Certification From the United States Court of Appeals for the Ninth Circuit in Brendan McKown, Appellant, v. Simon Property Group, Inc., et al., Appellees, 182 Wash. 2d 752

Madsen, C.J. ¶1 This case concerns the scope of landowners’ or possessors’ responsibility for harm that results when strangers commit criminal acts against invitees on business premises. The Ninth Circuit Court of Appeals certified three questions to us regarding this duty under Washington law. In answering these questions, we hold that when a duty is premised on evidence of prior similar acts, a landowner or possessor owes a duty to protect business invitees from third party criminal conduct when such conduct is foreseeable based on past experience of prior similar acts.

The prior acts of violence on the business premises must have been sufficiently similar in nature and location to the criminal act that injured the plaintiff, sufficiently close in time to the act in question, and sufficiently numerous to have put the business on notice that such

an act was likely to occur. Based on the limited focus of the questions and the briefing, we do not decide the circumstances under which a duty would arise when the duty is based solely on the business’s place or character. FACTS ¶2 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. 1 Excerpts of R. at 18.

Brendan McKown, an employee at one of the retail stores, tried to stop Maldonado but was shot and wounded. After shooting McKown, Maldonado took several hostages before finally surrendering to the police. At the time of the shooting, there were four unarmed security guards on duty and no security cameras. Id. at 19-20. While the mall had an intercom system, it was inaudible and inaccessible on weekends, and the security guards were never trained to use it.

Id. at 19. ¶3 McKown brought a negligence action in state court against Simon Property Group Inc., alleging, in part, that Simon failed to exercise reasonable care to protect him from foreseeable criminal harm. Simon removed the case to federal district court, which has diversity jurisdiction under 28 U.S.C. § 1332. After a period of discovery, Simon filed a motion for

summary judgment, asserting that the shooting was unforeseeable and that any negligence by Simon was not a proximate cause of McKown’s injuries. The trial court found that the evidence raised a genuine issue of material fact as to whether the shooter’s criminal conduct was reasonably foreseeable. See McKown v. Simon Prop. Grp., Inc., No. C08-5754BHS, 2011 WL 62144, at *5-6, 2011 U.S. Dist. LEXIS 1716, at *15-16 (W.D. Wash. Jan. 7, 2011) (court order). Accordingly, it denied Simon’s motion for

summary judgment. 2011 WL 62144, at *6-8, 2011 U.S. Dist. LEXIS 1716, at *16-17. ¶4 Simon moved the court to reconsider its decision, asserting that it had overlooked cases from lower appellate courts in Washington applying what Simon characterized as a “ ‘prior similar acts on the premises’ ” test for the foreseeability of criminal acts. McKown v. Simon Prop. Grp., Inc., No. C08-5754BHS, 2011 WL 1085891, at *3, 2011 U.S. Dist. LEXIS 29808, at *7 (W.D. Wash. Mar. 22, 2011) (court order).

Under this test, Simon argued that third party criminal conduct is reasonably foreseeable “ ‘only if plaintiff presents competent evidence that very similar criminal conduct has occurred on the premises in the past.’ ” 2011 WL 1085891, at *3, 2011 U.S. Dist. LEXIS 29808, at *7. ¶5 On reconsideration, the trial court vacated its holding and granted Simon’s motion for

summary judgment. McKown v. Simon Prop. Grp., Inc., No. C08-5754BHS, 2011 WL 1675032, at *5, 2011 U.S. Dist. LEXIS 47649, at *13-14 (W.D. Wash. May 4, 2011) (court order). The court agreed with Simon that Washington appellate decisions have adopted a “ ‘prior similar acts on the premises’ ” test for determining the foreseeability of criminal acts, and held it was bound to follow this authority because there was “ ‘no convincing evidence that the state supreme court would decide differently.’ ” 2011 WL 1675032, at *2, 2011 U.S. Dist. LEXIS 47649, at *5 (quoting Nelson v.

City of Irvine, 143 F.3d 1196, 1206-07 (9th Cir. 1998)). ¶6 Applying this test, the court considered evidence of six other shootings and three other gun-related incidents on the Tacoma Mall premises but concluded these were not prior similar acts. 2011 WL 1675032, at *2-3, 2011 U.S. Dist. LEXIS 47649, at *6. The court reasoned that these other incidents were significantly different in “nature, scale, and location” from the indiscriminate mass shooting inside the mall and that they were also remote in time, occurring between 5 and 13 years before the attack that injured McKown. 2011 WL 1675032, at *2-4, 2011 U.S.

