Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PAUL L. DEWS,                               )       DIVISION ONE 
                                            )
              Appellant,                    )       No. 66477-8-I
                                            )
          v.                                )
                                            )
KENNY SO and JANE DOE SO,                   )       UNPUBLISHED OPINION
individually and their marital              )
community, and ROADRUNNER DELI              )
MART CHEVRON, and CHEVRON                   )
U.S.A., INC., a foreign corporation,        )
                                            )
              Respondents.                  )       FILED:  March 12, 2012
________________________________)

       Dwyer, C.J.  --  Paul Dews was stabbed by Rodrigo Hernandez outside of 

the Roadrunner Deli Mart Chevron (Deli Mart), a convenience store and fuel 

station located in Federal Way, during Hernandez's attempt to steal beer from 

the store.  Dews thereafter sued the Deli Mart, Chevron U.S.A., Inc. (Chevron), 

and Deli Mart owner Kidane Mengistu, asserting that his injuries resulted from 

the defendants' negligence.  Because Hernandez's criminal conduct was not 

reasonably foreseeable, the Deli Mart owed no duty to protect Dews from such 

conduct.  Because Chevron's alleged liability was premised solely upon its 

purported agency relationship with the Deli Mart, Chevron is similarly not liable 

for Hernandez's conduct.  For these reasons, we affirm the trial court's dismissal  

No. 66477-8-I/2

of Dews' negligence claims against each of the defendants.

                                            I

       The Deli Mart is a convenience store and fuel retail outlet located in 

Federal Way.  Although the Deli Mart has a fuel supply agreement with Chevron, 

the Deli Mart itself independently owns and operates the convenience store and 

fuel station.  

       On November 22, 2008, Amanda Johnston was working the night shift at 

the Deli Mart.  Between 1:40 a.m. and 1:50 a.m., her boyfriend, Paul Dews, 

arrived at the Deli Mart to bring Johnston "her needle point and yarn."  Clerk's 

Papers (CP) at 81.  Dews purchased two bottles of Mountain Dew and two packs 

of cigarettes.  Just after 2:00 a.m., "after [the] beer rush was over, the store 

emptied out" and Dews and Johnston went outside to smoke a cigarette.  CP at 

271.

       Shortly thereafter, a car pulled into the parking lot.  Rodrigo Hernandez 

got out of the car.  When Johnston told Hernandez that she would not sell beer 

to him because it was later than 2:00 a.m., Hernandez responded, "[W]ell we'll 

just see about that."  CP at 263.  Johnston followed Hernandez into the store.  

Hernandez walked toward the beer cooler, and Johnston told Hernandez that if 

he opened the beer cooler, she would call the police.  Hernandez threatened to 

kill Johnston if she did so.  When Hernandez removed beer from the beer cooler, 

Johnston "came around the counter, grabbed the phone and immediately dialed 

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No. 66477-8-I/3

911."  CP at 264.  She then "went back around the . . . counter to follow 

[Hernandez] outside to get his plate number on his car."  CP at 264.

       Hernandez then attempted to exit the convenience store with the beer, but 

Dews, who was still outside of the store, "[stood] in front of the doors, blocking 

him in, so that he couldn't leave."  CP at 264.  Dews would later tell police that 

Hernandez "started to freak out [be]cause I had him blocked in" and "started 

ramming the door with his shoulder."  CP at 272.  Johnston told Dews to "just let 

him go."  CP at 264.  When Dews let Hernandez out of the store, Hernandez 

stabbed him in the face and fled the scene.  Hernandez later pleaded guilty to 

attempted second degree murder.  

       In August 2010, Dews filed a lawsuit against Deli Mart owner Kidane 

Mengistu, the Deli Mart, and Chevron, alleging that the defendants' negligence 
was the cause of his injuries.1 The Deli Mart thereafter filed a motion for 

summary judgment, seeking dismissal of the claims asserted against Mengistu 

and the Deli Mart.  Chevron also filed a motion for summary judgment dismissal 

of Dews' claim.  On December 17, 2010, the trial court granted both summary 

judgment motions, thus dismissing Dews' claims against Mengistu, the Deli Mart, 

and Chevron.  

       Dews appeals.

