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Real Estate
7 min read
Areas of Expertise :
Premises Liability, Security, Property Management, Law Enforcement, Security Guard
Published Date:
Last Modified Date:
Jurisdiction:
Federal. Ninth Circuit
Court:
In the case of McKown v. Simon Property Group Inc., the tragic events of November 20, 2005, triggered a pivotal legal debate over premises liability and premises security. Brendan McKown, a retail employee and legal concealed weapon carrier, was shot multiple times while attempting to intervene during a mass shooting at the Tacoma Mall in Washington. He later brought a lawsuit against Simon Property Group, the mall’s owner, and IPC International, its contracted security provider, alleging negligent failure to implement adequate security measures. Central to the dispute was whether the shooting was foreseeable based on the mall’s history and whether the property owner owed a duty to prevent such acts.
The case progressed through district court, appellate review, and a certification to the Washington Supreme Court, which clarified the legal standard of foreseeability in premises security cases involving violent third-party acts. The courts examined over a decade of prior gun-related incidents at Tacoma Mall, evaluating their similarity and timing to determine whether the 2005 shooting should have been anticipated. Ultimately, the Ninth Circuit upheld the district court’s decision to grant summary judgment to the defendants, concluding the attack was not legally foreseeable under Washington law.
Dominick Maldonado entered the Tacoma Mall in Tacoma, Washington, carrying a MAK-90 rifle, Tec-9 pistol, and ammunition concealed in a guitar case. During an eight-minute rampage, he injured seven people and took hostages in a Sam Goody store. Brendan McKown, a retail employee with a legal concealed weapon, attempted to intervene and was shot multiple times, resulting in permanent paralysis.
Brendan McKown filed a premises liability and negligent security lawsuit against Simon Property Group and IPC International in Pierce County Superior Court. He alleged that the defendants failed to provide adequate security despite prior violent incidents at the mall. The case was removed to the U.S. District Court for the Western District of Washington under diversity jurisdiction.
The federal district court denied Simon’s motion for summary judgment, finding that questions remained about the foreseeability of the shooting and whether Simon’s security measures were adequate. The court noted deficiencies including the absence of surveillance cameras, understaffed unarmed guards, and a nonfunctional intercom system.
Upon reviewing additional evidence, including police reports and incident history, the court reversed itself and granted summary judgment in favor of Simon Property Group. The judge ruled that the prior incidents presented by McKown were too dissimilar in nature, location, and timing to make the 2005 shooting legally foreseeable under Washington law.
The Ninth Circuit Court of Appeals reviewed McKown’s appeal and certified three legal questions to the Washington Supreme Court. The appellate court sought guidance on whether foreseeability in negligent security cases required proof of prior similar criminal acts on the premises.
The Washington Supreme Court held that business owners owe a duty to protect invitees from criminal acts if such acts are foreseeable based on prior incidents that are sufficiently similar in nature, location, and time. However, the court did not find that foreseeability extended to acts like Maldonado’s under the circumstances presented.
Applying the Washington Supreme Court’s clarified standard, the Ninth Circuit affirmed the district court’s grant of summary judgment in favor of Simon Property Group. The court concluded that the mall shooting was not legally foreseeable and thus no duty was owed to McKown. The litigation concluded with no liability assigned to the defendants.
U.S. District Court for the Western District of Washington
Case Name:
McKown v. Simon Property Group, Inc.
Premises Security
Crime Prevention
Security Guard Procedures
Security Negligence
Security Systems
Retail Store Safety
Risk Assessment
In the case of McKown v. Simon Property Group Inc., the tragic events of November 20, 2005, triggered a pivotal legal debate over premises liability and premises security. Brendan McKown, a retail employee and legal concealed weapon carrier, was shot multiple times while attempting to intervene during a mass shooting at the Tacoma Mall in Washington. He later brought a lawsuit against Simon Property Group, the mall’s owner, and IPC International, its contracted security provider, alleging negligent failure to implement adequate security measures. Central to the dispute was whether the shooting was foreseeable based on the mall’s history and whether the property owner owed a duty to prevent such acts.
The case progressed through district court, appellate review, and a certification to the Washington Supreme Court, which clarified the legal standard of foreseeability in premises security cases involving violent third-party acts. The courts examined over a decade of prior gun-related incidents at Tacoma Mall, evaluating their similarity and timing to determine whether the 2005 shooting should have been anticipated. Ultimately, the Ninth Circuit upheld the district court’s decision to grant summary judgment to the defendants, concluding the attack was not legally foreseeable under Washington law.