Dist. LEXIS 47649, at *6-7. Concluding that the incident was therefore not foreseeable as a matter of law, so that Simon owed no duty to protect McKown from such third party criminal behavior, the district court dismissed his claims with prejudice and terminated the action. 2011 WL 1675032, at *5, 2011 U.S. Dist. LEXIS 47649, at *12-14. ¶7 On appeal, a panel of the Ninth Circuit Court of Appeals acknowledged it was bound to follow this court’s

interpretation of Washington law but expressed uncertainty as to the scope of a landowner’s duty to protect business invitees from the criminal acts of third persons. McKown v. Simon Prop. Grp. Inc., 689 F.3d 1086, 1088 (9th Cir. 2012). The court noted that in Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 943 P.2d 286 (1997), this court adopted Restatement (Second) of Torts

section 344 (Am. Law Inst. 1965), which imposes a duty on businesses to protect invitees “ ‘from imminent criminal harm and reasonably foreseeable criminal conduct by third persons.’ ” McKown, 689 F.3d at 1092 (quoting Nivens, 133 Wn.2d at 205). However, the scope of landowner liability for criminal acts appears to have been narrowed after Nivens by Washington’s intermediate appellate courts.

To clarify the scope of a Washington landowner’s duty to protect invitees from criminal conduct, the Ninth Circuit Court of Appeals certified to this court the following three questions: 1) Does Washington adopt Restatement (Second) of Torts § 344 (1965), including comments d and f, as controlling law?

See Nivens . . . , 133 Wash. 2d 192, 943 P.2d 286 . . . . 2) To create a genuine issue of material fact as to the foreseeability of the harm resulting from a third party’s criminal act when the defendant did not know of the dangerous propensities of the individual responsible for the criminal act, must a plaintiff show previous acts of similar violence on the premises, or can the plaintiff establish reasonably foreseeable harm through other evidence? See Wilbert v. Metro. Park Dist. of Tacoma, 90 Wash. App. 304, 950 P.2d 522 (1998); see also Fuentes v. Port of Seattle, 119 Wash.

App. 864, 82 P.3d 1175 (2004); Craig v. Wash. Trust Bank, 94 Wash. App. 820, 976 P.2d 126 (1999); Raider v. Greyhound Lines, Inc., 94 Wash. App. 816, 975 P.2d 518 (1999); cf. Nivens, [133 Wn.2d 192]; Christen v. Lee, 113 Wash.2d 479, 780 P.2d 1307 (1989); Passovoy v. Nordstrom, Inc., 52 Wash. App. 166, 758 P.2d 524 (1988) . . . ; Miller v. Staton, 58 Wash.2d 879, 365 P.2d 333 (1961). 3) If proof of previous acts of similar violence is required, what are the characteristics which determine whether the previous acts are indeed similar?

Id. at 1087-88. ¶8 The Ninth Circuit Court of Appeals’ opinion, setting forth the three certified questions to this court, makes clear that the focus of the Ninth Circuit’s inquiry regarding prior acts is actually twofold: (1) whether this court would apply a “similar acts on the premises” test based on the facts and legal theories argued in the McKown case and, if so, (2) “how similar” must such prior acts be to the criminal conduct at issue in order to create a jury question on whether the criminal conduct was reasonably foreseeable. See id. at 1093.

We address these questions herein. ¶9 Notably, the Ninth Circuit’s inquiry seeks a framework to evaluate “previous acts of similar violence on the premises,” but the Ninth Circuit did not ask for a framework for evaluating “other evidence” on which the landowner’s duty might be based. Id. at 1087.

While the parties appear to view “other evidence” as meaning “place or character,” which is an alternative circumstance to the “past experience” at issue in this case under Restatement (Second) of Torts comment f, the parties offer neither a definition of “place or character” nor a framework for evaluating the circumstances under which “place or character” justify imposing a duty. Instead, the briefing focuses on the history of shootings and gun-related violence at the Tacoma Mall, that is, the “past experience” circumstance under Restatement (Second) of Torts comment f.

