Mall.
• In October 1996, a gunman shot and wounded a
man as he ran into the lobby of the movie theater
at the Tacoma Mall. The man did not know who
shot him. In response to the shooting, the Tacoma
Mall’s managers told the News Tribune that they
had implemented a “crisis-management plan” and
intended to hold a meeting with the Mall’s own-
ers “to review security measures to determine if
they can be improved.”
8718 MCKOWN v. SIMON PROPERTY GROUP
• In March 2000, five youths were arrested after
they fired shots in the Tacoma Mall parking lot.
Simon also knew or should have known of other incidents
involving guns at the Tacoma Mall in the years leading up to
the shooting at issue:
• In November 2001, Tacoma Police responded
to a woman who was carjacked at gunpoint in
the parking lot of the Tacoma Mall.
• In March 2003, Tacoma Police responded to a
man who was robbed at gunpoint in the
Tacoma Mall parking lot while waiting for his
girlfriend.
• In February 2005, Tacoma Police responded to
a man who had a gun pointed at him in the
Tacoma Mall parking lot.
The district court granted Simon’s motion for reconsidera-
tion and its motion for summary judgment on McKown’s neg-
ligence claims. It concluded that “McKown [had] failed to
submit competent evidence of random acts of indiscriminate
shootings on Simon’s premises” as required by the “prior sim-
ilar acts on the premises test.” The district court found that the
incidents McKown described were (1) too remote in time,
with the most recent shooting occurring five years prior to
Maldonado’s shooting; (2) too dissimilar in location because
all the incidents occurred outside rather than inside the mall;
and (3) too dissimilar in nature because the prior incidents
involved violence directed toward a specific person rather
than at random people.4
4
Because the district court addressed all of McKown’s evidence and did
not rule any of it inadmissible, we assume that all of McKown’s evidence
of prior acts may properly be considered at this stage in the litigation.
MCKOWN v. SIMON PROPERTY GROUP 8719
McKown timely appealed the district court’s adverse
orders.
II.
The district court had diversity jurisdiction under 28 U.S.C.
§ 1332, and we have jurisdiction under 28 U.S.C. § 1291.
We review grants of summary judgment de novo and deter-
mine, “viewing the evidence in the light most favorable to the
nonmoving party, whether there are any genuine issues of
material fact and whether the district court correctly applied
the relevant substantive law.” Universal Health Servs., Inc. v.
Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004) (internal quo-
tation marks omitted).
Washington law authorizes the Washington Supreme Court
to accept certified questions from the federal courts. Wash.
Rev. Code § 2.60.020. We have previously certified questions
to the Washington Supreme Court where a question of law
“ ‘has not been clearly determined’ by the Washington
courts” and where “the answer to [the] question is outcome
determinative.” Bylsma v. Burger King Corp., 676 F.3d 779,
783 (9th Cir. 2012) (quoting Wash. Rev. Code § 2.60.020).
Certification is especially appropriate where the issues of law
are complex and have “significant policy implications.”
Perez-Farias v. Global Horizons, Inc., 668 F.3d 588, 593 (9th
Cir. 2011).
III.
In this appeal, McKown argues that Washington law estab-
lishes two separate business owner duties to its invitees, both
of which were breached by Simon and IPS: the duty to
observe and the duty to intervene. McKown further argues
that the district court erred by concluding that Maldonado’s
shooting was not foreseeable as a matter of law under either
duty. As explained below, we cannot answer this question
8720 MCKOWN v. SIMON PROPERTY GROUP
because the scope of the foreseeability inquiry under Wash-
ington law is not sufficiently clear to us. Thus, we conclude
that certification of the questions stated above is necessary.
Since we are sitting in diversity, “we must begin with the
pronouncements of the state’s highest court, which bind us.”
Hilton v. Hallmark Cards, 599 F.3d 894, 905 (9th Cir. 2010).
Neither party disputes that Washington law applies. We must
also keep in mind that only the Washington Supreme Court’s
decisions are binding, and “[i]n the absence of such a deci-
sion, a federal court must predict how the highest state court
would decide the issue using intermediate appellate court
decisions,” among other sources of authority, “as guidance.”
Nelson v. City of Irvine, 143 F.3d 1196, 1206 (9th Cir. 1998)
(internal quotation marks omitted).
A.
To show negligence under Washington law, “the plaintiff
must prove duty, breach, causation, and damages.” Nivens,
943 P.2d at 289. The key issue in this case is whether Simon
owed a duty to protect McKown from the criminal acts of
Maldonado. Whether a duty exists is a question of law. Id.
