JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff, Michael J. Miller, filed a two-count complaint against defendant, General Motors, alleging both negligence (count I) and wilful and wanton misconduct (count II) based upon injuries plaintiff suffered to his right hand. These injuries occurred when plaintiff touched a live wire approximately 13 feet off the ground while trespassing on defendant’s property. The jury returned a verdict for plaintiff on both *151counts, awarding him $2 million in compensatory damages and $1.5 million in punitive damages. However, the jury also found plaintiff to be 25% contributorily negligent. Accordingly, compensatory damages were then reduced to $1.5 million.

On appeal, defendant argues that the judgment entered against it on both counts I and II should be reversed because (1) based on the limited duty defendant owed plaintiff (a) count I should have never been submitted to the jury, and (b) the trial court should have granted its motion for judgment n.o.v. because plaintiff did not sustain his burden of proving wilful and wanton misconduct by defendant; (2) the trial court erred because no aggravating factors were shown that could justify an award of punitive damages; (3) in the alternative, the $1.5 million award of punitive damages should be reduced because it is totally disproportionate to defendant’s culpability; (4) the punitive damages award violated due process because the jury was given no standard with which to calculate the award; and (5) the trial court erred in excluding evidence of plaintiff’s drinking and in admitting evidence of defendant’s wealth.

We reverse.

I. Facts

A. The Pumphouse

Defendant operates a foundry on land it owns near the Vermilion River, southwest of Danville, Illinois. Along the river is a massive pumphouse, built in the 1950’s, that defendant uses to extract large amounts of water from the river for use in its foundry, located approximately one-half mile south of the river. To operate the pumps, overhead electrical lines enter the pumphouse from the south and connect to several electrical transformers located in an enclosed, elevated balcony. The pumps do not run constantly, but only when the water level of the reservoir drops to a certain point.

The balcony area, located on the south side of the pumphouse, is almost 10 feet off the ground and is surrounded by a steel shroud. This second-story balcony contains three electrical transformers which sit on an elevated platform approximately three feet above the balcony floor, which is constructed of wooden slats with gaps between them. These transformers, and several bare wires that feed into them, carry approximately 4,160 volts of electricity. The balcony, which extends out from the pumphouse, is enclosed by four walls, but only has a partial roof. Directly beneath the balcony is a locked door, leading to a room in the pumphouse, in which a ladder is kept. On occasion, *152defendant's employees use this ladder to gain access to the balcony by way of an overhead gap, 12 by 20 inches wide, located in the floor of the balcony.

In the 35 years since the pumphouse was built, no electrical contact accidents have occurred except for the incident in the present case. Evidence presented at trial showed that people occasionally trespassed in the general vicinity of the pumphouse, but no evidence showed that defendant had knowledge of any previous attempts by a trespasser to scale the pumphouse’s wall and crawl through the gap in the floor of the balcony. Several of defendant’s security officers testified at trial that whenever they discovered a trespasser on any portion of defendant’s property, they promptly told the individual to leave the premises.

At the time of plaintiff’s accident, the pumphouse did not have any warning signs, the paint on the pumphouse was peeling, and the fences surrounding the pumphouse on the river side had fallen into disrepair. In earlier years, warning signs had been posted on the fence gate, the pumphouse, and near the river’s edge. At trial, plaintiff made much of the issue that the condition of the pumphouse and its surrounding area violated the National Electric Code and the National Electrical Safety Code.

B. The Accident

On June 13, 1984, plaintiff (then 20 years old) and Charles Boswell (then 19 years old) began a canoe trip down the Vermilion River. They canoed the river until nightfall, when they stopped to camp under a railroad trestle that crossed the river.

The next morning, plaintiff and Boswell decided to explore some of the river they had passed the night before. The day was sunny. Their first stop was the pumphouse.

The two paddled their canoe to the river bank and docked alongside a platform at the base of the pumphouse. Plaintiff and Boswell admitted at trial that they were trespassers and did not have defendant’s permission to enter the property. Neither had seen the pump-house before and did not know what it was. They thought it was an old abandoned structure. As soon as they docked, plaintiff got out of the canoe and quickly ran up some stairs located along the east side of the pumphouse. When Boswell reached the top of the stairs, plaintiff was already on the roof of the pumphouse. After jumping off the roof, plaintiff saw the lock on the pumphouse door and a fence with a closed and locked double gate, topped with barbed wire, in front of the pumphouse. A dirt road led southward from the gate. Neither *153plaintiff nor Boswell tried to open the gate or cross the fence. Plaintiff testified at trial that they thought they were on the outside looking in. Plaintiff then looked up through the gap in the balcony floor. He testified that, from below, the balcony was dark except for rays of light that came in through the partial roof. Plaintiff testified that he climbed up into the balcony to see what was there because he was curious.

Plaintiff gained access to the balcony by scaling a nine-foot wall with the aid of a pipe and some eyebolts sticking out of the wall. He then crawled through the 12- by 20-inch gap in the floor of the balcony and circumvented a ledge sticking out 8 to 10 inches from the top of the wall. After climbing into the balcony, plaintiff grabbed a live electrical wire in order to pull himself up. The wire on which plaintiff severely injured his hand was approximately 13 feet off the ground.

Plaintiff testified that before the accident he saw barrels and cables in the balcony, although his visibility was poor. Plaintiff admitted that he had previously seen transformers on utility poles, but he had never heard of them referred to as transformers. Plaintiff and Boswell testified that they did not see the three overhead transmission lines coming from the hill to the south, nor did they hear any noises coming from the balcony area.

After the accident, Boswell helped plaintiff climb down from the balcony. The two walked down the stairs to the canoe, paddled the river a short distance, and obtained a ride to the hospital. Plaintiff spent several painful weeks in the hospital and had a series of operations on his hand. As a result of the accident, plaintiff’s hand is disfigured. He lost the little finger of his right hand and some dexterity in his other fingers. Also, his hand is not as strong as it was before the accident.

II. Analysis

Before this court can address the primary issue defendant raises on appeal — whether the circuit court erred by denying defendant’s post-trial motion for judgment n.o.v. —we must first determine what duty was owed by defendant to plaintiff on the facts of this case. Whether a duty exists in the first instance is a question of law. Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226.

A. General Principles of Duty Owed to a Trespasser

It is well settled that the liability of an owner or occupier of land (landowner) has been set in terms of duty. Those who enter upon *154land are generally divided into three fixed categories — trespassers, licensees, and invitees — and the landowner has specific duties regarding persons within each category. These three categories constitute a sliding scale, and, as the legal status of the “visitor” improves from trespasser to licensee to invitee, the landowner owes that “visitor” more protection. See W. Keeton, Prosser & Keeton on Torts §58, at 393 (5th ed. 1984).

The lowest point on the “legal-duty-owed” scale is the trespasser, defined as a person who enters or remains upon land in the possession of another without a privilege to do so. (Restatement (Second) of Torts §329 (1965); Wymer v. Holmes (1987), 429 Mich. 66, 412 N.W.2d 213; Mendoza v. City of Corpus Christi (Tex. Ct. App.. 1985), 700 S.W.2d 652.) Because the landowner has a legally protected interest in the exclusiveness of his possession, no one has any general right to enter that land without his consent. (Restatement (Second) of Torts §329 (1965).) Additionally, because a landowner is free to fix his own terms for consent, an “intruder” who comes on the possessor’s land without his permission has no right to demand that the possessor provide him with a safe place to trespass, or that the possessor protect him in his wrongful use of the possessor’s property. (Restatement (Second) of Torts §329 (1965).) When the “intruder” enters where he has no right or privilege to go, he assumes both the responsibility for his own safety and the risk of what he may encounter. (Sheehan v. St. Paul & D. Ry. Co. (7th Cir. 1896), 76 F. 201.) Accordingly, the general rule, subject to several qualifications, is that a landowner is not liable for injury to a trespasser caused by the landowner’s failure to exercise reasonable care to put his land in a safe condition for the trespasser, or to carry on his activities in a manner which does not endan- • ger the trespasser. Restatement (Second) of Torts §333 (1965); Savinsky v. Bromley Group, Ltd. (N.M. Ct. App. 1987), 106 N.M. 175, 740 R2d 1159; see also W. Keeton, Prosser & Keeton on Torts §58, at 393 (5th ed. 1984).

The reasons for this landowner immunity are varied. Some courts reason that the presence of a trespasser is not to be anticipated, and hence a reasonable person does not need to take steps to protect that trespasser. (Hume v. Hart (1952), 109 Cal. App. 2d 614, 241 P.2d 25.) In many cases, this is no doubt true; however, while it is common knowledge that people do trespass upon the land of others, in most jurisdictions, the foreseeability of such general trespassing is said to impose no obligation. (Restatement (Second) of Torts §333 (1965); Rowland v. Byrd (1938), 57 Ga. App. 390, 195 S.E. 458.) Some courts reason that the landowner owes no duty to a trespasser because a *155trespasser is a wrongdoer and may not recover for the consequences of his own wrong. (Denton v. L.W. Vail Co. (1975), 23 Or. App. 28, 541 P.2d 511.) Other courts have suggested that it is a socially desirable policy to allow a person to use his own land in his own way without the burden of watching or protecting those who come onto that land without permission or right. McPheters v. Loomis (1939), 125 Conn. 526, 7 A.2d 437; see also W. Keeton, Prosser & Keeton on Torts §58, at 395 (5th ed. 1984).

From the general rule of nonliability of a landowner to a trespasser, the rest of the law regarding trespassers is a list of exceptions. These exceptions have developed because of the concern that human safety ought to be more important than the landowner’s interest in unrestricted freedom to use his own land as he sees fit. This view is especially prevalent in cases in which the burden on the landowner and the expense in taking precautions to prevent harm are not great. (See Ward, 136 Ill. 2d at 142-43, 554 N.E.2d at 226-27.) If that burden is very slight, and if the risk of harm to the trespasser is correspondingly very great, some commentators have found good reason to hold the landowner liable for injuries sustained on his land by the trespasser. This rule applies mostly in the case of frequent trespass upon a limited area. See W. Keeton, Prosser & Keeton on Torts §58, at 395-96 (5th ed. 1984).

1. Frequent Trespassers on a Limited Area

When a landowner knows, or should know from facts within his knowledge, that trespassers are in the habit of entering his land at a particular point or of traversing an area of small size, many courts hold that there is a duty of reasonable care to discover and protect trespassers in the course of the landowner’s activities. (Restatement (Second) of Torts §334 (1965).) This duty is imposed because the burden of looking out for trespassers is not great. A typical case is the frequent use of a “beaten path” that crosses a railroad track, which is held to impose a duty of reasonable care as to the operation of trains. (Southern Ry. Co. v. Campbell (5th Cir. 1962), 309 F.2d 569.) In only a few cases have courts imposed a similar duty as to dangerous, passive conditions known to landowners, such as concealed high-tension wires. (Restatement (Second) of Torts §335 (1965); Franc v. Pennsylvania R.R. Co. (1967), 424 Pa. 99, 225 A.2d 528.) Liability has been extended in such cases because the landowner’s continued toleration of the trespass amounts to permission to make use of the land, so that the plaintiff is not a trespasser but a licensee. (Mentesana v. LaFranco (1979), 73 Ill. App. 3d 204, 391 N.E.2d 416.) *156While it is true that a failure to object may amount to tacit permission, the mere fact the landowner does not take burdensome and expensive precautions to keep trespassers out, which may well be futile, should not in itself indicate that he is willing to have them enter. (Mentesana, 73 Ill. App. 3d at 208, 391 N.E.2d at 419.) The real basis of liability to such “tolerated intruders” would seem to be only the ordinary duty to protect another, where the harm to be anticipated from a risk for which the defendant is responsible outweighs the inconvenience of guarding against it. See W. Keeton, Prosser & Keeton on Torts §58, at 396 (5th ed. 1984).

2. Discovered Trespassers

Another important exception to the trespasser rule is the requirement that the landowner exercise reasonable care for a trespasser’s safety once his presence is known. This rule evolved from the older rule that a possessor of land was not free to inflict unreasonable intentional injury upon his unwelcome visitor. A trespasser, while he may be a wrongdoer, is not an outlaw, and an intentional, unprivileged battery upon him is not tolerated. (Schofield v. Merrill (1982), 386 Mass. 244, 435 N.E.2d 339.) A landowner is not permitted to set traps for the trespasser or to use unreasonable force to expel him from the premises. (Bennett v. Public Service Co. (1st Cir. 1976), 542 E2d 92; Katko v. Briney (Iowa 1971), 183 N.W.2d 657.) Nor is he allowed to injure the trespasser negligently by an act specifically directed toward him, or recklessly by conduct in conscious disregard of his peril. (Bremer v. Lake Erie & Western R.R. Co. (1925), 318 Ill. 11, 148 N.E. 862.) Thus, the rule which has evolved, whether the trespasser has been discovered or not, is that the landowner owes no duty to a trespasser except to refrain from injuring him by wilful or wanton conduct. Votava v. Material Service Corp. (1979), 74 Ill. App. 3d 208, 392 N.E.2d 768; see also W. Keeton, Prosser & Keeton on Torts §58, at 397 (5th ed. 1984).

Some courts have stopped at this point, and have refused to find that the landowner owes any duty to the trespasser, even after his presence is known, unless wilful or wanton conduct is found. (Earnest v. Regent Pool, Inc. (1972), 288 Ala. 63, 257 So. 2d 313; Hughes v. Star Homes, Inc. (Miss. 1980), 379 So. 2d 301.) Other courts have retreated from this position by the expedient of defining wilful or wanton to include any failure to use ordinary care after the trespasser is discovered. (Frederick v. Philadelphia Rapid Transit Co. (1940), 337 Pa. 136, 10 A.2d 576.) A few courts have discarded wilful or wanton entirely as a limitation, and have said outright that once the presence *157of the trespasser is discovered, there is a duty to use ordinary care to avoid injuring him. The landowner is thereupon required to govern his active conduct, such as running a train (Denver & Rio Grande Western R.R. Co. v. Clint (10th Cir. 1956), 235 F.2d 445), conducting a circus (Herrick v. Wixorn (1899), 121 Mich. 384, 81 N.W. 333), or operating an elevator (Pridgen v. Boston Housing Authority (1974), 364 Mass. 696, 308 N.E.2d 467), with the caution of a reasonable person for the trespasser’s safety. See W. Keeton, Prosser & Keeton on Torts §58, at 397 (5th ed. 1984).

Usually, the discovered trespasser is owed the higher duty when he" is perceived to be in a situation of peril or possible danger, even if the landowner is aware that he is a trespasser. (See Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 236.) However, it is not essential that his presence actually be perceived by the landowner. It is enough that the landowner has received information which would lead a reasonable person to conclude that a trespasser is present. Frederick, 337 Pa. 136, 10 A.2d 576; Lavallee v. Pratt (1960), 122 Vt. 90, 166 A.2d 195; see also W. Keeton, Prosser & Keeton on Torts §58, at 398 (5th ed. 1984).

For a long time it was uncertain whether the duty owed to the discovered trespasser extends to warning or otherwise protecting him against a purely passive condition of the premises. Courts have held that there was no more of an obligation to rescue the trespasser from personal injury than to rescue any other stranger. (Buch v. Amory Manufacturing Co. (1898), 69 N.H. 257, 44 A. 809; Carroll v. Spencer (1954), 204 Md. 387, 104 A.2d 628.) However, the Restatement (Second) of Torts and some courts have disagreed, holding that possession of the land carries with it the duty to see that artificial and dangerous conditions do not become instruments of harm to others, and holding further that the discovery of the danger makes reasonable the requirement of a warning. (Restatement (Second) of Torts §337 (1965); Appling v. Stuck (Iowa 1969), 164 N.W.2d 810; Nolan v. Roberts (Fla. Dist. Ct. App. 1980), 383 So. 2d 945; Gaylord Container Corp. v. Miley (5th Cir. 1956), 230 F.2d 177.) Many courts now hold that the landowner has a duty of care to the discovered trespasser at least in his active conduct, including the operation of his machinery, and it is now frequently stated as a general principle that the landowner has a duty to warn of hidden dangers known to the landowner but not to the trespasser. Bovino v. Metropolitan Dade County (Fla. Dist. Ct. App. 1979), 378 So. 2d 50; Nolan, 383 So. 2d 945; Joyce v. Nash (Mo. Ct. App. 1982), 630 S.W.2d 219; see also W. Keeton, Prosser & Keeton on Torts §58, at 398-99 (5th ed. 1984).

*158This duty is, of course, only to exercise reasonable care under the circumstances. Thus, the engineer of a train who discovers a trespasser ahead on the track may ordinarily assume that he is in possession of his faculties and that after proper warning he will remove himself to safety. (Lawrence v. Bamberger R.R. Co. (1955), 3 Utah 2d 247, 282 P.2d 335.) It is only when it becomes apparent that he is insensible or helpless, or that the warning has not been heard, that something more than a whistle is required. Chicago Terminal Transfer R.R. Co. v. Kotoski (1902), 199 Ill. 383, 65 N.E. 350; see also W. Keeton, Prosser & Keeton on Torts §58, at 399 (5th ed. 1984).

B. Illinois Common Law Duty to Trespasser

The limited duty owed by a landowner to a trespasser is well established in Illinois. The law does not require a landowner to assume that a trespasser will expose himself to injury - on the landowner’s property. (Merlo v. Public Service Co. (1942), 381 Ill. 300, 314, 45 N.E.2d 665, 674.) Nor is a landowner required to keep his land in any particular state or condition to promote the safety of trespassers. (Hessler v. Cole (1972), 7 Ill. App. 3d 902, 905, 289 N.E.2d 204, 206.) A landowner owes only the duty not to wilfully and wantonly injure the trespasser. (Sumner v. Hebenstreit (1988), 167 Ill. App. 3d 881, 885, 522 N.E.2d 343, 345.) This common law duty of a landowner to a trespasser is expressly preserved in section 3 of the Premises Liability Act (Ill. Rev. Stat. 1987, ch. 80, par. 303). A landowner’s duty is modified, however, when a trespasser is reasonably anticipated or discovered in a place of danger. In that situation, the • landowner owes the discovered trespasser a duty of ordinary care. Eaton v. Baltimore & Ohio R.R. Co. (1990), 198 Ill. App. 3d 137, 140, 555 N.E.2d 790, 791; Sumner, 167 Ill. App. 3d at.885, 522 N.E.2d at 345.

Plaintiff urges this court to disregard this limited common law duty and adopt a more stringent approach to the circumstances of this case because of the danger associated with the use and transmit.tal of electricity. However, we decline plaintiff’s invitation to do so, as other courts have declined similar invitations. (Merritt v. Bethlehem Steel Corp. (7th Cir. 1989), 875 F.2d 603; Ryckeley v. Georgia Power Co. (1970), 122 Ga. App. 107, 176 S.E.2d 493.) Even though the use and transmittal of electricity is dangerous, it is a passive condition on the land, and the courts of this State have consistently found that a landowner owes only a duty to refrain from wilful and wanton misconduct in these circumstances. Lee v. Chicago Transit Authority (1990), 205 Ill. App. 3d 163, 169.

*159Recently, in Lee, the First District Appellate Court found that a defendant landowner did not engage in the affirmative activity of distributing electricity despite the fact that it owned and operated transformers. (Lee, 205 Ill. App. 3d at 173.) The court then stated that a landowner does not become a utility simply because it uses or redistributes electricity. (Lee, 205 Ill. App. 3d at 173.) Even a utility has a duty of ordinary care to insulate its power lines only to the extent that those lines are in a place where a person has a right to be. (Lee, 205 Ill. App. 3d at 173.) Therefore, a utility, like any other landowner, has a duty of ordinary care when engaged in an affirmative activity and when it knows or should have known of the presence of the trespasser. (Lee, 205 Ill. App. 3d at 173-74.) Thus, in determining the duty defendant owed plaintiff in the present case, our analysis remains centered on whether defendant should have reasonably anticipated or discovered plaintiff in a place of danger.

C. Whether Defendant Should Have Reasonably Anticipated or Discovered Plaintiff In a Place of Danger

On the subject of trespassers, the record contains the following testimony:

“Q. [Plaintiff’s attorney:] General Motors, prior to June 14, 1984, knew that trespassers frequented the pumphouse. Is that correct?

A. [Ms. Foster:] We knew that people sort of liked hanging around the Arches, going down the river.

Q. And they would come up here, and they would mess around, screw around. Possibly that’s how the fence got in the condition that it was?

A. I don’t know.

Q. But you did have problems with trespassers down there. Is that correct?

A. I haven’t had problems with trespassers. I heard of them having problems.

Q. And this was prior to June 14, 1984?

A. Yes.

Q. Do you know of any special precautions that General Motors took to prevent entry by trespassers there at the pump-house?

A. All I could think was the gate being locked, and then a door inside there being locked, that was taking extra precaution. And then, the added fence being there.

*160Q. [Defendant’s attorney:] Have you, yourself, from 1984 or ’78, I believe you said, to 19 say '84, have you inspected the pumphouse area how many times?

A. [Ms. Foster:] Maybe once a month.

Q. Did you ever see trespassers in or about the pumphouse area?

A. No.

Q. Have you ever known any trespassers to go up into the balcony area?

A. I have never known it.

* * *

Q. [Defendant’s attorney:] Did you ever see any trespassers down there?

A. [Ms. Foster:] No.

Q. In all the time you went down there?

A. (Witness nodding negatively).”

Boswell, plaintiff’s companion on the day in question, testified as follows:

“Q. [Defendant’s attorney:] I assume you had never been in the area of the pumphouse before?

A. [Mr. Boswell:] No.

Q. Never canoed down that particular part of the river before?

A. No.”

Other evidence presented on this subject included two area residents who testified that they had canoed the river a number of times. One resident stated that he had stopped and explored the pumphouse grounds, but did not state whether he had actually explored the pumphouse itself. The other resident never explored the structure. No evidence was presented that defendant knew of these two trespassers.

Plaintiff’s assertion that defendant knew that trespassers would likely scale the nine-foot wall and climb into the second-story balcony rests on the propositions that the pumphouse was an open invitation to adventurers and that curiosity would induce the adventuresome to explore it. From the evidence that showed occasional trespassers in the general vicinity of the pumphouse, plaintiff jumps to the conclusion that defendant should have reasonably anticipated that someone would actually scale a nine-foot wall using eyebolts, crawl through a small opening in the ceiling, and explore an elevated, enclosed balcony. We disagree.

After reviewing the evidence presented at trial on this issue, *161we find that defendant had no reason to anticipate that a trespasser would do what the plaintiff has done. Courts in this State and other jurisdictions have routinely held that landowners need not anticipate that an isolated trespasser will climb into an area of electrical danger. (See Celner v. Central Illinois Electric & Gas Co. (1951), 343 Ill. App. 310, 99 N.E.2d 214; Austin v. Public Service Co. (1921), 299 Ill. 112, 132 N.E. 458; Gherra v. Central Illinois Public Service Co. (1918), 212 Ill. App. 48; Rodriguez v. Schlittenhart (Ariz. Ct. App. 1989), 161 Ariz. 609, 780 P.2d 442; Foster v. Alabama Power Co. (Ala. 1981), 395 So. 2d 27; Bennett, 542 E2d 92; Glastris v. Union Electric Co. (Mo. Ct. App. 1976), 542 S.W.2d 65; Ryckeley, 122 Ga. App. 107, 176 S.E.2d 493; Ross v. Sequatchie Valley Electric Cooperative (1955), 198 Tenn. 638, 281 S.W.2d 646; Caraglio v. Frontier Power Co. (10th Cir. 1951), 192 F.2d 175; Gouger v. Tennessee Valley Authority (1949), 188 Tenn. 96, 216 S.W.2d 739.) While one can argue that everything is foreseeable, we hold as a matter of law that plaintiff’s presence within the pumphouse balcony was not foreseeable in this case. Thus, the only duty that defendant owed plaintiff under the facts of this case was the duty to refrain from wilful and wanton misconduct.

D. Wilful and Wanton Misconduct

In Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293, 300, the Illinois Supreme Court defined wilful and wanton misconduct as a reckless disregard for the safety of others after knowledge of impending danger:

“A wilful or wanton injury must have been *** committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care.”