Thus, in light of the facts of this case, the focus of the parties’ briefing, and the re-suiting framing of the questions by the Ninth Circuit, it does not appear that consideration of the “place or character” alternative in Restatement (Second) of Torts comment f is necessary to answer the certified questions or to resolve this case. Accordingly, we leave for an appropriate future case any inquiry concerning the circumstances under which the “place or character” of a business can give rise to a duty to protect invitees against third party criminal conduct.

See id. at 1094 (acknowledging that we may “reformulate” the certified questions at our discretion). ANALYSIS I. Foreseeability as Both a Component of Whether Duty Exists and a Limitation on the Scope of Duty ¶10 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). ¶11 Numerous cases repeat the principle that foreseeability determines the scope of the duty owed and is a question of fact for the jury. But that inquiry is not the same as the one here. The existence of a legal duty is a question of law for the court. See, e.g., Cummins v. Lewis County, 156 Wn.2d 844, 852, 133 P.3d 458 (2006) (“[i]n a negligence action, the determination of whether an actionable duty was owed to the plaintiff represents a question of law to be decided by the court”); Christensen v.

Royal Sch. Dist. No. 160, 156 Wn.2d 62, 67, 124 P.3d 283 (2005) (“existence of a legal duty is a question of law and ‘depends on mixed considerations of logic, common sense, justice, policy, and precedent’ ” (internal quotation marks omitted) (quoting Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 243, 35 P.3d 1158 (2001))); Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 474-75, 951 P.2d 749 (1998); Tincani v.

Inland Empire Zoological Soc’y, 124 Wn.2d 121, 128, 875 P.2d 621 (1994). ¶12 As this court has observed, once “a duty is found to exist from the defendant to the plaintiff then concepts of foreseeability serve to define the scope of the duty owed.” Schooley, 134 Wn.2d at 475. Cases often follow by saying this determination is a factual question for the jury.

This court has previously explained: “Foreseeability is . . . one of the elements of negligence; it is more appropriately attached to the issues of whether defendant owed plaintiff a duty, and, if so, whether the duty imposed by the risk embraces that conduct which resulted in injury to plaintiff. The hazard that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent.” Maltman v. Sauer, 84 Wn.2d 975, 980, 530 P.2d 254 (1975) (emphasis omitted) (quoting Rikstad v.

Holmberg, 76 Wn.2d 265, 268, 456 P.2d 355 (1969)). ¶13 In Christen, the court further explained foreseeability’s limitation on the scope of duty: The concept of foreseeability limits the scope of the duty owed.

We have held that in order to establish foreseeability “the harm sustained must be reasonably perceived as being within the general field of danger covered by the specific duty owed by the defendant.” The limitation imposed thereby is important because, as this court has previously observed, “a negligent act should have some end to its legal consequences.” Foreseeability is normally an issue for the jury, but it will be decided as a matter of law where reasonable minds cannot differ. 113 Wn.2d at 492 (footnotes and citations omitted) (quoting Maltman, 84 Wn.2d at 981; Hunsley v.

Giard, 87 Wn.2d 424, 435, 553 P.2d 1096 (1976)). ¶14 Thus, we have held that foreseeability can be a question of whether duty exists and also a question of whether the harm is within the scope of the duty owed. In the latter sense, it is a question of fact for the jury. “ ‘Generally, the duty to use ordinary care is bounded by the foreseeable range of danger.’ ” Burkhart v. Harrod, 110 Wn.2d 381, 395, 755 P.2d 759 (1988) (quoting Wells v.

City of Vancouver, 77 Wn.2d 800, 803, 467 P.2d 292 (1970)). ¶15 This distinction is clear in Hutchins v. 1001 Fourth Avenue Associates, 116 Wn.2d 217, 226, 802 P.2d 1360 (1991), when we discussed the difference between an inquiry into whether the landowner had notice of criminal activity sufficient to give rise to a duty, and foreseeability of harm as a limitation on the scope of a defendant’s duty once duty is determined. The first inquiry described in Hutchins is whether a duty to protect against third party criminal conduct is owed at all.

