concurring.
I concur with the result in the majority opinion that traditional negligence principles apply to plaintiffs injury in the concourse of a baseball stadium. However, because I agree with the comment that the limited duty rule is “hopelessly anachronistic,” David Horton, Comment, Rethinking Assumption of Risk and Sports Spectators, 51 UCLA L.Rev. 339, 365 (2003), I write separately.
Whether it is called the “limited duty” rule or the “baseball” rule, and I use those terms interchangeably, this appeal presents this Court with the opportunity to evaluate the public policy underlying stadium owner and operator liability. I would reject the limited duty rule and apply traditional tort principles throughout the entire baseball stadium.
I.
This Court must first decide whether a duty of care exists in this specific circumstance. As we restated in Crawn v. Campo, 136 N.J. 494, 503, 643 A.2d 600 (1994), “ ‘[t]he imposition of a duty is the conclusion of a rather complex analysis that considers the relationship of the parties, the nature of the risk—that is, its foreseeability and severity—and the impact the imposition of a *88duty would have on public policy.’ ” (quoting Dunphy v. Gregor, 136 N.J. 99, 108, 642 A.2d 372 (1994)). “When the court determines that a duty exists and liability will be extended, it draws judicial lines based on fairness and policy.” Kelly v. Gwinnell, 96 N.J. 538, 544, 476 A.2d 1219 (1984).
A.
As the majority opinion explains, the limited duty rule is a “ ‘two-prong’ test” used to “defin[e] the duty of a stadium owner to provide protected seats for its patrons.” Gil Fried and Robin Ammon, Baseball Spectators’ Assumption of Risk: Is It ‘Fair’ or ‘Foul’?, 13 Marq. Sports L.Rev. 39, 44 (2002). Under the first prong of that test, the stadium owner and operator “must provide protected seating ‘sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion,’ ” and under the second prong the stadium owner and operator “must provide protection for spectators in ‘the most dangerous section’ of the stands.” Schneider v. Am. Hockey & Ice Skating Ctr., Inc., 342 N.J.Super. 527, 533-34, 777 A.2d 380 (App.Div.)(quoting Akins v. Glens Falls City Sch. Dist., 53 N.Y.2d 325, 441 N.Y.S.2d 644, 424 N.E.2d 531, 533 (1981)), certif. denied, 170 N.J. 387, 788 A.2d 772 (2001).
The limited duty rule suggests that the area behind home plate is the most dangerous section of the stadium and requires the most protection. But, as the majority opinion makes clear, the area behind home plate is not the only dangerous section of a stadium. In fact,
[t]he best seats are the worst. A spot behind or next to a dugout gives a baseball fan the opportunity to ... dodge potentially lethal projectiles whizzing at more than 100 [miles per hour]. Unprotected by netting, such seats are among the most dangerous in sports.
* * *
[N]o more dangerous seats exist than the ones behind and near the third base dugout when two righthanded power pitchers are starting. The lineups are usually loaded with lefthanded hitters who are likely to swing late at fastballs, whistling *89foul balls into the stands. Bans in those danger zones need to pay attention to each pitch as closely as the third baseman does.
Such seats are particularly dangerous for parents with infants (babies should not even be allowed there), children (how many elementary school Mds are riveted to each pitch for a three-hour game?) and the elderly (slowed reaction time makes them vulnerable). Children and seniors are an important part of minor league and spring training games, typically held in small ballparks in which even the premium seats are affordable. The risk, however, is enormous for even the most athletic onlookers. In 1992 California Angels pitcher Matt Keough was hit in the right temple and nearly killed by a line drive while seated in the dugout of Scottsdale Stadium in Arizona. A fence was installed in front of the dugout for the safety of the players and staff.
[Tom Verducei, Safety Squeeze, Sports Illustrated, Apr. 1, 2002, at 64.]
B.
In my view, fairness and policy dictate that we treat owners and operators of commercial sports facilities the same as we treat other commercial property owners. Therefore, I would apply the business invitee rule, under which the stadium owner and operator would owe a duty “to conduct a reasonable inspection to discover latent dangerous conditions,” and the stadium owner and operator would have a duty to “guard against any dangerous conditions ... that the owner either knows about or should have discovered.” Parks v. Rogers, 176 N.J. 491, 497-98 n. 3, 825 A.2d 1128 (2003)(quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 434, 625 A.2d 1110 (1993)). Moreover, under certain conditions the landowner has a duty to protect business visitors from foreseeable criminal acts. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 516-17, 694 A.2d 1017 (1997) (holding landowner had duty to provide security in parking lot “to protect its invitees from criminal acts of third parties”). There is nothing about the game of professional baseball that distinguishes it from other businesses that would justify preferential treatment for stadium owners and operators regarding their liability to patrons in the stands. I can find no reasonable justification for applying a lesser standard for stadium owners and operators.
