DISSENTING:
I respectfully dissent because I believe the Majority embarks upon an unwise departure from the sound social policies realized in the Manis rule. Based upon a faulty premise, the majority abolishes the well-established Manis rule that has worked well in Kentucky for nearly 50 years and continues as the rule in many states.
The flaw of the majority’s reasoning is signaled by this statement, found on page 14 of its opinion: “[T]he Manis .rule create[s] a legal anomaly excepting obvious outdoor natural hazards from the comparative-fault doctrine.” That is incorrect, as explained below. For more than thirty years, the Manis rule has co-existed in complete harmony with comparative fault. Moreover, the majority’s premise reveals its conflation of two distinctly different concepts: duty and liability, or more directly, the existence of a duty and the allocation of liability. The Manis rule pertains to the, existence of a legal duty. The existence of a legal duty is a policy determination made legislatively by statute or judicially by common law decisions. Comparative fault, like, contributory negligence, pertains to how liability (or, if you prefer, “fault”) for an injury will be allocated after it has been determined that one or more of the parties breached a duty imposed by law. Nothing about the Manis rule is incompatible with comparative fault.
Because the majority conflates the concepts of duty and liability, it erroneously concludes that the Manis rule is an offshoot'of contributory negligence, and from there it reasons that the abrogation of the latter doctrine requires the demise of the former. The Manis rule is not derived from contributory negligence; it has been proven to be sound social policy operating without complication or injustice in comfortable harmony with comparative fault. The Manis rule is as viable now as it was in 1968 when the case of Standard Oil Co. v. Manis, 433 S.W.2d 856 (Ky. 1968), was decided. The circumstances that validated the wisdom of the rule when it was articulated have not changed. As long as the hazards of naturally-occurring accumulations of snow and ice remain intractable, there is no reason to change the rule.
The claim that the Manis rule survives only as a remnant of the by-gone era of contributory negligence reflects a fundamental misperception about the develop*301ment of tort law that we dispensed with in Henson v. Klein, 319 S.W;3d 413 (Ky. 2010), where we rejected a similar claim that the sudden emergency doctrine was an outmoded vestige of contributory negligence incompatible with comparative fault. Like the Manis rule, the sudden emergency doctrine pertain's to the question of whether duties exist and what the duties require. In no way does it affect, nor is it affected by, the method by which liability for a breach of those duties is allocated. We said in Henson:
Although the sudden emergency doctrine developed when contributory negligence denied damages to injured plaintiffs whose own breach of care contributed to their injuries, it is not in principle uniquely or exclusively applicable to contributory negligence. Moreover, nothing in the substance of the doctrine is incompatible with the more equitable principles of comparative negligence.
319 S.W.3d at 422.4 We warded off the same contention in Shelton v. Kentucky Easter Seals Soc., Inc., with respect to the “open and obvious hazard” doctrine as it pertains to artificially-created hazards:
The adoption of comparative negligence ... did not alter the requisite elements of a prima facie negligence claim. As a result of the holding in Hilen v. Hays, Kentucky became a pure comparative-fault state; but under comparative fault a plaintiff must still prove the defendant owed a duty to the plaintiff, breached that duty, and consequent injury followed. The evolution from contributory negligence to comparative , fault focused on the method in which fault is allocated but did not alter the substantive law surrounding what' duties are owed by a defendant.
413 S.W.3d 901, 906 (Ky. 2013) (emphasis added).
To reiterate: the shift to comparative fault “did not alter the substantive law surrounding what duties [exist].” Id. Ultimately, in Shelton we abrogated the “no duty” aspect of the open and obvious doctrine as it pertains to artificially-created hazards, but we did so for reasons based purely upon social policy. We did not succumb to the flawed reasoning that the “open and obvious” doctrine was based upon the theory of contributory negligence.
' Shelton emphasized that “[t]he determination of whether a duty exists is a legal question for the court.” - Id. at 908. “[W]hether a duty of care exists is ... a purely legal question, grounded in social policy.” Id. at 913. - We found no solid social policy to sustain the open and obvious rule in the context of an indoor artificially-created hazard. However, those policy considerations have no relevance to the conditions of naturally occurring snow and ice. The social policies supporting the Manis rule are reviewed below; but first, an explanation-to dispel the notion that the Manis■ rule is the step-child of contributory negligence.