The court reaffirmed this rule in Hering v. Hilton (1958), 12 Ill. 2d 559, 564, 147 N.E.2d 311, 315: “[I]t is sufficient if [the defendant] had notice which would alert a reasonable man that substantial danger was involved, and that [the defendant] failed to take reasonable precautions under the circumstances.” See also Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 412 N.E.2d 447; O’Brien v. Township High School District 21b (1980), 83 Ill. 2d 462, 415 N.E.2d 1015; Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481, 211 N.E.2d 720; Templar v. Decatur *162 Public School District No. 61 (1989), 182 Ill. App. 3d 507, 538 N.E.2d 195; Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 462 N.E.2d 877; Skinner v. Mahomet Seymour School District No. 3 (1980), 90 Ill. App. 3d 655, 413 N.E.2d 507.

In applying this definition of wilful and wanton misconduct to the facts of this case, we find that there is simply no support for plaintiff’s contention that defendant acted wilfully or wantonly to injure trespassers to its pumphouse balcony. Several witnesses testified that the pumphouse was very safe because the elevated wires in the enclosed balcony had been made inaccessible to all but authorized personnel — the front door of the pumphouse was locked, the transformers were enclosed in a steel shroud 13 feet above the ground, the only entrance to the balcony was through a 12- by 20-inch gap in its floor, and the ladder used to reach this entrance was kept behind a locked door. That no warning signs were posted or fences maintained is of little consequence because defendant was unaware the pumphouse balcony posed a risk under these circumstances. Accordingly, we find that the evidence presented at trial does not support a verdict that the defendant, or its agents, acted wilfully or wantonly.

Because a party is entitled to a judgment n.o.v. when the evidence, viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14), we reverse the trial court’s denial of defendant’s motion for a judgment n.o.v.

Because we find that defendant did not breach its duty to plaintiff, we need not address the other issues defendant has raised on appeal, namely, the issues pertaining to the award of punitive damages or the admission or exclusion of certain evidence.

Reversed.

GREEN and KNECHT, JJ., concur.

Southerland, C. J.;

*48The hriefs and argument on this appeal involving an action to recover damages for negligence, bring before us two questions :

1. Did the evidence justify a finding of contributory negligence as a matter of law?

2. Was there sufficient evidence to go to the jury on the issue of defendants’ negligence?

We shall refer to plaintiffs below, appellants, as “plaintiffs”; to defendants below, appellees, as “defendants”; and to Mrs. Anne Maher as “plaintiff”.

Before taking up the merits, a motion to dismiss the appeal requires consideration. Final judgment for the defendants was entered on January 2, 1952. A motion for a new trial was denied on August 30, 1952. A praecipe for writ of error was filed February 13, 1953. In accordance with Rule 5(4) of this Court the praecipe undertook to specify the judgment appealed from. It is described as the “final judgment * * * dated 30th of August, 1952.” On its face, the praecipe is ambiguous. Defendants, citing Trowell v. Diamond Supply Co., 8 Terry 422, 91 A. 2d 797, and French v. Jeffries, 7 Cir., 161 F. 2d 97, say that the praecipe should he construed as an appeal from the motion denying a new trial and that the appeal should be dismissed, since no question of abuse of discretion is presented. In support of the motion defendants point to the fact that plaintiffs’ appendix fails to include a copy of the judgment of January 2, 1952, but does include a copy of the order of August 30, 1952. We think this a case of patent ambiguity in the praecipe which we should resolve in favor of the plaiptiffs. As against the inference to be drawn from the appendix, there is the statement in the brief that the appeal is from the final judgment of January 2, 1952. As between the two inferences, that supporting the right of appeal is to be favored. We treat the matter as one of mistake in the date.

Defendants suggest that the final judgment is not before us, because not contained in the “abstract” of the record *49(i.e., the appendix to plaintiffs’ brief). This is a misconception of the function of the appendix. Cases in this. Court are not heard upon an abstract, but upon the original record sent up from the lower court. Rule 7(1). The record shows the entry of final judgment on J anuary 2,1952.

The motion to dismiss is denied, and we turn to the merits.

A brief summary of the circumstances which led to this suit, and of plaintiffs’ evidence touching the issue of contributory negligence, is as follows:

Plaintiff was invited by Barbara W. Voss, one of the defendants, to attend a meeting of the Democratic Women of New Castle County to be,held in the home of Dr. and Mrs. Voss in Wilmington on March 30, 1950. Plaintiff accepted the invitation and arrived at the house ahout eight o’clock in the evening. At least four other guests, Miss Grace Aiken, Mrs. Mary Morris, Miss Brulatour and Mrs. Cresswell, also attended the meeting. As the guests arrived Mrs. Voss received them at the threshold of the the living room, to which the front door apparently gave immediate access, and took the coats and wraps and disposed of them in the dining room. The dining room adjoined the living room immediately on the rear and was divided from it by a wall in which was a large opening, lacking any door.

The business of the meeting having been finished, the guests made ready to depart. Plaintiff went into the dining room to get her coat and found it hanging on a hook immediately inside what appeared to her to be a coat closet. She then volunteered to get the coat of another guest, Mrs. Morris, and returned to the supposed closet for that purpose. The “closet” was in fact a landing at the top of a stairway leading to the basement. Its front was lighted dimly from lights in the ceiling of the dining room, but the light was insufficient to illuminate the rear. Coats were hanging on both sides of the closet. She stepped toward the rear in an attempt to find Mrs. Morris’ coat and fell headlong down the stairway and suffered severe injuries.

*50Thereafter plaintiff and her husband each brought a suit against the defendants, Dr. and Mrs.' Voss, to recover damages. The complaints alleged that the place where the coats and wraps had been hung by Mrs. Voss was to all outward appearances a clothes closet in the dining room but in fact was an open unlighted cellarway; that plaintiff had the right to rely on the apparent use of the opening as a coat closet; and that defendants were grossly negligent in failing to warn her of the hazard and should have known, or should’ have had reasonable cause to believe, that a guest going to the closet might be entrapped by the appearance of the opening and might suffer injury.

A motion to dismiss the complaints was brought on for hearing and was denied. 7 Terry 418, 84 A. 2d 527.

The case came on for trial. At the conclusion of plaintiffs’ evidence defendants moved for a directed verdict on three grounds, the third of which was that plaintiff was as a matter of law guilty of contributory negligence.

After argument the court determined that as a matter of law Mrs. Maher was negligent in proceeding to the unlighted portion of the closet and directed a verdict for the defendants.

Plaintiffs appeal, urging that the question of contributory negligence was for the jury. Defendants say the court below was correct in its holding; and also urge that in any event there was no evidence of defendants’ negligence sufficient to take the case to the jury, and hence that the judgment should be affirmed.

1. Was Mrs. Maher guilty of contributory negligence as a matter of law?

For our present purpose we shall assume actionable negligence on the part of the defendants. Certain aspects of that question will be examined later.

The evidence touching the issue of contributory negligence may be summarized as follows:

*51Two or three of the guests went to the dining room to get their coats. Miss Aiken opened the “closet” door, “stepped in about two steps and leaned over and got [her] coat” which was in the back on the right. Mrs. Maher went to the opening and saw her coat hanging just inside the door. She took her coat, put it on a chair in the dining room, and then volunterred to get Mrs. Morris’ coat, Mrs. Morris being engaged in calling a taxicab for the use of herself and Mrs. Maher. Mrs. Maher’s testimony as to what then happened is as follows:

“Well, immediately in front of the closet the first coat— well, it was the first coat on this side. There was a coat hanging that seemed to have black fur on it. I said to Mrs. Morris, ‘Does your coat have black fur on it?’ She said ‘No. No, it’s a plain gray coat.’ I stepped further into the closet to go through the coats to see which was hers, and as I stepped further in — well, I just went headlong into void.”

She further testified that the space into which she fell was black. On cross-examination she further testified as follows:

“In addition to the lack of light, I believe that you testified there was very little light in the closet? Yes.

“Was your vision also obscured by coats hanging on both sides of that closet? Were there coats hanging on both sides of the closet? Yes.

“And because of the lack of light and the obscurity of your vision was it necessary for you to kind of push these coats out of the way and feel your way into the closet to feel for Mrs. Morris’ coat? I pushed them aside and walked in further.

“Did you ever find out how far back in the closet Mary Morris’ coat was? No, I didn’t.”

Asked by the court whether she remembered how wide or how deep the platform is, she replied:

“No, I don’t, sir. I just know that I took a few steps into it to get Mary’s coat.”

*52These is no evidence of the exact length of the platform extending from the door to the top of the cellar stairs. Miss Aiken’s “two steps” and Mrs. Maher’s “few steps” were, as suggested by plaintiffs’ counsel, probably short ones. The inference might be drawn that at least one or more of the coats had been hung in dangerous proximity to the end of the platform.

On the motion for a directed verdict the court below applied the well-settled principle of law derived from the so-called “step-in-the-dark” cases. A person who comes into an unfamiliar situation, where a condition of darkness renders the use of his eyesight ineffective to define his surroundings, is not justified, in the absence of any special stress of circumstances, in proceeding further, without first finding out where he is going and what may be the obstructions to his safe progress. A violation of that rule is contributory negligence as a matter of law. 1 Shearman and Redfield on Negligence (Rev. Ed.) 320.

The cases supporting this rule are in general those where a person enters a completely dark opening on unfamiliar premises. At all events that is the typical case which calls for a pronouncement by the trial court of contributory negligence as a matter of law. We do not question the soundness of the rule in such a case. The instant case, we think, is different. The opening was dimly lighted, sufficient to disclose that coats had been hung in it and sufficient to identify a coat hanging just inside the door. The rear of the supposed closet appears to have been completely dark.

We think that a jury might reasonably find that the plaintiff, standing safely upon what appeared to be the floor of a closet, was misled by appearances, with some justification, into believing that it was safe to step further. The appearance of the opening, the hanging of the coats, the platform beneath her feet, and the dimness (but not complete absence) of light — all these facts taken together might well lead reasonable men to reject the conclusion that Mrs. Maher was careless of her own safety. As to the circumstances of partial illumination, the remarks of the *53Court of Appeals of Ohio in Carr v. Fox, 31 N. E. 2d 713, 715, are pertinent. That case, like the present one, involved a dimly-lighted opening. The court declined to find contributory negligence as a matter of law. Refusing to apply the “step-in-the-dark” cases, the court said:

“These cases are inapplicable to the present situation, for the reason that the evidence shows that the area involved was neither dark nor light, but, on the contrary, due to the existence of some light was dimly lighted. This presents one of the most trying situations for anyone whether on foot or driving a vehicle. Objects are presented in a distorted dimness, which may justify proceeding, but often obscures pitfalls which would be avoided if the light were stronger, or be avoided entirely if there was less light. This ground is not available as a justification for the action of the court.”

It is also true that it would be within the province of the jury to find that plaintiff, unable to see anything in the rear of the supposed closet, should have halted at the place where illumination ceased.

In this case, in which opposite conclusions upon the issue might be drawn by reasonable men, we think that the court below erred in pronouncing Mrs. Maher’s conduct negligent as a matter of law.

We hold that under the circumstances of this case the issue of contributory negligence was one for the jury.

2. Was there sufficient evidence to go to the jury on the issue of defendants’ negligence?

Defendants argue that even if Mrs. Maher is not to be held contributorily negligent as a matter of law yet the judgment below must be affirmed, since the evidence was insufficient to establish negligence. Its alleged insufficiency is especially urged as to Dr. Voss. We do not reach this question in the breadth in which it is presented, because it was not raised below. At the conclusion of plaintiffs’ case defendants’ counsel moved “for a *54directed verdict in favor of the defendants.” Apparently referring to a memorandum which he was about to hand to the court he stated “the principal reasons in support of this motion” as follows:

“First, Your Honor will be cognizant of the fact that there is no claim, no claim has been advanced that there was any defect in the premises of any kind.

“Secondly, the only possible grounds upon which negligence could be claimed or could be sustained was on the theory of a trap. The authorities here are all to the effect that a situation, that an ordinary cellar door which I .submit to Your Honor it is not at all unusual for people to hang clothes inside a cellar door.

“The third or the last and principal reasons — there are some others here — is that the plaintiff, Anne Maher, was obviously guilty of contributory negligence.”

The second reason is the only one which might be said to raise any question of the insufficiency of plaintiffs’ evidence. It is clear, however, that it could raise nothing more than the sufficiency of the plaintiffs’ evidence to establish a “trap” or dangerous condition upon the defendants’ premises — only one of the elements of the negligence charged. As to this, the motion was not phrased with “technical precision”, but that is not required. 2 Baron & Holtzoff, Fed. Prac. & Proc., § 1073. That one narrow issue, i. e., whether there was evidence tending to show a dangerous condition, was sufficiently raised by defendants and we accordingly review the record for the purpose of determining it. To that end we state first the general principles of law applicable to the case.

The first question to be resolved is the status of Mrs. Maher upon the defendants’ premises, since the law makes a distinction, in respect of the measures of liability of an occupant of land, between “business visitors” and “gratuitous licensees”. Restatement, Torts, Ch. 13 §§ 331-332.

On the motion to dismiss the complaints the court below held that Mrs. Maher was simply a social guest, and as *55such, a gratuitous licensee. 84 A. 2d 527, 528. We approve this finding. Indeed it is not seriously challenged by plaintiffs.

The next question to consider is the extent of liability of the possessor of premises to a social guest.

By the great weight of authority a gratuitous licensee must take the premises as he finds them, and the owner or occupant of land owes him no duty except (a) not to injure him willfully or wantonly and (b) not knowingly to expose him to traps or hidden dangers. 38 Am. Jur., Negligence, § 104. Cf. Reardon v. Exchange Furniture Stores, 7 W. W. Harr. (37 Del.) 332, 188 A. 704. If there is negligence in the instant case it must fall within the latter exception.

The applicable principles are set forth in the Restatement, Torts, Ch. 13, § 342, as follows:

“A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he

“(a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and

“(b) invites or permits them to enter or remain upon the land, without exercising reasonable care .

“(i) to make the condition reasonably safe, or

“(ii) to warn them of the condition and the risk involved therein.”

Comment f. of the Restatement says:

* * In determining whether the possessor should realize that a known condition involves not only a risk but an unreasonable risk, the character of the invitation or permission is important. A condition, no matter how dangerous to those who come in contact with it, can involve risk to a particular licensee only if he may be expected to encounter it in the exercise of his *56license. * * * So too, a possessor has no reason to expect the licensee’s presence at any point other than that within which the licensee gives him the privilege to enter. He is, therefore, under no duty to warn licensees of conditions which exist outside of the area covered by the license.”

Applying these principles, we inquire: Was there evidence of a dangerous condition upon the premises of Dr. and Mrs. Voss?

We think that in the circumstances of this case a jury question was presented on the issue of a dangerous condition. The hanging of wraps immediately above a short platform leading to an unlighted cellar stairway presents some evidence of a condition involving serious risk to any visitor who, without knowledge of the condition, may be expected to go to such a place to retrieve his hat or coat. We think the jury might have found from the evidence adduced that a dangerous condition existed, hazardous to a guest who was invited to go to the place, apparently a coat closet, for the purpose of retrieving his wraps.

It follows that the second reason in support of defendants’ motion for a directed verdict was not well taken.

But as above indicated this finding does not dispose of the case, since there remains the question whether there was evidence from which could be found a duty on the part of the defendants, or of either of them, to warn the guests of the condition. This question was not raised by the motion. The failure to do so is of importance. Rule 50(a) of the Rules of the Superior Court, like the Federal Rule of Civil Procedure, 28 U. S. C. A., from which it is derived, provides:

“A motion for a directed verdict shall state the specific grounds therefor.”

The purpose of the rule is stated in 2 Rarron & Holtzoff, Fed. Prac. & Proc., § 1073, as follows:

“Before Rule 50 was adopted, the federal decisions were in conflict as to the necessity for stating specific grounds in a *57motion for a directed verdict. Subdivision (a) of this rule settles that conflict. The motion for a directed verdict must now state the ‘specific grounds therefor’. The requirement is important. If the rule were otherwise a judgment nothwithstanding the verdict might be entered under Rule 50(b) on motion after the close of the trial, on a ground which could have met with proof if it had been suggested on the motion.” (Emphasis supplied.)

The pertinency of the italicized language to this case will appear from the following considerations:

There can he no liability of the possessor of the premises to a social guest if the danger is not on the portion of the premises to which he has been invited. The alleged duty to warn must therefore depend upon the existence of an invitation. In this case it must depend on an invitation implied from circumstances, since no express invitation was extended.

Whether or not a guest expressly invited to a part of the premises may be said to have been impliedly invited to another part must depend on the circumstances of the case. The rules of social conduct are to some extent uncertain and varying. Moreover, there are different degrees of acquaintanceship or friendship, so that what might be normal and proper conduct for a guest in one case might seem unusual and unwarranted in another case. Whether or not the possessor of the premises has extended to any guest an implied invitation to visit another part of the house would seem to turn upon the question whether or not the circumstances, and the relation between the parties, would justify the guest in assuming that such an implied invitation was extended. If so, it is reasonable to say that the possessor of the premises should have foreseen the likelihood of such a visit.

In the light of these principles the failure of defendants to raise the question of the sufficiency of the evidence to establish a duty to warn was an omission of real consequence.

If the question now presented to us had been properly raised below, the trial judge would have been required to re*58view the sufficiency of the evidence to establish negligence. But it was not raised as Rule 50 requires, so that we do not have to resolve it. Nor would it be useful to discuss the problem in the present state of the record.

Since we have found error in the ruling on contributory negligence, the judgment below must be reversed. The cause is remanded to the Superior Court of New Castle County, with instructions to vacate the judgment and to grant a new trial.

PERRY, J.

This is an action to recover damages for the alleged negligence of the defendants which resulted in the unfortunate and untimely death of Alice Baer.

The trial court sustained the defendants’ motion for a directed verdict and the plaintiff appeals.

The facts in the record disclose that on July 21, 1957, the deceased and her husband were social guests in the home of the defendants; that these parties were preparing to enjoy an outdoor picnic together that afternoon. At approximately 1:15 p.m. preparations were made to leave the defendants’ home and the defendant Julius L. Van Huff ell left the kitchen where the parties had been sitting and proceeded to the lavatory in the front portion of the house. At the same *32time, Mrs. Baer arose, and Mrs. Yan Huffell, who stated she knew what the deceased wanted to do, said to her, “You use the one back here.” There is a lavatory near the kitchen at the rear of the house, which is reached by going from the kitchen into a utility room and then into the lavatory. This was the lavatory to which Mrs. Yan Huffell directed Mrs. Baer. Off the kitchen, in the direction of the utility room, are two doorways, one opening to the utility room and the other to the basement stairs. These doorways stand at right angles to each other in one corner of the kitchen and both doors open outward from the kitchen area.

There is evidence in the record, both on behalf of the plaintiff and the defendants, that when the door to the utility room is open portions of the lavatory door may be seen from certain positions in the kitchen. The door to the utility room was open at the time of the accident, but to what extent is not made certain. The deceased started for the lavatory, opened the door to the stairway leading to the basement, fell down the basement stairs, and suffered the injuries which resulted in her death.

There is also evidence the defendants knew that another person had fallen down these same stairs and that as an added safety feature the defendants had placed a hook on the basement door so that, even though the latch was turned, the door would not open until the hook was lifted. The hook was not in place when the deceased opened the basement door and fell.

There is uncontradicted evidence that the deceased had been a visitor in the home of the defendants on several occasions and on one occasion had visited the basement. There is no evidence that the deceased had ever been in the lavatory off the utility room. There *33is also evidence that in the daytime a window in the basement would cast a light on the basement stairs.

There can be no question but that the deceased was a social guest in the home of the defendants. The duties owed a social guest in his home by a host are set forth by this court in McHenry v. Howells et ux., 201 Or 697, 272 P2d 210, and are reaffirmed in Burch v. Peterson et ux., 207 Or 232, 295 P2d 868. These duties imposed on the host are (1) not to willfully, wantonly or intentionally injure the guest, (2) not to injure the guest through active or affirmative negligent action, and (3) to warn a guest of any pitfall or trap from which the guest could not avoid injury by reasonable care and skill.

The plaintiff does not contend the defendants were guilty of willful, wanton or intentional negligent conduct. His contention is that there was some evidence of affirmative negligent action and, also, that the basement stairway, with the door opening toward the stairway, might be considered a trap or pitfall, therefore, these matters should have been determined by the jury.

There is no evidence of affirmative negligence by the defendants. The defendants simply designated the lavatory the deceased might use. The plaintiff’s statement “defendant Nettie Van Huffell was negligent in giving such direction without indicating which door was the lavatory door” does not indicate an act of commission, but only one of omission. It shows only a failure to give full and complete instructions to the deceased of the route to be traveled to reach the lavatory designated, not a direction into a place of danger.

The sole question then is whether or not a condition in a home which consists of an unlocked door opening out from a room to stairs leading to a lower level is such a dangerous condition in itself that reasonable *34minds would disagree that a person who did not know the premises could not avoid, by reasonable care and skill, injury from such a condition and, therefore, there exists the affirmative duty upon the host to warn of the condition.

We think it must be conceded that general knowledge informs all reasonable minds that a great many houses are constructed so that there are rooms on different grade levels; that these different levels are reached by stairways which have doors closing off those stair areas. This general knowledge should warn every guest in a home that such a stairway may exist. Reasonable care, therefore, would require a guest upon opening any door to investigate before stepping across the threshold. Reasonable care and skill would have disclosed to the deceased that the door through which she passed opened into a stairway.

It seems to us immaterial which way a door swings. See Tempest v. Richardson, 5 Utah2d 174, 299 P2d 124, and cases cited therein.

This was a very unfortunate occurrence, but there being no evidence of the defendants’ negligence, the judgment is affirmed.

WILKINS, Justice:

€ 1 Plaintiff Patricia Kessler, on behalf of her minor child, Eric Kessler, appeals two orders granting defendants' motions for summary judgment. Six-year-old Erie Kessler was injured while playing in a partially-constructed home. The trial court determined that Eric was a trespasser and, relying on two cases which held that the attractive nuisance doctrine was inapplicable to injuries to children at residential construction sites, Taylor v. United Homes, Inc., 21 Utah 2d 304, 445 P.2d 140 (1968) and Featherstone v. Berg, 28 Utah 2d 94, 498 P.2d 660 (1972), granted summary judgment in favor of Defendant Sheffield and Defendants Mortenson and CRM Construction.

12 We overrule Taylor and Featherstone and reverse the orders granting summary judgment.

*1226BACKGROUND

13 On October 11, 1998, six-year-old Eric Kessler entered a partially-constructed house to play hide-and-go-seek. While playing, Eric backed into and fell through a hole in the floor where the staircase was going to be built. He was injured as a result of the fall. Consequently, on his behalf, his mother sued the builder, Randy Mortenson and/or CRM Construction, and the property owner and developer, Stephen Sheffield.

{4 The defendants moved for summary judgment based on Taylor and Featherstone, arguing that they owed no duty to Eric because he was a trespasser. The defendants asserted that the attractive nuisance doctrine, which, as a general rule, obligates landowners to exercise reasonable care to safeguard children from dangerous conditions on their property, is not applicable under Taylor and Featherstone to cases where a trespassing child is injured on a residential construction site. Therefore, the defendants argued, they were entitled to summary judgment. The trial court determined that Eric was a trespasser and granted the defendants' motions for summary judgment because Taylor and Featherstone barred, as a matter of law, consideration of the attractive nuisance doe-trine. Accordingly, the plaintiff's claim was dismissed.

STANDARD OF REVIEW

15 We review the trial court's summary judgment ruling for correctness. See Aurora Credit Servs., Inc. v. Liberty W. Dev., Inc., 970 P.2d 1278, 1277 (Utah 1998); Certified Sur. Group, Ltd. v. UT Inc., 960 P.2d 904, 905-06 (Utah 1998). "We consider only whether the trial court correctly applied the law and correctly concluded that no disputed issues of material fact existed." Auro-1a Credit Servs., 970 P.2d at 1277. This is the standard of review we apply because summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c).

