concurring.
I agree with the analysis in the majority opinion and concur in its judgment. I write separately to set forth my views on two issues that exceed the question raised by this Court’s grant of certiorari, but which are nevertheless raised by the parties and will be relevant to the Court of Appeals’ decision on remand from this Court. The first question is whether, absent evidence of prior criminal activity,1 Sun Trust could have reasonably anticipated criminal activity at one of its automatic teller machines (hereinafter “ATMs” or “ATM”). Given the unique opportunity for criminal activity presented by ATMs, along with evidence of several dangerous aspects of the ATM involved in this case, I would answer this question affirmatively. The second question is whether a bank’s liability for a robbery at an ATM can be predicated upon the false impression of security conveyed to a bank customer by the visible presence of a security guard who, unknown to the customer, has been instructed by the bank not to provide security but only to stop non-customers of the bank from using the parking lot. I would also answer this question affirmatively.
1. As for whether Sun Trust knew or should have known of an unreasonable risk of criminal activity even absent evidence of a prior crime, neither this Court nor the Court of Appeals has specifically held that knowledge of an unreasonable risk of criminal activity can only be created by the prior, actual occurrence of a crime. Instead, both this Court and the Court of Appeals have stated that knowledge of the unreasonable risk of criminal activity “may” be proven by prior similar incidents.2 Further, in Lau’s Corp. v. Haskins,3 this Court relied on evidence other than prior similar incidents in determining that a proprietor had a duty to protect its invitees. More specifically, we held that evidence that the owner knew the business was located in a high crime area, coupled with evidence that the owner knew of a prior purse snatching on the premises, gave rise to an issue of fact regarding whether the property owner had a duty to protect its pa*111trons from the risk of violent criminal activity.
The thrust of these cases is that if a proprietor “has reason to anticipate a criminal act, he or she then has a ‘duty to exercise ordinary care to guard against injury from dangerous characters.’ ”4 Moreover, a proprietor’s duty to protect against criminal activity is not dependent upon the foreseeability of the particular crime in question but upon the foreseeability of the general risk of criminal activity.5 Further, the “question of reasonable foreseeability” of criminal conduct generally is “for a jury’s determination rather than summary adjudication by the courts.”6 Although evidence of prior similar incidents may be some of the strongest and most readily available proof that a proprietor has reason to anticipate a criminal act, it should not be required if other circumstances clearly demonstrate that a proprietor had reason to anticipate a criminal act. Stated differently, foreseeability should not depend upon the fortuity of a prior crime when the potential for criminal activity is apparent to everyone. Requiring a prior similar incident in such cases would lead to arbitrary results, and would engage the courts in the mechanistic, unreasoned application of rules, requiring us to turn a blind eye to the simple reality that some business owners may reasonably anticipate criminal activity even if no prior crimes have occurred. In the present case, I would conclude that a jury question remains regarding whether Sun Trust reasonably could have anticipated that a robbery could have occurred.
First, as studies by the banking industry and others have shown, ATMs have proved to be a reliable source of funds not only for bank customers, but also for criminals.7 Thus, the banking industry itself anticipates that criminal activity will frequently occur at ATMs. Consistent with that anticipation, the record demonstrates that Sun Trust anticipated criminal activity might occur at its ATMs. In this regard, Sun Trust’s security chief testified that Sun Trust has undertaken safety measures to protect customers from being robbed at its ATMs, including surveillance cameras, lighting, landscaping, and the adding of fences where necessary. Moreover, that such criminal activity has occurred and is reasonably foreseeable is hardly surprising. Unlike many other premises liability robbery cases, where a criminal cannot be certain whether a person is carrying a significant amount of money, a customer withdrawing money from a banking machine guarantees a source of cash that most criminals would consider significant. *112That the withdrawal is frequently made outdoors, at night, and by a lone person is a virtual invitation to and special opportunity for the criminal element. Finally, Killebrew testified that the ATM at which he was shot was located on the side of the bank and was not well lit, factors that would facilitate criminal activity at this ATM. The foregoing factors, taken as a whole, create a factual issue regarding whether Sun Trust could have anticipated criminal activity at the ATM in question.