The second inquiry described in Hutchins, foreseeability of harm as a limit on the scope of the duty, considers whether the harm sustained is reasonably perceived as being within the general field of danger covered by the duty owed by the defendant. Id.; see also Christen, 113 Wn.2d at 491-92. In this way, foreseeability plays a role in both the legal and factual inquiries regarding duty and its scope. II. Restatement (Second) of Torts § 344 (1965) ¶16 In answer to the first certified question, we reiterate that Restatement (Second) of Torts

section 344 is generally consistent with Washington law and that comments d and f generally describe the contours of the duty owed. See Nivens, 133 Wn.2d at 204-05. However, this court has followed a careful course when considering imposing liability on landowners or possessors in general. In 1986, the court was asked to abandon traditional premises liability standards of care owed by owners or occupiers of land in favor of a “standard of reasonable care under all the circumstances.” Younce v. Ferguson, 106 Wn.2d 658, 662, 724 P.2d 991 (1986).

We declined to abandon the traditional classifications in favor of “a standard with no contours.” Id. at 666. The reasons for adhering to the traditional standards included stability and predictability of the law, disinclination to delegate complex policy decisions to a jury, and the danger that “the landowner could be subjected to unlimited liability.” Id.

Thus, “a possessor of land has no duty as to all others under a generalized standard of reasonable care under all the circumstances.” Hutchins, 116 Wn.2d at 221. ¶17 A little over a decade later we recognized that a business owes a duty to its invitees to protect them from “reasonably foreseeable” criminal acts of third persons. In Nivens, we concluded that Restatement (Second) of Torts

section 344 is generally consistent with Washington law and that comments d and f generally describe the contours of the duty owed. Nivens, 133 Wn.2d at 204. We did not explore the limits of this duty in Nivens because we had no cause to do so in that case. We did, however, caution against treating the business as a “guarantor of the invitee’s safety from all third party conduct on the business premises,” saying that it would be “too expansive a duty.” Id. at 203. ¶18 Although in Nivens, the court agreed that

section 344 is generally consistent with state law, we have also continued to recognize that the limited duty of landowners to protect invitees from third parties is an exception to the general rule that there is no duty to protect others from the criminal acts of third parties. Tae Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 195-96, 15 P.3d 1283 (2001); Nivens, 133 Wn.2d at 199; Hutchins, 116 Wn.2d at 223; Petersen v. State, 100 Wn.2d 421, 426, 671 P.2d 230 (1983).

It is the special relationship between a business and its business invitee that under Washington law may lead to the duty to protect the invitee from the criminal acts of third persons. ¶19 The court has continued to recognize under premises liability standards that the duty to protect invitees is not a broad duty but a limited one, in recognition that it is often unfair to place the burden of third parties’ criminal conduct on a business. ¶20 This is consistent with

section 344 of the Restatement (Second) of Torts, which states: 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. ¶21 The language of

section 344 necessarily requires a narrow

interpretation of a landowner’s potential duty. In subsection (a), the phrase “such acts” refers to its antecedent — “accidental, negligent, or intentionally harmful acts of third persons.” This language narrows the duty inquiry to whether the specific acts in question were foreseeable rather than whether the landowner should have anticipated any act from a broad array of possible criminal behavior or from past information from any source that some unspecified harm is likely. ¶22 Comment d to

section 344 clarifies that business owners are generally not responsible for the harm that results when strangers commit criminal acts on the business premises: A. . . possessor of land who holds it open to the public for entry for his business purposes is not an insurer of the safety of such visitors against the acts of third persons .... He is, however, under a duty to exercise reasonable care to give them protection. In many cases a warning is sufficient care if the possessor reasonably believes that it will be enough to enable the visitor to avoid the harm, or protect himself against it.

There are, however, many situations in which the possessor cannot reasonably assume that a warning will be sufficient. He is then required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons . . . may conduct themselves in a manner which will endanger the safety of the visitor. Restatement (Second) of Torts § 344 cmt. d (emphasis added). ¶23 Comment f further provides that to the extent that a duty is owed, it is a limited duty based on foreseeability.

Accordingly, foreseeability is not merely used to determine the scope of a duty already owed; it is a factor in determining whether the duty is owed in the first place. Comment f explains: Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur.

He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual.