ANALYSIS

I. THE ATTRACTIVE NUISANCE DOCTRINE

16 The attractive nuisance doctrine is an exception to the minimal duty owed by a landowner to a trespasser. The doctrine provides, under appropriate cireumstances, for a greater duty owed by landowners to child trespassers than to adult trespassers. In Taylor v. United Homes, Inc., 21 Utah 2d 304, 445 P.2d 140 (1968), and Featherstone v. Berg, 28 Utah 2d 94, 498 P.2d 660 (1972), this court determined that as a matter of law the attractive nuisance doctrine was inapplicable to cases where children were injured on residential construction sites. Under Taylor and Featherstone, the duty a landowner owed a child trespassing onto a residential construction site was the same duty owed to adult trespassers. This departure in Taylor and Featherstone from the general applicability of the attractive nuisance doctrine was made with little analysis and no clear policy statement to support the change. Defendants profess, however, that Taylor and Feather-stone should not be overturned because they are grounded in sound policy. We disagree.

17 The rule of Taylor and Featherstone did not require possessors of land to exercise reasonable care to eliminate a danger or to protect children from a risk when they knew or had reason to know children who trespassed on their property could be injured. We believe the better policy is to hold possessors of land accountable for physical injuries to children caused by an artificial condition if the plaintiff can satisfy the elements of section 339 of the Restatement (Second) of Torts.

T8 Defendants contend that allowing the attractive nuisance doctrine to be applied to residential construction sites would place an unnecessary burden on homebuilders. They argue that builders will have to place fencing around the construction sites. Defendants also insist that this rule will lead to an increase in insurance premium costs for contractors, a cost which would be passed on to *1227consumers, and therefore result in an increase in the price of homes.

T9 Requiring the landowner to take steps to decrease or prevent the risk of injury to children is not an unnecessary burden. Residential construction sites are temporary hazards created by the homebuilder. They are, by definition, in a residential area where children are frequently present. In addition, the burden imposed on the homebuilder of minimizing or eliminating the hazard to children is a temporary burden almost exclusively within the control of the homebuilder.

T 10 By permitting the attractive nuisance doctrine to be applied to residential construction projects, homebuilders and landowners will be encouraged to minimize or eliminate dangers that trespassing children may be exposed to on the site. Given the rapidly changing nature of a residential construction project, the homebuilder is in the best position to recognize hazards and to protect children from the danger. Certainly parents are not absolved from the responsibility of protecting their children from danger. Nevertheless, parents cannot always prevent their children from disobedience and trespass. Children, by definition, lack mature judgment. It is because children trespass that the attractive nuisance doctrine developed as an exception to the otherwise minimal duty owed to trespassers. Moreover, the attractive nuisance doctrine recognizes that children, because of their various ages and levels of maturity, may be incapable of understanding or appreciating dangers or risks on the premises. See, eg., Restatement (Second) Torts § 839(c) (1965); Goll v. Muscara, 211 Pa.Super. 98, 285 A.2d 443, 446 (1967).

11 Whether the attractive nuisance doe-trine is applicable must be analyzed on a case-by-case basis, with the limited exception of irrigation canals.1 The trial court must consider the facts and cireumstances surrounding a particular injury to determine whether the elements of the rule can be satisfied. Indeed, our prior attractive nuisance cases have suggested that the rule should be applied contextually. See, eg., Loveland v. Orem City Corp., 746 P.2d 763, 712 (Utah 1987). Exeept for certain limited conditions, such as irrigation canals, the trend has been to "reject all fixed and arbitrary categories and to require each case to be considered in light of its own peculiar facts." Id.

12 We are not persuaded that residential construction presents conditions that justify placing it in a special category. The trial court should not be prohibited from applying the attractive nuisance doctrine simply because the condition that injures a child is located on a residential construction site. We find no policy reasons or common factual circumstances that bar applicability of the doctrine where a residential construction site is the location of a child's injury. Whether the doctrine is applicable to an injury to a child on a residential construction site should be weighed on a case-by-case basis.

113 For decades, ig cases where the attractive nuisance doctrine was applicable, this state has applied the rule as enunciated in Brown v. Salt Lake City, 33 Utah 222, 93 P. 570 (1908)2 This rule differs from the *1228rule in section 389 of the Second Restatement of Torts in that the Brown rule, among other differences, relies on the concept of "allurement" to trespass. In years past we have been invited to adopt the rule as stated in the Restatement. See, eg., Trujillo v. Brighton-North Point Irrigation Co., 746 P.2d 780, 781 (Utah 1987), Loveland, 746 P.2d at 772. We have previously noted that the Utah rule and the rule in the Restatement differ, but we have never adopted the Restatement. See Loveland, 746 P.2d at 772 (indicating that whether the case "is analyzed under the attractive nuisance doctrine as enunciated in Brown v. Salt Lake City or under the Restatement's rule is not outcome determinative") (footnotes omitted); and Weber v. Springville City, 725 P.2d 1360, 1365 (Utah 1986) (noting that the rule as stated in the Restatement differs from the doctrine followed in Utah and concluding that both rules are limited to artificial conditions).

114 In rejecting Featherstone and Taylor, we also part with the attractive nuisance rule in Brown in favor of Restatement (Second) Torts § 839. Section 339 is a more accurate and complete statement of the attractive nuisance doctrine. Consequently, we adopt Section 339 as the rule in Utah3 Section 389 provides as follows:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

By adopting section $39, we join most of our western neighbors, and a number of other jurisdictions, in what we believe to be the better rule.4

*1230115 In sum, the attractive nuisance doctrine may be applied where a child is injured at a residential construction site. However, we do not mean to say that a house in the process of construction is per se an attractive nuisance. Recovery can only be had when the conditions of the rule are met. See, e.g., Goll v. Muscara, 211 Pa.Super. 93, 235 A.2d 443, 445 (1967). Indeed, the elements set forth in section 839 of the Second Restatement of Torts must be satisfied in order for the rule to be applicable. Home-builders will not become liable automatically for all accidents to children caused by conditions on the site. The conditions of the attractive nuisance doctrine, as described in section 339, impose a reasonable balance between the interests of the homebuilders and the interests of children.

II. LAND ENTRANT CLASSIFICATIONS

116 Finally, we are urged by the plaintiff to abolish the traditional classifications of invitee, licensee, and trespasser. We are not now persuaded to do so and decline to abandon the traditional land entrant classifications.

CONCLUSION

{17 We disavow our holdings in Taylor and Featherstone, and in Brown to the degree inconsistent with this opinion. The doe-trine of attractive nuisance may be applied to cireumstances relating to the injury of a child on a residential construction site, We adopt the description of the attractive nuisance doe-trine contained in section 339 of the Restate ment (Second) of Torts. The orders granting summary judgment are reversed. The case is remanded for further proceedings consistent with this opinion.

18 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURHAM, and Justice DURRANT concur in Justice WILKINS opinion.

BROWN, Chief Justice.

Appellant Gerrit (Dutch) Mostert, personal representative of the estate of Kumi Maria Mostert and on behalf of Dutch and Kay Mostert, filed a complaint alleging negligence and/or willful, wanton and reckless conduct on the part of appellees, Frontier Mall complex owners, CBL & Associates (CBL) and American Multi Cinema, Inc. (AMC), after Kumi Maria Mostert tragically drowned when the vehicle in which she was riding was engulfed by flood waters. Before trial the court granted appellee AMC’s motion to dismiss with prejudice and also granted appellee CBL a summary judgment. On appeal, appellant urges the following issues:

1. “Whether the court incorrectly converted a motion to dismiss filed by one of the defendants [CBL] into a motion for summary judgment?”

2. “Whether liability should be imposed against a theatre owner [AMC] and the owner of the complex in which the the-atre is located [CBL], both of whom had knowledge of flash flood warnings (and a • demand by city officials that citizens stay off the streets to avoid injury from severe flash flooding), for negligently failing to restrain or warn their patrons of the foreseeable, dangerous consequences of their leaving the theatre and mall complex and traveling on city streets which proximately caused the death by drowning of a seven year old girl, and severe injury to her parents?”

The status of appellees is substantially different. Therefore, we will address the following issues.

I

Whether liability should be imposed against a theatre owner [AMC] for negligently failing to restrain or warn patrons of the foreseeable, dangerous consequences of their leaving the theatre.

II

Whether the court incorrectly converted a motion to dismiss filed by CBL into a motion for summary judgment.

III

Whether liability should be imposed against the owner of the complex in which the theatre is located [CBL], for negligently failing to restrain or warn patrons of the foreseeable, dangerous consequences of their leaving the mall complex.

We reverse in part, affirm in part and remand to the trial court for disposition in conformity with this opinion.

On the evening of August 1,1985, Gerrit (Dutch) and Kay Mostert and their daughter, Kumi Maria, were patrons of appellee American’s Frontier Six Theatres (AMC) located in the Frontier Mall complex owned by appellee CBL & Associates (CBL), in Cheyenne, Wyoming.

During the evening, Cheyenne experienced a severe thunderstorm which caused the National Weather Service, civil defense authorities, and local law enforcement officials to issue severe thunderstorm, flash flood and tornado warnings. As the storm became progressively worse, local emergency management officials demanded that citizens stay indoors in a safe area and off the streets to avoid being injured or killed. *1092Appellees were aware of the severity of the August 1, 1985, storm; were aware of the National Weather Service, civil defense, and local law enforcement warnings, as well as the severe flooding occurring in Cheyenne during the movie. However, the Mostert family never became aware of the warnings or severity of the storm because they were inside AMC’s theatre, and they and other patrons attending the movie were not warned.

After the movie, the Mosterts left the theatre through an exit leading directly into the parking lot. They traveled eastward on Del Range Boulevard, and at some point on the road the Mosterts’ vehicle was struck by flood waters. In an attempted escape, Kumi Maria drowned. Thereafter, a complaint was filed, alleging negligence and/or willful, wanton and reckless conduct on the part of both appellees.

Appellee AMC filed a motion to dismiss on the grounds that no duty existed to warn or act for the protection of its patrons, the Mostert family, alleging that the Mosterts failed to state a claim upon which relief could be granted under Rule 12(b)(6), Wyoming Rules of Civil Procedure. The action against AMC was dismissed on July 17, 1986.

Thereafter, CBL moved to dismiss the complaint. The CBL motion contained affidavits of two Frontier Mall employees, and portions of Mr. and Mrs. Mostert’s deposition. Appellant opposed the motion to dismiss, but based on the court’s ruling on AMC’s motion to dismiss, appellant suggested that an order granting the motion be entered to expedite appeal.1 An order granting CBL a summary judgment was entered on August 1, 1986. Appellant appeals the orders as to both appellees. A final amended notice of appeal was filed by appellant on August 5, 1986.

I

Appellant alleges that the trial court erred when it dismissed the complaint against AMC for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), W.R.C.P.

According to our standard of review we will sustain a dismissal of a complaint only if it shows on its face that the plaintiff was not entitled to relief under any set of facts. Johnson v. Aetna Casualty & Surety Co. of Hartford, Wyo., 608 P.2d 1299 (1980). In considering such a motion, the “facts alleged in the complaint are admitted and the allegations must be viewed in the light most favorable to plaintiffs.” Moxley v. Laramie Builders, Inc., Wyo., 600 P.2d 733, 734 (1979). Dismissal is a drastic remedy, and is sparingly granted. Harris v. Grizzle, Wyo., 599 P.2d 580 (1979). In Lewis v. State Board of Control, Wyo., 699 P.2d 822, 824 (1985), we said:

“ * * * In reviewing a dismissal under Rule 12(b)(6) [W.R.C.P.], this court will only sustain such dismissal if the complaint shows on its face that the plaintiff is not entitled to relief. Johnson v. Aetna Casualty and Surety Co. of Hartford, Conn., Wyo., 608 P.2d 1299 (1980), appeal after remand 630 P.2d 514, cert. denied 454 U.S. 1118, 102 S.Ct. 961, 71 L.Ed.2d 105 (1981), reh. denied 455 U.S. 1039, 102 S.Ct. 1743, 72 L.Ed.2d 157 (1982). Therefore, we treat as true all the allegations of contestants’ complaint. Moxley v. Laramie Builders, Inc., Wyo., 600 P.2d 733 (1979).”

Because the trial court dismissed appellant’s complaint on the narrow ruling that AMC had no legal duty, we limit our discussion to duty and make only fleeting reference to other ingredients of negligence such as violation of duty, proximate cause and injury.

Historically, landowners owed no duty to warn or take action to prevent harm to *1093invitees where the risks involved were outside their premises. However, the imprecise term “duty” has no simple definition that is applicable in all circumstances. One commentator has said:

“ * * * It is therefore not surprising to find that the problem of duty is as broad as the whole law of negligence, and that no universal test for it ever has been formulated. It is a shorthand statement of a conclusion, rather than an aid to analysis in itself. Yet it is embedded far too firmly in our law to be discarded, and no satisfactory substitute for it, by which the defendant’s responsibility may be limited, has been devised. But it should be recognized that ‘duty’ * * * is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.

(Í * * *

“ * * * [T]he courts have merely ‘reacted to the situation in the way in which the great mass of mankind customarily react,’ and that as our ideas of human relations change the law as to duties changes with them. Various factors undoubtedly have been given conscious or unconscious weight, including convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and many others. Changing social conditions lead constantly to the recognition of new duties. No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.” Prosser & Keaton on Torts, § 53, pp. 357-359 (5th ed. 1984).

“ * * * The judge’s function in a duty determination involves complex considerations of legal and social policies which will directly affect the essential determination of the limits to government protection. Consequently, * * * the imposition and scope of a legal duty is dependent not only on the factor of foreseeability ([Cunis v. Brennan ] 56 Ill.2d 372, 375, 308 N.E.2d 617) but involves other considerations, including the magnitude of the risk involved in defendant’s conduct, the burden of requiring defendant to guard against that risk, and the consequences of placing that burden upon the defendant. [Citations.]” Nelson by Tatum v. Commonwealth Edison Company, 124 Ill.App.3d 655, 662, 80 Ill.Dec. 401, 465 N.E.2d 513, 519 (1984).

In Gates v. Richardson, Wyo., 719 P.2d 193,196 (1986), this court quoted Prosser & Keeton, Torts § 54 at 357-358 (1984):

“ * * * Duty is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which leads the law to say that the plaintiff is entitled to protection.”

It is stated in Collins v. Memorial Hospital of Sheridan County, Wyo., 521 P.2d 1339, 1341 (1974),

“ * * * [t]he writer freely concedes the importance, necessity, and strength of the doctrine of stare decisis * * * but is unable to

utilize this doctrine as a justification for the continuance of an unfair and improper rule which operates to the detriment of those who may suffer tortious injury * * * if

And, in Lewis v. Wolf, 122 Ariz.App. 567, 596 P.2d 705, 706 (1979), that

“ * * * [t]he main characteristic of the common law is its dynamism. It does not remain static. The common law is not a thing of chiseled marble to be left unchanged for centuries.”

The court in Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105, 110 (1962), said:

“ * * * Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose. If this were not so, we must succumb to a rule that a judge should let others ‘long dead and unaware of the problems of the age in which he lives, do his thinking for *1094him.’ Mr. Justice Douglas, ‘Stare Deci-sis’ 49 Columbia Law Review 735, 736. * * * yy

We do not hesitate to depart from a historic or traditional rule in order to meet changing needs or correct and clarify inappropriate application of a traditional rule. McClellan v. Tottenhoff, Wyo., 666 P.2d 408 (1983).

Based upon the foregoing and upon balancing a number of factors, we find it appropriate to depart from the traditional rule that a landowner has no duty to warn an invitee of risks off the landowner’s premises.

In Yalowizer v. Husky Oil Company, Wyo., 629 P.2d 465, 467 (1981), we quoted Restatement (Second) Torts § 331 with approval:

“ ‘(1) An invitee is either a public invitee or a business visitor. * * * (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with busi- • ness dealings with the possessor of the land.’ ”

AMC was undeniably in the business of showing motion pictures to the public since it advertised such showings and the Mos-terts paid admission for such an opportunity. Therefore, the Mosterts are classified as business visitor-invitees.

In determining AMC’s duty to appellants, as business visitor-invitees, we note the case of Gates v. Richardson, supra, quoting Tarasoff v. Regents of University of California, 17 Cal.3d 425,131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166 (1976), stating that a court must balance numerous factors when determining the existence of duty in each particular case. Those factors are as follows:

“ * * * (1) [t]he forseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant’s conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved. Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 342, 83 A.L.R.3d 1166 (1976).” Gates v. Richardson, supra, at p. 196.

For the purposes of determining the propriety of dismissal of appellant’s action, we assume the facts alleged in the complaint to be true. We now relate these circumstances to the eight factors set out in Gates v. Richardson, 'sagra.

1. The foreseeability factor — AMC was aware of a severe thunderstorm and the presence of tornadoes and flash flooding outside the mall and in the vicinity. It was also aware that the storm became progressively worse and that city officials had demanded that citizens stay off the streets to avoid injury.

2. The closeness factor — the injury suffered by appellants was not remote. Kumi Marie Mostert drowned only minutes after AMC’s dereliction in not informing theatre patrons.

3. The degree of certainty factor (that plaintiff had suffered injury) — the injury suffered by the Mostert family was the greatest possible injury — the death of Kumi Marie.

4. The moral blame factor — the Mostert family was a business invitee of AMC and unaware of the storm. AMC was aware of the storm, flooding and attendant dangers. AMC was aware that city officials had demanded that citizens stay off the streets to avoid injury. Despite this superior knowledge, AMC did nothing to warn its patrons.

5. The policy of preventing future harm factor — a rule that business managers have a duty to pass on knowledge to invitees regarding off-premises dangers may reduce injury in the future. If businesses understand they have this duty, they would likely tell patrons what they know about off-premises risks.

6. The burden on defendant factor — the burden of passing AMC’s superior knowledge on to patrons regarding the flood *1095appears to be minimal. Theatres find a simple way to pass on to patrons all kinds of information. While we cannot assess the financial costs to AMC, we do not foresee them to be overly excessive. Moreover, the chance of a natural disaster is rare.

7. The consequences to community and courts factor — the consequences of a “duty rule” on the community and court system is a neutral factor.

8. The insurance factor — we do not know the cost of insurance or its availability for the risk involved here. Even if insurance were not available, that single factor should not be dispositive of this case.

Although we have not found a case directly on point, there are some cases that address off-premises risks.

In Garrett v. Grant School District No. 124, 139 Ill.App.3d 569, 93 Ill.Dec. 874, 487 N.E.2d 699 (1985), the court said that

“ * * * a particular standard of care is imposed on those involved in the four ‘special relationships’ which are described in section 314A of the Restatement. (Restatement (Second) of Torts § 314A (1965). The four special relationships which give rise to a duty to protect another from harm are: (1) carrier-passenger, (2) innkeeper-guest, (3) business invitor-invitee, and (4) voluntary custodian protectee under certain limited circumstances.”2 (Emphasis added.)

The case of Tarasoff v. Regents of University of California, supra, cited with approval by this court in Gates v. Richardson, supra, was concerned with failure, to warn of an off-premises risk. There, a therapist was told by his patient, during a treatment session on the premises of Co-well Memorial Hospital, that he intended to kill Tatiana Tarasoff. Although the therapist and the supervisors predicted the patient presented a serious danger of violence to Tatiana, no warnings were delivered. Ultimately, the patient went to the young woman’s residence and killed her.

The Supreme Court of California held that although there was no special relationship between Tatiana and the therapist, there was a relationship between the patient and the defendant therapist. Based on that relationship, the court held that the therapist owed a duty to warn the endangered party (Tatiana) or those who could have been reasonably expected to notify her of the danger.

In Piedalue v. Clinton Elementary School District No. 32, Mont., 692 P.2d 20, 22-23 (1984), the court said:

“ * * * [T]he true ground of liability of a business proprietor to an invitee for injuries sustained on the premises is the superior knowledge of the business proprietor over that of the business invitee of the dangerous condition and the proprietor’s failure to give warning of the risk.

« * * *

“In the application of that rule, it has been held that the duty of an occupier of premises beyond the premises to the entrances into and exits from such premises and it is his duty to warn his customers of hidden hazards upon, around or beyond his premises, if he would reasonably expect use of an adjacent area by his customer in connection with the invitation. To incur liability to a business invitee, it is not necessary that the owner or occupier own or control ingress or egress exits or that the owner or occupier create the hazard, if the hazard created a foreseeable risk of harm to business invitees and the owner or occupier knew of its presence and should have taken reasonable precautions to eliminate *1096it by such measures as posting warnings * * * tt 3

A Kansas case says:

“ * * * The possessor of premises on which an invitee enters owes a higher degree of care, that of reasonable or ordinary care for the invitee’s safety. This duty is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated. [Citations.]” Gerchberg v. Loney, 223 Kan. 446, 449, 576 P.2d 593, 596 (1978).

Allegations taken from appellant's complaint establish that AMC, through its duly appointed officers and employees, was aware that flooding was occurring outside the mall and that the storm had become progressively worse, reaching a point where city officials demanded that citizens stay off the streets to avoid injury or death by severe flash flooding. This occurred during the 7:45 p.m. movie on August 1, 1985.

Balancing the factors set out in Gates v. Richardson, supra, we do not detect a public policy against imposing a duty on AMC to advise patrons of off-premises dangers. The risks to which the Mostert family were exposed far outweighed the minimal burden placed on AMC to reveal its knowledge to its patrons.

We conclude that appellee AMC owed the Mostert family an affirmative duty to exercise reasonable or ordinary care for their safety which includes an obligation to advise them of off-premises danger that might reasonably be foreseeable. We are not suggesting by our determination that AMC had a duty to restrain its patrons or even a duty to advise them what to do. The duty as we see it is only to reveal what AMC knew to its customers.4

II

Appellant claims that he did not receive adequate notice of conversion of CBL’s motion to dismiss into a motion for summary judgment; that he was unfairly or inappropriately surprised, and that if he had known of such conversion no request to expedite the appeal would have been made. According to appellant, the court had the discretion to consider the motion only under standards set out in Rule 12(b)(6), W.R.C.P., and abused its discretion when it converted CBL’s motion to dismiss into a motion for summary judgment. We do not agree.

Rule 12(b), W.R.C.P., states in applicable part:

“* * * [T]he following defenses may at the option of the pleader be made by motion: * * * (6) failure to state a claim upon which relief can be granted * * *. No defense or objection is waived by being joined with one * * * (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” (Emphasis added).

Although CBL’s motion was denominated as a “Motion to Dismiss,” it was supported by affidavits and depositions filed concurrently with the motion. The motion also stated “and additionally there is no genuine question of material fact as to this defendant.” Therefore, it is undisputable that matters outside the pleadings were not only contemplated, but were in fact presented to the trial court for considera*1097tion. As stated in Torrey v. Twiford, Wyo., 713 P.2d 1160, 1162-1163 (1986):

“If a trial judge actually considers matters other than the pleadings on a motion to dismiss pursuant to Rule 12(b)(6), his decision is converted to a summary judgment. See discussion in Newberg v. American Dryer Corporation, 195 F.Supp. 345 (E.D.Pa.1961). The conversion may be automatic, as when the judge considers affidavits in connection with a Rule 12(b)(6) motion, Greaser v. Williams, Wyo., 703 P.2d 327 (1985); International Longshoremen’s and Warehousemen’s Union v. Kuntz, 334 F.2d 165 (9th Cir.1964), or the conversion may be accomplished by motion of one of the parties. * * *”

We hold that the conversion from Rule 12(b)(6) to summary judgment was proper. Documents which could have been filed pursuant to a motion for summary judgment, but were filed with the motion to dismiss, indicated that the moving party expected to have the motion decided pursuant to Rule 56, W.R.C.P. Therefore, there was no error in converting the motion to dismiss into a motion for summary judgment.

