dissenting.
In Corbin Motor Lodge v. Combs,1 I wrote a dissenting opinion expressing the view that public establishments that remain open for business during inclement weather and thereby encourage customers to come on their premises have a duty to exercise the proper degree of care for the safety of persons who foreseeably might be injured by their acts or omissions. This Court’s decisions have utilized various theories including a lack of legal duty with regard to natural outdoor hazards to defeat claims for compensation by persons injured on parking lots and sidewalks of business establishments. This theory fails to take account of the higher duty of care owed by a business owner to invitees on premises to conduct business and who thereby bestow an economic benefit on the owner.
The obviousness of a hazard caused by bad weather does not make it the less dangerous, nor should it relieve a business owner who profits from an invitee’s patronage of the duty to make the business premises safe. The economic incentives to attract the general public to a business make it reasonable for the proprietors of commercial establishments to be held to a higher duty to invitees. Thus, the better rule is that of the Restatement, Torts 2d, § 343, which imposes premises liability upon a business owner despite an obvious danger if the owner should realize that there is an unreasonable risk of harm and that invitees will fail to protect themselves against such harm.
This case presents just such a situation. PNC Bank was open during bad weather and anticipated the arrival of customers. To melt the snow and ice, a bank employee spread a melting agent on the sidewalk periodically throughout the day, thereby demonstrating an awareness that customers would come to the bank to transact business despite the inclement weather. Thus, although the slippery conditions may have been obvious, it is clear that the bank knew that customers would walk on the sidewalk regardless of the possibility that they might fall and injure themselves. Thus, Ms. Green should be able to proceed with this lawsuit and a jury should decide the comparative fault of the parties. The economic benefit the bank derives from remaining open during inclement weather justifies possible imposition of liability under these circumstances. Moreover, it should not be overlooked that as between the bank and Mrs. Green, only the bank was in a position to remove snow and ice by the use of melting agents. Only the bank had any realistic opportunity to prevent the harm while remaining open for business and realizing its economic benefit.
This conclusion is supported by Wallingford v. Kroger Co.,2 another case dealing with a slip and fall resulting from an obviously slippery surface. In Wallingford, a delivery man slipped and fell on a delivery ramp covered with snow and ice after he had been denied entry into the store through a less hazardous entrance. The court applied the exception to the general *189rule governing natural and obvious outdoor hazards, stating
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 ...
Such reason to expect harm to the visitor from known or obvious dangers may arise ... where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk.3
Accordingly, the obviousness of the slippery sidewalk that Ms. Green fell on should not absolve the bank from potential liability, as the bank should have and in fact did realize that customers would enter the bank despite the dangerous conditions.
We should endeavor to go beyond the worn-out, rigid theories relied upon by the majority and forthrightly say that when business establishments remain open for business during inclement weather, they have a duty to exercise the degree of care required for business invitees regardless of whether the natural hazard is obvious. Thus, I respectfully dissent.
STUMBO, J., joins this dissenting opinion.
. Ky., 740 S.W.2d 944, 947-948 (1987)(Lambert, J., dissenting).
. Ky.App., 761 S.W.2d 621 (1988).
. Id. at 624-625, quoting the Restatement (Second) of Torts § 343(A) cmt. f (1965).