concurring.
The court holds today that the plaintiff’s proof in this negligence ease is sufficient to withstand a demurrer and reverses the trial court’s judgment for the defendant. On the record before it, the court concludes that the evidence adduced by the plaintiff supports a claim rested on the primary negligence of the Town of Asher [city]. Because there is some doubt whether a reasonably prudent person would agree that the plaintiff “assumed the risks” associated with crossing a public alley, the court remands the cause, in accordance with the mandate of Art. 23, § 6, Okl. Const.,1 for submission of the city’s assumption-of-risk defense to the triers.
While I concur in the court’s judgment and in its opinion, I write separately to reemphasize the essence of municipal liability for unsafe streets and to define the trae legal boundaries of the city’s defense to the claim. The principles I add should be helpful to the judge when the action is reached for retrial.
I
MUNICIPAL LIABILITY DIFFERS FROM PREMISES AND OTHER LIABILITY
The distinct nature of municipal liability for unsafe streets is best understood when it is compared with the liability of common carriers and that of land owners or occupiers. A common carrier owes to a passenger the highest degree of care,2 whereas premises *51liability calls for a lesser level of duty. The latter varies with the entrant’s status in the common-law classification system. Municipal liability for unsafe streets differs from premises liability. Unlike the landowner, a city clearly bears an obligation to remedy open and obvious defects that may endanger the traveling public.
Premises Liability
A land possessor’s (or an occupier’s) liability in negligence for harm occurring upon the premises varies with the status of the entrant who complains of injury.3 Entrants fall into three categories — trespasser,4 licensee5 or invitee.6 The breadth of duty that marks out the limit of protection afforded an entrant expands or contracts with the beneficial interest of the possessor in the presence of the other upon the land.
By varying the duty of care vis-á-vis each of the three categories of entrants, the law applies to the land occupier a form of diminished responsibility in negligence for harm occasioned by defective conditions. The common law has not extended its principles of general negligence7 to those harmed by dangers on the premises of others.8 We rejected the notion of an across-the-board premises liability in Sutherland v. Saint Francis,9 where we expressly declined the plaintiffs invitation to foist on Oklahoma the “California madness”.10
*52Landowners (or occupiers) who fail to maintain their premises in a reasonably safe condition are not always liable to entrants. There is, for example, no duty to correct open and obvious defects. Toward the invitee the landowner must exercise reasonable care to keep the premises in a reasonably safe condition and to warn of known defects which are in the nature of hidden dangers, traps, snares, pitfalls and the like. The invitee, on the other hand, must guard against all normal or ordinary dangers incident to the use of the premises. No liability arises for injury from conditions so apparent or readily observable that one would reasonably expect them to be discovered. Whether harm from an open and obvious defect is actionable depends on the objective standard of dm care — i.e., whether under similar or like circumstances an ordinary prudent person would have been able to see the defect in time to avoid being injured.11
Municipal Liability
Whenever the condition of a street (or other public way) is alleged to be unsafe, municipal liability for harm arising from it is governed by a modified form of common law’s general negligence. Its principles are neither co-extensive with nor identical to premises liability. While a land occupier would not generally be held answerable for injury from an unguarded, open and obvious danger, yet a municipality might incur such liability if the harm-causing defects were in the direct flow of traffic, vehicular or pedestrian, their presence was known or should have been known, and the injured person was unable to see the hazard in time to avoid it.12 More importantly, in municipality liability for unsafe streets there is no room for entrant classification. The same duty of care extends to all persons injured on public ways.
