¶66 (concurring) — The United States Court of Appeals for the Ninth Circuit certified three questions to this court in order to determine whether Washington State *789adopted section 344 of the Restatement (Second) of Torts (Am. Law Inst. 1965) and, if so, to determine the contours of the duty imposed on business owners. I concur with the answers given in the majority opinion. I also concur with the majority to the extent that it holds that Washington imposes a duty on business owners to either warn or protect invitees from third party harm when such harm is occurring or likely to occur.
¶67 I agree with the majority that we must impose meaningful and reasonable limits on the duty to protect against the criminal acts of others. Overly broad liability would essentially require business owners to take the government’s police power into their own hands, creating a de facto private police force to protect invitees. Moreover, broad liability would deter businesses from operating in high crime areas, resulting in further deterioration in economically challenged neighborhoods. Such perverse incentives would sow the seeds of social harm.
¶68 Fortunately, the drafters of section 344 recognized this as an extension of liability from common law and, accordingly, limited the circumstances giving rise to liability. Section 344 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.
Restatement § 344 (emphasis added).
¶69 Section 344 is, to put it charitably, dense, and subsections (a) and (b) must be read together. Subsection (a) imposes a duty to discover that harmful acts either are *790“being done” or are “likely to be done.” Id. Subsection (b) imposes a duty to warn or protect visitors against “the harm.” Id. What is “the harm”? It is harm resulting from acts “being done” or “likely to be done.” Acts “being done” can refer to actions that are recurring on the premises on a regular basis, or it can refer to contemporaneous acts, i.e., actions that are occurring at the moment of failure to discover.
¶70 The owner must also protect against acts that are not yet “being done” but that are “likely to be done.” It is this requirement — that the acts are “likely to be done” — that provides the key limitation on the owner’s liability for the criminal acts of third persons.
¶71 In other words, a business owner is liable for failing to exercise reasonable care to either warn or protect visitors (subsection (b)) when the possessor discovers that harmful acts are either occurring or are likely to occur (subsection (a) ). Subsection (a) establishes a duty to learn of or anticipate harmful acts. But liability does not attach for mere failure to discover. A possessor who fails to take reasonable steps to discover might fail to meet his or her duty, but liability would attach only if the oversight caused harm to the plaintiff. To evaluate causation, we turn to subsection (b) , which asks whether reasonable care requires the possessor to warn or take protective measures. Under subsection (b), liability attaches if taking reasonable measures would have prevented the harm. In other words, we should read subsections (a) and (b) together to determine the scope of liability. Subsection (b) applies once the premises owner meets the requirements of subsection (a) — i.e., once he or she knows or has reason to know that harmful acts are being done or are likely to be done.
¶72 The use of the term “likely” to limit liability is of particular importance because it suggests a significant probability of occurrence. Webster’s defines “likely” as being “of such a nature or so circumstanced as to make something probable” and deems something “probable” when it “is based *791on or arises from adequate [,] fairly convincing [,] though not absolutely conclusive [,] intrinsic or extrinsic evidence or support.” Webster’s Third New' International Dictionary 1310, 1806 (2002).
¶73 Consistent with Webster’s, we should define “likely” to mean that the harmful act of a third party is more probable than 50 percent; this limits the scope of duty for business owners, imposing liability only when the act was likely to occur. In order to cross this threshold, the plaintiff must present evidence showing that the defendant knew, or should have known,13 that the harm was likely to occur. Section 344 and its attendant comments, by their terms, do not require a prior similar incident. Nor should we require a prior similar incident. However, prior similar incidents could support a finding that subsequent acts were likely to occur.
¶74 The majority opinion and concurring opinion (Stephens, J.) acknowledge that liability arises only for an event that is imminent or presently occurring or is likely to occur. Majority at 768 (“comment f, like section 344 itself, contemplates two kinds of situations that may give rise to a duty — the first is where the landowner knows or has reason to know of immediate or imminent harm, and the second is where the possessor of land knows, or has reason to know, based on the landowner’s past experience, the place of the business, or the character of the business, there is a likelihood that harmful conduct of third parties will occur on his premises”); concurrence (Stephens, J.) at 779 (“Liability cannot be imposed unless the landowner is on notice of likely harm.”), 785-86 (“Once business owners have notice of a likely risk of harm to their invitees from third parties, they have a duty to take reasonable precautions to protect against such harm.”).
*792¶75 While I agree with the majority’s analysis of foreseeability, it is important to consider as well the section 344 requirement that harm be likely. This is necessary because an injury that is foreseeable may or may not arise from an event that is likely. We made this point clearly in Ayers v. Johnson & Johnson Baby Products Co., 117 Wn.2d 747, 818 P.2d 1337 (1991). There we rejected the defendant’s argument that the Washington product liability act equated foreseeability with likelihood:
[F]oreseeability is a matter of what the actor knew or should have known under the circumstances; it turns on what a reasonable person would have anticipated. The likelihood, or probability, that an event would occur, on the other hand, does not depend on what a reasonable person would have anticipated under the circumstances, but on an assessment of all relevant facts, including those available only in hindsight. Thus harm might be likely but unforeseeable, or foreseeable but unlikely.
Id. at 764.
¶76 Foreseeability is not the same as likelihood because the two terms refer to different concepts. An injury is foreseeable if “[t]he hazard that brought about or assisted in bringing about the result [is] among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent.” Rikstad v. Holmberg, 76 Wn.2d 265, 268, 456 P.2d 355 (1969). Or, as we stated in McLeod v. Grant County School District No. 128, “ ‘The sequence of events, of course, need not be foreseeable. The manner in which the risk culminates in harm may be unusual, improbable and highly unexpectable, from the point of view of the actor at the time of his conduct. And yet, if the harm suffered falls within the general danger area, there may be liability, provided other requisites of legal causation are present.’ ” 42 Wn.2d 316, 322, 255 P.2d 360 (1953) (quoting Fowler Vincent Harper, A Treatise on the Law of Torts § 7, at 14 (1933)). In other words, while “foreseeable” refers to whether the harm was within the general danger created, “likely” within the context of section 344 refers to whether the actions of a third party actor were probable.
*793¶77 Foreseeability remains a necessary inquiry, certainly. I would adopt the majority’s foreseeability analysis while also requiring that the plaintiff show that the harm was likely. Mere foreseeability is insufficient — the plaintiff must also show that the harm was likely. Such a reading is consistent with public policy and the language and comments to section 344.
CONCLUSION
¶78 In light of the foregoing, I concur in the majority opinion’s answers to the three certified questions as follows:
¶79 (1) Yes, Washington adopted section 344 of the Restatement (Second) of Torts (1965), including comments d and f, as controlling law.
¶80 (2) No, proof of prior similar incidents is not required to determine the reasonable foreseeability of harm resulting from a third party’s criminal acts. I would hold, however, that facts establishing both a reasonable foreseeability and a likelihood of the harmful criminal acts of a third party are necessary for the inquiry as to whether a possessor has a duty to protect its invitees from the harm.
¶81 (3) We need not reach question three because proof of prior similar incidents is not required.
¶82 I concur.
Restatement section 344 comment f says, in relevant part, that the possessor “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 . . . .” (Emphasis added.)