concurring in part and dissenting in part, with whom RAPER, Justice, Retired, joins.
I concur with that part of the majority opinion having to do with Suzuki, but I dissent from that part of the opinion having to do with the City of Casper.
THE MAJORITY OPINION
The majority opinion abandons logic, and it abandons the wisdom of our predecessors on the basis of theoretical exploration commonly indulged in by law professors to challenge the thinking of law students, but from which the law professors generally retreat in the final solution of the law problem in favor of the practical and common sense solution of it.
The majority opinion would dissect negligence by removing one of its essential elements and then treat the remaining elements as a viable whole in comparing them with the dissected element. Negligence consists of a duty, a violation of the duty, proximately causing the injury. ABC Builders, Inc. v. Phillips, Wyo., 632 P.2d 925, 931 (1981); Beard v. Brown, Wyo., 616 P.2d 726, 734 (1980); Danculovich v. Brown, Wyo., 593 P.2d 187, 195 (1979). The majority opinion sets “duty” off from “negligence” and then discusses the presence, or absence, of “negligence” without one of its component parts.
*1289The majority opinion will completely change the status of negligence law in this state. If its reasoning is applied to questions of degrees of duty, i.e., re dangerous instrumentalities, contract duty, statutory duty, trespasser-licensee-invitee duty, of unavoidable accident, of notice of created nuisance or danger, of intervening cause, of res ipsa loquitur, etc., all of the past understanding relative thereto is abandoned.
The majority opinion concerns itself with duty only in so far as it is involved in the well-established requirement that the City must use reasonable care in maintaining the streets and sidewalks in a reasonably safe condition. The dilemma in this case arises from the fact that tjie City was exactly fulfilling this duty in resurfacing the street and thereby making its condition safe for the traveling public. Under the majority opinion, a city would be foolish to attempt to repair any street in the manner accepted in the past, i.e., remove and replace or reinforce the hard surface, seal it with sealant and gravel, traffic compress the gravel, and then remove the excess gravel. Under the majority opinion, any accident occurring on that street during the repair process could result in city exposure to liability. To repair a street under the majority opinion, some other means would have to be invented to compact the gravel, all at great inconvenience to the public and at considerable increase in expense. As noted ante, the duty to be considered here is not a duty to maintain safe streets per se, but it is the duty to make repairs to the streets in a reasonably safe manner. The duty may be to post warning notices or warning lights of a dangerous situation temporarily occasioned by repair, or the duty may be the obligation to remove excess gravel within a reasonable time. In this connection, I believe it to be logical, not illogical, as said in the majority opinion, to impose a duty to warn of a danger occasioned by a small hole not easy to see and not to impose a duty to warn against driving over a cliff or a 300-foot hole which is obvious to the driver from a great distance. It seems logical not to impose a duty to warn someone from walking through a doorway when the door is obviously closed without first opening it, whereas it would be logical to impose a duty to warn against walking through a doorway into a contaminated area.
The majority opinion indulges in considerable discussion about the existence of a duty which the known and obvious danger of a situation does away with or negates. Of course, such is not the known and obvious danger rule at all. If there is a known and obvious danger there is no duty in the first instance to negate. For example, there is simply no duty in the first instance to tell a person, when delivering a gun to him, that if he loads it and points it at himself and pulls the trigger, he could be hurt; or if he drives his car over a 300-foot embankment, he could be hurt; or if he slips on a perceptibly icy and snowy street or sidewalk, he could be hurt; or if he rides a motorcycle on gravel it could slip from under him and he could be hurt.
“ * * * The law imposes upon a person, sui juris, the obligation to use ordinary care for his own protection, the degree of which is commensurate with the dangers that are to be avoided; and one who voluntarily and unnecessarily assumes a position of danger the hazards of which he understands and appreciates, or of which he should be aware, cannot recover for an injury from a risk incident to the position in which he has placed himself. * * *” 57 Am.Jur.2d Negligence § 319, p. 721 (1971).
See Sherman v. Platte County, Wyo., 642 P.2d 787 (1982).
The majority opinion does not distinguish between “assumption of risk” and the “known and obvious danger” rule. There is an important distinction. In the first place, we have not recognized “assumption of risk” in Wyoming as an independent defense to a negligence action. We have considered it as being embraced in contributory negligence. Ford Motor Company v. Arguello, Wyo., 382 P.2d 886, 891 (1963). Yet, we have always recognized the independent defense of “obvious danger.” *1290Bluejacket v. Carney, Wyo., 550 P.2d 494, 497 (1976); Continental Motors Corporation v. Joly, Wyo., 483 P.2d 244, 246 (1971); McKee v. Pacific Power and Light Company, Wyo., 417 P.2d 426, 427 (1966). In the second place, assumption of risk is an act of volition by the plaintiff which will defeat, or lessen, his recovery for negligence of the defendant.
