The majority correctly concludes that QuikTrip Corporation owed a duty of reasonable care to Margaret Richardson. The majority reaches the right result, but it does so on a “shotgun” analysis, calling it a “totality of the circumstances approach,” that is simultaneously too narrow and too broad. I write separately to identify the precise reason for my concurrence.
Because QuikTrip Corporation had “thrown open” its restrooms for the public’s use, Richardson was QuikTrip’s invitee when she entered the restroom on May 14, 1994. Carter v. Kinney, 896 S.W.2d 926, 928-29 (Mo. banc 1995). Having invited Richardson to use its restroom, Quik-Trip was obligated to use reasonable care to protect her from dangers, id. at 928, but it was not obligated to protect her from dangers of every kind. Its obligation was to guard her only from those dangers that arose from hidden pitfalls and dangers not open and glaring, Fisher v. Northmoor United Methodist Church, 679 S.W.2d 305, 306 (Mo.App.1984), and from dangers arising from special circumstances. Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo. banc 1988).
Because, in the ordinary course of matters, a business owner has no duty to protect his invitees from unknown third persons’ criminal attacks, id. at 61, Richardson was obligated to establish an exception to this rule to make a submissible case against QuikTrip. “[B]usiness owners may be under a duty to protect their invitees from the criminal attacks of unknown third persons depending upon the facts and circumstances of a given case.” Id. at 62
Richardson averred “special circumstances” in her petition. She alleged “that [QuikTrip] knew or should have known that the lock to [QuikTrip’s] women’s restroom was disabled thus creating a dangerous condition that directly caused [Richardson’s] injury[.]”
That the lock on the women’s restroom door was disabled did not alone create a special circumstance. That the restroom door could not be locked was not a hidden defect or hidden pitfall. Not only was it open and obvious, Richardson acknowledged in her deposition testimony that she was aware that the lock on the women’s restroom did not work, yet she decided to use the restroom anyway.
QuikTrip may have created the pitfall by disabling the lock, but it was a pitfall of which Richardson was aware, considered, and decided to chance. Richardson indeed appreciated the situation as a peril- — as would any reasonable person employing all *68of her faculties. Simple fairness would dictate that QuikTrip should not be liable on this ground. The law demands that a property owner act only in the case of hidden traps that are not obvious to its invitees. Workes v. Embassy Food Enterprises, Inc., 592 S.W.2d 864, 867-68 (Mo.App.1979).1
The majority fails to make this distinction. It does not recognize that an invitee has a responsibility to use his or her faculties to avoid open and obvious traps and pitfalls. Its opinion suggests that it would be willing to conclude that QuikTrip had a duty to put a lock on the bathroom door even had QuikTrip not experienced a problem in the restroom. The majority’s focus in this regard is too narrow.
But I concur in result because of the presence of a countervailing factor. Quik-Trip had experienced a significant problem with criminal behavior in its restrooms. This problem had caused it to install locks on its restrooms doors to thwart this criminal behavior. QuikTrip should have realized that its invitees would be unaware of this problem and would be unable to factor the matter into their decision as to whether to use a restroom whose door could not be locked. This problem with criminal behavior in the restroom created a special circumstance. QuikTrip knew, or should have known, that this problem — presumably unknown to Richardson and Quik-Trip’s other invitees — heightened the risk of using QuikTrip’s restrooms beyond what would otherwise be obvious to Richardson. Given its superior knowledge of this risk, it owed a duty to Richardson, its invitee, that it would not have had in other, more ordinary circumstances.
QuikTrip had a duty to take reasonable steps to protect Richardson when it realized, from what it had observed from past experience, that the criminal conduct of third persons posed a danger to its invitees. Action is required only if a business owner has reason to anticipate the danger, and, in the typical case, if nothing gives rise to such an anticipation, a business owner is not obligated to act. Madden, 758 S.W.2d at 62. Usually a warning will be sufficient unless it is apparent that, either because of a lack of time or because of the character of the anticipated danger, a warning would be ineffective. QuikTrip did anticipate danger, as indicated by its putting locks on its restrooms doors. Unfortunately, it later disabled those locks— not because it perceived the danger to have eviscerated, but because customers failed to return the keys enough times that QuikTrip became frustrated. In light of these facts, I conclude that QuikTrip had a duty to take reasonable steps to at least warn Richardson of the danger posed by the use of its restrooms.2
*69I perceive that the majority does not disagree -with this rationale. Yet it goes well beyond this simple, straightforward analysis firmly supported by caselaw to adopt what it calls the “totality of the circumstances approach,” an approach that no Missouri court has employed.