A. The Manis Rule was not based upon contributory negligence and its continuing viability is not at odds with comparative fault.
“The Manis rule,” derived from Standard Oil v. Manis as well as subsequent cases including Corbin Motor Lodge v. Combs, 740 S.W.2d 944, 946 (Ky. 1987), and PNC Bank, Kentucky, Inc. v. Green, *30230 S.W.3d 185 (Ky. 2000), may be summarized as follows:
An obvious and natural accumulation of snow and ice does not constitute an unreasonable risk which the landholder (a landowner, a leaseholder, tenant, or other person with control of land) has a duty to remove or warn against; however, a landholder who undertakes to mitigate the danger posed by the snow and ice assumes the duty to avoid measures that heighten or conceal the dangerous condition.
As commonly condensed, the rule provides that a landholder has no duty with respect to naturally-occurring accumulations of snow and ice. This “no duty” aspect of the Manis rule has nothing to do with the contributory negligence of the invitee. Contributory negligence has never operated to exempt a person from a duty of care. Contributory negligence did not diminish the landholder’s general duty to maintain his property in a reasonably safe condition. Contributory negligence did not eliminate or reduce any duty at all. It simply provided that the landowner cannot be held liable for breaching his duty of care when an invitee’s own negligence contributed to the injury. The difference between having no duty and having no liability for the breach of a duty is fundamental. Under contributory negligence, the landholder has no liability despite his breach of a duty; under the Manis rule, the landholder has no duty.5
The point is further illustrated by the fact that the Manis rule insulates the landholder from liability for injuries caused by natural accumulations of snow and ice, even when the invitee has exercised the utmost care for his own safety and acted in the most reasonable way 'possible. The Manis rule simply takes no account of the invitee’s exercise of care. Given the universal knowledge that snow and ice left in the aftermath of a winter storm are dangerous, more often than not the vast majority of people exercise extreme caution when walking on ice, just like the injured pedestrian in PNC Bank, Kentucky, Inc. v. Green who complained the she “was forced to walk like she was ‘walking on eggs’ to avoid falling.” 30 S.W.3d at 187. That is exactly what people of ordinary common sense have always done. Yet, despite the exercise of extreme caution, people get injured because snow and ice in freezing weather is a natural condition that defies human control. The Manis rule applies to bar tort recovery, not because the plaintiff was negligent, but because the landholder had no duty. Far from being a rationale supporting the Manis rule, the plaintiffs contributory negligence is immaterial under Manis.
To hold that the Manis rule is derived from contributory negligence ignores the fact that Manis is completely indifferent to the conduct of the invitee. Regardless of how careful or how careless the invitee may be, under Manis, the landholder has no duty to render his property safe from the risks inherent to natural accumulations of snow and ice. To the contrary, contributory negligence is totally based upon the conduct of the invitee because, regardless of the landholder’s duty, it bars recovery *303when the invitee’s negligence, no matter how small, contributed to his injury.
Articulated nearly fifty years ago, the Manis rule operated concurrently with contributory negligence for only sixteen years, until 1984 when comparative fault supplanted contributory negligence. For a far longer span of time, over thirty years, the Manis rule has applied predictably, consistently, and harmoniously with comparative fault. The majority may denigrate the Manis rule by imputing to it a pedigree rooted in contributory negligence, but it improperly does so by inappropriately conflating the existence of a duty with the apportionment of liability resulting from the breach of a duty.
In Shelton and Henson, we recognized that comparative fault does not affect the substance of common law duties; rather, it operates within the existing regime of common law duties to allocate liability after it is determined that a duty was breached. Long ago, the Wyoming Supreme Court rejected the same claim now embraced by the majority when Wyoming’s rule, equivalent to the Manis rule, was challenged as a vestige of contributory negligence. That court said:
Comparative negligence only abrogated absolute defenses involving the plaintiff’s own negligence in bringing about his or her injuries. However, it did not impose any new duties of care on prospective defendants. Since the law of this state is to the effect that there is no duty to remove or warn of an obvious danger or one that is known to the plaintiff no change was accomplished in that law by the adoption of comparative negligence.
Sherman v. Platte County, 642 P.2d 787, 790 (Wyo. 1982) (emphasis added) (citation omitted).
