                                                                           FILED 

                                                                         SEPT. 3, 2015 

                                                                In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STAR CRILL,                                   )
                                              )        No. 31912-1-Ill
                      Appellant,              )
                                              )
      \T.                                     )
                                              )
WRBF, Inc. d/b/a DENNY'S                      )        UNPUBLISHED OPINION
RESTAURANT, DEBRA FOUTS and                   )
JACK FOUTS, indi\Tidually and as a            )
marital community; JERRY FOUTS, and           )
JANE DOE FOUTS, indi\Tidually and as a        )
marital community; DENNY'S INC., a            )
California Corporation; JACKIE D.             )
LEGERE, Jr.; AUSTIN GARNER,                   )
                                              )
                      Respondents.            )

      FEARING, J. ­

      On a clear day, we can foresee forever. Paraphrase of Thing v. La Chusa, 48 Cal.
3d 644,668, 771 P.2d 814, 257 Cal. Rptr. 865 (1989).

       We address a recurring issue: when is a business liable for injuries caused by one

customer assaulting another customer? Star Crill sues a Denny's Restaurant after another

diner, Austin Gamer, assaulted her in the restaurant. The trial court dismissed Crill's
No. 31912-1-III
Crill v. WRBF


claim on summary judgment, while ruling that a lack of similar prior incidents rendered

the assault unforeseeable as a matter of law and thus the restaurant possessed no duty to

prevent the attack. We affirm. In affirming, we review the Washington Supreme Court's

recent decision of McKown v. Simon Property Group, Inc., 182 Wn.2d 752, 344 PJd 661

(2015).

                                         FACTS

       Because Star Crill appeals the trial court's grant of summary judgment in favor of

the Denny's restaurant, we write the facts in a light most favorable to her. At 2:08 a.m.

on Saturday morning, January 3, 2009, an intoxicated Austin Gamer struck Star Crill

inside a Denny's Restaurant, owned by WRBF, Inc., on Argonne Road, in Spokane

Valley. Crill sued WRBF, Denny's, Inc., Austin Gamer, and Gamer's companion Jackie

Legere. Denny's, Inc., is the franchisor of ubiquitous Denny's restaurants. WRBF is the

owner of the Argonne Road Denny's restaurant and other Denny's in the Spokane area.

The only defendant on appeal is WRBF and we will refer to it as the Argonne Denny's or

Denny's. Crill sues the Argonne Denny's for negligence in failing to prevent the

misbehavior of Gamer.

       We begin with the practices of the Argonne Denny's restaurant. The Argonne

restaurant is open twenty-four hours a day. Denny's home office typically requires that

its franchisees remain open twenty-four hours a day, seven days a week.




                                             2

~


j
,

!
       No.31912-1-III
         Crill v. WRBF

II 

           On weekends, after nearby bars cease serving alcohol at 2 :00 a.m., the Argonne
!

         Denny's serves a gaggle of drunk customers. Denny's server Mary Winter testified:

I
       "Where a bar closes, they close down for the night and everybody leaves, either they go

         home or usually a lot of people when they're drinking, they need food. Either they go

II 
 
   home and eat or they come to the restaurant and eat. So they call it the bar crowd

II 
     because it's after the bar closes." Clerk's Papers (CP) at 329. The Argonne Denny's
i·

         does not sell alcohol.

                Fred Del Marva, a security expert for Star Crill, declared that "[i]t is well known

         throughout the Denny's 4 system' that argumentative and assaultive conduct is a common

         occurrence and highly foreseeable when soliciting an after-bar clientele between the

         hours of 11 :00 p.m. and 4:00 a.m." CP at 215. Denny's manager Larry Lovins testified

         to the obvious that "a person that's more intoxicated probably is more likely to cause

         problems than a person that's not." CP at 405. Denny's server Debbie Fuentes described

         the bar rush as 44[ a] lot of drunk, obnoxious people" who might "tum on you in a

         heartbeat." CP at 160. According to Fuentes, the majority of patrons during these early

         morning hours are intoxicated.

                The Argonne Denny's General Manager Don Wold testified: "While we are open

         24 hours, we seldom have experienced any issues of criminal conduct by patrons.

         Disruptive guests are usually limited to people that are either unhappy with service, or do

         not pay their bill." CP at 62. Manager Larry Lovins, who has worked at the Argonne

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No.3l9l2-l-III
Crill v. WRBF


Denny's for eleven years, testified: "We generally at Denny's didn't have any issues.

The location that we're at is a pretty calm restaurant. I've never had any situations where

I had, you know, somebody beat up or anything like that." CP at 398. Lovins noted a

shoving incident that occurred in a Sharrs parking lot, and commented that the bar rush

for the Denny's on North Division "was kind of tough at times." CP at 401. Argonne

Denny's manager Jason Liberg saw the occasional argument, but never had "one on one

of [his] shifts that resulted in actual physical violence." CP at 348. Server Debbie

Fuentes mentioned a "fight" that occurred in the Argonne Denny's parking lot.

       The Argonne Denny's maintains no written procedure regarding managing

troublesome patrons. The restaurant, however, trains its staff on handling disruptive

guests, which "generally include any patron that is being loud, unmanageable, aggressive

with any of his own party, aggressive with anybody else in the restaurant, including other

patrons or staff, complaining loudly, or any variety of circumstances that would generally

disrupt other patrons' enjoyment." CP at 61. The restaurant instructs its staff to exercise

three steps: first, ask the troublesome guest to calm down and cease the disorderly

activity; second, if the disruption persists, ask the patron to leave; and last, if the

disorderly guest refuses to leave, phone police. This same approach applies to drunk

customers. The Argonne Denny's instructs its staff not to intervene physically with a

difficult guest.




                                               4

No. 31912-1-111
Crill v. WRBF


       The Argonne Denny's maintains a log of significant events in order to foster

institutional knowledge. Argonne Denny's General Manager Don Wold declared that he

reviewed the log covering September 2008 to January 2009 and discovered no incidents

of assaults or fights at the restaurant during this window of time.

       Service coordinators do not have access to the Argonne Denny's significant events

logbook. Nevertheless, service coordinators sometimes substitute as managers. The

restaurant cross trains its service coordinators in every job, including cook, hostess, and

server to better understand the restaurant's operation.

