dissenting.
The majority decision disposes of this case by determining that appellees were not negligent as a matter of law; i.e., that the dump pit and wall did not present an unreasonably dangerous condition for which appellees, as occupiers of the land, owed a duty to invitees to protect them from, or at least warn of, the risk of harm. It may be that the majority is correct in its assessment of the reasonableness of the risk created by the construction, design, and maintenance of the facility. This determination, however, which was not clearly made by the district court, would be better left to a jury.
Normally the reasonableness or unreasonableness of the risk created by a defendant’s conduct is a jury question, and a plaintiff is entitled to submit to the jury a question of whether the conduct of a defendant comports with that of a reasonable man under the circumstances, except in the most exceptional cases. DeWald v. State, 719 P.2d 643 (Wyo.1986); Brockett v. Prater, 675 P.2d 638 (Wyo.1984). For this reason we have repeatedly stated that summary judgment is not favored in negligence actions. Conway v. Guernsey Cable TV, 713 P.2d 786 (Wyo.1986); O’Donnell v. City of Casper, 696 P.2d 1278 (Wyo.1985). Under the facts of this case, reasonable minds could disagree as to whether a sixteen-foot deep public dumping pit with a two-foot high concrete barrier created an unreasonably dangerous condition, especially where it was apparently designed for the public to back their vehicles to the wall so they could throw trash into the pit. The foreseeability of members of the public actually standing on the wall to throw garbage into the pit similarly presents a jury question. The district court, to the extent it so decided, and now this Court have usurped the jury’s function by deciding these factual questions as matters of law.
In deciding this case in the manner in which it does, the majority thereby avoids the necessity of considering the actual bases upon which the district court granted summary judgment and the actual issues presented by the parties to this appeal. *751We have said, of course, that this Court may decide a case upon any legal ground appearing in the record. Ldtzenberger v. Merge, 698 P.2d 1152 (Wyo.1985); Hurst v. State, 698 P.2d 1130 (Wyo.1985). In the instant case, however, had the majority not ill-advisedly decided the jury question regarding appellees’ negligence, it would have been forced to address the issues of governmental immunity for the Waste Disposal District and application of the known and obvious danger rule with respect to the liability of both appellees. It was upon those grounds that the district court granted summary judgment and upon which the parties directed their arguments to this Court.
The district court determined that the Waste Disposal District was entitled to the general grant of governmental immunity provided by Wyo.Stat. § l-39-104(a) (1977) of the Wyoming Governmental Claims Act and that appellant failed to produce any evidence which would bring the Waste Disposal District within any of the exceptions contained in that Act. Although the district court may have been correct in this determination, complex questions are presented with respect to the relationship between the Waste Disposal District and JFC, the potential direct or vicarious liability of the Waste Disposal District, and the effect of Wyo.Stat. § 1-39-108 (1977) and Wyo.Stat. § 1-39-111 (1977) (repealed in 1986). The comprehensive inquiry required to assess the district court’s resolution of those questions will not be here undertaken as a search for a legitimate basis to affirm with respect to the Waste Disposal District.
The district court further determined, however, that the dangers inherent in the facility were known and obvious to appellant, and therefore liability for both the Waste Disposal District and JFC was precluded by the obvious danger rule; i.e., the obvious danger rule operated as a complete bar to recovery. This rationale of the district court, which is also urged as an additional basis for affirmance by the concurring opinion of Justice Rooney (Retired), is clearly contrary to our recent decisions on this issue.
In O’Donnell, 696 P.2d 1278, we held that those situations in which the obvious danger rule operated to negate a duty on behalf of a defendant property owner or occupier were narrowly limited to dangers presented by naturally existing conditions and that otherwise the obviousness of the danger becomes a factor in apportioning negligence between a plaintiff and a defendant under our comparative negligence statute. In Jones v. Chevron U.S.A., Inc., 718 P.2d 890, 898 (Wyo.1986), we reaffirmed our holding in O’Donnell, stating that:
[T]he obvious-danger rule does not apply when a dangerous condition is created by the owner or his servants. * * * Even if the danger was perfectly obvious to [the plaintiff], it is the function of the jury, under the comparative negligence statute, to compare his negligence with that of [the defendant].
See also Note, Assumption of Risk and the Obvious Danger Rule. Primary or Secondary Assumption of Risk?, XVIII Land & Water L.Rev. 373 (1983); and Note, The Obvious Danger Rule — A Qualified Adoption of Secondary Assumption of Risk Analysis, XXI Land & Water L.Rev. 251 (1986). The reliance by the district court upon the obvious danger rule as an absolute defense was erroneous, and, although the majority opinion implies as much, it should explicitly say so. The summary judgment in this case cannot be affirmed premised alternatively on the obvious danger rule as a complete bar to recovery.
I would reverse the summary judgment and remand the case for trial.