dissenting.
I dissent in this premises liability ease concerning an owner’s duty to protect business invitees from the known criminal acts of a third party.
Disposition of this appeal should turn on several questions: (1) is there a genuine issue of fact as to whether Vann was a business invitee at the time of his injury; and, (2) if so, is there a genuine issue of fact as to whether Town Topic exercised or breached the duty of care to protect his well-being; and, (3) did Vann’s voluntary entry into the fight as a rescuer preclude any recovery against the owner of the premises?
A business invitee is one who goes to a business either at the express or implied invitation of the owner or occupant in connection with the business which is being carried on at that location. Behnke v. City of Moberly, 243 S.W.2d 549, 553 (Mo.App.1951). There can be no legal dispute that when Vann was inside the Town Topic building as a patron he was a business invitee. The problem here is if or when his status changed. If his status as such had not ended before the altercation, Town Topic owed him some duty of care. Under the Restatement (Second) of Torts § 344, the possessor who opens land to the public for his business purposes must exercise reasonable care toward invitees. However, if Vann’s status as business invitee had ended before the stabbing, Town Topic would owe him no duty of care, or perhaps a more relaxed duty if he were licensee or trespasser.
The status as business invitee does not begin when the door opens to the establishment on the way in and end when the door closes on the way out. The duty to protect, and therefore the status of, a business invitee extends not only to the premises but also its approaches. Wofford v. Kennedy’s 2nd Street Co., 649 S.W.2d 912, 914 (Mo.App.1983); Associated Dry Goods Corporation v. Drake, 394 F.2d 637, 641 (8th Cir.1968).
Reviewed in a light most favorable to Vann, there is a genuine issue as to his status as business invitee. At deposition, Vann testified that when he and Raya stepped out of the Town Topic building, they observed a fight in progress. This fight was occuring “kind of like on the sidewalk and on the street ... [rjight in front of the building.” Using this testimony in conjunction with Exhibit A, a photograph of Town Topic and the surrounding area, one would be hardpressed to believe Vann could be standing nay further than a few feet from the Town Topic building. At this point, Vann “hollered at them and said, hey, break it up,” at which time the attackers “turned on” him and Raya. At no juncture in his testimony did Vann definitely place himself in a position where it could be said his status changed from that of an invitee. There is also the deposition of Shirley Miller, the waitress on duty. She states that when the original fight started in the Town Topic, she “told them to take it outside.” She could see through the windows that the fight was continuing outside, so she “went outside and hollered at them to break it up.” Miller testified that while she was outside, Vann and Raya came out and stood behind her on the sidewalk, at which time “[t]hey (Vann and Raya) was [sic] just standing there for a few minutes.” She then went back inside behind the counter. When Miller went inside and left Vann and Raya outside, they were on the sidewalk in front of Town Topic. In *664sum, Vann’s status as a business invitee depends on his physical location at the moment in question. Since there was testimony supporting the proposition that Vann was on the sidewalk, coupled with the legal conclusion that the status of business invitee may extend to the business’ approaches, Wofford, supra, it cannot be said there is no issue as to whether Vann was a business invitee.
The second question is Town Topic’s duty to Vann as a business invitee. As a general rule, a party has no duty to protect another from a deliberate criminal attack by a third person, however, exceptions are recognized. Faheen By Hebron v. City Parking Corp., 734 S.W.2d 270, 272 (Mo.App.1987); Meadows v. Friedman R.R. Salvage Warehouse, 655 S.W.2d 718, 721 (Mo.App.1983); See, Note, Business Owners Duty to Protect Invitees From Third Party Criminal Attacks — Or—“Business Owners Beware: Missouri Ups the Ante,” 54 Mo.L.Rev. 443 (1989). The applicable exception here is “special facts.” “Special facts” appear in this ease because of Vann being an invitee and the question of whether or not the business owner took all necessary steps to protect him as such. Special facts include those situations where a known dangerous or violent individual is present or where an individual present on the premises has conducted himself so as to indicate danger and sufficient time exists to prevent injury, (emphasis added), Warren v. Lombardo’s Enterprises, Inc., 706 S.W.2d 286, 287 (Mo.App.1986).
... proprietors of a place of public amusement may not, without liability, permit activities of third persons, which are dangerous to patrons, to continue, after they know or by the exercise of reasonable care could have known of them, when by the exercise of reasonable care they could have been able to protect patrons therefrom by controlling or preventing such activities. Hughes v. St. Louis Nat. League Baseball Club, 359 Mo. 993, 224 S.W.2d 989, 994 (1949).
A jury issue was created as to whether an individual was on the premises creating a danger and if Town Topic within the time and circumstances acted sufficiently on its duty to protect Vann. Warren v. Lombardo’s, supra. No doubt that a duty issue is raised by this testimony, an issue which was not properly disposed by summary judgment.
Finally, on the basis of the facts as brought out in affidavits and depositions, it cannot be determined as a matter of law Vann’s entry into the fray as a volunteer or an intermeddler automatically keeps him from any recovery. I am not even sure as a matter of law it can be determined hollering “break it up” was sufficient intervention into the melee to be an intervening cause to deny tort relief. It is unclear whether he was still on the premises when he hollered or was chased, but he was on the defendant’s land when stabbed. In Chomatopoulos v. Roma DeNotte Social Club, 212 N.J.Super. 447, 515 A.2d 296, 298-99 (1985), a “peacemaker” was stabbed outside an illegal gambling operation. The court ruled the plaintiff was an invitee, and, quoting from the Restatement (Second) of Torts § 889, held the doing of an illegal act (gambling) did not prevent the maintaining of an action for harm caused by the abnormally dangerous action of a third person. Id. The doctrine of comparative fault has modified the common law relationship between “business invitors and their invitees,” by allowing a jury to assess the relative fault as between the parties. Cox v. J.C. Penney Co., Inc., 741 S.W.2d 28, 30 (Mo. banc 1987); Hefele v. National Super Markets, Inc., 748 S.W.2d 800, 802 (Mo.App.1988). By such apportionment a jury found an injured invitee 49% at fault in an attack on her by another patron. Gould v. Taco Bell, 239 Kan. 564, 722 P.2d 511 (1986). The court upheld an award against Taco Bell based on 51% of the fault for failure to protect the invitee and failure to prevent the conduct of the attacker. Id. 722 P.2d at 514.
It may very well be Town Topic did everything it could to protect Vann, or that he was 100% at fault for getting involved, but these are matters for the jury. Therefore, the granting of summary judgment *665based on the facts present was inappropriate and done in error.