       During a weekend bar rush, the Argonne Denny's typically serves thirty to forty

customers between 1:30 and 3:30 a.m. On Friday night, January 2, 2009, two to three

servers, a dishwasher who doubled as a host, and a cook that doubled as a security guard

worked at the restaurant. No manager served only as manager. Security expert Fred Del

Marva testified that, with the size of the premises, five or six servers, one cook, one

busboy, one dishwasher, a host/cashier, and a manager that does nothing but manage

should have been present.

       On Friday, January 2, 2009, the scheduled manager's house flooded, and she could

not work that night. After working a day shift, server Mary Winter returned that evening

to work as acting manager. Winter worked for various Denny's restaurants for sixteen to

seventeen years as a server, bar tender, and assistant manager. Winter was trained to

handle disruptive guests using the three-step approach described above.

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No. 31912-1-111
Crill v. WRBF


       We have established the context in which Austin Gamer assaulted Star Crill. We

now describe the events leading to the attack.

       On Friday~ January 2,2009, Austin Gamer drank alcohol at Good Tymes Bar and

Grill with friends. During his deposition, Gamer could not remember the number of

drinks he consumed at Good Tymes, but speculated he imbibed one to six drinks. From

Good Tymes, Austin Gamer, Jackie Legere, and two friends moved, during the early

morning hours of January 3, to the Argonne Denny's. Gamer and Legere were drunk.

No Denny's employee asked Austin Gamer and his friends whether they had been

drinking.

       A server at the Argonne Denny's sat Gamer, Legere, and friends in a booth and

promised to bring menus. Star Crill and friend Mario Diaz dined in the booth adjacent

and behind the group. As they ate, Crill and Diaz discussed Diaz's family, his career

choices, and politics. Jackie Legere turned toward the adjacent booth and told Crill and

Diaz to shut up. Crill noticed Legere to be drunk, because the latter slurred his speech

and his arm frequently fell from its resting ledge. Crill and Diaz heard Legere's comment

but did not know if Legere addressed them.

      A server, Charlotte Stemple, informed acting manager Mary Winter that: "there

may be a problem with some patrons seated in booths along the windows." CP at 65.
                                                                                            I
Winter declared:




                                             6

No.31912-I-III
Crill v. WRBF


               Because those booths were located behind a server island, I could
       not see the patrons, so I immediately grabbed some water and coffee and
       went to observe the situation. There were no issues or problems occurring
       at that time, and I asked a woman seated at one table with one other
       gentleman (who I later learned was named Star Crill, the plaintiff in this
       suit) if she wanted some water, and asked her if everything was OK, and
       she said "yes"-she did not report any problems to me.

CP at 65. Winter took water and coffee to the tables because she did not wish the

customers at Austin Gamer's table to believe she targeted them. According to Mary

Winter, she spoke with Star Crill and then approached Garner's table. Crill denies that

any Denny's employee spoke to her. Winter then went to the entrance of the restaurant to

seat some customers.

       Jackie Legere soon repeated louder his request to Star Crill and Mario Diaz to shut

up. Diaz responded: '" Tum around and mind your own business.'" CP at 30. Three to

four minutes later, Legere replied in an even louder tone, '" Hey, I said shut the fuck

up.'" CP at 30.

       Mary Winter heard loud voices at the two tables. Winter approached Jackie

Legere and Austin Garner's table and asked ifthere was a problem. The three to four

men said there was no problem. Winter directed the covey of men to hush or leave.

They quieted. According to Winter, she asked Star Crill again if she was okay, and Crill

stated there was no problem. Crill denies Winter speaking to her. Someone took food

orders for those at Garner's table.

       After Mary Winter left the area of the two tables, the situation escalated. Star Crill

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No. 31912-1-II1
Crill v. WRBF


stood but instructed Mario Diaz to remain seated. Crill told Diaz: "It's not worth it.

Don't get in a fight. Don't waste your time on these guys. They are just drunk." CP at

36. Austin Gamer stood. Crill looked around in hope and expectation that a Denny's

employee would intervene. Charlotte Stemple, a server, stood at the service station

across the aisle from the tables. Stemple gazed at Crill and walked to the kitchen to

retrieve Mary Winter. With no Denny's employee in sight, Austin Gamer hit Star Crill in

the back of her head or her neck.

       According to Austin Gamer, he never struck Star Crill. Gamer testified that Crill

stood and fell into him because of her drunken state. He then brushed her pony tail with

his hand, because the tail grazed his face. In her complaint, Star Crill alleges that Gamer

"unintentionally made bodily contact" with her. Crill sues Gamer for negligence and

recklessness, but not for assault.

       Mary Winter returned to the tables after the assault. Winter testified:

               Q. And that night you were the manager; is that right?
               A. Yes.
               Q: And so, when Charlotte Stemple-am I right in assuming that
       when Charlotte thought there was a disruptive guest she came and notified
       you?
               A. She never said there was a disruptive guest.
               Q. SO who was the person that determined that they were a 

       disruptive guest? 

               A. It was myself after I made-it was a third time I went through
       and then they was being disruptive. The second time when I walked over
       there they quieted down. They did exactly what I asked them to do. And
       they were okay.


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No. 31912-I-III
Crill v. WRBF


              Q. On the third time is when you determined they were disruptive
       guests?
              A. And I asked them to leave and I was calling the cops.

CP at 331.

       When Mary Winter returned to the booths, she saw and heard one man standing

and talking loudly to the couple sitting at the adjoining booth. Austin Gamer, Jackie

Legere, and their two friends surrounded Winter and yelled at her. Winter squeezed

through them, demanded the four leave, and went to call the police. While phoning

police, Winter learned of the assault on Crill.

       The responding law enforcement officer felt a knot forming on the back of Star

Crill's head. According to the officer's report, multiple bystanders witnessed Austin

Gamer strike Star Crill. The officer smelled alcohol on Austin Gamer and observed

Gamer acting intoxicated. Gamer bragged about knowing attorneys who would

successfully procure the dismissal of any criminal charges.

                                       PROCEDURE

       After Star Crill sued and on completion of discovery, Argonne Denny's moved for

summary judgment. It argued that it had no duty to protect against Austin Gamer's

criminal conduct because no incidents of that exact nature previously occurred so as to

render Gamer's conduct foreseeable. Denny's also argued that its staffs response to

Gamer's conduct was reasonable as a matter oflaw. In response to the summary

judgment motion, Star Crill argued that the incident and her resultant injuries occurred

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No. 31912-1-III
Crill v. WRBF


due to Denny's failure to maintain safety and security procedures for its customers. She

contended that Austin Gamer's attack was foreseeable.

