existence of that relationship and those are the operative facts now if we get into the notion of whether or not there should be an exception to that general rule then the facts are c ultimately the only supreme court said no that is not the case there was a business invite relationship between the parties and that's a fish and therefore it's going back to trial work out in that case the defendant serves the court to create an exception to the special relationship rule and the basis for doing so makes our issue a little bit different and gets into the critical nature of the facts let's just turn point out so the issue really becomes very fact intensive in this case  forseeable and we would submit to the court that more than adequate evidence was presented to the trial to support the conclusion that it was indeed objective we forseeable certainly were entitle to make this all perceivable and let's start with the premise prior history of assaultive behavior first trial court was presented with evidence of significant violent criminal activity in this parking lot the north korean shop and say what was their army what was there better evidence was contained in our benefit of that summary of the more violent types of crimes that were going on in and around this premises really got to this particular battery  including the one that brings us here and those are customers i do not know that well that would make a difference for you well it may or may not make things well it probably makes a difference to wh because i can guarantee you that there are at least three a year or christmastime of people being assaulted and pushed around when they're taking just of their cars and having them taken away would have to have the additional security lights or additional security forces during november and december of every year no matter what neighborhood  it doesn't have to meet the precise elements in this case of a given offense and that's a little bit what the trial court was looking for was one how many batteries were there and were they against customers where they  that make something effective forseeable if there is this type of conduct going on in the parking lot with with regularity in the businesses parking lot with regularity then that is sufficient to put them that there is enough there to chop and say could have foreseen should have foreseen the possibility of this thing happening again or something like it or something worse  specific cases generally that there had been some criminal activity outside the store the still to death test and yes i believe so i don't think the marshal what shop and say actually anticipate and what they and actually anticipated well ok i mean it was reasonably forseeable that act what oh i shall give it a anticipate nighttime violent criminal activity in its parking lot against employees that's what the test here in this particular time at this particular location in the test derives from section three forty four of the stay the tort of torts that the sexually says we need to look at the property owner's  past experience and the nature of the character of the business well on the one hand we have the nature and character of businesses being open extended hours with substantial violent criminal activity going on  premises setting aside all those however many other minor property crimes that are going on there's a pretty substantial bit of criminal of a violent criminal activity directed the person going to the nature of the character of the business is such that and the restatement of torts they should probably have some idea that this could happen again on in terms of their past experience the past experience the statement talks about saying this case comes from their own internal documents where they express that they're sick first of all the higher ups and that can be some evidence that they anticipate criminal conduct on second of all they dedicate those resources to the security guards in the training that goes into them to being present in the parking lot at least forty percent of their time at night and the purpose for that is to port offense deter all criminal activity directed at home customers and employees they specifically on the state that they're looking for you know trying to look out for elderly customers on their way to their car or loan payments make sure they're sort of in their car and watch them exit the premises exit the property so that would be the rule that i would propose that they simply for hill to be deemed to force because of the funky language but seem to foresee objective really what they actually foresaw you know reality and they did in actuality expect by virtue of their bit of hiring training iron guards training guards putting them in the parking lot for forty percent of their time and night telling them that they should spend more time in their cars night for purposes of deterring night time perhaps violent criminal activity in the park and i think that that raises the point when we're talking about implicit in that is a requirement that there be no choice but that's an implicit element that the court is injecting into that and that is not what martial burger king tells u require so to allow or permit one for you to solve when we've got a pattern of criminal activity going on in the parking lot when we've got  business that's hiring security guards putting them out there theoretically night at least on paper however them to watch out for nighttime potentially violent criminal activity in the parking lot directed at their a rule on this case that says you know there was a lot going on in that parking lot they had security they had procedures in place it was for see ability but again under martial we can go back to simply the existence of an insider invite relationship and any inquiry there that if you exist and we get to see what the jury thinks of my theory  science but the gist of it is if there was a security guard present perfect which is the theory behind security forces everywhere the mere presence of judgment they flew to everybody who was on the premises who were present and at that time the two cashiers the manager and the security guard we filed in support of our motion for couple kids to going to doubt in the parking lot but it didn't have anything to do with that and the facts are clear that no one in the store knew that mr w have even better approach by this underage youth seeking to buy here whatever they were trying to buy nor did they know anything about the incident at all until after mr war we i've never had any problem i've come in here for years i still come in here i've never had one problem in the store except for this incident while the plaintiff in the rogers case was the same i a regular customer looked across the street from the store went and bought something came out and was assaulted by a couple men who had been in the store and the differences they caused to the storm and so that the cashier saw their disturbance and sent them on their way that's the only difference this court found that the summary judgment that had been granted in rogers was proper and affirmed on that basis and in doing so this court looked to a prior  because we have security because shoplifting a curse doesn't mean that we've undertaken a duty to prove prevent any criminal assault nor was this criminal assault reasonably foreseeable proof which resulted in verdicts in favor of the plaintiff which were overturned on the basis that that was improper and the defendant oh don't do as well again because that wasn't re send this to the jury is is there anything for the jury to decide in burger king what the court was deciding was did the defendant oer duty the court said this is  think when you read the of our case the court limits that limits the impact over and over again and i'm sorry if that's ok the court did find though that it was reasonably forseeable that a car facts right back the courts were not even deciding what the nature of that duty is we just won't walk down that path that says there's no duty so it was it was very that's  traffic area this is and they were dealing with negligence i mean negligent driving and they said hey i tried to carry negligent driving happens all the time we're not going to say that you don't have to think about that that if you don't have some duty we're not going to tell you what to do to us we're not saying that it was breached we're not saying there's proximate cause we're not saying anything else we're just saying that a business to do to a customer period and they then over and on the basis that the existing law does so the grant summary judgment in this case and on the basis that this record is free with facts there's minimal discussion of any prior criminal activity on the premises or near the premises there may be one reference a big reference by one clerk in her no policy reason in this case to not extend that to mr over back there is more of a forseeable then there is not and then there is evidence of another record your summary if you think is sufficient as a response to a motion for summary judgment given the fact that your own expert said he had no knowledge of any customer what we were dealing with there is a discovery deposition hotel room and what we had were incident reports not police reports from them for the sake of spring we'll then i would submit to the court that simply a function of he couldn't remember at that point in time i'm not saying one way or another where the prior incidents and for customers but they certainly occur on shop and say property and again i think what matters here is it's the nature of the this they actually did anticipate this kind of thing directly customers regardless of whether it actually occurred against customers becomes a little bit