specially concurring.
I read the majority opinion as follows:
1. Implied assumption of risk, as a bar to plaintiffs recovery, or to reduce recovery, independent of comparative fault, is abolished. ORS 18.475(2).
2. A defendant “* * * may still have a complete defense to liability for negligence independent of the now eliminated doctrine of implied assumption of risk, if plaintiff cannot establish [that] the defendant breached a duty he owed under the circumstances. Thus, the fact that a sports participant’s injury results from a risk which is an element of a sport even when properly conducted may continue to defeat recovery for negligence because the defendant’s duty in the context of the sport may not extend to protecting against such risks.” 291 Or at 302.
3. A jury is never to be instructed on the doctrine of implied assumption of risk in spite of the fact that “* * * the same facts which formerly were analyzed utilizing the doctrine of assumption of risk may nevertheless continue to be relevant in reducing or eliminating recovery for negligence. * * *” 291 Or at 301.
4. Any jury instruction relating to the plaintiffs right to recover for injuries “* * * resulting from the normal risks of a sport * * * should focus upon the plaintiffs burden to prove the elements of negligence (especially the defendant’s duty and breach of duty causing plaintiffs injury) in order to hold the defendant liable,” not upon the plaintiffs assumption of risk. 291 Or at 302.
I have no quarrel with those rules, but I fear that rule 4 may prove difficult of application. The reason is this. In many situations the boundaries of the defendant’s duties to the plaintiff and the boundaries of the plaintiffs own duty of due care turn upon the knowledge of potential harm which a reasonably prudent person in the plaintiffs position would have under the same or similar circumstances. For example, in Katter v. Jack’s Datsun Sales, Inc., 279 Or 161, 566 P2d 509 (1977), we approved the giving of this instruction:
“ ‘A possessor of land is subject to liability for physical harm to his invitee caused by a condition of land if he first *307knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such invitee; and second, he should expect that they will not discover or realize the danger or will fail to protect themselves against it; and third, fails to exercise reasonable care to protect the invitee against the danger.’ ” 279 Or at 166-67. (Emphasis added.)
There, the possessor’s liability for injury to invitees arising from the condition of land was determined in part by whether the invitees would “discover or realize the danger or * * * fail to protect themselves against it.” Another way of saying the same thing might be to say that the invitees assume the risk of harm from conditions of which a reasonably prudent person would be aware or which are known to such person.1 Under the majority opinion, an instruction in the language of Katter, supra, would be proper; but an instruction expressed in terms of assumption of risk would not be.
The same situation exists in a “failure to warn” case. Oregon State Bar Uniform Instruction No. 160.10 concerns the “Duty to Warn” in an Employer’s Liability Act case and provides:
“When an employer has actual knowledge or in the exercise of reasonable care would have had knowledge of hazards or dangers, the employer is then under the duty of warning an employee of such hazards or dangers as would not be apparent to an employee in the exercise of reasonable care.”
In such a case, the same factor — whether a person in the plaintiffs position would be aware of the danger — may well determine (1) whether the defendant had a duty to warn, and (2) whether the plaintiff would be contributorily at fault for failure to keep a proper lookout or for *308unreasonably exposing oneself to hazards which were known to the plaintiff or for otherwise failing to recognize the risk of harm.
In the case at bar, the defendant is not responsible for injuries arising from risks which are an inherent and obvious risk of the sport. For example, a skier who sustains injury because a hill is steep or because snow is slippery would normally be without recourse, because those factors are among the factors which make skiing possible. They are an inherent and obvious part of the sport. Under the majority opinion it is not proper to instruct the jury that the skier “submits himself to the dangers that are inherent” in the sport. Would it be incorrect to say that the operator is not liable for injuries arising from factors which are an inherent part of the sport?
The extent to which hazards are or are not apparent to the reasonably prudent skier may determine (1) the ski operator’s liability under the specifications of negligence charged (see page 295 of the majority opinion) and (2) the skier’s contributory fault. The articulation of instructions which entirely exclude such assumption of risk overtones as the instruction at bar possesses may prove to be difficult when “* * * the same facts which formerly were analyzed utilizing the doctrine of assumption of risk * * *” (291 Or at 301) continue to be relevant in delineating “* * * the defendant’s duty in the context of the sport * * 291 Or at 302.
Compare this statement from McHenry v. Howells, 201 Or 697, 702, 272 P2d 210 (1954) (quoting from 65 CJS 495, Negligence § 35d):
“ ‘A mere licensee takes the property or premises on which he enters as he finds them, enjoys the license subject to its concomitant perils, and, although he does not necessarily assume all risk of injury by going on another’s premises, he does assume all the ordinary risks or dangers incident to the condition of the premises or property, ***,”•
McHenry v. Howells, supra, was decided prior to the Oregon cases cited in the •majority opinion.