(dissenting) — I would hold that the jury was properly instructed in this case and that it properly found the city was not liable for designing this intersection as a two-way stop. Rather than adhering to our settled jurisprudence in this area, the majority overrules our prior cases and unnecessarily confuses and expands the scope of a municipality’s duty to design and maintain its roads.
We have addressed the relationship between comparative fault and municipal duty a number of times. One of the leading cases dealing with this issue is Hansen v. Washington Natural Gas Co., 95 Wn.2d 773, 778, 632 P.2d 504 (1981), which the majority asserts is distinguishable on its facts. Majority at 254. I disagree. Our Hansen decision specifically addressed the language of this jury instruction. *256A close reading of both our decision and the underlying Court of Appeals decision reveals the majority’s error. In its Hansen ruling, the Court of Appeals held that the statement of a municipality’s duty as an obligation “to exercise ordinary care to keep its public ways in a reasonably safe condition for persons using them in a proper manner and exercising due care for their own safety”19 was correct “when contributory negligence was a complete defense to a tort claim, but is not applicable since this state adopted comparative negligence.” Hansen v. Wash. Natural Gas Co., 27 Wn. App. 127, 133, 615 P.2d 1351 (1980), rev’d, 95 Wn.2d 773, 632 P.2d 504 (1981). The Court of Appeals held a jury instruction omitting the italicized language properly stated a municipality’s duty to maintain its roads, precisely as the majority does now.
However, we rejected that approach and ruled:
This holding is erroneous. The adoption of comparative negligence does not create a new liability where none previously existed. Rather, recovery is now permitted where it was previously denied after liability has been established. The doctrine of comparative negligence does not enhance duty. It merely removes the bar to recovery when the plaintiff has been negligent.
Hansen, 95 Wn.2d at 778 (citation omitted).
Moreover, in reaching our decision, we relied upon Prybysz v. City of Spokane, 24 Wn. App. 452, 601 P.2d 1297 (1979). See Hansen, 95 Wn.2d at 778. Prybysz also addressed the language of a jury instruction describing a municipality’s duty. In Prybysz, the plaintiff specifically contended that the adoption of comparative negligence rendered a jury instruction expressing the duty with the disputed language “out of date.” The Prybysz court rejected this contention and concluded, “[s]ince no negligence was found on the part of the City, potential errors relating to comparative negligence are moot.” Prybysz, 24 Wn. App. at *257460. Hansen, 95 Wn.2d 773 is not distinguishable, as the majority asserts, and should control the result in this case.
Perhaps more importantly, the majority’s approach represents a significant revision of the scope of a municipality s duty. This pattern jury instruction is based on our cases analyzing the interplay between comparative fault and a municipality’s duty to design and maintain public roads. Hansen, 95 Wn.2d 773 will not be the only case overruled by the majority’s approach.20
The majority expands the duty municipalities have in the design and maintenance of roads by making the nature of the duty owed more general rather than more specific. Contrary to the majority’s assertion, municipalities are not held to “a general duty of care, that of a ‘reasonable person.’ ” Majority at 243 (quoting Dan B. Dobbs, The Law of Torts § 228, at 580 (2000)). Although a general duty of care “could conceivably be applied in all cases . . . courts in fact impose different standards of duty.” Dobbs, supra, § 228, at 580-81. In the design and maintenance of roads and streets, municipalities are held to the standard of duty of a reasonable municipality under the circumstances. A municipality has a duty to exercise ordinary care in the maintenance and repair of its public highways and to keep them in such a condition that they are reasonably safe for ordinary travel by persons using them in a proper manner and exercising ordinary care for their own safety. Ruff v. County of King, 125 Wn.2d 697, 704, 887 P.2d 886 (1995); Stewart v. State, 92 Wn.2d 285, 297, 597 P.2d 101 (1979).
By expanding this duty, the majority rejects the principles and concerns our cases have recognized. In Stewart, a claim was made based upon the alleged faulty design of a freeway bridge. We rejected an attempt to challenge a jury *258instruction and stated, “the State is correct in arguing that if the State were required to anticipate and protect against all imaginable acts of negligent drivers, it would become an insurer against all such acts.” Stewart, 92 Wn.2d at 299.
