* Aleta Brady v. Whitewater Creek, Inc., et al

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
ALETA BRADY, an individual
Appellant,
v.
WHITEWATER CREEK, INC., a foreign
corporation; SUMMIT RIDGE, LLC, a
Washington corporation,
Respondents.
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No. 38449-7-III
PUBLISHED OPINION
STAAB, J. — Whitewater Creek, Inc. managed the Summit Ridge Apartments.
Whitewater received a written tenant complaint that a man was observed attempting to
access an upper-floor apartment balcony by scaling the exterior of the building. Two
weeks later, Aleta Brady, a tenant at Summit Ridge, was raped in her apartment by a
neighbor assailant. She believed he accessed her third-floor balcony and entered her
apartment through the unlocked slider door. She sued Whitewater for failing to protect
her from the risk that persons could access the upper-level balcony. Whitewater moved
for summary judgment on the theory that it did not owe Brady a duty, and Brady could
not produce evidence of breach or causation. Prior to granting Whitewater’s summary
FILED
DECEMBER 6, 2022
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
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judgment motion, the trial court struck the untimely declaration of Brady’s expert
witness.
Procedurally, we find that the trial court abused its discretion in failing to conduct
a Burnet1 analysis on the record before striking the relevant declaration.
On the substantive issues, we reject Brady’s contention that Whitewater had a
special relationship with her attacker that required Whitewater to trespass or evict him.
However, we hold that because Whitewater had a special relationship with Brady; it had
a duty to protect her from the foreseeable criminal conduct of a third person.
Whitewater’s knowledge that a person was recently seen attempting to access an upper-
level balcony at night was sufficient to create a duty for Whitewater to protect Brady
from the foreseeable risk of someone accessing her upper-floor balcony. Additionally,
sufficient evidence exists in the record to create a factual issue as to whether Whitewater
breached its duty and whether the breach caused Brady’s injuries. We therefore reverse
and remand.
BACKGROUND
Because this issue was decided on summary judgment, the following facts are set
forth in a light most favorable to the nonmoving party, Brady.
1 Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997).
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Summit Ridge Apartments are owned by Summit Ridge, LLC, and managed by
Whitewater Creek, LLC. Maryann Prescott is the president of Whitewater. Whitewater
constructed the Summit Ridge apartment complex and began accepting new tenants in
2015. The apartment complex consists of 6 buildings and a total of 120 apartments.
There is evidence in the record that Whitewater took steps to keep its tenants safe
with regard to the security of the apartments. The tenant apartments had deadbolts and
door-handle locks on the primary front doors. All the windows had locks. The apartment
sliding-glass doors to the balconies had a switch-type lock on the door handle that could
only be locked from the inside.
Casie Waholi handled leasing during the first six months after construction. She
testified that Whitewater ran background checks for rental credit and criminal history on
prospective tenants. At the time of this incident, most misdemeanors within three years
and any felonies within seven years disqualified a potential tenant. A current tenant
could be evicted if they were subsequently convicted of qualifying offenses, including
sexual abuse, drug dealing, and charges involving guns.
Whitewater maintains incident reports, tenant complaint forms, and maintenance
work forms for the property managers, maintenance personnel, and tenants to fill out in
the office. If Whitewater became aware of criminal or suspicious activity, the policy was
to provide tenants with safety notices in writing that are posted to the front door of every
tenants apartment. Whitewater “rarely [has] major criminal issues that create tenant
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dissatisfaction.” When an incident occurs on the property, Whitewater would follow up
by requesting a copy of the police report to check for any criminal arrest and would
contact the police department to check on any convictions.
Under Whitewater’s lease provisions, all persons living in a unit must be on the
lease so tenants could be screened. When investigating unauthorized guests, Whitewater
would speak to the tenant to confirm the guest and would send several notices to the
tenant before turning the issue over to counsel. Under the lease, Whitewater could evict a
tenant for lease violations but was not required to do so.
The plaintiff, Brady, lived in a third-floor apartment at Summit Ridge. The
apartment had a balcony that was only accessible from inside the apartment. LaJuane
Roberson was an unregistered tenant, living in an apartment on the other side of the
common stairwell, which was to the left of Brady’s apartment. Roberson is an 18-year-
old male with a light build, standing 5'10'' tall. He was described as fit, athletic and could
climb through the window of his apartment. There is evidence in the record that
Roberson was living at Summit Ridge from November 2015 until October 2016.
