dissenting:
Because the majority decision misapplies the often confusing concepts of duty and liability, I must respectfully dissent from its decision.
The majority concludes that the danger involved in diving from a rock into water of unknown depth is open and obvious. For the purpose of this dissent, I will concede the correctness of this conclusion.1 But according to the majority, natural conditions which constitute open and obvious dangers, as a matter of law, do not present an unreasonable risk of harm, and therefore a possessor of land should not be liable for injuries caused by such conditions. Thus, the foundation of the majority decision is that as a matter of law the State may not be held liable for injuries caused by natural conditions amounting to open and obvious dangers. The majority’s error is twofold. First, the majority has failed to correctly state the duty which the State defendants owed to Markowitz. Second, the majority errs in concluding as a matter of law that defendants are not liable for the plaintiff’s injuries.
A landowner owes the duty to exercise reasonable care to disclose dangerous conditions which are known to him and are not likely to be discovered by a visitor. See Compton v. National Metals Co., 10 Ariz. App. 366, 369, 459 P.2d 93, 96 (1969); Restatement (Second) of Torts § 343 comment b (1965) (Restatement). Where, however, the landowner can and should anticipate that the dangerous condition will cause physical harm to the visitor notwithstanding its known or obvious danger, the landowner is not relieved of the duty of reasonable care. Murphy v. El Dorado Bowl, Inc., 2 Ariz.App. 341, 409 P.2d 57 (1965); see Restatement § 343A comment f. This duty may require the landowner to warn a visitor against the known or obvious condition or activity, if the landowner has reason to expect that the visitor will nevertheless suffer physical harm. Restatement § 343A, comment (f).
The majority decision fails to appreciate that this “dulty remains constant, though the acts which are necessary to fulfill it vary depending upon the circumstances, including the obvious character” of the dangerous condition. Beach v. City of Phoenix, 136 Ariz. 601, 603, 667 P.2d 1316, 1318 (1983). As explained in Beach, the nature of the open and obvious condition is relevant to whether a defendant is negligent as opposed to whether or not the defendant owes a duty to the plaintiff.
Relying upon dicta in Tribe v. Shell Oil Co., 133 Ariz. 517, 652 P.2d 1040 (1982), the majority concludes that natural conditions constituting an open and obvious danger cannot under any circumstances impose liability on the State. In Tribe, the plaintiff *266approached a water fountain on the defendant’s premises by taking a short step of approximately six inches to get on the sidewalk where the fountain was located. After getting her drink, she turned around while cautioning her daughter about the traffic, and stepped off a sixteen-inch step on the front of the sidewalk and fell, shattering her wrist. The supreme court concluded that summary judgment was improper because reasonable minds could easily disagree as to whether a sixteen-inch step down is open and obvious to one who has ascended a six-inch step up. In the course of its decision, the court distinguished Robles v. Severyn, 19 Ariz.App. 61, 504 P.2d 1284 (1973), where a three and one-half year old child was injured by a sharp palm frond on a tree in a neighbor’s yard. The supreme court in distinguishing Robles, stated that “[w]e are not dealing with a natural condition such as a palm tree on the premises of the service station.” 133 Ariz. at 519, 652 P.2d at 1042. I do not interpret the supreme court’s statement to suggest that in all cases a landowner may not be liable for injuries due to dangerous natural conditions.
First, this view has been expressly rejected in the Restatement.
Liability of a possessor of land who invites or permits licensees to enter his land is not based upon a duty to maintain it in safe condition. It is based upon his duty to disclose ... the risk which they will encounter if they accept his invitation or permission. He is required to exercise reasonable care either to make the land as safe as it appears, or to disclose the fact that it is as dangerous as he knows it to be. Therefore it is immaterial that a dangerous condition known to him, and which he has reason to believe that the licensee will not discover, is natural rather than artificial.
Restatement § 342 comment e (emphasis added). Although not articulated by the supreme court, its reaffirmance of the Robles decision was undoubtedly based upon the view expressed in the Restatement that the duty to warn of known or obvious dangerous conditions does not apply if the landowner has no reason to expect that the visitor will suffer physical harm from the dangerous condition. Restatement § 343A comment f. Also, central to the court of appeals decision in Robles was the conclusion that the plaintiff went upon the neighbor’s property as a gratuitous licensee and therefore must take the property in the condition he finds it and must assume all risks incidental to such condition.
Once the inquiry properly focuses on the issue of duty, it is clear that the majority errs in concluding that the State owed no duty to Markowitz. Implicit in the majority’s conclusion is the notion that because diving into the lake is an open and obvious danger, the State could not foresee that Markowitz would injure himself. But where “the establishment of the duty, i.e., foreseeability of harm, varies as a result of factual distinctions, ... what is foreseeable is a question for the trier of fact.” Arizona Public Service Co. v. Brittain, 107 Ariz. 278, 280, 486 P.2d 176, 178 (1971).
Under the facts before us, I conclude that reasonable minds could differ as to whether the State should have foreseen that park visitors might dive into the lake. The Arizona Parks Board adopted the following regulation which applied to Lake Havasu Park at the time of the accident.
Swimming shall be permitted only at bathing beaches or other areas designated for such purpose.