If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection. Id. cmt. f (emphasis added). ¶24 Thus, comment f, like

section 344 itself, contemplates two kinds of situations that may give rise to a duty — the first is where the landowner knows or has reason to know of immediate or imminent harm, and the second is where the possessor of land knows, or has reason to know, based on the landowner’s past experience, the place of the business, or the character of the business, there is a likelihood that harmful conduct of third parties will occur on his premises. ¶25 In Nivens, the court declined to “undertake an analysis of. . . foreseeability” because the plaintiff “did not base his case on a general duty of a business to an invitee.” Nivens, 133 Wn.2d at 205.

However, we have previously considered whether the “place” of a business within a high-crime urban area justifies imposing a duty on the business to protect others from third party criminal acts. As a policy matter, we rejected the idea that location of the premises in an urban area with a high incidence of crime favors imposing a duty.

Hutchins, 116 Wn.2d at 236. “[I]f the premises are located in an area where criminal assaults often occur, imposition of a duty could result in the departure of businesses from urban core areas — an undesirable result.” Id. accord Kim, 143 Wn.2d at 199 (“this court has rejected utilization of high crime rates as a basis for imposing a tort duty”); see also Boren v.

Worthen Nat’l Bank of Ark., 324 Ark. 416, 428, 921 S.W.2d 934 (1996) (“[w]e . .. cannot say that it would be appropriate as a matter of policy to impose a higher duty on business owners who are willing to provide their services in ‘high crime areas’ or ‘near a housing project’ — most commonly the areas in which low and moderate income residents are to be found”); McNeal v. Henry, 82 Mich.

App. 88, 90 n.1, 266 N.W.2d 469 (1978) (“[s]ome of our big cities have more than their share of destructive and violent persons, young and old, who roam through downtown department stores and other small retail businesses stealing and physically abusing legitimate patrons----We fear that to hold businessmen liable for the clearly unforeseeable third-party torts and crimes incident to these activities would eventually drive them out of business”); Stafford v. Church’s Fried Chicken, Inc., 629 F. Supp. 1109 (E.D.

Mich. 1986) (the plaintiff argued that since the restaurant where the criminal assault occurred was in a high-crime area, the business knew security was necessary to protect the patrons; court rejected the argument, saying that requiring the business to provide police protection against criminal third parties may drive businesses out of those neighborhoods).

Although we have rejected the location of a business within a high-crime urban area as imposing a duty to protect from third party criminal conduct, we have not yet considered whether the character of a business or another location of a business, standing alone, could invoke such a duty. ¶26 As this discussion shows, we answer the first certified question yes. Washington generally adopts Restatement (Second) of Torts

section 344 comments d and f, as explained above. As for the second certified question, we answer no, as qualified by our discussion to this point. While proving acts of similar violence is not the only way for a plaintiff to establish a duty as provided in the Restatement and comment sections that we adopted in Nivens, it is the one we focus on here because that is the only basis for liability that the parties meaningfully address and the only one that the Ninth Circuit has asked us to clarify. Accordingly, we address the third certified question concerning the particulars of the prior similar incidents test.

III. Prior Similar Incidents ¶27 In order to establish a genuine issue of material fact concerning a landowner’s obligation to protect business invitees from third party criminal conduct under the prior similar incidents test, a plaintiff must generally show a history of prior similar incidents on the business premises within the prior experience of the possessor of the land. ¶28 We reject a broad notice rule requiring a landowner to protect business invitees from third party criminal conduct.

We recognize the wisdom of the Supreme Court of Michigan when it stated: Subjecting a merchant to liability solely on the basis of a foreseeability analysis is misbegotten. Because criminal activity is irrational and unpredictable, it is in this sense invariably foreseeable everywhere. However, even police, who are specially trained and equipped to anticipate and deal with crime, are unfortunately unable universally to prevent it. This is a testament to the arbitrary nature of crime.

Given these realities, it is unjustifiable to make merchants, who not only have much less experience than the police in dealing with criminal activity but are also without a community deputation to do so, effectively vicariously liable for the criminal acts of third parties. MacDonald v. PET, Inc., 464 Mich. 322, 335, 628 N.W.2d 33 (2001). ¶29 Under a broad notice rule, foreseeability would become an all-expansive standard for imposing a duty on a business to protect invitees from criminal assaults of third parties on the business premises.