Although it is not clear if Whitewater knew of Roberson specifically, the company
had received information that unauthorized guests were staying in the apartment on the
other side of the common stairwell, which was to the left of Brady’s apartment, for more
than 14 days. In April and May 2016, Whitewater served four notices of violation on the
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tenants living in the apartment for unauthorized guests staying more than 14 days. The
record does not indicate what action was taken in response to these notices.
In April 2016, Brady witnessed Roberson in a physical altercation with a young
female in the complex’s parking lot. Brady called 911 to report that Roberson was
assaulting the female, but there is no evidence that Roberson was charged with a crime
for this incident. Brady filed a tenant complaint form in the manager’s office. As she
completed the form and verbally described what she witnessed, an employee told her to
be quiet because the “neighbor” she reported had just walked in. Several days later, the
maintenance worker asked Brady if Roberson was the person she saw in the parking lot.
Brady responded yes. Roberson denied assaulting a female.
Several months later, another tenant at Summit Ridge, Olga Yurkova, witnessed a
balcony trespass incident. While on her balcony at 4:00 a.m. she heard a noise and saw a
male climbing the stairwell roof. He was trying to get into a second-floor balcony
belonging to her neighbor. He was “dangling” and about to roll himself onto the balcony.
He was “kind of pushing himself, but using his legs from the wall that he can roll over to
the balcony.” Clerk’s Papers (CP) at 93. She also described the incident as “kinda like in
a movie, he’s ninja, and pushing himself by the feet” and getting his arms over the railing
to pull up by the armpits. CP at 183. She asked the trespasser what he was doing, and he
said he lived there. She told him that he did not. He then got back on the roof. She said
without a doubt that had she not yelled at him, he would have been able to get up on the
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balcony. She got scared and went back into her apartment and locked the door. She does
not know how he left. She only saw him from the back and he was wearing a hoodie.
In the morning, Yurkova called the police to report the incident. The police report
for the incident indicated that the man was skinny, blonde, and white, but Yurkova
denied telling the police that he was blonde.
The following Monday, Yurkova and her neighbor reported the incident to the
apartment manager at Summit Ridge. Yurkova filled out a complaint form: “I went on
the balcony Saturday morning at 4:30 am. I saw a guy on the roof above the stairs and
trying to climing [sic] to my neighbor balcony. I said him something and scared him so
he run away.” CP at 98. The form indicates that it will be part of Summit Ridge’s
records after submission and that should follow-up be required, they would contact
Yurkova shortly.
Right after Yurkova’s complaint, the maintenance person at Summit Ridge spoke
to Yurkova and reported back to the president, Maryann Prescott. Prescott testified that
they did not find any evidence to corroborate Yurkova’s claim and did not believe that
someone had attempted to access the balcony as she described.
Nevertheless, Prescott claims maintenance was instructed to go door to door and
provide wooden dowels to tenants who were home and wanted one. While Prescott
testified that all tenants were offered dowels for their sliding doors, she had no first-hand
knowledge that this occurred, and the maintenance person was unavailable to testify.
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Whitewater did not keep records as to which tenants were notified or accepted a dowel.
There is no evidence that the other tenants were told about the balcony incident. Yurkova
later testified that the “apartment complex did nothing to make the apartment’s more
safe” and she “had to make her own door block and add a stick on alarm to her slider.”
CP at 184.
Two weeks after the Yurkova incident, an intruder raped Brady in her apartment in
the middle of the night. She believed the intruder entered her apartment through the
sliding glass door on her balcony. Brady remembered locking her front door before
going to bed and specifically remembered unlocking the front door for the police who
arrived after the rape. But she did not lock the sliding door because she did not believe
someone could scale the building and get to the balcony. Brady testified that if she had
been told about the Yurkova balcony trespass incident prior to her assault, she would
have locked the sliding door.
LaJuane Roberson was eventually charged and found guilty by a jury of first
degree rape, first degree burglary with sexual motivation for the attack, and tampering
with a witness.
After the assault, Whitewater put up flyers all over the complex warning tenants to
lock doors and windows even if they lived up high. The flyer indicated “a couple
disturbances in the area.” It urged tenants to keep sliders locked, acknowledging that
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“[t]he most common misconception for apartment living is that if you live on an upper
floor you are safe from intrusions.” CP at 206.2
Brady filed a personal injury suit against Whitewater Creek, Inc., and Summit
Ridge, LLC, alleging that they breached their duty to her as an invitee tenant by failing to
prevent the unreasonable danger of exterior access to balconies or warn tenants of the
same.
