dissenting. Because I disagree with both the conclusions that 2 Restatement of the Law 2d, Torts (1965), Section 344, is inapplicable to the instant action and that Big Bear owed no duty to protect Mrs. Falkenberg from the vicious attack she suffered, I respectfully dissent from the majority’s opinion.
As set forth in the majority opinion, Section 344 imposes liability on business possessors of land for the physical harm inflicted by third parties on business invitees when the possessor fails 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.” I believe, as appellant asserts, that a fair reading of Holdshoe v. Whinery (1968), 14 Ohio St.2d 134, 43 O.O.2d 240, 237 N.E.2d 127, and Howard v. Rogers (1969), 19 Ohio St.2d 42, 48 O.O.2d 52, 249 N.E.2d 804, reveals that Section 344 accurately reflects the law of Ohio. To conclude otherwise would be to torture the obvious import of those decisions. Therefore, I would adopt Section 344 in its entirety and elevate it to syllabus law.
I agree with the majority’s determination that Section 344 and previous decisions of this court indicate that one must be in possession and control of the premises in order to have a duty to keep the premises safe. Wills v. Frank Hoover Supply (1986), 26 Ohio St.3d 186, 26 OBR 160, 497 N.E.2d 1118. The lower courts, in granting summary judgment in favor of Big Bear, concluded as a matter of law that Big Bear did not “occupy or control” the sidewalk on the west side of the store where Falkenberg was attacked. I believe that this conclusion was premature, and that the determination of whether Big Bear had exercised possessory rights over the sidewalk was a question for the trier of fact to resolve.
Construing the evidence most strongly in favor of appellant, in accordance with Civ.R. 56, I conclude that reasonable minds could differ on the issue of whether *136Big Bear had assumed some control over the sidewalk surrounding its store. The sidewalk on the west side of the building is routinely used by patrons of Big Bear both to enter and to exit the store. There are several parking spaces immediately contiguous to the west side of the store that are frequently used by Big Bear customers in general, and senior citizen customers in particular. Big Bear’s baggers deliver groceries to the west parking area by using the sidewalk where the instant attack occurred. Further, Big Bear, under the terms of the lease, is permitted to exercise dominion over the sidewalk surrounding the store for use in sidewalk sales. Based upon the foregoing, I believe that the record indicates that the issue of who controlled the premises on which Falkenberg was attacked should have been submitted to the trier of fact for consideration.
In addition to the question of control, this case raises the issue of whether Big Bear owed a duty to Falkenberg to protect her from the criminal attack she suffered. The duty imposed upon a business owner to protect business invitees from the criminal acts of third parties has been defined in several contexts. In Howard, this court determined that “[w]here an occupier of premises for business purposes does not, and could not in the exercise of ordinary care, know of a danger which causes injury to his business invitee, he is not liable therefor.” 19 Ohio St.2d 42, 48 O.O.2d 52, 249 N.E.2d 804, paragraph three of the syllabus.
Comment/to Section 344 states: “Since 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. * * * ”
Furthermore, our decision in Fed. Steel & Wire Corp. v. Ruhlin Constr. Co. (1989), 45 Ohio St.3d 171, 543 N.E.2d 769, provides additional insight into liability for third-party criminal acts.. In holding a construction company responsible for vandalism which occurred on a construction site, due to the company’s knowledge of such activities, this court stated:
“If a person exercises control over real or personal property and such person is aware that the property is subject to repeated third-party vandalism, causing injury to or affecting parties off the controller’s premises, then a special duty may arise, to those parties whose injuries are reasonably foreseeable, to take adequate measures under the circumstances to prevent future vandalism.” Id. at syllabus.
The record in the case sub judice indicates that at least nine prior pursesnatchings had occurred at Graceland in the four-year period leading up to the attack on Falkenberg. Five of these incidents occurred at the precise location where Falkenberg was attacked. Of those five attacks, four occurred within a *137six-month period during the same year in which Falkenberg was attacked — 1991. Two of these attacks occurred within one week of the attack on Falkenberg. Finally, at least three of the five attacks which occurred on the west side of the Big Bear store were reported to Big Bear prior to the attack on Falkenberg.
Based on the history of reported criminal activity, Big Bear clearly had knowledge of the fact that patrons who used the parking lot and the sidewalk on the west side of the store were at risk of being attacked. Yet Big Bear chose to take no action to protect its business invitees from the criminal activity it knew had occurred and could foreseeably occur again. The store failed to pursue even simple safety measures such as posting warning signs or employing security personnel. Nor did the store notify Graceland that these attacks had occurred. By choosing to do nothing, Big Bear ignored its obligation as a business proprietor to protect its business invitees from the foreseeable criminal acts of third parties.
For all of the foregoing reasons, I would adopt Section 344 of the Restatement in its entirety, reverse the judgment of the court of appeals, and remand this cause to the trial court for further proceedings.
Douglas and F.E. Sweeney, JJ., concur in the foregoing dissenting opinion.