In deciding whether this case presented a special circumstance exception to the general rule of no duty to protect an invitee from a third person’s criminal attack, the majority declares that, in addition to the factors that I noted above, it must consider QuikTrip’s location near railroad tracks and a truck stop, that bums and vagrants3 loitered on the premises, and that it sold gasoline and groceries all night.
The majority clarifies that none of these factors alone would be sufficient to create duty. Tucked away in a footnote, after emphasizing these factors in the opinion’s text, is this qualification:
[Njothing in this opinion can or should be read to imply that mere operation of an all-night business makes criminal attacks against patrons by unknown third parties sufficiently foreseeable to give rise to a duty, nor does this opinion hold that a duty could arise if there were no history of crime in the area in which the business was located.
Majority op. at 66 n. 19. This is reassuring, but not assuring enough given the majority’s reliance and approval on cases that say the opposite. For example, it cites with approval Cohen v. Southland Corporation, 157 Cal.App.3d 130, 203 Cal.Rptr. 572, 578 (1984), in which the California Court of Appeals said, “In the very operation of an allnight [sic] convenience store, defendants may be said to have created ‘an especial temptation and opportunity for criminal misconduct,’ thus increasing the foreseeability of injury resulting from third party misconduct in the early morning hours.”4 The majority’s text *70cites Cohen with approval, but it then confusingly endeavors in Footnote 19 to distance itself from Cohen.
The majority’s emphasis of these factors creates a problem for future cases. Although the majority assures in a footnote that it does not intend to do so, its opinion leaves open the door to a future plaintiffs arguing that an all-night convenience store located across the street from a truck stop and near railroad tracks is a special circumstance even if the store has not experienced the kind of criminal problems outlined in Madden. But what makes the majority’s discussion so objectionable is that it takes its position unnecessarily. The outcome of this case would be the same even had the majority mentioned none of these factors. What difference would it have made in this case had Quik-Trip operated its convenience store for 12 hours each day rather than all night? What difference would it have made had its store been located across the street from a church rather than a truck stop or near a walking path under a neighborhood watch rather than railroad tracks? It would have made no difference because those factors were not significant. The majority all but acknowledges as much. Majority op. at 66-67 n. 19.
In Madden, the Supreme Court adopted something that resembles the majority’s totality of the circumstances approach. Perhaps, the Supreme Court’s use of the words, “facts and circumstances,” confuses the majority, especially as it reads the opinions of other jurisdictions, but the Supreme Court’s analysis in Madden is quite distinct from the majority’s “totality of the circumstances approach.” In Madden, the Supreme Court held:
Consistent with the holding in Virginia D. [v. Madesco Investment Corporation, 648 S.W.2d 881 (Mo. banc 1983) ], with the court of appeals decision in Brown [v. National Supermarkets, Inc., 679 S.W.2d 307 (Mo.App.1984)], and with the rule established by the Restatement [ (Second) ] of Torts, [§ 344 (1965),] the Court recognizes that business ownérs may be under a duty to protect their invitees from the criminal attacks of unknown third persons depending upon the facts and circumstances of a given case. The touchstone for the creation of a duty is foreseeability. A duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury.
758 S.W.2d at 62. The phrase “facts and circumstances of a given case” seems, on a casual reading, to be consistent with “totality of the circumstances.” It is not.
In Madden, the Supreme Court did not rest duty “upon the facts and circumstances of a given case.” After noting that imposition of duty would depend on the facts and circumstances of a given case, the Supreme Court added, “The touchstone for the creation of a duty is foreseeability. A duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury.” Id. Hence, to establish a circumstance that gives rise to a duty to protect, a plaintiff must establish that the defendant (1) could foresee that (2) particular acts or omissions would (3) cause harm or injury.
One is deemed to foresee that which he or she knows or should know. “ ‘The foundation of liability for negligence is knowl*71edge — or what is deemed in the law to be the same thing: opportunity by the exercise of reasonable diligence to acquire knowledge — of the peril which subsequently results in injury.’ ” Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 431-32 (Mo. banc 1985) (quoting 57 Am.Jur.2d Negligence § 54 (1971)). Typically, one gains knowledge from experience and past occurrences, and, indeed, that is precisely what the Supreme Court emphasized in Madden.5
The Supreme Court noted that “special facts” in Virginia D. had given rise to duty to protect an invitee from an unknown third person’s criminal attack. Madden, 758 S.W.2d at 62. The court described these special facts as “evidence of prior criminal incidents[.]” Id. The court also noted that “special facts” in Brown had given rise to a duty to protect patrons from unknown third parties’ criminal assaults. Id. Those special facts were “sixteen reported robberies involving a firearm, seven reported strong arm robberies, and 136 other reported crimes allegedly occurring on the defendant’s premises over a two year period[J” Id.
