I concur in the majority’s decision to affirm the Court of Appeals’ decision upholding the circuit court’s grant of summary judgment, but would do so on the ground that petitioner’s negligence in leaving the safety of his motel room exceeded respondent’s negligence, if any, as a matter of law. See Bass v. Gopal, Inc., 384 S.C. 238, 247, 680 S.E.2d 917, 921-922 (Ct.App.2009).
The Court of Appeals held that, under existing South Carolina law, an innkeeper owes a duty to her guests “to provide ... reasonable protection against injuries from criminal acts, and the actual amount of protection depends on the amount and types of criminal activity that have previously occurred on the premises.” Bass, at 245, fn. 4, 680 S.E.2d at 920, fn. 4. The court distinguished this specialized innkeeper duty from that of a merchant, whose duty to protect customers from third party criminal acts is limited to those which the merchant has actual or constructive knowledge are, or are about to, occur. Id. [citing Miletic v. Wal-Mart Stores, Inc., 339 S.C. 327, 529 S.E.2d 68 (Ct.App.2000) ].
While I appreciate the majority’s scholarly approach to the issues of duty and foreseeability, I perceive little difference between our existing law, and the test adopted by the majority, other than a requirement for expert testimony, and reliance upon city/county statistics. Like the Court of Appeals, I would hold that since there is no duty imposed upon business owners to conduct a crime analysis, there is no reason to impute knowledge of the CRIME CAST report to respondent, and further that these types of city/county statistical reports are irrelevant to determining an innkeeper’s duty. I would not alter our existing law, but were I to do so, I would remand to permit the parties an opportunity to meet the newly announced test.
Because I would hold that the Court of Appeals correctly affirmed the grant of summary judgment on the comparative negligence ground, I concur in the result reached by the majority.