Whitewater moved for summary judgment, arguing it owed no duty to protect
Brady from the unforeseeable act of sexual assault by a third person, and Brady could not
prove breach or causation. Whitewater conceded that tenant invitees are owed a duty of
protection from hazards in common areas under Restatement (Second) of Torts § 315
(Am. L. Inst. 1965), but claimed that the sexual assault of Brady was not foreseeable.
Whitewater specifically asserted that Brady could not prove that Whitewater knew of the
danger because sexual assault and other similar violent criminal activity had not
previously occurred on the property.
Whitewater also argued that Brady did not have evidence of causation.
Whitewater reasoned that Brady’s theory of how Roberson accessed her balcony was
based on speculation, not direct evidence. Whitewater pointed to Prescott’s deposition,
2 While Whitewater suggests that several pieces of evidence submitted by Brady
were inadmissible under the evidence rules, the evidence had not been struck from the
record and was available to the trial court. See Br. of Resp’t at 15.
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where she testified that Brady’s third-floor balcony is 45 to 60 feet up and accessing it
from outside would be unlikely and dangerous.
One week before the scheduled summary judgment hearing, Brady filed and
served the declaration of Russell Kolins in support of her response. The declaration
established Kolins’ qualifications as a security consultant with 52 years of experience in
private practice. He conducted a site inspection of the Summit Ridge Apartment
complex. He took measurements and photographs of the complex, including Brady’s
apartment, Yurkova’s apartment, and the relevant balconies and stairwells. While much
of his declaration contains legal conclusions, he dedicates a section to his observations
and opinions. Specifically, Kolins testified:
Based on my site inspection of the Summit Ridge Apartments conducted on
March 15, 2021, in my professional opinion, it was foreseeable that an
individual could climb from the stairwell roof onto the second floor
balcony and then climb onto the third floor balcony of the Summit Ridge
Apartments. Records indicate that Roberson was 5'9'' tall, slender build and
“incredibly strong.” . . . I observed the following from my site inspection:
a. Distance between the edge of the second floor balcony railing from the
roof is approximately 5'4''. The horizontal distance from the front edge
of the roof to the balcony was 24''. Mr. Roberson’s height was
documented to be 5'9'', not including his reach which according to this
writer’s height (5''9') [sic] my sleeve length is 34' [sic] and hand length
8'', Mr. Roberson and anyone of similar size would be able to extend in
excess of that distance, not including however far he would be able to
stretch.
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b. The distance from the second floor railing to the top of the third floor
railing measured 65' which is 4'' less than the height of Mr. Roberson,
thus making it easy for the athletic rapist to access the Brady balcony.
CP at 319.
Whitewater moved to strike the declaration as untimely. Brady opposed the
motion to strike, advising the court that Kolins could not sign his declaration any sooner
due to his participation in a Florida trial, and that attorneys were not available to produce
it sooner due to trial conflicts, vacations, and COVID-19 difficulties. Kolins’ deposition
was scheduled one day before the summary judgment hearing.
The trial court granted both the motion to strike Russell Kolins’ declaration and
Whitewater Creek and Summit Ridge’s motion for summary judgment after taking both
issues under advisement on August 27, 2021. The order to strike indicates that it was
granted for “good cause.” Brady timely appealed.
ANALYSIS
1. TRIAL COURT’S DECISION TO STRIKE UNTIMELY DECLARATION
In its summary judgment motion, Whitewater alleged that Brady could not
produce evidence to create a material issue of fact on the element of causation. Five days
before the summary judgment hearing, Brady submitted the declaration of Russell
Kolins. On appeal, Brady assigns error to the trial court’s decision to strike the untimely
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declaration3 and argues that it abused its discretion by failing to conduct a Burnet analysis
before striking the declaration. Whitewater responds that Brady was required to move for
a continuance before the Burnet factors became relevant. In the alternative, Whitewater
contends the trial court conducted the analysis, and the declaration was properly struck.
We agree that the court abused its discretion by failing to consider the Burnet factors on
the record before striking Kolins’ declaration.