       1 Dews initially filed the lawsuit against Kenny So, the previous owner of the Deli Mart, 
rather than against Mengistu, who owned the Deli Mart when the incident occurred.  Dews 
thereafter filed another complaint, under a separate cause number, listing Mengistu as a 
defendant.  The cases were consolidated on October 1, 2010.  So is no longer a defendant in this 
case.

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No. 66477-8-I/4

                                           II

       Dews contends that the Deli Mart owed a duty to take reasonable steps to 

protect him, as a business invitee, from Hernandez's criminal conduct, which, 

Dews asserts, was both imminent and reasonably foreseeable.  However, 

because the stabbing was neither imminent nor reasonably foreseeable, the Deli 

Mart owed no such duty.  

       Although, at common law, there was no general duty to protect others 

from the criminal conduct of third persons, such a duty may arise where a 

special relationship exists between the defendant and the third party or the 

defendant and the third party's victim.  Nivens v. 7-11 Hoagy's Corner, 133 

Wn.2d 192, 199-200, 943 P.2d 286 (1997).  In Nivens, our Supreme Court held 

that the relationship between a business and a business invitee constitutes such 

a special relationship, "because the invitee enters the business premises for the 

economic benefit of the business."  133 Wn.2d at 202.  

       Our Supreme Court recognized, however, that "[i]n the absence of a clear 

articulation of the business's duty, the business could become the guarantor of 

the invitee's safety from all third party conduct on the business premises.  This is 

too expansive a duty."  Nivens, 133 Wn.2d at 203.  Thus, the court held that "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.  The business owner generally owes no duty to exercise 

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No. 66477-8-I/5

reasonable care unless he or she "'knows or has reason to know that the acts of 

the third person are occurring, or are about to occur.'"  Nivens, 133 Wn.2d at 

204 (emphasis omitted) (quoting Restatement (Second) of Torts § 344).  

However, 

       "[i]f the place or character of [the] business, or . . . past experience, 
       is such that [the business owner] should reasonably anticipate 
       careless or criminal conduct on the part of third persons, either 
       generally or at some particular time, he [or she] may be under a 
       duty to take precautions against it, and to provide a reasonably 
       sufficient number of servants to afford a reasonable protection."

Nivens, 133 Wn.2d at 205 (quoting Restatement (Second) of Torts § 344).  

Where such a duty exists, "[t]he business owner must take reasonable steps to 

prevent such harm in order to satisfy the duty."  Nivens, 133 Wn.2d at 205.  

       Importantly, the duty of a business owner to protect invitees from criminal 

conduct arises only where "the harm to the invitee by third persons is 
foreseeable."  Nivens, 133 Wn.2d at 205.2 As our Supreme Court noted in 

Nivens, "Washington courts have been reluctant to find criminal conduct 

foreseeable."  133 Wn.2d at 205 n.3.  Although foreseeability is generally a 

       2 Although, in Nivens, our Supreme Court established that the absence of foreseeability 
of criminal conduct precludes liability of the business owner premised upon such conduct, the 
court refrained from analyzing the foreseeability of the assault therein "because Nivens did not 
base his case on a general duty of a business to an invitee."  133 Wn.2d at 205.  Rather, Nivens 
had asserted only that businesses owe to their invitees a distinct duty to provide security 
personnel to protect against the criminal conduct of third parties, an argument rejected by the 
court.  Nivens, 133 Wn.2d at 207.
       The Court of Appeals had determined, however, that "there was 'a dearth of evidence to 
support a finding that a reasonable person would have foreseen violence of the general type that 
occurred,'" and, thus, that the business owner had no duty to protect Nivens from such violence.  
Nivens, 133 Wn.2d at 197 (quoting Nivens v. 7-11 Hoagy's Corner, 83 Wn. App. 33, 53, 920 
P.2d 241 (1996)).  Thus, we are not persuaded that, as Dews asserts, Nivens "would have 
survived summary judgment had he sought to establish a duty on the convenience store based 
on a general duty of a business invitee."  Appellant's Br. at 22.

                                          - 5 - 

No. 66477-8-I/6

question for the jury, criminal conduct may be unforeseeable as a matter of law 

where such conduct "is so highly extraordinary or improbable as to be wholly 

beyond the range of expectability."  Fuentes v. Port of Seattle, 119 Wn. App. 

864, 868, 82 P.3d 1175 (2003).

