dissenting.
I must respectfully dissent. I fear that the majority has created a duty, with a potentially limitless scope, on the part of landowners to protect their invitees against sudden and intentional criminal acts of third parties. I find the majority opinion objectionable for two reasons: (1) it gives no persuasive reason for creating such a duty and (2) plaintiff has not alleged sufficient facts to show that a criminal assault was reasonably foreseeable by the defendant.
The majority attempts to predicate the recognition of the duty on the foreseeability of criminal activity. This, I believe, is a fundamental error. As stated by Chief Judge Reilly in Cook v. Safeway Stores, Inc., 354 A. 2d 507, 508-09 (D.C. 1976):
*644“Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide ‘police’ protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arms of the owner. And since hijacking and attack upon occupants of motor vehicles are also foreseeable, it would be the duty of every motorist to provide armed protection for his passengers and the property of others. Of course, none of this is at all palatable.
“The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness.” . . . [Goldberg v. Housing Authority of City of Newark, 38 N.J. 578, 583, 186 A. 2d 291, 293 (1962) (Emphasis in original).]
The question this Court should first address is whether it is fair to impose upon a retail merchant a duty to protect its invitees from sudden and intentional criminal acts of third parties. Such an inquiry should take into account the relationship of the parties, the nature of the risk, and the public interest in the proposed solution. As stated by the New Jersey Supreme Court in a case involving the duty of a landowner to provide police protection for tenants of a housing project:
Fairness ordinarily requires that a man be able to ascertain in advance of a jury’s verdict whether the duty is his and whether he has performed it. To which multi-family houses would the duty apply? Would it depend upon the number of tenancies? If so, can we now fix the number? And if the duty springs from a combination of tenancies and prior unlawful events, what kind of offenses will suffice, and in what number, and will crimes next door or around the corner or-in the neighborhood, raise the obligation? And if a prescient owner concludes the duty is his, what measures will discharge it? It is an easy matter to know whether a stairway is defective and what repairs will put it in order. Again, it is fairly simple to decide how many ushers or guards suffice at a skating rink or a railroad platform to deal with the crush of a crowd and the risks of unintentional injury which the nature of the business creates, but how can one know *645what measures will protect against the thug, the narcotic addict, the degenerate, the psychopath and the psychotic? Must the owner prevent all crime? We doubt that any police force in the friendliest community has achieved that end. How then can the owner know what is enough to protect the tenants in their persons and property? . . . We assume that advocates of liability do not intend an absolute obligation to prevent all crime, but rather have in mind some unarticulated level of effectiveness short of that goal. Whatever may be that degree of safety, is there any standard of performance to which the owner may look for guidance? We know of none, and the record does not suggest one, and we are at a loss to understand what standard the jurors here employed. The charge to the jury was unrevealing; it simply left to 12 men and women the task of deciding whether a prudent owner would have done more, and whether, if defendant had, the robbers here would likely have been deterred. . . .
Goldberg v. Housing Authority of Newark, 38 N.J. 578, 589-90, 186 A. 2d 291, 297 (1962); accord, Ellis v. Safeway Stores, Inc., 410 A. 2d 1381 (D.C. 1979); Cook v. Safeway Stores, Inc., 354 A. 2d 507 (D.C. 1976); Davis v. Allied Supermarkets, Inc., 547 P. 2d 963 (Okla. 1976); Cornpropst v. Sloan, 528 S.W. 2d 188 (Tenn. 1975).
Another consideration which should be weighed in the balance is whether the owner has a right to develop, or should be allowed to develop, a private police force to patrol its parking lots. See Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A. 2d 291. Although the right to maintain a security force is unquestioned, security forces operate for the benefit of the merchant to protect him from theft and achieve their goal primarily through their conspicuousness. If protection of patrons becomes the goal of private security forces, then the security personnel will become members of a private police force who, like their public counterparts, will require special training and special skills. They must be trained to detect potential criminals and to do whatever is required to prevent assaults, if such assaults are foreseeable. In my opinion, the creation of myriad private police forces and the shift of law enforcement duties to the private sector amounts to taking the law into one’s own hands and contravenes public policy.
Even if I were to agree that a limited duty to protect its patrons on the part of a merchant could exist I cannot agree that *646it arises in this case. A duty to protect arises only in the event a criminal assault is foreseeable. During the fifteen months prior to the assault on plaintiff, a total of approximately thirty-seven criminal incidents occurring in the parking lot had been reported to defendant. Of these, twenty-seven involved larceny or damage to property; only six or seven involved assaults on a person; the remainder involved reckless driving, public drunkenness and indecent exposure.
From these statistics, I would agree that while larceny of personal property was foreseeable, a physical assault was not. The incidence of physical assault was less than one every two months. If a duty to protect arises in this case because of the foreseeability of certain criminal activity, it must be a duty to protect against larceny, the only type of criminal activity which was even arguably foreseeable.
The cases relied on by the majority premise the existence of the duty to protect against personal assaults on patrons on the foreseeability of criminal assaults. In those cases, criminal assaults were found to be foreseeable only because of the high incidence of criminal assaults in the past. In short, the foreseeability was only as broad as the type of criminal activity which had occurred in the past. These courts did not state, or even imply, that a history of criminal assaults made other crimes, such as larceny, foreseeable. Here, the majority has premised the foreseeability of criminal assaults upon the history of larceny in the mall parking lot. The cases the majority has cited in support of its reasoning provide no support for making the scope of foreseeability broader than the scope of past experience.
Additionally, I would argue that the Restatement (Second) of Torts supports my argument that criminal assaults are foreseeable only if the same type of criminal activity has occurred in the past at sufficiently high rates. Section 344 of the Restatement imposes liability for “physical harm" (emphasis added) when the possessor of the land should, in the exercise of reasonable care, “discover that such acts are being done or are likely to be done.” (Emphasis added.) The duty to protect, as explained by comment f, arises whenever past experience indicates “that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor.” (Emphasis *647added.) These statements indicate that before the duty to protect arises, an endangerment of the patrons’ safety must be foreseeable due to past experience. If foreseeability is limited to the types of criminal activity which have frequently occurred, then a high incidence of larceny cannot make a criminal assault foreseeable.
Finally, I would dismiss plaintiff’s complaint because it fails to allege that the incidence of criminal activity in defendant’s parking lot was any higher than the crime rate for the surrounding neighborhood. It seems to me that if the parking lot was just as safe, or as dangerous, as the surrounding area, no duty on the part of the owner should arise because the foreseeability of criminal activity is equally obvious to the owner or the patron. It must be remembered that to fulfill the duty to protect, the defendant must either correct the condition or warn of it. When the incidence of criminal activity within the borders of a shopping center parking lot is the same as without, the patron is simply taking a known and accepted risk in venturing out. Additionally, if the crime rates are substantially the same, what legal theory or social policy compels the owner to make his premises safer? What right does a patron have to demand that the store premises be safer than the general area in which it is situated? And how safe is safe enough?
Although I recognize the commendability of promoting safety in quasi-public places such as shopping centers, I remain resolute that the route chosen by the majority is not the appropriate means. For the above reasons, I vote to affirm the Court of Appeals and uphold dismissal of plaintiff’s complaint for failure to state a claim for which relief can be granted.
Chief Justice BRANCH concurs in this dissenting opinion.