The majority speculates (see footnote 2 at the bottom of page 13) that this Court’s refusal to retreat from the Manis rule when we decided Corbin Motor Lodge v. Combs in 1987 “may have been instrumental in the passage of KRS 411.182, which establishes comparative fault by statute.” That is strange indeed, because if the General Assembly was roused to action by our application of the Manis rule in Corbin Motor Lodge, it could easily have expressly abrogated the Manis rule at the same time. As long as we’re speculating, the fact that the General Assembly chose not to do so suggests strong legislative support/or the Manis rule.
Because the legislature has not weighed in with its policy prerogative, whether the Manis rule is abolished or upheld remains exclusively a public policy decision for this Court to decide. A wise decision on that issue should be based upon the continuing social value found in the benefits and burdens of the rule; it should not be based upon the illusion that the rule is tainted by an association with contributory negligence or is otherwise out-of-synch with the more fashionable trends of tort law development.
B. The Manis rule is a manifestation of sound and wise social policy; the hazard caused by naturally occurring snow and ice is not an “unreasonable” risk from which any duty arises.
Shelton re-affirms that whether a duty exists is a purely legal decision that can be made by the Court as a matter of social policy. Our responsibility for the development of common law duties obliges us to be mindful of the practicalities of day to day life as we craft social policy. Our function in that regard is to establish duties, or standards of care, that deter harmful behavior and promote beneficial conduct. After great deliberation and debate, we concluded in Shelton that the *304open and obvious doctrine as it pertained to artificial, man-made hazards, was no longer sound social policy. Some naturally occurring conditions, specifically snow and ice, present different considerations.
The overarching principle of premises liability is that “a landowner has a duty to an invitee to eliminate or warn of unreasonable risks of harm.” Shelton, 413 S.W.3d at 914. The same duty can also be described this way: “an invitor has a duty to maintain the premises in a reasonably safe condition 'in anticipation of the invitee’s arrival.” Id. at 908. “Reasonableness,” whether stated as an “unreasonable risk” or as a “reasonably safe condition” is the essential quality of a landholder’s duty. In Shelton, we recognized that the reasonableness of a risk, and hence the existence of a duty, should be discerned by- a jury, analyzing and weighing the benefits and burden of requiring the landholder to remove the hazard against the benefits and burden of not requiring the landholder to act. Id. at 918. (“There must be a weighing of the burden of eliminating* the risk with the harm posed.”).
Implicit in the Shelton calculus was our recognition that virtually every artificial hazard can be removed, fixed, or otherwise eliminated by the same hands that made the hazard or tolerated its presence. Loose wiring on the floor can be bundled and moved or covered with furniture; loose handrails on stairways and balconies can be secured; - potholes in-the parking lot can be filled; dark porches can be illuminated; broken steps, torn rugs and rotten floorboards can be repaired or replaced; asbestos can be removed or contained; grease on the pavement can be cleaned; spilled food on the grocery floor can be mopped up or roped off; a sharp curb- can be reshaped.
Shelton calls for a balancing process by which a hazard could not be regarded as an “unreasonable risk” when the burdens of eliminating it exceeded the risk of harm created by it. As noted above, virtually all of the artificial, or man-made, hazards that have caused injury in the cases we have seen were subject to relatively simple fixes, and so the question of whether they pose an. “unreasonable risk” can be readily determined. In real life, that assessment would be first undertaken by the landholder in deciding how to maintain his property. If injury and litigation ensue, under Shelton the jury would balance the scales and make the determination.
In sharp contrast however, the hazards of naturally-occurring accumulations of snow and ice present a fundamentally different problem. Despite all the technological advances since Manic was decided nearly fifty years ago, rock salt (or a similar compound) and snow shovels are still the state-of-the-art means for coping with snow and ice. And as everyone knows, they do not eliminate the hazard. Sometimes, they even make the hazard worse, as noted in Estep v. B.F. Saul Real Estate Inv. Trust, 843 S.W.2d 911, 914 (Ky. App. 1992) (Landholders who attempted to clear their lot and sidewalks of ice and snow assumed the' duty of doing so in a reasonable manner or be liable for their failure).
