concurring and dissenting in part:
I concur with the Court’s opinion that Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321 (1989), is now the law of this state, even though I also believe it was wrongly decided as appropriately pointed out in the dissent in that case. However, stability in the law requires that the precedents of this Court not vacillate merely because there is a change in the composition of the Court when a particular decision is rendered. Accordingly, I accept Harrison v. Taylor as the law of this state. However, I disagree with the Court’s opinion today that Harrison v. Taylor should be applied retroactively. Other than that, I agree with the majority opinion as written.
Any determination of whether Harrison v. Taylor should be applied retroactively should start with an analysis of the Court’s opinion in Harrison. In Harrison, this Court reviewed the longstanding open and obvious danger doctrine and held that:
The open and obvious danger doctrine, born in the era ... of contributory negligence, has been abolished legislatively through the adoption of I.C. § 6-801.
115 Idaho at 593, 768 P.2d at 1326.
In arriving at this conclusion, the Harrison Court reasoned, in essence, that I.C. § 6-801 (the Idaho comparative negligence statute) and the rationale underlying that statute, i.e., abolition of the common law doctrine of contributory negligence, applied with equal force to the open and obvious danger doctrine. According to the majority in Harrison, this holding was in turn supported by our decision in Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369 (1985), wherein we held that the comparative negligence statute also abolished the defense of implied assumption of risk. I find this rationale defective in that (1) the comparative negligence statute, by its very terms, does not in any manner deal with the open and obvious danger doctrine; and (2) that our holding in Salinas does not lend support to the decision in Harrison.
I.C. § 6-801 does not deal with the open and obvious danger doctrine. That doctrine is predicated on the longstanding legal premise that there is no duty owed by a landowner to an invitee in situations where the dangerous condition or activity is known, or is open and obvious to the invitee. Bates v. Eastern Idaho Regional Medical Center, 114 Idaho 252, 755 P.2d 1290 (1988); Tommerup v. Albertson’s, Inc., 101 Idaho 1, 607 P.2d 1055 (1980); Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965). This principle had been reaffirmed in a number of cases, most recently in the Bates v. Eastern Idaho Regional Medical Center case, decided only eight months be*700fore the Harrison decision. We stated in Bates that:
Hence, we conclude that a majority of this Court continues to adhere to the orthodox view ... that “[t]he duty to keep the premises safe for an invitee only requires the exercise of ordinary care, and does not extend to dangerous conditions which are known to the invitee, or which are or by the exercise of ordinary care should have been observed by the invitee.”
114 Idaho at 254, 755 P.2d at 1292.
The first element of a cause of action based upon negligence is a duty, recognized by law, requiring the defendant to conform his conduct to a certain standard of care. Without a duty, there is no negligence. Northcutt v. Sun Valley Co., 787 P.2d 1159 (1990); Brizendine v. Nampa-Meridian Irr. Dist., 97 Idaho 580, 548 P.2d 80 (1976). The effect of the open and obvious danger doctrine was that a landowner had no duty to alter his premises and was not guilty of any negligence if an invitee was injured by. a dangerous condition which was known or which was obvious to the invitee. Tommerup v. Albertson’s, Inc., 101 Idaho 1, 607 P.2d 1055 (1980).
The comparative negligence statute did not create negligence where it had not existed before. The statute did not create any duties which could be the basis for a negligence claim. Rather, the comparative negligence statute changed the prior law of contributory negligence which held that any amount of negligence on the part of a plaintiff would preclude the plaintiff from recovery. Under the comparative negligence statute, a plaintiffs contributory negligence would no longer defeat the plaintiffs claim if the plaintiff is less negligent than the defendant against whom the claim is made. The comparative negligence statute does not even come into play, and require a comparison of negligence, unless negligence on the part of both the defendant and the plaintiff has been established. As we stated in Rehwalt v. American Falls Reservoir Dist. No. 2, 97 Idaho 634, 550 P.2d 137 (1976):
If, upon retrial, appellant [defendant] is found to have breached its duty, then, and only then, the issue of respondent’s [plaintiff's] contributory negligence must be determined. Such determination must be made in light of well settled law that the plaintiff-respondent must exercise the care of a reasonable and prudent man for his own protection and only if his failure to do so was a contributing cause to his injuries must an inquiry be made as to the proportion of negligence of both parties.
