FILED
NOT FOR PUBLICATION
AUG 11 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENDAN MCKOWN, a single No. 11-35461
individual,
D.C. No. 3:08-cv-05754-BHS
Plaintiff - Appellant,
v. MEMORANDUM*
SIMON PROPERTY GROUP INC, a
Delaware corporation doing business as
Tacoma Mall and IPC INTERNATIONAL
CORPORATION, an Illinois corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted May 7, 2012
Seattle, Washington
Before: GOULD, BYBEE, and BEA, Circuit Judges.
Brendan McKown appeals from summary judgment in favor of Defendants
Simon Property Group, Inc. (“Simon”) and IPC International Corp. (“IPC”). We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
have jurisdiction under 28 U.S.C. § 1291. We previously stayed proceedings in
this case pending the Washington Supreme Court’s response to three certified
questions that have now been answered. See McKown v. Simon Prop. Grp. Inc.,
689 F.3d 1086 (9th Cir. 2012). We vacate in part, reverse in part, and remand.
Under Washington law, a business owner has a duty to protect invitees from
“reasonably foreseeable criminal conduct by third persons.” Nivens v. 7-11
Hoagy’s Corner, 943 P.2d 286, 293 (Wash. 1997). In granting summary judgment
to Simon, the mall owner, the district court held as a matter of law that the shooting
was not reasonably foreseeable, because McKown failed to present competent
evidence of prior similar criminal acts on the mall premises. The Washington
Supreme Court has now clarified that a plaintiff need not always prove prior acts of
similar conduct to establish that harm was reasonably foreseeable. McKown v.
Simon Prop. Grp. Inc., 344 P.3d 661, 667–68 & n.5 (Wash. 2015). Because the
district court required McKown to introduce such evidence in order to survive
summary judgment in favor of Defendant Simon, we vacate the district court’s
grant of summary judgment to Simon. We remand for the district court to
consider, in the first instance, whether McKown can survive summary judgment in
light of the Washington Supreme Court’s new guidance.
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The district court also granted summary judgment to IPC, concluding that
the security company owed no duty of care to McKown where McKown failed to
show that his status as a business invitee of Simon created a “special relationship”
between IPC and McKown. The district court erred by applying this “special
relationship” test. In Washington, when a security company contracts with a
landowner to provide security services on the owner’s property, and the security
company acts on behalf of the owner to provide those services, the security
company may be subject to the same liability for the physical harm caused by
others as though the security company were the owner. See Van Scoik v. Wash.
Dep’t of Natural Res., 203 P.3d 389, 392 (Wash. Ct. App. 2009); Jarr v. Seeco
Constr. Co., 666 P.2d 392, 395–96 (Wash. Ct. App. 1983); cf. Folsom v. Burger
King, 958 P.2d 301, 310 (Wash. 1998) (security company owed no duty to
restaurant employees where the security company’s contract to provide services
terminated ten months prior to the criminal act). McKown submitted evidence that
Simon and IPC had a “Security Services Contract” under which IPC agreed to
provide security services and equipment at the mall. Thus, IPC may owe a duty to
McKown that derives from its “acting on behalf of” Simon. In the absence of any
convincing evidence that the Washington Supreme Court would decide the
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question differently, we are obligated to follow the intermediate appellate court’s
decisions. See Nelson v. City of Irvine, 143 F.3d 1196, 1206–07 (9th Cir. 1998).
Because the district court erred by relying on the lack of an apparent “special
relationship” between McKown and IPC, we reverse the district court’s grant of
summary judgment to IPC. If, on remand, the district court concludes that Simon
may be liable to McKown, then IPC may be liable to the same extent.
VACATED IN PART, REVERSED IN PART, AND REMANDED.
Each party shall bear its own costs.
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