                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 11 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BRENDAN MCKOWN, a single                         No. 11-35461
individual,
                                                 D.C. No. 3:08-cv-05754-BHS
              Plaintiff - Appellant,

 v.                                              MEMORANDUM*

SIMON PROPERTY GROUP INC, a
Delaware corporation doing business as
Tacoma Mall and IPC INTERNATIONAL
CORPORATION, an Illinois corporation,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                        Argued and Submitted May 7, 2012
                               Seattle, Washington

Before: GOULD, BYBEE, and BEA, Circuit Judges.

      Brendan McKown appeals from summary judgment in favor of Defendants

Simon Property Group, Inc. (“Simon”) and IPC International Corp. (“IPC”). We



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
have jurisdiction under 28 U.S.C. § 1291. We previously stayed proceedings in

this case pending the Washington Supreme Court’s response to three certified

questions that have now been answered. See McKown v. Simon Prop. Grp. Inc.,

689 F.3d 1086 (9th Cir. 2012). We vacate in part, reverse in part, and remand.

      Under Washington law, a business owner has a duty to protect invitees from

“reasonably foreseeable criminal conduct by third persons.” Nivens v. 7-11

Hoagy’s Corner, 943 P.2d 286, 293 (Wash. 1997). In granting summary judgment

to Simon, the mall owner, the district court held as a matter of law that the shooting

was not reasonably foreseeable, because McKown failed to present competent

evidence of prior similar criminal acts on the mall premises. The Washington

Supreme Court has now clarified that a plaintiff need not always prove prior acts of

similar conduct to establish that harm was reasonably foreseeable. McKown v.

Simon Prop. Grp. Inc., 344 P.3d 661, 667–68 & n.5 (Wash. 2015). Because the

district court required McKown to introduce such evidence in order to survive

summary judgment in favor of Defendant Simon, we vacate the district court’s

grant of summary judgment to Simon. We remand for the district court to

consider, in the first instance, whether McKown can survive summary judgment in

light of the Washington Supreme Court’s new guidance.




                                         -2-
      The district court also granted summary judgment to IPC, concluding that

the security company owed no duty of care to McKown where McKown failed to

show that his status as a business invitee of Simon created a “special relationship”

between IPC and McKown. The district court erred by applying this “special

relationship” test. In Washington, when a security company contracts with a

landowner to provide security services on the owner’s property, and the security

company acts on behalf of the owner to provide those services, the security

company may be subject to the same liability for the physical harm caused by

others as though the security company were the owner. See Van Scoik v. Wash.

Dep’t of Natural Res., 203 P.3d 389, 392 (Wash. Ct. App. 2009); Jarr v. Seeco

Constr. Co., 666 P.2d 392, 395–96 (Wash. Ct. App. 1983); cf. Folsom v. Burger

King, 958 P.2d 301, 310 (Wash. 1998) (security company owed no duty to

restaurant employees where the security company’s contract to provide services

terminated ten months prior to the criminal act). McKown submitted evidence that

Simon and IPC had a “Security Services Contract” under which IPC agreed to

provide security services and equipment at the mall. Thus, IPC may owe a duty to

McKown that derives from its “acting on behalf of” Simon. In the absence of any

convincing evidence that the Washington Supreme Court would decide the




                                         -3-
question differently, we are obligated to follow the intermediate appellate court’s

decisions. See Nelson v. City of Irvine, 143 F.3d 1196, 1206–07 (9th Cir. 1998).

      Because the district court erred by relying on the lack of an apparent “special

relationship” between McKown and IPC, we reverse the district court’s grant of

summary judgment to IPC. If, on remand, the district court concludes that Simon

may be liable to McKown, then IPC may be liable to the same extent.

      VACATED IN PART, REVERSED IN PART, AND REMANDED.

        Each party shall bear its own costs.




                                         -4-
