[Nos. 57997-5-I; 58053-1-I; 58918-1-I. Division One. February 25, 2008.]
[1] Judgment — Summary Judgment — Review — Standard of Review. An appellate court reviews a summary judgment de novo, performing the same inquiry as the trial court under CR 56(c). [2] Judgment — Summary Judgment — Burden on Nonmoving Party — Averment of Specific Facts — Speculation. A party resisting a motion for summary judgment may not rely on speculation or argumentative assertions. [3] Judgment — Summary Judgment — Issues of Law — Review — Standard of Review. Issues of law in a summary judgment proceeding are reviewed de novo. [4] Negligence — Duty — Question of Law or Fact — In General. The existence of a duty of care is a question of law. [5] Judgment — Summary Judgment — Review — Issues Not Raised in Trial Court. Under RAP 9.12, an appellate court reviewing a summary judgment will not consider issues not raised in the trial court. [6] Appeal — Review — Issues Not Raised in Trial Court — In General. An argument neither pleaded nor argued to the trial court may not be raised for the first time on appeal. [7] Negligence — Duty — Protection of Others — Relationship of Parties. In general, a party has no duty to prevent a third party from causing physical injury to another unless a special relationship exists between the party and either the third party or the foreseeable victim of the third party's conduct. [8] Negligence — Duty — Protection of Others — Criminal Acts of Third Persons — Conduct Relating to Property — Nature of Property — In General. The nature of a parcel of property may give rise to a duty on the part of the owner or occupier of the property to protect other persons from the consequences of third party criminal acts committed on the property only if the property presents a special temptation or opportunity for third party criminal conduct that exposes others to a recognizable high degree of risk of harm. [9] Negligence — Duty — Protection of Others — Criminal Acts of Third Persons — Conduct Relating to Property — Nature of Property — Parking Lot. Neither late-night loitering, nor prior criminal activity, nor poor lighting and lack of surveillance in a parking lot establish affirmative activity by the parking lot owner creating a special temptation for criminal activity that would give rise to a duty on the part of the owner to protect others from the consequences of third party criminal acts committed in the parking lot. Absent a special relationship giving rise to a duty, the owner's actual or constructive notice of danger does not, by itself, create the duty. Lights and cameras are preventative measures against crime; the failure to provide them is not in and of itself a special temptation to crime. Any obligation to take such precautionary measures against crime arises only when the special temptation has been created. [10] Negligence — Nuisance — Nature of Action — In General. An action alleging a nuisance resulting from the negligent conduct of the defendant is treated as an action for negligence. Nature of Action: An innocent passerby who was shot and gravely injured as he was walking late at night near a nightclub that was hosting a special event and near an adjacent parking lot where gang members had gathered sought damages from the nightclub, the parking lot owner, the nightclub security provider, the special event promoter, and the radio station that was broadcasting live from the nightclub. The plaintiff alleged that the defendants created a dangerous situation by attracting armed gangs without providing sufficient security services. Superior Court: The Superior Court for King County, No. 04-2-39239-0, Richard A. Jones, J., on March 3, 2006, entered a summary judgment in favor of the radio station, the event promoter, and the parking lot owner and an order denying motions for summary judgment made by the nightclub and the security provider. The plaintiff and the nightclub subsequently entered into a settlement agreement, thereby leaving the security provider as the only remaining defendant. Court of Appeals: Holding that neither the security provider, the event promoter, nor the parking lot owner owed a duty of care to protect the plaintiff from third party criminal conduct, the court affirms the judgment in favor of the event promoter and parking lot owner and reverses the order denying summary judgment to the security provider. Frank J. Steinmark- and Kathryn A. Keaton- (of Chism Thiel McCafferty Campbell & Steinmark, PLLC), for petitioner. Laurie M. Thornton- (of Corr Cronin Michelson Baumgardner & Preece, LLP), for respondent Aaron Buyers. Gary A. Trabolsi- and Raymond V. Bottomly- (of Gardner Bond Trabolsi, PLLC), for respondent Diamond Parking, Inc. Rebecca J. Roe-, William J. Rutzick-, and Janet L. Rice- (of Schroeter Goldmark & Bender, P.S.), for respondent Mahmoud Sourakli. ¶1 BECKER, J. — Mahmoud Sourakli, an innocent passerby, was shot and gravely injured when a bullet hit him in the back as he was walking late at night near a popular Seattle nightclub where gang members had gathered. Sourakli seeks to impose liability for his injury upon the businesses that induced the gangs to congregate near the nightclub without providing adequate security services to prevent violence. Ordinarily, third parties do not have tort liability for the criminal acts of others. The conduct of the business defendants who remain in this case does not bring them within the exceptions to the general rule. ¶2 At the center of this dispute is Mr. Lucky, a nightclub