concurring and dissenting.
I agree with the majority in affirming the summary judgment granted in favor of CBL & Associates. I cannot agree with the disposition of the claim against American Multi Cinema, Inc., and I would affirm the trial court in its ruling on the motion to dismiss. There is no duty owed to business invitees such as that espoused by the majority.
*1100The rule articulated in the majority opinion may have a salutary effect upon the vernacular in the State of Wyoming. People sometimes complain of what now has become a common phrase of parting “Have a nice day.” From now on, owners of businesses in Wyoming will be instructing their employees to say to each customer who leaves the premises “Now, let’s be careful out there.” (I acknowledge the paraphrase from a popular television serial of recent years.)
It is disappointing that the majority is not present to the antithesis found in the Court’s opinion. The Court says with respect to CBL & Associates “ * * * [W]e find that if this court were to impose liability on a landlord for injuries sustained off of the landlord’s property, as in this case, it would be difficult to place any practical limitation upon such liability. Extending liability under the circumstances here upon a landlord stretches the legal theory of duty too far.” Yet the Court espouses a rule that imposes upon American Multi Cinema, Inc. a duty to warn its patrons of dangerous conditions off its premises.
Even the analysis of the leading case relied upon by the majority opinion is unacceptable. In discussing Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166 (1976), the majority says that it “was concerned with failure to warn of an off-premises risk.” My reading of that case demonstrates that it had nothing to do with premises liability or business invitees. It simply involved the application of a special duty with respect to the knowledge acquired by a therapist of the dangerous propensities of the patient. The circumstances of that case are as far removed from this case as Wamsutter is from New York City.
In addressing the duty owed to business visitor-invitees, the majority accurately quotes, from Dudley v. Montgomery Ward & Company, Wyo., 192 P.2d 617, 622 (1948), the concept that when one invites others to come upon his business premises, he has a duty to be reasonably sure that he is not inviting them into danger. The majority opinion then as to American Multi Cinema, Inc. espouses a rule that, with respect to business invitees, the proprietor of a business must warn them of danger which is remote from the place of business and over which the proprietor has no control. This quantum leap very much resembles the effort of Evil Knieval to jump the Snake River Gorge on his motorcycle. His effort failed, but he was saved by his parachute. As I suggest below, perhaps our astute trial judges will provide the parachute for our court in instances such as this.
In Galicich v. Oregon Short Line Railroad Company, 54 Wyo. 123, 87 P.2d 27 (1939), this court cited with approval Restatement of the Law Torts § 314 (1934). That legal concept now is found in Restatement (Second) Torts § 314 (1965) hereinafter cited as Restatement 2d:
“The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”
In Restatement 2d § 314, Comment d, it is said:
“The rule stated in this Section applies only where the peril in which the actor knows that the other is placed is not due to any active force which is under the actor’s control. If a force is within the actor’s control, his failure to control it is treated as though he were actively directing it and not as a breach of duty to take affirmative steps to prevent its continuance (see § 302, Comments a and c).”
I perceive that this is the rule which is precisely applicable to these circumstances, and consequently, the reliance upon the authorities dealing with business premises or the owner or occupier of land is of no efficacy in resolving this problem.
The court should recognize that it is adopting this philosophy found in the latter part of the following language from Restatement 2d § 314, Comment c:
“The result of the rule has been a series of older decisions to the effect that one human being, seeing a fellow man in dire *1101peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other drown. Such decisions have been condemned by legal writers as revolting to any moral sense, but thus far they remain the law. It appears inevitable that, sooner or later, such extreme cases of morally outrageous and indefensible conduct will arise that there will be further inroads upon the older rule.”
If this court is committed to structuring a duty because of moral outrage, the court should say exactly that. Perhaps it is not said because moral outrage is not a particularly sound premise upon which to adjust relationships between people. One of the manifestations of the genius of our legal system is its essential pragmatism. As this case demonstrates, rules which are developed out of moral outrage may not be essentially pragmatic.
The usual basis for the imposition of a duty is that performance of that duty will avoid harm to others. It makes little sense to structure a duty which cannot be a legal cause of harm to another. In Buckley v. Bell, Wyo., 703 P.2d 1089 (1985), the historical concept of intervening cause and the concept as articulated in Restatement 2d is discussed in detail. The facts, as articulated in the plaintiffs complaint, in this instance demonstrate that the doctrine of intervening cause should foreclose any recovery by the appellant. The trial court, in all likelihood, will have to direct a verdict for American Multi Cinema, Inc. An application of § 442, Restatement 2d, demonstrates clearly that the natural forces coupled with the conduct of traveling in such conditions result in superseding cause as a matter of law. The intervention of those forces did bring about harm different in kind than what otherwise might have resulted; clearly the operation of those forces and the consequences thereof appear after the event to be extraordinary rather than normal; the intervening forces did operate independently of any situation created by some act of negligence on the part of American Multi Cinema, Inc.; in part, they were attributable to a third person’s act or failure to act and would be wrongful, subjecting the third person to liability; and a comparison of degree of culpability reaches the same result. When the true cause of this unfortunate loss is considered in the context of Cox v. Vernieuw, Wyo., 604 P.2d 1353 (1980), there is additional reason to conclude that no negligence was committed by American Multi Cinema, Inc.
I am so suspect of the wisdom of inducing this appellant to believe that there may be a prospect for recovery because of the failure to warn which the majority structures as a duty in this case, that perhaps I have become hypercritical. I do not perceive any possibility of recovery, and structuring a duty simply to permit the case to go forward is extremely unfortunate. The only prospect of assistance to the appellant in this combination of circumstances is that in some way the defendant will be intimidated into settlement or may conclude that the costs of defending exceed the value for which the case may be settled. I do not think that represents progress in jurisprudence in the State of Wyoming. Consequently, even though moral outrage may be present, I would not depart from the well-established rule that the proprietor of a business owes to his invitees only the duty of protecting them from dangerous conditions on the premises. I cannot agree that there is a duty to warn about dangerous conditions which exist at places remote from and off the premises, particularly when those dangerous conditions arise out of natural forces.
The legislature may wish to correct this judicial legislation by adopting a measure similar to the statute which limits liability for voluntary assistance in certain instances. Section 1-1-120, W.S.1977 (Cum.Supp. 1987).