       In response to the summary judgment motion, Star Crill relied, in part, on a

December 3, 2007, Nation's Restaurant News article titled Restaurants open themselves

up to greater risks with later hours. Crill's counsel attached the article to his declaration.

The article recounts recent shootings and domestic violence incidents that occurred at

restaurants nationwide. The article laments:

              While criminals prey on industry operations in the daytime, too,
       security experts note that the foodservice industry's high-turnover rate,
       which can result in poor employee training, and security systems focused
       more on preventing vandalism than robbery or assaults, are contributing to
       the spate of late-night crimes.

CP at235.

       The Nation's Restaurant News article mentions injuries and deaths to guests, but

focuses on employee injuries and deaths. The article declares that injuries and deaths

come most often from robberies or angry ex-spouses and jilted lovers. The article relates

the tragic death of an Orlando Denny's restaurant employee who was stabbed to death at

work by her estranged husband. The article quotes Mike Jank, vice president of risk

management for Denny's customer stores:

              I just hope operators realize they are going to have problems if they
       don't keep in mind that the security issues you have in the daytime are far
       different at night.

CP at 232. Based in part on this article, Star Crill's expert witness Fred Del Marva

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No. 31912-1-111
Crill v. WRBF


opined that "Denny's nationwide is known for late hour criminal activity such as

shootings, stabbings, murders and assaults," and the Argonne Denny's failed to respond

to this national trend. CP at 444.

       The Nation's Restaurant News article does not mention alcohol or the bar rush

phenomenon. The article does not warn of customers assaulting other customers.

       Argonne Denny's moved to strike the Nation's Restaurant News article as

irrelevant and hearsay. The trial court struck the article as hearsay.

       Star Crill's expert witness Fred Del Marva submitted a declaration opposing

Denny's summary judgment motion. In the declaration, Del Marva testified to his

opinions regarding the standard of care for security in business premises based on his

expertise and review of the circumstances of the assault on Crill. According to Del

Marva, operators of Denny's restaurants know that argumentative and assaultive conduct

is a common occurrence and highly foreseeable when soliciting an after-bar clientele

between the hours of 11 :00 p.m. and 4:00 a.m. In asserting this fact, Del Marva relied on

a presentation given to the Denny's Board of Directors on this subject in 2007 and the

December 3, 2007, restaurant industry journal Nation's Restaurant News.

       Fred Del Marva also testified that Denny's restaurants target the after-bar

clientele. In turn, these patrons have a high propensity for argumentative and disruptive

behavior. This behavior can turn quickly into assaultive behavior or behavior that can

lead to injuries.

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No.31912-I-III
Crill v. WRBF


       The daytime clientele at Denny's is a completely different crowd and will portray

different behaviors from nighttime clientele, according to Fred Del Marva. The daytime

atmosphere at Denny's is a completely different scene than the atmosphere between the

hours of II :00 p.m. and 4:00 a.m. For this reason, a Denny's restaurant needs specific

policies and procedures for a host or hostess to identify intoxicated customers at the time

of entry. Training, policies, and procedures which prevent intoxicated individuals from

entering the premises substantially reduce the likelihood of disruptive events, which may

lead to assaults or injuries of other patrons. Del Marva posits that a Denny's must,

without exception, have a specially trained manager who is experienced in dealing with

the II :00 p.m. to 4:00 a.m. clientele on shift between those hours.

       Fred Del Marva faults the Argonne Denny's for allowing a server to perform the

dual task of restaurant manager during the grave yard shift on January 2 to 3, 2009. Del

Marva also blames the restaurant for allowing Mary Winters to work as the manager

when she had no training to manage the restaurant during the night and early morning.

Winters' inexperience and divided duties increased the risks from intoxicated patrons. A

properly trained manager and one whose attention was not diverted by also serving would

have smelled alcohol on Austin Gamer as he entered the restaurant. The manager would

have either refused to seat Gamer or removed him at the first sign of boisterousness. The

Argonne restaurant had the least experienced manager during a time that the best




                                             12 

No.31912-I-III
Crill v. WRBF


manager should have been on duty. During the early morning hours of January 3, the

Argonne Denny's improperly allowed any employee to seat customers.

       Fred Del Marva concluded in his declaration:

              A restaurant which is open twenty four hours cannot operate on
       blind disregard of the need for extra security procedures and policies during
       late-night/early-morning hours. Based upon the depositions, there has been
       no active intent to discover what kinds of risks should be guarded against
       and what kinds of risks are being found in the industry. This creates a
       problem where management is not even evaluating the need for appropriate
       and reasonable security measures. This type of approach keeps
       management from evaluating and reasonably responding to changing
       security concerns. This is essentially, ignoring the problem and hoping
       customers don't get hurt. This is not accepted in the restaurant or
       hospitality industry as a responsible course of conduct.
              Denny's on Argonne could have taken several measures prior to the
       incident of January 3, 2009 to prevent injuries to its customers. These
       measures include working digital or video recordings, which allow the
       management to review interactions of employees with potentially disruptive
       customers, so that management can follow up with better training. There
       should be mandatory reporting of disruptive events, to allow for follow-up
       and training of employees, specifically the host/hostess. Having a security
       expert do an evaluation and security plan for the premises, to better inform
       the management of what procedures and or policies should be in place for
       the safety of the customers and staff. And specifically, at a minimum, a
       policy requiring that an experienced and well trained manager be onsite
       during the hours between 11 :00 p.m. and 4:00 a.m. along with a
       hostlhostess who is properly trained in identifying intoxicated persons and
       understands hislher role in preventing the seating of those customers.

CP at 219-20.

       The trial court granted the Argonne Denny's summary judgment. In a written

decision, the trial court observed that restaurants have a duty to use reasonable care to

prevent harm to patrons by foreseeable criminal conduct. Nevertheless, according to the


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No. 31912-1-II1
Crill v. WRBF


trial court, Washington decisions hold that past criminal behavior on a premises renders

future crimes reasonably foreseeable only if such future crimes are of the exact nature as

the past criminal behavior. The trial court noted that no assaults previously occurred

inside the Argonne Denny's. The trial court reasoned that Star Crill's offer of industry-

wide standards did not create an issue of material fact.

       Star Crill moved the trial court to reconsider. Crill argued that foreseeability does

not require previous incidents of the "exact nature." CP at 286. Crill also argued that the

Argonne Denny's foresaw the assault as imminent, intervened, but did so negligently.