97 Idaho at 637, 550 P.2d at 140.
Under the open and obvious danger doctrine, if the dangerous condition is open and obvious, the landowner has no duty to either alter or warn of the dangerous condition; and, having no duty, there can be no negligence; if there is no negligence on behalf of the landowner, there is nothing to compare to the plaintiff’s negligence, and therefore, as the Court stated in Rehwalt v. American Falls Reservoir Dist. No. 2, the comparative negligence statute does not come into operation. The mere fact that the legislature saw fit to abolish the doctrine of contributory negligence, which previously precluded a plaintiff from recovery if he was negligent at all, simply has no bearing on the open and obvious danger doctrine which operates to relieve a defendant from any duty to take remedial measures to alter or warn of a condition on his premises which is open and obvious. If the danger is known or obvious, a person entering the premises can choose to proceed, or not to proceed, in the face of the danger. However, the landowner is not negligent if the invitee chooses to proceed in the face of the dangerous condition. Bates v. Eastern Idaho Regional Medical Center, 114 Idaho 252, 755 P.2d 1290 (1988). In most cases the question of whether the danger is known, or open and obvious, is a question of fact for the jury.
I.C. § 6-801 does not, by its terms, or by any plausible implication, either impose duties on landowners or create negligence where none existed before. All the statute *701does is require a comparison of negligence between the plaintiff and the defendant— once such negligence has been established — and an apportionment of liability based upon their respective degree of fault.
The Harrison Court, in order to support its conclusion, also incorrectly relied on Salinas v. Vierstra. Salinas simply does not support the abrogation of the open and obvious danger doctrine. Regarding Salinas, the majority in Harrison stated that:
In Salinas v. Vierstra, ... we concluded that application of the implied assumption of risk doctrine is untenable in the era of comparative negligence established by I.C. § 6-801.
115 Idaho at 591, 768 P.2d at 1323. The Harrison Court therefore went on to conclude that:
We believe there are no significant differences between the implied assumption of risk and the open and obvious danger defenses.
Id.
The foregoing statement fails to recognize that assumption of the risk, like contributory negligence, focuses on the conduct of a plaintiff, while the open and obvious danger doctrine focuses on the premises of a defendant and relieves that owner or occupier of the premises of any duty to alter or warn of the dangerous conditions on the premises if they are known to or open and obvious to invitees. Only if the danger is not known or open and obvious does a duty arise, which may be a duty to warn, a duty to cordon off the dangerous condition, or perhaps, under certain circumstances, a duty to alter or repair. While the end “effect” of the assumption of the risk defense, and the open and obvious danger doctrine, was to deny the plaintiffs recovery, that does not mean that they are the same thing, as the Court in Harrison assumed in holding that the legislature by enacting the comparative negligence statute intended to abolish the open and obvious danger doctrine. The comparative negligence statute imposed no duties on defendants, created no negligence, and simply had no impact or bearing on the open and obvious danger doctrine. The Court in Salinas recognized this when it stated:
The result of unreasonably assuming a risk is also to preclude plaintiff from recovery. The reason for this is that an unreasonable assumption of risk is but a form of contributory negligence.
107 Idaho at 988, 695 P.2d at 373. The holding in Salinas is a logical outgrowth of the recognition that implied assumption of risk is but a form of the contributory negligence defense. As a form of contributory negligence, it was subject to the comparative negligence statute. Hence, our holding in Salinas. However, the open and obvious danger doctrine was formulated based upon the practical balancing of rights between a landowner and his invitees, holding that where a condition or activity is so open and obvious that a reasonable person should have realized and appreciated the risk, a landowner has no duty to alter that condition. Bates v. Eastern Idaho Regional Medical Center, 114 Idaho 252, 755 P.2d 1290 (1988).
As was succinctly stated by the Supreme Court of Wyoming in Sherman v. Platt County, 642 P.2d 787 (Wyo.1982):
Comparative negligence only abrogated absolute defenses involving the plaintiffs own negligence in bringing about his or her injuries____ However, it did not impose any new duties of care on prospective defendants. Since the law of this state [Wyoming] is to the effect that there is no duty to remove or warn of an obvious danger or one that is known to the plaintiff, no change was accomplished in that law by the adoption of comparative negligence.
642 P.2d at 790.
In his dissenting opinion to Harrison v. Taylor, Justice Johnson stated that:
Today, this Court announces the demise of a rule of law that was reaffirmed by a majority of this Court as recently as May of last year. This decision causes me to wonder how much confidence the bench and bar of this state will continue to *702have in the legal principles recently announced or reaffirmed by this Court.
