S.I. v. Cutler

Fahrnbruch, J.,

concurring.

I concur with both the reasoning and the result in this case and wish to distinguish my position in this case from my position in Erichsen v. No-Frills Supermarkets, ante p. 238, 518 N.W.2d 116 (1994), in which I dissented.

Although the court majority reaches the same result in each case, the cases are factually dissimilar. In Erichsen, the plaintiff, a business invitee, was attacked in a parking lot which served several businesses, including the one which the plaintiff had patronized before her assault. The attack was apparently a random one by an individual who was completely unknown to the business owner. The plaintiff’s most serious injuries occurred when she attempted to retrieve her purse from the attacker’s automobile, became entangled in the seatbelt, and was dragged for a distance of some 1.6 miles.

I dissented in Erichsen because a random criminal attack is as foreseeable to a victim as to a business owner, the manner in which the plaintiff was injured was bizarre and utterly unforeseeable to a business owner, and there exists no practical way for a business owner to either warn or protect victims of such attacks in a parking lot. Furthermore, even though the majority in Erichsen was willing to impose a duty upon a business owner to either warn or protect customers, the court *746was unwilling or unable to say how a business owner might meet this duty and thus comply with the law.

I find the facts in the present case to be much more compelling for the imposition of a duty on the building owners to provide a safe environment for business invitees. Perhaps most significantly, S.I. was attacked by an individual who not only had been involved in attacks on other patrons of the building, but who had also been observed in the entrance to the building for at least 30 minutes prior to the assault on S.I. The Cutlers or their agent, the security guard, were aware of this, while S.I. apparently was not. It should have been entirely foreseeable to the Cutlers that an individual with a known history of violence on the premises would engage in further acts of violence. Thus, I would impose on the Cutlers a duty to protect a business invitee which I was unwilling to impose on No-Frills.