concurring.
I concur but write separately because I perceive a need to explicate the implications of this decision.
In negligence jurisprudence the basis of a cause of action is the breach of a duty owed by the defendant to the plaintiff. The existence and nature of this duty is determined by the relationship between the parties. The law has traditionally recognized a distinction between the duty owed to one invited upon the land occupied and controlled by the invitor and the duty owed to a tenant or a tenant’s invitee who enters upon the common ground controlled by the landlord. This distinction is clearly described in O’Neill v. Sherrill, 254 S.W.2d 263, 267 (Mo.App.1953). One who invites another to enter upon premises controlled by the invitor owes to his invitee the duty to warn of any dangerous condition so that the invitee may exercise an intelligent choice as to whether the advantage to be gained from accepting the invitation is sufficient to justify the risk he knows is inseparable from it. Knowledge on the part of the invitee dispenses with the duty to warn and where the evidence shows such knowledge, or where the danger is so open and obvious as to constitute constructive knowledge thereof, no breach of duty is shown; hence there is no actionable negligence. Id. at 267. This rule forms the basis for MAI 22.03, Verdict Directing — Invitee Injured, which requires a plaintiff invitee to prove as an element of his cause of action that he “did not know and by the exercise of ordinary care could not have known” of the dangerous condition.
On the other hand, the duty owed by a landlord to his tenant, or the tenant’s invitees, who enter upon the common ground controlled by the landlord is more than a mere warning of a dangerous condition; the duty is to make the common area safe. Otherwise, the tenancy may be diminished or even destroyed and the tenant deprived of the full value of his lease. See Roman v. King, 289 Mo. 641, 233 S.W. 161, 25 A.L.R. 1263 (1921), wherein it is held that the landlord’s failure to maintain the common areas of ingress and egress to demised premises can constitute a constructive eviction. This traditional solicitude for the tenant, and those standing in his right, is the basis for the omission from MAI 22.05, Tenant Injured on Premises Reserved for Common Use, of any finding regarding the plaintiff’s actual or constructive knowledge of the danger. The tenant or his invitee has no burden of proving the absence of awareness of the danger as an essential element of his case. Rather, his knowledge thereof is an affirmative defense casting the burden of proof upon the defendant.
I have indulged in this lengthy explication of the rationale underlying the distinction between the duty owed invitees and that owed to tenants as a basis for demonstrating that application of legal principles based upon labels is unrealistic in the world of contemporary merchandising. The trial court accepted the City’s contention that because plaintiff was upon its land not in response to the invitation of any particular tenant, plaintiff had the burden of disproving the discoverability of the danger and therefore it was error to give MAI 22.05 *520instead of MAI 22.03. Thus, who issues the invitation and plaintiffs subjective intent was held to be determinative of the duty owed to her. Her legal status and her right to expect safe premises became dependent upon whether she was going inexorably and exclusively to store A. If she was going to compare the prices and quality of merchandise offered by store A with those of store B she was not entitled to any such expectation but must fend for herself.
The prolific growth of the shopping mall and the modern merchandising practices under which such malls operate have obliterated the reasons underlying the distinction between the invitation of a tenant and the invitation of a landlord in cases of injury caused by defects in the common area. The configuration of shopping malls is designed in such a manner as to induce the patron of one store to pass by and view the wares of others. What formerly were hallways leading to the tenant’s stores have become elaborately decorated malls with fountains and rest areas all intended to be conducive to leisurely browsing from shop to shop, partaking all the while of varied refreshments offered by different vendors. They have, in effect, replaced the town square. No longer do store owners solicit patronage only by individual advertisement, but today’s shoppers are urged by television, radio, newspapers, by “occupant” mailings and by handouts to come to “the mall” because of the wide variety of available merchandise in a single location. In the larger of the malls, potential patrons of tenants’ shops are induced to come upon the common ground by various types of entertainment and exhibits. The cost of all these means of business solicitation, while perhaps paid directly by the mall operator, is borne by the tenants either through assessment or as a part of their rent. What the tenant pays for in his lease is not only the use and occupancy of so many square feet of floor space, but also the inducement of potential customers to come to the mall where his store is but one of many. If the mall owner fails to maintain the common areas of ingress and egress to the tenant’s premises in a safe condition, the value of the tenancy has been diminished or destroyed, whether the invitee comes to a particular store or comes only to browse from shop to shop. The rationale underlying the rule of landlord and tenant liability as set forth in Roman v. King, supra and O’Neill v. Sherrill, supra, should be equally applicable whether the invitee is responding to the advertisement of the mall owner or to that of one of his tenants.
The advent of comparative negligence brought about by Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983), renders the injustice and inequality of applying the traditional rules to such a case even more apparent. Under contributory negligence, the shopper injured by stepping into an open and obvious pothole in the parking lot controlled by the mall owner, could not recover regardless of whose invitee he might be. The discoverability of the danger destroys his case if he is an invitee of the owner of the land. The same discover-ability makes him guilty of contributory negligence, totally barring his recovery, if he is an invitee of a particular tenant. In either event, plaintiff recovers nothing. Today, however, if he says he is an invitee of a particular tenant, his failure to see what is obvious merely reduces the amount he may recover. If he admits he is going from one shop to another and is therefore an invitee of the mall owner, he cannot prove that he did not know or could not have known about the danger and he fails to make a submissible case. Thus, in the instant case, under the trial court’s conception that plaintiff was an invitee of the City, the finding by the jury that she was 40% at fault for failing to keep a lookout for her own safety would require the entry of judgment in favor of the defendant, rather than the granting of a new trial. Such unequal application of the law based solely upon a plaintiff’s expression of subjective intent should not be permitted.
The verdict of the jury in this case does not unjustly enrich the plaintiff who was charged with the result of her own negligence. It neither punishes nor excuses the defendant because of its negligent failure to maintain the common areas of ingress and egress. The verdict was fair, just and realistic. Accordingly, I concur.