Moreover, although the foreseeability of a criminal act is necessary to give rise to a duty to protect against it,8 other tort policies, as well as vital concepts of efficiency and equity, dictate that banks be allocated some of the risk in ATM cases. After all, banks have aggressively marketed and promoted the use of ATMs because they permit banks to provide services at a fraction of the cost of traditional banking methods and to obtain a larger overall share of the banking market.9 Imposing a burden on banks to provide reasonable protection to ATM customers is thus fair and equitable. Further, banks are in a better position to monitor crime at ATMs and to determine and implement the most effective methods of combating it.10 Moreover, concerns about potential liability are largely unwarranted. Many of the methods for protecting ATM customers are simple and already in place. They include increased lighting and surveillance, placing ATMs in the front of banks, informing customers regarding self-protection, and providing secured enclosures. 11 In fact, in Georgia, increased lighting and customer education are now mandated by law.12 Finally, a holding that an operator of an ATM has a duty to provide reasonable protection to its customers is not a holding that a bank is an insurer of its customers. After establishing a duty, an injured customer must still prove that the bank breached that duty and that that breach was the proximate cause of the customer’s injuries.13
For the foregoing reasons, I would conclude that, even absent evidence of a prior crime, a jury issue remains regarding whether Sun Trust could have reasonably anticipated that a robbery could have occurred at its ATM. A contrary holding would “create the equivalent of a ‘one free bite rule’ for premises liability” cases,14 and would amount to nothing more than protection of proprietors out of an unspoken fear that juries will award damages even if unwarranted by the evidence. I harbor no such doubt in our juries, but instead have *113the utmost faith in their ability to discern the genuine claim from the spurious. Further, although this Court has numerous precedents relying on evidence of prior crimes, one of the great virtues of judicially created rules is that in cases in which they have no validity and are inconsistent with the reality of contemporary society, the courts can act quickly to reexamine and modify them so as to ensure that they are not instruments of injustice.
2. Further, I would hold that a jury issue remains regarding whether a security guard placed at the bank by Sun Trust amounted to a misrepresentation of security upon which Killebrew relied to his detriment. The Restatement, Second, Torts, provides that
(1) [o]ne who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results
(a) to the other . . . ,15
According to Killebrew, on the evening he was shot, he entered the bank parking lot from a rear entrance and noticed a security guard sitting in a van parked at the back of the parking lot, at some distance from the ATM machine. Killebrew testified that he had seen the security guard on other visits to the ATM, had known the guard was a security officer by his uniform, and had assumed that the security guard was there to provide security for customers. Contrary to Killebrew’s expectation, the evidence shows that the guard was employed only to keep non-customers from parking in the lot, and was instructed that protecting customers was not part of his job.
Clearly, conduct, as well as words, may convey information. The visible presence of a security guard at a bank at night could reasonably convey the message that the guard is there to provide protection to customers. Significantly, in this case the security guard was not engaged in activities that might have signaled a customer that he was not there to provide protection. Further, placing a security guard where he can be seen by customers and instructing the guard not to provide protection to those customers could be, depending upon the evidence, akin to posting a high-visibility sign advertising that protection would be provided to customers using the ATM at night, when in fact the bank had no security whatsoever. That such conduct, if proven, amounts to negligence would seem to be beyond reasonable dispute.
Based on the evidence in the record before us, I would conclude *114that the presence of the guard creates jury issues regarding whether Sun Trust negligently conveyed false information regarding security, whether Killebrew reasonably relied upon such information, and whether such information was the proximate cause of the physical harm to Killebrew. Finally, I note that cases involving false impressions of security are fact specific and that a holding that the facts of this case create a jury issue would not open the floodgates to jury trials on such claims in the future.
I am authorized to state that Justice Hunstein joins in this concurrence.
Because of the holding of the majority opinion today, there is at this time no evidence in the record of prior criminal activity.
Savannah College of Art &c., 261 Ga. 764, 765 (409 SE2d 848) (1991); Ritz Carlton Hotel Co. v. Revel, 216 Ga. App. 300, 302 (454 SE2d 183) (1995).
261 Ga. 491, 492-493 (405 SE2d 474) (1991).
Days Inns of America v. Matt, 265 Ga. 235, 236 (454 SE2d 507) (1995).
See Warner v. Arnold, 133 Ga. App. 174, 177 (210 SE2d 350) (1974).
Lay v. Munford, 235 Ga. 340, 341 (219 SE2d 416) (1975).
Note, Institutional Liability for Attacks on ATM Patrons, 1994 U. Ill. L. Rev. 1009, 1012; 4 AmJur 497, Proof of Facts, Liability of Bank for Criminal Attack at ATM or Night Depository (1989); Bank Admin. Inst. Task Force on ATM Crime, ATM Security Handbook 40 (2d ed. 1988).
Days Inns of America, 265 Ga. at 236.
1994 U. Ill. L. Rev. at 1011-1012 and 1028-1029.
Id. at 1025-1026.
Id. at 1029-1030.
OCGA §§ 7-8-1 to 7-8-8.
See Lau’s Corp., 261 Ga. at 493-494; Days Inns of America, 265 Ga. at 236, n. 1.
Wallace v. Boys Club of Albany, 211 Ga. App. 534, 536, n. 2 (439 SE2d 746) (1993).
Section 311.