115 Idaho at 598, 768 P.2d at 1331. I share Justice Johnson's concern about the adverse impact the Harrison decision had on the confidence of the bench and bar relative to our jurisprudence. As Justice Cardozo stated, “Adherence to precedent should be the rule, and not the exception.” 1 The need for stability and continuity in the law is not a cliche’ to be uttered by courts in passing. It is a fundamental tenet of our jurisprudence. The Harrison majority professed to acknowledge that tenet, but concluded in the final analysis that the need to adapt to the changing needs of society outweighs the respect customarily accorded precedence. The Harrison Court stated:
We recognize the role stare decisis plays in the judicial process. But we are not hesitant to reverse ourselves when a doctrine, a defense, or a holding in a case, has proven over time to be unjust or unwise.
115 Idaho at 595, 768 P.2d at 1328. Curiously, the Harrison Court’s decision was not based on that Court’s determination that the open and obvious danger doctrine was unjust, unwise or archaic. The doctrine had been reaffirmed only eight months previously in Bates v. Eastern Idaho Regional Medical Center, supra. Rather, the decision in Harrison was based on the rationale that the legislature, in enacting the comparative negligence statute, had abolished that doctrine. However, the adoption of the comparative negligence statute “did not create impose any new duties on care on prospective defendants.” Sherman v. Platt County, supra. It merely permitted a plaintiff to recover, even though negligent, if the plaintiff’s negligence was less than that of the defendant. Accordingly, I believe Harrison v. Taylor misapplied the comparative negligence statute. Nevertheless, I acquiesce in and follow the Harrison holding because I believe stability in the law would be jeopardized by the ping-pong effect of overruling Harrison v. Taylor and reinstating this Court’s decisions in Bates v. Eastern Idaho Regional Medical Center, supra; Tommerup v. Albertson’s, Inc., supra; Otts v. Brough, supra, and other prior cases.
That conclusion does not require, however, that the Harrison decision be applied retroactively. The Court today concludes that Harrison v. Taylor should be applied retroactively. That decision rests on the proposition that, “Although the Court’s opinion in Harrison did not address the question of its application to other cases, in a decision a few months later we applied Harrison retroactively. Arrington v. Arrington Bros. Construction, 116 Idaho 887, 781 P.2d 224 (1989). Therefore we are bound to apply it retroactively in this case also.” Ante at 697, 791 P.2d at 1276 The majority further states, “In Arrington we did not state our rationale for applying Harrison retroactively. However, the rationale is implicit in our decision.” Ante at 697, 791 P.2d at 1276. The majority goes on to render explicit that which was purportedly “implicit” in Arrington, by analyzing and applying the retroactivity test set forth in Jones v. Watson, 98 Idaho 606, 570 P.2d 284 (1977).
The majority states that, “In determining whether a decision ... should be applied retroactively or prospectively, ... we evaluate ‘(1) the purpose of the decisión, (2) reliance on the prior rule of law, and (3) the effect upon administration of justice.’ ” Ante at 697, 791 P.2d at 1276. In evaluating whether there has been reliance on a prior rule of law, and in determining the what effect a change would have upon the administration of justice, we should first look to the decision of the Harrison Court itself, which states:
Accordingly, we join the numerous state and federal courts noted above and hereby retire the open and obvious danger doctrine. Henceforward, owners and occupiers of land will be under a duty of ordinary care under the circumstances toward invitees who come upon their premises.
