dissenting.
The Court holds that because the turbulence of the water near the Meldahl Dam gates was obvious, the United States Army Corps of Engineers had no duty to warn invitees of dangers inherent in the turbulent conditions. Even assuming that the strong under-tow and unusual “roll back” current caused by the underwater baffle blocks can be considered an “obvious” danger,1 an assumption I do not share, the very authorities relied upon by the District Court and our Court compel the conclusion that the United States had a duty to warn notwithstanding the obviousness of the danger.
If a possessor of land can or should anticipate that a condition on his land will cause physical harm to invitees notwithstanding its known or obvious danger, then he may be held liable for injuries caused by the condition and may have a duty to warn. Indeed, the Restatement of Torts 2d, which the majority finds persuasive, specifies that possessors will be absolved of liability to invitees for injuries from obviously dangerous conditions “unless the possessor should anticipate the harm despite such obviousness.” Restatement Torts 2d, § 343A. The Restatement further indicates that a public utility or governmental agency which holds its lands open to the public and which may have special reason to anticipate that invitees will proceed to encounter obvious dangers will be under a greater duty of care than other possessors of land. See § 343A(2) and comment (a).
The Corps of Engineers was fully aware that the waters near the Meldahl Dam were popular among pleasure boaters and fishermen. It was also aware that many boaters seeking to fish in the area would be inexperienced and unknowledgeable about the dangers of approaching a dam. Indeed, a similar fatal accident involving pleasure boaters fishing near the gates of the dam had occurred in the recent past. The Corps has published several pamphlets and charts warning boaters of the dangers of dams, but was aware that many boaters may not obtain these documents before venturing towards the dam. Uncontroverted testimony indicates that a boater would either have to be experienced enough to “read” the water near the dam correctly or that one would at least have to be “looking out” specifically for the direction of the currents to have known the actual gravity of the danger. Reasonable men observing numbers of fishermen at the dam and reading newspaper accounts of the excellent fishing available there could reasonably conclude that the benefits of fishing in the areas held open to them outweighed the risks presented by the apparently turbulent waters.
With full knowledge of the extreme dangers of the dam waters and the popularity of the waters among inexperienced fisher*410men, the Corps nonetheless exercised its discretion and held the area open for public recreation rather than declaring it a “restricted area.” This decision to hold open the Meldahl Dam waters to fishermen placed the Corps under a duty of reasonable care towards invitees, which at a minimum, would require adequate warnings regarding the dangers the Corps knew the invitees would proceed to encounter. See Restatement of Torts 2d, § 343A, comment (g). Despite the “obviousness” of the danger, the Corps had “reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” Id. at comment (f).
Where the probability and gravity of harm is so great, the mere “obviousness” of the danger does not absolve a possessor of the duty to warn, especially since on-site warnings could have been installed without undue effort or expense. Under these circumstances, it is quite clear that the Corps has a duty to warn, and that the distribution of pamphlets and charts noting these dangers was not “adequate warning.”
. Plaintiff Strawhecker’s uncontroverted testimony indicates that the boat sank almost immediately after it broke loose from the pier (App. at 164-65); this suggests that the cause of the accident was not the apparent turbulence but rather the hidden under-tow and “roll back” current caused by underwater baffle blocks. Since these dangers were not “obvious” to inexperienced boatmen who were likely to use the area, the Corps would be under a duty to warn invitees on the specific danger present.