dissenting:
I respectfully dissent. In holding that the jury should decide whether Taco Bell breached its duty to its patrons by failing to provide security guards, tbe majority establishes a dangerous precedent. I do not quarrel with the majority’s conclusion that an armed robbery at the Taco Bell was foreseeable. Nor do I dispute that a store-owner has a duty to take reasonable measures to protect its customers from the consequences of foreseeable criminal acts on the part of unknown third parties. As a matter of policy, however, I believe that “reasonable measures” falls short of requiring armed guards.1
While it may have been foreseeable that an armed robbery would occur at the Taco Bell, it does not follow that the shooting of a customer was foreseeable, Nigido v. National Bank of Baltimore, 264 Md. 702, 704, 288 A.2d 127, 128 (1972), or that Taco Bell had a duty to provide police protection.
Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide “police” protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arms of the owners. And since hijacking and attack upon occupants of motor vehicles are also foreseeable, it would be the duty of every motorist to provide armed protection for his passengers and the property of others. Of course, none of this is at all palatable.
Goldberg, 38 N.J. at 583, 186 A.2d at 293 (1962); see also Cook v. Safeway Stores, 354 A.2d 507 (D.C.1976); Radloff v. National Food Stores, 20 Wis.2d 224, 121 N.W.2d 865 (1963). These courts agree that given the unpredictability of criminal behavior it is unfair to impose a duty to provide armed guards upon business owners because businesses would not know whether the duty is theirs or whether they have performed it.
“The question of whether a defendant owes a plaintiff a duty to act to avoid injury is a question of law to be determined by the court.” Smith v. City and County *52of Denver, 726 P.2d 1125, 1127 (Colo.1986). Many factors enter into the determination of whether a duty is owed under the circumstances of a particular case. The factors depend upon the facts and include, for example, “the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the actor.” Smith, 726 P.2d at 1127. The majority acknowledges that the question of whether to impose a duty in a given case is “essentially one of fairness under contemporary standards,” At 46, but then relies almost exclusively upon foreseeability in arriving at its conclusion, At 46-49.
The risk associated with the operation of the Taco Bell restaurant is that customers might be injured during armed robberies. According to the plaintiff’s expert testimony, people are usually not injured or shot in armed robberies. Two police officers stated that the best way to prevent injury during a robbery is to be totally cooperative, not to resist or make sudden moves, and to relinquish the money. An employee of Taco Bell testified that employees were instructed so as to avoid injury during robberies. The wisdom of this instruction was reflected by the fact that no customer had previously been injured during a robbery. While an armed robbery may have been foreseeable, there was only a small likelihood of injury resulting to a customer.
Requiring fast food restaurants to hire armed guards to protect patrons imposes a substantial burden upon proprietors. The problems inherent in requiring armed guards were illustrated in Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 590-91, 186 A.2d 291, 297 (1962):
Not only would there be uncertainty as to when the duty to furnish police protection arises and as to what measures will discharge the duty, there would also be exceptional uncertainty with respect to the issue of causation. This is so because of the extraordinary speculation inherent in the subject of deterrence of men bent upon criminal ventures. It would be quite a guessing game to determine whether some unknown thug of unknowable character and mentality would have been deterred if the owner had furnished some or some additional policemen. It must be remembered that police protection does not, and cannot, provide assurance against all criminal attacks, and so the topic presupposes that inevitably crimes will be committed notwithstanding the sufficiency of the force. Hence the question of proximate cause is bound to be of exceptional difficulty.
(Emphasis in original).
Expert testimony at trial supports these observations. Three police officers, testifying for the plaintiff, stated that armed security guards do not prevent all armed robberies. The officers agreed that knowledge of a robber and his mental state is required to prevent a particular robbery, but noted that robberies occur randomly and are unpredictable. The police officers could not say with certainty that the presence of armed guards would have prevented this particular robbery.
Fairness ordinarily requires that a man be able to ascertain in advance of a jury verdict whether the duty is his and whether he has performed it.... [H]ow can one know what measures will protect against the thug, the narcotic addict, the degenerate, the psychopath and the psychotic? Must the owner prevent all crimes?
Goldberg, 38 N.J. 578, 589-90, 196 A.2d 291, 297 (1962) (emphasis in original). Imposing a burden upon business owners, which is a function of government law enforcement agencies, creates conflicting responsibilities for the enforcement of the criminal laws, and may expose Taco Bell’s patrons to greater dangers. Whatever degree of effectiveness may be intended, the majority fails to provide a standard of performance to which the business owner can look for guidance before the crime is committed and by which conduct can be measured after the crime occurs. Pietila v. Congdon, 362 N.W.2d 328, 333 (Minn.1985).
*53Imposing liability upon business owners for failing to provide armed guards to prevent criminal acts of third parties is a quick-fix solution to a complicated social problem. It is also a solution that creates hazards. The record discloses that people are seldom shot or injured in armed robberies. However, the presence of firearms during an armed robbery increases the likelihood of injury. One of the police officers testified that he was aware of instances where police officers have injured customers in shootings which took place during robberies.