Municipal responsibility rests on the obligation to exercise ordinary and reasonable care to keep the streets in a reasonably safe condition for public travel. The law does not make a municipality a guarantor of safe or unharmed travel. The duty cast is to remedy dangerous defects (a) in a reasonable time upon receiving actual notice of their existence, or (b) where the condition is shown to have existed for a sufficient length of time and under circumstances which would raise an inference that the defect ought to have been discovered and secured or repaired.13 The very same duty of care applies to a municipality’s maintenance of its alleys.14
The mere existence of a hole in an alley is not evidence of municipal negligence. It must be shown that the defect rendered the street not reasonably safe for travelers exercising ordinary care and caution. Whether the presence of a harm-dealing hole in a street will give rise to liability depends upon *53(a) whether it is a dangerous defect which renders passage in the usual mode and with ordinary care hazardous or unsafe, and (b) whether a municipality has failed to exercise reasonable care under the circumstances to repair or secure the locus in quo.15 Should a hole be shown to be dangerous to travelers, a municipality would stand hable for resulting injury if it has failed to guard or fill the danger16 after actual or constructive notice of its existence and sufficient time to act. In sum, to be actionable the defect must be dangerous, and the danger must be gauged by the objective standard of a reasonably prudent person.17 If prudent persons might differ on whether the harm from a defect should have been anticipated, the case is one for the jury.18
A municipality is charged by statute with the duty of maintaining its streets, avenues, lanes and alleys in a condition fit for public use. 11 O.S. 1991 § 36-101.19 A city’s obligation to use ordinary care in repairing its streets and alleys cannot be evaded, suspended or cast upon others.20 In short, a city is burdened with a nondelegable responsibility to keep its streets in a reasonable state of repair and in a condition reasonably safe for their intended use.
The Present Case
It is undisputed in the present case that the alley’s dangerous condition had existed for a long time. The plaintiff [Byford] had moved across the alley from his father’s house in 1986 or 1987. The pathway was then in disrepair. Byford notified the city on at least two occasions in an effort to enlist its help. When his requests went unmet, he grated the defective spots himself with the use of a tractor. Occasionally he hauled in dirt and gravel. He stopped maintaining the alley when his tractor broke down.
On the evening of the injurious event an electric light attached to a pole in Byford’s back yard was shining. Although some shadows appeared, Byford testified it was “lit enough.” While he was generally aware *54there were holes and ruts in the alley, he did not daily check on its precise location or condition. According to Byford, he was “trying his best to watch what he was doing” and “to pay the best attention to where he was going.”
Because Byford was aware the alley was dangerous, he carried a cane for support as he proceeded to cross. He stepped on gravel “or something that gave way” and started sliding. Although he tried to steady himself with the cane, his foot landed in the bottom of a hole (10 to 15 inches deep) where his ankle broke on impact.
Byford’s Claim.
Byford’s proof is clearly sufficient to support his theory that the harm-dealing defect in the alley had a deceptively innocent or harmless appearance21 of solidity until he stepped onto the very soft spot and the ground gave way, causing his foot to sink into the bottom of the hole.
Byford’s knowledge of a defective condition is not fatal to his recovery. Whether his foreknowledge should have prevented the harm is to be measured by the objective standard of a reasonable man. There is no allegation he stepped into the hole wilfully. Byford’s claim to the use of a reasonably safe alley is no less actionable than that of any stranger who was without knowledge of the defective condition.
The City’s Defense
The city’s primary negligence can be drawn from these facts: (a) the defect may not be viewed as one of a “slight” dimension or quality, (b) the alley was in a dangerously unsafe condition, which had been reported to the city and (c) the substandard condition had been in place for a time sufficient to be secured by guards or to undergo repairs. In sum, the record reveals a long-standing presence of an unguarded, open and obvious defect of a dangerous character.
The city’s defense appears to be that (a) the rut was an open and obvious danger, (b) Byford knew where it was located and could have avoided it, (c) he stepped into a known hazard and, (d) ergo, the injury he sustained was caused by his own negligence. This defense (alleging an “open and obvious” defect and “contributory negligence”) raises clearly questions for the jury.22
II
THE CITY’S ASSUMPTION-OF-RISK DEFENSE
Thomas v. Holliday teaches that, as a tort defense concept, risk assumption is divisible into three categories — express assumption of risk,23 implied primary assumption of risk24 and implied secondary assumption of risk.25 Whether the plaintiffs “consent to injury” is express or implied, the result is the same— the defendant is relieved of a legal duty to the plaintiff and cannot be held answerable for negligence.26 Cases falling into each of these three categories rest on the risk content in the activity pursued by the plaintiff.