We often look to the Restatement for guidance in declaration of the common law. According to the Restatement (Third) of Torts, *90in addressing the relationship of assumption of risk and defendant’s negligence,
[a] plaintiff who is actually aware of a reasonable risk and voluntarily undertakes it, as when a parent tries to rescue a child from a fire, is not negligent. The parent may, however, be negligent for other reasons, such as the manner of the rescue. When a plaintiff is negligent, the plaintiffs awareness of a risk is relevant to the plaintiffs degree of responsibility. See § 8.
Whether the defendant reasonably believes that the plaintiff is aware of a risk and voluntarily undertakes it may be relevant to whether the defendant acted reasonably. The defendant might reasonably have relied on the plaintiff to avoid the known risk, or other policy considerations may dictate that the defendant has no duty or a limited duty to the plaintiff. See § 2, Comment j; Restatement Second, Torts § 282. Whether the plaintiff is aware of a risk and voluntarily assumes it may also be relevant to whether the plaintiff’s conduct is a superseding cause. See Restatement Second, Torts § 442. Comparative responsibility may affect what constitutes a superseding cause, but that issue is beyond the scope of this Restatement.
[Restatement (Third) of Torts; Apportionment of Liab. § 3 cmt. c (2000).]
Illustration number six of section three of the Restatement specifically addresses the sports stadium scenario and provides that:
A attends a baseball game at B’s ballpark. A sits in a portion of the stands beyond the point where the screen prevents balls from entering the seats. A is aware that balls occasionally are hit into the stands. The fact that A knew balls are occasionally hit into the stands does not constitute assumption of risk. The fact that A knew balls occasionally are hit into the stands is relevant in evaluating whether A acted reasonably by engaging in particular types of conduct while sitting in the stands (sitting in the stands would not itself constitute unreasonable conduct). If the factfinder concludes that A did not act reasonably under the circumstances, A’s knowledge of the risk is relevant to the percentage of responsibility the factfinder assigns to A. See § 8. If B could reasonably assume that A and other fans are aware that balls are occasionally hit into the stands, this fact is also relevant to whether B acted reasonably in relying on A to watch out for balls instead of constructing a screen or providing warnings.
[Id. at cmt. c, illus. 6.]
Accordingly, I would follow the Restatement and apply the business invitee rule and comparative negligence principles to assess liability for injuries caused at a baseball stadium. A trier of fact should consider all of the circumstances to determine whether the owner and operator have breached their duty of care to the plaintiff. That view does not impose a requirement on owners and operators to “guarantee protection for all fans[.]”
*91Ante at 81, 881 A.2d at 707. Instead, the application of traditional tort principles, such as comparative negligence, will adequately even out the playing field for both sides. See Restatement, supra. Simply stated, if the elements of the business invitee rule are present, then the injured fan should have the opportunity to seek redress and a jury should decide whether the owner and operator of the stadium should bear any responsibility for that injury.
C.
This Court has faced many challenges in the past and, when the occasion warranted, changed the common law for the better. Our tort law has shifted from a contributory negligence perspective to a comparative negligence assessment. Yet, the limited duty rule does not reflect that change because it is still based on the outdated assumption of risk doctrine. Although the majority recognizes that “the beauty of common law is the ability to adapt to the times,” ante at 84, 881 A.2d at 708, the Court’s decision to adopt the limited duty rule in the stands represents a missed opportunity to correct a shortcoming in our law.
In this matter of first impression for this Court, we should mark new ground. “[Wjisdom too often never comes, and so one ought not to reject it merely because it comes late.” State v. Int’l Fed’n of Profl & Technical Eng’rs, Local 195, 169 N.J. 505, 539, 780 A.2d 525 (2001) (citations and quotations omitted). The time is ripe for this Court to reject the limited duty rule and to apply traditional business invitee tort principles to professional stadium owners and operators.