The extraordinary speculation inherent in the subject of deterrence of crime is illustrated by Harris v. Pizza Hut of Louisiana, 455 So.2d 1364 (La.1984). In Harris, the defendant restaurant, located in a high-crime neighborhood, employed an off-duty New Orleans police officer as a security guard. On the evening of March 17, 1979, the armed and uniformed officer arrived at the Pizza Hut, fixed himself dinner, and seated himself at a table where he dined and talked with a customer. While the officer was looking down to adjust his belt, two armed robbers entered the restaurant. As the officer reached for his revolver, one of the robbers pointed a sawed-off shotgun at him, saying “don’t move, pig.” The officer moved to his right. The robber fired the shotgun, wounding the officer, injuring one customer, and killing another. At trial, the jury found that the officer was negligent, and that his negligence was the cause-in-fact of the injury. The jury awarded the plaintiffs $510,000. The Louisiana Supreme Court concluded:
Once employed, the security guard was under a duty to discharge his obligations in a reasonable and prudent manner, and especially not to contribute by his act or omission to the escalation of violence during an armed robbery which resulted in persons being wounded and killed.
Harris, 455 So.2d at 1372 (La.1984). Harris vividly illustrates a potential consequence of placing a duty to provide armed guards upon business proprietors. The security guard in Harris was an off-duty police officer. Yet despite his experience and professional training, he chose to have dinner and socialize with customers behind a partition. When the robbers entered with the sawed-off shotgun, he was unprepared and his movements provoked gunfire by the robbers. In attempting to fulfill its duty to the customers, Pizza Hut increased the likelihood of injury resulting from the armed confrontation.
In Nigido v. National Bank of Baltimore, 264 Md. 702, 288 A.2d 127 (1972), the court stated:
It has occurred to us that not providing armed guards might very well reflect the exercise of sound judgment rather than negligence. If it is the rationale of the bank that armed guards might provide gun play and that it is better to lose cash than lives, then the total absence of guards would seem to be justified.
Since the plaintiffs expert witnesses testified that guns increase the likelihood of injury, that no customer had previously been injured during robberies at the Taco Bell,2 and that Taco Bell employees were instructed to cooperate with robbers so as to avoid injury, it is not clear that armed guards would have prevented the plaintiff’s injury. While the evidence at trial indicated that the presence of armed guards serves as a deterrent to crime, this benefit is, to an extent, offset by the fact that additional firearms increase the likelihood of injury resulting from confrontation.
I also question the propriety of obligating a restaurant owner to maintain a private police force to patrol its premises. Crime is a fact of modern life. Each day residents of urban areas risk falling prey to thieves, muggers, and robbers. The existence of this risk, however, does not mean that private enterprises are obligated to provide armed guards to insure the safety of persons invited to do business with them. Cook, 354 A.2d at 507 (common law *54of negligence does not impose an obligation on businesses to provide armed guards to protect business invitees); Rosensteil v. Lisdas, 253 Or. 625, 630, 456 P.2d 61, 63 (1969) (it is not the duty of restaurant owners to risk their lives or to employ others to risk theirs to protect customers); see also Johnston v. Harris, 387 Mich. 569, 577, 198 N.W.2d 409, 412 (1972) (Brennan, J. dissenting) (“the intrusion of private business into the business of public safety has been one of the most unfortunate phenomena of the 1960’s and 1970’s”); Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291 (1962) (police function is highly specialized, involving skills and training that only government can provide).
In my view, the creation of private police forces contravenes public policy by shifting the government’s law enforcement duty to the private sector. Private security guards frequently do not have the same level of training or expertise as police officers. Yet, unlike the government which is not liable for the negligent acts of police officers,3 business proprietors who employ security guards risk civil liability for the negligent acts of these armed servants. Business owners are thereby forced to act as insurers of the safety of their patrons. If they conscientiously decide not to hire armed guards, they risk liability; if they hire qualified guards who make a mistake which results in injury to a customer, they face liability.
Accordingly, I dissent.
I am authorized to say that Justice ROVIRA and Justice VOLLACK join in this dissent.
. The majority applies § 344 and comment f. I disagree and and prefer the reasoning of the Tennessee Supreme Court when it declared that “it is a mistake to equate the duty of shopkeepers with respect to criminal acts with the duty of shopkeepers with respect to careless acts. Section 344 of the Restatement of Torts (Second) places both acts in exactly the same category in comment f.” Cornpropst v. Sloan, 528 S.W.2d 188, 197 (Tenn.1975); see also Ortell v. Spencer Companies, 477 So.2d 299 (Ala.1985); Costillo v. Sears Roebuck & Co., 663 S.W.2d 60 (Tex.Ct.App.1983). In my view, comment f establishes a vague duty which is susceptible to an overly broad application.
. On two occasions, however, employees were struck by armed robbers. On September 2, 1977, the manager was hit in the head with a sawed off shotgun. On September 1, 1978, another employee was slapped three times. The record does not indicate whether either of these employees sustained injuries.
. Recently, some courts have imposed liability on municipalities for the negligent failure of the police to prevent a crime. See, e.g., Irwin v. Town of Ware, 329 Mass. 745, 467 N.E.2d 1292 (1984); Huhn v. Dixie Ins. Co., 453 So.2d 70 (FIa.Dist.Ct.App.1984). But see Note, Police Liability for Negligent Failure to Prevent Crime, 94 Harv.L.Rev. 821, 822 (1981) (prevailing view remains no liability).