Furthermore, it has been stated:

“ * 1 * When a party files an affidavit which a judge considers under a Rule 12(b)(6) motion, this court will treat the motion as a motion for summary judgment subject to the time requirements of Rule 56, whether or not the record demonstrates that the parties had other notice of the conversion, unless the record otherwise demonstrates unfair or inappropriate surprise to either party but normally for the nonmoving party. * * * ” (Emphasis added.) Torrey v. Twiford, supra, at 1134.

In this case appellant was afforded proper notice and therefore not unfairly or inappropriately surprised by the trial court’s action. He received the ten day notice requirement in which to respond to appel-lee CBL’s motion. Rule 56, W.R.C.P.; and Rule 302, Uniform Rules for the District Courts of the State of Wyoming.

While the order did not specifically say that an automatic conversion had occurred, the order was sufficient to apprise appellant of the impending circumstances. In spite of the fact that no notice is necessary in instances of automatic conversion from Rule 12(b)(6) to summary judgment, the trial court specifically ordered that appellant have ten days in which to respond. The court did not actually enter the dismissal order until seven days later. This is “reasonable” notice, and appellant had the opportunity to present all material pertinent to his defense of the motion.

Ill

Having determined that summary judgment was the proper vehicle for consideration of the case against CBL, we note that our oft-cited standard of review on appeal from summary judgment is governed by the fundamental rule that summary judgment properly issues only upon the dual finding that no genuine question of material fact exists and that the prevailing party is entitled to judgment as a matter of law. Rompf v. John Q. Hammons Hotels, Inc., Wyo., 685 P.2d 25 (1984); and Matter of Estate of Brosius, Wyo., 683 P.2d 663 (1984). According to Rule 56(c), W.R.C.P., a summary judgment

“* * * shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law. # # * ft

The purpose of summary judgment is to eliminate formal trials where only questions of law are involved, Johnson v. Soulis, Wyo., 542 P.2d 867 (1975), and to pierce the formal allegations and reach the merits of a controversy where no material issue of fact is present. Siebert v. Fowler, Wyo., 637 P.2d 255 (1981). When a question arises as to whether or not genuine issue of material fact exists, as in this case, we follow our oft quoted standard:

“When reviewing a summary judgment on appeal, we review the judgment in the *1098same light as the district court, using the same information. Randolph v. Gilpatrick Construction Company, Inc., Wyo., 702 P.2d 142 (1985); and Lane Company v. Busch Development, Inc., Wyo., 662 P.2d 419 (1983). A party moving for summary judgment has the burden of proving the nonexistence of a genuine issue of material fact. Dudley v. East Ridge Development Company, Wyo., 694 P.2d 113 (1985). Material fact has been defined as one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Samuel Mares Post No. 8, American Legion, Department of Wyoming v. Board of County Commissioners of the County of Converse, Wyo., 697 P.2d 1040 (1985). Upon examination of a summary judgment, we view the record from the vantage point most favorable to the party opposing the motion, giving him all favorable inferences which may be drawn from the facts. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980).” England v. Simmons, Wyo., 728 P.2d 1137, 1141 (1986).

Furthermore, in Stundon v. Sterling, Wyo., 736 P.2d 317, 318 (1987), we noted that

“ * * * [t]he initial burden is on the mov-ant to show that there is no genuine issue of material fact. Fiedler v. Steger, Wyo., 713 P.2d 773 (1986). Once that showing is made, it is incumbent upon the party opposing the motion to come forward with specific facts to show that there is a genuine issue of material fact. [Citations.] Conclusory affidavits are insufficient and specific facts must be shown. Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334 (1983).”

In this case CBL showed from affidavits and depositions submitted to the court in connection with its motion, that its status was significantly different than that of AMC. CBL was not the possessor of the theatre patronized by the Mosterts; and further, the Mosterts were on the premises exclusively controlled by AMC. CBL had no right or duty as landlord to enter the theatre and warn AMC’s patrons about weather conditions. Yet, an employee of CBL reported the thunderstorms to each tenant, including AMC. Additionally, the Mosterts left the theatre through a doorway controlled by AMC directly into the parking lot. These materials are sufficient to meet the movant’s burden and to make a prima facie showing that there is no genuine issue of material fact.

Appellant did not supply any evidence to oppose the motion of appellee CBL, and therefore did not meet his burden in showing that there was a genuine issue of material fact. We find that no genuine questions of material fact existed, and will now determine whether appellee CBL should be entitled to judgment as a matter of law.

The duty of care owed by an owner to an entrant upon his land is dependent upon the status of the person entering the premises. See Yalowizer v. Husky Oil Co., supra; and Maher v. City of Casper, Wyo., 219 P.2d 125 (1950). Again, according to Restatement (Second) Torts § 314A (1965), four “special relationships” give rise to a duty to protect another from harm: (1) carrier-passenger; (2) innkeeper-guest; (3) voluntary custodian protectee under certain limited circumstances; and (4) business in-vitor-invitee, as is the case here.

The general rule is that the owner or occupier of real property owes a duty to business visitor-invitees to maintain the premises in a reasonably safe condition. Loney v. Laramie Auto Co., Wyo., 255 P. 350 (1927). As stated in Dudley v. Montgomery Ward & Co., Wyo., 192 P.2d 617, 622 (1948), quoting from J.C. Penney Co. v. Robison, 128 Ohio St. 626, 193 N.E. 401, 403, 100 A.L.R. 705 (1934):

“ ‘The rule is succinctly stated in Cooley on Torts, Yol. 2, p. 1259 (3d Ed.) viz.: “ * * * When he [the owner or lessor] expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.”' ”

*1099However, when real property is leased to a tenant, the duty to maintain shifts to the lessee.5 In these instances, the lessor is under a somewhat lesser duty, a duty to act as a reasonable person in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden on the respective parties to avoid risk. Hall v. Quivira Square Development Co., Inc., 9 Kan.App.2d 243, 675 P.2d 931 (1984). Generally, liability is suspended as soon as a landlord surrenders possession and control of the premises in good condition to the lessee. 49 Am.Jur.2d Landlord and Tenant § 908, p. 888 (1970).

Given the circumstances in this case, we find no breach of duty by CBL to inform or warn the Mostert family of the off-premises dangers. Appellee CBL’s conduct fell well within the community standards of reasonable conduct. Assuming that injury because of the storm and flood was foreseeable, we do not find that appel-lee CBL possessed necessary control of the premises or had an opportunity to warn the Mosterts. Here appellee AMC, as a tenant of CBL had exclusive possession of the property and retained complete control of the theatres. Finally, because of practical considerations, we find that if this court were to impose liability on a landlord for injuries sustained off the landlord’s property, as in this case, it would be difficult to place any practical limitation upon such liability. Extending liability under the circumstances here upon a landlord stretches the legal theory of duty too far. A landlord cannot be expected to be an absolute insurer of the safety of each and every person who enters upon property which is exclusively in the possession and control of his tenant.

We are satisfied the trial court did not err in granting summary judgment to ap-pellee CBL. “ ‘[T]he determination that a duty of care exists is an essential precondition to liability founded on negligence. (Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 443, 165 Cal.Rptr. 741.) * * * ’ ” Vandermost v. Alpha Beta Company, 164 Cal.App.3d 771, 210 Cal.Rptr. 613, 615 (Cal.App. 2 Dist.1985). As to CBL, we find no breach of duty.

In conclusion, we do not believe that our determination with respect to appellees AMC and CBL is inconsistent. We hold that AMC has a duty because of its special relationship to the Mostert family as business invitees, and the superior knowledge it possessed of the off-premises risks. These findings are coupled with the minimal inconvenience on the part of AMC to share any superior knowledge it might have had with the Mosterts.

Conversely, CBL did not have a special relationship with the Mosterts, nor did it have an opportunity to warn the Mosterts of the flood without improperly intruding into the AMC theater, which was exclusively in the possession of AMC. Any duty that CBL may have had was satisfied when it advised its tenants of the thunderstorm and flooding.

Accordingly, we reverse and remand to the trial court as to appellee AMC and affirm as to appellee CBL.

THOMAS, J., filed an opinion, concurring in part and dissenting in part.

CARDINE, J., filed an opinion, concurring in part and dissenting in part, in which THOMAS, J., joins.

URBIGKIT, J., filed a specially concurring opinion.

THOMAS, Justice,

concurring and dissenting.

I agree with the majority in affirming the summary judgment granted in favor of CBL & Associates. I cannot agree with the disposition of the claim against American Multi Cinema, Inc., and I would affirm the trial court in its ruling on the motion to dismiss. There is no duty owed to business invitees such as that espoused by the majority.

*1100The rule articulated in the majority opinion may have a salutary effect upon the vernacular in the State of Wyoming. People sometimes complain of what now has become a common phrase of parting “Have a nice day.” From now on, owners of businesses in Wyoming will be instructing their employees to say to each customer who leaves the premises “Now, let’s be careful out there.” (I acknowledge the paraphrase from a popular television serial of recent years.)

It is disappointing that the majority is not present to the antithesis found in the Court’s opinion. The Court says with respect to CBL & Associates “ * * * [W]e find that if this court were to impose liability on a landlord for injuries sustained off of the landlord’s property, as in this case, it would be difficult to place any practical limitation upon such liability. Extending liability under the circumstances here upon a landlord stretches the legal theory of duty too far.” Yet the Court espouses a rule that imposes upon American Multi Cinema, Inc. a duty to warn its patrons of dangerous conditions off its premises.

Even the analysis of the leading case relied upon by the majority opinion is unacceptable. In discussing Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166 (1976), the majority says that it “was concerned with failure to warn of an off-premises risk.” My reading of that case demonstrates that it had nothing to do with premises liability or business invitees. It simply involved the application of a special duty with respect to the knowledge acquired by a therapist of the dangerous propensities of the patient. The circumstances of that case are as far removed from this case as Wamsutter is from New York City.

In addressing the duty owed to business visitor-invitees, the majority accurately quotes, from Dudley v. Montgomery Ward & Company, Wyo., 192 P.2d 617, 622 (1948), the concept that when one invites others to come upon his business premises, he has a duty to be reasonably sure that he is not inviting them into danger. The majority opinion then as to American Multi Cinema, Inc. espouses a rule that, with respect to business invitees, the proprietor of a business must warn them of danger which is remote from the place of business and over which the proprietor has no control. This quantum leap very much resembles the effort of Evil Knieval to jump the Snake River Gorge on his motorcycle. His effort failed, but he was saved by his parachute. As I suggest below, perhaps our astute trial judges will provide the parachute for our court in instances such as this.

In Galicich v. Oregon Short Line Railroad Company, 54 Wyo. 123, 87 P.2d 27 (1939), this court cited with approval Restatement of the Law Torts § 314 (1934). That legal concept now is found in Restatement (Second) Torts § 314 (1965) hereinafter cited as Restatement 2d:

“The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”

In Restatement 2d § 314, Comment d, it is said:

“The rule stated in this Section applies only where the peril in which the actor knows that the other is placed is not due to any active force which is under the actor’s control. If a force is within the actor’s control, his failure to control it is treated as though he were actively directing it and not as a breach of duty to take affirmative steps to prevent its continuance (see § 302, Comments a and c).”

I perceive that this is the rule which is precisely applicable to these circumstances, and consequently, the reliance upon the authorities dealing with business premises or the owner or occupier of land is of no efficacy in resolving this problem.

The court should recognize that it is adopting this philosophy found in the latter part of the following language from Restatement 2d § 314, Comment c:

“The result of the rule has been a series of older decisions to the effect that one human being, seeing a fellow man in dire *1101peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other drown. Such decisions have been condemned by legal writers as revolting to any moral sense, but thus far they remain the law. It appears inevitable that, sooner or later, such extreme cases of morally outrageous and indefensible conduct will arise that there will be further inroads upon the older rule.”

If this court is committed to structuring a duty because of moral outrage, the court should say exactly that. Perhaps it is not said because moral outrage is not a particularly sound premise upon which to adjust relationships between people. One of the manifestations of the genius of our legal system is its essential pragmatism. As this case demonstrates, rules which are developed out of moral outrage may not be essentially pragmatic.

The usual basis for the imposition of a duty is that performance of that duty will avoid harm to others. It makes little sense to structure a duty which cannot be a legal cause of harm to another. In Buckley v. Bell, Wyo., 703 P.2d 1089 (1985), the historical concept of intervening cause and the concept as articulated in Restatement 2d is discussed in detail. The facts, as articulated in the plaintiffs complaint, in this instance demonstrate that the doctrine of intervening cause should foreclose any recovery by the appellant. The trial court, in all likelihood, will have to direct a verdict for American Multi Cinema, Inc. An application of § 442, Restatement 2d, demonstrates clearly that the natural forces coupled with the conduct of traveling in such conditions result in superseding cause as a matter of law. The intervention of those forces did bring about harm different in kind than what otherwise might have resulted; clearly the operation of those forces and the consequences thereof appear after the event to be extraordinary rather than normal; the intervening forces did operate independently of any situation created by some act of negligence on the part of American Multi Cinema, Inc.; in part, they were attributable to a third person’s act or failure to act and would be wrongful, subjecting the third person to liability; and a comparison of degree of culpability reaches the same result. When the true cause of this unfortunate loss is considered in the context of Cox v. Vernieuw, Wyo., 604 P.2d 1353 (1980), there is additional reason to conclude that no negligence was committed by American Multi Cinema, Inc.

I am so suspect of the wisdom of inducing this appellant to believe that there may be a prospect for recovery because of the failure to warn which the majority structures as a duty in this case, that perhaps I have become hypercritical. I do not perceive any possibility of recovery, and structuring a duty simply to permit the case to go forward is extremely unfortunate. The only prospect of assistance to the appellant in this combination of circumstances is that in some way the defendant will be intimidated into settlement or may conclude that the costs of defending exceed the value for which the case may be settled. I do not think that represents progress in jurisprudence in the State of Wyoming. Consequently, even though moral outrage may be present, I would not depart from the well-established rule that the proprietor of a business owes to his invitees only the duty of protecting them from dangerous conditions on the premises. I cannot agree that there is a duty to warn about dangerous conditions which exist at places remote from and off the premises, particularly when those dangerous conditions arise out of natural forces.

The legislature may wish to correct this judicial legislation by adopting a measure similar to the statute which limits liability for voluntary assistance in certain instances. Section 1-1-120, W.S.1977 (Cum.Supp. 1987).

CARDINE, Justice,

concurring and dissenting, with whom THOMAS, Justice, joins.

On August 1, 1985, seven-year-old Kumi Mostert drowned when the vehicle in which she was a passenger stalled and was swept into the main flood channel of Dry Creek in Cheyenne, Wyoming. The trial court *1102granted appellee American Multi Cinema, Inc.’s (AMC) motion to dismiss with prejudice and granted appellee Frontier Mall complex owners’, CBL & Associates (CBL), motion for summary judgment. Appellant Gerrit Mostert appeals.

The district court, in its decision letter dismissing this case, stated:

“Plaintiffs have been unable * * * to cite any authority for the proposition that an owner or occupier of land has a legal duty to business invitees to warn them, prior to their leaving the premises, of dangers that may exist at some point remote from the premises between it and the patrons’ destination even if such dangers are known to the owner/occupier and unknown to the business invitee.”

I concur in the decision of the court affirming summary judgment as to CBL but dissent with respect to reversal of the dismissal of AMC.

FACTS

On the evening of August 1, 1985, the Mosterts and their seven-year-old daughter, Kumi, were patrons of American Frontier Six Theatres in the Frontier Mall complex in Cheyenne. While the Mosterts were viewing the 7:45 p.m. showing of “European Vacation,” radio announcements made by the national weather service warned of a severe thunderstorm and flash flooding. Civil defense and law enforcement officials requested that all citizens remain indoors. Cheryl Farris, a CBL employee, did not know of the flooding of Dry Creek. However, she had heard of adverse weather conditions and communicated that information to AMC and other mall tenants. The theatre owners did not advise their patrons of the weather warnings. When the movie ended at approximately 9:45 p.m., the Mosterts exited into the parking lot and began to drive home. If it was a dark night, the mall area was well lighted; and if this was to be a 100 year flood, no one knew it at that time. Perhaps only those driving around in the deep water could have predicted the storm might cause a 100 year flood. Mrs. Mostert, in her deposition, stated:

“Q. When you moved onto Del Range, you weren’t concerned that the six inches of water on the surface was dangerous. Is that your testimony?

“A. Yes.

“Q. Okay.

“A. Besides, there was one hundred other cars there.

“Q. Now, you kept driving and the water got deeper?

“A. Right.”

Their Ford Ranger pickup continued on about two miles from the mall when it stalled as Mr. Mostert drove into the Dry Creek floodwaters. As the truck was carried downstream, Mr. Mostert attempted to carry Kumi to safety, but was unable to do so and she drowned. Appellant alleges that appellee AMC knew of the severity of the storm, but negligently failed to warn its patrons and failed to prevent the patrons from leaving the theatre.

The majority, in its opinion, candidly admits that:

“Historically, landowners owed no duty to warn or take action to prevent harm to invitees where the risks involved were outside their premises.”

This court, apparently adopting a philosophy that holds that for every misfortune that befalls man there must be a third party who should pay, undertakes to overrule all of the common law and to legislate what it thinks best for society. That neat bit of legislating is accomplished by simply stating that where no duty has ever existed before, “we find it appropriate to depart from the traditional rule that a landowner has no duty to warn an invitee of risks off the landowner’s premises.”

The court suggests support from cases cited as precedent that are not precedent at all, ignoring established law to find a duty where none exists. We have clearly stated the law of landowner liability for condition of premises to be that a business owner

“owes a duty to those whom he has expressly or impliedly invited to come on his premises to be reasonably sure that he is not inviting them into danger, and *1103he must exercise ordinary care and prudence to render his premises reasonably safe to visit. * * * The store owner must use ordinary care to keep the premises in a safe condition, and he is charged with an affirmative duty to protect visitors against dangers known to him and against dangers which he might discover by use of reasonable care.” Buttrey Food Stores Division v. Coulson, Wyo., 620 P.2d 549, 552, 20 A.L.R.4th 419 (1980).

The store owner’s duty to an invitee does not extend to dangerous conditions outside his premises. Johnson v. Hawkins, Wyo., 622 P.2d 941 (1981).

The unanimous rule is typified by Stedman v. Spiros, 23 Ill.App.2d 69,161 N.E.2d 590 (1959), a case in which a guest at a lodge left the lodge property and walked onto a state park where there was a cliff offering a spectacular view of the surrounding countryside. The guest fell off the precipice, dropping more than fifty feet, and sued the lodge for failing to warn of the danger. Id. 161 N.E.2d at 593. After pointing out that an innkeeper has the same duty to his guests as any other businessman to his invitees, and also noting that the lodge owner had no control over the state park, the Illinois court granted judgment to the lodge owner as a matter of law, stating:

“The issue presented here is how far beyond the premises over which the defendant had possession and control does defendant’s duty of due care extend to provide a reasonably safe means of ingress and egress for plaintiff. Clearly, if the brink of the precipice were a step or two from the defendant’s door, or from the stone patio to which defendant’s door opened, we would have a different case than is now presented to us. * * *

“Defendant could not, of course, be expected to warn against the innumerable hidden dangers in a seven hundred acre park, nor could he be expected to light those same potentially dangerous places during the darkness or when visibility is restricted.” Id. at 597-598. See also Brunsfeld v. Mineola Hotel and Restaurant, Inc., 119 Ill.App.3d 337, 74 Ill.Dec. 859, 456 N.E.2d 361 (1983) and cases cited therein.

A few courts have held that the duty of a possessor of business premises may extend to an area off the premises which is used by the possessor’s invitees for immediate ingress and egress to the premises. E.g., Banks v. Hyatt Corp., 722 F.2d 214, reh. denied 731 F.2d 888 (5th Cir.1984) (entrance way to hotel four feet from door); Ollar v. Spakes, 269 Ark. 488, 601 S.W.2d 868 (1980) (dangerous property must be adjacent); Piedalue v. Clinton Elementary School Dist. No. 32, Mont., 692 P.2d 20 (1984) (ditch next to driveway); Annot., 39 A.L.R.3d 579 (1971). But not a single jurisdiction has required a business possessor to warn his invitees of known dangers beyond the area of immediate ingress or egress. Orthmann v. Apple River Campground, Inc., 151 F.2d 909 (7th Cir.1985); Stedman v. Spiros, supra, 161 N.E.2d at 596; Brunsfeld v. Mineola Hotel and Restaurant, Inc., supra, 456 N.E.2d at 366. See also Prosser & Keeton on Torts § 61 at 424 (1985), and Restatement (Second) Torts § 314A comment c and § 332 comment 1 (1965).

The court has not cited a single case in which a possessor of land has been held liable for failing to warn his invitees of dangerous conditions on land not under the possessor’s control. Instead, the cases cited in the majority opinion involve the conduct of dangerous persons, who, after leaving the premises, cause harm to others. These persons represent the instrument of danger and the cause of the harm. Division of Corrections, Dept. of Health & Social Services v. Neakok, Alaska, 721 P.2d 1121 (1986) (parolee); Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166, (1976); Petersen v. State, 100 Wash.2d 421, 671 P.2d 230 (1983) (mental patient); McClellan v. Tottenhoff, Wyo., 666 P.2d 408 (1983) (minor liquor purchaser). Here, the instrument of danger was a condition of premises two miles from the theatre. The cases have nothing to do with premises liability.

*1104The court, thus, relying upon cases having nothing to do with premises liability, seeks to buttress the opinion by incorrectly considering as support, again from a case having nothing to do with premises liability, key policy factors listed as:

“(1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant’s conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved.” Gates v. Richardson, Wyo., 719 P.2d 193, 196 (1986).

Although I seriously question the propriety of considering these policy factors in finding a duty in this case, a review of those factors proves interesting and suggests a result different from that reached by the majority.

1. Foreseeability of harm to the plaintiff. The theatre was not warned of flooding. Would it have foreseen that a patron would drive onto Del Range Boulevard, running six inches of water and crowded with hundreds of cars, and drive two miles down the road into deepening water and finally into a flooded creek bed and this accident result? I think not.

2. The closeness of the connection between the defendants’ conduct and the injury suffered. I would conclude that the place of this accident being more than two miles from the theatre, the defendants’ conduct was remote from the injury suffered.

3. The degree of certainty that plaintiffs suffered injury is not questioned.

4. The moral blame attached to defendants’ conduct. It cannot be claimed that the theatre owners deliberately withheld information to cause harm to plaintiffs. Severe weather warnings, thunderstorms, hail, tornadoes, blizzards and ice are commonplace in Wyoming. It is doubtful that a warning would have made any difference, especially in light of the fact that hundreds of cars were travelling on Del Range Boulevard and all over Cheyenne.

5. The fifth consideration is a policy of preventing future harm. In light of what has been said in paragraph four, it is doubtful that this policy would be affected.

6. The extent of the burden upon the defendants. The extension of liability by the decision of this court is mind boggling. In the future, it will apply to every business in the mall, every business in Cheyenne, every person having any business relationship with another. It will subject persons to potential liability for injuries from accidents that occur two miles, ten miles, perhaps hundreds of miles from the business because of blizzard conditions, road closures, icing, heavy rains, tornadoes, even perhaps construction work of which the business may be aware. The business proprietor will have no control over the premises where the accident occurs, no ability or right to remedy any defect, and no control over the actions or risks undertaken by his customer.

7. The consequences to the community and the court system. It has long been a practice to join as a party defendant every person with any potential liability for injuries suffered in an accident. Thus, in an auto accident, it has been common for suit to be filed against not only the drivers of the cars involved but the city for posting of warning or traffic signs, the state of Wyoming for construction of its highways, the manufacturer of the car for defective design, and manufacturers of component parts of the cars. Now I expect we will see mall owners and businesses also joined as parties for failure to warn in all accidents in which weather is in any way involved.

8. The availability, cost, and prevalence of insurance for the risk involved. It is doubtful whether insurance exists for this kind of liability, but if it does exist, it will be exceedingly expensive. When the the-atre must pay expensive insurance premiums to cover these claims, the money must come from somewhere. The only place it can come from is theatre tickets. We have *1105seen the cost of ski lift tickets ascend from $12.00 to $35.00 in just a few seasons. It is not unreasonable to believe that the cost of theatre tickets might double or triple if theatre owners might be held liable for accidents that result from rain storms or blizzard conditions ten, twenty, or thirty miles away from the theatre after the patrons have left to return home.

