Owners and tenants of Washington real estate, particularly of retail property and other premises open to the public, might want to take note of a recent opinion issued by the Washington Supreme Court.  The opinion (McKown v. Simon Property) arises out of a shooting incident at the Tacoma Mall in 2005 (one of the victims suing the property owner) and, accordingly, addresses the landlord’s duty to protect “business invitees” from the criminal acts of third parties.

The Washington court reaffirmed its holding in Nivens, an earlier case holding that Washington adopts Section 344 of the law treatise known as the Restatement (Second) of Torts.  Generally speaking, this section asserts the duty of the “land possessor” (i.e., not just the owner) to take reasonable measures to warn or protect its business invitees from foreseeable physical harm caused by third parties on the land.  This is an exception to the general rule that “there is no duty to protect others from the criminal acts of third parties.”  Inviting others to transact business on your property creates a special duty.

The court seems to offer comfort to “land possessors” in stating that, if the evidence of foreseeability of criminal acts is based on prior criminal acts on the premises, the plaintiff has to show evidence of “a history of prior similar incidents on the business premises within the prior experience of the possessor of the land.”  In other words, dissimilar criminal acts or criminal acts encountered by a predecessor in title to the land does not, as a legal matter, show foreseeability.

But the Washington Supreme Court also found that “proving acts of similar violence is not the only way for a plaintiff to establish a duty as provided in the Restatement.”  This holding seems to leave open the possibility of a future court rationalizing that a landowner should be charged, on equitable grounds, with knowledge of similar incidents experienced by a prior owner shortly before the landowner takes title.   And will the court hold the line presumably drawn in McKown when the evidence of foreseeability is a history of similar incidents at a different but similar property owned by the landowner – or an affiliate of the landowner?

If anything new, this opinion strongly suggests that researching a property’s history of criminal incidences should be on the due diligence checklist of buyers and tenants.  Perhaps a buyer or tenant seeking reps and warranties about a property’s criminal history isn’t so farfetched.  But none of this replaces the necessity of good liability insurance coverage.  Time to call your insurance broker?