Brendan McKown v. Simon Property Group Inc

MEMORANDUM

Brendan McKown appeals from summary judgment in favor of Defendants Simon Property Group, Inc. ("Simon”) and IPC International Corp. (“IPC”). We 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, 133 Wash.2d 192 , 943 P.2d 286, 293 (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 crimi nal 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., 182 Wash.2d 752 , 344 P.3d 661 , 667-68 & n. 5 (2015). Because the…