A broad notice rule or a totality of the circumstances test would improperly shift the duty to protect the public against crime from the government to private businesses. ¶30 Decisions from the Court of Appeals have recognized that such standards would fail to comport with this court’s precedent. If a particular type of crime has occurred repeatedly on its premises in the recent past, a business may have reason to anticipate that such a crime will happen again. See, e.g., Johnson v. State, 77 Wn.

App. 934, 943, 894 P.2d 1366 (1995) (foreseeability of rape of college student in front of her dormitory was a question of fact where there had been numerous rapes on campus each year). But if the criminal act that injures the plaintiff is not sufficiently similar in nature and location to the prior act(

s) of violence, sufficiently close in time to the act in question, and sufficiently numerous, then the act is likely unforeseeable as a matter of law under the prior similar incidents test. ¶31 In Wilbert, 90 Wn. App. at 306, a man was shot at a private dance in a venue owned and rented out by the Metropolitan Park District. The court explained, “Ordinarily, foreseeability is a jury question and a criminal act can be held unforeseeable as a matter of law only ‘if the occurrence is so highly extraordinary or improbable as to be wholly beyond the range of expectability.’ ” Id. at 308 (quoting Johnson, 77 Wn.

App. at 942). Citing both Nivens and Christen, the court noted that “[w]here no evidence is presented that the defendant knew of the dangerous propensities of the individual responsible for the crime, and there is no history of such crimes occurring on the premises, the courts have held the criminal conduct unforeseeable as a matter of law.” Id. at 309. The Court of Appeals, Division Two, held that the shooting was not foreseeable as a matter of law in part because the appellants offered no evidence that there had been similarly violent episodes at the venue in the past. Id. at 306, 309. ¶32 In Raider, 94 Wn.

App. at 817-18, the appellant was injured in a racially motivated shooting at a Greyhound bus station. Even though the bus terminal was a high-crime area, the court found that the attack did not bear any relationship or similarity to past crimes that had occurred there, including a shooting. Id. at 820. Accordingly, the Court of Appeals, Division Three, held that the incident was unforeseeable as a matter of law. Id. ¶33 In Tories v. King County, 119 Wn. App. 1, 6, 84 P.3d 252 (2003), a Metro bus passenger was injured when another passenger shot and killed the driver and the driverless bus plunged off a bridge.

The Court of Appeals, Division One, held that the incident was unforeseeable as a matter of law because evidence did not support the fact of prior similar crimes on other buses. Id. at 8. ¶34 In Fuentes, 119 Wn. App. at 866, the appellant was injured when her car was carjacked while she was waiting in the airport’s pickup drive for passengers. The carjacker was fleeing Port of Seattle police at the time.

The Court of Appeals, Division One, held that the incident was unforeseeable as a matter of law because history of an assault in the parking garage and a car prowling problem were insufficient to establish foreseeability.

Id. at 870-71. ¶35 These cases properly apply Nivens and support our holding here that when the prior similar incidents test is used, when a landowner’s or possessor’s duty to protect business invitees from third party criminal conduct arises from his prior experience, that duty generally requires a history of prior similar incidents on the business premises within the prior experience of the landowner’s or possess- or’s business. CONCLUSION ¶36 In answer to the first certified question, Restatement (Second) of Torts

section 344 is generally consistent with Washington law and comments d and f generally describe the contours of the duty owed. See Nivens, 133 Wn.2d at 204-05. In answer to the Ninth Circuit’s second inquiry, proving acts of similar violence is not the only way for a plaintiff to establish a duty as provided in the Restatement. However, it is the one we focus on here because prior history of violence is really the only basis for liability that the parties meaningfully address and the only one that the Ninth Circuit has asked us to clarify.

In answer to the court’s third question, we hold that where a landowner’s obligation to protect business invitees from third party criminal conduct arises from past experience, the plaintiff must generally show a history of prior similar incidents on the business premises within the prior experience of the possessor of the land. The prior acts of violence on the business premises must have been sufficiently similar in nature and location to the criminal act that injured the plaintiff, sufficiently close in time to the act in question, and sufficiently numerous to have put the business on notice that such

an act was likely to occur. This prior similar incidents approach best conforms to comment f and, more importantly, assures that businesses will be exposed to liability on this basis only when they have past experience of criminal conduct that makes similar conduct on the business premises foreseeable. ¶37 We reserve comment on the circumstances under which the place or character of a business, without more, can give rise to a duty to protect invitees against third party criminal conduct. C. Johnson, Owens, Fairhurst, and Gordon McCloud, JJ., and J.M. Johnson, J. Pro Tem., concur.