“Before we can consider the evidence in this case, however, we need to determine
what evidence is before us.” Keck v. Collins, 184 Wn.2d 358, 368, 357 P.3d 1080
(2015). When we review a summary judgment order, we must consider all evidence in
favor of the nonmoving party. Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d
182 (1989). Admissible expert testimony on an ultimate issue of fact may be sufficient to
create a dispute of material fact precluding summary judgment. N.L. v. Bethel Sch. Dist.,
187 Wn. App. 460, 468, 348 P.3d 1237 (2015).
This issue is clearly controlled by the Supreme Court’s decision in Keck. There,
the court held that a Burnet analysis is “appropriate when the trial court excludes
untimely evidence submitted in response to a summary judgment motion.” 189 Wn.2d at
369. The three Burnett factors include: “whether a lesser sanction would probably
suffice, whether the violation was willful or deliberate, and whether the violation
3 CR 56(c) requires an adverse party to a motion for summary judgment to file and
serve any opposing documentation no later than 11 calendar days before the hearing.
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substantially prejudiced the opposing party.” Id. at 369. The Burnet analysis promotes
the purpose of summary judgment, which is to test the sufficiency of evidence before
trial, not to cut litigants off from their right to a jury trial when they have evidence to
present. Id. at 369.
Relying on our decision in Boyer v. Morimoto, 10 Wn. App. 2d 506, 449 P.3d 285
(2019), Whitewater argues that a trial court is not required to apply Burnet unless the
party submitting the untimely declaration moves for a CR 56(f) continuance. Boyer is
inapposite because the responding party filed a supplemental declaration after the trial
court had issued its memorandum decision on summary judgment and did not urge the
trial court to consider the Burnet factors or seek a continuance or reconsideration. Id. at
536.
Alternatively, Whitewater contends that the trial court did consider the Burnet
factors when it allowed Brady to argue Burnet in response to the motion to strike. While
Brady raised Burnet in her argument, the court made no findings on the factors or
otherwise provided a Burnet analysis. In Keck, the Supreme Court found that the trial
court’s commenting on one Burnet factor without making findings on the other two
factors was an insufficient analysis. 184 Wn.2d at 369. While explicit citation to Burnet
is not dispositive, some discussion must take place to serve as a foundation for implicit
findings. Jones v. City of Seattle, 179 Wn.2d 322, 344, 314 P.3d 380 (2013).
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The trial court failed to make any required findings on the record or in its order.
The finding of “good cause” without more is insufficient. Id. at 348. We decline to
provide the missing analysis on appeal.
Finally, Whitewater argues that any error was harmless because Kolins’
declaration lacked foundation, and was conclusory and speculative. Jones, 179 Wn.2d at
356 (Burnet violations found harmless where the excluded testimony was irrelevant). As
we noted above, some of the testimony provided by Kolins was relevant and admissible.
Kolins described the physical measurements of the balcony and stairs. The declaration
also applied the physical attributes of Roberson to opine that exterior third floor balcony
access was not only possible but foreseeable. The exclusion was not harmless.
2. WHETHER WHITEWATER OWED A DUTY TO PROTECT BRADY FROM THE
FORESEEABLE CRIMINAL CONDUCT OF THIRD PERSONS
Brady contends that Whitewater owed her a duty to protect her from the risk that
someone may access her upper-level balcony. She also contends that based on the
allegations of a prior assault and Roberson’s status as an unauthorized tenant, Whitewater
knew of Roberson’s dangerous propensities and had a duty to protect her from Roberson
by trespassing or evicting him from the property. Whitewater denies any special
relationship existed with Roberson but acknowledges that as a landlord it had a special
relationship with its tenant. Nevertheless, Whitewater contends that it did not have a duty
to protect her from Roberson’s attack because it was not foreseeable.
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We review an order dismissing a complaint on summary judgment de novo,
undertaking the same inquiry as the trial court. Hertog v. City of Seattle, 138 Wn.2d 265,
275, 979 P.2d 400 (1999). Summary judgment is appropriate when the record
demonstrates no genuine issue of material fact. Id.; CR 56(c). On summary judgment,
once a moving party establishes this initial burden, the nonmoving party must rebut the
moving party’s contentions by setting forth specific facts showing there is a genuine issue
for trial. Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1
(1986); CR 56(e).
In order to prove negligence “a plaintiff must show (1) the existence of a duty to
the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4) the breach is a
proximate cause of the injury.” Hurley v. Port Blakely Tree Farms L.P., 182 Wn. App.
753, 773, 332 P.3d 469 (2014) (citing Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d
1118 (1998)). To defeat summary judgment, the nonmoving party must establish an
issue of material fact as to each element of negligence. Martini v. Post, 178 Wn. App.
