concurring.
The prosaic facts of this case — an accident involving a motorist traveling across an icy bridge — compel consideration of the difference between the articulation of proper instructions concerning the defendant’s duty of care to the plaintiff and the motorist’s duty of care for herself. The trial court instructed the jury that there was no duty to warn if “the decedent either knew or reasonably should have known of the nature and extent of the danger from the icy condition of the bridge * * In that form, the instruction was improper for the reasons set forth on pages 257-260 of the majority opinion, and further, because it failed to include the exception set forth in Dawson v. Payless for Drugs, 248 Or 334, 433 P2d 1019 (1967), that the state might be liable even if the motorist was aware of the unreasonably dangerous condition if the state “* * * should anticipate the harm despite such knowledge or obviousness.” 248 Or at 338. Dawson involved a situation in which the plaintiff slipped and fell on the icy surface of the defendant’s parking lot. The plaintiff was aware that “it was icy and slick all over,” and nonetheless proceeded to encounter the hazard. The trial court had nonsuited the plaintiff. We reversed, relying in part upon a then-recent revision to the Restatement of Torts (Second) contained in section 343A, which provides:
“(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” (Emphasis added.)
In reversing the trial court, we quoted from comment f, Restatement of Torts (Second) at 220, as follows:
*262“There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.” 248 Or at 338.
We expressly overruled several cases in which we had held that if plaintiff has knowledge of the encountered danger, defendant owed the plaintiff “no duty.” 248 Or at 339.
The second vice of the instruction given by the trial court is more subtle and somewhat more difficult to articulate and understand. Both here and in the trial court, the parties have compared the defendant’s potential liability in this case with the liability of an occupier of premises. I, too, will draw upon that analogy.1 It has been stated that an occupier of premises should warn of hazards existing thereon if persons using the premises would not discover or realize the danger and risk involved. Katter v. Jack’s Datsun Sales, Inc., 279 Or 161, 566 P2d 509 (1977); Restatement of Torts (Second) §§ 342 and 358. Under such a rule, the liability of the occupier of premises for failure to warn was said to turn upon the knowledge, actual or constructive, of persons using the premises. For example, the concurring opinion in Blair v. Mt. Hood Meadows Development Corp., 291 Or 293, 306-308, 630 P2d 827 (1981), states:
«* * * 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:
*263“ ‘ “A possessor of land is subject to liability for physical harm to his invitee caused by a condition of land if he first knows 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 166-167.
* * * *
“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 unreasonably exposing oneself to hazards which were known to the plaintiff or for otherwise failing to recognize the risk of harm.” (Emphasis added.)
In part due to the advent of comparative fault, the articulation of proper instructions concerning the defendant’s duty to the plaintiff and the plaintiffs duty to himself or herself are not necessarily opposite sides of the same coin. The majority are correct in saying that “* * * the state’s duty to warn of localized or temporary dangers must be considered with respect to the risk that they pose generally to the kinds of motorists expected on the road in issue.” 292 Or at 259. The “kinds of motorists expected on the road” may include all types of licensed motorists. In more than an academic sense, the defendant’s duty to warn is not necessarily determined by the knowledge, actual or constructive, of the reasonably prudent person in the plaintiffs position, but rather, upon the knowledge, actual or constructive, of the kinds of motorists using the highway. The state licenses all types of drivers, including persons with disabilities whose disabilities do not prevent them from exercising “reasonable and ordinary control” over their vehicle. ORS 482.130. In some cases, the hypothetical reasonably prudent person may not be identical with either the hypothetical reasonably prudent licensed driver or the hypothetical reasonably prudent motorist expected on the road in issue. In short, the duty to warn is not necessarily determined by the knowledge, actual or constructive, of the *264“reasonably prudent person.”2 As the majority opinion points out, in some cases that may include a proportion who are not “* * * ‘reasonably’ attentive, alert, or knowledgeable about driving on icy surfaces.”
The defendant’s liability for negligence arising from a failure to warn is not determined by the fault of the plaintiff, and instructions relating to the defendant’s negligence should not be so structured. However, in gauging the motorist’s contributory fault, as to constructive knowledge of the hazard, the motorist’s conduct is judged against the standard of the reasonably prudent person. As to actual knowledge, we look to the actual knowledge of the plaintiff.
Instructions relating to the defendant’s negligence arising from an alleged failure to warn are not to be equated with the knowledge, actual or constructive, of the plaintiff. And in some cases, the duty to warn will not be measured by the knowledge, actual or constructive, of the reasonably prudent person, but rather, by the knowledge, actual or constructive, of persons having “* * * the characteristics of any substantial fraction of the population expected to encounter the danger.” Under the facts of this case, the defendant would be negligent for failure to warn if the following elements existed:
1. The use of the highway, in its then-condition, was dangerous to drivers using the highway.
2. The state knew or by the exercise of reasonable care could have discovered the danger.
3. The hazards of use would not be known or obvious to the reasonably prudent licensed driver possessing the minimal qualifications required of a licensed driver in Oregon; or, if the condition was one which, even if *265known or obvious to such a motorist, the state had reason to expect that the motorist would proceed to encounter the known or obvious danger.
4. The state had an opportunity to warn of the risk and failed to do so.
Compare Restatement of Torts (Second) § 343A(2) which provides:
“In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.”
In many situations involving a claim of failure to warn, the reasonably prudent person standard may be appropriate. But not invariably. Problems may arise in instructing the jury as to the defendant’s duty to persons under a disability or as to a defendant who has a physical disability. See L. Green, The Negligence Issue, 37 Yale L J 1029, 1033-1043 (1927-1928); F. James, Jr., The Qualities of the Reasonable Man in Negligence Cases, 16 Mo L Rev 1, 21 (1951); J. tenBroek, The Right to Live in the World; The Disabled in the Law of Torts, 54 Cal L Rev 841, 865-876 (1966). See also, Weinstein v. Wheeler, 127 Or 406, 271 P 733 (1928).