concurring in part and dissenting in part.
Although I concur in reversal of the judgment, I dissent from the remand for new trial.
While the majority has acknowledged the rule in Iverson v. Solsbery, 641 P.2d 314 (Colo.App.1982) as controlling, I believe it has ignored the balancing test required by that rule in holding that Taco Bell had a duty, as a matter of law, to hire armed guards to protect its patrons from injury. In justification of its holding, the majority states that:
“Where injury can be foreseen, there is a duty to act so as to avoid it.” (citations omitted).
“Whether the defendant owed a duty to the class in which the plaintiff found himself is a question of law for the court based upon the foreseeable, appreciable risk of harm. Whether the defendant has in fact breached that duty is a question for the jury.” (citations omitted).
I have no quarrel with this statement as a general principle, but I object to its being used as the sole basis for the imposition of the specific legal requirement that Taco Bell be required to hire armed guards. In my view, Iverson, supra, requires that, in decreeing the specific steps required of a person to meet a duty of care, the court must consider the consequences and effect that imposing such specific means of fulfilling the duty would have upon society and the individual involved. These considerations cannot, because of our system of precedential law, be limited solely .to the case at bar; rather, they are policy decisions with far reaching implications.
Shorn of its legalistic jargon the issue we are deciding here may be stated as follows: Should a person, under threat of becoming financially liable, be required to equip himself, or his employee with a deadly weapon and, by necessary implication be authorized to use that weapon to injure or, if necessary, to kill to protect the patrons of his establishment from the consequences of a criminal act of unknown third persons? I think not.
First, I question the efficacy of such a requirement. While the presence of armed guards may deter the entrance of armed robbers, it may likewise precipitate a confrontation involving the discharge of weapons which may, in itself, pose an even greater danger to innocent patrons.
Secondly, insofar as courts, by decision, define the duties of one citizen toward another, they determine the public policy of the society of whose government they are a part. Specifically, a rule such as the one adopted today ignores the fact that in all organized societies the responsibility for preventing crime, as well as the apprehension and punishment of criminals, is one of the prime functions of government. While the existence of “high crime” areas may indicate a lack of government effectiveness in protecting its citizens, it is not a justification for encouraging, much less requiring, private citizens to usurp this governmental function. Although an individual, or even a group of citizens, may voluntarily adopt measures supplementing the government’s efforts in protecting their own property or lives from the activities of criminals, a society which deliberately attempts to shift this responsibility to its individual citizens blatantly denies one of the essential justifications for the existence of government.
How can we then, as arbiters of the rights and the responsibilities of citizens toward each other, engage in the hypocrisy *1376of imposing a legal duty on one citizen to take up arms in protecting others from the criminal acts of unknown persons, and indeed, make him liable in damages for injuries that may be suffered by third parties as a result of his failure to do so? Even government, for which this is a prime duty, has never accepted the obligation to recompense those injured because of its failure to prevent crime.
In my opinion, there is a world of difference between requiring a business proprietor to maintain the premises over which he has control free of defects or conditions, such as a slippery floor, which might cause injury to his patrons as in Safeway Stores Inc. v. Smith, (cited by the majority), and requiring him to defend, with deadly weapons if necessary, his patrons from the results of acts perpetrated by unknown persons who intrude, uninvited, for the purpose of committing a crime. Even the duty of a bar owner to attempt to prevent altercations between unruly patrons, as in the case of Kerby v. Flamingo Club, (cited by the majority), falls far short of the rule announced today. In all such cases where a duty has been imposed, as a matter of law, the person charged had virtually absolute control over the dangerous condition and the ability to diminish or eliminate it. Here, Taco Bell not only had no control over the danger, but was itself the intended victim of the criminal act.
Furthermore, there is yet another distinction between these cases and the one at bar which has an even more frightening significance. In all of the prior similar cases the specific duty imposed unquestionably would have alleviated or reduced the risk of injury. Here, in contrast, the duty imposed by the majority specifically mandates the introduction of deadly weapons onto defendant's premises, and, by necessary implication, their use to kill or wound. I cannot believe that a duty which escalates the potential for deadly injury has any place in the law.
As sad as it may be that plaintiff, an innocent bystander to a crime was injured does not, in my opinion, justify the imposition of a legal duty on the restaurant to recompense him.
For these reasons I would hold that Taco Bell had no duty, as a matter of law, to hire armed guards to protect its customers from the consequences of acts of armed robbers who may invade its premises. Absent such duty, the motion for directed verdict should have been granted. Thus, although I, like ,the majority, would reverse the judgment, I would remand for entry of a judgment .dismissing plaintiff's complaint.