¶38 (concurring) — The central question before us is whether a plaintiff bringing suit against a landowner must present evidence of prior similar acts of violence on the premises as a “prerequisite” to finding that criminal acts on the premises were foreseeable. See McKown v. Simon Prop. Grp., Inc., 689 F.3d 1086, 1093 (9th Cir. 2012) (quoting Wilbert v. Metro. Park Dist., 90 Wn. App. 304, 309, 950 P.2d 522 (1998)). The majority does not clearly answer this question. On the one hand, it says such evidence is not required. See majority at 774 (“In answer to the Ninth Circuit’s second inquiry, proving acts of similar violence is not the only way for a plaintiff to establish a duty as provided in the Restatement.” (citing Restatement *776(Second) op Torts § 344 (Am. Law. Inst. 1965)). On the other hand, in answering certified question three — not question two — the majority seems to endorse the strict prior similar acts test adopted by the Court of Appeals cases cited in the Ninth Circuit’s order.10
¶39 I would answer certified questions one and two directly: yes and no. While these are the same answers the majority seems to give, much of its unnecessary discussion of question three seems to undercut its stated answers. Because the third certified question is conditional, asking for the characteristics of a prior similar acts test only “[i]f proof of previous acts of similar violence is required,” McKown, 689 F.3d at 1087, I would not answer it. The majority’s discussion of this question is dicta.
ANALYSIS
¶40 This case centers on our decision in Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 943 P.2d 286 (1997), and subsequent decisions from the Court of Appeals that have applied a prior similar acts test to determining foreseeability. The certified questions begin from the premise that Simon Property Group Inc., a business owner, owes a duty of reasonable care to McKown, a business invitee.11
¶41 The majority criticizes McKown for confusing “duty, which is a question of law for the court, with the scope of *777duty, which is ordinarily a question for the trier of fact,” and insists that the certified questions ask about legal duty. Majority at 762. This is a critical mistake. The Ninth Circuit and the parties all understand, as did the trial court, that the issue before us concerns factual foreseeability, i.e., the scope of the duty arising out of the special relationship between Simon and McKown. See McKown, 689 F.3d at 1092 (“It is the scope of that duty that is dispositive.”), 1093 (quoting trial court as stating, “ ‘there is an issue for the jury as to whether the third party’s criminal conduct is reasonably foreseeable only if plaintiff presents competent evidence that similar criminal conduct has occurred on the premises in the past’ ”); see also Br. of Appellees Simon Prop. Grp., Inc. & IPC Int’l Corp. at 1 (describing certified questions as concerning “the scope of the duty that a business owes its invitees to protect them from criminal acts of third persons, and the foreseeability of such acts”). Certified question two is framed squarely in terms of factual foreseeability, asking what evidence is needed “[t]o create a genuine issue of material fact as to the foreseeability of the harm.” McKown, 689 F.3d at 1087.
¶42 Such foreseeability is ordinarily a question for the trier of fact unless there are no genuine issues of material fact and reasonable minds could not disagree. Christen v. Lee, 113 Wn.2d 479, 492, 780 P.2d 1307 (1989); see also Nivens, 133 Wn.2d at 205; Hansen v. Friend, 118 Wn.2d 476, 483, 824 P.2d 483 (1992); Niece v. Elmview Grp. Home, 131 Wn.2d 39, 50, 929 P.2d 420 (1997). A court should reject foreseeability as a matter of law only when the harm is “ ‘so highly extraordinary or improbable’ ” that no reasonable person could be expected to anticipate it. Seeberger v. Burlington N. R.R. Co., 138 Wn.2d 815, 823, 982 P.2d 1149 (1999) (quoting McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 323, 255 P.2d 360 (1953)). The federal court seeks guidance about whether evidence of prior similar acts on the premises is a prerequisite under Washington law to create a genuine issue of material fact. Part of this inquiry *778turns on whether this court follows the analysis set forth in section 344 of the Restatement.
(1) Does Washington adopt Restatement (Second) of Torts section 344, including comments d and f, as controlling law?
¶43 I agree with the majority that the answer to certified question one is yes. In Washington, the special relationship between a business and its invitee gives rise to a duty on the part of the business to exercise reasonable care to protect invitees from likely harm caused by third persons. Nivens, 133 Wn.2d at 202 (“What we have impliedly recognized in earlier cases, we now explicitly hold: a special relationship exists between a business and an invitee.”). In determining the existence and scope of the duty and the standard of care necessary to satisfy it, section 344 of the Restatement, and comments d and f thereto, provide the appropriate analysis because they are “consistent with and a natural extension of” our law. Id. at 204-05.