Balancing all of the above factors, it seems that the journey upon which this court now embarks in expanding liability is not justified by the review of factors to determine effect and not in the best interest of society.

The real issue in this case is whether the Wyoming Supreme Court should overrule its own precedent and the common law and create a duty unknown in any other American jurisdiction. The trial court thought we should not. I agree.

I would affirm.

URBIGKIT, Justice,

specially concurring.

The night was dark, the rains came; some say a one-in-a-hundred-years flood it was to have been. Within the theater, exposed only to make believe of the silver flicks, the audience was unwarned of the anger of nature outside displayed.

Who knew? Shopping center management knew, and told shop owners. Theater management knew, but perforce told not one among its paying patrons who otherwise were not to be forewarned. Then as the film expired in make believe, by the side door with reality they were extruded as an audience endangered by ignorance contributed to by missing information designedly withheld.

I specially concur, to recognize this case as what it is: a dismissal on the pleading presented here for appellate review, as to be clearly definable in well-established rules of duty and negligence, and not adequately discernible in moralistic characterization, whether to be applied pro or con. The subject should be tailored in common sense and duty — whether a theater owner should tell his patrons that a one-in-a-hundred-years flood had occurred outside before they exited into a dark parking lot for travel upon roadways, unknowing of their serious risk for the homebound journey.

One would think that with warning afforded, opportunity to at least listen to the car radio, or telephone to their homes, the life that was lost in a flooded road nearby might have been saved. I see this as a subject for jury review. The issue was not off-premises liability for the theater. I perceive a duty of host to business invitee to communicate his knowledge of facts unknown to the patron of unusual and unexpected exit-time danger. The home of knowledge and needed communication was in the theater, and it was there that the tort occurred, if it did. It simply does not matter whether the clear and obvious danger inculcated in this duty to advise arises from a gunfight adjacent to the north door, a tornado about to arrive, or, as here, flooded conditions on shopping center access roadways.

Whether the plaintiff would have proceeded differently if he had been told what the shopping center and theater management knew is not here disclosed. The child later to drown in the flooded road was denied avoidance opportunity which would have existed if available information had not been withheld.

Assumptive in the character of the present case disposition which does not afford the same breadth and significance of information later to be disclosed at trial, I believe a jury should consider whether the zone of duty responsibilities of a host to a business invitee, under whatever the particular circumstances may have been as existent here, when life-protecting information was not otherwise available to the invitee, could be denied without legal responsibility. The issue may be incompletely characterized as a duty to warn, rather than, as I perceive it, a societal duty as a reasonable care obligation of notification to your guest if you know and he does not what may constitute a recognizable departure danger. This is the “tell them what you know” care standard.

*1106“A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Prosser and Keeton, Law of Torts at 356 (1984).

I do not enjoy the sophistication of differentiating a gunfight or the flood on-premises or off-premises as creating the duty to furnish information to guests when they will, upon departure, be exposed to the danger known only to the host.

A special relationship sufficient to give rise to the duty to act was clearly present in that theater at that time as the result of that flood. Restatement (Second) of Torts § 315; Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976); and compare generally Cabrera, Negligence Liability of Landowners and Occupiers for the Criminal Conduct of Another: On a Clear Day in California One Can Foresee Forever, 23 Cal.W.L.Rev. 165 (1987), considering the somewhat different subject of criminality injury in premise liability.

I agree with this court by concurrence in the opinion, that a jury should make the negligence and duty violation assessment rather than decision by erratically employed rules of law unjustified in differentiation to the real world of danger exposure and needed protection. Tader v. Tader, Wyo., 737 P.2d 1065 (1987). Consequently, I concur in reversal of the judgment as granted to American Multi-Cinema, Inc., in order to invite jury construction by their composite good judgment and common sense. Analysis of lack of or exercised due care does not pose an insurmountable jury responsibility.

JUSTICE TULLY

delivered the opinion of the court:

Plaintiff Raymond J. Bonner filed a negligence action against defendant, the City of Chicago (City), seeking damages for injuries he sustained when he tripped on a light pole base on the sidewalk in the 3900 block of North Damen Avenue. The trial court granted defendant’s motion for summary judgment. Plaintiff appeals, claiming that summary judgment was improper because a jury should have decided whether plaintiffs injury was foreseeable and the City breached its duty of reasonable care. We affirm.

The pleadings, affidavits, depositions and photographs before the trial court established the following facts. On June 3, 1999, the 72-year-old plaintiff drove from the currency exchange he owned at 3536 West Armitage Avenue in Chicago to the Coras Bank branch at Irving *483Park and Lincoln Avenues. He was carrying $4,000 in cash in a paper bag and checks for deposit at the bank. Plaintiff parked his car at a meter along the curb in the 3900 block of North Damen Avenue, exited the car, stepped on the sidewalk and began walking toward the bank. He immediately noticed that two men in their early twenties appeared to be staring at him from a bus stop about 70 feet away. Plaintiff became suspicious, fearing that the men might rob him. The men were standing still and looking in plaintiffs direction, but they did not speak or walk toward him. Plaintiff never took his eyes off the suspicious men, and he walked near the curb so he could quickly return to his car if the men approached him. After walking a short distance, plaintiff tripped over the light pole base, which consisted of a 12-inch-wide cluster of four bolts on a raised concrete foundation. Each bolt protruded about three inches from the surface of the sidewalk. As a result of his fall, plaintiff suffered a fractured left shoulder which required surgery and physical therapy and limited his ability to work. He also fractured a bone in his right hand and sustained lacerations to his face requiring five sutures to close.

According to a bystander’s report, the trial court granted the City’s motion for summary judgment based on its finding that plaintiff’s distraction was not reasonably foreseeable.

On appeal, plaintiff contends that summary judgment was improper because a question of fact existed as to whether the City had a duty of reasonable care because it was foreseeable that a pedestrian would be distracted and fail to see the open and obvious light pole base. Alternatively, plaintiff contends that even if the harm was not foreseeable, the City still had a duty of reasonable care because injury to pedestrians was likely and the burden on the City to protect pedestrians from the hazard was negligible. The City responds that summary judgment was proper because plaintiff did not dispute the fact that the condition was open and obvious and did not present a legally sufficient reason as to why the City should have foreseen that plaintiff would be distracted.

A cause of action for negligence requires the plaintiff to establish that the defendant owed a duty of care and breached that duty resulting in an injury proximately caused by the breach. Curatola v. Village of Niles, 154 Ill. 2d 201, 207 (1993). Whether a duty of care exists is a question of law, which may be determined on a motion for summary judgment. Curatola, 154 Ill. 2d at 207. In summary judgment cases, we review the evidence de novo and construe all evidence strictly against the moving party and liberally in favor of the nonmoving party. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). “A motion for summary judgment should be granted only *484where the pleadings, depositions, admissions and affidavits show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.” First of America Trust Co. v. First Illini Bancorp, Inc., 289 Ill. App. 3d 276, 283 (1997).

Duty Based on Foreseeability

The Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1 et seq. (West 2000)) governs the tort liability of municipalities. West v. Kirkham, 147 Ill. 2d 1, 5 (1992). According to section 3 — 102(a) of the Act, “a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used.” 745 ILCS 10/3 — 102(a) (West 2000). The factors relevant to the question of whether a duty exists are: “(1) foreseeability that the defendant’s conduct will result in injury to another; (2) likelihood of injury; (3) the magnitude of guarding against it; and (4) the consequences of placing that burden upon the defendant.” Curatola, 154 Ill. 2d at 214.

Parties who own or control land are not required to foresee and protect against injuries if the potentially dangerous conditions are open and obvious. Bucheleres v. Chicago Park District, 171 Ill. 2d 435, 447-48 (1996). The term “ ‘obvious’ denotes that ‘both the condition and the risk are apparent to and would be recognized by a reasonable [person], in the position of the visitor, exercising ordinary perception, intelligence, and judgment.’ ” Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 435 (1990) (quoting and adopting the definition of “obvious” in the Restatement (Second) of Torts § 343A, Comment b, at 219 (1965)). Accordingly, whether a condition is obvious depends on the objective knowledge of a reasonable person, not on the plaintiff s subjective knowledge. Wreglesworth v. Arctco, Inc., 317 Ill. App. 3d 628, 635-36 (2000).

There are two limited exceptions to the rule that a defendant has no duty to protect a plaintiff from an open and obvious condition. Ward v. K mart Corp., 136 Ill. 2d 132, 147 (1990). Relevant here is “the distraction exception,” which provides that a property owner owes a duty of care if there is a reason to expect that the plaintiffs attention might be distracted so that he would not discover the obvious condition. Ward, 136 Ill. 2d at 149-50 (adopting the reasoning in Restatement (Second) of Torts, § 343A, Comment f, at 220 (1965)). The proper inquiry is “whether the defendant should reasonably anticipate injury to those entrants on his premises who are generally *485exercising reasonable care for their own safety, but who may reasonably be expected to be distracted, as when carrying large bundles.” Ward, 136 Ill. 2d at 152.

A defendant does not need to anticipate a plaintiff’s own negligence. Ward, 136 Ill. 2d at 152. “[I]t would be unreasonable to require defendants to anticipate that [a] plaintiff *** would blind himself to the probable consequences of his own actions.” Richardson v. Vaughn, 251 Ill. App. 3d 403, 408 (1993) (defendant was not required to anticipate that a plaintiff would run several yards while looking back over his shoulder before he saw a cable suspended between two trees). “Defendants should not be confronted with the impossible burden of rendering their premises injury-proof, and they are entitled to the expectation that their patrons will exercise reasonable care for their own safety.” Richardson, 251 Ill. App. 3d at 409.

In this case, the issue is whether, as a matter of law, it was foreseeable that plaintiff would be distracted from an obvious condition by his fear of being robbed. The evidence before the court did not show that plaintiffs fear was anything other than subjective or that the City should have foreseen that a reasonable person walking on the sidewalk would be so distracted by the threat of crime that he could not exercise reasonable care for his own safety. Accordingly, the distraction exception to the rule that there is no duty to protect a plaintiff from an open and obvious condition does not apply in this case. Thus, the duty element necessary for a finding of negligence is absent.

Plaintiff attempts to distinguish the facts in Richardson from those in the present case by arguing that the amount of real estate covered during the plaintiff’s distraction affects foreseeability. Consequently, he contends, it was not foreseeable that the plaintiff in Richardson would run several yards while he was distracted, but it was foreseeable that the plaintiff in this case would walk a few steps while he was distracted. However, plaintiffs distinction is precluded by Richardson, where the court found that “the line between mere inattention and reasonably foreseeable distraction is not susceptible to mathematic precision and requires a careful focus upon the particular facts at hand.” Richardson, 251 Ill. App. 3d at 409.

In this case, the facts support the conclusion that plaintiffs brief distraction was no more foreseeable than the relatively longer distraction in Richardson, and therefore, the trial court’s conclusion was not inconsistent with the result in Richardson.

Plaintiff cites several cases to argue that the distraction exception must be applied, including: Ward, 136 Ill. 2d at 152 (foreseeable that the plaintiffs view would be impaired and his attention distracted as he carried bulky merchandise from a store); Shaffer v. Mays, 140 Ill. *486App. 3d 779, 782-83 (1986) (foreseeable that the plaintiff would be distracted while moving a large, heavy object with a coworker at a construction site); Courtney v. Allied Filter Engineering, Inc., 181 Ill. App. 3d 222, 227-28 (1989) (foreseeable that the plaintiff would be distracted while unloading a truck at a dock); Deibert, 141 Ill. 2d at 438-39 (foreseeable that the plaintiff would be distracted while walking in an area of falling construction debris); and American National Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14, 28-29 (1992) (foreseeable that the plaintiff, a painter, would be distracted from the danger of power lines when he climbed over an outdoor billboard to reach his ladder). The City contends that these cases are distinguishable because, in each case, the defendants had a hand in creating the distraction and it was therefore reasonable to expect that the defendants would foresee the distraction of their own making.

In this case, the City did not create or contribute to the condition of two young men standing on a public sidewalk while plaintiff carried $4,000 in a paper bag which caused him to be distracted by his fear of being robbed. Accordingly, plaintiffs cases are factually distinguishable from the case at bar.

In an effort to show that plaintiffs fear of crime was a foreseeable distraction, plaintiff cites cases in which the court found that it was foreseeable that the plaintiff would be the victim of a crime on the defendant’s property. Neering v. Illinois Central R.R. Co., 383 Ill. 366, 380 (1943) (foreseeable that vagabonds who habitually infested a railroad station would attack passengers); Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 227 (1988) (foreseeability that an intruder would enter premises and attack employees where a landlord negligently failed to control his master keys was an issue of triable fact).

These cases do not support plaintiffs argument because they deal with the foreseeability of crime, not the foreseeability of the fear of crime. Furthermore, plaintiff fails to present an argument for extending the rationale of these cases with evidence that the area was, in the language of Neering, habitually infested with criminals. Plaintiffs conclusion that “criminal elements hang around banks” is not persuasive of his theory that the City should have foreseen plaintiffs distraction by fear of crime.

Duty Based on Likelihood, Burden

Plaintiff argues that even if his distraction and resulting injuries were not foreseeable, the City still owed him a duty of care because an injury was likely and the burden of guarding against the injury was slight, citing, inter alia, Deibert, 141 Ill. 2d at 437-38. *487Plaintiff contends that “the likelihood is fairly high that a pedestrian who comes into contact with four bolts projecting three inches up from the sidewalk will trip, fall and sustain injury. *** The municipality need merely cover the bolts with a rubber cone or a wooden horse.”

The City asserts that this argument is waived because it was not raised below. Arguments not raised in the circuit court are waived on appeal. In re Liquidations of Reserve Insurance Co., 122 Ill. 2d 555, 568 (1988). Waiver aside, the City argues, and we agree, that under section 3 — 104 of the Tort Immunity Act (745 ILCS 10/3 — 104 (West 2000)), a local public entity is not liable for an injury caused by its failure to initially provide traffic warning signs or restraining devices or barriers. The language of the provision is unconditional and acts to immunize a municipality against all liability arising from its failure to initially provide a traffic control device, even where such failure might endanger safety. Ramirez v. Village of River Grove, 266 Ill. App. 3d 930, 932 (1994). Because the term “traffic” includes pedestrians under section 1 — 207 of the Illinois Vehicle Code (625 ILCS 5/1 — 207 (West 2000)), the City is not liable for plaintiffs injuries for failure to install rubber cones or wooden horses at the fight pole base, irrespective of the ease or burden of doing so. As a matter of public policy, the decision to install signals requires a city traffic planner to balance competing interests and make a judgment call as to which solution would best serve the interests of safety, convenience and cost. West, 147 Ill. 2d at 11. Therefore, the City had neither a duty nor liability when it did not initially install warning devices at the scene of plaintiffs injuries.

Finally, where injury results from freakish, bizarre or fantastic circumstances, no duty exists and no negligence claim can be asserted for injuries that were not reasonably foreseeable. Washington v. City of Chicago, 188 Ill. 2d 235, 240 (1999) (fatal accident caused when emergency vehicle struck planter boxes on a median was not reasonably foreseeable). In this case, plaintiff was carrying $4,000 in a paper bag, believed that potential robbers were staring at him, kept his eyes directly on them and walked beside the curb so he could dash back to his car if confronted. It is not reasonable to expect the City to foresee such unusual circumstances.

Accordingly, we find that plaintiff failed to establish that the City owed him a duty of care in order to state a cause of action for negligence. Therefore, the trial court properly granted the City’s motion for summary judgment.

*488The judgment of the circuit court is affirmed.

Affirmed.

COHEN, EJ., and McNULTY, J., concur.

OPINION

GRANT, Justice.

Bonita Knorpp appeals from a directed verdict in a premises liability case. Knorpp contends that the trial court erred by finding her son, Todd Erwin, to be a licensee rather than an invitee at the time of his death and by rendering a directed verdict agamst her claim for damages.

*471The decedent, Todd Erwin, was killed while cutting down a tree at the Hales’ house. The evidence shows that he had moved to Texarkana to be near the Hales’ daughter Autumn, who he had been dating for about a year, and that he spent a great deal of time at their house. The Hales were planning a New Year’s Eve bonfire at a location in a pasture near their house around the base of a dead pine tree. They decided to cut down the tree. Erwin went to the house on December 6, 1994, took the Hales’ chain saw, and began to cut down the tree. After about forty-five minutes, the tree fell in an unexpected direction and landed on Erwin, killing him.

There was evidence that Erwin had worked with his stepfather cutting and trimming trees. The stepfather testified that Erwin did not cut the tree properly. He testified that the vertical distance between Erwin’s front and back cuts was too great; that Erwin should have used a rope to pull the tree in a particular direction and should have used wedges to direct the tree’s fall.

When Knorpp completed the presentation of her evidence, the trial court granted the landowner’s motion for a directed verdict and ruled as a matter of law that Hale was a licensee and that there was no evidence that the landowners were negligent under applicable standards for a licensee.

Knorpp contends that the trial court erred in determining that there was no evidence that Erwin was an invitee and that the court therefore erred by rendering a directed verdict. Knorpp further contends that there was evidence that Erwin was an invitee on this particular day when he came onto the property.

We review a trial court’s directed verdict de novo. Graham v. ARCO, 848 S.W.2d 747, 750 (Tex.App.—Corpus Christi 1993, writ denied). When reviewing a directed verdict, we consider all of the evidence in the light most favorable to the party against whom the verdict was directed, disregarding all contrary evidence and inferences, and giving the losing party the benefit of all reasonable inferences raised by the evidence. Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302 (Tex.1988). If there is any evidence of probative force to raise a fact issue on a material question, the issue must go to the jury, and a directed verdict is improper. Najera v. Great Atl. & Pac. Tea Co., 146 Tex. 367, 207 S.W.2d 365, 367 (1948); Parks v. DeWitt Co. Elec. Coop., Inc., 962 S.W.2d 707, 710 (Tex.App.—Corpus Christi 1998, no pet.).

The owner/operator of property owes the highest degree of care to an invitee. An invitee has been described as one who enters on another’s land "with the owner’s knowledge and for the mutual benefit of both. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975), citing Restatement (Second) of Torts § 332 (1965); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1951); see Dabney v. Wexler-McCoy, Inc., 953 S.W.2d 533, 536 (Tex.App.—Texarkana 1997, pet. denied); Silva v. Spohn Health Sys. Corp. d/b/a Spohn Hosp., 951 S.W.2d 91 (Tex.App.—Corpus Christi 1997, writ denied).

A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent. Dominguez v. Garcia, 746 S.W.2d 865, 867 (Tex.App.—San Antonio 1988, writ denied), quoting Restatement (Second) of Torts § 330 (1965).1 Thus, a licensee is one who enters with permission of the landowner, but does so for his own convenience or on business for someone other than the owner. Smith v. Andrews, 832 S.W.2d 395, 397 (Tex.App.—Fort Worth 1992, writ denied).

A landowner owes an invitee a duty to exercise ordinary care to protect him from risks of which the owner is actually aware and those risks of which the owner should be aware after'reasonable inspection. Motel 6 G. P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex.1996). To recover, a plaintiff must plead and prove that the landowner (1) had actual or constructive knowledge of some condition on the premises; (2) that the condition posed an *472unreasonable risk of harm; (3) that the landowner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the landowner’s failure to use such care proximately caused the plaintiffs injuries. Lopez, 929 S.W.2d at 3; Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 165 (Tex.App.—Texarkana 1998, no pet.).

The duty that an owner owes to a licensee is to not injure him by “willful, wanton or grossly negligent conduct, and that the owner use ordinary care to either warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not.” State Dept. of Highways v. Payne, 838 S.W.2d 235, 237 (Tex.1992). In order to establish liability, a licensee must prove (1) that a condition of the premises created an unreasonable risk of harm to him; (2) that the owner actually knew of the condition; (3) that the licensee did not actually know of the condition; (4) that the owner faded to exercise ordinary care to protect the licensee from danger;2 and (5) that the owner’s failure was á proximate cause of injury to the licensee. Id. at 237.

In the present ease, it is admitted by all that Erwin was a regular visitor to the Hales’ house, that he had his own key to the house and came and went unsupervised, and that he was looked on as a likely son-in-law. He was clearly invited onto the property. Thus, it would appear that he should be defined as an “invitee.”3 This is not, however, the case. In Texas, a “social guest” is classified as a licensee. Dominguez, 746 S.W.2d 865; McKethan v. McKethan, 477 S.W.2d 357, 361 (Tex.Civ.App.—Corpus Christi 1972, writ ref'd n.r.e.); Weekes v. Kelley, 433 S.W.2d 769 (Tex.Civ.App.—Eastland 1968, writ ref'd n.r.e.); Bass v. Cummings, 415 S.W.2d 438 (Tex.Civ.App.—Amarillo 1967, writ ref'd n.r.e.).4 As set out above, a host owes a social guest a duty not to injure him by willful, wanton or gross negligence. Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561, 563 (Tex.1976).

All of the evidence in the present ease shows that the decedent was invited onto the premises, but also shows that he falls into the category of a “social guest.” In Texas, as a matter of law, he was a licensee. The trial court did not err by finding him to be a licensee.

Enorpp also contends that this conclusion is erroneous and that the trial court erred by rendering a directed verdict in the Hales’ favor, because regardless of the decedent’s *473usual status, a different one existed in this particular situation. She argues that because there was a discussion,at which the decedent was present, about cutting down the tree, because Reeda Hale had asked Erwin if he was going to help her husband cut down the tree, and because Erwin was going to be present at the bonfire, then the cutting of the tree was done for the mutual advantage (or benefit) of the decedent and the landowner. This, Knorpp argues, constitutes some evidence that the decedent was an invitee and that the trial court therefore erred by finding him to be a licensee as a matter of law.

In determining whether an individual is an invitee or a licensee, the cases typically use the language “mutual benefit” or “mutual advantage.” Knorpp argues that this term stretches so far as to include an intangible benefit, such as having the opportunity to attend or conduct the New Year’s Eve bonfire.

The concept behind this language was originally brought into Texas cases as a paraphrase of the predecessor of Restatement (Second) of Torts § 332 (1965). Carlisle v. J. Weingarten, Inc., 137. Tex. 220, 152 S.W.2d 1073, 1076 (1941)5; see Spencer v. Dallas, 819 S.W.2d 612 (Tex.App.—Dallas 1991, no writ). In Carlisle, the Court discussed an invitee in terms of business-related ventures exclusively, as discussed in the Restatement. Later cases discussed the necessity of determining who qualified as an invitee and cited to the Restatement and eases applying the Restatement concepts. However, instead of using the more explicit terminology contained in Section 3326 to determine whether a person was an invitee, the courts instead looked to see whether an entry was one by a person invited and to the “mutual advantage” of both parties. See Rosas, 518 S.W.2d at 586.

This language does not appear in the Restatement’s description of an “invitee,” but is found in 65 C.J.S. Negligence § 63(41) (1966).7 The “mutual advantage” or “mutual benefit” language found in C.J.S. has been repeated by numerous cases, including the most recent premises liability cases from this court. See Dabney, 953 S.W.2d at 536.

The two terminologies were merged in Cowart v. Meeks, 131 Tex. 36, 111 S.W.2d 1105 (1938), where that court discussed the business relations between the injured person and landowner as showing the nature of his invitee status, and then stating that in “the absence of some relation which inures to the mutual benefit of the two, or to that of the owner, no invitation can be implied, and the injured person must be regarded as a mere licensee.” Crum v. Stasney, 404 S.W.2d 72, 75 (Tex.Civ.App.—Eastland 1966, no writ) (emphasis added).

Thus, we have the courts using language abstracted from C.J.S. as a shorthand method of describing the analysis to be used in determining whether a party qualifies for the status of “invitee,” but actually using the analysis set out in the Restatement.

