dissents with opinion.
I respectfully dissent.
I agree with the majority that Mrs. Leach was a business invitee. As an invitee, Hager owed her a duty to exercise ordinary care to maintain the dock in a reasonably safe condition. See, Holdshoe v. Whinery (1968), 14 Ohio St. 2d 134. Hager had no duty to protect her against dangers which were known to her or were so obvious and apparent that she could reasonably be expected to discover them and protect herself against them. See, Sidle v. Humphrey (1968), 13 Ohio St. 2d 45.
Mrs. Leach testified that the gravel was obvious and apparent and that she ascended the stairs with knowledge of the danger. She assumed the risk. The defenses of contributory negligence and assumption of the risk merge under the comparative negligence statutq R.C. 2315.19. See, Anderson v. Ceccardi (1983), 6 Ohio St. 3d 110. Therefore, assumption of the risk is not an absolute bar to Mrs. Leach's claim of recovery. The gravel on the steps did not lose its character as a danger just because Mrs. Leach knew that it existed and assumed the risk. Mrs. Leach's knowledge of the danger and assumption of the risk did not release Hager from his duty to maintain the dock in a reasonably safe condition.
Under the majority construction of the holding in Sidle, supra, there never could be a recovery by a business invitee. In such a case the plaintiff would always be asked if he was looking out for his own safety. If he says yes, then he cannot recover because, under the majority holding, he appreciated the risk.
*122This is, in my opinion, a complete break with our traditional concepts of torts and of negligence. The whole idea of imposing liability on the owner of a premises is to provide an incentive to repair the defect so that people will not be injured. Under the majority holding in this case, the incentive for the owner is to make his premises more unsafe, and to make the premises so visibly unsafe that any reasonable person could not say that he did not see and appreciate the danger. Under the majority holding here, the owners who are most negligent are least likely to be held liable; the invitees who are most careful are least likely to recover.
I do not believe this is what the Supreme Court intended when they held in Ceccardi, supra at page 113:
"The conduct previously considered as assumption of the risk by the plaintiff shall be considered by the trier of the fact under the phrase 'contributory negligence of the person bringing the action' under R.C. 2315.19; and the negligence of all parties shall be apportioned by the court or jury pursuant to that statute"
In this case there is, for summary judgment purposes, evidence of negligence by the owner in maintaining the stair in a dangerous condition, and evidence of the plaintiff attempting to traverse these stairs. The comparative negligence of each of these parties is a question for the jury.
Thus, I dissent.