¶44 Section 344 of the Restatement states:
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
(Emphasis added.)
¶45 Recognizing that it would be an impossible burden on businesses to protect invitees from every risk of harm caused by third parties, the Restatement limits the scope of the duty owed. Comment f explains:
*779Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he 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.
Restatement § 344 cmt. f. Thus, while the existence of a special relationship triggers a legal duty to protect, the Restatement recognizes limits on the scope of that duty. Liability cannot be imposed unless the landowner is on notice of likely harm.
¶46 Even when the business owner owes a duty under the circumstances, comment d explains that this does not make the business owner the insurer of an invitee’s safety but merely requires the exercise of reasonable care:
A ... possessor of land who holds it open to the public for entry for his business purposes is not an insurer of the safety of such visitors against the acts of third persons .... He is, however, under a duty to exercise reasonable care to give them protection. In many cases a warning is sufficient care if the possessor reasonably believes that it will be enough to enable the visitor to avoid the harm, or protect himself against it. There are, however, many situations in which the possessor cannot reasonably assume that a warning will be sufficient. He is then required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons . . . may conduct themselves in a manner which will endanger the safety of the visitor.
Id. cmt. d.
*780¶47 The principles set forth in section 344 of the Restatement are consistent with Washington precedent. Washington courts have long recognized that the special relationship between a business owner and its invitees triggers a duty on the part of the owner to protect invitees from harm arising from the foreseeable conduct of third parties. See Niece, 131 Wn.2d at 44 (quoting Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 228, 802 P.2d 1360 (1991) (citing Prosser and Keeton on The Law of Torts 383 (W. Page Keeton ed., 5th ed. 1984))); Hutchins, 116 Wn.2d at 223-24 (noting that “the usual case where a duty may be found to protect others from third party criminal assault involves a business and its invitee”); Passovoy v. Nordstrom, Inc., 52 Wn. App. 166, 172-73, 758 P.2d 524 (1988) (holding a business owes a duty to protect invitees from reasonably foreseeable harm by third persons); Miller v. Staton, 58 Wn.2d 879, 883, 365 P.2d 333 (1961) (holding that a business owner “owes the duty to his guests to exercise reasonable care to protect them from injury at the hands of a fellow guest”); Gurren v. Casperson, 147 Wash. 257, 258-59, 265 P. 472 (1928) (holding a business owner must protect invitees against injury caused by third persons).
¶48 In Nivens, we recognized that because an invitee “entrusts himself or herself to the control of the business owner over the premises and to the conduct of others on the premises,” this special relationship imposes a duty on business owners to exercise reasonable care to protect their customers “from imminent criminal harm and reasonably foreseeable criminal conduct by third persons.” 133 Wn.2d at 202, 205. To delineate the scope of this duty, we looked to section 344 of the Restatement because it is “consistent with and a natural extension of Washington law” and said we “expressly adopt it.” Id. at 204; see Passovoy, 52 Wn. App. at 172-73 (first endorsing and applying the Restatement rule); see also 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 1.19, at 38-39 (3d ed. 2006) (noting that Nivens “described the nature of the duty that is owed by adopting § 344 of the Restatement”).
*781¶49 Simon argues that despite the language in the opinion, the court in Nivens did not actually adopt the Restatement and its comments because the plaintiff in that case did not rely on the general duty of care owed to him as a business invitee. Simon reads Nivens too narrowly. Even though the plaintiff in Nivens argued only that “a business generally owes a duty to provide security personnel to prevent criminal behavior on the business premises,” 133 Wn.2d at 205, our decision settled more than the bare question of whether a business owes a freestanding “duty” to provide armed guards. Before we could reach Nivens’s specific claim about a business’s alleged duty to provide security personnel, we first had to address the threshold question of whether a business owes any duty to invitees with respect to third-party acts. In the course of resolving this question, we recognized that “in certain circumstances the duty arising out of the special relationship between a business and an invitee described by § 344 of the Restatement may best be met by providing security personnel as part of the reasonable steps to forestall harm to invitees.” Id. at 206; see also id. at 208 (Sanders, J., dissenting) (observing that “hiring security guards may be one of many possible ways a business may discharge its general duty to protect invitees from third persons’ reasonably foreseeable criminal conduct”).12 What we declined to reach was the issue of whether the defendant was required to hire guards *782or take other precautions to discharge this duty because that question relates to the standard of care and Nivens did not argue that the general duty had been breached. Nivens, 133 Wn.2d at 205. Thus, while some of the discussion in Nivens seems to use the term “duty” to describe both duty and the standard of care, there can be little doubt that adoption of section 344 of the Restatement was necessary to the court’s analysis.