It appears that the formula set out by the Restatement for analysis of invitee/licensee/trespasser status was adopted for use in Texas by Carlisle, 152 S.W.2d 1073, as reiterated in Rosas, 518 S.W.2d at 536, and that it remains the proper analysis to apply.

The decedent was a social guest of the landowners. He was not expecting payment for cutting down the tree, and the evidence is that no one asked him personally to do so, *474but that he volunteered to do so. There was no business relationship or dealing in existence or contemplated between the decedent and the landowner, and it is unquestioned that the land was not open to the public. Accordingly, as a matter of law, the decedent was not an invitee, but was a licensee on this particular occasion, and the trial court did not err by so holding.

Knorpp also argues that, in the alternative, there was evidence that the dead tree presented an unreasonable risk of harm and that there is at least some evidence that the landowners were negligent in failing to warn of the danger involved in cutting down the tree. This contention is based upon Knorpp’s contention that the landowners were aware of the risk of harm and failed to use reasonable care to reduce the risk. This analysis is applied when the claimant is in the status of an invitee. We have concluded that the decedent was a licensee; thus, the analysis does not apply to the present case. Even if we analyze this argument as an attempt to show liability for a licensee, the attempt fails on several grounds.

In the present ease, the undisputed evidence is that the decedent had worked with his father trimming and felling trees and that he had at least a passing acquaintance with the dangers involved. The undisputed evidence also shows that the landowners were unaware of any special dangers involved in cutting down a dead tree. Thus, the evidence shows that the licensee was aware of the danger involved in the action that he intentionally undertook.

The evidence also shows that the tree itself was not a dangerous condition. The worry stated by the landowners was that if they burned it in the bonfire, it would fall on someone. Cutting the tree was the act that caused the danger.

Counsel attempts to compare this situation to a slip-and-fall case where the ice on the floor is not dangerous of itself-it becomes dangerous only when someone slips on it. We do not accept this basic premise. Ice on the floor is generally a dangerous condition in and of itself. A dangerous condition is one which creates a substantial risk of injury when the property is used with due care in a manner in which it is reasonably foreseeable that it will be used. See Black’s Law DICTIONARY 394 (6th ed.1990). It is generally foreseeable that a floor will be used by people walking, and thus, a substantial risk of injury is foreseeable. In the present case, the tree at that time was not in a condition that it was likely to fall until someone cut or burned the tree. Therefore, the dangerous condition of the tree did not occur until it was cut.

Further, before the evidence could show that the landowners could be aware that cutting the tree would be a dangerous condition-beyond that which always exists when a tree is cut down-they would have been required to anticipate that the decedent, who was more knowledgeable about cutting trees than the landowners, would cut it in such a way that it became dangerous and fall in an unexpected manner.

In summary, the condition did not exist until Erwin began cutting the tree, thus, it was not a “condition of the premises”; the owner did not know that the licensee was creating a dangerous condition; and the licensee was the one creating the condition. In light of those facts, there was nothing for the landowner to warn the licensee about, because no dangerous condition existed until it was created by the licensee and, therefore, no duty to warn was shown by the evidence.

The judgment is affirmed.

TERNUS, Justice.

Appellant, Russell Richardson, was injured at a bar owned and operated by the defendants/appellees when a portion of the ceiling fell on him. His suit against the defendants was dismissed on their motion for summary judgment. The court of appeals affirmed. On further review, we find sufficient evidence to create a jury question on Richardson’s premises liability claim. Therefore, we vacate the court of appeals decision and reverse the judgment of the district court, remanding for further proceedings.

I. Background Facts and Proceedings.

We view the facts in a light most favorable to the nonmoving party, Richardson. See Shriver v. City of Okoboji, 567 N.W.2d 397, 400 (Iowa 1997). The record shows that, at the time of Richardson’s injury, The Commodore Tap was a bar operated by the appellee, The Commodore, Inc. Ap-pellees Ralph and Betty Hauerwas owned the corporation as well as the building in which the bar was located.

The accident giving rise to this action occurred on September 12, 1994. While shooting pool at the bar on that date, Richardson was suddenly struck by falling plaster. Richardson thereafter brought this action against the defendants to recover damages for his physical injuries. Richardson’s claim was based on a theory of premises liability. He alleged that he was a business invitee and the collapse of the ceiling and his resulting injuries were caused by the defendants’ negligence in failing to maintain the premises in a reasonably safe condition.

The record shows that the building that housed The Commodore Tap was built in 1913. Ralph and Betty Hauerwas acquired the building in 1982, and subsequently moved their tavern business into it. The tavern was on the first floor of this two-story building. Prior to opening for business, the Hauerwases contracted with Wayne Blumer to repair portions of the plaster ceiling of the first floor where the wood lath had been exposed by the removal of some partition walls. Blumer did not notice any signs of damage to or other problems with the plaster ceiling at the time of his repairs.

In 1985, the Hauerwases installed a drop ceiling on the first floor of the building to improve the efficiency of heating and cooling the premises. They did not notice any problems with the plaster ceiling at that time. Between 1985 and the date of the accident in 1994, the Hauerwases did not inspect the plaster ceiling, were unaware of any problems in that ceiling, and made no repairs to it.

It is undisputed that Richardson was struck by a portion of the original (1913) plaster ceiling when the plaster separated from the lath and fell through the drop ceding. Blumer repaired the plaster ceiling after its collapse in 1994. He estimated that a piece of ceiling measuring two feet by five feet fell. This piece was not close to the areas he had repaired in 1982. Blumer testified that the ceiling collapsed due to its age and the effect, over time, of vibration from heavy traffic on the adjoining street. He thought this particular area of the ceiling may have fallen off because it was thicker than the rest of the plaster ceiling. While making the repairs in 1994, Blumer inspected the remainder of the plaster ceiling by looking through the drop ceiling where the tiles had been pushed off by falling plaster, and using a spotlight to view whether the plaster was sagging in any other areas.

As noted above, Richardson’s suit is based on a theory of premises liability. The district court granted the defendants’ motion for summary judgment, holding there was no evidence they knew or should *696 have known of the dangerous condition of the plaster ceiling. Richardson’s appeal was transferred to the court of appeals. That court affirmed, and we granted Richardson’s application for further review.

II. Scope of Review.

The principles governing the appeal of summary judgment decisions are well established:

We review a summary judgment ruling for error. The district court correctly enters summary judgment when the record shows “no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Iowa R. Civ. P. 237(c). Thus, on review, we examine the record before the district court to decide whether any material fact is in dispute, and if not, whether the district court correctly applied the law. In considering the record, we view the facts in the light most favorable to the party opposing the motion for summary judgment.

General Car & Truck Leasing Sys., Inc. v. Lane & Waterman, 557 N.W.2d 274, 276 (Iowa 1996) (citations omitted). In viewing the facts most favorably to the party opposing the motion for summary judgment, we give the opposing party the benefit of every legitimate inference that can be reasonably deduced from the evidence. See Holsapple v. McGrath, 575 N.W.2d 518, 519-20 (Iowa 1998).

III. General Principles of Premises Liability Law.

The general rule applicable to the liability of possessors of land for injuries caused by conditions on the land is found in the Restatement (Second) of Torts:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Restatement (Second) of Torts § 343, at 215-16 (1965); accord Mundy v. Warren, 268 N.W.2d 213, 217 (Iowa 1978) (relying on section 343 of the Restatement for the general rule of landowner’s liability). The parties do not dispute Richardson’s status as an invitee nor the defendants’ status as possessors of the land. The dispute in this case centers on the requirement that the defendants know of the dangerous condition or by the exercise of reasonable care should have known of the condition. 1

Although Richardson does not contend that the defendants had actual knowledge of the condition of the plaster ceiling, he argues that this knowledge should be imputed to them because the defendants created the dangerous condition by installing the drop ceiling. Alternatively, he claims that if the defendants had exercised reasonable care in inspecting the plaster ceiling, they would have discovered the condition of the ceiling. We discuss these issues separately. 2

*697 IV. Is There Evidence to Support Imputing Knowledge of the Dangerous Condition of the Ceiling to the Defendants?

Knowledge of a dangerous condition is imputed to a possessor of land who has created the condition that causes the plaintiffs injury. See Ling v. Hosts, Inc., 164 N.W.2d 123, 126 (Iowa 1969); Smith v. Cedar Rapids Country Club, 255 Iowa 1199, 1210, 124 N.W.2d 557, 564 (1963). For example, in Smith, the plaintiff was injured when she slipped and fell on a floor that had been waxed to an uneven and extremely slippery finish. 255 Iowa at 1202, 124 N.W.2d at 559. There was no dispute that the defendant had applied the finish to the floor. Id. at 1209, 124 N.W.2d at 563. We stated that when “the condition has been created by the owner[,] ... he will not be heard to deny he had notice of it.” Id. at 1215, 124 N.W.2d at 567.

This rule does not, however, help the plaintiff here. There is no evidence that the defendants created the condition in the plaster ceiling that caused it to fall. The defendants merely installed a drop ceiling over the plaster ceiling, and there is nothing in the record to indicate that the drop ceiling contributed in any way to the collapse of the plaster ceiling. Therefore, knowledge of the dangerous condition in the plaster ceiling cannot be imputed to the defendants.

V. Is There Evidence to Establish That the Defendants Would Have Discovered the Condition of the Plaster Ceiling if They had Exercised Reasonable Care?

A. Duty to inspect. The defendants’ duty of reasonable care as possessors of the premises extends to an inspection of the premises to discover any dangerous conditions or latent defects, “‘followed by such repair, safeguards, or warning as may be reasonably necessary for [the invitee’s] protection under the circumstances.’ ” Wieseler v. Sisters of Mercy Health Corp., 540 N.W.2d 445, 450 (Iowa 1995) (quoting Restatement (Second) of Torts § 343 cmt. b, at 216); accord Baumler v. Hemesath, 534 N.W.2d 650, 653 (Iowa 1995) (stating landowner’s duty of care to invitees “requires the landowner to use reasonable care to ascertain the actual condition of the premises”); Restatement (Second) of Torts § 343 cmt. b, at 216 (“To the invitee the possessor owes ... the additional duty ... to ascertain the condition of the land.”), cmt. d, at 217 (“An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises.... ”). The action necessary to satisfy this duty of reasonable care depends upon “the nature of the land and the purposes for which it is used.” Restatement (Second) of Torts § 343 cmt. e, at 217. “[T]he duty of one who operates a place of entertainment or amusement is higher than that of the owner of private property generally.” Grall v. Meyer, 173 N.W.2d 61, 63 (Iowa 1969).

In an analogous case involving a landlord/tenant relationship, In re Estate of Vazquez v. Hepner, 564 N.W.2d 426, 430 (Iowa 1997), we discussed whether a landlord, who had been sued by his tenant’s estate under a theory of implied warranty of habitability, had a duty to inspect the leased premises for defects. The tenant had died in a fire caused by a faulty splice in the electrical wiring located between the first and second floors of the house. Vazquez, 564 N.W.2d at 428. We said that the landlord was liable only if he “knew or should have known of the defect.” Id. at 430. Whether the landlord’s affirmative duty to discover latent defects required an inspection of the premises depended on the circumstances. Id. For example, we noted that a landlord has no duty to in *698 spect unless there is “a foreseeable potential of danger.” Id. We also stated that a landlord is not required “to take extreme measures and expend significant amounts of time and money to discover hazards that may not exist.” Id.; see also Vollmar v. J.C. Penney Co., 251 Iowa 1026, 1030, 103 N.W.2d 715, 717 (1960) (holding in premises liability case that defendant had no liability where discovery of a defect in the stair step molding, only the thickness of a half dollar, would have required “a careful hand examination of the step”). Applying these principles, we concluded the landlord in Vazquez had no duty to inspect for a defect in the electrical wiring because (1) there was no indication of a wiring problem, and (2) an inspection to discover such a problem would have been very difficult, would have required significant effort and expense, and, even then, may not have revealed the defective splice. Vazquez, 564 N.W.2d at 430.

Unlike the facts in Vazquez, the facts here could support a jury finding that reasonable care warranted an inspection. Although the plaster ceiling had not collapsed in the past, the defendants were aware of the age of the ceiling (it was built in 1913), and they should have realized that a falling ceiling posed a serious danger to their patrons. Even more important, an inspection was not an onerous and impractical burden as it was in Vazquez. Here, with a ladder and a flashlight, the defendants could have conducted periodic inspections by simply lifting a ceiling tile in the drop ceiling and viewing the original ceiling, as Blumer did after the accident in 1994. Finally, a business patron such as Richardson is entitled to expect greater preparation to secure his safety than would a tenant to whom control of the premises has been surrendered. 3 Compare Restatement (Second) of Torts § 343 cmt. b, at 217 (stating invitee is entitled to expect that possessor of premises will exercise reasonable care in the inspection of the premises to discover any latent defects), with id. § 358 cmt. b, at 244 (stating lessor of land has no duty to lessee to make a reasonable inspection of the premises to discover dangerous conditions). We think these facts distinguish this case from Vazquez and provide an evidentiary basis for a jury finding that the defendants’ duty of reasonable care included inspection for hidden defects in the plaster ceiling.

B. Discoverability of defect. Of course, a failure to inspect is relevant only to the extent such an inspection would have revealed the defect in the ceiling. See Restatement (Second) of Torts § 343, at 215 (imposing liability only if the possessor knew or would have discovered the defect in the exercise of reasonable care). The record in this case shows that the plaster ceiling fell because the plaster separated from the wood lath. In addition, the record reveals that the cause of this separation was vibration of the ceiling over many years caused by traffic outside the building. We think the jury could make a common-sense inference from this evidence that the separation would not occur instantly, but that the plaster would gradually separate over time and begin to sag, thereby resulting in an appearance observable to someone looking at the ceiling. In fact, the repairman, Blumer, testified that was exactly what he was looking for when he inspected the ceiling after Richardson’s accident-signs of sagging that would indicate the need for additional repairs. Therefore, we conclude that the plaintiff generated a jury question on whether the defect in the ceiling would have been discoverable upon inspection. See Knapp v. Simmons, 345 N.W.2d 118, 122 (Iowa 1984) (reversing summary judgment because inferences from undisputed facts created a genuine issue of material fact).

*699 VI. Summary and Disposition.

We think material issues of disputed fact exist as to whether reasonable care warranted an inspection of the plaster ceiling and whether such an inspection would have alerted the defendants to the dangerous condition of the ceiling. Therefore, the district court erred in ruling that the defendants were entitled to judgment as a matter of law. Accordingly, we vacate the court of appeals decision affirming the district court, reverse the decision of the district court, and remand the case for further proceedings.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

The opinion of the court was delivered by

Beier, J.:

Plaintiffs Barbara Cunningham and Wanda Yandell ask us to reverse the district court’s summary judgment in favor of defendant Braum’s Ice Cream and Dairy Stores (Braum’s) in this personal injury action. They sued Braum’s after its employees shooed them out of the Parsons ice cream store and, as it turned out, into the path of a tornado. Cunningham and Yandell were injured while driving home, when the tornado threw a truck into their car.

We must decide whether Braum’s owed Cunningham and Yan-dell a legal duty to inform them of a tornado warning and to offer them shelter from the storm.

Summary judgment is appropriate when there remains no genuine issue of material fact for trial and the moving party is entitled *885 to judgment as a matter of law. K.S.A. 2002 Supp. 60-256(e); see Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).

In this negligence action, the first element Cunningham and Yandell must prove is the existence of a duty of care owed them by Braum’s. The question of whether a duty exists is a question of law, and the district court’s decision that there was no duty under the circumstances presented is reviewable by this court de novo. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). Both the district court and this court are required to view the available evidence in the light most favorable to the nonmoving party, i.e., Cunningham and Yandell. All facts and inferences that may reasonably be drawn from that evidence must be drawn in their favor. Bergstrom v. Noah, 266 Kan. 847, 871, 974 P.2d 531 (1999).

With this standard in mind, the evidence shows that Braum’s employees were aware at the time they told Cunningham and Yan-dell and other customers to leave the store that there was a tornado warning in effect. Braum’s employees also were aware, by means of telephone calls from persons outside the store, that there were reports of a tornado sighting in the area.

Braum’s has an emergency action plan. Although no copy of the plan is included in the record, Braum’s admits that the plan states: “[I]f a tornado is sighted, or a Civil Defense warning sounds, anyone not wishing to leave should be directed to the “milk room.” The milk room is an interior refrigerated area inside the store.

Again, viewing the evidence in the light most favorable to Cunningham and Yandell, we accept for purposes of this appeal Cunningham’s and Yandell’s deposition testimony that Braum’s employees told them only that a storm was coming, not that there was a tornado warning. The parties agree that they were not told that a tornado had been sighted in the area or that customers had the option of remaining inside the store and going into the milk room. Without this information, Cunningham and Yandell left the Braum’s store at the employees’ insistence. They heard no sirens sounding at the time, and they observed nothing ominous about the weather until it was too late.

*886 Cunningham and Yandell advance two arguments to support the existence of a duty on these facts.

The first argument is that this matter should be decided under Kansas law governing premises liability and that Braum’s employees failed to abide by the requirement that they act with reasonable care in all of the circumstances. See Jones v. Hansen, 254 Kan. 499, Syl. ¶ ¶ 2, 3, 867 P.2d 203 (1994).

Second, they argue that a duty arose under the Restatement (Second) of Torts (1964), quoting § 323 and citing § 324A.

We address each of these arguments in turn.

Premises Liability

Cunningham and Yandell argue that Braum’s had a duty as the possessor of land to warn them of the approaching tornado because it was a foreseeable hazard. The fact that their injuries actually occurred off of the premises is of no consequence, in their view, because the defendant’s negligence consisted of the failure to warn and offer shelter to them while they were still in the store.

Historically Kansas law provided that the duty owed by a possessor of real property to an entrant upon the property was dependent upon the status of the entrant. We eliminated common-law distinctions between duties owed to licensees and invitees and set up reasonableness of action and foreseeability of injury as the foundations of premises liability in Jones, 254 Kan. at 509. We stated in Jones-.

“The duty owed by an occupier of land to invitees and licensees alike is one of reasonable care under all the circumstances. Included in the factors that are to be considered in determining whether, in the maintenance of his or her property, the land occupier exercises reasonable care under all circumstances are the foreseeability of harm to the entrant, the magnitude of the risk of injury to others in maintaining such a condition of the premises, the individual and social benefit of maintaining such a condition, and the burden upon the land occupier and/or community, in terms of inconvenience or cost, in providing adequate protection.” 254 Kan. at 509-10.

Jones concerned an injury occurring on the subject premises. Braum’s argues that Kansas law does not create any duty to warn a customer of hazards off the premises and that we should not *887 extend the rule of Jones to situations in which the danger is far removed from the property. We agree that the ruling sought by Cunningham and Yandell would require such an extension. See DiPietro v. Cessna Aircraft Co., 28 Kan. App. 2d 372, 377, 16 P.3d 986 (2000) (property owners have duty7 of ordinary care to “maintain premises” used by customers in reasonably safe condition); Collins v. American Drug Stores, Inc., 878 F. Supp. 182, 186 (D. Kan. 1995) (Kansas property owner has no duty to keep abutting public sidewalks free from natural accumulation of ice, snow).

Cunningham and Yandell direct our attention to several cases from other jurisdictions dealing with hazards on property adjacent to the subject premises. Banks v. Hyatt Corp., 722 F.2d 214, 225-27 (5th Cir. 1984) (hotel had duty to warn or protect guest from mugging outside entrance); Stephens v. Bashas’ Inc., 186 Ariz. 427, 431-32, 924 P.2d 117 (Ct. App. 1996) (warehouse had duty to provide parking to delivery truck driver injured after parking on public street; safe means of ingress and egress required); Ollar v. George’s Place, 269 Ark. 488, 601 S.W.2d 868 (1980) (restaurant had duty to customer injured on adjoining parking lot); Southland Corp. v. Superior Court, 203 Cal. App. 3d 656, 666-68, 250 Cal. Rptr. 57 (1988) (whether convenience store had sufficient control over adjacent lot, whether criminal assault foreseeable questions for jury); Perkins v. Byrnes, 364 Mo. 849, 269 S.W.2d 52 (1954) (whether resort negligent in warning guests of danger of flooded river adjacent to property a matter for jury); Piedalue v. Clinton Elem. Sch. Dist. No. 32, 214 Mont. 99, 103-05, 692 P.2d 20 (1984) (former owner of irrigation ditch had duty to warn motorist entering adjacent trailer park of dangerous condition); Fuhrer v. Gearhart by the Sea, Inc., 306 Or. 434, 441-42, 760 P.2d 874 (1988) (trier of fact to determine whether resort unreasonable for failing to warn guests of ocean riptides or otherwise provide protection in specific circumstances). Braum’s correctly points out that these cases are distinct because they generally involve static risks on adjoining property. We reject these cases as persuasive authority.

Braum’s, in turn, cites cases that also are not particularly useful. One is Bradley v. Board of Butler County Comm’rs, 20 Kan. App. 2d 602, Syl. ¶ 5, 890 P.2d 1228 (1995), in which our Court of *888 Appeals held that neither a city nor a county in this state has a duty to warn its citizens of approaching severe weather. Our court had reached a similar result in Griffin v. Rogers, 232 Kan. 168, 175, 653 P.2d 463 (1982), based on a general policy that governmental entities and officers owe a duty to the public at large and not to particular individuals. See Bradley, 20 Kan. App. 2d at 606-07.

Only one case recognizing a duty to warn customers of a commercial establishment about severe weather off premises has been cited and discussed by the parties: Mostert v. CBL & Associates, 741 P.2d 1090 (Wyo. 1987). Our research reveals no other case of this type.

In Mostert, members of the Mostert family were attending a movie in a Cheyenne, Wyoming, shopping mall theater when storms moved into the area. Severe thunderstorm, flash flood, and tornado warnings were issued; the weather became progressively worse, and local emergency officials recommended that citizens stay indoors. The theater management was aware of the warnings and of severe flooding but did not pass this information along to the Mosterts and other patrons watching the movie. The Mosterts left the theater after the movie ended and, approximately 2 miles into their journey, were caught in floodwaters. During the family’s attempted escape from their vehicle, the Mosterts’ daughter drowned.

When the Mosterts’ case reached the Wyoming Supreme Court, the court recognized the traditional rule that a landowner has no duty to warn an invitee of risks off of the landowner’s premises. It nevertheless chose to depart from it. The court applied factors drawn from Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976), a leading case on mental health professionals’ duty to warn potential targets of violent patients, to determine that a duty existed. The factors were:

“. . . ‘(1) [t]he forseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant’s conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the *889 court system, and (8) the availability, cost and prevalence of insurance for the risk involved.’ [Citations omitted.]” 741 P.2d at 1094.

The Mostert court concluded: “[The theater] has a duty because of its special relationship to the Mostert family as business invitees, and the superior knowledge it possessed of the off-premises risks. These findings are coupled with the minimal inconvenience on the part of AMC to share any superior knowledge it might have had with the Mosterts.” 741 P.2d at 1099.

Justice G. Joseph Cardine, joined by one other justice, filed a concurring and dissenting opinion in Mostert, 741 P.2d at 1101. He first criticized the majority’s attempt to buttress its decision to extend traditional premises law by analyzing factors from a case having nothing to do with landowners’ duties. He then questioned the majority’s conclusions about whether those factors would actually support the existence of a duty under the facts.

For example, as to foreseeablity, the dissenting Justice Cardine doubted that the theater could have “foreseen that a patron would drive onto Del Range Boulevard, running [into] six inches of water and crowded with hundreds of cars, and drive two miles down the road into deepening water and finally into a flooded creek bed.” Mostert, 741 P.2d at 1104. Likewise, Justice Cardine emphasized the broad liability the majority’s definition of duty could permit. The burden upon defendants, in his view, would be “mind boggling.” 741 P.2d at 1104.

Justice Cardine further stated:

“In the future, it will apply to every business in the mall, every business in Cheyenne, every person having any business relationship with another. It will subject persons to potential liability for injuries from accidents that occur two miles, ten miles, perhaps hundreds of miles from the business because of blizzard conditions, road closures, icing, heavy rains, tornadoes, even perhaps construction work of which the business may be aware. The business proprietor will have no control over the premises where the accident occurs, no ability or right to remedy any defect, and no control over the actions or risks undertaken by his customer.” 741 P.2d at 1104.

