dissenting:
I dissent from the majority’s conclusion “that the natural accumulation rule is not *982consistent with the comparative negligence law of this state.” Ante at 980, 793 P.2d at 212. For the reasons set out in my concurring and dissenting opinion in Baker v. Shavers, Inc., 117 Idaho 696, 791 P.2d 1275 (1990), neither the open and obvious danger doctrine nor the related natural accumulation rule, which holds that there is no duty on a landowner to remove or warn of the natural accumulation of ice and snow where it is open and obvious to the invitee, are in any way affected by the comparative negligence statute adopted by the Idaho legislature in 1971. The open and obvious danger doctrine, and the natural accumulation rule, provide that there is no duty on a landowner to warn or protect invitees against open and obvious dangers, such as the natural accumulation of ice and snow, and therefore, there being no duty, there is no negligence on the part of the landowner. The comparative negligence statute did not create a duty in negligence where none existed before, but merely provided that any negligence of the plaintiff would no longer be a complete defense, but would be compared to the negligence, if any, of the defendant. However, where the defendant landowner owes no duty to the plaintiff, there is no negligence on the landowner’s part to compare, and thus the comparative negligence statute has no bearing upon the open and obvious danger doctrine. That is, until this Court erroneously held otherwise in Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321 (1989), and Baker v. Shavers, Inc., 117 Idaho 696, 791 P.2d 1275 (1990), two cases wherein this Court held that the open and obvious danger doctrine was abolished by the comparative negligence statute, I.C. § 6-801 et seq., and that Harrison v. Taylor was to be applied retroactively.
I recognize that Harrison v. Taylor and Baker v. Shavers, Inc., are now the law of this state. However, that does not mean that the natural accumulation rule should also be abolished. Harrison v. Taylor was not a natural accumulation of ice and snow case. Harrison v. Taylor was a midsummer afternoon hole-in-the-sidewalk case. Thus, while Harrison v. Taylor did purport to abolish the natural accumulation (of ice and snow) rule, any pronouncement to that effect in that case was dicta, as the majority opinion readily acknowledges, ante at 981, 793 P.2d at 213. Therefore, Harrison v. Taylor is not binding precedent and need not be followed in this case, as the majority wrongfully supposes. It is at best persuasive if, after a separate analysis, it appears to be based on a correct analysis. I believe that it is not.
First, Harrison v. Taylor erred when it concluded that the enactment of the comparative negligence statute in 1971 abolished the open and obvious danger doctrine and the natural accumulation rule. As noted above, the open and obvious danger doctrine provided that there was no duty on a landowner to warn or protect invitees from open and obvious dangers such as the natural accumulation of ice and snow. There being no duty, there was no negligence on the part of a landowner under those circumstances. The comparative negligence statute did not impose a duty or create negligence where none existed before. Rather, it merely provided that the negligence of a plaintiff would no longer be a complete defense, but would be compared to the negligence, if any, of the defendant, and any judgment in favor of the plaintiff would then be reduced by the amount of the plaintiff’s negligence. Neither the majority today, nor the majority in Harrison v. Taylor, has pointed to anything in the comparative negligence statute, I.C. § 6-801 et seq., which purports to create any duty on the part of the Magic Valley Regional Medical Center in this case, the breach of which could result in a finding of negligence. Since no duty existed before under the natural accumulation of ice and snow rule, that rule remains unaffected by the enactment of the comparative negligence statute, and we should affirm the summary judgment in this case.
It would be one thing if the Court was abolishing the open and obvious danger doctrine and the natural accumulation rule on the ground that those common law doctrines were no longer consistent with the social and economic needs of the State of Idaho. However, the Court has not chosen *983to modify the common law on socio-economic grounds because, I believe, the conditions which led the Court to adopt those rules have not changed, and therefore a change in the common law is not justified. The natural accumulation rule is a common sense rule for those areas of the country where ice and snow in the winter are a common and unmistakable fact of life. Our neighboring states, with similar climates, have retained the rule that a landowner is not liable for the natural accumulation of ice and snow which is open and obvious, even though those states have abolished the open and obvious danger doctrine. Cereck v. Albertson’s, Inc., 195 Mont. 409, 637 P.2d 509 (1981); O’Donnell v. City of Casper, 696 P.2d 1278 (Wyo. 1985). We should do the' same. This Court had just reaffirmed the common law open and obvious danger doctrine eights months before the Harrison decision. Bates v. Eastern Idaho Regional Medical Center, 114 Idaho 252, 755 P.2d 1290 (1988). There has been no claim made that the socio-economic needs of Idaho changed in that eight months requiring a change in the common law. Rather the Court in Harrison relied entirely on a misconstruction of the comparative negligence statute enacted by the legislature in 1971 in order to abolish the open and obvious danger rule. The Court today continues that misconstruction of the comparative negligence statute in abolishing the natural accumulation rule. I dissent for the reasons set out above and in my dissenting opinion in Baker v. Shavers, Inc.