In Nivens, the Washington Supreme Court held that a busi-
ness owner owes a duty to its invitees to protect them from
harm arising from third persons because “a special relation-
ship exists between a business and an invitee.” Id. at 291-92.
Here, Simon conceded that McKown was a business invitee.
Therefore, Simon owed a duty to McKown to protect him
from harm by third persons. Id. at 292-93.
It is the scope of that duty that is dispositive. The Washing-
ton Supreme Court, in Nivens, adopted Restatement (Second)
of Torts § 344 (1965) to delimit the nature and scope of the
duty owed by a business to its invitees. Id. at 292-93. Nivens,
quoting the Restatement, says:
MCKOWN v. SIMON PROPERTY GROUP 8721
A possessor of land who holds it open to the public
for entry for his business purposes is subject to lia-
bility 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.
Id. at 292 (emphasis added).
The Nivens court also appeared expressly to adopt com-
ments d and f to § 344 to describe the limits of the duty owed.
Id. In relevant part, the court stated that a possessor of land,
although “ ‘ordinarily under no duty . . . until he knows or has
reason to know” that the acts of third persons may harm his
invitees, may “know or have reason to know, from past expe-
rience.’ ” Id. (emphasis added) (quoting § 344 cmt. f). Thus,
“[i]f the place or character of his business, or his past experi-
ence, is such that he should reasonably anticipate . . . criminal
conduct on the part of third persons, . . . he may be under a
duty to take precautions against it, and to provide a reason-
ably sufficient number of servants to afford a reasonable pro-
tection.” Id. (emphasis altered in part) (quoting § 344 cmt. f).
The Washington Supreme Court then concluded:
[B]ecause of the special relationship that exists
between a business and business invitee, we hold a
business owes a duty to its invitees to protect them
from imminent criminal harm and reasonably fore-
8722 MCKOWN v. SIMON PROPERTY GROUP
seeable criminal conduct by third persons. The busi-
ness owner must take reasonable steps to prevent
such harm in order to satisfy the duty.
Id. at 292-93.
Additional clues to the foreseeability inquiry comes from
Christen v. Lee, 780 P.2d 1307 (Wash. 1989). In Christen, the
Washington Supreme Court explained that criminal conduct
of third persons “bears on whether the act was foreseeable,
but it does not necessarily preclude a finding of foreseeabili-
ty.” Id. at 1313. The court continued: “an intervening [crimi-
nal] act is not foreseeable if it is ‘so highly extraordinary or
improbable as to be wholly beyond the range of expectabili-
ty.’ ” Id. (emphasis added) (quoting McLeod v. Grant Cnty.
Sch. Dist. No. 128, 255 P.2d 360, 364 (Wash. 1953)). The
court also noted that it is not the “ ‘unusualness of the act that
resulted in injury to [the] plaintiff that is the test of foreseea-
bility, but whether the result of the act is within the ambit of
the hazards covered by the duty imposed upon [the] defen-
dant.’ ” Id. (emphasis omitted) (quoting Rikstad v. Holmberg,
456 P.2d 355, 358 (Wash. 1969)). In other words, “[t]he man-
ner 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 lia-
bility . . . .” Rikstad, 456 P.2d at 358 (citation omitted).
Since Nivens, the Washington intermediate appellate courts
have further refined the foreseeability inquiry in a way that
seems to narrow the duty owed, and perhaps substantially so.
