McKown, who was paralyzed in the shooting, sued
Simon Property and IPC for allegedly failing to hire enough security guards and lacking proper security cameras.
A federal judge dismissed the claims against IPC, but allowed McKown to pursue tort claims against the mall owner.
Simon Property asked the court to reconsider, arguing that the judge had overlooked case law requiring McKown to show "prior similar acts on the premises" for a jury to decide if the shooting was foreseeable.
McKown responded with evidence of six shootings at the Tacoma Mall between 1992 and 2005, and three other gun-related incidents.
After reconsidering, the federal judge dismissed McKown's negligence claims on the basis that the earlier incidents were too dissimilar and remote to be considered "indiscriminate shootings."
The 9th Circuit said it could not rule on McKown's appeal "because the scope of the foreseeability inquiry under Washington law is not sufficiently clear to us."
"While we are conscious of the very real human suffering presented in this case, the questions with which we are confronted would be perfect for a first-year torts exam," the three-judge panel wrote. "What is the scope of the defendants' duty to protect McKown from harm from such a shooting? Were these acts of violence foreseeable to the defendants? In answering these questions, we must look to Washington law. But ... we are unsure of what the answers are."
The 9th Circuit certified the following questions to the Washington Supreme Court:
"1) Does Washington adopt Restatement (Second) of Torts § 344 (1965), including comments d and f, as controlling law?
"2) To create a genuine issue of material fact as to the foreseeability of the harm resulting from a third party's criminal act when the defendant did not know of the dangerous propensities of the individual responsible for the criminal act, must a plaintiff show previous acts of similar violence on the premises, or can the plaintiff establish reasonably foreseeable harm through other evidence?
"3) If proof of previous acts of similar violence is required, what are the characteristics which determine whether the previous acts are indeed similar?"