concurring in part and dissenting in part.
I fully concur in the decision of my colleagues that summary judgment was properly entered for the MceCamment defendants, but I respectfully dissent from their decision to reverse the entry of summary judgment for the Lee defendants.
Construction sites are fraught with peril and involve dangers that are inherent to the construction industry. Until the construction process is completed, those who enter upon a construction site encounter foundation walls that are not back-filled, roof trusses that are not fully braced, electrical connections that are exposed, power tools of all descriptions, and, as here, railings that are not secure. Because of the dangers presented, government regulations require that those who work at such sites take extensive safety precautions including hard hats, work shoes, safety goggles, and the like. These requirements are imposed even though those who work on such sites may be experienced and know of the dangers presented.
The same concern for safety underlay the provision in the construction contract here at issue that required the plaintiff home buyers to obtain permission before coming on the construction site. It is undisputed that the plaintiffs had not obtained such permission on the day that Peggy Rider was injured. It is similarly undisputed that neither Charles Lee, nor his crew, was at the site when the injury was sustained.
In holding that there is a material question of fact whether Peggy Rider was rightfully upon the premises on the day in which she sustained her injuries, I believe the majority places an impossible burden on contractors. Nothing in the designated materials gives rise to any inference that Lee could or should have anticipated Rider's presence at the construction site. She did not follow the protocol set out in the contract, and she did not notify Lee or McCamment that she would be coming upon the premises.
My colleagues conclude that Rider's claim to have entered upon the premises a number of times when Lee was present and without MceCamment's permission gives rise to a material question of fact regarding whether she was rightfully upon the premises on the day in question. I disagree.
To me, it is reasonable to impose a duty on a contractor when he knows that a party is upon the premises. When Lee was present, he had the ability to warn Rider of potentially dangerous areas or conditions-such as a partially completed railing. He did not have such an ability when he was not present.
Assuming that Rider did enter upon the premises previously when Lee was present does not lead to the conclusion that Lee should have foreseen her presence when he was not. There is nothing in the designated materials to support an inference that Lee knew or should have known that Rider was entering upon the premises when neither he, nor his crew, was present. To hold that Lee should have foreseen that Rider would enter upon the premises in his absence and without permission or notice inflates the concept of duty to infinite proportions. Under the duty imposed by the majority, Lee could have protected himself from liability only *271by stationing a guard upon the premises to insure that neither Rider, nor anyone else, entered upon the inherently dangerous worksite. I do not think that such a requirement is reasonable or financially feasible.
To me, the issue presented here is more properly stated not as the duty owed by Lee, but the risk incurred by Rider. I believe that one who enters upon an inherently dangerous construction site in the absence of either permission or notice incurs the risks of such inherent dangers as a matter of law.
I would affirm the trial court in all respects.