concurring.
Because I believe the law of Missouri has substantially changed as it pertains to “the open and obvious” exception to premises liability I concur with the result reached by Judge Pudlowski.
The rule originally followed in Missouri is that set forth in Harbourn v. Katz Drug Company, 318 S.W.2d 226 (Mo.1958)[1-3]:
A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm ...
This was taken from Restatement, Law of Torts, § 343. It basically imposed upon the possessor of land the requirement that he either make the land reasonably safe or warn the visitor of the dangerous condition. Because the duty of the landowner was met by warning of the danger, it followed that if the condition was open and obvious or was in fact known to the visitor there was no duty of the possessor to warn of the danger. The determination of duty or standard of care is a question of law for the court. Strickland v. Taco Bell Corporation, 849 S.W.2d 127 (Mo.App.1993)[3-7].
In Cox v. J.C.Penney Company, 741 S.W.2d 28 (Mo.banc 1987)[1,2] the court stated that “An open and obvious danger dispenses with the duty to warn, Harboum, unless the occupier should anticipate harm despite constructive knowledge on the part of the invitee”. That statement was based on Restatement of Torts, Second, § 343A The Restatement referred to in Harboum was the original Restatement. In 1963 and 1964, between the decision in Harboum and the decision in Cox, Restatement Second was adopted and promulgated and therein § 343 was changed and § 343A was added. The Cox court utilized Restatement, Second, §§ 343 and 343A, apparently adopting them as the law of Missouri. Section 343 of Restatement, Second eliminates clause (ii) of the original Restatement which obviated liability if a warning was given. The court in Cox also held that under principles of comparative fault, first adopted in Missouri in Gustafson v. Benda, 661 S.W.2d 11 (Mo.banc 1983)[3], it is left to juries to assess the relative fault of the parties in tort actions. Gustafson was held to modify the common law relationship between business invitors and their invitees.
Section 343A states:
A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land *662whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. (Emphasis supplied)
Comment f. to § 343A fleshes out the meaning of the above quoted section by stating that there are cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding a known or obvious danger. The reason to expect harm 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”. Id.
The thrust of § 343A is to remove the issue of an “open and obvious” condition from consideration in determining the existence of a duty (the standard of care). It is now to be considered in determining breach of duty (negligence) and comparative fault or assumption of risk of the invitee. The comment establishes that § 343A creates a “reasonable man” standard as to the actions of the invitee confronted by an obvious or known dangerous condition. A “reasonable man” standard is almost by definition a factual determination for resolution by the jury. The duty of the possessor of land has, by Restatement, Second, been transformed from one of making the premises safe or warning of the danger to one of exercising reasonable care to make the premises safe. With the elimination of warning as a means to avoid liability, the open and obvious exception to the creation of duty is also eliminated.
Cox and Harris v. Niehaus, 857 S.W.2d 222 (Mo.banc 1993) have both apparently adopted Restatement, Second §§ 343 and 343A.
In Harris v. Niehaus, the court invoked the open and obvious exception to preclude liability by the possessor of real estate. However, the court noted that “where the danger is open and obvious as a matter of law and the risk of harm exists only if the plaintiff fails to exercise due care, the case is not submissible to the jury”. [17] (Emphasis supplied). Harris does not insulate possessors from liability when a condition is open and obvious and a plaintiff fails to exercise reasonable care. Instead, Hams creates a narrow exception of a possessor’s duty, insulating possessors when the risk of harm from the open and obvious condition exists solely due to plaintiffs failure to exercise due care. Unlike the facts in Harris, here the condition was open and obvious but the risk of harm existed whether or not the plaintiff exercised due care.
In view of what I now perceive the law of Missouri to be, there is a question of fact for the jury to resolve, i.e., whether defendant should have anticipated the harm from the dangerous condition despite plaintiffs knowledge and the obyiousness of the condition. I therefore concur in the result reached by Judge Pudlowski.