*55The entrant’s “risk assumption” is at times mistakenly used to state that the occupier bears no liability for open and obvious hazards on the land. This manner of explaining the law confuses risk assumption with nonliability. To avoid the resulting conceptual mess, it would be far more correct to state that the landowner is generally not liable to entrants for open and obvious defects instead of saying that the entrant assumes all the risk of open and obvious hazards.27
Because in an assumption-of-risk context there is always a suggestion that the plaintiff has expressly or impliedly consented to the harm by engaging voluntarily in an activity commonly associated with danger, the assumption defense has no place in municipal liability for unsafe streets unless the pedestrian be shown to have entered some secured area visibly blocked from public use. There is no unqualified duty on •the part of a pedestrian to avoid unguarded, open public ways which may be dangerous,28 A person using a public way for the purpose for which it was designed — i.e., walking — cannot be regarded as engaged in an activity commonly or inherently associated with risk.29 For risk assumption to apply in the use of unsafe streets the element of danger must be drawn from some posted warning of danger. Had Byford entered an alley that was either blocked off or marked off limits to pedestrians, or had he stepped into a place that was secured by railings or some other means, the assumption-of-risk defense could be invoca-ble. Walking upon designated public ways may not be equated to skiing, skating, engaging in pugilistic contests or to some like hazardous activity. Lastly, the element of choice or freedom of action, which is essential to invoking an implied secondary assumption of risk,30 is never present when a pedestrian traverses an unguarded, open public way. Consideration of all these notions combine to place this case beyond the legal limit of risk-assumption defense.
An unguarded, though open and obvious danger, is not per se excluded from the range’ of municipal accountability for negligence. Each claim'must stand on its own facts. If in a case like this a city were allowed to interpose an assumption-of-risk defense, normal pedestrian use of open, unguarded public ways would qualify in law as a hazardous activity associated with some implied danger. The obvious absurdity of that premise mandates its out-of-hand rejection.
SUMMARY
Municipal responsibility for maintaining safe streets is based on a modified form of general negligence regime that is distinct from premises liability. Unlike the landowner, a city may be liable for injury from an unrepaired or unguarded — though open and obvious danger — if it had notice of the hazard’s existence in sufficient time to secure or remove the danger.
A plaintiffs use of an unbarricaded alley with known, though unguarded, dangers is legally risk-neutral. The law casts no duty upon pedestrians to stay away from imperfect public passageways or those known to be poorly maintained, so long as these places remain open for pedestrian traffic.31 Dimly lit or unlit open streets with dangerous but unguarded spots do not transmute ordinary pedestrian use into a risk-laden activity. The risk of injury from an actionably unsafe condition in an open street (of which a city has or should have had notice) may not be shifted to individual users. The incidence of risk must fall on the municipality that bears *56a nondelegable duty for the safety of its open public thoroughfares.
A city could escape liability for injury from an unguarded, “open and obvious” defect, in a street or alley (of which it should have known), if the jury should find that an ordinary prudent person — using that public passageway under like or similar circumstances as the plaintiff — would have seen the dangerous spot in time to avoid stepping or falling into it. The traveling public is rightfully to assume that open streets are free of actionable hazards. The presence of defects which are not actionable is to be regarded as entirely consistent with the law’s imposable safety standards.
The assumption-of-risk defense is not negative — it does not rest on liability’s denial. Rather, it is in the nature of confession and avoidance,32 It forms a special exception from general liability for negligence. The defense, which is commonly associated with dangerous activities, express or implied, is not available against pedestrians using open, unguarded public streets. One who traverses an open street after dark does not assume the risk of injury from actionable defects in his way. Municipal liability for unsafe streets does not come to a sudden halt at sunset. “Assumption of risk” is inappropriate and has no place in municipal liability unless a pedestrian is shown to have entered into an area conspicuously blocked from public use.
The defendant does not appear to contend that, were it not for the risk the plaintiff had assumed, the harm-dealing defect would be actionable. Viewed in this light, the city’s defense in the case at bar is not confession and avoidance but a denial of the defect’s actionable character (because it was “open and obvious”), coupled with the alleged contributory or sole negligence of the plaintiff (who stepped into a non-actionable defect or into one that was known to be there and could hence be avoided). Risk assumption is clearly not the gravamen of the city’s response to Byford’s claim. The city’s defense is negative, while assumption advances an affirmative defense.33 Because the claim and defense both rest on variable standards of safety, the liability’s resolution presents a jury question.34
The plaintiff’s proof establishes the city’s primary negligence. The defendant had been put on notice of the alley’s dangerous condition and neglected to secure or remove the defect over a long span of time. The city’s true defense to the claim is not risk assumption but (a) contributory negligence and (b) the plaintiffs sole negligence in stepping into a known danger. The ease clearly presents issues of disputed fact which must be resolved by the triers.