Dominick Maldonado entered the Tacoma Mall in Tacoma, Washington, carrying a MAK-90 rifle, Tec-9 pistol, and ammunition concealed in a guitar case. During an eight-minute rampage, he injured seven people and took hostages in a Sam Goody store. Brendan McKown, a retail employee with a legal concealed weapon, attempted to intervene and was shot multiple times, resulting in permanent paralysis.
Brendan McKown filed a premises liability and negligent security lawsuit against Simon Property Group and IPC International in Pierce County Superior Court. He alleged that the defendants failed to provide adequate security despite prior violent incidents at the mall. The case was removed to the U.S. District Court for the Western District of Washington under diversity jurisdiction.
The federal district court denied Simon’s motion for summary judgment, finding that questions remained about the foreseeability of the shooting and whether Simon’s security measures were adequate. The court noted deficiencies including the absence of surveillance cameras, understaffed unarmed guards, and a nonfunctional intercom system.
Upon reviewing additional evidence, including police reports and incident history, the court reversed itself and granted summary judgment in favor of Simon Property Group. The judge ruled that the prior incidents presented by McKown were too dissimilar in nature, location, and timing to make the 2005 shooting legally foreseeable under Washington law.
The Ninth Circuit Court of Appeals reviewed McKown’s appeal and certified three legal questions to the Washington Supreme Court. The appellate court sought guidance on whether foreseeability in negligent security cases required proof of prior similar criminal acts on the premises.
The Washington Supreme Court held that business owners owe a duty to protect invitees from criminal acts if such acts are foreseeable based on prior incidents that are sufficiently similar in nature, location, and time. However, the court did not find that foreseeability extended to acts like Maldonado’s under the circumstances presented.
Applying the Washington Supreme Court’s clarified standard, the Ninth Circuit affirmed the district court’s grant of summary judgment in favor of Simon Property Group. The court concluded that the mall shooting was not legally foreseeable and thus no duty was owed to McKown. The litigation concluded with no liability assigned to the defendants.
Premises Security Expert Witness
William Nesbit was retained by Brendan McKown’s legal team to provide expert analysis on the mall’s security practices. He reviewed discovery materials, authored a report, and provided deposition testimony concerning security measures at Tacoma Mall.
Nesbit’s opinions focused on areas such as the absence of surveillance cameras, limitations in the intercom system, and security personnel training.
Crime Prevention Expert Witness
These experts analyze historical crime patterns, geographic risk factors, and property vulnerabilities to assess whether violent incidents were reasonably foreseeable. They are often consulted on CPTED (Crime Prevention Through Environmental Design) principles and broader strategies for proactive threat mitigation in public and commercial spaces.
Property Management Expert Witness
These experts evaluate the responsibilities of property owners and management entities, particularly in relation to security staffing, vendor oversight, and on-site safety procedures. They commonly provide insight into industry-standard practices for maintaining tenant safety and minimizing liability in retail centers, malls, and multi-tenant properties.
Law Enforcement Expert Witness
These experts assess the alignment between private security operations and recognized police protocols. Their evaluations may include analysis of emergency preparedness, coordination with law enforcement agencies, and adherence to standards concerning use-of-force and escalation response.
Foreseeability Requires Specificity in Violent Incident History
Courts expect past incidents used to support foreseeability claims to be closely similar in nature, time, and location to the act in question. General patterns of criminal activity are insufficient if they don’t clearly mirror the type of harm alleged. Attorneys must present detailed historical data that shows a consistent risk pattern.
Summary Judgment May Turn on Expert Testimony Limitations
Even with expert witness reports, courts may exclude testimony that crosses into legal conclusions, such as whether a duty of care existed. Lawyers should ensure that expert opinions remain within their technical domain to avoid dismissal on procedural grounds. Careful phrasing and adherence to evidentiary standards are critical.
Certified Legal Questions Can Shape State-Level Duty Standards
When legal standards are unsettled, federal courts may certify questions to state supreme courts for clarification, as seen in this case. Attorneys should consider the broader strategic impact of certification on tort doctrine and precedent. Such mechanisms can help solidify or challenge duty frameworks in security litigation.
Premises Security Protocols Must Be Benchmarked Against Industry Standards
In negligent security cases, evidence about security staffing, camera functionality, intercom systems, and patrol routines must be tied to widely accepted benchmarks. Expert analysis is essential to compare actual practices with what is considered reasonable under similar circumstances. Establishing a clear deviation from standards can strengthen causation arguments.