In applying its rule to the plaintiffs’ cases in Madden,6 the Supreme Court emphasized past crimes. In one of the two combined cases, it noted that a defendant’s restaurant had been “the scene of numerous violent crimes against persons during the three year period immediately preceding [the attack on the plaintiff].” Id. In the other case, the court emphasized the “history of prior crimes occurring on the defendants’ property.” Id. at 63. Both plaintiffs in Madden complained of attacks on parking lots.
Had the Supreme Court been employing the majority’s totality of the circumstances approach, one could surely presume that the court would have informed us of more about C & K Carryout Barbecue and the shopping center parking lot outside Schnuck’s food market and Grandpa Pigeon’s department store. The court does not speak of any factor — such as the nature of the businesses and their locations, whether bums and vagrants loitered near them, and whether they were open all night — other than past problems with crime. The only factor that the Supreme Court deemed to be salient in determining the significant “facts and circumstances of [the] given case” was the history of crime on the premises.
The majority also seems to misread Virginia D. as consistent with its totality of the circumstances approach. It correctly notes that the court considered the history of crime at a hotel where the plaintiff had been raped in the hotel’s lobby restroom. It then seizes, out of context, the Supreme Court’s comment, “There is no requirement that there be at least one mugging or rape before the innkeeper is obliged to consider the possibility.” Virginia D., 648 S.W.2d at 887. The Supreme Court made this statement while considering the special relationship between an innkeeper and an inn’s guests. Indeed, the Supreme Court in Madden made this very distinction: “The recognition of a duty in Virgi*72nia D. was based in part on the existence of a special relationship between the plaintiff and the defendant, i.e., innkeeper-guest[.]” 758 S.W.2d at 62. It was while discussing this relationship that the Virginia D. court noted that, because of the relationship, the hotel’s not having experienced any rapes did not make a difference because there is no requirement that there be at least one rape before an innkeeper is obliged to act to protect.
But the salient portion of Virginia D., as it pertains to QuikTrip, is the Supreme Court’s analysis of the hotel’s past problems. The Supreme Court noted the hotel’s problems with prostitution and burglaries in its parking lot, thefts in its gift shop, and vandalism in a restroom were sufficient “to alert management to the possibility of crime on the premises[.]” 648 S.W.2d at 888.7 This experience was a key component of the Virginia D. decision: “[I]t was ... based in part on the existence of special facts, ie., evidence of prior criminal incidents [.]” Madden, 758 S.W.2d at 62 (emphasis added).
The primary difficulty that I face in questioning the majority’s totality of the circumstances approach is the support that the Restatement seems to lend to the majority’s view and the Supreme Court’s declaration that its holding in Madden was consistent “with the rule established by the Restatement of Torts.” 758 S.W.2d at 62. Earlier in Madden, the Supreme Court noted that the Restatement’s § 344 “recognizes a duty on the part of a possessor of land who holds it open to the public for entry for business purposes to protect members of the public while they are on the land from the intentionally harmful acts of third persons or in the alternative to warn visitors so that they can avoid the harm.”8 Id. Comment f of § 344 says, “If the place or character of [a land possessor’s] business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.” At first blush, it would seem that the Restatement is sanctioning consideration of the character of QuikTrip’s business as an all-night convenience store.
I first note that even the majority does not believe that this is the law. Although the majority’s opinion, by its reliance on Cohen and other cases, strongly suggests that the mere status of being an all-night convenience store is sufficient to give rise to duty — see my discussion supra at 69— the majority desires to walk away from the position as inconsistent with the law. Majority op. 66-67 n. 19. But I would quickly add that I question whether the Supreme Court truly has adopted the total Restatement view. In Madden, the court described the “restatement approach:”
*73Under the restatement approach, this duty may arise when the landowner knows or has reason to know from, past experience that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of visitors, even if the landowner has no reason to expect harmful conduct on the part of any particular individual. Restatement (Second) of Torts, Section Slpb, Comment f9
Note that, although the Supreme Court was describing the “restatement approach” based specifically on Comment f, it ignored “the place or character of [a] business” and focused exclusively on “past experience.”
More importantly, when the Madden court announced its holding, it declared that it was consistent with the Restatement’s rule. This does not mean necessarily that it adopted § 344 and its comments as a correct statement of Missouri law. It meant only that the holding enunciated in Madden was not inconsistent with § 344, and indeed it is not. Because the Supreme Court was making a general holding, one could argue reasonably that had the Supreme Court desired to take as broad approach as the majority does, it would have emphasized in Madden more than evidence of prior criminal incidents. That it did not causes me to resist the majority’s broad approach.