. The terms of Art. 23, § 6, Okl. Const., are:
"The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury." (Emphasis supplied.)
. The terms of 13 O.S. 1991 § 32 establish the duty owed to a passenger by a carrier for hire. Carriers "must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” Id. Okla*51homa jurisprudence teaches that (1) the degree of care required, the safeguards to be used, and the efforts to be exercised to prevent injury in each case differ with the facts presented and (2) whether a carrier has failed to use utmost care is a question of fact for the jury. Oklahoma Ry. Co. v. Austin, 201 Okl. 567, 207 P.2d 769, 771 (1949); Chicago, R.I. & P. Ry. Co. v. Shelton, 135 Okl. 53, 273 P. 988, 989 (1929); Markwell v. Whinery's Real Estate, Inc., Okl., 869 P.2d 840, 844-845 (1994).
. Sutherland v. Saint Francis Hospital, Inc., Okl., 595 P.2d 780, 781 (1979), teaches that Oklahoma follows the common-law premises liability regime. See also Marsh, The History and Comparative Law of Invitees, Licensees and Trespassers, 69 L.Q.Rev. 182, 259 (1953).
. In the common-law status-based classification system, the only duty owed a trespasser is to avoid injuring him wilfully or wantonly. Woodis v. Oklahoma Gas and Elec. Co., Okl., 704 P.2d 483, 490 n. 10 (1985) (Opala, J., dissenting).
. To a bare licensee the land possessor owes merely the duty to exercise reasonable care to disclose known dangerous defects which are unlikely to be discovered by the licensee. Henryetta Construction Co. v. Harris, Okl., 408 P.2d 522, 531 (1965). The possessor's duty applies to conditions or instrumentalities which "are in the nature of hidden dangers, traps, snares and the like.” Id. at 525. Within this rule of liability a hidden danger need not be totally or partially obscured from vision or withdrawn from sight. The phrase is most generally used to denote a condition that cloaks a reality of danger by its deceptively innocent appearance of safety.
. Harris, supra note 5, 408 P.2d at 531-532; Jack Healey Linen Service Co. v. Travis, Okl., 434 P.2d 924, 926-927 (1967); Sutherland, supra note 3, 595 P.2d at 783; Rogers v. Hennessee, Okl., 602 P.2d 1033, 1034 (1979). Failure to remove known but obvious hazards through alteration or reconstruction of the premises constitutes no breach of duty owed by a landowner or occupier. Rogers, supra, 602 P.2d at 1034; Buck v. Del City Apartments, Inc., Okl., 431 P.2d 360, 365 (1967).
. By the phrase “general principles of negligence” is meant that the same degree of care applies to everybody. Negligence that creates upon the land undue risk of harm to others would be actionable, no matter what the entrant's status. Thomas v. Holliday By and Through Holliday, Okl., 764 P.2d 165, 170 n. 16 (1988).
. Neither historical antecedents nor modem policy considerations militate in favor of imposing the common law's trichotomous division of entrants upon the regime of municipal tort liability for unsafe streets. See Marsh, supra note 3 at 359-361. Oklahoma has refused to extend the traditional occupier's immunity to a defendant who is neither owner nor occupier. See, e.g., Phillips Petroleum Co. v. Bartmess, 181 Okl. 501, 76 P.2d 352, 353-354 (1937); Earl W. Baker Utilities Co. v. Haney, 203 Okl. 91, 218 P.2d 621, 623-624 (1950). For a discussion of the distinction between occupiers and other defendants, see Hughes, Duties to Trespassers: A Comparative Survey & Revaluation, 68 Yale L.J. 633 (1959).
. Supra note 3, 595 P.2d at 782.
