dissenting.
I dissent. The majority, both in recital and application, ignores a vital part of the summary judgment review standard. First, the majority neglected to recite that part of the standard which requires the reversal of a summary judgment where more than one inference can be drawn from the facts. Hale v. Peabody Coal Co. (1976), 168 Ind.App. 336, 339, 343 N.E.2d 316, 320. Second, the majority improperly considered the facts most favorable to Yukon, the moving party. Poxon v. General Motors Acceptance Corp. (1980), Ind.App., 407 N.E.2d 1181, 1184. Third, the majority unnecessarily authorized the extension of the products liability open and obvious danger test to common law negligence.
The majority opinion claims to have relied upon Law's deposition to find that Law knew that the plant floor was wet and that it was slippery. It concluded that such knowledge implies a clear appreciation of the danger involved. Had the majority followed the review standard and recited the facts most favorable to Law, it would have been apparent that different inferences may be drawn.
The facts most favorable to Law are as follows: Although Law had been to Yukon's plant many times and was familiar with the layout, the work area through which he had to pass was unusually crowded with boats and work benches. This description could easily give rise to the inference that the work area resembled a labyrinth through which Law found it nee-essary to walk. Even though Law stated that the lighting was sufficient, the twisting path obscured his view to the extent that he was surprised to find himself standing in water.
The majority concludes that Law's admission that he knew that the floor was slippery warrants summary judgment in Yukon's favor. However, a careful examination of the testimony does not mandate a finding that Law appreciated the peril involved in crossing a wet floor:
"Q. Now, as I understand it, as soon as you got into the building, you indicated that you were aware there was water and puddles and stuff on the floor?
*681"A. Yes.
"Q. And you were, of course, aware from being there that the floor was kind of a smooth, concrete type floor; is that true?
"A. I guess that would be true.
"Q. I guess you indicated you knew the floor was slippery shortly after you entered the building?
"A. Well, I knew the floor was wet, and I realized that it probably was slippery.
"Q. Well, couldn't you tell walking on it that it was slippery?
"A. Well, yes, I'm sure that it was."
From this testimony, a jury could have inferred that Law did not know that the floor was wet and slippery until he was well into the building. Furthermore, the condition of the floor was not sufficiently established to an absolute certainty that a fall would be imevitable if Law continued on his circuitous route through the building.
The majority suggests that Law should have taken a different, safer route or asked an employee for advice of another route. The testimony does not indicate that a safer route existed or that if one did exist whether Law was aware of it. Law's failure to take another route or ask for help may infer to a jury that he did not appreciate the danger involved in crossing the plant floor. As I read the evidence, different inferences may be drawn from the facts. Therefore, summary judgment was improper.
The majority also unnecessarily dared to extend the products liability open and obvious danger test to the slip and fall situation. Negligence law in Indiana adequately covers this situation without borrowing doctrines from the law developed for products liability. To be liable for negligence in Indiana, the defendant must have failed to exercise his duty of care owed to the plaintiff, resulting in the plaintiff's injury. Norman v. Turkey Run Community School Corp. (1980), Ind., 411 N.E.2d 614, 616. As a business invitor, Yukon owed a duty to Law, an invitee, to exercise reasonable care to maintain the plant in a reasonably safe condition unless and until Law had reasonable notice that the premises were not safe. Kroger Co. v. Haun (1978), 177 Ind.App. 403, 407, 379 N.E.2d 1004, 1007; Letson v. Lowmaster (1976), 168 Ind.App. 159, 162, 341 N.E.2d 785, 787.
If Law had reasonable notice that Yukon was not exercising due care in maintaining .dry floors he might be guilty of contributory negligence or incurred risk. As the majority notes, knowledge and appreciation of peril are essential elements of these defenses. In fact, contributory negligence oceurs when the plaintiff unreasonably fails to recognize an obvious risk or danger. Kroger, supra 379 N.E.2d at 1009. Incurred risk occurs. when the plaintiff voluntarily accepts a known risk or danger. Id. at 1012. With these defenses and the invitee duty rule, there is no need to extend the open and obvious danger test which is and should remain limited to products lia bility cases.
Summary judgments are rare in negli-genee cases where contributory negligence and incurred risk are involved. Hundt v. La Crosse Grain Co. (1983), Ind., 446 N.E.2d 327, 328; Bassett v. Glock (1977), 174 Ind.App. 439, 442, 368 N.E.2d 18, 20-21. This is particularly true when different inferences may be drawn from the facts before the trial court.» The above analysis shows that genuine issues of material fact exist as to: whether Yukon's wet floor was an obvious risk or danger; whether Law acted unreasonably by crossing the floor; and, whether Yukon had superior knowledge of the danger of its floor. Accordingly, I1 would reverse and remand this case for trial.