The landholder generally has no better ability to protect invitees from the hazards of snow and ice on a parking lot than he does to protect them from the hazards of a parking lot inundated with flood water or from the danger of strong winds that might cross his lands. In real-life, a landholder in freezing weather can no more effectively melt the ice from his sidewalk than he can hold back the flood waters or stop the wind.
No social benefit is achieved by imposing a duty that cannot be performed. We have repeatedly reaffirmed over the past fifty years that natural accumulations of *305snow and ice do not pose an “unreasonable risk” and so the landholder’s duty of ordinary care does not include an obligation to eliminate the hazard. Because the risk posed by snow and ice is a reasonable risk, it gives rise to no duty. The risk is reasonable, or stated in the alternative, the risk is not unreasonable, because: 1) the danger is readily apparent; 2) the eonse-. quences to pedestrians (falling) and to mo1 torists (wrecking) are universally understood; and 3) “the burden of eliminating the risk” is a practical impossibility. Even after the best efforts of snow and ice-removal are undertaken, the danger to those who walk on it remains. This is as true now as it was in 1968 when Mariis was decided.
The social policies informing our debate about the existence of a duty also require us to account for the ability of respective actors in the relevant arena to control the instrumentalities that inflict harm. For example, we do not impose upon a ear manufacturer the duty to remove hazards from a car built by a different car maker, nor do we burden a landholder with the duty to remove hazards from his neighbor’s land. The reasons are plain. To be sure, there is a measure of justice in requiring that those who cause injury must bear the burden of fixing it. But the greater reason is that to serve the social policy of reducing or eliminating the harm of 'injuries, the “burden of eliminating the risk” must land upon someone with enough control over the hazardous situation to fix it. With respect to snow and ice, the landholder may have control over land but he has no control over the weather. He has no way to control the snow and ice; and no way to effectively prevent it from hurting those who choose to walk' upon it.
In contrast with the landholder’s inability to control where the snow falls and where the ice remains, the invitee has absolute and total control of where and when he places his foot on the snow-covered ground. The injury does not occur until the invitee comes into contact" with the obvious danger. The invitee has far more control over how his body will come into contact with the ice ahead of him. As noted in the preceding section, it is generally foreseeable that people walking on snow and ice exercise the utmost caution; they are not’ careless. But, the social policy we evaluate has nothing to do with the invitee’s negligence or lack thereof. It has all to do with .the ability to control the circumstances that can prevent the harm. There is great wisdom in placing the burden of the reducing the risk upon the one who has the best ability to control the risk. The Manis rule does that. •
If our social policy is based upon the goal of reducing harmful injury, shifting the duty to the landholder by eliminating the Manis rule does not advance us to that goal because we would be placing the duty on one who cannot prevent the harm. The Supreme Court of Texas, a state which also operates under the Manis rule, noted that “the plaintiff is in a much better position to prevent injuries from ice or snow because the plaintiff can take precautions at the very moment the conditions are encountered.” See Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 414 (Tex. 2010) (quoting Eiselein v. K-Mart, Inc., 868 P.2d 893, 898 (Wyo. 1994) and citing to Manis). This point is important because it exemplifies the social policy at work — placing the duty to reduce harm on the actor who has the best ability to control the instrumentality of harm. It has nothing to do with the putative negligence of an invitee; it has all to do with control of the circumstances leading to the injury, which are inherently retained by the invitee.
*306The Supreme Court of Ohio has also rejected efforts to abrogate its articulation of the Manís rule:
Recognizing [the inherent dangers of winter weather] we have previously rejected the notion that a landowner owes a duty to the general public to remove natural accumulations of ice and snow from public sidewalks which abut the landowner’s premises, even where a city ordinance requires the landowner to keep the sidewalks free of ice and snow.... [W]e are unwilling to extend homeowner liability to cover slip-and-fall occurrences caused entirely by natural accumulations of ice and snow. To hold otherwise would subject Ohio homeowners to the perpetual threat of (seasonal) civil liability any time a visitor sets foot on the premises, whether the visitor is a friend, a door-to-door salesman or politician, or even the local “welcome wagon.”
Brinkman v. Ross, 68 Ohio St.3d 82, 623 N.E.2d 1175,1177-78 (Oh. 1993).
