Wilbert v. METROPOLITAN PARKS DIST.
950 P.2d 522 (1998)
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Rule of Law:
A property owner's duty to protect invitees from third-party criminal acts extends only to harm that is reasonably foreseeable, which typically requires a history of similar violence on the premises or knowledge of the assailant's dangerous propensities. A voluntary assumption of duty to enforce a policy does not lead to liability for a third-party criminal act unless the breach of that duty was the proximate cause of the harm, meaning the specific harm was a foreseeable result of the breach.
Facts:
- On August 29, 1992, the Metropolitan Park District (Metro) rented part of its South Park Community Center hall to Ghetto Down Productions for a dance, which Metro was told was a charity event.
- Metro assigned a single employee, Tom Serrano, to assist renters with set-up and monitor the events that evening.
- Patrons of Ghetto Down Productions were observed by wedding party members (Michelle White and Duane Demangelaere) to be belligerent, argumentative, scuffling, pushing, aggressive, vulgar, and rowdy, with fights occurring as early as 10:00 P.M. and 10:30 P.M.
- None of the observed disputes or fights involved the use or threatened use of deadly force.
- Metro's alcohol policy stated that any violation of conditions, including obtaining a state banquet permit, would automatically and immediately terminate the rental.
- Ghetto Down Productions allegedly committed numerous violations of Metro's alcohol policy, including a late banquet permit application, public advertising of the event, opening it to the public, selling alcohol to patrons, consumption of alcohol outside the rented room, consumption by minors, and exceeding the estimated patron limit.
- At approximately 12:30 A.M., a fight began, and minutes later, Derrick Wilbert was shot and killed by two assailants.
- Tom Serrano, the Metro employee, testified that he was unaware of any violence before the 12:30 A.M. fight and called 911 immediately after it began.
- The assailants were subsequently caught and convicted of Derrick Wilbert's murder.
Procedural Posture:
- Oscar Wilbert, Jr. and Joyce Ann Burgess, individually, and Oscar Wilbert, Jr. as the Personal Representative of the Estate of Derrick Wilbert (the Wilberts) sued the Metropolitan Park District of Tacoma (Metro) in a trial court (court of first instance), alleging theories of negligence, including premises liability and voluntary assumption of an independent duty.
- The trial court granted Metro's motion for summary judgment, finding that Metro owed no legal duty to protect Derrick Wilbert from the criminal activities of third parties.
- The Wilberts appealed the trial court's decision to the Court of Appeals of Washington, Division 2, as appellants.
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Issue:
Does a park district owe a legal duty to protect an invitee from a fatal shooting by third-party assailants if there is no history of similar violence on the premises or knowledge of the assailants' dangerous propensities, and if alleged violations of the park district's alcohol policy were not the proximate cause of the shooting?
Opinions:
Majority - Armstrong, J.
No, a park district does not owe a legal duty to protect an invitee from a fatal shooting by third-party assailants under these circumstances, because the criminal slaying was not reasonably foreseeable as a matter of law, and any alleged violations of Metro's alcohol policy were not a proximate cause of the killing. The court addressed two primary theories of liability. First, regarding premises liability, the court affirmed that a business owner has a special relationship with invitees, creating a duty to protect them from criminal conduct by third parties, but this duty extends only to harm that is reasonably foreseeable, as established in cases like Nivens v. 7-11 Hoagy's Corner. A criminal act can only be deemed unforeseeable as a matter of law if it is "so highly extraordinary or improbable as to be wholly beyond the range of expectability" (Johnson v. State). Washington cases typically require evidence that the defendant knew of the dangerous propensities of the individual responsible for the crime or a history of similar violent crimes on the premises (Nivens, Christen v. Lee, Shelby v. Keck). The Wilberts provided no evidence that Metro knew of the assailants' violent tendencies or that similar deadly violent episodes had occurred at the facility. The wedding party affidavits described unruly behavior and non-deadly fights, which the court found insufficient to establish foreseeability of a fatal assault with a deadly weapon (J. N. v. Bellingham Sch. Dist. No. 501). Expert testimony, like Kennedy's Lifestyle-Exposure Theory, was also deemed insufficient as it lacked the specific factual predicates required by Washington precedent. Second, regarding the voluntary assumption of a duty, the court acknowledged that one who assumes to act, even gratuitously, may be subject to a duty of acting carefully (Roth v. Kay), and accepted that Metro's alcohol policy could give rise to such a duty. However, the Wilberts failed to demonstrate that Metro's alleged violations of its alcohol policy proximately caused Derrick Wilbert's death. Proximate cause requires both cause in fact and legal causation, which incorporates foreseeability (Moore v. Mayfair Tavern, Inc.). The record lacked evidence that the victim or assailants were drinking or that alcohol policy violations caused the escalation of violence or the final shooting. The argument that closing the facility earlier would have prevented the assault only establishes cause in fact, not legal causation. Therefore, the court concluded that the criminal event was not foreseeable as a matter of law, and any policy violations were not the proximate cause of the death.
Analysis:
This case significantly clarifies the high bar for establishing foreseeability in premises liability claims involving third-party criminal acts in Washington, particularly concerning acts of deadly violence. It reinforces that general unruly or hostile behavior, or non-deadly altercations, are typically insufficient to put a property owner on notice of the likelihood of a fatal assault. Furthermore, the decision underscores that even when a property owner voluntarily assumes a duty, such as through an internal policy, a breach of that policy does not automatically establish proximate cause for a third-party criminal act unless there is a direct and foreseeable causal link between the breach and the specific harm. This ruling makes it more challenging for plaintiffs to successfully litigate against property owners for unforeseen criminal acts on their premises.