153, 164, 313 P.3d 473 (2013). The plaintiff’s evidence is sufficient on summary
judgment if it leads a reasonable person to conclude that harm, more probably than not,
happened in such a way that the defendant should be held liable. Id. at 165. Facts and
reasonable inferences are made in the light most favorable to the nonmoving party, here,
Brady. Hertog, 138 Wn.2d at 275.
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In this case, the parties dispute whether Whitewater had a duty to protect Brady. The
existence of a duty is determined as a matter of law. McKown v. Simon Prop. Grp., Inc.,
182 Wn.2d 752, 762, 344 P.3d 661 (2015). “The general rule at common law is that a
private person does not have a duty to protect others from the criminal acts of third parties.”
Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 223, 802 P.2d 1360 (1991).
As an exception to this rule, “a duty may arise to protect others from third party
criminal conduct if a special relationship exists between the defendant, the third party, or
the third party’s victim.” Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 200, 943 P.2d
286 (1997) (citing Hutchins, 116 Wn.2d at 227-28). This special relationship arises in
two situations:
There is no duty so to control the conduct of a third person as to prevent
him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which
imposes a duty upon the actor to control the third person's conduct, or
(b) a special relation exists between the actor and the other which gives to
the other a right to protection.
Restatement § 315.
Brady contends that both exceptions apply in this case, but in making this
argument, she conflates and comingles the separate exceptions. The exception provided
under § 315(a) applies only when a special relationship exists between the actor
(Whitewater) and the third person (Roberson). As § 315 cmt. c notes, examples of this
relationship are set forth in §§ 316-319. They include the relationship between a parent
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and child, employer and employee, possessor of land and their licensee, and one who
takes charge or supervises a person with known dangerous propensities. Our Supreme
Court has also held that a special relationship exists between psychiatrists and their
inpatient and outpatient clients. Petersen v. State, 100 Wn.2d 421, 428, 671 P.2d 230
(1983); Volk v. DeMeerleer, 187 Wn.2d 241, 262-63, 386 P.3d 254 (2016).
For this exception to apply, Brady must demonstrate “a definite, established, and
continuing relationship exists between the defendant and the third party.” Volk, 187
Wn.2d at 256. Brady does not attempt to do so and instead, relies on Restatement § 318,4
which recognizes that a special relationship may exist between a landowner and its
licensee. Brady does not contend that Roberson was Whitewater’s licensee. Nor are
there any Washington cases that have applied this exception to find that a residential
landlord has a duty to control its tenant so as to prevent the tenant from committing
criminal acts on another.
4 Restatement § 318 states:
If the actor permits a third person to use land or chattels in his possession
otherwise than as a servant, he is, if present, under a duty to exercise
reasonable care so to control the conduct of the third person as to prevent
him from intentionally harming others or from so conducting himself as to
create an unreasonable risk of bodily harm to them, if the actor
(a) knows or has reason to know that he has the ability to control the third
person, and
(b) knows or should know of the necessity and opportunity for exercising
such control.
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Even if we were to consider § 318, finding a duty under these circumstances
would be contrary to public policy. The duty recognized in § 318 is imposed on a
landowner who knows or has reason to know the need to exercise such control. Brady
contends that Whitewater’s knowledge of Roberson’s involvement in a prior assault,
along with actual or constructive knowledge of Roberson’s unauthorized tenancy,
provided notice of the need to control Roberson. Brady argues that, given this
knowledge, Whitewater had a duty to evict or remove Roberson from the property.
From a policy standpoint, if we were to impose a duty upon a landlord to evict a
tenant who is suspected–but not convicted–of a misdemeanor assault, it would
significantly impact people’s ability to obtain and retain housing. It is well established
that “‘[t]he concept of duty is a reflection of all those considerations of public policy
which lead the law to conclude that a plaintiff’s interests are entitled to legal protection
against the defendant’s conduct.’” Volk, 187 Wn.2d at 263 (quoting Affiliated FM Ins.
Co. v. LTK Consulting Srvs, Inc., 170 Wn.2d 442, 450, 243 P.3d 521 (2010). Under these
circumstances, public policy does not favor imposing a duty on a landlord to control its
unauthorized tenant by evicting him for one allegation of misdemeanor assault.5
Having determined that the first exception in § 315 does not apply, we turn to the
second exception. Under § 315(b), a special relationship exists between a business
5 While the landlord may not have a duty to do so, it may nonetheless choose to evict
a tenant under these circumstances if otherwise authorized by law.
