(concurring) — My colleagues have accurately outlined the law on premises liability in Washington. And they have applied that law to the facts of this case.1 And, of *469course, they accurately recite the facts. I will, nonetheless, write separately. I do so because in my judgment the law of premises liability is anachronistic and out of step with modern social and legal thought, and is therefore just plain wrong. Traditional premises liability law relies on the status of the injured person rather than the propriety of his or her conduct. It does so because traditional premises liability law is largely the product of a legal system that did not include negligence. Nelson v. Freeland, 349 N.C. 615, 623, 507 S.E.2d 882, 887 (1998).
The facts of this case highlight for me the problem with the current approach to premises liability more clearly than any in recent memory. The lawyers here spend their time and talent arguing over whether “[a] little bowl”2 and a $15 credit toward Tupperware products is enough to move the injured plaintiff’s status from that of a social invitee to that of a business invitee with all the protections that would go along with a business invitee.
The debate ought to be over whether these stairs were properly maintained in the first place, considering all the factors which would bear upon that question, like who could be expected to use them, when, and under what conditions, and whether the injured person should have been paying more attention to what he was doing when he fell. In other words, factually is the conduct of either or both of these litigants reasonable under all the circumstances. And, if not, then by what percentage did the negligence of each contribute to this injury.
As others before me, I ask “ ‘[W]hy in common reason should a person invited for the occupier’s pleasure be worse off than one who is about business concerning both?’ ” Sideman v. Guttman, 38 A.D.2d 420, 425, 330 N.Y.S.2d 263, 268 (1972) (quoting P.A. Landon, Pollock Law of Torts 422 (14th ed. 1939)).
In Washington, the duty of care owed by a landowner to those coming on the property turns on the status of the *470person entering — trespasser, licensee, or invitee. Van Dinter v. City of Kennewick, 121 Wn.2d 38, 41, 846 P.2d 522 (1993); Younce v. Ferguson, 106 Wn.2d 658, 662, 724 P.2d 991 (1986). But this traditional rule has been under attack by both thoughtful commentators and jurists for a long time. In the landmark case of Rowland v. Christian, the California court observed that
Whatever may have been the historical justifications for the common law distinctions, it is clear that those distinctions are not justified in the light of our modern society and that the complexity and confusion which has arisen is not due to difficulty in applying the original common law rules — they are all too easy to apply in their original formulation — but is due to the attempts to apply just rules in our modern society within the ancient terminology.
Rowland v. Christian, 69 Cal. 2d 108, 117, 443 P.2d 561, 567, 70 Cal. Rptr. 97 (1968). The reason for this was that
[a] man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty.
443 P.2d at 568.
And, indeed, common law rules do obscure proper considerations. No less a legal scholar than Guido Calabresi, in his epic work A Common Law for the Age of Statutes, notes the importance of Rowland:
Faced with the time-honored, but also time-worn, common law distinction between a landowner’s liability to guests and to business visitors, the California court in traditional common law fashion moved to abolish the difference. In what has *471become a much followed and praised opinion it said that the distinction made no sense under modern conditions.
Guido Calabresi, A Common Law for the Age of Statutes 10 (1982).
The important discussion here ought to be over what these parties should have done to protect Alton Beebe. The fact that Mr. Beebe was there for a Tupperwaré party should not make him any less worthy of protection — or more worthy of protection — than a business invitee. The host’s obligation to make his or her premises reasonably safe for those invited on his or her property should not turn on whether there is some business benefit.
Almost all commentators have criticized the rule. Sideman, 330 N.Y.S.2d at 267 (“[s]o far as my research discloses, every commentator who has discussed this question of the classification of social guests as mere licensees for purposes of determining the level of care owed such guests by the host. . . has strongly criticized the rule,” listing a number of law review articles).
Comments from this South Dakota Law Review are typical:
The common law premises liability classification scheme, which graduates the duty of care owed by a land occupier to an entrant according to the entrant’s status of “trespasser,” “licensee” or “invitee,” has outlived its useful purpose. Changes in social mores, humanitarian values and societal living arrangements warrant abrogation in South Dakota of the traditional status distinctions as determinative of the scope of duty of care owed by occupiers to entrants ....
Mark. J. Welter, Comment, Premises Liability: A Proposal to Abrogate the Status Distinctions of “Trespasser” “Licensee” and “Invitee” as Determinative of a Land Occupier’s Duty of Care Owed to an Entrant, 33 S.D. L. Rev. 66, 89 (1987/1988). Even England, the country generating this doctrine, has abandoned it. Nelson, 507 S.E.2d at 885.
It is time to abandon these feudal-based, common law distinctions and instead pass upon these premises liability *472questions based on the reasonableness of the conduct of the injured party and the owner/occupier of the land.
Reconsideration denied October 17, 2002.
The facts material to the dispute are undisputed. The only question before the court is one of law: what legal status do the facts support — social invitee or business invitee. Schreiner v. City of Spokane, 74 Wn. App. 617, 621, 874 P.2d 883 *469(1994). So based on traditional premises liability law, the trial judge was correct to dismiss the case. My dispute is with these traditional rules being applied.
Report of Proceedings at 125.