concurring:
I agree that the question of whether Acme was a “possessor” in the context of Restatement (Second) of Torts § 328E is a mixed question of law and fact. Additionally, I would find that the trial court misconstrued Section 328E. Judge Caesar determined that Acme was a possessor, “not with strict property concepts of control in mind, but rather, with a view to the facts of this case and tort concepts governing the duty one owes a business invitee.” (Caesar, J., Dissenting Opinion at 4-5).1 This analysis is fatally flawed. Thus, there are two reasons to affirm the grant of new trial. Not only was the question of possession one for the jury to decide, but the standard used by the trial judge to decide the issue was incorrect.
*196Under Restatement (Second) of Torts § 344 liability is clearly predicated upon one’s status as a possessor of land. Contrary to the trial court’s analysis {see Dissenting Opinion at 5), the economic benefit derived by a merchant, or a patron’s reason for being on the property, does not provide an independent basis for liability. Accord Leary v. Lawrence Sales Corp., 442 Pa. 389, 396, 275 A.2d 32, 35-36 (1971). It is only when possession is established that the business invitation and the purpose of the injured party’s presence on the property become relevant for purposes of determining liability under Section 344. Thus, duty does not establish possession; rather, possession establishes a duty. See Carswell v. SEPTA, 259 Pa.Super. 167, 173 n. 4, 393 A.2d 770, 773 n. 4 (1978).
“Possession,” in the context of Section 344, must be determined with reference to the applicable definition of a “possessor of land” in Section 328E. Again, contrary to the trial court’s analysis, Comment a to Section 328E does not support the proposition that property concepts are inapplicable. {See Dissenting Opinion at 8). Simply stated, the comment explains that occupation and control (physical possession), rather than title (the legal right to possession), determine possession under Section 328E. Thus, possession under Section 328E arises from occupation and control and not duty or title.
The incident giving rise to the instant case occurred on the property owned by Eastern Realty. Mr. Leichter, the deceased, was abducted as he returned to the car which he parked on Eastern Realty’s lot. Consequently, it is the degree of occupation and control exercised over Eastern’s parking lot by virtue of Acme’s easement which determines Acme’s liability under Section 344.
Professors Casner and Leach have defined easements as follows:
An easement is a nonpossessory interest in land. The possession of the land in which the easement exists is always in another. In other words, the owner of an easement has a right to use the land of another for a *197specified purpose, as distinguished from a right to possess that land.
Casner and Leach, Property, Ch. 32, § 8, at 1109-1110 (Little, Brown & Co. 1969) (footnote omitted). See also Restatement of Property § 450 (“An easement is an interest in land in the possession of another____”). Comment b to Section 450 states:
b. Nonpossessory interest. An easement is an interest in land in the possession of another. It is not, itself, a possessory interest. The owner of it, therefore, is not entitled to the protection which is given to those having possessory interests. The fact that the owner of an easement is not deemed to have a possessory interest in the land with respect to which it exists indicates a lesser degree of control of the land than is normally had by persons who do have possessory interests. Thus a person who has a way over the land has only such control of the land as is necessary to enable him to use his way and has no such control as to enable him to exclude others from making any use of the land which does not interfere with his.
(Emphasis added). The degree of control transferred by an easement varies with the terms of the easement and the manner in which the easement is exercised.
Although an easement is a nonpossessory interest, sufficient control may exist so as to give rise to liability as the possessor of the property under Sections 344 and 328E, supra. Thus, the trial court correctly stated, “[u]nder Pennsylvania law, the owner of an easement may be treated as a ‘possessor’ for purposes of liability. Cooper v. Reading, 392 Pa. 452, 140 A.2d 792 (1958).” (Dissenting Opinion, at 7). In Cooper, our Supreme Court reasoned:
The City completely controlled the land upon which the pool is located by the manner in which it exercised its easement. It must, therefore, be held to the duties of a ‘possessor of land’____
392 Pa. at 462, 140 A.2d at 796. (Emphasis added). However, because easements are by definition non-possessory *198interests, possession liability must be limited to those cases where the exercise of an easement results in significant control over the property by the easement holder. To hold otherwise would create a duty to control where no right to control exists.2
Consequently, I join in the majority’s decision to grant a new trial. In this new trial the parties will have the opportunity to present testimony and argument on the issue of whether Acme’s easement was exercised in a manner so as to constitute “possession” under Section 328E. Because an easement may be exercised in a manner so as to give rise to possession liability, I agree with the majority that Acme was not entitled to a directed verdict.
. Judge Caesar was the judge who presided at trial. After he denied Acme’s post verdict motions, the case was reviewed by an en banc panel of the Common Pleas Court. The panel reversed and granted a new trial. Judge Caesar sat on the en banc panel and filed a lengthy dissent to its decision. It is that dissenting opinion to which I refer throughout this opinion.
. The issue of whether merchants should be required to provide private security in high crime areas was not presented by this appeal. I note that the wisdom of such a policy has been questioned. See Williams v. Cunningham Drugs, 146 Mich.App. 23, 26-27, 379 N.W.2d 458, 459-60 (1985) (duty to provide reasonable care with respect to business invitees does not include duty to provide private security guards in high crime areas). I do not believe that the parameters of a merchant’s duty of care toward business invitees have been clearly set in this Commonwealth, and I reserve comment on the issue until the issue is clearly presented and properly briefed.