       Since our Supreme Court's decision in Nivens, our courts have in many 

cases determined that, as a matter of law, the criminal conduct underlying a 

negligence claim was not foreseeable.  See, e.g., Tae Kim v. Budget Rent A Car 

Sys., Inc., 143 Wn.2d 190, 15 P.3d 1283 (2001); Fuentes, 119 Wn. App. 864; 

Tortes v. King County, 119 Wn. App. 1, 84 P.3d 252 (2003); Raider v. 

Greyhound Lines, Inc., 94 Wn. App. 816, 975 P.2d 518 (1999); Wilbert v. Metro.

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

       In Fuentes, Nathalie Fuentes sued the Port of Seattle for injuries she 

sustained when, while waiting in the airport pick-up lane, she was carjacked by 

an assailant fleeing the port authority police.  119 Wn. App. at 866-67.  We

affirmed the trial court's summary judgment dismissal of Fuentes' claim, 

determining that a history of car prowling of "unoccupied cars parked in the 

airport garage does not create foreseeability of kidnapping or carjackings of 

occupied cars at the pick-up drive."  Fuentes, 119 Wn. App. at 870.  "The kind of 

knowledge required before a duty to protect arises," we noted, "is knowledge 

from past experience that there is a likelihood of conduct which poses a danger 

to the safety of patrons."  Fuentes, 119 Wn. App. at 870.  Thus, although a 

                                          - 6 - 

No. 66477-8-I/7

history of criminal conduct in the airport garage had been established, because 

the crimes previously committed were not violent crimes that "pose[d] a danger 

to the safety of patrons," Fuentes could not establish foreseeability of the 

carjacking and assault.  Fuentes, 119 Wn. App. at 870.  We further noted that, 

even had a history of violent crimes in the airport garage been established, such 

a fact would not be dispositive with regard to the foreseeability of violent crime at 

the airport pick-up drive.  Fuentes, 119 Wn. App. at 870.

       Similarly, in Tortes, we affirmed the summary judgment dismissal of 

Tortes's negligence claim against the Municipality of Metropolitan Seattle 

(Metro).  119 Wn. App. at 15.  Tortes's claim was premised upon injuries that 

she sustained when a third party shot and killed the driver of the bus in which 
she was riding, causing the bus to plunge off of a bridge.3  Tortes, 119 Wn. App. 

at 6-7.  Although the evidence demonstrated a history of simple assaults, the 

evidence did not indicate that crimes similar to the one therein had occurred on 

other Metro buses.  Tortes, 119 Wn. App. at 8.  We concluded that "Metro 

cannot be held liable for a sudden assault that occurs with no warning and that 

is 'so highly extraordinary or improbable as to be wholly beyond the range of 

expectability.'"  Tortes, 119 Wn. App. at 8 (internal quotation marks omitted) 

(quoting Raider, 94 Wn. App. at 819).  

       3 Although, there, the special relationship upon which a duty was alleged was that of 
common carrier and passenger, the issue therein was analogous to that raised here -- Tortes 
contended that the criminal acts of the third party were reasonably foreseeable and, thus, that 
the county was negligent by breaching its duty to protect her from such acts.  Tortes, 119 Wn. 
App. at 7.

                                          - 7 - 

No. 66477-8-I/8

       Similarly, in Raider, we affirmed the trial court's summary judgment 

dismissal of Hayes's negligence claim against Greyhound Lines, Inc. on the 

basis that the harm that she suffered was not imminent or reasonably 

foreseeable.  94 Wn. App. at 818-20.  There, Hayes was repeatedly shot in a 

Greyhound bus terminal in an apparently racially-motivated attack.  Raider, 94 

Wn. App. at 818-19.  As evidence of foreseeability of the shooting, Hayes 

submitted affidavits describing the bus station "as an area of high criminal 

activity, including prostitution, drugs, and a shooting two years earlier."  Raider, 

94 Wn. App. at 818.  Nevertheless, noting that the attack therein appeared to be 

racially-motivated, we determined that it was not foreseeable because it did not 

"[bear] any relationship or similarity to the past crimes" -- notwithstanding that 

those "past crimes" included a shooting.  Raider, 94 Wn. App. at 820.

