specially concurring.
The night was dark, the rains came; some say a one-in-a-hundred-years flood it was to have been. Within the theater, exposed only to make believe of the silver flicks, the audience was unwarned of the anger of nature outside displayed.
Who knew? Shopping center management knew, and told shop owners. Theater management knew, but perforce told not one among its paying patrons who otherwise were not to be forewarned. Then as the film expired in make believe, by the side door with reality they were extruded as an audience endangered by ignorance contributed to by missing information designedly withheld.
I specially concur, to recognize this case as what it is: a dismissal on the pleading presented here for appellate review, as to be clearly definable in well-established rules of duty and negligence, and not adequately discernible in moralistic characterization, whether to be applied pro or con. The subject should be tailored in common sense and duty — whether a theater owner should tell his patrons that a one-in-a-hundred-years flood had occurred outside before they exited into a dark parking lot for travel upon roadways, unknowing of their serious risk for the homebound journey.
One would think that with warning afforded, opportunity to at least listen to the car radio, or telephone to their homes, the life that was lost in a flooded road nearby might have been saved. I see this as a subject for jury review. The issue was not off-premises liability for the theater. I perceive a duty of host to business invitee to communicate his knowledge of facts unknown to the patron of unusual and unexpected exit-time danger. The home of knowledge and needed communication was in the theater, and it was there that the tort occurred, if it did. It simply does not matter whether the clear and obvious danger inculcated in this duty to advise arises from a gunfight adjacent to the north door, a tornado about to arrive, or, as here, flooded conditions on shopping center access roadways.
Whether the plaintiff would have proceeded differently if he had been told what the shopping center and theater management knew is not here disclosed. The child later to drown in the flooded road was denied avoidance opportunity which would have existed if available information had not been withheld.
Assumptive in the character of the present case disposition which does not afford the same breadth and significance of information later to be disclosed at trial, I believe a jury should consider whether the zone of duty responsibilities of a host to a business invitee, under whatever the particular circumstances may have been as existent here, when life-protecting information was not otherwise available to the invitee, could be denied without legal responsibility. The issue may be incompletely characterized as a duty to warn, rather than, as I perceive it, a societal duty as a reasonable care obligation of notification to your guest if you know and he does not what may constitute a recognizable departure danger. This is the “tell them what you know” care standard.
*1106“A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Prosser and Keeton, Law of Torts at 356 (1984).
I do not enjoy the sophistication of differentiating a gunfight or the flood on-premises or off-premises as creating the duty to furnish information to guests when they will, upon departure, be exposed to the danger known only to the host.
A special relationship sufficient to give rise to the duty to act was clearly present in that theater at that time as the result of that flood. Restatement (Second) of Torts § 315; Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976); and compare generally Cabrera, Negligence Liability of Landowners and Occupiers for the Criminal Conduct of Another: On a Clear Day in California One Can Foresee Forever, 23 Cal.W.L.Rev. 165 (1987), considering the somewhat different subject of criminality injury in premise liability.
I agree with this court by concurrence in the opinion, that a jury should make the negligence and duty violation assessment rather than decision by erratically employed rules of law unjustified in differentiation to the real world of danger exposure and needed protection. Tader v. Tader, Wyo., 737 P.2d 1065 (1987). Consequently, I concur in reversal of the judgment as granted to American Multi-Cinema, Inc., in order to invite jury construction by their composite good judgment and common sense. Analysis of lack of or exercised due care does not pose an insurmountable jury responsibility.