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(Whitewater) and an invitee (Brady) “because the invitee enters the business premises for
the economic benefit of the business.” Nivens, 133 Wn.2d at 202. Unlike the first
exception, the second exception clearly applies to the special relationship between a
landlord and tenant. Griffin v. West RS, Inc., 97 Wn. App. 557, 984 P.2d 1070 (1999),
rev’d on other grounds, 143 Wn.2d 81 (2001). When this special relationship exists, “a
business owes a duty to its invitees to protect them from ‘reasonably foreseeable’
criminal acts of third persons.” McKown, 182 Wn.2d at 765. However, as we set forth
below, this is only a “potential” duty and does not apply to a specific case unless the
plaintiff can demonstrate that the specific criminal conduct in this case was foreseeable.
Id. at 765 n.3 (citing Nivens, 133 Wn.2d at 205), 767.
While acknowledging the existence of a special relationship between a landlord
and tenant, Whitewater argues that any duty only extends to dangerous conditions in the
common areas of the complex. Whitewater reasons that since the special relationship that
gives rise to a landlord’s liability stems from the landlord’s control of the common areas,
its only duty is to protect Brady from dangerous or defective conditions in the common
area, not inside her apartment. We reject this argument because it is not supported by
case law or Restatements. Moreover, the stairwell, walls, and roof Roberson allegedly
used to access Brady’s balcony are considered common areas even if they are not open to
the public. See Griffin, 97 Wn. App. at 568 (holding that common areas were not limited
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to areas open to the public but included those areas controlled by the landlord, including
the attic space over the apartment).
Washington has adopted a conservative view of a landowner’s duty to protect
against the criminal conduct of third persons. See 2 DAN B. DOBBS, PAUL T. HAYDEN &
ELLEN M. BUBLICK, THE LAW OF TORTS § 416, at 714 (2d ed. 2011). Under this
approach, a landowner does not have a duty unless “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.” McKown, 182 Wn.2d at 767 (citing RESTATEMENT §
344). In other words, even when a special relationship exists, a landowner does not have
a duty to protect against the criminal acts of another unless the landowner has notice. See
Hutchins, 116 Wn.2d at 226.
While § 315 provides the exception, § 344 defines the contours of this duty.
McKown, 182 Wn.2d at 766; Nivens, 133 Wn.2d at 202. Restatement § 344 provides:
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.
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Under this rule, a business has a duty to protect invitees “from imminent criminal harm
and reasonably foreseeable criminal conduct by third persons.” Nivens, 133 Wn.2d at
205. Here, Brady does not contend that Roberson’s conduct was imminent. Instead, she
argues that his criminal conduct was foreseeable.
When the question is whether a landowner is liable for the criminal acts of a third
person, foreseeability defines the duty as well as the scope of the duty. McKown, 182
Wn.2d at 762. “[O]nce ‘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.’” Id. at 763
(quoting Schooley v. Pinch’s Deli Mkt., Inc., 134 Wn.2d 468, 475, 951 P.2d 749 (1998)).
On the other hand, if a particular criminal act is not reasonably foreseeable based on the
circumstances described in § 344, then it is unnecessary to determine the scope of duty.
The circumstances a court can consider in determining whether a risk was
foreseeable are set forth in Restatement § 344 cmt. f. The three circumstances that
demonstrate when a landowner would have reason to anticipate specific criminal conduct
include: past experience, the place of business, or the character of the business. Id. at
768. Specifically, the comment provides:
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
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No. 38449-7-III
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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.
RESTATEMENT § 344 cmt. f. (emphasis added).
When foreseeability is based on a business’s past experience, a plaintiff must
produce “specific evidence that the defendant knew of the dangerous propensities of the
individual assailant or previous acts of similar violence on the premises.” Wilbert v.
Metro. Park Dist. of Tacoma, 90 Wn. App. 304, 310, 950 P.2d 522 (1998). “Where 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.
Brady argues that the term “past experience” is not restricted to previous acts of
similar violence. In support of this position, she points out that in McKown the Supreme
Court held that the foreseeability of criminal acts could be demonstrated through
evidence other than prior similar acts. Br. of Appellant at 29 (citing McKown, 182
Wn.2d at 771). While this is true, the only other evidence that could establish
foreseeability was evidence of the place or character of a business. McKown, at 768
(quoting RESTATEMENT § 344 cmt. f.) and 770 n.6. But “where a landowner’s obligation
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No. 38449-7-III
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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.” Id. at 774.
