dissenting:
By this Opinion, the majority demonstrate once again their inability to appreciate that, where a jury trial has been demanded, the jury, and not the District Court nor this Court, should determine whether the landowner acted reasonably to avoid physical harm to persons foreseeably coming upon the premises.
There can be no quarrel with the majority that the facts as developed so far are undisputed. The quarrel lies in the assumption by the majority that on the undisputed facts, no duty of care arose from the landowner to Rhonda. The District Court likewise relied on Luebeck v. Safeway Stores, Inc. (1968), 152 Mont. 88, 446 P.2d 921, and Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 637 P.2d 509, to reach that assumption. The majority have ignored the issue of law raised by the plaintiffs in this case without discussing the movement of this Court away from the decisions in Luebeck and Cereck.
In fact, the majority have ignored a portion of the Cereck decision that should have raised a flag here as to the duty of the property owner:
“A property owner may be held liable for falls on accumulations of ice and snow where the hazard created by the natural accumulation is increased or a new hazard is created by an affirmative act of the property owner; even where such a condition is actually known or obvious, a property owner may be held liable if he should have anticipated that injuries would result from the dangerous condition.’’ (Emphasis added.)
637 P.2d at 511.
Justice Morrison, in Cereck, concurring specially, stated:
“The majority opinion confines property owner liability for natural accumulation of ice and snow to those situations where the property owner has increased or changed the hazard through some affirmative act. I would adopt § 343A.(1) Restatement (Second) of Torts (1965) which provides as follows:
“ ‘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.’
“Admittedly, the Restatement rule is applicable to invitees. How*332ever, though I would not recognize status in ‘land possessor’s liability,’ I feel the rule to be applicable to facts such as those at bar.”
637 P.2d at 512.
The concurring opinion of Justice Morrison further stated:
“In my opinion, the restrictive ratio decidendi of this case is inadequate to meet situations such as failure to plow. If the parking lot in question had not been maintained in any fashion, and snow were allowed to accumulate so that customers were required to wade through knee deep snow, no duty would be owed by the possessor under the rule adopted by the majority. Those who do nothing incur no liability. Those who plow their parking lots are exposed.
“I believe such a restrictive duty does not adequately recognize the responsibilities owed by the business community, does not adequately protect a public dependent upon the services provided by that community, and does not promote sound public policy.
“For the foregoing reasons, I concur in the result, but would adopt different legal principles to sustain the same outcome.”
637 P.2d at 512.
In Kronen v. Richter (1984), 211 Mont. 208, 683 P.2d 1315, this Court adopted § 343A(1) Restatement (Second) of Torts (1965) saying:
“In the case at bar, the relationship between appellant and respondent was one of invitor-invitee. The duty owed to a business invitee is to exercise ordinary care to have the premises reasonably safe and to warn the invitee of any hidden or lurking dangers. (Citing cases.) Section 343A(1) Restatement (Second) of Torts (1965) provides:
“ ‘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.’ ”
683 P.2d 1317.
In Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d 1341, this Court reversed a summary judgment in favor of the Town of Whitehall where the plaintiff stumbled over a public sidewalk where the concrete was raised and the raised portion was obvious. Writing for the majority, Justice Harrison stated:
“We agree with the District Court that § 343A(1) is applicable to the facts of this case, but we find the lower court disregarded some critical language found in the provision. The last part of the provision states:
*333“ . . unless the possessor should anticipate the harm despite such knowledge or obviousness.’
“Justice Morrison in his specially concurring opinion in Kronen succinctly explained the effect of this last part of § 343A(1):
“ ‘[A] duty may be owed though the condition is open and obvious if the landowner has reason to believe that despite the open and obvious nature of the condition, that injuries will nevertheless result.’ ”
Kronen, 683 P.2d at 1318.
“We find that although the condition of the sidewalk was known and obvious to Kaiser, a question of fact still remains as to whether or not the Town of Whitehall should have anticipated that someone (i.e. Kaiser) would be injured as a result of the defective condition of the sidewalk. The record shows the cracked and broken condition of the sidewalk had persisted for some time and that it was indeed a hazard to passing pedestrians. At the very least, a jury question is raised as to whether the Town of Whitehall should have anticipated the harm resulting from the sidewalk’s condition. Therefore, summary judgment is not appropriate.”
718 P.2d at 1343-44.
Under the undisputed facts of the case now before us, the landowner neither plowed nor sanded the icy parking lot for at least 12 days, and made no inspection of the premises to ascertain any danger to the patrons on the parking lot. Is it not a jury question that he should have anticipated the harm that occurred to Rhonda? Did the landowner in the circumstances manage his properties in the exercise of ordinary care?
Rhonda, coming upon the premises to attend a mid-morning meeting in the business premises of the defendant, was an invitee. Section 343A of Restatement (Second) of Torts concerns itself with the duty of landowners owed to invitees. That status, however, is not important after our holding in Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491. In Limberhand, we stated:
“. . . In Corrigan v. Janney (Mont. 1981), [192 Mont. 99,] 626 P.2d 838, 841, in construing § 27-1-701, MCA, ... we held that the statute prevented us from distinguishing between social guests and invitees in determining the liability of the landowner for injuries received. We regard the same statute as declaring the applicable law as to the duty of landowners to persons though they may be trespassers. The test is always not the status of the injured party but *334the exercise of ordinary care in the circumstances by the landowner. The statute provides:
“ ‘Everyone is responsible not only for the result of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.’
“Section 27-1-701, MCA.
“Although in a later case, Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 412, 637 P.2d 509, 511, we stated that the duty imposed on the property owner depends on the status of the injured party, that statement is not correct in the light of § 27-1-701, MCA, above quoted.”
706 P.2d at 496.
In Kaiser v. Town of Whitehall, above, we affirmed that the categories of invitee, licensee and trespasser are not to be regarded, and that the test is always not the status of the injured party, but the exercise of ordinary care in the circumstances by the landowner. 718 P.2d at 1343.
Because we have moved away from the categories of invitee, licensee, and trespasser, this Court should apply § 343A(1) of Restatement (Second) of Torts to the rights of any person foreseeably upon the land who is injured.
The majority opinion contains no reference to the cases subsequent to Luebeck and Cereck, and understandably so, because otherwise the majority would have to reach a different result. The majority opinion contains no reference to § 343A of Restatement (Second) of Torts, though this dissent has been before the majority since November 2, 1989. The conflict between this holding and the cases of Limberhand, Kaiser, and Kronen is not discussed or explained. The majority opinion is a pursuit of head-in-sand methodology.
In a slip and fall case, this Court should not itself slip and fall but occasionally we do. I would reverse this case and remand it for a determination by a jury as to whether under the undisputed facts a duty of care rested on the landowner to act reasonably so as to prevent physical harm to Rhonda.
JUSTICE HUNT concurs in the foregoing dissent.