¶50 A word should be said about the Restatement’s use of the term “likely” and the concept of “foreseeability.” No case suggests any substantive difference between our common law rule and section 344 of the Restatement. While in theory an act might be described as foreseeable without any showing that its occurrence is likely, this court has never equated foreseeability with the bare possibility of harm or drawn a distinction between the common law and the Restatement’s test. To the contrary, the court in Nivens clearly connected our precedent defining “foreseeability” with the test set forth in section 344 of the Restatement. Id. at 205 & n.3 (describing the Restatement’s test as imposing the duty to protect invitees “from imminent criminal harm and reasonably foreseeable criminal conduct by third persons”; rejecting liability for criminal conduct that is “ ‘so highly extraordinary or improbable as to be wholly beyond the range of expectability’ ” (quoting Jones v. Leon, 3 Wn. App. 916, 926, 478 P.2d 778 (1970))). Whether the term “likely” or the term “foreseeable” is used, the concept is the same: the landowner’s duty is to protect invitees from harm that can be reasonably anticipated to arise. As comment f to Restatement section 344 explains, “If the place or character of his business, or his past experience, is such that he 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.”
¶51 In response to the first certified question, I would reaffirm our holding in Nivens that Washington law is *783“consistent with” section 344 of the Restatement. Id. at 204. I therefore turn to the second certified question, which asks whether evidence of prior similar acts is required to meet the Restatement’s test.
(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?
¶52 The answer to this question is no. The majority seems to agree. It acknowledges the Restatement contemplates two kinds of situations giving rise to a duty and does not require notice to be based solely on prior similar acts. Majority at 768; see also id. at 774 (“proving acts of similar violence is not the only way for a plaintiff to establish a duty as provided in the Restatement”). Comment f recognizes a landowner may “know or have reason to know . . . that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual.” Restatement § 344 cmt. f. And that notice may be based on either “past experience” or “the place or character of [the] business.” Id. Notably, the Restatement does not artificially limit what evidence constitutes “past experience.” Nor does it narrowly define “past experience” to require prior similar acts on the same premises during the current owner’s tenure. Rather, the Restatement takes a commonsense approach to evaluating past experience, and its comments and illustrations make clear that foreseeability may be established through a broad range of evidence.
*784¶53 Unfortunately, the lower appellate court opinions the Ninth Circuit identified read the Restatement too restrictively, applying a rote rule demanding proof of prior similar acts on the same premises. See Wilbert, 90 Wn. App. 304; Fuentes v. Port of Seattle, 119 Wn. App. 864, 82 P.3d 1175 (2003); Craig v. Wash. Tr. Bank, 94 Wn. App. 820, 976 P.2d 126 (1999); Raider v. Greyhound Lines, Inc., 94 Wn. App. 816, 975 P.2d 518 (1999). These cases at best overstate the significance of prior acts and at worst recast what is intended to be a flexible standard as a one-size-fits-all test. Having rejected proof of prior similar acts as a prerequisite to establishing foreseeability, we should reject this approach. This court has consistently recognized that a wide array of evidence may be relevant to establishing the scope of a duty owed. In Miller, we allowed “[e]vidence of conduct of patrons on prior occasions ... to show similar conduct could reasonably have been anticipated.” 58 Wn.2d at 884-85. In Niece, we explained the question of foreseeability should go to the jury based on evidence showing the defendant was on notice of harm, including prior similar acts, prior business decisions, advice from risk assessors, and legislative recognition. 131 Wn.2d at 50-51, 51 n.10. In McLeod, we rejected the notion that foreseeability requires evidence of a specific type of prior incident as “unjustifiably restrict [ive].” 42 Wn.2d at 321. We explained that “the pertinent inquiry is not whether the actual harm was of a particular kind which was expectable” but, “[r]ather, the question is whether the actual harm fell within a general field of danger which should have been anticipated.” Id.
¶54 Other lower courts have correctly observed that while prior similar acts are among the best evidence available to demonstrate that a business owner is on notice of a risk of harm to invitees, they are not the only relevant evidence. See, e.g., Passovoy, 52 Wn. App. at 172-73 (recognizing a business may be on notice that a shoplifter confronted by store detectives could cause harm to invitees, though no such harm had occurred on the premises in the past); Griffin v. W. RS, Inc., 97 Wn. App. 557, 567-70, 984 P.2d *7851070 (1999) (holding business may be on notice of harm posed by intruder against invitee, even when no intruder had been identified and there had been no prior acts on the premises), rev’d on other grounds, 143 Wn.2d 81, 18 P.3d 558 (2001).
