dissenting:
I agree with the majority opinion insofar as it recognizes that duty and foreseeability are not synonymous, and that the inquiry into the existence of a duty in a given factual situation is one for the judge, and not the jury, to make. I cannot accept, however, the majority’s unwillingness to recognize the relevance of foreseeability regarding the duty question. Such unwillingness is contrary to law and, in my view, produces an erroneous result in the instant case.
As noted by the majority, the existence of a legal duty “is not to be bottomed on the factor of foreseeability alone.” (Cunis v. Brennan (1974), 56 Ill. 2d 372, 375, 308 N.E.2d 617.) It does not follow, however, that considerations of foreseeability are not germane to the duty question, and the majority’s conclusion that foreseeability of harm “does not enter into the process” of the duty inquiry is simply incorrect. Rather, foreseeability is one factor to be considered, along with “[t]he likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant.” (Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231.) While the weight accorded to each of these factors may vary in different factual settings, I believe that the nature of duty itself, as that term has developed in our jurisprudence, necessarily incorporates some consideration of the foreseeability element. A duty is an obligation imposed by the law upon a person which requires the person to conform to a certain standard of conduct for the protection of another against an unreasonable risk. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 554, 328 N.E.2d 538.) In assessing whether to impose that obligation on a defendant, it seems to me that we must determine whether the events alleged in the complaint are among those which the defendant might reasonably have anticipated would occur. Upon making that determination, we are required to apply to the pleaded facts the remaining tests articulated by our supreme court: the likelihood of injury, the magnitude of the burden of guarding against that injury, and the consequences of placing that burden on the defendant. While each of these determinations must then be weighed and considered in making the final decision as to whether a duty exists, the importance of the foreseeability factor cannot be ignored. However great the likelihood of injury or however small the burden on a defendant to prevent it, a defendant could not properly be found to owe a duty to guard against an accident or event which neither the defendant nor anyone else could possibly have foreseen. Conversely, a defendant may well owe a duty in a situation where the event leading to litigation is readily foreseeable, even though the burden of guarding against injury is relatively great. In any situation, consideration of foreseeability is not only important; it is, as observed by a former justice of our supreme court, “the touchstone of the quality of an act as negligence, the most important test in determining duty” (Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 364, 367 N.E.2d 1250 (Dooley, J., concurring)).
Finally, I believe that proper application of these tests of duty to the facts of this case compels the conclusion that plaintiff’s complaint states a cause of action. As conceded by the majority, it is readily foreseeable that those backing from defendants’ tavern into the highway may be involved in accidents. The likelihood of injury from such collisions is undeniably great, and it is a matter of equally common knowledge that injuries resulting from an automobile crash may be of severe magnitude. The burden of guarding against the injury is not great, as a simple warning sign or alteration of the manner in which customers’ vehicles are allowed to be parked could avoid the problem. The fact that the injury did not occur on defendants’ land is not, in my view, significant, given the public nature of defendants’ business, the location of the parking lot near the curve on the highway, the occurrence of previous accidents at the location in question, and the obvious foreseeability of the accident here. It has been said that “[ejvery person owes to all others a duty to exercise ordinary care to guard against injury which may naturally flow as a reasonably probable and foreseeable consequence of his act” (Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 622, 126 N.E.2d 836), and I cannot accept the conclusion that such duty does not extend to these defendants under the facts pleaded here.