Legal Duty to Protect Is Narrowly Defined in Business Contexts
Washington’s ruling reinforced that commercial property owners only owe a duty to protect against criminal acts that are clearly foreseeable. Lawyers should advise clients that implementing baseline security is not always enough, its sufficiency will be judged through the lens of foreseeability and prior incident relevance.
The McKown v. Simon Property Group Inc. case underscores the legal complexity surrounding violent third-party acts and property owner responsibility. At the heart of this premises liability dispute was the question of foreseeability, whether past incidents at Tacoma Mall created a duty for the property owner to prevent the 2005 mass shooting. Despite a compelling narrative and evidence of prior criminal activity, both the district and appellate courts ruled that the shooting was not legally foreseeable, setting a high bar for plaintiffs pursuing negligent security claims under Washington law.
This case also highlights the evolving role of expert testimony in shaping litigation outcomes involving premises security. Expert witnesses, including premises security, contributed to critical discussions on the adequacy of safety protocols, the mall’s historical risk profile, and whether industry standards were met. As similar cases continue to arise in retail, entertainment, and mixed-use spaces, attorneys must rigorously document crime patterns and consult experienced experts to build fact-based, legally sound arguments.
What was the central legal issue in McKown v. Simon Property Group?
The central issue was whether Simon Property Group and its security contractor owed Brendan McKown a duty to use reasonable care to protect him from the Tacoma Mall shooting. Resolving that issue required the courts to determine when harmful third-party conduct is reasonably foreseeable under Washington premises liability law.
What does foreseeability mean in Washington premises liability cases?
Foreseeability concerns whether a property owner knew or had reason to know that harmful third-party conduct was likely to occur. Prior similar incidents can establish foreseeability when they are sufficiently similar in nature and location, sufficiently close in time, and sufficiently numerous, but the Washington Supreme Court stated that such incidents are not always the only possible basis for establishing a duty.
How did the courts rule in McKown v. Simon Property Group?
The district court initially denied Simon’s summary-judgment request but later reconsidered and entered judgment for the defendants. After obtaining guidance from the Washington Supreme Court, the Ninth Circuit vacated the judgment for Simon, reversed the judgment for IPC, and remanded the case. In 2018, the district court found sufficient evidence that the defendants owed McKown a duty and denied most of their renewed summary-judgment requests.
What standard does Washington law apply to harmful third-party acts?
Washington follows Restatement (Second) of Torts § 344 and its comments when evaluating a business owner’s duty to invitees. A duty may arise when the owner knows or has reason to know of immediate harm or, based on past experience, the location, or the nature of the business, has reason to anticipate harmful third-party conduct.
How did Restatement (Second) of Torts § 344 apply in this case?
Premises Security Expert Witness
William Nesbit was retained by Brendan McKown’s legal team to provide expert analysis on the mall’s security practices. He reviewed discovery materials, authored a report, and provided deposition testimony concerning security measures at Tacoma Mall.
Nesbit’s opinions focused on areas such as the absence of surveillance cameras, limitations in the intercom system, and security personnel training.
Crime Prevention Expert Witness
These experts analyze historical crime patterns, geographic risk factors, and property vulnerabilities to assess whether violent incidents were reasonably foreseeable. They are often consulted on CPTED (Crime Prevention Through Environmental Design) principles and broader strategies for proactive threat mitigation in public and commercial spaces.
Property Management Expert Witness
These experts evaluate the responsibilities of property owners and management entities, particularly in relation to security staffing, vendor oversight, and on-site safety procedures. They commonly provide insight into industry-standard practices for maintaining tenant safety and minimizing liability in retail centers, malls, and multi-tenant properties.
Law Enforcement Expert Witness
These experts assess the alignment between private security operations and recognized police protocols. Their evaluations may include analysis of emergency preparedness, coordination with law enforcement agencies, and adherence to standards concerning use-of-force and escalation response.
Foreseeability Requires Specificity in Violent Incident History
Courts expect past incidents used to support foreseeability claims to be closely similar in nature, time, and location to the act in question. General patterns of criminal activity are insufficient if they don’t clearly mirror the type of harm alleged. Attorneys must present detailed historical data that shows a consistent risk pattern.
Summary Judgment May Turn on Expert Testimony Limitations
Even with expert witness reports, courts may exclude testimony that crosses into legal conclusions, such as whether a duty of care existed. Lawyers should ensure that expert opinions remain within their technical domain to avoid dismissal on procedural grounds. Careful phrasing and adherence to evidentiary standards are critical.