The Illinois Supreme Court retains the same rule, holding in Krywin v. Chicago Transit Auth., 238 I11.2d 215, 345 Ill.Dec. 1, 938 N.E.2d 440, 450 (Il. 2010):
[T]he natural accumulation rule applies in this case and [the landholder] had no duty to remove the natural accumulation of ice and snow from its platform, nor any duty to warn of the existence of such natural accumulation. As there was no evidence that the ice on the platform where plaintiff fell was anything other than a natural accumulation[.]
Other states retaining the “no duty” rule for natural accumulations of snow and ice include North Dakota (see Fast v. State, 680 N.W.2d 265, 270 (N.D. 2004)) (“We need not decide whether the snow and ice accumulation in this case was natural or artificial because, given the climate in North Dakota, it would be unreasonable and unduly burdensome to hold the State liable without some further act or omission on its part creating an unreasonably dangerous condition.”) and Wyoming. See Eiselein v. K-Mart, Inc., 868 P.2d 893, 895 (Wyo. 1994) (“[T]his court has adopted the rule that an owner or occupier of a premises will not be liable for injuries resulting from a slip and fall on a natural accumulation of ice or snow.”). However, we should not need a state-by-state survey to know the best policy for Kentucky. Given the fundamental differences between artificially-created hazards and the natural accumulation of snow and ice, and considering the social policies inherent to exercising our responsibility over the common law doctrine, I respectfully suggest that neither justice nor the people of Kentucky will be well-served by abrogating the Man-ís rule. The majority errs in doing so.
It is suggested that eliminating the Manís rule will encourage landholders to be pro-active in clearing their land of snow and ice. Common experience refutes that assumption, especially as it relates to business property. It is well-known that when a winter storm hits Kentucky, after a brief flurry to secure basic commodities, commerce comes to a virtual standstill as drivers are warned to stay off the roads. Businesses strive to make their properties as inviting as possible to employees and customers, working diligently to clear what can be cleared. Common everyday experience confirms that the Manís rule does not overcome the landholder’s fundamental incentive to make property safe and attractive for invitees. There is certainly no evidence to suggest that doing away with the rule will promote the social policy of making property safer.
It is also worth noting that elimination of the Manís rule will have its harshest effect on residential landholders, especially *307those who lack the means and resources to attack the hazard that nature has dropped upon their land. Until now, homeowners and renters have had no duty to remove the snow that fell and the ice that formed upon their sidewalks and driveways. From now on, they will be obligated to brave the elements, risking injury to themselves in a futile attempt to eliminate the defects that can only be truly “repaired” by warmer air and sunshine, which fortunately in Kentucky is usually only a few hours away, and rarely is it more than a day away. I fail to see the social advantages of the policy imposing that duty. We could as well impose a duty upon owners of outdoor swimming pools to protect invitees from the harmful ultraviolet rays of the sun, and one could reasonably construe the majority opinion as now imposing that very duty.
Under the majority opinion, the “burden” of snow and ice removal now placed upon the residential landholder might be ameliorated by the jury sorting out the inequities with a finding that the residential landholder has satisfied his duty to take “reasonable” measures if he has done no more than what his particular circumstances permit him to do. But then, we have one duty for the rich and another duty for the poor;. one for the hearty and healthy landholder who can shovel snow and another one for the frail and disabled. Attorneys, judges, and juries alike must now bend the assessment of what is “reasonable” to accommodate the particular circumstances of the landholder, essentially reflecting a social policy that says the poor man’s invitee is due less protection than invitees of the wealthy. Shoppers at stores operated by large wealthy corporations, such as Walmart, would be entitled to greater protections than those shopping at corner grocery stores in poor neighborhoods. We do not allow for such distinctions based upon wealth and status when .assessing what duties a driver on the highway must observe, but we do so now with respect to. premises liability. The majority’s new rule opens the door to vast realms of new issues to litigate and it solves nothing. It is a new rule for the -sake of having a new rule, and a solution in search of a problem.
The Manis rule is fair because it leaves all participants on equal footing. When confronted with naturally-occurring snow and ice, landholders and pedestrians alike must decide for- themselve's what risks they will take and what responsibilities they will assume. Each conforms his conduct to his own expectations, - abilities, and needs. I fail to see the social advantages of abolishing that policy. The Manis .rule is a valuable social policy now being discarded by this Court because the majority mistakenly assumes that despite the thirty years of practice to the contrary, the policy is no longer compatible with comparative negligence.