“ * * * [T]he term ‘contributory negligence’ necessarily presupposes negligence for which the defendant is liable, which would be actionable but for the concurrence of the contributory negligence. * * * ” Stanolind Oil & Gas Co. v. Bunce, 51 Wyo. 1, 62 P.2d 1297, 1301 (1936).
Whereas, the “known and obvious danger” rule is premised on there being no negligence on the part of the defendant in the first instance. In other words, the “assumption of risk” or contributory negligence aspect is something which results from the plaintiffs position, whereas the “obvious danger” aspect results from the defendant’s position, i.e., there can be no negligence on his part if the danger is obvious to everyone including the plaintiff. A duty on the part of defendant never arises. I commented on this distinction in my specially concurring opinion in Sherman v. Platte County, supra, 642 P.2d at 790:
“I must elaborate somewhat on that said in the majority opinion relative to appellant’s contention that the obvious-danger rule as set forth in Instruction No. 17 1 has been ‘abrogated’ by the adoption of the comparative negligence statute in Wyoming.
“The fallacy in appellant’s argument is in reading into the instruction a direction to the jury for an assumption of risk by appellant rather than reading therein a definition of the duty owed by appellee. Even before enactment of the comparative negligence statute in Wyoming, a distinction between assumption of risk and contributory negligence was not recognized. Assumption of risk was but a form of contributory negligence. Subsequent to enactment of the comparative negligence statute, assumption of risk, as a form of contributory negligence, is only a basis for apportionment of fault. Brittain v. Booth, Wyo., 601 P.2d 532 (1979).
“In a negligence action, the jury is now called upon to ascertain the fact of negligence, if any, on the part of each of the parties, and then to apportion such negligence between them.
* ⅜ ⅝ SjS *
“The adoption of the comparative negligence statute did not ‘abrogate’ any duty or standard of care. It simply directed consideration of ‘comparative fault.’ ” (Emphasis in original and footnote 2 omitted.)
Footnote 1 in the first paragraph of this quotation reads:
“1. Instruction No. 17 reads:
“ ‘An owner or occupant of land or premises does not have an obligation to protect his invitees against dangers that are known to them or that are so obvious and apparent that they may reasonably be expected to discover such dangers.’ ”
CITY LIABILITY
This case is not complicated; it requires only the simple application of established law. Summary judgments are seldom granted in negligence cases. Keller v. Anderson, Wyo., 554 P.2d 1253, 1257 (1976); Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352 (1974). But they should be granted when the summary judgment requirements are definitely met. Keller v. Anderson, supra. Since “duty” is a necessary element of negligence, a negligence action cannot be maintained if there is no “duty,” and duty is a question of law to be determined by the court. Moewes v. Farmers Insurance Group, Wyo., 641 P.2d 740, 744 (1982); Vassos v. Roussalis, Wyo., 625 P.2d 768, 772 (1981), appeal after remand 658 P.2d 1284 (1983).
This does not mean that in all instances summary judgment is proper when the question involves the existence of a duty. *1291There may be factual determinations necessary to the decision on the issue of duty. If so, a summary judgment would not be proper. Rather, the court should present the factual issues to the jury and, from the jury resolution of such issues, make a decision on the existence of a duty. This is normally accomplished by instructions which direct “If you find x, then you shall * * * >, «¡f y0U fjncj y; then you shall * * ⅜ »
“The determination of any question of duty — that is, whether the defendant stands in such relation to the plaintiff that the law will impose upon him an obligation of reasonable conduct for the benefit of the plaintiff — has been held to be an issue of law for the court and never one for the jury. However, where fact issues arise in the application of the rule, or the drawing of varying inferences from the facts in evidence is possible, a question for the jury may arise, but the enunciation of the duty upon the facts found is for the court, not the jury. * * ” 57 Am.Jur.2d Negligence § 34, p. 381 (1971).
A fact issue relative to the known and obvious danger, and thus the duty, is not present in this case. The fact that it was a known and obvious danger is not disputed. Appellant’s knowledge of the presence of the gravel and the danger resulting therefrom was before the court in appellant’s deposition. Appellant was giving a party at the home of his parents. He borrowed the motorcycle of one of his guests to take a “spin” around a few blocks. As he returned and was going by the house, the accident occurred. He testified in his deposition:
“I accelerated out of the intersection. I remember thinking to myself at that point be careful because there is gravel on a turn, something like it’s the easiest place to lose a bike.”
“*** And in my mind flashed a couple alternatives of things I could do. One was I was going to lay the bike down and slide into the car. I didn’t want to do that because I’d heard of people sliding on gravel, and they had to get it picked out. * ⅝ * ” (Emphasis added.)