We concur with Justice Cardine. An extension of premises liability law to hold that a business proprietor has a duty to warn and shelter patrons from severe weather they may encounter on their *890 journey home from the proprietor’s premises makes no logical or legal sense. We decline to extend Kansas law in this way, exposing all commercial enterprises to liability for all manner of accidents befalling their customers while the customers are occupying distant premises outside the control of the enterprise. “The owner of a business is not the insurer of the safety of its patrons or customers.” Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 548, 856 P.2d 1332 (1993). What is true for danger on a business’ premises is even more true for danger off of them.

Restatement (Second) of Torts

Cunningham and Yandell next argue that Braum’s internal policy qualified as a gratuitous undertaking of a duty to render services to them and that Braum’s is therefore liable for failing to exercise reasonable care in the performance of that duty.

The first problem with this argument is that Cunningham and Yandell quote one provision of the Restatement (Second) of Torts and cite a different one. The provision quoted is Restatement (Second) of Torts § 323 (1964), which reads:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.’’

The provision cited is Restatement (Second) of Torts § 324A (1964), which reads:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

*891 We have recognized that each of these provisions correctly states Kansas law and can support the existence of a duty in appropriate circumstances. See Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 490, 657 P.2d 532 (1983) (adopting § 323 as a correct formulation of Kansas law); Schmeck v. City of Shawnee, 232 Kan. 11, 25-27, 651 P.2d 585 (1982) (applying language of § 324A).

However, § 324A lacks even arguable applicability to the situation before us. It covers a defendant who agrees to undertake, or who engages in some affirmative action demonstrating a willingness to undertake, to provide services to another for the benefit of a third party. The plaintiff in a § 324A action is the third party. See Johnson v. Board of Pratt County Comm'rs, 259 Kan. 305, 317-18, 913 P.2d 119 (1996) (applying § 324A to engineers who designed bridge under contract with county; engineers should have recognized services necessary for protection of third-party downstream property owners such as plaintiffs).

There was no third party to be benefitted or protected in this case. If a duty arose, it flowed only from Braum’s undertaking to provide services directly to “another” under § 323, i.e., Cunningham and Yandell. We therefore disregard plaintiffs’ citation of § 324A to support the existence of a duty on the part of Braum’s.

Regarding § 323, Circle Land & Cattle Corp., 232 Kan. at 488, was the first case in which we officially subscribed to the Restatement language. In that case, defendant International Harvester (IH) had approached irrigation farmers to monitor their use of certain IH engines and, specifically, the type of oil that helped to run the engines. After taking samples and conducting its analysis, IH assured plaintiffs that the oil was “OK,” and plaintiffs continued to use the oil throughout the irrigation season. At that time, it was discovered the conclusion reached after the oil analysis was incorrect and the engines had suffered $160,000 in damages.

When plaintiffs took IH to court, we stated:

“Section 323 is based upon the legal principle that a valuable consideration is not a prerequisite to the existence of a duty to exercise due care. The law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another, to exercise some degree of care and skill in the performance of what he has undertaken, for nonperformance of which an action lies. [Citation omitted.] *892 . . . Stated in another way, where one undertakes an act which he has no duty to perform and another reasonably relies upon that undertaking the act must generally be performed with ordinary or reasonable care.” 232 Kan. at 488-89.

In that context, we also quoted Benjamin N. Cardozo, then Chief Judge of the Court of Appeals of New York: “ ‘The hand once set to a task may not always be withdrawn with impunity though liability would fall if it had never been applied at all. . . ” 232 Kan. at 489 (quoting Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167, 159 N.E. 896 [1928]).

In Circle Land & Cattle, we ultimately affirmed the jury verdict plaintiffs obtained in the district court, stating: “[W]e have concluded that an issue of fact as to the application of § 323 of the Restatement was present to be determined by the jury from the evidence in the case. We hold that the trial court did not err in overruling International Harvester’s motion for a directed verdict.” 232 Kan. at 491. Our reference to the existence of a duty under § 323 as an “issue of fact” is not consistent with our numerous subsequent statements holding the existence of a duty is a question of law for the court. See, e.g., Durflinger, 234 Kan. at 488; see also Calwell v. Hassan, 260 Kan. 769, 784-89, 925 P.2d 422 (1996) (applying § 324A; disapproving implication that duty issue of fact). But Circle Land It Cattle remains instructive on the type of evidence that must exist to give rise to a duty under § 323.

Several later cases examining § 323 also guide us in evaluating the facts before us. Among them, Burgess v. Perdue, 239 Kan. 473, 721 P.2d 239 (1986), is alone in recognizing the existence of a duty.

In Burgess, a physician voluntarily undertook to relay information between the mother of a deceased patient and the county coroner regarding the mother’s desire that an autopsy be limited. The physician failed to communicate the parameters of the mother’s consent, and the mother sued for outrage and negligent infliction of emotional distress when she learned that an autopsy of her son’s brain had been conducted and his body buried without it.

With regard to whether a duty arose under § 323, we said:

“ ‘In most of the cases finding liability, the defendant has made the situation worse, either by increasing the danger, by misleading the plaintiff into the belief *893 that it has been removed, or by depriving him of the possibility of help from other sources. Many of the decisions state that some such element is necessary, and that there can be no liability where the conduct in no way aggravates the situation or misleads the plaintiff, and he is left no worse off than he was before. . . . ’”239 Kan. at 481 (quoting Prosser and Keeton on Torts $ 56, pp. 381-82 [5th ed. 1984]).

We further stated:

“In the present case, [the mother] was misled as to the status of the autopsy. She could have acted on her own to prevent the brain autopsy had she not believed [the doctor] had taken care of the matter. While [the doctor] did not directly handle the body during the autopsy, he, at least, provided apparent authority for the coroner to proceed with a full autopsy. Though [the doctor] received no monetary or other type of benefit from the performance of the autopsy, he did take on the responsibility to relay the mother’s request for a partial autopsy to the coroner.

“The trial court correctly reasoned that [the doctor] created the situation which resulted in the alleged injury. The doctor assumed a duty which he was not required to assume. He did not follow through. Once performance was begun, [the doctor] owed a duty' of care toward the plaintiff.” 239 Kan. at 481-82.

In contrast to Burgess, in three other cases either we or a panel of our Court of Appeals has held that no § 323 duty arose under the facts.

In Wicina v. Strecker, 242 Kan. 278, 747 P.2d 167 (1987), we rejected the claim that a private high school and other defendants which had obtained medical insurance for student athletes had a duty to obtain disability insurance as well. “The defendants’ failure to purchase disability insurance did not increase the risk of the plaintiff being injured while playing football nor did the plaintiff rely on the defendants’ promise to purchase disability insurance when he decided to play football. Therefore ... § 323 does not apply here because plaintiff did not rely on any affirmative action taken by the defendants.” 242 Kan. at 285-86.

In Geiger-Schorr v. Todd, 21 Kan. App. 2d 1, 8, 901 P.2d 515 (1995), a panel of our Court of Appeals rebuffed the plaintiff physician’s attempt to invoke § 323. The court relied on evidence that any injury she suffered from not being told to purchase certain malpractice coverage was not “physical,” that defendant Kansas Medical Mutual Insurance Company had not assumed any duty to *894 provide notice to her, and that she had not relied on a later statement reassuring her about additional insurance. 21 Kan. App. 2d at 9-11.

In Chadwell v. Clements, 18 Kan. App. 2d 84, 847 P.2d 1344 (1993), an earlier Court of Appeals panel declined to apply § 323 to hold that a duty existed on the part of an employer. In that case, the plaintiff employee was injured by a motorist while the employee was using a marked crosswalk that connected a parking lot to the employer’s aircraft plant. Although the employer had sometimes used a security guard on the street to control traffic, the plaintiff had not relied on the guard. In addition, the panel was not persuaded that the employer exercised a level of control over the public street that would be necessary to create liability. 18 Kan. App. 2d at 90-91.

We note as well that cases interpreting the “undertaking” language in § 324A of the duty to third parties stress that a defendant’s agreement or affirmative act indicating a willingness to provide services is a threshold requirement for such a duty to arise. See, e.g., McGee v. Chalfant, 248 Kan. 434, Syl. ¶ ¶ 5, 6, 806 P.2d 980 (1991) (affirmative act required for undertaking; extent of undertaking defines scope of duty). The reasoning of these cases is equally applicable to the identical “undertaking” language in § 323. See Wicina, 242 Kan. at 285-86.

Honeycutt v. City of Wichita, 251 Kan. 451, 464, 836 P.2d 1128 (1992), one such § 324A case, demonstrates the need for a definitive undertaking before a duty will arise. In Honeycutt, we considered a school district’s potential for liability after a kindergartner was hit by a train as he walked home from school.

The evidence showed that parents had been advised at orientation that they were responsible for establishing a safe route to and from school for their children and that kindergartners were permitted to walk home. School district policies stated teachers were responsible for supervision of students during the school day and for a reasonable period of time before and after, but they also made it clear the teachers were not responsible for pupils in route to and from school if the pupils walked or furnished their own transportation. Schools kept children after school to wait for rides *895 only if that treatment was requested by the parents, and plaintiff s parents had not made such a request. Although establishment of a safety patrol at the railroad tracks where the boy was killed was within school personnel’s discretion, no patrols had been established during the relevant time.

On these facts, we held there was no agreement or affirmative act on the part of the school district that constituted an undertaking and no showing that plaintiff and his family relied on or accepted the allegedly assumed duty of protection. 251 Kan. at 468. We agreed with a New York court deciding a similar case that “[t]o hold otherwise would create an intolerable burden for the school.” 251 Kan. at 469 (citing Patella v. Ulmer, 136 Misc. 2d 34, 37, 518 N.Y.S. 2d 91 (Sup. Ct. 1987).

In this case, we also find the evidence to support a § 323 duty wanting.

The only fact supporting an undertaking is Braum’s emergency action plan. As mentioned above, we have no copy of a written policy; we have only a description of the policy from Braum’s memorandum in support of its motion for summary judgment. The implication from its language is that it is applicable only when a tornado is sighted or warning sirens can be heard at the store. In such circumstances, any customer who does not wish to leave “should be directed to the milk room.” In other words, customers who have weather information equal to the employees on duty are to be provided with an opportunity to make a choice. They may elect to leave the store and take their chances elsewhere, or they may elect to remain on the premises in the milk room and take their chances there. The store’s only responsibility is to make the milk room available. Customers remain free to evaluate the relative risks of their two options.

In our view, the emergency action plan does not speak at all to the situation presented here, i.e., when the employees of the Braum’s store possess potentially superior information about threatening weather still at some distance from the store and not evident to the customers. The emergency action plan does not compel any particular action by Braum’s employees in such a situation.

*896 Although Braum’s employees theoretically could have passed on all of the weather information in their possession and could have thrown open the milk room door to all customers, the emergency action plan did not mandate either. Like the private school in Wicina that purchased medical insurance but was not burdened, as a result, with a duty to buy disability insurance, Braum’s normative statement about one set of circumstances did not compel it to act as a weather service or tornado shelter in other circumstances. See Chadwell, 18 Kan. App. 2d at 90-92 (no § 323 duty; exercise of discretion to provide crossing guard at certain times does not give rise to provide crossing guard at all times); compare Honeycutt, 251 Kan. at 466-70 (no § 324A duty; same exercise of discretion); Hancock v. United States, 2001 WL 584357 (D. Kan. 2001) (unpublished opinion) (no § 324A duty; clearing part of sidewalk did not give rise to duty to clear entire sidewalk).

Even if Braum’s emergency action plan could be viewed as a sufficient undertaking to trigger a duty in these circumstances, we also note that tornadoes are notorious for their caprice. Kansas stories of one building being demolished while its next-door neighbor is left completely intact are legion. At the time Cunningham and Yandell left Braum’s, no one in that store could have said with any assurance of accuracy whether the place where they sat was more safe than the place they would travel. No one could have predicted exactly where shelter would be needed or whether the milk room would withstand any tornado’s destructive power. Hindsight is not enough to say that Braum’s conduct increased the risk of harm to plaintiffs as a matter of law.

And, finally, no duty arose under § 323 because there is no evidence that plaintiffs relied upon Braum’s emergency action plan. This separates this case from Circle Land is Cattle and Burgess, in which defendants’ behaviors induced plaintiffs’ detrimental reliance. Here Cunningham and Yandell cannot demonstrate that they looked to Braum’s for services they now argue Braum’s had a legal obligation to provide. All Kansans soon become acquainted with the wrath of the wind. It benefits no one to lay down a legal *897 rule that encourages people caught in that wrath to lay blame on others for their lack of awareness.

Affirmed.

The opinion of the court was delivered by

Allegrucci, J.:

The plaintiff, Brigitte Jackson, brought this action against K-Mart Corporation, defendant, (K-Mart) for per*701sonal injuries sustained when she slipped and fell in the clothing section of a K-Mart store in Manhattan, Kansas.

She appealed the district court’s granting of summary judgment for K-Mart on the grounds K-Mart did not have notice of the liquid spilled on the floor. The Court of Appeals reversed and remanded. Jackson v. K-Mart Corp., 16 Kan. App. 2d 716, 828 P.2d 941 (1992). We granted K-Mart’s petition for’review.

The facts in this case are stated in the Court of Appeals opinion:

“Brigitte Jackson entered the K-Mart department store located in Manhattan, Kansas, as a business invitee for the purpose of shopping for children’s clothing-. While -walking down an ’ '¿isle in the children’s clothing department, she slipped and fell ne¿r a round clothing rack.' In the middle of the tile floor near the rack, there was an accumulation of a green liquid substance that was apparently'avocado juice.

“Jackson did- not see the spilled juice, did not know how it got there, and did not know-how long it-had been there. After her fall, an unidentified K-Mart employee found a partially full can of avocado juice near the spill and told Jackson that she apparently-had slipped on the-substance. Later, Jackson overheard an unidentified K-Mart customer,say a woman had passed through the children’s clothing department accompanied- by a small child who was carrying a can of avocado juice. The. customer surmised the child disposed of the can by placing it on the floor underneath the clothing rack.

“K-Mart operates an in-store cafeteria and allows cafeteria patrons to remove food and drink from the cafeteria area and consume it on the shopping’floor. Jackson testified that K-Mart sells small cans of avocado juice in the cafeteria.” 16 Kan. App. 2d at 717-18.

We have reviewed the record and, with one exception, find the Court of Appeals’ statement of the facts to be accurate and in accordance with the uncontroverted facts suggested by the parties. The one exception is the statement that a K-Mart employee “found a partially full can of avocado juice near the spill.” 16 Kan. App. 2d at 717. Neither party contended such a statement as an unccintroverted’fact. It is uncontroverted that an únidentified K-Mart employee told Jackson that she had slipped on avocado juice. Furthermore, there appears to be no dispute that avocado juice was on the floor in the children’s clothing section. K-Mart attached to its petition for review a statement from one of its employees completed more than two years after Jackson fell. The employee stated she ‘looked around and found a can of juice (with a Wal-Mart price tag on it) and some of it was on *702the floor.” This statement is not part of the record on appeal, and therefore we will not consider it in determining this appeal.

The district court, in granting summary judgment in favor of K-Mart, stated in part:

“In' reviewing the evidence in the discovery record, the plaintiff has not established that K-Mart had actual notice that the spill occurred nor has the plaintiff produced evidence suggesting constructive notice based upon the length of time the spill was in existence. There is no evidence in the record to indicate how long the spill was in existence.

■ “It is the general rule in Kansas that when a customer is injured as the result of a fall from a dangerous condition not created by the proprietor, but traceable to persons other than those for whom the proprietor is responsible, proof that the proprietor was negligent with respect to the floor condition requires a showing that he had actual notice thereof or that the condition existed for such a length of time that, in the exercise of ordinary care, he should have known of it.

“This Court FINDS that plaintiff has not established that the defendant had actual notice regarding this spill on the floor and further, there is no competent evidence in the record to establish that the defendant had constructive notice of this condition. Based upon the principles set forth in the cases heretofore cited, the Court concludes that the evidence is insufficient to sustain plaintiff’s cause of action as a matter of law.”

The Court of Appeals reversed because it adopted the mode-of-operation rule, which allows a customer injured due to a condition inherent in the way the store is operated to recover without establishing that the proprietor had actual or constructive knowledge of the dangerous condition. The Court of Appeals remanded the case for determination of the factual question of whether the dangerous condition due to K-Mart’s allowing customers to carry food and drink onto the shopping floor was reasonably foreseeable. If so, the additional question of whether reasonable care had been exercised needed to be determined.

The Court of Appeals acknowledged that Kansas appellate courts had not expressly adopted the mode-of-operation rule. 16 Kan. App. 2d at 721. The Court of Appeals found several Kansas cases which it considered to be not inconsistent with a theory of liability based on the proprietor’s mode of operation. 16 Kan. App. 2d at 721-22 (citing Elrod v. Walls, Inc., 205 Kan. 808, 473 P.2d 12 [1970], and Little v. Butner, 186 Kan. 75, 348 P.2d *7031022 [I960]). And the Court of Appeals expressed the conviction that “the mode-of-operation rule is a natural extension of Little and Elrod.” 16 Kan. App. 2d at 724.

In her brief in the Court of Appeals, Jackson took the position that this mode-of-operation rule already was a part of Kansas slip- and-fall law. She relied primarily on Little.

The governing principles stated in Little are as follows:

“[T]he liability of a proprietor of a business is predicated upon his superior knowledge concerning dangerous conditions and his failure to warn persons present of the risk. With respect to the necessity of proof that the proprietor of a store in which the plaintiff was injured in a fall on an interior floor had notice of the dangerous condition, the cases are divided into two classes: (1) injuries to customers caused by dangerous conditions negligently created or maintained by the proprietor or his servants [citations omitted], and (2) injuries due to dangerous conditions coming about through no active fault of the proprietor and not involving an instrumentality employed by him in the conduct of his business [citations omitted]. Under the former, the condition is one which is traceable to the proprietor’s own act, that is, a condition created by him or under his authority, or is one in which he is shown to have taken action, and proof of notice is unnecessary. Under the latter, where the floor has been made dangerous by the presence of an obstacle which is traceable to persons for whom the proprietor is not responsible, absent a condition created by himself, proof that the proprietor was negligent with respect to the floor condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that in the exercise of reasonable care he should have known of it [citations omitted].” 186 Kan. at 81.

Mary Little’s petition alleged that she fell while grocery shopping “because the floor was made slick and slippery by meat samples dropped on the floor after being handed out to patrons, customers and children by a demonstrator carrying on a food demonstration for Rath’s meat products.” 186 Kan. at 77. Little further alleged that the grocery store and Rath had an agreement by which the demonstrator was employed; that the grocery store and Rath were aware of the likelihood that meat samples or parts of them would be dropped, and that the demonstrator was aware that meat products actually were being dropped. 186 Kan. at 77-78. The district court sustained the grocery store’s and Rath’s demurrers to Little’s petition.

On appeal Little argued that, as a business invitee in a grocefy store, she was entitled to assume that the floor was safe to walk *704on and that she could accomplish her shopping without injury. The grocery store and Rath contended that the “mere existence of debris on the floor where customers normally walk or are expected to walk, which was placed there by other customers, does not in and of itself constitute actionable negligence on the part of the proprietor.” 186 Kan. at 81. This court was not convinced by the argument of the grocery store and Rath:

‘The defendants, by their arrangement or agreement to conduct the demonstration, created a condition, the amended petition alleges, whereby they knew or should have known that patrons, customers and children of tender years would drop particles of meat on the floor causing it to become slick and slippery and creating a dangerous condition in that area of the store where the demonstration was being conducted. These allegations, which are admitted by the demurrers, clearly bring the instant case within the first class of cases making proof of notice unnecessary.” 186 Kan. at 82.

This court concluded that the demurrers should not have been sustained. Several questions, including the following, were specified for determination by the trier of fact: “Whether the defendants should have reasonably anticipated that the handing out of meat samples to customers and children in the store would result in meat particles being dropped, making the floor slick, slippery and dangerous for the use of plaintiff and other customers.” 186 Kan. at 82.

In the present case, Jackson argues that the dangerous condition, spilled juice on the floor, existed because K-Mart allowed customers to take food and beverages purchased at the in-store cafeteria to other parts of the store. Therefore, she argues, the dangerous condition is traceable to K-Mart, and proof of actual or constructive notice is not required.

K-Mart argues that Kansas law in this regard, before the Court of Appeals’ decision in the present case, was clear and concise and it is entitled to a judgment as a matter of law. This court’s decisions in Elrod and Little, however, tend to indicate otherwise.

This court has referred to two categories — transitory dangerous conditions traceable to the proprietor or its agents and transitory dangerous conditions not traceable to the proprietor or its agents. There has been considerable latitude in the proximity said to be traceable.

*705For the first category, proof of notice was not required. For the second, a plaintiff was required to show actual or constructive notice.

In Little, the transitory dangerous condition was the presence of meat samples on the store floor. Customers had dropped the meat samples. The proprietor had permitted a representative to offer meat samples to customers. Only in. this attenuated sense was the slippery floor condition created by the proprietor or its agent.

This court placed Little in the first category. In- doing so, it was taking a broader view of the concept of “creating a dangerous condition” than it had expressed in other cases. See, e.g., Magness v. Sidmans Restaurants, Inc., 195 Kan. 30, 402 P.2d 767 (1965) (defendant’s motion for directed verdict granted where ■plaintiff slipped on a pickle on the floor of cafeteria).

In Elrod, a jury returned a verdict in favor of Audrey Elrod and against the grocery store in which she slipped and fell on some produce — lettuce and perhaps a grape — on the floor of the produce aisle. The judgment was affirmed. This court reasoned as follows:

“When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor and if the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate.” 205 Kan. at 812.

This court’s language in Elrod is strikingly similar to the following excerpt from Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429, 221 A.2d 513 (1966):

“When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor. If the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate . . . .”

The New Jersey court went on to say that it is incumbent upon the proprietor to take the reasonably necessary precautions “whether the risk arises from the act of his employee or of someone else he invites to the premises.” 47 N.J. at 429.

The New Jersey court appreciated that its approach did “not square completely with the standard approach to the problem.” *70647 N.J. at 430. For the standard approach, the New Jersey court cited Annot., 61 A.L.R.2d 6. 47 N.J. at 430. The following statement summarizes a related annotation: “It is clear that no liability can attach to the proprietor in this situation where it is not shown that the proprietor had actual or constructive notice of the floor condition so created.” Annot., 61 A.L.R.2d 110, 138. It is further stated:

"[P]roof that the proprietor of a store or similar place of business had constructive notice that a floor within the business premises was dangerous as a result of the presence of an obstacle thereon requires proof that the floor condition existed for such a length of time that the proprietor, in the exercise of ordinary care, should have known of it.” 61 A.L.R.2d at 126.

The New Jersey court departed from the familiar principle of negligence which is stated in the annotation. K-Mart characterizes the mode-of-operation analysis as an “exception” to established principles. K-Mart asserts that “only eight jurisdictions have expressly adopted the ‘mode of operation’ exception.”

We note, however, that the modern status of the traditional principle includes “a broad trend toward liberalizing the rules restricting recovery by one injured on the premises of another.” Annot., 85 A.L.R.3d 1000, 1006. Various ways in which state courts have altered the traditional rule include the following: Where a showing of constructive notice is required, its dependence on proof that the condition had existed for an extended period of time before the fall occurred may be eliminated. 85 A.L.R.3d at 1004; see Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 150 N.W.2d 361 (1967). Another court held that where liability is alleged to arise from the proprietor’s failure “to inspect, maintain, or police his premises,” the plaintiff was not required to show notice of the specific transitory condition. 85 A.L.R.3d at 1005; see Glover v. Montgomery Ward and Company, 536 P.2d 401 (Okla. App. 1974). Other courts which have eliminated the requirement of proof of notice shift the burden of going forward once the plaintiff has shown the existence of a dangerous transitory condition and the resulting fall. 85 A.L.R.3d at 1005; see Gonzales v. Winn-Dixie Louisiana, Inc., 326 So. 2d 486 (La. 1976). Another approach is to deem the proprietor has constructive notice of the specific condition from a recurring con*707dition or conduct which makes it reasonably probable that a dangerous condition will occur. 85 A.L.R.3d at 1004.