*703115 Idaho at 595, 768 P.2d at 1328 (emphasis added). The Harrison Court’s opinion itself states, “Henceforward, owners and occupiers of land will be under a duty .. which suggests that the Court in Harrison recognized that it was reversing a long line of prior decisions of this Court, and the decision should only be applied “henceforward.” Furthermore, the Court in Harrison, after making that statement, cited and relied upon our case of Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), which had abolished the longstanding rule of sovereign immunity in the courts in the State of Idaho. The Court in Smith did not apply its opinion retroactively, but expressly made it prospective to “all future causes of action arising on or after 60 days subsequent to the adjournment of the First Regular Session of the Forty First Idaho State Legislature____” 93 Idaho at 808, 473 P.2d at 950. Just last year, this Court again recognized that decisions which are a departure from longstanding prior law will only be applied prospectively. In Metcalf v. Intermountain Gas Co., 116 Idaho 622, 778 P.2d 744 (1989), we stated, “We recognize that our decision today is a departure from prior law. Accordingly, it will only be applied prospectively to breaches or violations of the covenant occurring after the effective date of this opinion, and to claims in this case,” citing Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), which the Court in Harrison relied upon. 116 Idaho at 638, 778 P.2d at 750. Prior to Harrison, no one — not even the membership of this Court — had any suspicion that I.C. § 6-801 had any bearing upon the open and obvious danger doctrine. The issue had never been raised in any of the numerous cases decided by this Court which had reaffirmed the open and obvious danger doctrine, including our opinion in Bates v. Eastern Idaho Regional Medical Center, supra, which occurred only months prior to the Harrison decision.2 Accordingly, I believe that the Court today errs when it concludes that “there could have been no [justifiable] reliance on the doctrine in the face of a challenge under I.C. § 6-801.” Ante at 698, 791 P.2d at 1277. Merely because the Court in Harrison found an application for I.C. § 6-801 which no one had ever found' before and which, in my opinion, is totally unwarranted, does not mean that there has not been a justifiable reliance by the bar and the trial courts of this state on the open and obvious danger doctrine. Nor does the Court’s opinion today consider “the effect upon the administration of justice” which may result from applying the Harrison decision retroactively to causes of action which accrued both before and after our decision in Bates v. Eastern Idaho Regional Medical Center, which upheld the open and obvious danger doctrine. As a result of our decision in Bates, numerous actions may have been filed, cases will have been settled, or will have gone to trial based upon this Court’s decision in Bates, and settlements will have occurred assuming that the longstanding rule of law announced in Bates would not be immediately swept aside. Legitimate decisions as to whether or not to alter or repair premises, or to give warnings, or cordon off areas where construction or other dangers were present may have been made based upon our reaffirmance of the open and obvious danger doctrine in Bates. Decisions may have been made whether or not to insure risks which otherwise would have been made differently had parties known that our decision in Bates would be immediately overruled. Those were all reasons given by this Court in Smith v. State, supra, for making a similar reversal of a longstanding rule of law prospective only. Based upon those same reasons, I believe that a prospective application of Harrison is mandated by our recent decisions in Metcalf v. Intermountain Gas Co., supra; and Smith v. State, supra.
Our decision in Arrington v. Arrington Bros. Construction, 116 Idaho 887, 781
*704P.2d 224 (1989), does not require a contrary result. As the Court’s opinion today acknowledges, the Court in Arrington, while citing the Harrison decision, did not address the question of the retroactive application of Harrison. The Court in the Arrington case had reversed a summary judgment granted by the trial court based upon the Arrington Court’s conclusion that an employer’s violation of OSHA regulations was negligence per se, not only as to the employer’s own employees, but to independent contractors employed at the work site. The Court reversed the summary judgment, ordering a trial and noting in the penultimate paragraph of its opinion that,
The trial court made this ruling [applying the open and obvious danger doctrine] without the benefit of our recent opinion in Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321 (1989). In Harrison this Court retired the open and obvious danger doctrine, overruling prior cases to the extent that they conflicted with Harrison, and adopted the principle that “[h]enceforward, owners and occupiers of land will be under a duty of ordinary care under the circumstances toward invitees that come upon their premises.”
116 Idaho at 891, 781 P.2d at 228.
Today is the first time that this Court has specifically had raised before it the issue of whether or not Harrison v. Taylor should be retroactively applied. In my opinion, Harrison v. Taylor, being a departure from a long line of prior case law, should only be applied prospectively. Metcalf v. Intermountain Gas Co., supra; Smith v. State, supra. Regardless of whether or not I.C. § 6-801 has application to the open and obvious danger doctrine, the reliance on the prior rule of law by the bar, the trial courts, and even this Court as recently as Bates v. Eastern Idaho Regional Medical Center, together with the adverse effect that a retroactive application of Harrison will have upon all of those parties who justifiably placed reliance upon our decision in Bates v. Eastern Idaho Regional Medical Center, in making decisions as to the property and insurance, in actions filed, and cases settled, makes me conclude that the same principles behind stare decisis require that Harrison v. Taylor only have prospective application.
. Cardozo, The Nature of the Judicial Process, 149-151 (1921).
. Ironically, the appellant in Harrison v. Taylor did not raise the issue of the application of I.C. § 6-801 to the open and obvious danger doctrine in its briefs on appeal. The issue was apparently raised sua sponte by the Court.