Simon Property Group Inc. is doing business as the Tacoma Mall. Simon is a landowner or possessor (or occupier), a business owner, and the landlord to various businesses with stores in the mall. The case involves premises liability and specifically the question of when a business owes a duty to protect its business invitees from a risk of harm from third party criminal conduct. For convenience, we refer to one in Simon’s position and Simon here as either “the landowner” or “the business” without further reference to possessors, occupiers, or landlords.

We have continued to address whether a duty is owed under traditional premises liability standards. See, e.g., Afoa v. Port of Seattle, 176 Wn.2d 460, 467, 469, 296 P.3d 800 (2013); Cregan v. Fourth Mem’l Church, 175 Wn.2d 279, 283 n.2, 285 P.3d 860 (2012); Curtis v. Lein, 169 Wn.2d 884, 890, 239 P.3d 1078 (2010); Kamla v. Space Needle Corp., 147 Wn.2d 114, 125, 52 P.3d 472 (2002); Iwai v. State, 129 Wn.2d 84, 90-95, 915 P.2d 1089 (1996); Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 49-50, 914 P.2d 728 (1996); Tincani, 124 Wn.2d at 128; Hutchins, 116 Wn.2d at 221.

Occasionally, the common law principles have been altered by statute, as has occurred with the enactment of this state’s recreational use statute. See Van Dinter v. City of Kennewick, 121 Wn.2d 38, 41-42, 846 P.2d 522 (1993). We do not “overlook! ] this aspect of Nivens,” nor is our noted reliance on Hutchins improper, as the concurrence contends. See concurrence (Stephens, J.) at 781 n.12. In Nivens, we recognized a limited special relationship exception for businesses to the general common law rule that a person owes no duty to protect others from criminal acts of third persons.

We held that “a business owes a duty to its invitees to protect them from imminent criminal harm and reasonably foreseeable criminal conduct by third persons.” Nivens, 133 Wn.2d at 205. But we also observed that the recognition of the existence of such a duty does not end the inquiry, stating that “[n]o duty arises unless the harm to the invitee by third persons is foreseeable! Id. (emphasis added). We further observed that “Washington courts have been reluctant to find criminal conduct foreseeable.”Id. at 205 n.3. We did not undertake an analysis of foreseeability inNivens. Id. at 205.

Herein, we discuss Hutchins in the context of the historical development of premises liability in Washington and for its analysis of the role that foreseeability plays in determining both duty and scope of liability, thus filling in where Nivens left off. See supra pp. 764-66. Accordingly, we neither ignore Nivens nor mistakenly rely on Hutchins, as the concurrence contends. In any event, the salient point here is that both our majority and Justice Stephens’ concurrence rely on and reiterate Nivens in answering the first certified question affirmatively. See supra p. 764; concurrence (Stephens, J.) at 782-83.

In Robb v. City of Seattle, 176 Wn.2d 427, 295 P.3d 212 (2013), we considered another exception. A duty to protect another from third party criminal acts is owed when the actor’s own affirmative acts create or expose the plaintiff to a recognizable high degree of risk of harm. Restatement (Second) of Torts § 302B cmt. e. Foreseeability alone is an insufficient basis for imposing this duty. Robb, 176 Wn.2d at 435. And we have emphasized that

section 302B applies only when an unusual risk of harm was created. Kim, 143 Wn.2d at 196. The second certified question is actually in two parts: “must a plaintiff show previous acts of similar violence on the premises, or can the plaintiff establish reasonably foreseeable harm through other evidence?” McKown, 689 F.3d at 1087 (emphasis added). We answer no to the first part and yes to the second part of the second certified question.

Because the questions posed by the Ninth Circuit and the arguments made by McKown focus on prior incidents of violence, we reserve comment on the circumstances under which a business’s character, without more, would support landowner liability. Here, McKown’s briefing acknowledges that

section 344 comment f describes three circumstances under which a duty may arise: where the possessor knows or has reason to know that the acts of the third person are occurring or about to occur; where the possessor knows or has reason to know based on past experience that there is a likelihood of conduct on the part of third persons in general likely to endanger a visitor; and if the place or character of the possessor’s business, or his past experience, is such that he would reasonably anticipate careless or criminal conduct by third persons, he may be under a duty to take precautions against it.

