concurring in part and dissenting in part.
[¶ 27] I concur in the majority opinion with exception to Part IV, from which I dissent, because I am of the opinion we should abolish the “open and obvious” doctrine and apply our modified comparative fault law. I also dissent from the majority opinion because even if the Restatement (Second) of Torts § 343A (1965) is applied, it does not relieve a possessor of land of a duty to invitees merely because the condition is “obvious.”
[¶ 28] “Landowners owe a general duty to lawful entrants to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk.” Doan v. City of Bismarck, 2001 ND 152, ¶ 13, 632 N.W.2d 815. “The existence of a duty is a question of law, unless it depends on facts that must be determined by the fact-finder.” Iglehart v. Iglehart, 2003 ND 154, ¶ 11, 670 N.W.2d 343.
[¶ 29] Our Court has held that assumption of the risk is no longer an affirmative defense, but is one part of the analysis of determining comparative fault. Iglehart, 2003 ND 154, ¶ 17, 670 N.W.2d 343. “[Assumption of the risk] has presented courts with considerable difficulty in defining its theoretical justification and its relationship to tort duty limitations and to the defense of contributory negligence.” Michael K. Steenson, The Role of Primary Assumption of Risk in Civil Litigation in Minnesota, 30 Wm. Mitchell L.Rev. 115, 116 (2003). Professor Michael Steenson points out that assumption of the risk has been applied inconsistently by courts and “[s]ometimes it seems to relate to the duty issue and sometimes it is linked to the defense of contributory negligence, but without a clear differentiation of which issue is involved.” Id.
[¶ 30] The North Dakota Legislature adopted comparative negligence in 1973 and modified comparative fault in 1987. See 1973 N.D. Sess. Laws ch. 78, § 1 (repealed by 1987 N.D. Sess. Laws ch. 404, § 13 as amended by 1993 N.D. Sess. Laws ch. 324, § 1); and 1987 N.D. Sess. Laws ch. 404. Since the adoption of modified comparative fault, neither the Legislature nor our Court has expressly adopted as an accurate statement of our law, Sections 343 and 343A of the Restatement (Second) of Torts. We also have not analyzed the effect of adopting comparative fault on the traditional “open and obvious” danger doctrine.
[¶ 31] “[S]everal jurisdictions have concluded that the adoption of comparative negligence requires abolition of the ‘no duty’ rule providing that a possessor of land owes no duty to warn a person on the premises, such as an invitee or a licensee, of open and obvious dangers. The rationale is that this rule is incompatible with comparative negligence principles, since its effect would be to resurrect contributory negligence, as an absolute bar to recovery in certain cases involving premises liability.” 1 Comparative Negligence Manual *773(CBC) § 1:15 (3d ed. & Supp.2003). The primary justification for abolishing the “open and obvious” danger doctrine as a “no duty” doctrine is that the adoption of comparative negligence did away with those common law devices which act as absolute bars to recovery. Id. Other jurisdictions have concluded the adoption of comparative negligence does not change the duty owed by a defendant to a plaintiff. Id.
[¶ 82] Before the adoption of comparative negligence and then comparative fault, it did not make any difference whether an obvious danger was viewed as negating a defendant’s duty or whether it constituted contributory negligence or assumption of the risk. The result was the same; the plaintiffs recovery was barred. However, since the adoption of comparative negligence and comparative fault, “it makes a great difference how an obvious danger is viewed. If an obvious danger negates a duty, a defendant cannot be negligent. On the other hand, if a duty is not negated, then the obvious danger is a factor to be considered by the trier of fact in comparing the plaintiffs and defendant’s negligence.” O’Donnell v. City of Casper, 696 P.2d 1278, 1281-82 (Wyo.1985). The Supreme Court of Tennessee in Coin v. City of Savannah, 966 S.W.2d 34, 40 (Tenn.1998), noted that “the open and obvious doctrine was widely criticized for producing arbitrary results and being ‘wrong in policy.’ ... An undeniable legal error is committed every time a court bars recovery to an injured person based solely on the fact that the perilous nature of the alleged cause of harm was ‘apparent to all,’ without any consideration of the multitude of other factors which may justify or excuse the plaintiffs conduct.” Id. at 40-41 (citations and quotations omitted). The Tennessee Supreme Court further noted that these criticisms together with the adoption of comparative fault principles have led “numerous jurisdictions to reconsider the open and obvious rule and to conclude that it should not automatically preclude recovery.” Id. at 41, 41 n. 8 (collecting cases). The Mississippi Supreme Court abolished the “open and obvious” doctrine and applied comparative negligence in Tharp v. Bunge Corp., 641 So.2d 20, 25 (Miss.1994). In doing so, it stated:
This Court should discourage unreasonably dangerous conditions rather than fostering them in their obvious forms. It is anomalous to find that a defendant has a duty to provide reasonably safe premises and at the same time deny a plaintiff recovery from a breach of that same duty. The party in the best position to eliminate a dangerous condition should be burdened with that responsibility. If a dangerous condition is obvious to the plaintiff, then surely it is obvious to the defendant as well. The defendant, accordingly, should alleviate the danger.