¶55 Requiring evidence of prior similar acts as a prerequisite to suit would disserve the social interests of tort law. Courts have recognized that requiring such proof would give businesses “one free assault” and remove any incentive to take reasonable precautions against otherwise foreseeable criminal harm to invitees. See, e.g., Jane Doe v. Grosvenor Ctr. Assocs., 104 Haw. 500, 92 P.3d 1010, 1021 (2004) (holding foreseeability is based on the totality of the circumstances, not on a mechanical prior similar incidents rule); Bass v. Gopal, Inc., 395 S.C. 129, 716 S.E.2d 910, 914 (2011) (rejecting prior criminal incidents as the sine qua non of determining foreseeability). Moreover, it would suggest, absurdly, that a business owner who relocates after an incident occurs no longer owes a duty to use reasonable care, insofar as he has no past experience of prior acts on the new premises. Even states that embrace a modified similar acts test have not gone so far. See Ann M. v. Pac. Plaza Shopping Ctr., 6 Cal. 4th 666, 679 n.7, 863 P.2d 207, 25 Cal. Rptr. 2d 137 (1993) (recognizing that while a duty to supply security guards may require evidence of prior similar acts under California’s sliding scale foreseeability inquiry, such act need not be on the same premises), disapproved on another point in Reid v. Google, Inc., 50 Cal. 4th 512, 527, 235 P.3d 988, 113 Cal. Rptr. 3d 327 (2010), and superseded by statute on another point as recognized in Saelzler v. Advanced Grp. 400, 25 Cal. 4th 763, 767-68, 23 P.3d 1143, 107 Cal. Rptr. 2d 617 (2001).
¶56 Under Washington law, the scope of a business owner’s duty remains a question about what risks a reasonable person should anticipate and protect against, not simply what has passed. Once business owners have notice of a likely risk of harm to their invitees from third parties, *786they have a duty to take reasonable precautions to protect against such harm. Our precedent rejects a bright line test for foreseeability that would require evidence of prior similar acts on the same premises during the defendant owner’s tenure.
¶57 This is wholly consistent with the Restatement approach. Under the Restatement, a business owner may be on notice of the risk of harm at all of his business locations following harm at one, so long as the premises are similar in operation and appearance. Likewise, prior experiences that do not lead to criminal charges — such as rowdy or boisterous crowds related to a sports game or a holiday — may put a business on notice of the likelihood of criminal assaults at subsequent events. See Restatement § 344 illus. 1, 2. Additionally, information provided by invitees and known to the landowner may put the landowner on notice of the likelihood of harm, even when no harm has occurred in the past. See Griffin, 97 Wn. App. at 567-70; Johnson v. State, 77 Wn. App. 934, 942-43, 894 P.2d 1366 (1995). There are doubtless other examples.
¶58 Importantly, our adoption of the Restatement’s test does not equate to McKown’s suggestion that the foreseeability of harm may be established solely based on the “place or character” of the defendant’s business. See Restatement § 344 cmt. f. While the jury may properly consider the character of a business in determining whether a criminal act at a nearby establishment with similar patrons made a particular act on defendant’s premises more likely, the place or character of the business cannot be the sole consideration. We have recognized that mere statistical evidence, such as a higher crime rate in a particular city or neighborhood, or a higher crime rate among similar businesses nationwide or statewide, is insufficient to support the imposition of a duty. See Tae Kim v. Budget Rent A Car Sys., 143 Wn.2d 190, 199, 15 P.3d 1283 (2001) (noting that “this court has rejected utilization of high crime rates as a basis for imposing a tort duty”); Hutchins, 116 Wn.2d at 236 *787(reasoning that imposing a duty on defendants in light of statistical crime rates “could result in the departure of businesses from urban core areas — an undesirable result”). Nor is the notice requirement satisfied merely by media reports of crime in a region, city, or neighborhood, or by evidence that persons in the area subjectively believe that crime is more prevalent there than in other areas. See Franklin D. Gilliam, Jr. & Shanto Iyengar, Prime Suspects: The Influence of Local Television News on the Viewing Public, 44 Am. J. Pol. Sci. 560, 560, 567-68 (2000) (reporting that crime accounts for more than 75 percent of all news coverage in certain cities and that viewers’ attitudes about crime vary depending on the race of the alleged perpetrators).