located directly across the street from Key Arena in Seattle. Because the club draws a rough crowd, including gang members, Mr. Lucky hired Titan Security in the fall of 2003. ¶3 On the night of Friday, December 12th, 2003, Mr. Lucky was hosting a special event. Mr. Lucky had hired Prolific Records to promote the event and fill the club with patrons. As part of the promotion, the radio station KUBE 93 FM was broadcasting live from the club into the early morning hours, extending a general invitation to come to the club. Approximately seven Titan security guards were present. The unarmed security team was in charge of patting down people entering the club for weapons, enforcing the club's dress code, and preventing or breaking up disturbances within the club. ¶4 The guards were turning away would-be patrons in part because Mr. Lucky had reached capacity and also because Prolific Records had instructed them to turn away gang members known to have been involved in recent assaults at other bars. As a result, people were lining up along the sidewalk and congregating in a Diamond Parking lot adjacent to the club to the north. The parking lot was self-service; there was no attendant on duty. On the southwest corner of the lot, right next to Mr. Lucky, a hot dog stand was operating under a lease from Diamond. The hot dog stand stayed open on weekend nights after Mr. Lucky closed, sometimes as late as 2:45 a.m., with people loitering about. ¶5 Mahmoud Sourakli and a group of friends were walking south toward the club down First Avenue North when shooting started shortly after 2 a.m. Sourakli had not been a patron of Mr. Lucky that evening. Sourakli saw a large group of people congregated in the Diamond parking lot. He heard "loud, multiple rapid shots." ¶6 Sourakli's girl friend immediately called 911 for help. A woman living in the neighborhood also called 911 to report that she heard approximately 15 shots fired "from the area of the Diamond lot." ¶7 Police arrived on the scene at 2:16 a.m. The crowd in the parking lot had scattered by the time the police arrived. Two hot dog vendors who were present said they dove behind their carts and did not see who was shooting. ¶8 Detective Greg Tomlinson responded to the scene at 2:20 a.m. and began an investigation. He identified several gang members who had knowledge about the shooting. One man admitted to being in one of the cars from which shots were fired. He said that two rival gangs had been arguing over drug-dealing turf and this had erupted into a gunfight as the gangs left in their cars. Based on his investigation, Detective Tomlinson concluded that "several shots had been fired from at least two vehicles as they left the Diamond parking lot on the north side of Mr. Lucky's." ¶9 Police were not able to identify the person who fired the shot and they did not find the gun. Due to insufficiency of the evidence to prove a charge against a particular defendant, the criminal case is currently inactive. ¶10 Detective Tomlinson stated in his declaration that he had previously responded to complaints of trouble at Mr. Lucky and was aware of large groups of people loitering in the Diamond parking lot. Police would walk through the lots to break up fights. They were particularly concerned about the safety of the parking lots because in view of the pat-down policy at Mr. Lucky, people would leave guns in their cars. ¶11 Sourakli is a quadriplegic as a result of the injuries caused by the shooting. He filed this lawsuit on February 3, 2006. The defendants named in Sourakli's civil complaint included Mr. Lucky, Diamond Parking, Titan Security, Clear Channel Broadcasting (KUBE 93 FM), and Prolific Records. The complaint alleged that the defendants created a dangerous situation by attracting armed gangs without providing sufficient security services. ¶12 All five defendants moved for summary judgment on the grounds that they did not have a duty to protect Sourakli from the criminal acts of a third party and that proximate cause was lacking. Sourakli responded that the businesses should bear the responsibility for the absence of adequate security because they created and profited from the activities at Mr. Lucky. Sourakli showed that the club had a history of violence and had refused to "beef up" security despite having notice that dangerous crowds were attracted by promotional events. ¶13 The court granted motions to dismiss made by Clear Channel, Prolific Records, and Diamond Parking. The court denied motions for summary judgment made by Titan Security and Mr. Lucky. The court reasoned that Mr. Lucky, the possessor of land, had a duty based on the club creating a special temptation or opportunity for crime, and "under the limited and specific circumstances of this case" the criminal activity was reasonably foreseeable. ¶14 Sourakli settled with Mr. Lucky, leaving Titan Security as the only remaining defendant. Titan successfully petitioned this court for discretionary review of the order denying its motion for summary judgment. This court then agreed to treat as final the dismissal orders granted to Diamond Parking and Prolific Entertainment. Sourakli has appealed from the orders dismissing these two defendants, and his appeal has been consolidated with our discretionary review of the order denying summary judgment to Titan. TITAN SECURITY ¶16 Titan claims the trial court erred in denying its motion for summary judgment because Titan did not owe a duty to Sourakli. Sourakli responds Titan had a duty to plaintiff either under