“Q. And as I understand, you don’t recall exactly when the streets were graveled, but it was some time before?
“A. It was sometime before the accident.
“Q. A few days before?
“A. I did not see the gravel being put down. I don’t know.
“Q. But you were aware it was there. You’d been driving over it to and from work?
“A. I was aware the gravel was there.” “Q. How fast were you driving the bike?
“A. I remember particularly being very cautious that day. The street was — had gravel all over it, and in fact a good deal of the neighborhood did around there as I was riding the bike. And motorcycles are very difficult to control on a street that has gravel on it.”
“Q. And then as I understand you gave, at the very beginning of your deposition, a number of streets that you went on and the number of turns.
“A. Yes.
“Q. Throughout your travel that area, were all those streets graveled?
“A. As I recall, yes.
“Q. As I understand, you’ve indicated you did not go any faster than 30 miles an hour.
“A. No, because as I stated earlier, because of the nature of the streets, all the gravel on it, there would have been a great deal of risk involved in that of losing control of the bike.
“Q. It’s a little harder to control the bike under those circumstances, correct? “A. Yes, it is.”
Inasmuch as the danger was known and obvious to appellant, the City owed him no duty with reference to the gravel on the street, and the summary judgment was proper.
“ * * * Thus, although a duty rests upon a municipality, where an obstruction is permitted to remain in a highway or *1292street, to give notice to the traveling public of its presence, yet, no other notice is needed than a view of the obstruction itself, where it can be seen in ample time to avoid injury. * * * ” 57 Am. Jur.2d Negligence § 126, p. 477 (1971).
As an aside I must note that even assuming for the sake of argument an existence of a duty on the part of the City, there was nothing before the trial court to establish a question of fact relative to the violation of such duty. Unless a res ipsa loquitur approach is proper, the only facts set forth in the depositions and affidavits reflected reasonable action by the City under the circumstances. Witness Keigley testified that the City followed a well recognized and nationally approved procedure in resurfacing the streets and that the procedure was used in this instance. The operation was performed on June 7, a month before the July 8 accident. He explained that the weather, street conditions, and traffic determined the length of time the gravel was to be left on the street. He said that the gravel is normally swept back at regular intervals. He testified:
“Q. Was there any — was anything else done to the street from June 7 to July 8, the day of the accident?
“A. Only the routine brooming back on it, the bare areas of oil, what we call bleeding through where the chips did not adhere in the well traveled path of the road. We go in there with a sweeper, street sweeper, and use a broom to swirl and sweep it back over there.
“Q. When was that?
“A. I can’t give you an exact date on that, but it may have been done two or three different times.
* * * * * *
“A. The traffic is allowed to travel on that for impregnation of the aggregate into the road bed anywhere from it could be one day to a month, depending on the conditions. Because if it’s hot, we have bleeding on the street, we have to broom back. The chips are left on the road surface pruposely so that they can protect, you know, not only the street surface that we have sealed but to protect the vehicles from picking up and carrying a lot of oil on to the bodies of the car[s].
“Q. Okay.
“A. After they have had a sufficient time — now, these streets are checked daily by a foreman to see how they are curing, and all, and to see what the conditions are. And when we feel that there is no further need for the excess chips, then we send the sweepers in there to remove them. And there again, there is really no set time on it. If you were asking for a normal, a normal could be anywhere from five days to five weeks. * * * * * *
“Q. Do you have any personal knowledge as to whether or not the street Mariposa in the area of the accident and in that area was ever — material was ever swept back into the street from June 7 to July the 8th of 1977?
“A. I observed them sweeping in that area; but what days it was, it was shortly thereafter because we were still working that whole area up there for additional seal coating.
“Q. Shortly thereafter the accident or after the seal coating?
“A. Well, shortly thereafter they seal coated.
“Q. On how many occasions did you personally observe that?
“A. I would say at least twice, three times.
“Q. So you have personal knowledge that the area where the accident occurred was swept at least twice, maybe three times from June 7 to July the 8th 1977?
“A. Undoubtedly, yes. At least that.
“Q. I’m not sure that’s—
“A. Well, what I mean there is, because of the traffic in there, the brooming operation has to take place because you don’t get a hundred percent coverage of the fresh oil the first time around. And it could be two or three or four days later *1293before the bare spots show up. Then you have to broom it back in there. “So there is no doubt in my mind that we were back in there at least two or three different times.
“Q. I understand that. But my question is your personal knowledge. Not what you believe had to have happened, but what you actually know happened. “A. I couldn’t say—
“MR. NEVILLE: Just a second. He’s asking you if you yourself through your own eyes saw sweepers on Mariposa or at the scene of the accident between June 7 to July 8. With your own eyes.
