A recent ruling out of the Thurston County Superior Court is a welcome reminder for retailers, property owners, and the attorneys who represent them: Washington law does not require businesses to predict and prevent every conceivable criminal act on their premises. In granting summary judgment and dismissing all claims against our client—a grocery retailer—the court reaffirmed the well-established principle that liability for third-party criminal conduct requires more than a generalized history of unrelated incidents on the property.
The Case: A Tragic but Unforeseeable Act of Violence
The underlying facts of this case are undeniably tragic. In 2022, a man was fatally shot in the parking lot of a grocery store in Lacey, Washington. The victim had been resting in a parked car while a family member shopped inside. The shooter—a stranger with a severe history of mental illness—arrived on the property, and within minutes carried out what law enforcement characterized as a random, ambush-style attack. Nothing was stolen. The shooter had no connection to the store, the victim, or anyone on the premises. In February 2026, the shooter was acquitted of second-degree murder by reason of insanity and committed to Western State Hospital by court order—an outcome that further underscores the unforeseeability of this tragic act of violence.
The victim’s estate and family brought negligence and nuisance claims against the retailer, its employees, and the third-party security company that provided patrol services at the store. Plaintiffs alleged that the defendants failed to provide adequate security and that the shooting was foreseeable based on prior incidents at the property.
Washington’s Framework: The McKown Prior Similar Incidents Test
At the heart of this case was a threshold legal question: did the retailer owe a duty to protect the victim from the shooter’s criminal act?
Under Washington law, the general rule is that there is no duty to protect others from the criminal acts of third parties. The Washington Supreme Court has adopted a narrow exception under comment (f) to the Restatement (Second) of Torts § 344, as articulated in the seminal case of McKown v. Simon Property Group, 182 Wn.2d 752 (2015). A business may owe a limited duty to its invitees where third-party criminal conduct is either imminent or reasonably foreseeable based on prior similar incidents.
This is not a broad notice test, and McKown specifically rejected a totality-of-the-circumstances approach. Instead, the McKown framework requires that prior incidents be sufficiently similar in nature, sufficiently close in time, and sufficiently numerous to put the business on notice that the specific type of criminal act at issue was likely to occur.
Why the Court Granted Summary Judgment
Plaintiffs pointed to approximately 20 incidents over a four-year period involving some element of violence, weapons, or individuals experiencing mental illness on the property. However, the court found that none of these incidents were sufficiently similar to the attack at issue—a wholly unprovoked, random shooting of a stranger by a person unknown to anyone at the store. The vast majority of the cited incidents arose from shoplifting encounters that escalated into confrontations. None involved the random, ambush-style killing of a stranger—the specific act at issue.
The court also rejected Plaintiffs’ alternative duty theories. In addition to arguing that the shooting was foreseeable based on prior similar incidents, Plaintiffs also argued that a duty arose under comment f to Restatement § 344 because the retailer know or had reason to know that third party criminal conduct was imminent. But the imminent harm doctrine did not apply because the retailer had no knowledge that the shooter was on the premises until after the attack when it was notified by police. The court also rejected Plaintiffs’ novel voluntary assumption of duty argument—essentially that hiring a security guard created strict liability for all crime in the parking lot. Finally, consistent with established precedent, the court dismissed the derivative nuisance claim on the same grounds.
Key Takeaways for Businesses and Their Counsel
This ruling offers several important principles for businesses navigating premises liability exposure:
The Duty Inquiry Is a Legal Question With a High Threshold
Washington’s McKown test is deliberately stringent. The existence of some criminal history on a property does not, by itself, create a duty to prevent all future criminal acts. The prior incidents must be sufficiently similar to the specific act at issue—not merely violent in a general sense.
A General History of Shoplifting-Related Confrontations Does Not Make a Random Shooting Foreseeable
Courts will look closely at the nature of the prior incidents. Escalations arising from loss-prevention encounters are fundamentally different from an unprovoked attack by a stranger with no connection to the business.
Providing Voluntary Security Measures Does Not Create Unlimited Liability
Businesses should not be deterred from taking proactive security steps out of fear that doing so will expose them to greater liability. The voluntary assumption of duty doctrine requires specific elements—including induced reliance and increased risk—that are not met merely by hiring a security guard.
Policy Considerations Support This Framework
As the McKown court recognized, holding retailers liable for truly random criminal acts would improperly shift the duty to protect the public from law enforcement to private businesses. Such a rule could discourage businesses from operating in areas with higher crime rates, ultimately harming the communities they serve.
Miller Nash represented the retailer in this matter and secured summary judgment on all claims. The case is now on appeal. If your business is facing premises liability claims arising from third-party criminal conduct, our litigation team has the experience and knowledge to assist.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