the rescue doctrine or its contract with Mr. Lucky. Sourakli's argument on appeal is not the argument he made in the trial court and it is not the argument he advanced in responding to Titan's motion for discretionary review. ¶17 At summary judgment, Sourakli claimed that all defendants were negligent based on the theory that possessors of land are liable for the foreseeable consequences of their activities on their premises which injure persons off the premises. He argued that the defendants owed a duty to passerby based on Restatement (Second) of Torts §§ 368 and 371 as well as Hutchins v. 1001 Fourth Avenue Associates, 116 Wn.2d 217, 802 P.2d 1360 (1991). Sourakli alleged that even the defendants who were not possessors of land (Titan, Prolific Records, and Clear Channel) were liable to the same extent as Mr. Lucky on a premises liability theory because "they carried on an activity upon the land" on behalf of Mr. Lucky. ¶18 In response to Titan's motion for discretionary review in this court, Sourakli continued to rely on premises liability as a basis for finding Titan negligent. Sourakli argued that Titan Security, as agent for Mr. Lucky, had a duty to provide security services based upon the level of its expertise without regard to the contractual limits on the scope of its duty. Our commissioner characterized Sourakli's tort theory against Titan as "a dramatic expansion of existing negligence standards." ¶19 From the briefs Sourakli has submitted after discretionary review was granted, we conclude that Sourakli has abandoned his premises liability theory against Titan. Instead of responding to our commissioner's critique, Sourakli now contends that Titan had a duty based on the rescue doctrine or arising from its contractual obligations to Mr. Lucky. He points to evidence that approximately 15 minutes before the shooting, Aaron Byers of Prolific Records heard about guns being displayed in the parking lot and told one of Titan's people inside the club to call 911. Titan did not call. Sourakli contends that if Titan had called 911 with this information, police would have arrived soon enough to break up the crowd and prevent the gunfight. ¶21 The trial court order denying summary judgment to Titan is reversed. PROLIFIC RECORDS ¶22 Sourakli appeals the order granting summary judgment dismissal to Prolific Records. In this court, Sourakli contends that Aaron Byers, acting on behalf of Prolific, had a duty based on the rescue doctrine. To demonstrate that he preserved this issue by raising it below, Sourakli cites a few sentences from his response to the motion for summary judgment: Some girls came up and told [Byers] to call 9-1-1 because some guys in the parking lot had guns. He did not. He claims to have told security to call 9-1-1. He had his cell phone. He went back in the club, and about 10-15 minutes later, heard gunfire. . . . . If Mr. Byers himself had called that night, it is probable that the dispute that resulted in the accidental shooting of Mr. Sourakli would have been stopped. ¶23 Sourakli did not present the rescue doctrine to the trial court as a separate basis for defeating the motion for summary judgment. We have reviewed Sourakli's complaint, his response to the defendants' motions for summary judgment, and his answer to Titan's motion for discretionary review. In these documents, Sourakli did not mention the rescue doctrine or cite any of the cases involving the rescue doctrine that he now relies on. The passages that Sourakli cites to demonstrate that he preserved the issue are embedded in a different context. Neither the table of contents nor the headings within the motion identify the rescue doctrine as a separate theory. Upon reading the motion, neither the trial court nor the defendants could reasonably be expected to perceive that Sourakli intended to pursue the rescue doctrine as a separate theory of liability. Because Sourakli did not preserve this issue, we decline to consider the argument on appeal. The order granting Prolific Entertainment's motion for summary judgment is affirmed. DIAMOND PARKING ¶24 Sourakli also appeals the dismissal of his claim against Diamond Parking. As to Diamond, he maintains the same theory on appeal that was presented below: that a jury could find Diamond was charged with a duty as a result of its having created a special or peculiar temptation for criminal activity on its parking lot, and that Diamond breached its duty by failing to provide adequate security. Although Diamond is aware of criminal activity in its lots adjacent to bars, it has refused to post an attendant on such lots, install video cameras, pay for security personnel, or close the lots at dangerous times. Diamond has made sure that its box where customers pay their money is well-lit, but has not provided adequate lighting to deter crime. ¶25 The leading case in Washington involving a landowner's duty to protect a passerby from the risk of assault on the premises is Hutchins v. 1001 Fourth Avenue Associates, 116 Wn.2d 217, 802 P.2d 1360 (1991). In Hutchins, the plaintiff was making his way back to his hotel in downtown Seattle after dinner. A stranger approached the plaintiff, engaged him in conversation, and then pushed him into an unlit armored car bay, where the plaintiff was assaulted and robbed. The plaintiff sued the occupiers of the land, claiming that they breached the duty of a person who owns or controls buildings adjacent to a public way to maintain the buildings free of any conditions posing unreasonable dangers to