(dissenting).
I respectfully dissent from the major conclusions reached by my colleagues.
The Chief Justice has skillfully articulated the issues in Section I of the majority opinion and has disposed of the procedural questions in precise and flawless phraseology. With that section I am in full accord.
The Eastgate Shopping Center consists of an aggregation of approximately thirty-seven tenant-merchants with a parking area consisting of 1600 unrestricted parking spaces. The occupants of this shopping center have banded themselves together in an association known as the Eastgate Shopping Center Association, designed to promote their common welfare and protect their common interest.
On the night of 18 October 1973, plaintiff, Marie Cornpropst, came as a customer to the shopping center and parked her automobile in one of the spaces in the parking area. After completing her purchases she returned to her automobile where she was brutally attacked by the defendant, Sloan, a third party having no connection with the remaining defendants.
The pertinent parts of the complaint are quoted verbatim in the majority opinion, but the very length of the quotation tends to obscure the basis of the cause of action.
Plaintiff, in substance, charged:
a. That by virtue of other crimes, assaults, and acts of violence on or in the immediate vicinity of the East-gate Shopping Center, its parking area had become unsafe and particularly dangerous.
b. That the defendants knew or in the exercise of reasonable and proper care should have known that plaintiff-customer would be exposed to acts of violence and faced potential danger.
c. That defendants owed a duty to plaintiff-customer to take adequate *199precautions to guard against the known dangers.
d. That no security guards were posted, no patrols were established, and no other precautions were taken to guard against this known danger.
e. That no warning of the potential danger was given to plaintiff-customer.
The majority holds that these derelictions, breaches of duty and violations of standards of due care are not actionable. I am in violent disagreement.
The modern phenomenon of merchandising and marketing through community shopping centers has opened a new vista into the concept of tort liability of the owners, occupiers or possessors of public business premises. In such centers, aptly called “cities within cities”, virtually all the marketing demands of the general public can be met on a “one stop” basis. Central cities have suffered as a result of these decentralized mercantile conglomerations, and they have produced heretofore unknown legal problems. The primary incentive to the utilization of these shopping areas is the availability of adequate and free parking facilities, which the public, in general, is invited to use without let or hindrance, but always with the expectancy that the tradesmen in the market places will profit by such use. Having thus caused enormous congregations of potential and actual shoppers in relatively compact areas, certain duties devolve upon the invitors for the benefit and protection of the invitees. We have no Tennessee cases in point, and this area of the law has not fully developed in other jurisdictions; however, an emerging trend has been established.
We do not deal with an employer-employee relationship; with innkeepers and guests; with amusement park operators and their patrons; with landlord and tenant relationships; nor do we deal with public parking lots of the conventional variety, nor garages, nor any other relationship. Each of these situations presents different and differing rights and duties.
The trial judge, in sustaining the motion to dismiss, relied upon Thomas v. General Electric Company, 494 S.W.2d 493 (Tenn.1973) as the controlling authority. Evidently he was prompted by the following language from Thomas:
In order to sustain appellant’s contention this Court would have to conclude that as a matter of law anyone providing a guarded parking lot assumes the burden of insuring the safety of any invitee using the lot. (Emphasis supplied). 494 S.W.2d at 495.
The majority opinion concedes that Thomas is not controlling.
I wish to make it crystal clear that I would not impose upon the defendant merchants the duty of an insurer — just the duty of reasonable care — a duty to take reasonable and commensurate precautions in the face of a known danger.
In Corbitt v. Ringley-Crockett, Inc., 496 S.W.2d 914 (Tenn.App.1973), the Court applied a test of foreseeability, stating that
Even though the assault be sudden, if the owner could reasonably anticipate such an assault under the facts and fails to attempt to prevent it, he may be held liable. 496 S.W.2d at 917.
The complaint brings plaintiff squarely within this foreseeability exception to the general rule of non-liability.
In Corbitt “such an occurrence as complained of had never before happened.” The Court, on the facts of that case, concluded its opinion by saying:
We hold that if the owner is to be held liable for the sudden criminal acts of third persons there must be a showing that the owner was on notice in some manner of the imminent probability of the act. Otherwise, there can be no issue for jury determination. (Emphasis supplied).