Finally, Crill maintained that Denny's flawed policy created a question of fact as to the

reasonableness of the restaurant staff's response to the behavior of Jackie Legere and

Austin Garner. The trial court denied reconsideration.

                                 LAW AND ANALYSIS

       On appeal, Star Crill contends that: (1) the trial court erred when it struck the

Nation's Restaurant News article, (2) a genuine issue of material fact exists as to whether

Austin Garner's assault of Crill was foreseeable and as to whether the Argonne Denny's

breached its duty to her, and (3) the Argonne Denny's assumed a duty to protect Crill,

which it then performed negligently. We address these assignments of error in order.

       Issue 1: Did the trial court err when striking as evidence the Nation's Restaurant

News article?

      Answer 1: We need not and do not address this question.

                                             14 

No.31912-1-III
Crill v. WRBF


       Star Crill contends the trial court erred for two reasons when it struck the Nation's

Restaurant News article. First, the article is not hearsay because it was offered to show

knowledge of the Argonne Denny's oflate night attacks. Second, even ifhearsay, Fred

Del Marva could rely on the article as an expert witness.

       The Nation's Restaurant News article is cumulative of the testimony of Crill's

expert witness, Fred Del Marva. Thus, the article adds nothing of significance to our

analysis. We decline to resolve this assignment of error since its resolution does not

impact our decision on the merits. Principles ofjudicial restraint dictate that if resolution

of another issue effectively disposes of a case, we should resolve the case on that basis

without reaching the first issue presented. Wash. State Farm Bureau Fed'n v. Gregoire,

162 Wn.2d 284,307, 174 PJd 1142 (2007); Hayden v. Mut. ofEnumclaw Ins. Co., 141

Wn.2d 55,68, 1 P.3d 1167 (2000).

       Issue 2: Did the Argonne Denny's hold a duty to protect Star Crillfrom an attack

by Austin Garner? Stated differently, was the attack on Crill foreseeable under

negligence law?

      Answer 2: No.

       We note an anomaly in the pleadings of Star Crill. Crill contends in her complaint

that Austin Gamer unintentionally harmed her. She alleges negligent conduct, not an

assault, by Gamer. Despite her complaint's allegation of negligence, Crill asked the trial

court and asks this court to impose a duty on Argonne Denny's to protect her from an

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No. 31912-1-111
Crill v. WRBF


assault or intentional conduct by another patron. The law generally imposes the same

duty on a business in protecting a customer from acts of another customer regardless of

whether the acts are careless or intentional. Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d

192,207,943 P.2d 286 (1997); RESTATEMENT (SECOND) OF TORTS § 344 (1965).

Therefore, we consider this anomaly irrelevant. Since the parties assume that Austin

Garner assaulted Star Crill and rely on assault decisions, we do too.

       We must repeat the familiar rules of summary judgment jurisprudence. This court

reviews a summary judgment order de novo, engaging in the same inquiry as the trial

court. Highline Sch. Dist. No. 401 v. Port ofSeattle, 87 Wn.2d 6, 15,548 P.2d 1085

(1976); Mahoneyv. Shinpoch, 107 Wn.2d 679,683,732 P.2d 510 (1987). Summary

judgment is proper if the records on file with the trial court show "there is no genuine

issue as to any material fact" and "the moving party is entitled to a judgment as a matter

of law." CR 56(c). This court, like the trial court, construes all evidence and reasonable

inferences in the light most favorable to Star Crill, as the nonmoving party. Barber v.

Bankers Life & Cas. Co., 81 Wn.2d 140, 142,500 P.2d 88 (1972); Wilson v. Steinbach,

98 Wn.2d 434,437,656 P.2d 1030 (1982). A court may grant summary judgment if the

pleadings, affidavits, and depositions establish that there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law. Lybbert v.

Grant County, 141 Wn.2d 29,34, 1 P.3d 1124 (2000).

       We later write that the dispositive question on appeal is whether the Argonne

                                             16 

No.31912-I-III
Crill v. WRBF


Denny's held a legal duty to protect Star Crill from the blow to her head. In tum, the

question of duty depends on the reasonable foreseeability of the attack. Foreseeability as

a question of whether a duty is owed is ultimately for the court to decide. McKown v.

Simon Prop. Grp., Inc., 182 Wn.2d at 762-64 (2015). The existence of a legal duty is a

question of law and depends on mixed considerations of logic, common sense, justice,

policy, and precedent. Christensen v. Royal Sch. Dist. No. 160, 156 Wn.2d 62,67, 124

P.3d 283 (2005); Snyder v. Med. Servo Corp., 145 Wn.2d 233,243,35 P.3d 1158 (2001);

Schooley V. Pinch's Deli Market, Inc., 134 Wn.2d 468, 474-75,951 P.2d 749 (1998);

Tincani v. Inland Empire Zoological Soc'y, 124 Wn.2d 121,128,875 P.2d 621 (1994).

       Isolating the key facts assists in our analysis. Crill underscores Austin Gamer's

crowd being boisterous and Mary Winter's previous request to the table to quieten.

Austin Gamer's companion, Jackie Legere, demanded that Crill and her companion "shut

the fuck up." CP at 30. No evidence suggests that Austin Gamer spoke any words to

Star Crill or her companion before the assault.

       Star Crill highlights the nature of Denny's restaurants business, which includes

serving intoxicated patrons who exit taverns late at night or in the early morning to eat at

Denny's. According to Crill, an experienced manager trained to deal with drunk

customers should have been present at the Argonne Denny's during the morning of

January 3. Mary Winter was an assistant manager who also worked as a server that

morning. Also according to Crill, the manager should have smelled alcohol on Gamer

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No. 31912-1-III
Crill v. WRBF


and known him to be intoxicated. The manager should have never seated Gamer or

escorted him from the premises before his striking of Crill. At the same time, Crill must

concede that neither Austin Gamer nor any of his companions threatened to hurt anyone.

Gamer had no record of assaults or any known history at the Argonne Denny's.

       The Argonne Denny's restaurant had never earlier encountered an assault inside

the premises. An altercation occurred in the parking lot of the restaurant, but we know

nothing about the details of the confrontation.

       Star Crill challenges the credibility of Argonne Denny's witnesses who claim the

business suffered no earlier assaults by a patron on an employee or another customer.

Star Crill also suggests that other Denny's restaurants owned by WBRF, Inc., in the

Spokane area, may have encountered assaults therein. Nevertheless, Crill provides no

affirmative evidence of any earlier attacks at the Argonne location, let alone any other

Spokane location.