Id.
[¶ 33] Therefore, the common law “no duty” rule or “open and obvious” doctrine has endured much criticism from both courts and commentators. I am of the opinion that it is time to abandon the “open and obvious” doctrine as a duty concept and to hold it is simply an aspect of fault for the jury to consider. See Richard L. Ferrell, III, Emerging Trends in Premises Liability Law: Ohio’s Latest Modification Continues to Chip Away at Bedrock Principles, 21 Ohio N.U.L.Rev. 1121, 1123 n. 18 (citing “Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321, 1324 (1989) (stating that there are no significant differences between the open and obvious danger doctrine and implied assumption of risk); Id. at 1328 (abolishing the open and obvious danger doctrine in favor of an ordinary care under the circumstances *774test); Carter v. Union R.R., 438 F.2d 208, 212 (3d Cir.1971) (stating that the Federal Employer’s Liability Act, 45 U.S.C. [§ ] 54 (1908), eliminated assumption of risk, and the Restatement (Second) of Torts [§ ] 343A open and obvious danger doctrine would not be strictly applied); ... Woolston v. Wells, 297 Or. 548, 687 P.2d 144, 146-49 (1984) (stating that an open and obvious danger standard would not control in assessing comparative fault); O’Donnell v. City of Casper, 696 P.2d 1278, 1284 (Wyo.1985) (holding that an obvious danger does not negate a duty, but may simply be considered by the jury in assessing plaintiffs contributory negligence); Parker v. Highland Park, Inc.[,] 565 S.W.2d 512, 518-21 (Tex.1978) (stating that the ‘no-duty’ rule/open and obvious danger doctrine was incompatible with the state’s comparative negligence statute, and the doctrine was only relevant to plaintiffs contributory negligence).”); and id. at 1133 n. 84 (citing “Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989, 991 (Fla.Dist.Ct.App.1980) (stating that the entrant’s knowledge of the danger would be relevant to his own comparative negligence, but would not be an absolute bar to recovery).”); and Rockweit v. Senecal, 197 Wis.2d 409, 541 N.W.2d 742, 748-49 (1995) (stating that the Wisconsin Supreme Court’s opinions in Pagelsdorf v. Safeco Ins. Co., 91 Wis.2d 734, 284 N.W.2d 55 (1979) and Antoniewicz v. Reszczynski, 70 Wis.2d 836, 236 N.W.2d 1 (1975) abrogated the open and obvious doctrine).
[¶ 34] I am further of the opinion that a landowner’s general duty of reasonable care extends to the risk from an open and obvious condition encountered by an invitee. This approach is consistent with the adoption of comparative fault and the abol-ishment of assumption of the risk as a complete defense and its merger into contributory negligence or fault of the invitee. It is also consistent with a reasonably careful landowner foreseeing that an invitee might fail to see the obvious condition, might be distracted, might encounter it despite knowing of it, or might forget the obvious condition exists. The rationale for comparative fault is to abolish all absolute defenses and to compare fault of the parties involved for all determinations of liability. See Harfield v. Tate, 1999 ND 166, ¶ 12, 598 N.W.2d 840 (stating the doctrine of distracting circumstances is relevant in apportioning fault); Ebach v. Ralston, 510 N.W.2d 604, 610 (N.D.1994) (stating the sudden emergency doctrine is simply to be utilized in determining negligence); and Haff v. Hettich, 1999 ND 94, ¶ 14, 593 N.W.2d 383 (holding comparative fault su-perceded the common law rule imposing liability on the original tortfeasor for aggravation and injury by a physician’s negligence). The “open and obvious” doctrine is in conflict with the comparative fault policy because it permits a landowner to escape liability even if at “fault” for the creation of the obvious dangerous condition.
[¶ 35] Although some states have expressly abolished the open and obvious doctrine after the adoption of comparative negligence, some follow the Restatement (Second) of Torts § 343A. See Coin, 966 S.W.2d at 41-42, 41 nn. 9-10 (collecting cases abrogating the doctrine altogether and those following the Restatement (Second) of Torts § 343A).
[¶ 36] In Johanson v. Nash Finch Co., 216 N.W.2d 271, 277 (N.D.1974), our Court referred to the Restatement (Second) of Torts § 343A on “Known or Obvious Dangers,” as having “a bearing on questions of assumption of risk and contributory negligence.” Section 343A(1) of the Restatement states:
(1) A possessor of land is not liable to his invitees for physical harm caused to *775them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
Restatement (Second) of Torts § 343A. Our Court concluded in Johanson:
The jury in the instant case was told, in effect, that the existence of an obvious danger precluded recovery by the plaintiff. It should have been told that it had the duty to decide whether the defendant should have anticipated harm to invitees despite the obviousness, if any, of the danger.