. California (and some other states) have abolished the common-law system of premises liability. Sutherland, supra note 3, 595 P.2d at 782, citing Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, 563-564 (1968); Kenney v. Grice, 171 Colo. 185, 465 P.2d 401, 403 (1970); Mile High Fence Company v. Radovich, 175 Colo. 537, 489 P.2d 308, 313 (1971). In those states, the landowner or occupier stands *52liable for failure to use due care to maintain a reasonably safe premises, no matter what the entrant’s status. For a discussion of the California rule and its adoption by other states, see Annot., 22 ALR4th 294 (1983).
. Hanis, supra note 5, 408 P.2d at 531; Jack Healey Linen, supra note 6, 434 P.2d at 927.
. Rider v. City of Norman, Okl., 476 P.2d 312, 313 (1970). If premises and municipal liability were co-extensive, a city would not be under a duty to fill a sinkhole in the middle of the street nor would it be liable for injuries from such defect. It would be absurd to advance the notion that claims for injuries caused by open and obvious defects in a city street or alley are never actionable. If a city has been notified of a defect, or if enough time had elapsed for a municipality to become aware of its presence, the city might be liable to one who, unable to see the danger in time to avoid it, fell into a sinkhole. Whether the injured person could see the sinkhole in time to avoid falling into it and whether the city had sufficient notice of the defect to place guards around the danger or otherwise secure it pending repair work would present fact issues for the trier. McQuilun. The Law of Municipal Corporations, §§ 54.90a, 54.94d (3d ed. 1985).
. Rider, supra note 12, 476 P.2d at 313; City of Hartshorne v. Carlomango, Okl., 287 P.2d 696, 699 (1955); Lane v. City of Tulsa, Okl., 402 P.2d 908, 910 (1965); Williams v. City of Bristow, Okl., 350 P.2d 484, 487 (1960); City of Seminole v. Mooring, 185 Okl. 359, 91 P.2d 1091, 1093 (1939); City of Ada v. Criswell, 185 Okl. 517, 94 P.2d 838, 841 (1939); McQuilun, supra note 12, §§ 54.01, 54.02, 54.03b.
. City of Tallassee v. Harris, 431 So.2d 1177, 1181 (Ala.1983); Johnson v. City of Galena, 163 Kan. 713, 186 P.2d 96, 97 (1947); Fields v. Kansas City, 358 S.W.2d 96, 99 (Mo.Ap.1962); Barry v. City of Butte, 115 Mont. 224, 142 P.2d 571, 573 (1943); Ferguson v. City of Yakima, 139 *53Wash. 216, 246 P. 287, 288 (1926); McQuillin, supra note 12, § 54.40 at 127-128.
. City of Okmulgee v. Bridges, 185 Okl. 537, 94 P.2d 927, 929 (1939) (whether a hole is a dangerous menace or trivial defect is a jury question). A city has no duty to warn of “slight and trivial" defects, but is required to guard against danger it could or should have anticipated in the exercise of reasonable care. In Evans v. City of Eufaula, Okl., 527 P.2d 329, 332 (1974), the court held that a city is not liable if a defect in the sidewalk and alley curbing (a 1 -⅛" crack) is slight and trivial and the pedestrian’s view of the sidewalk is clear. Evans teaches that a "slight and trivial" defect is one from which a reasonably prudent person would not anticipate danger to the public using the way. If reasonable men might differ whether an accident should have been anticipated, the question of liability is one of fact for the jury. Id. at 332 (citing Rider, supra note 12). In Haas v. Firestone Tire & Rubber Company, Okl., 563 P.2d 620, 626 (1977), the court held that the city is not required to "guard the traveling public from normal hazards such as puddles of water in the street. But if the [body of] accumulated water is so wide and deep as to constitute a real danger not reasonably to be anticipated by users ..., the municipality has a duty to eliminate the hazard [o]r to warn of its presence.” (Emphasis mine.)
. City of Seminole, supra note 13, 185 Okl. 359, 91 P.2d at 1094.
. Rider, supra note 12, 476 P.2d at 313; City of Guymonv. Eaton, 193 Okl. 73, 141 P.2d 555, 556 (1943).
. Hartshome, supra note 13, 287 P.2d at 699; Town of Okemah v. Lindsey, 198 Okl. 114, 176 P.2d 489, 49CM-91 (1947); Oklahoma City v. Marshall, 197 Okl. 302, 169 P.2d 1020, 1021 (1946); City of Tulsa v. Lewis, 189 Okl. 470, 117 P.2d 784, 786 (1941); Okmulgee, supra note 15, 185 Okl. 537, 94 P.2d at 929; City of Tulsa v. Frye, 165 Okl. 302, 25 P.2d 1080, 1082 (1933).