       Even though Austin Gamer's conduct may have been intentional, Crill sues the

Argonne Denny's in negligence. The essential elements of an action for negligence are:

(1) the existence ofa duty owed to the complaining party, (2) a breach of that duty, (3) a

resulting injury, and (4) a proximate cause between the breach and the injury. Christen v.

Lee, 113 Wn.2d 479, 488, 780 P.2d 1307 (1989). Not every negligent act leads to legal

consequences. A defendant is not held at fault for hazards not expected to result from his

or her behavior or inaction. When determining if a defendant owed any duty to the

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No. 31912-1-111
Crill v. WRBF


plaintiff, courts consider whether the risk that caused plaintiff's injury or the harm was

reasonably foreseeable to the defendant. "Reasonable foreseeability" is the dispositive

locution for this appeal.

       "Foreseeability" is a factor attached to negligence's first element of duty.

McKown v. Simon Prop. Grp., Inc., 182 Wn.2d at 762-64 (2015); Maltman v. Sauer, 84

Wn.2d 975,980, 530 P.2d 254 (1975). The hazard that caused or assisted in bringing

about the injury to plaintiff must be among the hazards to be perceived reasonably and

with respect to which defendant's conduct was negligent. Maltman v. Sauer, 84 Wn.2d at

980; Rikstadv. Holmberg, 76 Wn.2d 265,268,456 P.2d 355 (1969).

       A defendant has no duty to prevent a criminal attack by a third person on another,

even if the defendant reasonably anticipates the attack, unless a special relationship exists

between the victim and the defendant. Generally, no person has a duty to come to the aid

of a stranger or protect others from the criminal acts of third persons. Folsom v. Burger

King, 135 Wn.2d 658,674,958 P.2d 301 (1998); Craig v. Washington Trust Bank, 94

Wn. App. 820, 826,976 P.2d 126 (1999).

       The parties agree that Star Crill was a business invitee at the Argonne Denny's. A

business owner has a special relationship with its business invitees, creating a duty to

protect those invitees from criminal conduct by third parties. Nivens v. 7-11 Hoagy's

Corner, 133 Wn.2d at 205 (1997). A business invitee is owed a duty of reasonable care

for reasonably foreseeable criminal conduct by third persons. Nivens, 133 Wn.2d at 205;

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No. 31912-1-111
Crill v. WRBF


Fuentes v. Port o/Seattle, 119 Wn. App. 864, 869-70, 82 P.3d 1175 (2003). No duty

arises unless the hann to the invitee is foreseeable. Nivens, 133 Wn.2d at 205; Wilbert v.

Metro. Park Dist., 90 Wn. App. 304, 308, 950 P.2d 522 (1998).

       The use of the word "foreseeability" in the context of imposing a duty is confusing

because Washington courts also employ the term after a duty is established to determine

the scope of the duty owed. Schooley v. Pinch's Deli Market, 134 Wn.2d at 477 (1998).

Courts also utilize the concept of "foreseeability" when detennining whether any fault on

the part of the defendant was a proximate cause of the plaintiffs injuries. Washburn v.

City o/Federal Way, 178 Wn.2d 732, 761, 310 P.3d 1275 (2013).

       Despite applying a foreseeability test in a premises liability case, our Supreme

Court in its recent decision, McKown v. Simon Property Group, Inc., 182 Wn.2d 752

(2015), questioned the fairness of such a test. Subjecting a merchant to liability solely on

the basis of a foreseeability analysis is misbegotten, wrote the court. McKown, 182

Wn.2d at 771. Criminal activity is arbitrary, irrational, and unpredictable. Crime is

invariably foreseeable everywhere, yet unforeseeable in any specific time and place.

Even police, specially trained and equipped to anticipate and prevent crime, cannot

universally foil it. Given these realities, it is unjustifiable to make merchants, who have

much less experience than the police in dealing with criminal activity and who lack a

community deputation to do so, vicariously liable for the criminal acts of third parties.




                                             20 

No. 31912·1-III
Crill v. WRBF


       Courts, rather than juries, assessing foreseeability should also be criticized.

Judges have no special training in determining when to expect the commission of a

crime. Using foreseeability in a flexible, case·by-case analysis creates uncertainty by

giving courts the power and method to decide cases without external restraint. McKown,

182 Wn.2d at 772 n.8.

       Despite any unfairness, we remain tasked with answering whether, during the

early morning of January 3, Argonne Denny's should have reasonably anticipated that

Austin Garner would strike Star Crill in time to stop the assault. This question begs other

questions. Is it probable that a quiet, drunk man, accompanied by a boisterous friend, at a

Denny's restaurant in the early morning hours will hit another customer? Do we limit the

question to Austin Garner being the attacker or should we ask if Argonne Denny's should

have reasonably foreseen anyone at the Garner table might hit Star Crill? Does the

absence of any earlier assaults inside the restaurant preclude the Argonne Denny's from

anticipating a physical attack? Is the character of Denny's restaurants a relevant factor in

assessing the risk of an assault?

       The test of reasonable foreseeability begs more elementary questions. The law

quantifies reasonable probability as more than a fifty percent chance, or a 50.1 percent

chance, of being correct. Is reasonable foreseeability a fifty percent chance that an event

will occur? Should foreseeability be measured in time rather than in possibility? Is

reasonable foreseeability the probability that some event will occur within one day, one

                                             21 

No. 31912-1-III
Crill v. WRBF


week, or one year? The law provides no answers to these questions and affords no

mathematical formulation for determining reasonable foreseeability.

       Washington decisions contain many statements and restatements of the

foreseeability rule relevant to when a tort duty arises to protect another. Some of these

pronouncements use vacuous phrases that sound good on paper but provide little

assistance when reviewing concrete situations. Under many of these pronouncements,

"reasonable foreseeability" lies in the subjective eyes of the individual foreseer.

       A criminal act is "unforeseeable" as a matter of law if the criminal "occurrence is

so highly extraordinary or improbable as to be wholly beyond the range of expectability."

Fuentes v. Port ofSeattle, 119 Wn. App. at 868 (2004); Johnson v. State, 77 Wn. App.

934, 942, 894 P .2d 1366 (1995). So from "reasonably unforeseeable" we move to the

equally murky phrase "highly extraordinary."