More recently, we addressed this issue in Ruff, 125 Wn.2d 697. Although Ruffs analysis dealt with a grant of summary judgment on facts involving a municipal duty to install a roadway guardrail, its holding turned on the municipality’s duty to design and maintain its roadways. We quoted the above language from Stewart and found further support for our approach in Leber v. King County, 69 Wash. 134, 124 P. 397 (1912):
“We think it will require no argument to make plain the fact that here there was no extraordinary condition or unusual hazard of the road. A similar condition is to be found upon practically every mile of hill road in the state. The same hazard may be encountered a thousand times in every county of the state. Roads must be built and traveled, and to hold that the public cannot open their highways until they are prepared to fence their roads with barriers strong enough to hold a team and wagon when coming in violent contact with them, the condition being the ordinary condition of the country, would be to put a burden upon the public that it could, not bear. It would prohibit the building of new roads and tend to the financial ruin of the counties undertaking to maintain the old ones. The unusual danger noticed by the books is a danger in the highway itself”
Ruff, 125 Wn.2d at 706 (quoting Leber, 69 Wash. at 136-37). Interestingly, Ruff rejected the Washington State Trial Lawyers Association’s argument, which the majority now accepts, that a municipality’s duty should be expanded. The majority, by rejecting the traditional scope of a municipality’s duty in the design and maintenance of roadways opens the door to the unreasonable burdens we identified in Ruff.
This issue is not something new to our courts. The scope of a municipality’s duty to design and maintain roads arguably has been settled since 1894, and is faithfully reproduced in the disputed language of the pattern jury *259instruction. See Teater v. City of Seattle, 10 Wash. 327, 329, 38 P. 1006 (1894) (holding city was required to keep street in a reasonably safe condition for persons traveling in the usual mode and exercising ordinary care). The duty is not expansive. Even the majority, by retaining “ordinary travel,” concedes a municipality does not have an unlimited duty to all persons using its roadways in any manner. The majority merely shrinks the more clear “ordinary travel by persons using them in a proper manner and exercising ordinary care in their own safety” language down to “ordinary.” Majority at 241, 252-53. This result needlessly confuses a municipality’s duty.21
Finally, the majoritys latest iteration of the duty owed will not benefit Keller in this case. The majority suggests Keller may have been traveling at speeds as low as the posted speed limit of 30 miles per hour. Majority at 240. However, Keller’s own accident reconstruction expert placed his speed at 45 miles per hour and conceded that the testimony of the lone eyewitness placing Keller’s speed at the lower rate was impossible to reconcile with the physical evidence. In fact, the 49-foot-long skid marks at the scene, and other evidence, place Keller’s speed as high as twice the posted speed limit before he applied his brakes. Even under the majority’s expanded duty, this is not “ordinary” travel. It is not surprising the jury found the City of Spokane not liable. To attribute this result to confusion regarding contributory negligence, an affirmative defense not presented at trial, is unpersuasive.
The pattern jury instruction accurately and clearly defines the scope of a municipality’s duty to maintain its roads. To find it is an incorrect statement of law, the majority misstates the relationship between comparative fault and the nature of the duty that may give rise to a *260finding of negligence, and overrules our settled jurisprudence to the contrary. I would reverse the Court of Appeals.
Smith, Madsen, and Owens, JJ., concur with Johnson, J.
Hansen v. Wash. Natural Gas Co., 27 Wn. App. 127, 132, 615 P.2d 1351 (1980) (quoting Owens v. City of Seattle, 49 Wn.2d 187, 191, 299 P.2d 560 (1956)), rev’d, 95 Wn.2d 773, 632 P.2d 504 (1981).
See, e.g., Ruff v. County of King, 125 Wn.2d 697, 704, 887 P.2d 886 (1995); McCluskey v. Handorff-Sherman, 125 Wn.2d 1, 7, 882 P.2d 157 (1994); Selvig v. Caryl, 97 Wn. App. 220, 223, 983 P.2d 1141 (1999); Wick v. Clark County, 86 Wn. App. 376, 381, 936 P.2d 1201 (1997); Gunshows v. Vancouver Tours & Transit, Ltd., 77 Wn. App. 430, 434, 891 P.2d 46 (1995); McKee v. City of Edmonds, 54 Wn. App. 265, 267, 773 P.2d 434 (1989); Fernandez v. Dep’t of Highways, 49 Wn. App. 28, 33, 741 P.2d 1010 (1987).
Both the plaintiff and the Washington State Trial Lawyers Association Foundation recognize that leaving “ordinary” in the phrase “ordinary travel” limits a municipality’s duty under the pattern jury instruction and have argued to remove “ordinary” entirely.