I concur in the result only.
My colleagues are correct in holding the trial court erred in granting summary judgment in favor of defendant; however, I cannot accede to their rationale. They find, quite remarkably, that Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725 [46 P.2d 144], decided almost 50 years ago, is still a beacon of enlightened tort law. Supported only by secondary authority (Professors Schwartz and Fleming) they ignore or misapply our Supreme Court’s landmark holdings in Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496] and Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393], In clinging to the duty imposed in the “good old days,” they turn away from the basis and strength of our common law system.
“ ‘In California as in other jurisdictions of Anglo-American heritage, the common law “is not a codification of exact or inflexible rules for human conduct, for the redress of injuries, or for protection against wrongs, but is rather the embodiment of broad and comprehensive unwritten principles, inspired by natural reason and an innate sense of justice and adopted by *803common consent for the regulation and government of the affairs of men. . . . [t] The inherent capacity of the common law for growth and change is its most significant feature. Its development has been determined by the social needs of the community which it serves. It is constantly expanding and developing in keeping with advancing civilization and the new conditions and progress of society, and adapting itself to the gradual change of trade, commerce, arts, inventions, and the needs of the country.’” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 393-394 [115 Cal.Rptr. 765, 525 P.2d 669]; 15A Am.Jur.2d, Common Law, §§ 1, 3, pp. 594-596, 597-598.)
“ ‘This flexibility and capacity for growth and adaptatión is the peculiar boast and excellence of the common law.’ (Hurtado v. California (1884) 110 U.S. 516, 530 [28 L.Ed. 232, 237, 4 S.Ct. 111, 118].)
“ ‘But that vitality can flourish only so long as the courts remain alert to their obligation and opportunity to change the common law when reason and equity demand it: “The nature of the common law requires that each time a rule of law is applied, it be carefully scrutinized to make sure that the conditions and needs of the times have not so changed as to make further application of it the instrument of injustice. Whenever an old rule is found unsuited to present conditions or unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice.” (Fns. omitted.) (15[A] Am.Jur.2d, Common Law, [§ 3], p. [599].) Although the Legislature may of course speak to the subject, in the common law system the primary instruments of this evolution are the courts, adjudicating on a regular basis the rich variety of individual cases brought before them.’ (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 394.)” (Butcher v. Superior Court (1983) 139 Cal.App.3d 58, 62-63 [188 Cal.Rptr. 503].)
It appears clear to me the Quinn rationale has been abrogated by the holdings in Rowland v. Christian, supra, 69 Cal.2d 108, and Li v. Yellow Cab Co., supra, 13 Cal.3d 804. Rowland held the liability of a land occupier is to be determined in accordance with the policy behind Civil Code section 17141 “. . . that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property.” (Id., at p. 119.) The Rowland court concluded the applicable liability test for a possessor of land under Civil Code section 1714 “is whether in the management of his property he has acted as a reasonable *804man in view of the probability of injury to others” independently of considerations regarding the status of the plaintiff as a trespasser, licensee or invitee. (Ibid.) Rowland thus marked a significant departure from prior adherence to rigid common law classifications which blindly conditioned a given plaintiff’s right to recovery.
As stated in Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20 [77 Cal.Rptr. 914], the Rowland decision effectively “transmuted” the liability issue from a matter of law to a question of fact for the jury: “. . . namely, whether a possessor of land even in respect to the obvious risk has acted reasonably in respect to the probability of injury to an invitee; and whether or not the invitee used the property reasonably in full knowledge of any obvious risk entering into a subsequent injurious incident. [Citations.]” (Id., at p. 33.)
“Defendant’s standard of care under Civil Code section 1714, the foreseeability of harm, and the reasonableness of defendant’s conduct are questions for the trier of fact.” (Slater v. Alpha Beta Acme Markets, Inc. (1975) 44 Cal.App.3d 274, 278 [118 Cal.Rptr. 561, 72 A.L.R.3d 1264].) The function of the trial court in passing on a summary judgment motion is not to determine an issue of fact (i.e., reasonableness), but to determine whether an issue of fact does, in fact, exist. (Church v. Arko (1977) 75 Cal.App.3d 291, 295 [142 Cal.Rptr. 92].)
Li v. Yellow Cab Co., supra, 13 Cal.3d 804, held the doctrine of contributory negligence is superseded by a system of comparative negligence which assesses liability in direct proportion to fault. In so holding, the defense of assumption of the risk was abolished to the extent it is merely a variant of the contributory negligence doctrine. (Id., at p. 829.) Thus, under Li, unlike Quinn, neither contributory negligence nor assumption of the risk will absolutely bar Rudnick from recovery.
The tightly defined duty of the Quinn court and its defense of assumption of risk have given way to the modern era. Just as night baseball, relief pitchers, the live ball and designated hitters have totally changed the face of baseball since 1935, Li and Rowland, and their progeny, have changed, reshaped and modernized tort duty and available defenses. While I agree the “grand old game” has been treated in “a sui generis manner,”2 there *805is absolutely no support to suggest it is above the law and insulated from the duty and liabilities imposed on others.
Say it isn’t so, Joe!
Civil Code section 1714 provides in part as follows: “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. ...”
Majority opinion, ante, page 797.