       The pertinent inquiry is not whether the actual harm was of a particular kind which

was expected. Wilbert v. Metro. Park Dist., 90 Wn. App. at 308. Rather, the question is

whether the actual harm fell within a general field of danger which should have been

anticipated. McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 321, 255 P.2d

360 (1953). If the damage complained of falls entirely outside the general threat of harm

that the plaintiff claims makes a party's conduct negligent, there is no liability. McLeod

v. Grant County Sch. Dist., 42 Wn.2d at 321-22; Fuentes v. Port ofSeattle, 119 Wn. App.

at 870. Thus, foreseeability involves a general field of danger, but we may still wonder

                                             22
                                                                                             f
                                                                                             I
No. 31912-1-111
Crill v. WRBF


what constitutes a general field of danger. This principle might lead to liability on the

Argonne Denny's, if foreseeability were otherwise found, for an assault by Austin Gamer

even though Jackie Legere was the boisterous and harassing one, since there existed a

general field of danger of an assault by someone at the adjoining table.

       Two principles defining "foreseeability" may conflict. On the one hand, the

unusualness of the act that resulted in inj ury to plaintiff is not the test of foreseeability,

but whether the result of the act is within the ambit of the hazards covered by the duty

imposed on a defendant. Rikstad v. Holmberg, 76 Wn.2d at 269 (1969). Thus, a bop on

the head, rather than the typical punch in the face, may not shield one from liability, even

though the location of the strike on the victim's body was unforeseeable. On the other

hand, the specific act in question, rather than a broad array of possible criminal behavior,

must be foreseeable to the business owner from past information. McKown v. Simon

Prop. Grp., Inc., 182 Wn.2d at 769-70 (2015).

       More precise rules facilitate resolving this appeal. A business has no per se duty

to employ security personnel to protect business invitees. Nivens v. 7-11 Hoagy's

Corner, 133 Wn.2d at 205-06 (1997); Raider v. Greyhound Lines, Inc., 94 Wn. App. 816,

819,975 P.2d 518 (1999). A rule of particular importance in this appeal is that evidence

of antisocial, unruly, or even hostile behavior is generally insufficient to establish that a

defendant with a supervisory duty should reasonably anticipate a more serious misdeed.

Moore v. Mayfair Tavern, Inc., 75 Wn.2d 401,405-06,451 P.2d 669 (1969); J.N. v.

                                               23 

No.31912-1-III
Crill v. WRBF


Bellingham Sch. Dist. No. 501,74 Wn. App. 49, 60,871 P.2d 1106 (1994).

       Certain factors may playa critical role in determining reasonable foreseeability of

a criminal deed. These factors include: (1) the imminence of the attack, (2) the known

criminal propensities of the attacker, (3) the neighborhood of the business, (4) the

character of the defendant's business, and (5) the history of the business. McKown v.

Simon Prop. Grp., Inc., 182 Wn.2d at 769-70 (2015). Analyzing each case with these

factors in mind assists in an organized and intelligent resolution of cases.

                                   Imminence of Attack

       Under one version of the foreseeability test, a "business owes a duty to its invitees

to protect them from imminent criminal harm and reasonably foreseeable criminal

conduct by third persons." Nivens, 133 Wn.2d at 205 (1997), This rule suggests that the

injury need not be the result of reasonably foreseeable criminal conduct if the criminal

harm is imminent. In the recent Supreme Court decision, McKown v. Simon Property

Group, Inc., 182 Wn.2d at 769-70, the court noted that comment f, of Restatement of

Torts § 344, recognizes a duty to protect when the landowner knows or has reason to

know of immediate or imminent harm. But no Washington decision discusses liability

based on "imminent criminal harm." Perhaps the imminence of the attack should render

it reasonably foreseeable.

       Star Crill may include the purported imminence of Austin Gamer's assault as a

factor in her calculus of foreseeability. She does not rely exclusively on this factor,

                                             24 

No. 31912-1-111
Crill v. WRBF


however. We are unable to find the assault as imminent, however. A companion's

rudeness and obscene words does not quality one's sudden and irrational assault, even if

one is intoxicated, as predictable. Under the law, Jackie Legere's comments did not

portend an assault by Austin Gamer.

       A parallel persuasive decision is Veytsman v. New York Palace, Inc., 170 Md.

App. 104, 906 A.2d 1028 (2006). Edward and Tatyana Veytsman ate dinner late one

night at Baltimore's New York Palace. The restaurant also hosted a Ukrainian wedding

reception that night, during which reception Ukrainian vodka flowed for more than six

hours. When leaving the restaurant, several men in the wedding party assaulted the

couple. The Veytsmans sued the restaurant and alleged that intoxication of the wedding

party guests put the restaurant on notice that violence might occur. The Maryland

appellate court affirmed summary judgment dismissal of the suit. Although the attackers

engaged in an angry discussion, the restaurant was not on notice that the men endangered

others or that others required "protection" from them.

       In Boone v. Martinez, 567 N.W.2d 508 (Minn. 1997), a case involving a bar fight,

the assailant hit the plaintiff over the head with a beer mug. Witnesses testified that the

assailant looked obviously intoxicated and angry. One witness saw the attacker slam his

beer on the table. The Minnesota Supreme Court dismissed the suit as a matter of law

because the evidence was not sufficient to present the jury with a fact question of whether

the bar was aware of an impending attack.

                                             25 

No. 31912-1-111
Crill v. WRBF


       A case with the opposite outcome is Mayflower Restaurant Co. v. Griego, 741

P.2d 1106 (Wyo. 1987). The Wyoming Supreme Court upheld a jury verdict entered for

the plaintiff who was assaulted in a bar after the aggressor approached him several times

threatening him in a loud and vulgar manner. On one occasion the assailant grabbed the

plaintiffs shirt. The court allowed the verdict to stand on the ground that the bar was on

notice that the plaintiff was in imminent danger because the assailant was loud and vulgar

so as to attract the attention of those in the bar and because people in the bar saw him

grab the plaintiffs shirt. Neither of those factors are present in our appeal.

       Mayflower illustrates the type of evidence needed to show the foreseeability of an

imminent attack. Our appeal lacks this evidence. Neither Austin Garner nor Jackie

Legere threatened Star Crill. Garner had not touched Crill before the blow.

                                Attacker's Criminal History

       The facts on this appeal include no criminal history for Austin Garner, let alone

the Argonne Denny's possessing knowledge of any felonious history.

                                 Argonne Denny's History

       The Argonne Denny's restaurant had no history of criminal acts therein.

Testimony referred, however, to an altercation in the parking lot. Star Crill highlights

this altercation.