¶59 Our negative answer to certified question two does not mean that liability is a foregone conclusion. A landowner’s duty is to exercise reasonable care; this does not translate into a duty to take extraordinary measures or become an insurer of patrons’ safety. As with all areas of negligence law, “[t]he financial burden, technical considerations, and other factual circumstances are all factors to be considered in determining whether or not [the defendant] complied with its duty to use reasonable care.” Berglund v. Spokane County, 4 Wn.2d 309, 319, 103 P.2d 355 (1940); see Keller v. City of Spokane, 146 Wn.2d 237, 242, 44 P.3d 845 (2002) (outlining the elements of negligence). Foreseeability remains a limitation on a business owner’s duty; it is not a proxy for liability.
¶60 Having adopted comments d and f to section 344 of the Restatement and having rejected a rigid prior similar acts test as inconsistent with the Restatement and Washington law, I would not delve into the third certified question. The majority unnecessarily opines on the strict requirements of a test it recognizes is not exclusive in the first instance. It is enough to recognize that a range of evidence may be appropriate to establish foreseeability based on the Restatement's notice principle. Some evidence *788will undoubtedly weigh more heavily than other evidence, but our cases and the illustrations provided in the Restatement supply a variety of scenarios sufficient to give guidance.
¶61 With respect to the second certified question, I would state our holding in plain terms: to create a genuine issue of material fact as to the foreseeability of harm, a plaintiff need not always present evidence of prior similar acts. A plaintiff must present evidence from which reasonable minds could find the defendant knew or had reason to know the harm was likely to occur. Simply put, “prior similar acts on the same premises” is not a litmus test for foreseeability. See Restatement § 344 cmt. f.
CONCLUSION
¶62 I would answer the first two certified questions as follows:
¶63 (1) Washington law follows Restatement (Second) of Torts section 344, including comments d and f, as the test for determining a business owner’s duty to its invitees.
¶64 (2) Washington law rejects a rigid “prior similar acts” test as a prerequisite for determining foreseeability. Although prior acts on the same premises may be relevant to whether the landowner was on notice of a foreseeable risk of harm to its invitees, proof of such acts is not necessary to create genuine issue of material fact.
¶65 In light of these answers to questions (1) and (2), it is unnecessary to answer the third certified question.
González, J., concurs with Stephens, J.The majority justifies its approach on the ground that only a prior similar acts theory was advanced in this case, but neither the parties nor the Ninth Circuit think so. Obviously, the briefing focuses on prior similar acts — but this is because the trial court refhsed to submit the case to the jury in the absence of such evidence. See McKown, 689 F.3d at 1093 (noting trial court “stated the test this way: ‘there is an issue for the jury as to whether the third party’s criminal conduct is reasonably foreseeable only if plaintiff presents competent evidence that similar criminal conduct has occurred on the premises in the past’ ”). It was in light of this ruling that the questions before us were framed. The Ninth Circuit needs to know whether evidence of prior similar acts is a prerequisite to getting a case out of the gates. Unless it is, there is no need to expound on the forms such evidence might take.
“For the purpose of its summary judgment motion . . . , Simon assumed, without admitting, that McKown was its invitee.” Br. of Appellees Simon Prop. Grp., Inc. & IPC Int’l Corp. at 8 n.l.
The majority overlooks this aspect of Nivens. It mistakenly relies on Hutchins for the proposition that a landowner owes no generalized duty to protect against criminal assaults. See majority at 765, 769. But Hutchins involved the question of liability to a trespasser, not an invitee, and thus did not involve any consideration of reasonable care. The court was careful to distinguish situations, such as this one, involving special relationships. Hutchins, 116 Wn.2d at 227-29 (discussing cases involving special relationships giving rise to duty of reasonable care); see also Christensen v. Royal Sch. Dist. No. 160, 156 Wn.2d 62, 75, 124 P.3d 283 (2005) (Madsen, J., concurring/dissenting in part) (explaining Hutchins “diseuss[ed] situations where a defendant has a special relationship with a foreseeable victim giving rise to a duty to protect the person from physical injury resulting from the conduct of third parties”). Thus, Hutchins provides no support for the view that foreseeability requires evidence of prior similar acts. As we made clear in Nivens, this rule “does not apply” in light of the affirmative duty of reasonable care that exists in the business owner/invitee context. 133 Wn.2d at 203.