*200This case tends to be supportive of plaintiff’s insistence that the complaint stated a valid cause of action.1
Again in Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 52 Cal.Rptr. 561, 416 P.2d 793 (1966) involving a parking lot injury, the Court recognized
the duty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom. 416 P.2d at 497.
The Court approved Section 344 of the Restatement of Torts (Second) infra, and held that the failure of a proprietor to secure the right of a patron to enter the parking lot without being attacked was a breach of duty.
Appellant also relies upon O’Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 255 N.E.2d 205 (1970). This was a suit against the owners and operators of a shopping center, and one of its tenants, by a patron who was assaulted, by a third party, in the parking area. Factually it is on all fours with the case at bar.
Initially the complaint charged prior incidents of criminal activity on the premises known to defendants. When defendants filed a motion for a bill of particulars, plaintiff was unable to support these allegations and the complaint was amended to delete them. Citing another Illinois ease the Court said:
(A) good complaint in a case similar to this must show not only danger of assault but that the defendant had notice of such danger and should reasonably have anticipated it. 255 N.E.2d at 207.
The Court held that the trial judge acted correctly in dismissing the complaint, saying:
We conclude that the common law duty of reasonable care owed to persons lawfully on premises cannot be extended to a duty to guard against the criminal acts of a third person, absent knowledge of previous incidents or special circumstances which would charge the owners with knowledge of the dangers and the duty to anticipate it. Such circumstances are not alleged in the complaint, and it, therefore, failed to state a cause of action.
The present complaint meets the criteria established by O’Brien.
With utmost deference to my Brothers, the standard announced in the majority opinion affords virtually no protection to shopping center invitees, irrespective of the nature, character or extent of the known risk, and virtually immunizes the owner against liability for all except gross derelictions of duty. In my view such a standard is not in the best interests of the consuming public.
My investigation into the law and my search for a reasonable standard has led me to Restatement (Second) of Torts, Sec. 344, which reads as follows:
Sec. 344. Business Premises Open to Public: Acts of Third Persons or Animals.
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.
The Comments (b) make it clear that “third persons” include “other invitees or *201licensees upon the premises and also trespassers.” They likewise make it clear, under reasonable care (d) that the possessor is not an insurer against the acts of third persons; but he is under a duty to exercise reasonable care to give them protection A warning may be sufficient, however, the comment continues, there are:
(M)any situations in which the possessor cannot reasonably assume that a warning will be sufficient. He is then required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons, or animals, may conduct themselves in a manner which will endanger the safety of the visitor.
As to the duty to police the premises, Comment f, specifies:
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. He may, however, know or have 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 the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his 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.
I would adopt the rule of Restatement, as above set out.
I point out, however, that the standard of care is not fixed, rigid or inflexible and should, perforce of necessity be modified, adjusted and adopted to meet a standard of fairness and justice under the facts and circumstances of each particular case. It is evident that the degree of care must be commensurate with, and bear some relation to, the risk involved. It is evident that no proprietor is required to be an insurer. It is evident that any standard must be reasonably applied to the end that its application not work an undue hardship on any business activity. It is evident that no standard should require anything beyond protection against reasonable estimates of probabilities. It is evident that a proprietor is not required to protect his invitees against remote or conjectural possibilities nor to “waste his anxiety upon events that are barely possible”, and lastly it is evident that no proprietor has any responsibility for affirmative action against acts or occurrences on sidewalks or public ways adjacent to his business house, absent exceptional considerations. In summary, the guidelines should be given a reasonable, realistic and fair interpretation.
I would hold that, when tested by these standards and guidelines, and the rules governing pleading in Tennessee, the complaint states a good and valid cause of action or a claim upon which relief may be granted.
. See also Twin City Amusement Company v. Salater, 372 S.W.2d 224 (Ark.1963), also involving an injury at a rock and roll concert, wherein the court, on a different factual situation, reversed a judgment for the injured plaintiff.