See Br. of Appellant McKown at 19; see also Restatement (Second) of Torts § 344 cmt. f. While McKown argues that consideration of the “place or character” of a business is a distinct, alternative method of establishing reasonable foreseeability of harm, he offers no test, criteria, or parameters regarding how “character” is to be established or assessed. See Br. of Appellant McKown at 19. He describes the Tacoma Mall as a “ ‘soft target’ ” “whose ‘place or character’ made the harm reasonably foreseeable.” Id. at 20.

But aside from this bald assertion, he offers no explanation as to how or why the “character” of the mall necessarily made the mass shooting in this case “reasonably foreseeable.” Id. Notably, a recent Federal Bureau of Investigation study of active shooter incidents from 2000 to 2013 does not suggest that malls are any more susceptible to mass shootings than are other public spaces. J. Pete Blair & Katherine W. Schweit, Tex. St. Univ. & Fed. Bureau of Investigation, U.S.

Dep’t of Just., A Study of Active Shooter Incidents in the United States between 2000-2013 (2014), http://www.fbi.gov/news /stories/2014/september/f bi-releases-study-on-active-shooter-incidents/pdfs/a-study-of-active-shooter-incidents-in-the-u.s.-between-2000-and-2013. The study of active shooter incidents shows that while 45.6 percent of incidents occur in places of commerce, 27.5 percent occur in businesses open to the public, 14.4 percent occur in businesses closed to the public, and 3.8 percent occur in malls, which incidentally equals the number of incidents in houses of worship. Id. at 13.

Educational institutions account for 24.4 percent of active shooter incidents, with another 10.0 percent on government property, 9.4 percent in public spaces, 4.4 percent in residences, and 2.5 percent in health care facilities. Id. In light of these statistics and without a concrete proposal for determining the parameters of a duty created by the “character” of a business, we leave that question for another day.

Given the Ninth Circuit’s request for clarification concerning how prior similar incidents are to be considered, we address the third certified question despite its being presented as a contingent inquiry. Relying too heavily on foreseeability as an element of a tort claim has been addressed and harshly criticized. See generally, e.g., Hardie, supra, at 402 (“[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”). As the California State Supreme Court once cogently observed, “[TJhere 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.” Thing v. La Chusa, 48 Cal. 3d 644, 668, 771 P.2d 814, 257 Cal. Rptr. 865 (1989).

A number of other jurisdictions have employed forms of the prior similar incidents approach, though some of them employ that approach to the exclusion of others. See, e.g., Baptist Mem’l Hosp. v. Gosa, 686 So. 2d 1147, 1152-53 (Ala. 1996); Ann M. v. Pac. Plaza Shopping Ctr., 6 Cal. 4th 666, 679, 863 P.2d 207, 25 Cal. Rptr. 2d 137 (1993), disapproved on another point in Reid v. Google, Inc., 50 Cal. 4th 512, 527 n.5, 235 P.3d 988, 113 Cal.

Rptr. 3d 327 (2010) (holding that a high degree of foreseeability is required to impose a duty to hire security guards and that “the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises”); Drayton v. Kroger Co., 297 Ga. App. 484, 485, 677 S.E.2d 316 (2009); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519, 429 N.Y.S.2d 606 (1980) (applying

section 344 and relying solely on prior similar incidents rather than place or character); Bray v. St. John Health Sys., Inc., 2008 OK 51, 187 P.3d 721, 723-25 (adopting the entirety of a

section 344 comment f approach, taking into account prior similar incidents that had recently occurred on the property along with place and character); Trammel Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9, 12 (Tex. 2008) (holding that “[f]oreseeability is established through evidence of‘specific previous crimes on or near the premises’ ” (internal quotation marks omitted) (quoting Timberwalk Apts., Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1988))); Gupton v.

Quicke, 247 Va. 362, 364, 442 S.E.2d 658 (1994) (test includes a prior similar incidents component but is stricter because it adds other requirements, i.e., that plaintiff has to show that the third party is a known aggressor or there is imminent danger of which the landowner is aware).