       Our Supreme Court, in McKown v. Simon Property Group, Inc., 182 Wn.2d at 757

(2015), recently addressed how similar in nature a previous attack must be to establish

                                             26 

No. 31912-1-II1
Crill v. WRBF


reasonable foreseeability of a later assault. Dominick Maldonado shot and injured

Brendan McKown and six others in the Tacoma Mall, which Simon Property Group

owned. McKown produced evidence of multiple prior shootings and other incidents

involving guns occurring at the Tacoma Mall. All of these incidents occurred in the

Tacoma Mall's parking lot except one, which occurred in the lobby of the Tacoma Mall's

movie theater. The federal district court dismissed McKown's negligence claim against

Simon Property Group for failure to submit competent evidence of similar random acts of

indiscriminate shootings on Simon's premises. On appeal to the Ninth Circuit Court of

Appeals, the circuit court certified questions for the Washington Supreme Court to

answer concerning state law.

       According to the McKown court, in order to establish a genuine issue of material

fact concerning a landowner's obligation to protect business invitees from third party

criminal conduct under the prior similar incidents test, a plaintiff must generally show a

history of prior similar incidents on the business premises within the prior experience of

the possessor of the land. The prior acts of violence on the business premises must have

been sufficiently similar in nature and location to the criminal act that injured the

plaintiff, sufficiently close in time to the act in question, and sufficiently numerous to

have put the business on notice that such an act was likely to occur. McKown v. Simon

Prop. Grp., Inc., 182 Wn.2d at 757.




                                              27
No. 31912-1-III
Crill v. WRBF


       The McKown court did not address whether the prior acts asserted by Brendan

McKown met the "similar incidents" test. Since the case came before the court on

certified questions from a federal court, the Supreme Court did not need to resolve the

merits of the suit.

       Server Debbie Fuentes mentioned a "fight" that occurred in the Argonne Denny's

parking lot. CP at 166. Even if the "tight" Debbie Fuentes referred to was physical, the

record contains nothing to indicate the altercation began inside the restaurant or involved

the bar rush crowd. We lack the details to determine if this prior incident was similar.

Thus, we conclude that Star Crill did not produce evidence of prior acts of violence

sufficiently similar in nature and location, sufficiently close in time, or sufficiently

numerous to put Denny's on notice.

       In Wilbert v. Metropolitan Park District, 90 Wn. App. at 308 (1998), the

Metropolitan Park District (Metro) rented space to Ghetto Down Productions to perform

a private dance. During the dance, two assailants shot and killed Derrick Wilbert. This

court noted that Washington cases analyzing foreseeability focus on the history of

violence known to the defendant. Evidence of multiple fights earlier that night and the

congregation of "unruly, aggressive, vulgar young people at the dance" was insufficient

to create a jury question, and the court thus ruled Wilbert's murder unforeseeable as a

matter of law on summary judgment. Wilbert, 90 Wn. App. at 309.




                                              28
                                                                                              I
                                                                                              l
No. 31912-I-III
Crill v. WRBF


       Derrick Wilbert's family relied on Daniel Kennedy, an expert in security and

crime prevention practices, who testified that the deadly event in question was

foreseeable. Kennedy based this conclusion on the allegedly well-established theory of

criminal victimization called the Lifestyle-Exposure Theory. This theory states that

certain circumstances increase the risk of an assault by three to four times. The

circumstances listed by Kennedy were groups of people 15 to 24 years of age in public

places with strangers and with alcohol or drugs present and with inadequate supervision.

Kennedy also opined that the risk of deadly violence was foreseeable to Metro because it

provided a rental monitor and retained the authority to terminate the event for violations

of the alcohol policy. This retention of authority, according to Kennedy, was a

recognition on the part of Metro that there is the possibility of a loss of control at such

events. This court rejected Kennedy's testimony since it conflicted with Washington law

of foreseeability. We similarly reject the testimony of Fred Del Marva, Star Crill's

expert, that the Argonne Denny's should have anticipated Austin Garner's behavior.

                                 Neighborhood of Business

       The neighborhood of the Argonne Denny's lacks any reputation or history as a

high crime area. Also, as a policy matter, our Supreme Court rejected the idea that

location of the premises in an urban area with a high incidence of crime favors imposing

a duty. Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217,236,802 P.2d 1360

(1991). If the premises are located in an area where criminal assaults often occur,

                                              29 

No. 31912-1-111
Crill v. WRBF


imposition of a duty could result in the departure of businesses from urban core areas, an

undesirable result. Hutchins, 116 Wn.2d at 236. Perhaps another undesirable result

would be to impose liability on a business open late at night to provide intoxicated people

a safe haven to regain sobriety. Assuming the restaurant shunned Austin Gamer and

Gamer drove from the premises intoxicated, Gamer could have caused greater injury

while driving drunk.

                                   Character of Business

       In the case of the character of the business, if the owner 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. McKown v.

Simon Prop. Grp., Inc., 182 Wn.2d at 769-70 (2015); RESTATEMENT OF TORTS § 344,

comment f. In McKown, our high court noted that, although it rejected the location of a

business within a high-crime urban area as imposing a duty to protect from third party

criminal conduct, the court has not yet considered whether the character of a business or

another location of a business, standing alone, could invoke such a duty. McKown v.

Simon Prop. Grp., Inc., 182 Wn.2d at 769-70.

       The McKown court did not decide the circumstances under which a duty would

arise when the duty is based solely on the business's place or character. 182 Wn.2d at

757. The court left for an appropriate future case any inquiry concerning the

                                             30
No. 31912-1-III
Crill v. WRBF


circumstances under which the "place or character" of a business can give rise to a duty

to protect invitees against third party criminal conduct. McKown, 182 Wn.2d at 762.

While Brendan McKown argued that consideration of the "place or character" of a

business is a distinct, alternative method of establishing reasonable foreseeability of

harm, he offered the court no test, criteria, or parameters regarding how "character" was

to be established or assessed. He described the Tacoma Mall as a "soft target" whose

place or character made the harm reasonably foreseeable. But aside from this bald

assertion, he offered no explanation as to how or why the "character" of the mall

necessarily made the mass shooting in the case "reasonably foreseeable."

       Star Crill presents no decision that supports a ruling that an all-night restaurant or

a restaurant that caters to drunk patrons, without a history of attacks, must anticipate

criminal behavior and assume special precautions to protect its customers. In

Errico v. Southland Corp., 509 N.W.2d 585 (Minn. App. 1993), Juanita Errico made a

purchase at an all-night convenience store after midnight. As she returned to her car,

three men assaulted her. She sued Southland, alleging that the company owed a duty to

provide for the safety and security of its patrons. The appellate court affirmed dismissal

of the complaint, despite Errico's contention that such convenience stores are

characteristically dangerous places with high risks of violent crime to employees and

customers.




