concurring in part and dissenting in part.
[¶ 27] I concur in Part IV of the majority opinion affirming dismissal of the duty to warn claim. Dismissal is warranted based on Wotzka’s concession that a wet and soapy shower was an open and obvious danger. Majority opinion at ¶ 24. Based on this condition, the majority concludes as a matter of law that the hotel had no duty to warn that a wet and soapy shower was slippery. I agree. I respectfully dissent from the remainder of the decision, and instead I would join the jurisdictions holding a hotel has no duty to provide a bathmat, non-skid strips or handrail in the face of known dangers from wet and soapy showers.
[¶ 28] The majority states, “[0]ther jurisdictions are divided on whether a hotel may be liable for failure to provide safety precautions such as a bathmat, non-skid strips, or a handrail.” Majority opinion at ¶ 10. Unstated is that the majority of the “other jurisdictions” do not impose liability. See Dille v. Renaissance Hotel Mgmt. Co., LLC, No. 4:10CV1983 TIA, 2012 WL 2396666, at *3 (E.D.Mo. June 25, 2012) (holding “because the potential danger created when a bathtub becomes wet is not hidden or difficult to ascertain, there is no duty, as a matter of law, to provide precautions against such conditions”); Howard v. Omni Hotels Mgmt. Corp., 203 Cal.App.4th 403, 136 Cal.Rptr.3d 739, 761 (2012) (holding “The defendant is not liable [for injuries from bathtub slip and fall] where he neither knows or should know of the unreasonable risk” and “the guest cannot reasonably expect that the owner will correct defects of which the owner is unaware and that cannot be discerned by a reasonable inspection.” (quotation omitted)); Hale v. SS Liquors, Inc., 956 N.E.2d 1189, 1194-95 (Ind.Ct.App.2011) (holding “mere fact of a fall is insufficient to establish liability of a landowner for a customer’s injuries” and “[t]here is no evidence whatsoever that the bathtub as it existed at the time of Hale’s fall was unreasonably unsafe, as compared to bathtubs generally”); Jones v. Abner, 335 S.W.3d 471, 476 (Ky.Ct.App.2011) (holding motel had no duty to equip bathtub with safety strips or hand-holds because “risks inherent in bathing or showering [were] open, apparent, and obvious to anyone who [had] ever taken a bath or shower”); Brown v. Dover Downs, Inc., No. 10C-06-180 RRC, 2011 WL 3907536, at *6, *7 n. 71 (Del.Super. Aug. 30, 2011) (recognizing “the overwhelming majority of courts that have considered this issue have held that innkeepers do not owe their guests a duty to install bathmats” and holding “the surface of a bathtub, even when wet, is not unreasonably dangerous”); Portanova v. Trump Taj Mahal Assocs., 270 A.D.2d 757, 759, 704 N.Y.S.2d 380 (2000) (holding hotel guest injured in fall by stepping out of shower could not recover for injuries absent showing of defect in bathroom floor or floor mat); Kutz v. Koury Corp., 93 N.C.App. 300, 377 S.E.2d 811, 813 (1989) (holding it was common knowledge that a shower, when wet and soapy, is dangerous and hotel is under no duty to warn of an open and obvious danger); Churchwell v. Red Roof Inns, Inc., No. 97APE08-1125, 1998 WL 134329, at *3 (Ohio App. 10 Dist. March 24, 1998) (holding no common law duty was breached by motel’s failure to provide skid-strips, hand-holds or grab bars); Brault v. Dunfey Hotel Corp., No. 87-6899, 1988 WL 96814, at *9 (E.D.Pa. Sept. 13, 1988) (holding “[t]he majority of courts charge guests with reasonable use of their senses to keep a lookout for open and obvious conditions in bathrooms” including the fact “that water is slippery on tub or shower surfaces”); LaBart v. Hotel Vendome Corp., 213 F.Supp. 958, 959 (D.Mass.1963) (holding hotel was under no *731duty to warn of the open and obvious danger of wet and soapy bathtub that was not equipped with a bathmat).
[f 29] I would affirm the district court and join this majority of jurisdictions, recognizing that a hotel has no duty to provide safety devices absent knowledge of dangerous conditions beyond the open, apparent and obvious hazzards of slipperiness in a wet and soapy shower. See 2 Norman J. Landau & Edward C. Martin, Premises Liability Law and Practice § 8A.03 (perrmed., rev.vol.2010) (“A crucial factor in establishing liability for a slip and fall injury is showing that the defendant had notice of the hazardous condition. Without such notice no liability will attach.”). To hold otherwise erases the legal principle that “[t]he mere fact an injury has occurred is not evidence of negligence on the part of anyone; rather, negligence must be affirmatively established.” Larson v. Kubisiak, 1997 ND 22, ¶ 7, 558 N.W.2d 852.
[¶ 30] DALE V. SANDSTROM, J., concurs.