See Fuentes, 82 P.3d 1175; Craig, 976 P.2d 126; Raider, 975
P.2d 518; Wilbert, 950 P.2d 522. Wilbert is representative of
that quartet. In that case, a wedding party and organizers of
a private dance event rented out adjacent space in a commu-
nity center hall, operated by the Metropolitan Park District
(“Metro”). Wilbert, 950 P.2d at 523. During the dance, Der-
rick Wilbert, a business invitee, was shot and killed. Id. at
MCKOWN v. SIMON PROPERTY GROUP 8723
523-24. Wilbert’s family sued Metro, alleging negligence
based on premises liability. Id. at 524. The court of appeals
affirmed a grant of summary judgment for Metro, holding that
the shooting was not foreseeable as a matter of law because
evidence of “a number of unruly, aggressive, vulgar young
people at the dance” and fights earlier in the night were insuf-
ficient to show that Metro “should reasonably have antici-
pated a more serious misdeed.” Id. at 525. Therefore, the
shooting was unforeseeable and “Metro owed Wilbert no duty
of prevention.” Id.In reaching its decision, the court of appeals noted the prin-
ciples of foreseeability established by the Washington
Supreme Court in Nivens and other cases and gleaned from
these that foreseeability of criminal conduct has “prerequi-
sites.” Id. These “prerequisites” are “specific evidence that the
defendant knew of the dangerous propensities of the individ-
ual assailant or previous acts of similar violence on the prem-
ises.” Id.From this and the three other similar appellate cases, the
district court in this case stated the test this way: “there is an
issue for the jury as to whether the third party’s criminal con-
duct is reasonably foreseeable only if plaintiff presents com-
petent evidence that similar criminal conduct has occurred on
the premises in the past.” (Emphasis added). Applying that
test, it granted summary judgment to the defendants, because
it found that McKown’s examples were not similar enough to
the act of violence that occurred here. Therefore, the court
concluded, McKown had not met his burden to show some
evidence of similar criminal conduct on the premises, and the
case would not be allowed to go to the jury.
B.
We are unsure whether that is the proper test under Wash-
ington law, and, if it is, how it must be applied. On the one
hand, the two Washington Supreme Court cases do not create
8724 MCKOWN v. SIMON PROPERTY GROUP
a “similar acts on the premises test” in so many words. They
may allow for a broader notion of foreseeability that would
allow for McKown to take this case to a jury. On the other
hand, the intermediate appellate courts have repeatedly
applied just such a test, holding that it is a natural conse-
quence of Nivens and other Washington Supreme Court cases.
Indeed, this tension is perfectly illustrated by the district
court’s initial denial of Simon’s motion for summary judg-
ment, followed by its reversal and subsequent grant of sum-
mary judgment in light of its taking a closer look at the
intermediate appellate cases. Moreover, if the “similar acts”
test does apply, there is a subsidiary question of how “simi-
lar” the intervening acts must be to the act giving rise to the
tort to trigger the duty. Our task, when sitting in diversity, is
to ask ourselves what the Washington Supreme Court would
do with this case, using the intermediate appellate decisions
as guidance. Simply put, we just do not know what it would
do. Hence, this certification order.
We are especially reluctant to answer this question our-
selves because these questions raise important policy consid-
erations that only Washington state can answer. After all,
imposing a broader duty on a mall owner to implement secur-
ity to protect against unannounced shooters could help protect
the public. But it could also add expense for owners and
might impact willingness of out of state property groups to
buy a mall in Washington, because of expenses of monitoring
or some other security guard protection. A more extensive
requirement of surveillance or monitoring may also pose con-
cerns related to the personal privacy of patrons at the mall.
Especially in light of this particular case’s importance to the
citizens of Washington state, we think these questions should
be addressed by the state Supreme Court, rather than by a fed-
eral court sitting in diversity.
IV.
In light of our foregoing discussion, we respectfully certify
to the Washington Supreme Court the questions stated at the
MCKOWN v. SIMON PROPERTY GROUP 8725
outset of this order. We do not intend, by the phrasing of our
questions, to restrict the Washington Supreme Court’s consid-
eration of this issue. We recognize that the Washington
Supreme Court may, in its discretion, reformulate the ques-
tion. Broad v. Mannesmann Anlagenbau AG, 196 F.3d 1075,
1076 (9th Cir. 1999).
If the Washington Supreme Court accepts review of the
certified questions, we designate McKown to file the first
brief pursuant to Wash. R. App. P. 16.16(e)(1).
The Clerk of Court is hereby ordered to transmit forthwith
to the Washington Supreme Court, under official seal of the
United States Court of Appeals for the Ninth Circuit, a copy
of this order and all briefs and excerpts of record pursuant to
Wash. Rev. Code §§ 2.60.010(4), 2.60.030(2), and Wash. R.
App. P. 16.16.
Further proceedings in this court are stayed pending the
Washington Supreme Court’s decision whether it will accept
review and, if so, receipt of the answer to the certified ques-
tion. The case is withdrawn from submission until further
order from this court.
The panel will resume control and jurisdiction upon receipt
of an answer to the certified question or upon the Washington
Supreme Court’s decision to decline to answer the certified
question. When the Washington Supreme Court decides
whether or not to accept the certified question, the parties
shall file a joint status report informing this court of the deci-
sion. If the Washington Supreme Court accepts the certified
question, the parties shall file a joint status report informing
this court when the Washington Supreme Court issues its
answer.
SO ORDERED.