. The pertinent terms of 11 O.S. 1991 § 36-101 are;
"The title to streets, roads and public ways within the limits of a municipality which have been dedicated and accepted by the municipal governing body is held by the municipality in trust for public use and enjoyment.
A municipal governing body may, in the maimer provided by law:
⅜ 5¡C if! ⅜ * S¡{
3. Establish and change the grade of any street, avenue, lane, alley or other place;
4. Open, straighten, widen, extend or improve any street, avenue, lane, alley or other place by grading, paving, constructing, macadamizing, chatting or graveling, * * * ". (Emphasis added.)
. Bannister v. Farmers Alliance Mut. Ins. Co., Okl., 630 P.2d 1279, 1281 (1981); City of Tulsa v. Macura, 186 Okl. 674, 100 P.2d 269, 272 (1940); City of Ada v. Burrow, 171 Okl. 142, 42 P.2d 111, 112-113 (1935).
. For a discussion of a condition that presents a "deceptively innocent appearance”, see Harris, supra note 5, 408 P.2d at 531; Jack Healey Linen, supra note 6, 434 P.2d at 928.
. See, e.g., Harris, supra note 5; Jack Healey Linen, supra note 6.
. This category includes those cases where the plaintiff has expressly contracted with another not to sue for any future injuries which may be caused by another’s negligence. Thomas, supra note 7, 764 P.2d at 168.
. In this category are cases where the plaintiff has made no express agreement to release the defendant from future liability but is presumed to have consented to such release because he has voluntarily participated, in a particular activity or situation which involves inherent and well-known risks. Thomas, supra note 7, 764 P.2d at 168.
. In this category are those cases in which the plaintiff implicitly assumes the risk created by the plaintiff's negligence. Even though the defendant is found to be at fault, the plaintiff is barred from recovery on the ground that he knew of the unreasonable risk created by the defendant's conduct and voluntarily chose to encounter that risk. The plaintiff’s conduct in those cases has been viewed as functionally similar to contributory negligence. Thomas, supra note 7, 764 P.2d at 168.
. Thomas, supra note 7, 764 P.2d at 168; Pros-ser and Keeton on The Law of Torts at 480-481.
. Thomas, supra note 7, 764 P.2d at 168.
. The record makes it clear that the alley was not Byford’s only access to his father’s house. The city’s defense that he should have used an alternate route, which was alleged to have been safer, presents no more than an element of contributory negligence.
. The activities for which risk may be assumed are those which a person can avoid — i.e., skiing, skating or engaging in a pugilist event.
. For the elements of implied secondary assumption of risk, see supra note 25.
. Because the alley in this suit was an open public way, a city bore responsibility for its safe maintenance. Bannister, supra note 20, 630 P.2d at 1281; Rider, supra note 12, 476 P.2d at 313.
. 12 O.S. 1991 § 2008(C)(3).
The law was the same under the now-defunct Code of Civil Procedure. Assumption of risk is an affirmative defense which the defendant must plead unless the issue is raised by the plaintiff's evidence. S.H. Kress & Co. v. Maddox, 201 Okl. 190, 203 P.2d 706, 709 (1949).
. The city's answer brief states:
"Affirmative defenses pled by the Defendant are as follows:
3. Plaintiff assumed the risk of injury by attempting to traverse an unlighted alley known by him to be unlevel and dangerous;
4. Defendant had no duty to keep an alley in a safe condition, as an alley, where it has never been used by the public as an alley or highway.
5.The defect, if any, was open and obvious to the Plaintiff. Plaintiff was contributorily negligent by his failure to use care commensurate with the danger of which he had knowledge.” (Emphasis added.)
.Whenever a negligence claim rests on a breached obligation of care whose standard is variable rather than legally fixed because it shifts with the circumstances of each case, the parameters of defendant's duty are undefined by law and the presence or absence of care that is the plaintiff's due tenders an issue for juiy resolution. Wetsel v. Independent School Dist. I-1, Okl., 670 P.2d 986, 990-991 (1983).