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Brendan Mckown, A Single Individual v. Simon Property Group Inc

August 6, 2012

BRENDAN MCKOWN, A SINGLE INDIVIDUAL,
PLAINTIFF-APPELLANT,
v.
SIMON PROPERTY GROUP INC, A WESTERN DISTRICT OF DELAWARE CORPORATION DOING WASHINGTON, BUSINESS AS TACOMA MALL;
IPC TACOMA INTERNATIONAL CORPORATION, AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



D.C. No. 3:08-cv-05754-BHS

FOR PUBLICATION

ORDER

Before: Ronald M. Gould, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.

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 foreseeability of the harm resulting from a third party's criminal act when the defendant did not know of the dangerous propensities 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 previous 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 Property 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.*fn1

The district court granted summary judgment to the defendants, 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 confronted 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 foreseeable 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 judgment 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. Maldonado walked into the Tacoma Mall, in Tacoma, Washington. 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 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 minutes, 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. . . .*fn2

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.

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 "Security Services Contract" to provide security at the mall. In January 2003, the contract was renewed, and it was then amended in 2004. Under the contract, IPC was to provide "security services 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 criminal conduct; (2) negligent rendering of security measures and services; (3) negligent performance of undertaken ...


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