       Here, Dews asserts that the stabbing was both imminent and foreseeable 

because Johnston "chased and cornered a violent shoplifter without warning 
visitors."4 Appellant's Br. at 23.  In so doing, he cites to Passovoy v. Nordstrom, 

Inc., 52 Wn. App. 166, 758 P.2d 524 (1988), in which we determined that 

Nordstrom could be liable for negligence if its detectives, while chasing a 

shoplifter through the department store, had failed to warn customers about the 

pursuit of the suspect.  There, Passovoy was injured when the fleeing suspect 

shoved him aside during the detectives' pursuit.  Passovoy, 52 Wn. App. at 168.  

       4 The Deli Mart contends that it owed no duty to Dews because he was not a business 
invitee when the stabbing occurred.  Because we need not address this issue in order to resolve 
the case, we decline to do so.

                                          - 8 - 

No. 66477-8-I/9

We determined that summary judgment dismissal of Passovoy's claim was 

improper where the evidence was sufficient to create an issue of fact regarding 

whether the detectives could have warned Passovoy about the potential for 

harm.  Passovoy, 52 Wn. App. at 173.

       But Passovoy is inapposite.  Notwithstanding the fact that, pursuant to our 

decision in Passovoy, the Deli Mart may have a duty to warn customers of 

impending harm from fleeing suspects, the record here is devoid of evidence 

that Johnston "chased and cornered" Hernandez, as Dews asserts, or that any 

causal relationship exists between Johnston's actions and the stabbing.  In her 

statement to police, given the morning of the incident, Johnston stated that she 

"went back around the outside [of] the counter" after dialing 911 in order to 

"follow [Hernandez] outside to get his plate number on his car."  CP at 264.  

Although this indicates that Johnston followed Hernandez, it does not 

demonstrate that she "chased and cornered" him; nor does it demonstrate that 

her actions provoked Hernandez to stab Dews.  

       Rather, Johnston stated that Dews was "standing in front of the doors, 

blocking [Hernandez] in, so that he couldn't leave" and that she told Dews to 

"just let him go," CP at 264, thus indicating that Dews' actions, rather than 

Johnston's actions, were that which gave rise to Hernandez's decision to stab 

Dews.  Indeed, in his statement to the police, Dews suggested that Hernandez 

"started to freak out [be]cause I had him blocked in" just before the stabbing 

                                          - 9 - 

No. 66477-8-I/10

occurred.  CP at 272.  Thus, Dews' contention that the stabbing was either 

foreseeable or imminent due to Johnston's actions is without merit.

       Dews additionally asserts that the stabbing was foreseeable due to the 
allegedly high crime rate on the Deli Mart premises.5  Our Supreme Court, 

however, "has rejected utilization of high crime rates as a basis for imposing a 

tort duty."  Tae Kim, 143 Wn.2d at 199.  Indeed, the court has noted that 

       "there is a basis to conclude that the high incidence of crime in an 
       urban area does not favor imposition of [a tort duty], but instead 
       cuts the other way.  That is, if the premises are located in an area 
       where criminal assaults often occur, imposition of a duty could 
       result in the departure of businesses from urban core areas -- an 
       undesirable result."

Tae Kim, 143 Wn.2d at 199 (quoting Hutchins v. 1001 Fourth Ave. Assocs., 116 

Wn.2d 217, 236, 802 P.2d 1360 (1991)).  Thus, even if, as Dews asserts, the 

Deli Mart is located in a high-crime area, no duty arises simply as a result of that 

fact.

       Moreover, based upon the record, the criminal activity that occurred at the 

Deli Mart prior to the incident here -- which, according to the declarations of 

Mengistu, So, and Johnston, consisted of shoplifting, loitering, and illegal sales 

       5 As evidence of the high crime rate, Dews submitted to the trial court a document 
created by the Federal Way Police Department, which purports to list all crimes reported from 
the Deli Mart's address and the "surrounding area" between 2004 and November 17, 2010.  
Based upon this list, Dews asserts that, from 2004 to 2007, there were multiple robberies, 
assaults, and thefts either at the Deli Mart address or nearby.  However, it cannot be determined 
from this document which crimes were committed at the Deli Mart itself.  Moreover, the 
statements of Mengistu and Kenny So, who owned and operated the convenience store from 
February 1997 to July 2008, indicate that, while shoplifting was frequent, violent crime was not.  
Both Mengistu and So, in declarations submitted to the trial court, stated that, to their knowledge, 
there was no violent crime or fighting inside the convenience store during their ownership of the 
Deli Mart.  

