(dissenting).
I respectfully dissent. I would affirm the judgment of the trial court.
I agree with the statement in the majority opinion that “no duty” is a “clumsy concept,” but it is a part of the law of this state until our Supreme Court says otherwise.
Following a careful study of the article by Associate Justice Joe Greenhill, Assumption of Risk, 28 Tex.B.J. 21 (1965), the Halepeska, supra, and Hudson Oil, supra, and related opinions, I have come to a different conclusion than the one reached in the majority opinion.
I am convinced plaintiff’s cause of action in this case is basically one of plaintiff-invitee against defendant-occupier for failure to furnish plaintiff a reasonably safe place to work. This is true even though plaintiff, after pleading the relationship between the parties, alleged an attempt on the part of defendant to remedy the dangerous condition and the negligent failure to do so. This did not alter plaintiff’s basic cause of action, but merely added an additional element.
I think a simple explanation would be as follows:
1’. Defendant had a duty to furnish plaintiff a reasonably safe place to work.
2. The condition of the algae rendered this an unsafe place to work.
3. Defendant could escape liability by either (a) warning plaintiff of the danger or (b) attempting to remedy the condition without negligence.
4. Defendant’s negligently failing to remedy the condition, after attempting to do so, was still a breach of defendant’s duty to furnish plaintiff a reasonably safe place to work.
5. The doctrine of “no duty” was still applicable, and plaintiff still had the burden of pleading and proving the existence of a duty and a breach of that duty.
6. Plaintiffs still had the burden of securing a negative finding as to “open and obvious” which he failed to do.
I do not agree with the statement in the majority opinion that this facet of the case is controlled by Hudson Oil, supra. I do not construe Hudson Oil, supra, as holding that the defense of “open and obvious” was not available to a defendant in the position of the defendant in our case. As our Supreme Court has said so many times, a plaintiff may not close his eyes to obvious dangers. I do not construe any case in this state as holding that merely because the defendant-occupier has undertaken to remedy a dangerous condition that a plaintiff may blindly walk into an open and obvious condition and then recover for his injuries. I do not believe the law of this state will place a plaintiff in a more favorable position because a defendant has undertaken to remedy a dangerous condition, than one who merely warns a plaintiff of such condition, and does nothing more. In this case, the facts clearly show this plaintiff knew the facts constituting the danger (after the attempt was made by defendant to clean the algae) and, therefore, was charged with the appreciation of the danger. The finding by the jury that the condition was open and obvious, after such attempt at cleaning, was supported by the evidence. In the words of Justice Greenhill applied in this case, any fool could plainly see the condition was still dangerous.
The majority cites a case, Texaco, Inc. v. Forester, in which I wrote the opinion. I attempted in that case to make it clear, under the rationale of the article by Justice Greenhill in the bar journal referred to above, that the Forester Case was one involving active negligence, as distinguished *77from a “condition” as it exists in the case before us. I stated in that opinion that Forester’s cause of action against Evangeline (the defendant-occupier) was one of failure to furnish a safe place to work, but that the cause of action against Texaco was one of negligence. The active negligence in the Forester Case, supra, was the kicking of a rotary bushing through a hole in the drilling platform by one of Texaco’s employees. In the present case, the plaintiff’s injuries resulted from a “condition,” the algae on the concrete, and Halepeska (no duty and open and obvious) still controls.