                                             31
No. 31912-1-III
Crillv. WRBF


       Star Crill may contend that assaults at any Denny's restaurant in the world could

be relevant to placing the Argonne Denny's on notice of the foreseeability of assaults on

its premises. Nevertheless, Crill only provides evidence of the death of an Orlando

Denny's restaurant employee who was stabbed to death at work by her estranged

husband. The nature of Denny's restaurants business likely had no bearing on this death.

       Star Crill's expert witness, Fred Del Marva, notes that Mike Jank, vice president

of risk management for Denny's customer stores, declared that restaurants must consider

that security issues present during the daytime are different from issues at night. Del

Marva also opines that "Denny's nationwide is known for late hour criminal activity such

as shootings, stabbings, murders and assaults." CP at 444. Del Marva provides no

statistics or anecdotal evidence to support this assertion. He details no incident.

       Our review of appellate decisions discovered only one reported case involving an

attack at a Denny's restaurant. In Basicker v. Denny's, Inc., 704 N .E.2d 1077 (Ind. ct.

App. 1999), restaurant patrons brought a personal injury action against the restaurant for

injuries sustained when they were shot and taken hostage during a robbery attempt at the

restaurant. The appellate court held that the robbers' attack on the patrons was not

foreseeable. We find no similarity between the Basicker facts and our case on appeal. A

1999 robbery of an Indianapolis Denny's restaurant does not make predictable a 2009

assault by a patron on another patron at a Spokane Valley Denny's restaurant.

       Star Crill emphasizes the fact that the Argonne Denny's had a policy of handling

                                             32
No. 31912-1-III
Crill v. WRBF


disruptive patrons and thus the restaurant must have had notice that one patron might

assault another patron. We have already concluded that disruptive customers do not

portend an assault. Moore v. Mayfair Tavern, Inc., 75 Wn.2d at 405-06 (1969); J.N. v.

Bellingham Sch. Dist. No. 501,74 Wn. App. at 60 (1994); Veytsman v. New York Palace,

Inc., 170 Md. App. 104 (2006).

       We conclude that, as a matter oflaw, the Argonne Denny's should not have

reasonably foreseen the attack on Star Crill for several legal reasons. First, evidence of

the antisocial, unruly, or even hostile behavior of Jackie Legere is insufficient to establish

that the Argonne Denny's should have reasonably anticipated a more serious misdeed.

Second, no case has held that drunkenness alone creates a duty to remove one from

business premises. Third, the only history of any fights at Argonne Denny's was an

altercation in the parking lot, about which we have no details. Fourth, Crill's argument

that a manager experienced in handling drunk customers is similar in nature to the

contention that a business must hire a security guard, an argument already rejected by

Washington courts. Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d at 205-06 (1997); Raider

v. Greyhound Lines, Inc., 94 Wn. App. at 819 (1999). Fifth, for public policy reasons,

the law should reluctantly impose on a business the duty of police protection for its

patrons.

       On appeal, as she did below, Star Crill cites N.K v. Corporation ofPresiding

Bishop ofthe Church ofJesus Christ ofLatter-Day Saints, 175 Wn. App. 517, 307 P.3d

                                             33 

No. 31912-1-III
Crill v. WRBF


730, review denied, 179 Wn.2d 1005 (2013), for the proposition that general trends may

give rise to specific foreseeability. This may be true for a duty arising from a special

protective relationship, such as the relationship between a child and a church sponsoring

a club. In N.K., a former scout who, as a child, had been molested by a volunteer scout

leader with a church-sponsored Boy Scout troop brought a negligence action against the

church for failing to protect him. Under Washington's current case law, the relationship

between a business and its invitee is a special relationship, but not a special protective

relationship.

       Issue 3: Should this court entertain Star Crill's argument that Argonne Denny's

assumed a higher duty when Mary Winter earlier spoke to Jackie Legere, Austin Garner,

andfriends?

       Answer 3: Yes.

       Star Crill also contends that the Argonne Denny's assumed a duty to protect her,

which it then performed negligently. The trial court rejected this contention, in response

to a motion for reconsideration, as untimely. Crill claims she made this argument at the

original summary judgment hearing.

       We do not resolve whether Star Crill asserted this additional argument during her

initial summary judgment response. By bringing a motion for reconsideration under CR

59, a party may preserve an issue for appeal that is closely related to a position previously

asserted and does not depend on new facts. River House Dev. Inc. v. Integrus

                                             34 

No. 31912-1-III
Crill v. WRBF


Architecture, PS, 167 Wn. App. 221, 231, 272 P.3d 289 (2012). The law provides no

guidelines for determining whether a new position is "closely related" to a previous

position, but all of Star Crill's contentions bear on the alleged negligence of the Argonne

Denny's and the conduct of Mary Winter. The legal argument forwards no new facts.

Entertaining this second argument does not prejudice the Argonne Denny's. We address

the contention.

       Issue 4: Did Argonne Denny's assume a higher duty when Mary Winter earlier

spoke to Jackie Legere, Austin Garner, andfriends?

       Answer 4: No.

       Star Crill cites Folsom v. Burger King, 135 Wn.2d at 676 (1998), to support the

contention that the Argonne Denny's assumed a duty to protect her when Mary Winter

came to the Austin Garner table in order to end the disruption. Crill argues that one of

the bases for imposing a duty of care on one who has begun to help a plaintiff in peril is

the situation when the defendant misleads the plaintiff into believing that the danger was

being addressed.

       Star Crill misstates the standard. The Folsom court noted:

              Typically, liability for attempting a voluntary rescue has been found
       when the defendant makes the plaintiff's situation worse by: (1) increasing
       the danger; (2) misleading the plaintiffinto believing the danger had been
       removed; or (3) depriving the plaintiff of the possibility of help from other
       sources.

135 Wn.2d at 676 (emphasis added). Even if Crill could show Winter's conduct misled

                                            35 

No. 31912-1-111
Crill v. WRBF


her, she presents no facts that Winter's intervention created the harm, made the situation

worse, or induced reliance.

                                     CONCLUSION

       We affirm the trial court's dismissal of Star Crill's lawsuit on summary judgment.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




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                                            36 