passerby. Hutchins, 116 Wn.2d at 220. The plaintiff claimed the defendants should have known that it was a high crime area and that the car bay provided a prime place for criminal activity to take place out of the public view. ¶27 The trial court analyzed Sourakli's claim against Diamond under Hutchins and dismissed the claim after concluding there was "no evidence that Diamond Parking acted unlawfully in how it operated its parking lot, or that Diamond was on notice of the alleged activities that plaintiff contends took place on their premises." The plaintiff advances no case on point supporting extending the duty of landowners to the circumstances now before this Court relating to Diamond Parking's alleged activities. Lucky's patrons may have used Diamond's parking lot and increased loitering and loud music on the premises. That conduct as a matter of law does not serve as notice to a possessor of land that intentional criminal assault of a passerby off premises, one and a half blocks away [might occur, and it does not] create a duty of increased security or cameras. Moreover, there is no evidence before this Court . . . that Diamond affirmatively created or exposed plaintiff to a recognizable high degree of risk of harm. The Court undoubtedly agrees that the injuries to the plaintiff are horrific. The unfortunate reality of our society is that a criminal component of our society engages in deplorable conduct. As the Court stated in Hutchins, however, to extend a duty to Diamond as requested by plaintiff would make urban land possessors the insurers of all those passing on public sidewalks and streets. ¶28 Hutchins lists examples of situations in which a duty might arise based on creating a special temptation for criminal activity: leaving an open box of dynamite caps near a playground where small children play, leaving chemicals in an unsecured place on school property where they are accessible to children, and building scaffolding in a manner that makes the terrace to an adjacent apartment building accessible to robbers. Hutchins, 116 Wn.2d at 230-32. ¶29 Sourakli contends that Diamond, as a landowner, created a situation sufficiently special and out of the ordinary to qualify as a special temptation to criminal activity. Sourakli cites Prince v. Chehalis Savings & Loan Ass'n, 186 Wash. 372, 58 P.2d 290 (1936). In Prince, the Supreme Court affirmed the judgment for the plaintiff when a fire that started on the defendant's property spread to the adjacent property and burned his neighbor's house down. The defendant had allowed his property "to get into such a state of disrepair that it created a fire hazard, and that the condition of the building was such that, if a fire did occur in it, it was reasonably probable that it would spread to the adjacent property." Prince, 186 Wash. at 373. The building at issue was a garage that had previously been "a place for wrecking used automobiles." Prince, 186 Wash. at 373. There was a lot of grease and oil on the floor, there was an accumulation of combustible material, the doors at either end were open, and the windows were broken out. Children played in the garage and homeless people slept there. Cigarette stubs littered the floor. The court imposed liability because the defendant knew of the hazardous condition on his property and allowed such a condition to exist even though the danger and fire hazard could have been removed with the exercise of ordinary and reasonable care. Prince, 186 Wash. at 374-75. ¶30 The examples in Hutchins and Prince of affirmative activity by a landowner that creates a special temptation for criminal activity are materially different from what is known about Diamond's conduct. It is true that Diamond allowed the hot dog stand to keep operating and attracting crowds of people late at night when the club emptied out. But crowds loitering around a hot dog stand are not inherently dangerous in the same way as dynamite caps, poisonous chemicals, or an abandoned and grease-soaked garage. ¶31 Sourakli claims that the criminal activity was "open, obvious and chronic" and was either ignored by Diamond employees or should have been discovered. ¶32 But such evidence of criminal activity by others, even if Diamond was or should have been aware of it, does not establish affirmative activity by Diamond creating an especial temptation for the criminal activity to occur. As Diamond points out, unless there is a special relationship giving rise to duty, actual or constructive notice of danger does not by itself create the duty. ¶33 Sourakli also argues that Diamond created a temptation for criminal activity by failing to keep the parking lot well lit or covered by surveillance cameras. But the same could be said of the landowner in Hutchins. Lights and cameras are preventive measures against crime; the failure to provide them is not in and of itself a special temptation to crime. Any obligation to take such precautionary measures against crime arises only when the especial temptation has been created. ¶34 We conclude Diamond did not affirmatively create any condition at its parking lot that served as a special temptation to criminal conduct, exposing passersby such as Sourakli to a recognizably high degree of risk of harm from criminal activity. The trial court properly dismissed the claim against Diamond for lack of duty. ¶36 The decision to dismiss Prolific Entertainment and Diamond Parking is affirmed. The decision to deny Titan's motion for summary judgment is reversed. GROSSE and BAKER, JJ., concur.