                                         - 10 - 

No. 66477-8-I/11

of beer -- bears no similarity to the stabbing of Dews, such that it created 

foreseeability of this particular crime.  See, e.g., Raider, 94 Wn. App. at 820.  

We have determined that a history of non-violent crimes, such as those 

demonstrated by the record here, does not give rise to a duty to protect invitees 

from violent crimes, as such crimes do not become reasonably foreseeable due 

to such a history.  See Fuentes, 119 Wn. App. at 870. Because the stabbing 

was not reasonably foreseeable based upon the criminal conduct that had 

previously occurred at the Deli Mart, the Deli Mart owed no duty to protect Dews 

from the sudden assault by Hernandez.  

       Furthermore, even were Hernandez's criminal conduct foreseeable -- such 

that the Deli Mart would incur a duty to protect Dews from such conduct -- the 

duty of a business to protect its invitees from harm caused by the criminal 

conduct of third persons is satisfied where the business owner takes reasonable 

steps to prevent such harm.  Nivens, 133 Wn.2d at 205.  Thus, Dews must 

present evidence that the Deli Mart, assuming that it owed a duty to protect 

Dews from Hernandez's conduct, failed to take reasonable steps to protect him 

from such conduct.  In addition, in order to sustain his negligence action, Dews 

must present evidence that his injuries were caused by the Deli Mart's failure to 

take reasonable steps to protect him.  Fuentes, 119 Wn. App. at 868.

       Dews offers a litany of suggestions as to the actions that the Deli Mart 

could have taken in order to protect him from Hernandez's criminal conduct, 

                                         - 11 - 

No. 66477-8-I/12

including locking the alcohol cooler, keeping surveillance cameras in working 

order, and properly staffing the convenience store.  However, Dews does not 

establish a causal link between the Deli Mart's purported acts or omissions and 

Hernandez's conduct.  "Rather, [Dews provides] only speculation as to what [the 

Deli Mart] should have done to prevent the [stabbing]."  Tortes, 119 Wn. App. at 

9.  This is not sufficient to demonstrate causation.

       Even were Dews correct that the Deli Mart owed a duty to protect him 

from Hernandez's criminal conduct, the evidence does not establish that any 

acts or omissions of the Deli Mart were the cause of Dews' injuries.  Thus, both 

because Hernandez's conduct was not reasonably foreseeable and because 

Dews cannot establish a causal link between his injuries and any act of the Deli 

Mart, summary judgment dismissal of Dews' negligence claims against both the 
Deli Mart and Mengistu was proper.6

                                           III

       Dews additionally contends that the Deli Mart was acting as Chevron's 

agent when it engaged in the allegedly negligent conduct and, thus, that 

Chevron may be vicariously liable for damages arising from that alleged 

negligence.  However, vicarious tort liability of a principal may arise only where 

       6 Dews also contends that the Deli Mart engaged in negligent hiring and supervision of 
its employees.  He asserts that the Deli Mart was negligent in hiring Hernandez, who had at one 
time been employed at the Deli Mart but had been fired prior to the incident here.  He 
additionally asserts that the Deli Mart was negligent in failing to properly supervise Johnston, 
who was working the night shift alone when Dews was stabbed.  However, the record includes no 
evidence that any hiring or supervision decisions by the Deli Mart were the cause of Dews' 
injuries.  "[T]o sustain an action for negligence, a plaintiff must establish causation as an 
essential element."  Tortes, 119 Wn. App. at 8-9.  Dews has not done so here.

                                         - 12 - 

No. 66477-8-I/13

the agent engaged in negligent conduct.  See, e.g., Kroshus v. Koury, 30 Wn. 

App. 258, 264, 633 P.2d 909 (1981) (quoting Jackson v. Standard Oil Co., 8 Wn. 

App. 83, 91, 505 P.2d 139 (1972)) (holding that the principal must control or 

have the right to control "'those activities from whence the actionable negligence

flowed'" (emphasis added)).  Because the Deli Mart neither owed nor breached a 

duty to protect Dews against Hernandez's criminal conduct, Chevron cannot 

incur liability premised upon the Deli Mart's actions.  Thus, as with the claims 

against the Deli Mart and Mengistu, the trial court properly dismissed Dews' 
negligence claim against Chevron.7

       Affirmed.

We concur:

       7 Dews additionally contends that Chevron may be liable for Dews' injuries based upon 
principles of apparent agency.  For the same reason explained above, this contention also fails.

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