Johanson, at 277-78. In Johanson, our Court also stated that Comment f under Subsection (1) of the Restatement (Second) of Torts § 343A was particularly relevant because it points out “there are cases in which the possessor of land can and should anticipate that a dangerous condition will cause physical harm to an invitee notwithstanding its obvious nature.” Johanson, at 277. Comment f clarifies that in cases where there is reason to anticipate harm to the invitee and the danger is known or obvious, that knowledge and obviousness are important in determining whether the invitee is negligent or assumed the risk, but they are not “conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.” Id. (quoting Restatement (Second) of Torts § 343A, cmt. f). Comment f sets out four illustrations. Illustration number 3 is:
3. The A Drug Store has a soda fountain on a platform raised six inches above the floor. The condition is visible and quite obvious. B, a customer, discovers the condition when she ascends the platform and sits down on a stool to buy some ice cream. When she has finished, she forgets the condition, misses her step, falls, and is injured. If it is found that this could reasonably be anticipated by A, A is subject to liability to B.
[¶ 37] In the present case, the negligence claim against Bjornson is based on a premises liability theory. Accordingly, under application of the Restatement (Second) of Torts, the first issue is whether Bjornson owes a duty to Groleau. .Under Section 343A of the Restatement (Second) of Torts, Bjornson does not owe a duty to Groleau if the danger associated with tripping over the raised concrete island was either known or obvious, unless the appel-lee landowner, Bjornson, should have anticipated the harm despite its known or obvious dangers. See Restatement (Second) of Torts 343A(1) (emphasis added). According to the comments to Section 343A of the Restatement (Second) of Torts, “[t]he word ‘known’ denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. Thus, the condition or activity must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated.” Restatement (Second) of Torts § 343A, cmt. b. The trier of fact must determine if Groleau knew the raised concrete island existed and appreciated the danger involved. If the danger of tripping over the raised concrete island was not a “known” danger, then the trier of fact must consider whether there was an “obvious” danger. Id. Under Comment b to Section 343A(1) of the Restatement (Second) of Torts, a condition is not “obvious” unless “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.” Id. “The rationale underlying the rule eliminating a duty where the dangers are *776known or obvious is that ‘no one needs notice of what he knows or reasonably may be expected to know.’ ” Steenson, supra, at 146 (quoting Louis v. Louis, 636 N.W.2d 314, 321-22 (Minn.2001) (quotation omitted)). Whether a condition is “obvious” is an objective standard. However, that does not end the inquiry. It then must be decided whether the landowner should nevertheless have anticipated the harm despite the known or obvious danger. Steen-son, supra, at 146. In Reimer v. City of Crookston, 326 F.3d 957, 965 (8th Cir. 2003), the United States Court of Appeals for the Eighth Circuit concluded it was a jury issue as to whether the case fell within the Restatement (Second) of Torts § 343A “unless” clause.
[¶ 38] I agree and am of the opinion that if fact questions arise concerning the duty, they should be submitted to the trier of fact for resolution. “For example, while foreseeability, a critical determinant of duty, is usually not a jury issue, in close cases a jury may be asked whether a particular risk of injury was foreseeable” or whether the defendant had reason to anticipate that an entrant on his premises would fail to see and appreciate the condition. Steenson, supra, at 162. “Depending on the findings, the trial court decides whether the defendants owed a duty to the plaintiff.” Id. A special verdict form could be used for this purpose. Finally, if the court finds that the landowner owed the invitee a duty, the jury or fact-finder should then be allowed to decide the breach issue and the comparative fault of the landowner and invitee for the invitee’s injuries. See id. at 146. The issue in the present case would be whether Bjornson acted reasonably in painting the raised concrete edge of the island black. Therefore, under Section 343A of the Restatement (Second) of Torts, the duty of the property owner turns on whether the danger is obvious and whether the owner should nonetheless have anticipated the injury. See id. This analysis is based on the duty as it is set forth in Section 343A of the Restatement (Second) of Torts.
[¶ 39] In summary, I would remand this case for the trial court to apply our modified comparative fault law merging the doctrine of “open and obvious” condition into contributory negligence. If the Restatement (Second) of Torts § 343A is to be applied, I would remand for a determination whether Bjornson owes a duty to Groleau and submit to the fact-finder whether Bjornson has breached that duty and, if so, the comparative fault of the parties, and what damages have been proximately caused therefrom.
[¶ 40] Accordingly, I respectfully dissent.
[¶ 41] MARY MUEHLEN MARING.