dissenting.
I respectfully dissent.
While summary judgment is rarely appropriate in negligence. cases, Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind.1996), the majority opinion correctly points out that “generally there is no duty on the part of a business owner to protect its patrons against the criminal acts of third persons.” Van Duyn v. Cook-Teague Partnership, 694 N.E.2d 779, 781 (Ind.Ct.App.1998). A duty to anticipate and to take steps to protect against a criminal act of a third-party arises only when the facts of a particular case make it reasonably foreseeable that a criminal act is likely to occur. Welch v. Railroad Crossing, Inc., 488 N.E.2d 383, 388 (Ind.Ct.App.1986) (emphasis in original). The foreseeability of a criminal act is determined by reference to the proprietor’s knowledge of the actor’s behavior. Id. For the proprietor to be held liable for a criminal assault under a common law theory of negligence, the proprietor must have been alerted to the likelihood of harm by the prior actions of the assailant, either on the occasion of the injury or on previous occasions. Id. (emphasis added).
In my view, it was foreseeable that attempting to grab a gun from an armed individual would result in shots being fired. At the time the store manager reached for the gun, he had some knowledge of the Mathi-sens’ behavior, because the criminal act had *1082already been set in motion. It is irrelevant that “[i]t was Ron Mathisen who should have foreseen and anticipated that his act of shooting would injury someone.” Slip op. at 9. I believe that Doan should have foreseen that attempting to disarm Ron Mathisen would also result in injury.
This is more particularly so in light of Denny’s policy concerning robberies. Restaurants such as Denny’s anticipate crimes or they wouldn’t have manuals and policies of this nature. Even if the anticipation of crime in general is not enough by itself to give rise to a duty to protect patrons, a duty must arise to refrain from negligent acts when a crime is actually in progress. I would hold that Denny’s owed a duty of care to the plaintiffs to protect them from the Mathi-sen’s criminal acts.
For an act to be the proximate cause of an injury, the injury must be a natural and probable consequence which, in light of circumstances, should reasonably have been foreseen or anticipated. Rubin v. Johnson, 550 N.E.2d 324, 331 (Ind.Ct.App.1990). Because of my conclusion regarding duty, I would also hold that the question of proximate cause is one for the jury.