C. The trial court correctly granted summary judgment.
Appellant argues that even under the Manis rule, summary judgment would be improper because genuine issues of material fact remain in dispute. He identifies those facts as follows: 1) Was the ice upon which he fell a naturally-occurring accumulation or had it been transferred tliere by some other, presumably artificial, means? 2) Could Appellant have foreseen that a dangerous patch of ice would accumulate under the Holiday Inn carport? 3) Did the Holiday Inn undertake to remove the ice, thereby voluntarily assuming a duty not otherwise imposed by the law? And, 4) Was, Appellant forced to encounter the hazard by the lack of another means to exit?
*308Appellant is correct that if any of these questions were answered to his advantage, the Manis rule would not act as a bar to his recovery. The ■ trial court correctly determined that there was no genuine dispute about those facts. First, Appellant offered no evidence indicating that the source of the ice was anything other than a naturally-occurring accumulation. Appellant fell at 6:30 AM on a freezing February morning following a winter storm that dropped four inches of snow and ice overnight. The fall occurred in a carport with three sides open to the wind-driven snow. Thére is speculation and conjecture about it, but no evidence to support any finding other than the most obvious conclusion— the ice was the natural result of the preceding storm;
Second, Appellant’s lack of foreseeability argument is based upon his claim that he “had thé right to believe the covered walkway (the carport under which he fell) was free from potential hazards” because the Holiday Inn’s night manager should have known about the snow and ice under the carport. Appellant’s ability or inability to foresee the danger is not a material fact. Even if it was, having a “right” to a hazard-free passway does not eliminate the foreseeability of hazardous ice following a major winter storm that only a few hours earlier 'had forced Appellant off the' inter-staté highway in search of shelter.
Third, Appellant is correct that under PNC Bank v. Green, supra, Holiday Inn had a duty to avoid making things worse, converting a natural hazard into a man-made one. The evidence offered by Appellant to sustain that contention is the fact that the Holiday Inn had a snow removal plan which had not yet been effectuated at the time of his injury. Failing to' initiate action when one has no obligation to do so is far different from taking actions that aggravate an already bad situation. Obviously, the Holiday Inn’s failure to act sooner did not aggravate the natural condition that Appellant confronted when he left the building.
Finally, there is no evidence that Appellant was forced to leave the Holiday Inn at 6:30 in the morning before sunrise. He offered no evidence that he was forced to depart because of a check-out time imposed by the Holiday Inn, that he had overstayed his welcome, or was otherwise compelled to evacuate. This is not a case in which an invitee claims he was constructively trapped by the landholder’s failure to address the hazard for an inordinate amount of time. This injury occurred before daylight a few hours after the snowfall. Here, there was even uncertainty about whether the storm was over. The urgency in Appellant’s departure, was at his own behest. There is no suggestion that it was forced upon him. For these reasons, I agree with the trial court and the Court of Appeals , that summary judgment was an entirely appropriate disposition of this unfortunate event.
In conclusion, I respectfully submit that the majority is wrong in its assumption that the Manis rule must be abolished because it is based upon contributory negligence. The premise upon which the majority opinion is based is flawed. The social policy adopted by the majority, imposing a duty upon landholders to eliminate the dangers of natural accumulations of snow and ice is an unwise departure from a sound, beneficial common law principle.
I would affirm the decisions of the trial court and the Court of Appeals. Therefore, I dissent.
Abramson and Cunningham, JJ., join.
. It could also be said that every legal principle of Kentucky jurisprudence that existed before 1984 developed when contributory negligence was the. law. That does not make thoge principles dependent upon or derivative of contributory negligence.
. Other rules provide exemptions from duties of care in special circumstances. For example, a railroad landholder has no duty to maintain in any way the safety of a private rail crossing, and no duty to warn of the dangerous conditions. See Calhoun v. CSX Transp., Inc., 331 S.W.3d 236, 242 (Ky. 2011). As noted in the dissenting opinion in Calhoun, a century of development in railroad technology, mainly the elimination of the steam locomotive, casts doubt upon the lingering wisdom of that rule. Id. at 248. But, we have not seen any comparable development in the technology of snow and ice removal that would warrant a change in the rule.