Washington Supreme Court issues an important premises-liability decision

McKown v. Simon Prop. Grp., Inc., No. 87722-0 (Wash. Mar. 5, 2015).

Under Washington law, a business owes a duty to its customers to protect them from the “reasonably foreseeable” criminal acts of third persons. But what does “reasonably foreseeable” mean in this context? That is (roughly) the question before the Washington Supreme Court in this case, which arises from a 2005 shooting at the Tacoma Mall. 

The court, in an opinion that commands the votes of six justices, defines—or tries to define—the contours of the reasonably foreseeable. It holds that proving that a crime was reasonably foreseeable doesn’t require the plaintiff to show that “acts of similar violence” have happened at the business in the past. But soon thereafter, the court adds that

[i]n 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.

It is hard to disagree with Justice Stephens, who in concurrence says that the majority’s opinion could be clearer. But what the court may be trying to say is something like this: Proof of foreseeability doesn’t require past acts of similar violence. But when a plaintiff does try to prove foreseeability through past acts of similar violence, the plaintiff must show that those acts were noticeable, whether because of their repetition, their nature, or their timing.

This case was argued more than two years ago, in February 2013.