Turning to the application of this rule, Brady contends that her evidence is
sufficient to show that Roberson’s acts were foreseeable. Brady points to three examples
as evidence of foreseeability: the place and character of the business, Whitewater’s
knowledge of Roberson’s dangerous propensities, and Yurkova’s prior complaint of a
person scaling the exterior walls to access an upper-floor balcony. We reject the first two
circumstances. However, we find that Whitewater’s knowledge of a person recently seen
attempting to access an upper-floor balcony was sufficient to put Whitewater on notice
and create a foreseeable risk that someone would gain unauthorized access to the upper
floor balconies of its apartments.
Brady’s first contention is that, given the place and character of the business as an
apartment complex, Whitewater knew or should have known that upper-floor apartments
were unsafe. Br. of Appellant at 26, 27. However, similar to the plaintiff in McKown,
Brady fails to define these terms or offer a meaningful framework for evaluating when
the place or character of a business would justify imposing a duty. See McKown, 182
Wn.2d at 761. Thus, we decline to consider this argument.
Second, Brady argues that Whitewater knew of Roberson’s dangerous propensities
based on his involvement in a physical altercation in the parking lot five months before
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No. 38449-7-III
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the rape. We reject this contention as well. As noted above, there is no evidence that
Roberson was charged or convicted of this misdemeanor assault. Regardless, the
allegation is not sufficiently similar to give notice that Roberson was likely to access an
upper-floor balcony five months later.
Finally, we consider whether Yurkova’s complaint was a prior similar incident
sufficient to put Whitewater on notice that it was likely that someone would try to access
upper-floor balconies illegally. In McKown, the Court held that when foreseeability is
based on past experience, the prior similar acts test requires evidence that the prior
conduct was sufficiently similar in nature and location, sufficiently close in time, and
sufficiently numerous that a business could anticipate that such a crime will happen
again. 182 Wn.2d at 772.
Brady points to two factually similar cases to show that Yurkova’s complaint was
sufficient to put Whitewater on notice that scaling the exterior walls and roof to access an
upper-floor balcony was foreseeable conduct. In Griffin, the tenant complained to her
landlord after a neighbor broke through the attic crawl space wall between their
apartments and entered Griffin’s apartment. 97 Wn. App. at 560. The landlord screwed
a piece of wood across the crawl space opening but took no further action. Id. Two
weeks later, the neighbor reentered Griffin’s apartment and assaulted her. Id. During the
police investigation, it was learned that a hole in the sheetrock between the two
apartments allowed the neighbor to enter Griffin’s apartment through the crawl space
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No. 38449-7-III
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opening. Id. at 561. Under these circumstances, Division One held that the trial court
committed reversible error in failing to instruct the jury that the landlord had a duty to
protect Griffin from the foreseeable criminal conduct of a third person. Id. at 572.
In Johnson v. State, a college student alleged that the university failed to warn or
protect her from the foreseeable rape by a third person. 77 Wn. App. 934, 894 P.2d 1366
(1995). After rejecting several other theories of liability, the court held that the student
was an invitee, and evidence that the university was aware of several crimes on campus
that year was sufficient to create a material issue of fact and foreseeability. Id. at 943
(cited with approval by McKown, 182 Wn.2d at 772).
On the other hand, in McKown, the court cited several cases which found that
incidents were unforeseeable as a matter of law because they were dissimilar to prior
incidents. In Raider v. Greyhound Lines, Inc., the plaintiff was standing in a line at the
bus station when a passenger randomly pulled out a gun and shot her multiple times. 94
Wn. App. 816, 818, 975 P.2d 518 (1999). Citing the prior similar incident test
recognized in Wilbert, the court held that the assailant’s actions were unforeseeable as a
matter of law. Id. at 819-20. Notably, there was no evidence that Greyhound knew of
particular dangerous propensities of this passenger. Id. at 820. And while there was
evidence of prior crimes at the station, the attack on the plaintiff was not sufficiently
similar to provide notice sufficient to raise a duty to protect the plaintiff. Id. (cited with
approval by McKown, 182 Wn.2d at 773); see also Tortes v. King County, 119 Wn. App.
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No. 38449-7-III
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1, 6, 84 P.3d 252 (2003) (unforeseeable that passenger would shoot driver of bus when
there was no evidence of prior similar crimes on other buses); Fuentes v. Port of Seattle,
119 Wn. App. 864, 82 P.3d 1175 (2003) (evidence of prior assault and car prowling was
insufficient to establish foreseeability of carjacking).