Moreover, I fear that the majority’s totality of the circumstances approach, with its opening the door to such previously unconsidered factors as being an all-night convenience store, ends up being the exception that swallows the rule. Even the Restatement, in the very first sentence of Comment f to § 344 emphasizes, “Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur.” 10 The majority’s totality of the circumstances approach opens the door to imposing liability for the ordinary — operation of an all-night convenience store across the street from a truck stop near railroad tracks — rather than reserving the exceptions for the extraordinary as mandated by the Restatement. The practical effect of the majority’s totality of the circumstances approach is to make a business entity an insurer for purposes of anticipation and avoidance.
Nonetheless' — -and this is key to my position — a broad approach is simply not necessary to deciding this case correctly. Applying the law in a simple, straightforward fashion leads to the correct result. I believe that this court, as an intermediate level appellate court and not a policy-making court, would be more attuned to its mission to leave to the Supreme Court the decision of whether to adopt a totality of the circumstances approach. Until such time as the Supreme Court declares clearly the majority’s totality of the circumstances approach is the law of Missouri, I decline to join in such a notion.
ROBERT G. ULRICH, Judge, JAMES M. SMART, Jr., Judge, EDWIN H. SMITH, Judge, and VICTOR C. HOWARD, Judge, join in this opinion.
. As this court's Eastern District noted in Workes, " 'The owner or occupant of land is not an insurer of the safety of even a business invitee. The true basis of the owner's or occupant's liability is his superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Thus the alternative duty to keep the premises in a reasonably safe condition for an invitee or to warn him of the dangerous condition applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls and the like, in that they are known to the inviter but not known to the invitee, and would not be observed by the latter in the exercise of ordinary care. And where the condition relied on is so open and obvious that it is or should be as apparent to the invitee as it is to the owner or occupant there is no duty on the latter to warn the invitee of the condition, and he is not liable for injuries resulting from such an open and obvious condition.' ” 592 S.W.2d at 867-68 (quoting Moran v. Hartenbach, 423 S.W.2d 53, 56 (Mo.App.1967)).
. The question of duty in a negligence case is purely an issue of law to be decided by this court and not by the trier of fact. Lopez v. Three Rivers Electric Cooperative, Inc., 26 *69S.W.3d 151, 155 (Mo. banc 2000). Whether QuikTrip breached its duty and whether the breach caused Richardson's injuries are questions of fact for the fact finder. Alcorn v. Union Pacific R.R. Co., 50 S.W.3d 226, 238-39 (Mo. banc 2001).
. The evidence does not establish that bums and vagrants were on QuikTrip’s property. The evidence that the majority relies upon to support this statement comes from the deposition testimony of Chris McKenzie, QuikTrip's facility support technician. Richardson’s attorney asked McKenzie, "I have been told from hearsay ... that there were individuals hanging around this particular QuikTrip that, I don’t necessarily want to use the term bum per se or vagrant but someone who was hanging around and they weren't welcome and was asked to leave by the QuikTrip employees around this time period. Do you have any knowledge concerning any such type of persons who were loitering around that store during that time period?” McKenzie responded, "I’d probably seen a couple at times but you’d see them, not at all stores but you’d see them. There was never any trouble down there so you just don’t pay attention to it.” From this evidence, the majority concludes that bums and vagrants loitered on the premises. Maj. op. at 65. I fail to see the eviden-tiary basis for this conclusion.
. The Cohen's court reasoning was spurious. It was relying on Professor Prosser’s Handbook of the Law of Torts § 33 at 174 (4th ed.1971), which was, in turn, relying on Restatement (Second) of Torts § 302B (1965). Section 302B says, "An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.” (Emphasis added.) The Restatement makes clear what it deems to be an unreasonably risky situation in its illustration: "A leaves dynamite caps in an open box next to a playground in which small children are playing. B, a child too young to understand the risk involved, finds the caps, hammers one of them with a rock, and is injured by the explosion. A may be found to be negligent toward B.” (Note the emphasis of a child *70who does not understand the risk involved.) I am dubious that all-night convenience stores, any more than all-night grocery stores or any of the other numerous businesses that remain open all night, are like the dynamite caps and are unreasonably risky. The California court simply did not seem to understand the concept.
. I concur in the majority's analysis concerning the so-called violent crimes exception. To the extent that the majority is saying that a business owner’s experience with past criminal activity should provide him with knowledge to make future criminal activity on his premises foreseeable and that Missouri courts have tended to be restrictive in which past criminal activity it will consider, I concur.
. Madden was a combined case in which Opal Madden complained of a criminal attack on a restaurant's parking lot, and James Decker complained of a criminal attack on a shopping center parking lot.
. Usually the Supreme Court speaks of foreseeability in terms of probabilities and not possibilities. As it said recently in Lopez, 26 S.W.3d at 156, "For purposes of determining whether a duty exists, this Court has defined foreseeability as the presence of some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it.”
. Section 344 says, "A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”
. Emphasis added.
. Emphasis added.