Business Liability for Foreseeable Harm

McKown v Simon Property Group, Supreme Court of Washington, March 5, 2015

Decision:  050405-McKnown-v-Simon-Properties

After 40 years of practicing U.S. law, I have grown to appreciate the gift we received from our colonizing parent, the common law. The civil law systems suffer from the same rigidity that all statutes impose: one size fits all. The legislature drafts a statute as a solution to a perceived problem not understanding how it might be unjust in a different fact situation. The common law can smooth out these injustices by providing court-made law which reacts to the facts and needs of justice in a particular case.

The negatives of the common law system that has decisions made by juries include unpredictability and indefensible awards. The common law has invented tools to minimize the negatives. One of those tools is “foreseeability”. It allows a court to claim that no one could have foreseen the harm so the defendant is not liable. Foreseeability is often the only legal barrier protecting a business from liability. Unfortunately it has proven to be a two-edged sword.

The limits of foreseeably was highlighted in McKown v Simon Property Group. On Sunday, November 20, 2005, Dominick S. Maldonado walked into the Tacoma Mall and opened fire on shoppers and mall employees, injuring seven people. Maldonado wore a dark trench coat concealing a MAK-90 rifle and an Intratec Tec-9 pistol, and carried a guitar case filled with ammunition. McKown, an employee at one of the retail stores, tried to stop Maldonado, but was shot and wounded. Simon Property Group owned the Tacoma Mall.

Under Washington Law, the Tacoma Mall is liable to McKown if the following test is met:

 A possessor of land who holds it open to the public for entry for his business purposes is subject to liability 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.

This language is from section 344 of the Restatement (Second) of Torts and its adoption into Washington law was confirmed in this case. It is interesting to note the difficulty the court had wrestling with the legal concept of “foreseeability” and the related concept “likelihood”. There were two concurring opinions giving separate interpretations of Restatement section 344. The majority tries to explain its opinion with the same murky logic it seeks to avoid:

 We begin by clarifying the role of foreseeability under Washington tort law. McKown confuses duty, which is a question of law for the court, with the scope of duty, which is ordinarily a question for the trier of fact. This confusion arises because McKown treats the matter of foreseeability in this case – an issue concerning whether the landowner has a duty to protect invitees at all – as if it is a question of fact about the scope of duty that should be decided by the jury. But foreseeability as a question of whether a duty is owed is ultimately for the court to decide. See generally, e.g., William H. Hardie, Jr., Foreseeability: A Murky Crystal Ball for Predicting Liability, 23 CUMB. L. REV. 349 (1992-93) (discussing role of foreseeability in determining whether a duty is owed in several contexts).

 Maybe this means the court will take a first look to see if the harm is “foreseeable” and then if it determines it is (in the opinion of the court), the jury will have a chance to second guess the decision.  Mr. Hardie states in criticism of courts’ application of foreseeability: “[t]he harm arises when courts take foreseeability seriously and try to apply it as an element of the cause of action …. Using foreseeability in a flexible, case-by-case analysis creates uncertainty by giving courts the power and method to decide cases without external restraint”.¹at 420 In other words, the courts can arbitrarily determine liability. If the judge has a decent imagination, almost any harm is foreseeable. If the judge is totally without vision, nothing is foreseeable. “As the California State Supreme Court once cogently observed, “[T]here are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages for that injury.” ²Thing v. La Chusa, 48 Cal. 3d 644,668, 771 P.2d 814, 257 Cal. Rptr. 865 (1989).

Business Liability for Foreseeable Harm