We hold that Griffin and Johnson apply to this case. The complaint by Yurkova
was sufficient to put Whitewater on notice of the foreseeable risk that someone would
gain unauthorized access to upper-floor balconies. Yurkova told Whitewater that she
watched a man scaling the exterior wall from the roof and attempting to access the
second-floor balcony of her friend during the night. When she said something, the person
left the area. Brady contends that her attacker must have accessed her third-floor balcony
in the middle of the night and entered her apartment through the unlocked balcony door
because her front door remained locked. Brady’s expert testified that this was physically
possible.
Yurkova’s complaint made this conduct foreseeable. Yurkova’s complaint was
factually similar to Brady’s allegation of criminal conduct. While there was only one
complaint, it was close in time to Brady’s attack. Moreover, Yurkova’s complaint
pointed out a significant security concern that was not obvious to tenants.
Whitewater characterizes the prior incident as an attempted trespass and contends
that it does not establish the foreseeability of the rape. Brady was required to produce
evidence of a prior similar act to show that the risk was foreseeable. This requirement is
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No. 38449-7-III
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different from showing that the harm is foreseeable. The risk is unauthorized access to
her balcony. Whether burglary and rape are foreseeable harms from this risk is a
question of fact for the jury.
We hold that Yurkova’s complaint was a prior similar incident sufficient to put
Whitewater on notice and create a duty to protect Brady from the foreseeable risk that
someone may gain access to her upper-floor balcony.
3. WHETHER BRADY PRESENTED SUFFICIENT EVIDENCE OF A BREACH
Whitewater contends on appeal that dismissal of Brady’s claims on summary
judgment was appropriate because she failed to produce evidence that Whitewater
breached any duty. We disagree.
Whitewater had a duty to protect Brady from the risk that someone would gain
unauthorized access to her upper-floor balcony. The Restatements provide that, at the
very least, when this duty exists, the landlord has a duty to “give a warning adequate to
enable the [tenant] to avoid the harm.” RESTATEMENT § 344(b). If it is reasonable to
assume that a warning will not be sufficient, the landlord should use such means of
protection as are available or provide the tenant with such means. RESTATEMENT § 344,
cmt. d.
While Whitewater claims that it warned all the tenants who were home and
provided them with wooden dowels to block their balcony doors, Brady disputes that she
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No. 38449-7-III
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received a warning or a dowel. Brady’s evidence is sufficient to create a genuine issue of
material fact on the element of breach.
4. WHETHER BRADY PRESENTED SUFFICIENT EVIDENCE OF CAUSATION
Finally, Whitewater argues that insufficient evidence supports a causation nexus
between the breach of duty and the injury. It contends that even if it breached its duty,
the breach was not a proximate cause of Brady’s rape because her theory that Roberson
entered her apartment by accessing her balcony is speculative and unlikely. Br. of Resp’t
at 37.
The plaintiff need not prove causation to an absolute certainty. Gardner v.
Seymour, 27 Wn.2d 802, 808, 180 P.2d 564 (1947). Proximate cause is determined via
examination of both “cause in fact” which arises from the nexus between an act and an
injury. Lowman v. Wilbur, 178 Wn.2d 165, 169, 309 P.3d 387 (2013). Legal causation
rests on policy considerations of how far the consequences of a defendant’s acts should
extend. Hartley v. State, 103 Wn.2d 768, 779, 698 P.2d 77 (1985).
Circumstantial evidence of negligence may be presented as long as it affords room
for “‘reasonable minds to conclude that there is a greater probability that the conduct
relied upon was the [cause in fact] of the injury than there is that it was not.’” Martini,
178 Wn. App at 165 (quoting Hernandez v. W. Farmers Ass’n, 76 Wn.2d 422, 426, 456
P.2d 1020 (1969)).
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No. 38449-7-III
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Here, there is circumstantial evidence sufficient to create a reasonable inference
that Roberson accessed Brady’s apartment from the unlocked balcony. Brady testified
that her front door remained locked prior to and after the assault, but she had not locked
her balcony door. Brady also testified that she would have locked her balcony door had
she been warned of the risk that someone was caught attempting to access an upper-level
balcony. This evidence is sufficient to create a material issue of fact on the issue of
causation.
We reverse the trial court’s order dismissing Brady’s claims on summary
judgment and remand for further proceedings consistent with this opinion.
_________________________________
Staab, J.
WE CONCUR:
_________________________________
Lawrence-Berrey, A.C.J.
_________________________________
Pennell, J.
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