“THE DEPONENT: I would have to say yes, I did observe sweepers in there.
“Q. (BY MR. MILLER) On two occasions?
“A. At least two occasions.”
Keigley testified that accompanied by J.C. Jackson, he observed the scene of the accident on the second day after it occurred, and that:
“Q. All right. Approximately how long after the accident occurred did he ask you to look into it?
“A. Well, he and I took a ride, I believe it was, two days after the accident happened. We looked at the area.
“Q. All right. What did you observe when you got there?
“A. I didn’t observe anything unusual. I was asked to take a look specifically at the condition of the street, the presence of, you know, stone chips from a previous sealing operation. I didn’t see anything unusual.
“Q. Had anything been with [sic] done to the street between the time of the accident and the time you observed it? “A. Nothing that I could tell.
“Q. Was there still material on the street that had been left there from the sealing operation?
“A. I would say a moderate to a normal amount, yes.
“Q. Give me some idea of—
“A. Well, toward the right and left sides of the street there is always a certain amount of windrowing of loose chips that haven’t adhered to the pavement. It was a very moderate amount of loose chips on the center of the street. I didn’t observe any unusual amounts in the intersection. That is a T intersection there.
“Q. Okay. And the windrowing, the pile of chips, how deep were they?
“A. At best less than two inches.
“Q. And that was right at the area of the accident?
“A. No, not necessarily so. I would say that they were closer to the curb than the area of the accident.
“Q. How about the windrowing in the middle of the street? How deep was that?
“A. Oh, very nil, I would say. Just a scattering of it there.”
There was nothing in the record to refute the testimony of Mr. Keigley to the effect that the street was swept two or three times between the application of the seal and the time of the accident. Judson S. Matthias, a professor at Arizona State University, furnished an affidavit in which he stated that the maintenance of the street was faulty because the gravel was allowed to remain in a windrowed condition “for a period, in excess of four (4) weeks” and because the gravel had not been brushed at regular intervals. The affidavit was not based on personal knowledge of such fact but was premised on a review of the City’s answers to interrogatories, appellant’s deposition, and the police report of the accident. None of them reflect the fact that the windrows were allowed to remain for four weeks or that the gravel had not been brushed for four weeks. Rule 56(e), W.R. C.P., provides that “[supporting and opposing affidavits shall be made on personal knowledge.”
There is nothing specific in the record to counter Mr. Keigley’s testimony as to the specific depth of the gravel at the place of the accident. Appellant described the depth of the gravel in general terms — see quotation, supra. The nearest he came to specifying the amount of gravel was:
*1294“A. * * * And the paths of traffic had forced the excess gravel into piles that were in the center of the street between the lanes of traffic that were actually in the middle of the car lane where the two tires would make a track. And between those two tire tracks would be a mound of gravel. And also between these two intersections there is an area there approximately triangularly shaped that did not receive an awful lot of gravel. And all of the excess gravel seemed to be finding its way into an area, and it was very deep and uneven and very difficult to — to drive through.”
Appellant’s father, in his affidavit, fixed the depth of the gravel on the north side of the street at approximately three to four inches:
“3. At the time of the accident, July 8, 1977, and for a period of three to four weeks prior to said date, the material deposited on the street by the City of Casper had been moved by the traffic and become piled or windrowed, primarily on the north side of Mariposa Street, to a depth of approximately three to four inches.”
The testimony was that the accident happened on the south side of the street and appellant did not drive north of the westbound traffic lane. Of course, both appellant and his father were in the unenviable position of contending for the presence of excessive gravel to establish negligence on the part of the City and in doing so also establishing a known and present danger which would absolve the City from liability. Either lack of excessive gravel or the danger of excessive gravel being known and present would justify the summary judgment.
Appellant testified that he was proceeding west on Mariposa" Street in the westbound lane and when he reached a point in front of his house, an automobile driven by Walford1 pulled away from the north curb and into the westbound lane of traffic, forcing appellant to turn into the eastbound lane of traffic. He lost control of his motorcycle and continued westbound for a short distance before hitting a parked automobile on the south side of the street.
SUZUKI LIABILITY
I concur with the majority opinion with reference to the existence of error in granting summary judgment in favor of Suzuki. Under the majority opinion, the verdict form, for the purpose of apportioning negligence, will request determination of degrees of negligence on the part of appellant, the City, Suzuki and Walford. I would not include the City on such form by virtue of affirming the trial court’s summary judgment in favor of the City.
. Walford, one of the guests at the party and described by appellant as intoxicated while at the party, was originally named a defendant but settled for $25,000, the limits of his insurance policy.