dissenting.
I respectfully dissent. In reaching its decision to reverse Rhaney’s award, the majority sets out a plausible interpretation of the evidence presented as trial. I would take no issue with its conclusion if it was the jury assigned to this case below. Of course, though, it is not a jury, but an appellate court that may not usurp the jury function. Instead, in my opinion, the award should be upheld because the University owed a duty of reasonable care towards Rhaney under the very specific circumstances of this case and the jury was entitled to find a breach of that duty, based upon the evidence presented at trial.
The underlying legal question in this appeal is whether the University owed Rhaney a duty to prevent Clark’s assault. Ordinarily, a person has no duty to protect another from criminal acts by a third person. Scott v. Watson, 278 Md. 160, 166, 359 A.2d 548 (1976). If, however, a “special relationship” exists between the actor and the third person, or between the *61actor and the injured person, a duty may be imposed. See Restatement (Second) of Torts § 315 (1965). In its jury instructions, the court identified four different “special relationships” that might allow for the University’s liability: business to invitee; landlord to tenant; university to student-victim; and university to student-aggressor. Rhaney needed only one basis to get his case to the jury. I find the first basis, business to invitee, applicable and dispositive of the appeal.
A business owes its invitee “a duty to use reasonable and ordinary care to keep the premises safe and to protect the invitee from injury caused by an unreasonable risk, which the invitee, by exercising ordinary care for his own safety, will not discover.” Southland Corp. v. Griffith, 332 Md. 704, 715-16, 633 A.2d 84 (1993) (citation omitted).
“The burden is upon the customer to show that the proprietor ... had actual or constructive knowledge” that the dangerous condition existed. When another patron creates the danger, the proprietor may be liable if it has actual notice and sufficient opportunity to either correct the problem or warn its other customers about it.
Rehn v. Westfield America, 153 Md.App. 586, 598, 837 A.2d 981 (2003). In other words, a business’s duty of care includes a responsibility to protect its invitees “against dangers which may be caused by negligent acts of ... employees, or even of customers,” if those acts were foreseeable. Giant Food, Inc. v. Mitchell, 334 Md. 633, 636-37, 640 A.2d 1134 (1994) (quotation omitted).
It is clear to me that the University, in the business of education, owed Rhaney, a customer of its services, a duty of ordinary care. That duty included a protection against the particular violent act that Clark perpetrated against Rhaney because the University had actual knowledge of Clark’s propensity to fight with students, and it had the opportunity to correct for this problem by, among other things, expelling Clark all together, suspending him temporarily and readmitting him upon actual or reasonable evidence of rehabilitation, *62and/or allowing him to re-matriculate, but barring him from living in the dormitories, where, without a doubt, he would be forced to interact with other students.
In suspending Clark, then readmitting him, then allowing him to live in the dormitories, and then allowing him even to share a double occupancy room, the University made business decisions that affected its other students. The University took a special interest in Clark—his earlier aggression forced it to do so—and once it did, the University alone knew the true risk of exposing Clark to other students, especially in the close, personal space of living quarters. Given Clark’s earlier conduct, it should not be said that his violent and exaggerated response to the damaged fish tank was unforeseeable.
This would be a different case if the University did not know of Clark’s past troubles relating to students, or if the University had readmitted Clark, but not allowed him to live in the dormitory and the fight happened in a lecture hall, rather than a bedroom. Indeed, it would be careless to read this dissent as an invitation to impose liability on every college that admits any student who has ever been disciplined for violent behavior. The legal concept of duty is more complicated than that, depending, as it does, upon each particular set of facts. There are principles and guideposts for determining duty, not simple formulas. I would hold that a duty existed here.
I would also respect the jury’s prerogative to find a breach of that duty and award Rhaney compensation. In Fowler v. Smith, 240 Md. 240, 246-47, 213 A.2d 549 (1965), Chief Judge Prescott explained the breach factor of Maryland’s tort law in one important and often-quoted paragraph:
Negligence is a relative term and must be decided upon the facts of each particular case. Ordinarily it is a question of fact to be determined by the jury, and before it can be determined as a matter of law that one has not been guilty of negligence, the truth of all the credible evidence tending to sustain the claim of negligence must be assumed and all favorable inferences of fact fairly deducible therefrom tend*63ing to establish negligence drawn. And Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury. The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury. However, the rule as above stated does not mean, as is illustrated by the adjudicated cases, that all cases where questions of alleged negligence are involved must be submitted to a jury. The words “legally sufficient” have significance. They mean that a party who has the burden of proving another party guilty of negligence, cannot sustain this burden by offering a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture that such other party has been guilty of negligence, but such evidence must be of legal probative force and evidential value. The rule, stated in slightly different terms, is that where the facts are undisputed, or the facts most favorable to the party carrying the burden of establishing another party’s negligence are assumed to be true and all favorable inferences, fairly deducible therefrom, are drawn in favor of the burden-carrying party, and such undisputed facts (or the said favorable facts and inferences) lead to conclusions from which reasonable minds could not differ, then the question of negligence, vel non, becomes a question of law.
(citations omitted). This expression of deference to the jury function—indeed, in such a way as to set Maryland apart from other states—should allow for Rhaney’s recovery in this case.
The Rhaney jury saw Clark, a huge man who weighed 240 pounds. He attended and testified at the trial, even though the case against him had been decided by default. From the evidence it heard and saw, the jury could have discerned that after the University learned of Clark’s aggressive actions toward other students, it readmitted him after insufficiently correcting his behavior so as to protect others. The only requirement Clark had to fulfill to regain admission was to select and attend a so-called “anger management” course, one *64that the jury could evaluate and that Rhaney argued was utterly bogus. The University did not select it, Clark did, but nevertheless the University approved it, even though it was designed primarily to teach juveniles on probation in Washington, D.C. respect for the law. With nothing more&emdash;no counseling, no probationary supervision&emdash;the University exposed an unwitting incoming freshman to Clark’s aggression.
I would hold on these facts and inferences that it was proper for the jury to decide whether the University’s meager response discharged its duty to protect Rhaney from a foreseeable danger. The jury here must have found the University’s response insufficient and so returned a verdict in Rhaney’s favor. I would respect and uphold the jury’s decision.