WPI 120.06.03 Duty to Business Invitee—Protection From Criminal Acts

This instruction is an adaptation of WPI 120.06.01 (Duty of Business Proprietor to Customer—Activities or Condition of Premises), for cases involving criminal acts by third persons.

In Washington, a business has a special relationship with its invitees. A business owes invitees a duty “to keep [its] premises reasonably free of physically dangerous conditions in situations in which business invitees may be harmed by third persons.” Nivens v. 7–11 Hoagy's Corner, 133 Wn.2d 192, 203, 943 P.2d 286 (1997) (customer assaulted by persons loitering in store parking lot). This duty requires that the business protect the invitee from “imminent criminal harm and reasonably foreseeable criminal conduct by third persons.” Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d at 206. See also Griffin v. West RS, Inc., 97 Wn.App. 557, 984 P.2d 1070 (1999) (landlord has duty to protect tenant from reasonably foreseeable criminal acts of third persons), reversed on other grounds at 143 Wn.2d 81, 18 P.3d 558 (2001).

A business, however, is not responsible for all criminal acts by third parties that may flow from its operations. See Kim v. Budget Rent A Car Systems, Inc., 143 Wn.2d 190, 15 P.3d 1283 (2001) (rental car company has no liability to plaintiff where plaintiff is injured by car driven by intoxicated defendant who had stolen car from rental car company lot). See also Restatement (Second) of Torts § 302B, comment e (1965); Hutchins v. 1001 Fourth Ave. Associates, 116 Wn.2d 217, 233, 802 P.2d 1360 (1991) (a possessor of land has no generalized duty to provide security measures on the premises so as to protect those off the premises, including passersby, from third party criminal activity on the premises).

McKown v. Simon Property Group, Inc., 182 Wn.2d 752, 757, 344 P.3d 661 (2015), is an opinion addressing three questions certified from the Ninth Circuit. The court summarized existing Washington law as follows:

The court commented that “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.” McKown v. Simon Property Group, Inc., 182 Wn.2d 752, 766, 344 P.3d 661 (2015).

Finally, the court declined to decide “the circumstances under which a duty would arise when the duty is based solely on the business's place or character,” as this question had not been adequately briefed. McKown v. Simon Property Group, Inc., 182 Wn.2d at 757.