(dissenting). The plaintiff, an experienced swimmer and diver, walked to the end of the pier, extending out into the shallow waters of Lake Denoon. He looked into the water for fifteen to twenty seconds to determine whether it was prudent for him to dive off the end of the pier. The water, he testified, was “somewhat riled and a little polluted” so that he could not see the bottom of the lake. A number of people, including small children, were standing in the shallow water at the end of the pier. The plaintiff testified that he noticed other people in the water, but did not notice that any were standing upright in the water, or that any were small children. He explained that he had been “concentrating his attention” on the water, not the people in the water. He backed up 15 or 20 feet and made a “slow run” to the end of the pier, making a shallow dive into the water. His head struck the bottom, and he sustained grievous injuries. Clearly, he was negligent, as a matter of law, in diving into water when he had been unable to see the bottom of the lake to determine the depth of water at the end of the pier.
As to the breach of duty owed by the defendants, the majority opinion locates it in a violation of the safe place statute (sec. 101.11, Stats.) which requires that a “place of employment or public building” be maintained so “as to render the same safe.” No claim is made of unsafe construction or placement of the pier. Plaintiff’s claim is that' defendants were negligent in failing to erect a “No Diving” sign or, in some other way, warning their beach patrons of the dangers involved in diving off the end of the pier into the shallow water. Where the hazard alleged was the shallowness of the lake, the writer would not see the statute, applying only to “place of employment or public building” as applicable. However, considering a patron of a swimming beach as an invitee, rather than as a frequenter of a “place of employment *368or public building,” does not lower the standard of care devolving upon defendants. This court has stated the invitor-invitee standard of care to be:
“. . . a landowner is liable for injuries to an invitee caused by reason of the unsafe condition of the premises known to the owner and which he negligently suffers to exist and of which the injured invitee has no notice or knowledge. . . .” Schlicht v. Thesing (1964), 25 Wis. 2d 436, 440, 130 N. W. 2d 763.
Under the safe place statute, as to an employee or frequenter, the defendants would be under a duty only “to warn the plaintiff of dangers of which the defendant had knowledge or should have discovered in the exercise of reasonable care unless the danger was, or should have been obvious to the plaintiff.” (Marshall v. Miles (1972), 54 Wis. 2d 155, 162, 194 N. W. 2d 630.) Likewise, there is no duty to warn of an obvious hazard in an invitor-invitee situation. In a case involving a baby-sitter not warned of the dangers attending operation of an electric stove, applying the invitor-invitee test, this court said: “Such dangers as are involved in the use of the electric stove would all be apparent to even a sixteen-year-old girl and there could be no duty to instruct.” Szep v. Robinson (1963), 20 Wis. 2d 284, 292, 121 N. W. 2d 753. Diving off a pier into water of unknown depth would appear to present a hazard as obvious as operating an electric stove. However, in a later case, where the relationship between the defendant and the plaintiff is that of invitor-invitee, this court has held a defendant to be under a duty “. . . to use reasonable care in discovering such dangerous condition and, notwithstanding the obvious or apparent nature thereof, may have been under a duty to warn the plaintiff. . . .” (Marshall v. Miles, supra, at page 162, citing Voeltzke v. Kenosha Memorial Hospital (1969), 45 Wis. 2d 271, 172 N. W. 2d 673.) So it is only under this case and under the invitor-*369invitee standard (not under the safe place statute standard) that the defendants’ failure to warn of an apparent and obvious danger even arguably could constitute an actionable breach of duty.
The plaintiff having come upon the premises of the defendants as an invitee, they owed to him “ ‘the alternative duty of either having his premises in a reasonably safe condition or of giving the invitee adequate and timely warning of latent and concealed perils which are known to the owner but not to the invitee.’ ” (Midthun v. Morgan (1967), 35 Wis. 2d 203, 206, 207, 150 N. W. 2d 367, quoting with approval Schlicht v. Thesing, supra.) The duty to warn of “latent and concealed perils” certainly does not describe the situation here present; the claim of negligence must rest solely on failure to maintain premises in a reasonably safe condition by failing to warn of an obvious and apparent danger: i.e., diving off a pier into water of unknown and unas-certainable (due to murkiness) depth. This, the only causative negligence on the part of defendants here possible, is minimized by the presence of adults and small children standing in the water near the end of the pier. Several witnesses so testified, and their testimony is not controverted by the statement of plaintiff that he observed only swimmers since he made clear that he was “concentrating his attention” on the water, not those swimming or standing in it. It is clear that he did not see because he did not look. The contribution of the absence of a “No Diving” sign to the injuries sustained is here lessened by the fact that every person, particularly the small children, standing in the lake near the end of the pier was a clear warning as to the shallowness of the lake at the end of the pier.
On the other hand, the contribution of the causative negligence of the plaintiff to the accident is maximized by the fact that he dove into the water after being unable *370to see the bottom of the lake from the end of the pier. Whether he misjudged the shallowness of the lake or the shallowness of his dive is not controlling. What cannot be shunted aside is that he testified that, when he stood at the end of the pier, before attempting the dive, the water was “somewhat riled and a little polluted” so that he could not see the bottom of the lake. There is no way for even an experienced diver to determine the depth of the water if he cannot see the bottom. The opaqueness of the water was in itself a notice of danger. In a licensor-licensee case where “the murkiness of the water obscured the view and concealed the hazard of a bottom only three feet below the surface,” this court firmly held: “[The] very murkiness upon which the plaintiff relies should signal a danger that should be comprehended by any person, except one of the most tender years.” (Scheeler v. Bahr (1969), 41 Wis. 2d 473, 478, 164 N. W. 2d 310.) In determining the contribution of plaintiff’s negligence to the injuries sustained, as well as on his being negligent at all, it follows that “as a matter of law the plaintiff must be held to knowledge and appreciation of the risk likely to be encountered by plunging headfirst into the unplumbed depths of the murky lake.” (Id. at page 480.)
The writer, joined by Mr. Justice Leo B. Hanley, would conclude that the jury was required to find the plaintiff negligent and entitled to find the defendants negligent. However, it was not entitled to find that the percentage of causative negligence attributable to the defendants was greater than the percentage of causative negligence attributable to the plaintiff. As a matter of law, the negligence of the plaintiff in “plunging headfirst into the unplumbed depths of the murky lake” was greater than the negligence of the defendants in not warning against diving into shallow water, particularly where the adults and children standing at the end of *371the pier provided exactly such warning of the shallowness of the lake. While the facts warrant a finding of negligence on the part of both plaintiff and defendants, they compel a finding that plaintiff’s negligence was greater than that of the defendants. So we would reverse and remand with direction to grant defendants’ motion for a directed verdict dismissing plaintiff’s complaint.
I am authorized to state that Mr. Justice Leo B. Hanley joins me in this dissent.