R12-8-16 (repealed Jan. 28, 1976). Another regulation required that the foregoing prohibition was to be prominently posted at state parks. R12-8-37 (repealed Jan. 28, 1976). Yet, as the majority correctly notes, no such warnings were placed at the entrance to the park. It is apparent from the above regulation that a jury could conclude that the State recognized that swimming in undesignated areas may be dangerous. Implicit in the regulation, must be the fact that diving in unauthorized areas would likewise be dangerous. Thus, a jury could conclude that the state knew of the potentially dangerous condition created by the *267possibility that park visitors would dive into the lake.
Likewise, this is a situation in which the dangerous condition is one in which a jury could find that the State would have reason to expect that Markowitz “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.” Restatement § 343A comment f. As the majority candidly points out, the state actively promotes the use of Lake Havasu State Park as a “unique recreational world.” A jury could find that the State would expect its invitees to swim and dive as part of the recreational use of the lake. Markowitz testified in his deposition that a well-worn path existed to give access to the diving spot. He observed approximately fifteen people diving and swimming in the area and one of his companions successfully dived from the cliff and swam away unharmed. Because of the recreational nature of the park and the State’s promotion of the park for water recreational sports, a jury could conclude that the State would have reason to expect that visitors may suffer physical harm from diving into unknown waters despite the open and obvious danger of such activity.
This view is quite consistent with Arizona law. In Murphy v. El Dorado Bowl, Inc., the plaintiff, a regularly paying patron of defendant’s bowling alley, fell over a “drop-off” adjacent to the lane where he was bowling. The defendant contended the condition was open and obvious. The court concluded that what “might be perfectly obvious to a person walking normally is likely to be forgotten by a contestant in the excitement of the game.” 2 Ariz.App. at 343, 409 P.2d at 59. The court relied upon the sections of the Restatement cited above. Once the “man-made/natural” condition distinction is discarded, as it correctly should be, the logic of Murphy v. El Dorado Bowl, Inc. highlights the fallacy of the majority decision.
The second basis of the majority decision in affirming the summary judgment is the conclusion that as a matter of law, Markowitz failed to show that the absence of a warning by the State caused his injury. The basis of the majority conclusion is Markowitz’s deposition testimony that he was already aware of the danger of diving into shallow water. The majority concludes that a lack of a warning sign giving him information he already had was not the cause of his injury. The majority’s analysis, however, has been consistently rejected by courts which have considered virtually this identical issue.2
In Hawk v. City of New Port Beach, 46 Cal.2d 213, 293 P.2d 48 (1956), the plaintiff was injured when he dived from a rock on a public recreational beach. The city contended that the plaintiff was guilty of contributory negligence as a matter of law because he was fully aware of the physical conditions of the rock, was accustomed to swimming and diving and did not know the depth of the water into which he dove. The court noted, as in the case before us, that the plaintiff had never previously used the area but had seen other persons diving from the rock and followed another boy to the rock and watched him dive into the water and swim away unharmed. Under those facts, the Supreme Court of California held that the issue of contributory negligence was properly submitted to the jury for its determination.
In Miller v. United States, 597 F.2d 614 (7th Cir.1979), the plaintiff was injured when he dove into the shallow water of a lake in a national wild life refuge. Despite the fact that the plaintiff had been a swimmer and diver for most of his life, the court concluded that the facts failed to show the plaintiff was contributorily negligent as a matter of law. The plaintiff dived off a boat dock extending fifty feet into the water. Before he dived, he saw one man in the water toward the end of the pier who *268appeared to be treading water. He saw two or three people in the water along the side of the pier about twenty feet from shore. After someone shouted that the water was “fine,” he dived into the lake where the water depth was only three feet. Among the facts the court found to be significant were that the plaintiff knew that individuals had previously used the boat dock area for swimming and wading and that the United States had a safety plan which recommended that swimmers be warned that swimming was permitted only at designated beaches.
In conclusion, the majority is concerned that imposing liability in this case might force an additional burden upon governmental agencies to place warnings throughout the many hundreds of thousands of acres of public lands. These fears, however, are unfounded. Placing appropriate warnings at the entrances to areas used by the public or noting the warning in brochures or permits would not be an unreasonable administrative task. Davis v. United States, 716 F.2d 418, 424 (7th Cir. 1983).
Should the majority be concerned about the cost of imposing liability upon government landowners, it is readily apparent that the defense of contributory negligence exists in this case as it would in other cases where the injured party encounters a dangerous condition and subjects himself to it despite its obvious and known character. Furthermore, the duty to warn of obvious dangers is a fact-intensive standard. In other words, it is relative to time, place and circumstance. In many cases, summary judgment may be appropriate. This, however, is not such a case.
For the foregoing reasons, I dissent.
. The majority’s conclusion concerning the open and obvious issue may be incorrect. Davis v. United States, 716 F.2d 418, 423 (7th Cir.1983).
. The majority’s affirmance of the summary judgment based upon its characterization of the plaintiffs conduct, or more precisely his contributory negligence, is certainly incorrect because in Arizona the issue of contributory negligence is always for the jury. Ariz. Const., art. 18, § 5.