Certified Legal Questions Can Shape State-Level Duty Standards
When legal standards are unsettled, federal courts may certify questions to state supreme courts for clarification, as seen in this case. Attorneys should consider the broader strategic impact of certification on tort doctrine and precedent. Such mechanisms can help solidify or challenge duty frameworks in security litigation.
Premises Security Protocols Must Be Benchmarked Against Industry Standards
In negligent security cases, evidence about security staffing, camera functionality, intercom systems, and patrol routines must be tied to widely accepted benchmarks. Expert analysis is essential to compare actual practices with what is considered reasonable under similar circumstances. Establishing a clear deviation from standards can strengthen causation arguments.
Legal Duty to Protect Is Narrowly Defined in Business Contexts
Washington’s ruling reinforced that commercial property owners only owe a duty to protect against criminal acts that are clearly foreseeable. Lawyers should advise clients that implementing baseline security is not always enough, its sufficiency will be judged through the lens of foreseeability and prior incident relevance.
The McKown v. Simon Property Group Inc. case underscores the legal complexity surrounding violent third-party acts and property owner responsibility. At the heart of this premises liability dispute was the question of foreseeability, whether past incidents at Tacoma Mall created a duty for the property owner to prevent the 2005 mass shooting. Despite a compelling narrative and evidence of prior criminal activity, both the district and appellate courts ruled that the shooting was not legally foreseeable, setting a high bar for plaintiffs pursuing negligent security claims under Washington law.
This case also highlights the evolving role of expert testimony in shaping litigation outcomes involving premises security. Expert witnesses, including premises security, contributed to critical discussions on the adequacy of safety protocols, the mall’s historical risk profile, and whether industry standards were met. As similar cases continue to arise in retail, entertainment, and mixed-use spaces, attorneys must rigorously document crime patterns and consult experienced experts to build fact-based, legally sound arguments.
What was the central legal issue in McKown v. Simon Property Group?
The central issue was whether Simon Property Group and its security contractor owed Brendan McKown a duty to use reasonable care to protect him from the Tacoma Mall shooting. Resolving that issue required the courts to determine when harmful third-party conduct is reasonably foreseeable under Washington premises liability law.
What does foreseeability mean in Washington premises liability cases?
Foreseeability concerns whether a property owner knew or had reason to know that harmful third-party conduct was likely to occur. Prior similar incidents can establish foreseeability when they are sufficiently similar in nature and location, sufficiently close in time, and sufficiently numerous, but the Washington Supreme Court stated that such incidents are not always the only possible basis for establishing a duty.
How did the courts rule in McKown v. Simon Property Group?
The district court initially denied Simon’s summary-judgment request but later reconsidered and entered judgment for the defendants. After obtaining guidance from the Washington Supreme Court, the Ninth Circuit vacated the judgment for Simon, reversed the judgment for IPC, and remanded the case. In 2018, the district court found sufficient evidence that the defendants owed McKown a duty and denied most of their renewed summary-judgment requests.
What standard does Washington law apply to harmful third-party acts?
Washington follows Restatement (Second) of Torts § 344 and its comments when evaluating a business owner’s duty to invitees. A duty may arise when the owner knows or has reason to know of immediate harm or, based on past experience, the location, or the nature of the business, has reason to anticipate harmful third-party conduct.
How did Restatement (Second) of Torts § 344 apply in this case?
The Washington Supreme Court determined that § 344 and comments d and f are generally consistent with Washington law. These provisions recognize that a business may have a duty to take reasonable precautions when it knows or has reason to know that harmful third-party conduct is occurring or is likely to occur.
What foreseeability rule did McKown establish for later premises liability claims?
McKown rejected an absolute rule requiring proof of prior similar incidents in every case. When foreseeability is based on a property owner’s past experience, however, the prior incidents generally must be sufficiently similar, recent, and numerous to place the owner on notice that comparable conduct was likely.
Premises Security
Crime Prevention
Security Guard Procedures
Security Negligence
Security Systems
Retail Store Safety
Risk Assessment
Real Estate Appraisal, +3
Real Estate
Mold, +4
Real Estate
The Washington Supreme Court determined that § 344 and comments d and f are generally consistent with Washington law. These provisions recognize that a business may have a duty to take reasonable precautions when it knows or has reason to know that harmful third-party conduct is occurring or is likely to occur.
What foreseeability rule did McKown establish for later premises liability claims?
McKown rejected an absolute rule requiring proof of prior similar incidents in every case. When foreseeability is based on a property owner’s past experience, however, the prior incidents generally must be sufficiently similar, recent, and numerous to place the owner on notice that comparable conduct was likely.