Other courts which have focused on the reasonable foreseeability of a dangerous condition occurring avoid the fiction of requiring notice. In these courts,

“the plaintiff is not required to show such notice where the circumstances are such as to create the reasonable probability that the specific transitory condition would occur, because under such circumstances there is a risk of harm that is, or should be, reasonably foreseeable to the store owner or business proprietor.” 85 A.L.R. 3d at 1004.

Among the cases cited in the annotation as illustrative of this approach are the following: [Rhodes v. El Rancho Markets, 4 Ariz. App. 183, 418 P.2d 613 (1966); Jasko v. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972); F.W. Woolworth Co. v. Stokes, 191 So. 2d 411 (Miss. 1966); Wollerman v. Grand Union Stores, Inc., 47 N.J. 426; and Ciminski v. Finn Corp., 13 Wash. App. 815, 537 P.2d 850, rev. denied 86 Wash. 2d 1002 (1975). Several of these cases (or their progeny) are cited in the opinion of the Court of Appeals in the present case.

With regard to this approach, the burgeoning of the self-service method in retail marketing is cited as a significant factor in the evolution of the rule of liability.

“The self-service marketing method has achieved widespread acceptance within the relatively recent past in a variety of commercial enterprises, particularly supermarkets, discount department stores, and restaurants. While the self-service marketing method has economic advantages for the store owner or business proprietor and permits consumers the freedom to browse, examine, and select the merchandise that they desire, certain problems are inherent in the method which are infrequently encountered under traditional merchandising methods that involve individual customer assistance. For example, customers are often not as careful in handling merchandise as are employees; merchandise may be spilled, dropped, and left on the floor as a result of customer carelessness, or because customer attention is directed toward displayed merchandise and the customer is unaware of the spilled or dropped merchandise; and spilled or dropped merchandise may not immediately come to the attention of employees whose job it is to clean the spills or return the merchandise to display shelves or racks. For a recognition that the self-service marketing method is apparently one of the factors leading to the large number of falls in supermarkets, see the note ‘Supermarket Liability: Problems in Proving the Slip-and-Fall Case in Florida,’ at 18 U. Fla. L. Rev. 400, 455 (1965).

*708“It is suggested that by eliminating in certain self-service marketing situations the requirement that the plaintiff in a slip-and-fall case prove that the store owner or business proprietor had actual or constructive knowledge of the transitory condition allegedly causing the plaintiff’s fall, the courts are recognizing, either explicitly or implicitly, that by utilizing the self-service marketing method the store owner or business proprietor is himself creating the dangerous condition, and that therefore the owner or proprietor is deemed to have actual notice .of the condition, so that no proof of notice by the plaintiff is necessary.” 85 A.L.R.3d at 1004 n.15.

This court, in Elrod, used language which had been penned by the New Jersey court in describing the circumstances and drawing policy reasons for removing the slip-and-fall victim’s burden of proving notice. This court, however, did not eliminate the necessity of proof of notice: “We must conclude that there was sufficient evidence to go to the jury on the question of constructive notice and also on the question of whether the proprietor exercised due care in the maintenance of the produce aisle.” 205 Kan. at 813. In Elrod, the court adhered to the rule expressed in Little that the victim must show either that the proprietor had actual notice of the floor condition or that it . had existed long enough that the proprietor would be deemed to have notice. Little, 186 Kan. at 81.

In its opinion in the present case, the Court of Appeals observed that in Elrod this “court stopped short of adopting the mode-of-operation rule.” 16 Kan. App. 2d at 721. It expressed the view that the “Kansas case most consistent with recognizing a theory of liability based on the proprietor’s mode of operation is Little.” 16 Kan. App. 2d at 722.

It also expressed its conviction that the mode-of-operation rule is a natural extension of Little and Elrod. 16 Kan. App. 2d at 724. The Court of Appeals concluded that the rationale of the mode-of-operation cases was persuasive. We agree. In arriving at this conclusion, the Court of Appeals relied on the factually similar case of Tom v. S.S. Kresge Co., Inc., 130 Ariz. 30, 633 P.2d 439 (Ct. App. 1981). There, the Arizona Court of Appeals reversed the trial court’s entry of summary judgment in favor of Kresge and remanded for trial. Mae Tom slipped and fell on liquid, surmised to be a soft drink, spilled on the floor of a dry goods section of the department store. There was no evidence as to how the liquid was spilled or who spilled it. Soft drinks *709were sold in the store, and their consumption was not restricted to certain areas in the store. Because customers could carry the drinks through the store, spills were “easily foreseeable.” 130 Ariz. at 33.

The Tom decision represents an extension by the Arizona courts of the mode-of-operation rule which had been adopted, in reliance on the New Jersey case, Wollerman, for self-service food markets. The Tom court announced: “We now hold that the mode of operation rule provides a basis upon which a jury could infer negligence on the part of a proprietor, such as appellee [Kresge], who sells soft drinks that patrons may carry around the premises while shopping.” 130 Ariz. at 32.

In distinguishing a case in which it had declined to apply the mode-of-operation rule, the Arizona court noted that the key to its application “is the reasonable anticipation of patrons’ carelessness under the circumstances.” 130 Ariz. at 32.

In its opinion, the Court of Appeals quoted at length from another Arizona case, Chiara v. Fry’s Food Stores of Arizona, Inc., 152 Ariz. 398, 733 P.2d 283 (1987), as to the reasons for developing and adopting the mode-of-operation rule:

“ ‘THE MODE-OF-OPERATION RULE

“ ‘Courts in Arizona and in other jurisdictions have mitigated this seeming inequity by developing the “mode-of-operation” rule. The “mode-of-operation” rule looks to a business’s choice of a particular mode of operation and not events surrounding the plaintiff’s accident. Under the rule, the plaintiff is not required to prove notice if the proprietor could reasonably anticipate that hazardous conditions would regularly arise. [Citations omitted.] In other words, a third person’s independent negligence is no longer the source of liability, and the plaintiff is freed from the burden of discovering and proving a third person’s actions. A plaintiff’s proof of a particular mode-of-operation simply substitutes for the traditional elements of a prima facie case — the existence of a dangerous condition and notice of a dangerous condition. This is neither a new nor radical principle. We have recognized, in other contexts, a businessman’s duty to anticipate the hazardous acts of others likely to occur on his property, e.g., Chernov v. St. Luke’s Hospital Medical Center, 123 Ariz. 521, 522-23, 601 P.2d 284, 285-86 (1979) (hospital not entitled to summary judgment when plaintiff alleged that accident in hospital parking lot was produced by hospital’s improper maintenance of traffic control signals); see also Restatement (Second) of Torts § 344 (“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, *710negligent, or intentionally harmful acts of third persons . . . , and by the failure of the possessor to exercise reasonable care to [protect the public]”).’ Chiara, 152 Ariz. at 400.” 16 Kan. App. 2d at 723-24.

K-Mart contends that the adoption of the mode-of-operation rule would “transform such business operators into insurers of the safety of their premises.” We do not agree. The mode-of-operation rule is a limited exception and does not abrogate the general rule. The limited application of the rule was addressed in Chiara:

“The mode-of-operation rule is of limited application because nearly every business enterprise produces some risk of customer interference. If the mode-of-operation rule applied whenever customer interference was conceivable, the rule would engulf the remainder of negligence law. A plaintiff could get to the jury in most cases simply by presenting proof that a store’s customer could have conceivably produced the hazardous condition.” 152 Ariz. at 400-01.

A proprietor would not be liable for a dangerous condition on his premises caused by a third party absent actual or constructive notice of the condition, except where, based on the mode of operation, the proprietor could reasonably foresee that the dangerous condition would regularly occur.

K-Mart attempts to shift the focus to where the avocado juice was purchased. The application of the mode-of-operation rule is not dependent upon where the juice was purchased. K-Mart cites no authority, nor are we aware of any, that limits the application of the rule to conditions caused by a product purchased on the premises. Where the avocado juice was purchased is not relevant. The mode-of-operation rule focuses primarily on the proprietor’s mode of operating the business rather than the events surrounding plaintiff’s injury.

The Court of Appeals described the mode-of-operation rule as

“generally allow[ing] a plaintiff to recover without showing the proprietor’s actual or constructive knowledge of the condition if the plaintiff shows the proprietor adopted a mode of operation where a patron’s carelessness should be anticipated and the proprietor fails to use reasonable measures commensurate with the risk involved to discover the condition and remove it.” 16 Kan. App. 2d at 723.

We agree with the Court of Appeals’ reasoning and decision adopting the mode-of-operation rule. Applying this rule to the present case, two questions of fact remain to be determined: *711whether K-Mart could reasonably foresee that customers would regularly spill beverages on the floor and, if so, whether K-Mart failed to exercise reasonable care under the circumstances. Thus, the granting of summary judgment was improper.

The judgment of the Court of Appeals reversing the district court and remanding for trial is affirmed. The judgment of the district court is reversed and the case is remanded for trial.

Lockett and Abbott, JJ., not participating.

Adrian J. Allen and Michael J. Malone, district judges, assigned.

*110PETERS, J.

Plaintiff appeals from a summary judgment for defendant Nancy Christian in this personal injury action.

In his complaint plaintiff alleged that about November 1, 1963, Miss Christian told the lessors of her apartment that the knob of the cold water faucet on the bathroom basin was cracked and should be replaced; that on November 30, 1963, plaintiff entered the apartment at the invitation of Miss Christian; that he was injured while using the bathroom fixtures, suffering severed tendons and nerves of his right hand; and that he has incurred medical and hospital expenses. He further alleged that the bathroom fixtures were dangerous, that Miss Christian was aware of the dangerous condition, and that his injuries were proximately caused by the negligence of Miss Christian. Plaintiff sought recovery of his medical and hospital expenses, loss of wages, damage to his clothing, and $100,000 general damages. It does not appear from the complaint whether the crack in the faucet handle was obvious to an ordinary inspection or was concealed.

Miss Christian filed an answer containing a general denial except that she alleged that plaintiff was a social guest and admitted the allegations that she had told the lessors that the faucet was defective and that it should be replaced. Miss Christian also alleged contributory negligence and assumption of the risk. In connection with the defenses, she alleged that plaintiff had failed to use his “eyesight” and knew of the condition of the premises. Apart from these allegations, Miss Christian did not allege whether the crack in the faucet handle was obvious or concealed.

Miss Christian’s affidavit in support of the motion for summary judgment alleged facts showing that plaintiff was a social guest in her apartment when, as he was using the bathroom, the porcelain handle of one of the water faucets broke in his hand causing injuries to his hand and that plaintiff had used the bathroom on a prior occasion. In opposition to the motion for summary judgment, plaintiff filed an affidavit stating that immediately prior to the accident he told Miss Christian that he was going to use the bathroom facilities, that she had known for two weeks prior to the accident that the faucet handle that caused injury was cracked, that she warned the manager of the building of the condition, that nothing was done to repair the condition of the handle, that she did not say anything to plaintiff as to the condition of the handle, and that when plaintiff turned off the faucet the handle broke *111in his hands severing the tendons and medial nerve in his right hand.

The summary judgment procedure is drastic and should be used with caution so that it does not become a substitute for an open trial. This court in two recent cases has stated: “Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor . . . and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785]; Joslin v. Marin Municipal Water Dist., 67 Cal.2d 132, 146-147 [60 Cal.Rptr. 377, 429 P.2d 889].) A defendant who moves for a summary judgment must prevail on the basis of his own affidavits and admissions made by the plaintiff, and unless the defendant’s showing is sufficient, there is no burden on the plaintiff to file affidavits showing he has a cause of action or to even file counteraffidavits at all. A summary judgment for defendant has been held improper where his affidavits were conclusionary and did not show that he was entitled to judgment and where the plaintiff did not file any counteraffidavits. (de Echeguren v. de Echeguren, 210 Cal.App.2d 141, 146-149 [26 Cal.Rptr. 562]; Southern Pac. Co. v. Fish, 166 Cal.App,2d 353, 362 et seq. [333 P.2d 133].)

In the instant case, Miss Christian’s affidavit and admissions made by plaintiff show that plaintiff was a social guest and that he suffered injury when the faucet handle broke; they do not show that the faucet handle crack was obvious or even noneoneealed. Without in any way contradicting her affidavit or his own admissions, plaintiff at trial could establish that she was aware of the condition and realized or should have realized that it involved an unreasonable risk of harm to him, that defendant should have expected that he would not discover the danger, that she did not exercise reasonable care to eliminate the danger or warn him of it, and that he did not Imow or have reason to know of the danger. Plaintiff also could establish, without contradicting Miss Christian’s affidavit or his admissions, that the crack was not obvious and was concealed. Under the circumstances, a summary judgment is proper in this case only if, after proof of such facts, a judgment would be required as a matter of law for Miss Christian. The record supports no such conclusion.

Section 1714 of the Civil Code provides: “Every one is responsible, not only for the result of his willful *112acts, 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. ...” This code section, which has been unchanged in our law since 1872, states a civil law and not a common law principle. (Fernandez v. Consolidated Fisheries, Inc., 98 Cal.App.2d 91, 96 [219 P. 2d 73].)

Nevertheless, some common law judges and commentators have urged that the principle embodied in this code section serves as the foundation of our negligence law. Thus in a concurring opinion, Brett, M. R. in Heaven v. Pender (1883) 11 Q.B.D. 503, 509, states: “whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. ’ ’

California cases have occasionally stated a similar view: “All persons are required to use ordinary care to prevent others being injured as the result of their conduct.” (Hilyar v. Union Ice Co., 45 Cal.2d 30, 36 [286 P.2d 21]; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317 [282 P.2d 12]; see also Green v. General Petroleum Corp., 205 Cal. 328, 333 [270 P. 952, 60 A.L.R. 475]; Perkins v. Blauth, 163 Cal. 782, 786 [127 P. 50]; McCall v. Pacific Mail S. S. Co., 123 Cal. 42, 44 [55 P. 706]; Edler v. Sepulveda Park Apts., 141 Cal.App.2d 675 680 [297 P.2d 508]; Copfer v. Golden, 135 Cal.App.2d 623, 627-628 [288 P.2d 90]; cf. Dillon v. Legg, 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912].) Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy. (Lipman v. Brisbane Elementary School Dist., 55 Cal.2d 224, 229-230 [11 Cal.Rptr. 97, 359 P.2d 465]; Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 213 et seq. [11 Cal.Rptr. 89, 359 P.2d 457]; Malloy v. Fong, 37 Cal.2d 356, 366 [232 P.2d 241].)

A departure from this fundamental principle involves the *113balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Cf. Schwartz v. Helms Bakery Ltd., 67 Cal.2d 232, 237, fn. 3 [60 Cal.Rptr. 510, 430 P.2d 68]; Hergenrether v. East, 61 Cal.2d 440, 443-445 [39 Cal.Rptr. 4, 393 P.2d 164]; Merrill v. Buck, 58 Cal.2d 552, 561-562 [25 Cal.Rptr. 456, 375 P.2d 304]; Chance v. Lawry’s, Inc., 58 Cal.2d 368, 377 [24 Cal.Rptr. 209, 374 P.2d 185]; Lipman v. Brisbane Elementary School Dist., supra, 55 Cal.2d 224, 229-230; Stewart v. Cox, 55 Cal.2d 857, 863 [13 Cal.Rptr. 521, 362 P.2d 345]; Biakanja v. Irving, 49 Cal.2d 647, 650 [320 P.2d 16, 65 A.L.R.2d 1358]; Wright v. Arcade School Dist., 230 Cal.App.2d 272, 278 [40 Cal.Rptr. 812]; Raymond v. Paradise Unified School Dist., 218 Cal.App.2d 1, 8 [31 Cal.Rptr. 847]; Prosser on Torts (3d ed. 1964) pp. 148-151; 2 Harper and James, The Law of Torts (1956) pp. 1052, 1435 et seq.)

One of the areas where this court and other courts have departed from the fundamental concept that a man is liable for injuries caused by his carelessness is with regard to the liability of a possessor of land for injuries to persons who have entered upon that land. It has been suggested that the special rules regarding liability of the possessor of land are due to historical considerations stemming from the high place which land has traditionally held in English and American thought, the dominance and prestige of the landowning class in England during the formative period of the rules governing the possessor’s liability, and the heritage of feudalism. (2 Harper and James, The Law of Torts, supra, p. 1432.)

The departure from the fundamental rule of liability for negligence has been accomplished by classifying the plaintiff either as a trespasser, licensee, or invitee and then adopting special rules as to the duty owed by the possessor to each of the classifications. Generally speaking a trespasser is a person who enters or remains upon land of another without a privilege to do so; a licensee is a person like a social guest who is not an invitee and who is privileged to enter or remain upon land by virtue of the possessor’s consent, and an invitee is a *114business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them. (Oettinger v. Stewart, 24 Cal.2d 133, 136 [148 P.2d 19, 156 A.L.R. 1221].)

Although the invitor owes the invitee a duty to exercise ordinary care to avoid injuring him (Oettinger v. Stewart, supra, 24 Cal.2d 133, 137; Hinds v. Wheadon, 19 Cal.2d 458, 460-461 [121 P.2d 724]), the general rule is that a trespasser and licensee or social guest are obliged to take the premises as they find them- insofar as any alleged defective condition thereon may exist, and that the possessor of the land owes them only the duty of refraining from wanton or willful injury. (Palmquist v. Mercer, 43 Cal.2d 92, 102 [272 P.2d 26]; see Oettinger v. Stewart, supra, 24 Cal.2d 133, 137 et seq.) The ordinary justification for the general rule severely restricting the occupier’s liability to social guests is based on the theory that the guest should not expect special precautions to be made on his account and that if the host does not inspect and maintain his property the guest should not expect this to be done on his account. (See 2 Harper and James, The Law of Torts, supra, p. 1477.)

An increasing regard for human safety has led to a retreat from this position, and an exception to the general rule limiting liability has been made as to active operations where an obligation to exercise reasonable care for the protection of the -licensee has been imposed on the occupier of land. (Oettinger v. Stewart, supra, 24 Cal.2d 133, 138-139 [disapproving contrary cases]; see Rest.2d Torts, § 341; Prosser on Torts, supra, pp. 388-389.) In an apparent attempt to avoid the general rule limiting liability, courts have broadly defined active operations, sometimes giving the term a strained construction in cases involving dangers known to the occupier.

Thus in Hansen v. Richey, 237 Cal.App.2d 475, 481 [46 Cal.Rptr. 909], an action for wrongful death of a drowned youth, the court held that liability could be predicated not upon the maintenance of a dangerous swimming pool but upon negligence “in the active conduct of a party for a large number of youthful guests in the light of knowledge of the dangerous pool.”1 In Howard v. Howard, 186 Cal.App.2d *115622, 625 [9 Cal.Rptr. 311], where plaintiff was injured by-slipping on spilled grease, active negligence was found on the ground that the defendant requested the plaintiff to enter the kitchen by a route which he knew would be dangerous and defective and that the defendant failed to warn her of the dangerous condition. (Cf. Anderson v. Anderson, 251 Cal.App.2d 409, 413 [59 Cal.Rptr. 342]; Herold v. P. H. Mathews Paint House, 39 Cal.App. 489, 493-494 [179 P. 414].) In Newman v. Fox West Coast Theatres, 86 Cal.App.2d 428, 431-433 [194 P.2d 706], the plaintiff suffered injuries when she slipped and fell on a dirty washroom floor, and active negligence was found on the ground that there was no water or foreign substances on the washroom floor when plaintiff entered the theater, that the manager of the theater was aware that a dangerous condition was created-after plaintiff’s entry, that the manager had time to clean up the condition after learning of it, and that he did not do so or warn plaintiff of the condition.

Another exception to the general rule limiting liability has been recognized for cases where the occupier is aware of the dangerous condition, the condition amounts to a concealed trap, and the guest is unaware of the trap. (See Loftus v. Dehail, 133 Cal. 214, 217-218 [65 P. 379]; Anderson v. Anderson, supra, 251 Cal.App.2d 409, 412; Hansen v. Richey, supra, 237 Cal.App.2d 475, 479-480; Huselton v. Underhill, 213 Cal.App.2d 370, 374-376 [28 Cal.Rptr. 822]; Bylling v. Edwards, 193 Cal.App.2d 736, 746-747 [14 Cal.Rptr. 760]; Yazzolino v. Jones, 153 Cal.App.2d 626, 636 [315 P.2d 107]; Ashley v. Jones, 126 Cal.App.2d 328, 332 [271 P.2d 918].) In none of these cases, however, did the court impose liability on the basis of a concealed trap; in some liability was found on another theory, and in others the court concluded that there was no trap. A trap has been defined as a “concealed” danger, a danger with a deceptive appearance of safety. (E.g., Hansen v. Richey, supra, 237 Cal.App.2d 475, 480.) It has also been defined as something akin to a spring gun or steel trap. (Anderson v. Anderson, supra, 251 Cal.App.2d 409, 412.) In the latter case it is pointed out that the lack of definiteness in the application of the term “trap” to any other situation makes its use argumentative and unsatisfactory.

The cases dealing with the active negligence and the trap exceptions are indicative of the subtleties and confusion which have resulted from application of the common law principles *116governing the liability of the possessor of land. Similar confusion and complexity exist as to the definitions of trespasser, licensee, and invitee. (See Fernandez v. Consolidated Fisheries, Inc., supra, 98 Cal.App.2d 91, 96.)

In refusing to adopt the rules relating to the liability of a possessor of land for the law of admiralty, the United States Supreme Court stated: “The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifieations bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards ‘imposing on owners and occupiers a single duty of reasonable care in all the circumstances. ’ ’ ’ (Footnotes omitted.) (Kermarec v. Compagnie Generale, 358 U.S. 625, 630-631 [3 L.Ed.2d 550, 554-555, 79 S.Ct. 406]; see also Jones v. United States, 362 U.S. 257, 266 [4 L.Ed.2d 697, 705, 80 S.Ct. 725, 78 A.L.R.2d 233]; 2 Harper and James, The Law of Torts, supra, 1430 et seq.; Prosser, Business Visitors and Invitees, 26 Minn.L.Rev. 573; Marsh, The History and Comparative Law of Invitees, Licensees and Trespassers, 69 L.Q.Rev. 182, 359.)

The courts of this state have also recognized the failings of the common law rules relating to the liability of the owner and occupier of land. In refusing to apply the law of invitees, licensees, and trespassers to determine the liability of an independent contractor hired by the occupier, we pointed out that application of those rules was difficult and often abitrary. (Chance v. Lawry’s, Inc., supra, 58 Cal.2d 368, 376-379; cf. Hall v. Barber Door Co., 218 Cal. 412, 419 [23 P.2d 279]; Donnelly v. Hufschmidt, 79 Cal. 74, 75-76 [21 P. 546]; Burke v. Zanes, 193 Cal.App.2d 773, 778 [14 Cal.Rptr. 619].) In refusing to apply the common law rules to a known trespasser on an automobile, the common law rules were characterized as “unrealistic, arbitrary, and inelastic,” and it was *117pointed out that exceedingly fine distinctions had been developed resulting in confusion and that many recent cases have in fact applied the general doctrine of negligence embodied in section 1714 of the Civil Code rather than the rigid common law categories test. (Fernandez v. Consolidated, Fisheries, Inc., supra, 98 Cal.App.2d 91, 96 et seq.) Other cases which have criticized the approach of the common law rules on the basis of the status of the plaintiff with the resulting confusion include Hansen v. Richey, supra, 237 Cal.App.2d 475, 478; Miller v. Desilu Productions, Inc., 204 Cal.App.2d 160, 166 [22 Cal.Rptr. 36]; Hession v. City & County of San Francisco, 122 Cal.App.2d 592, 602 [265 P.2d 542].

There is another fundamental objection to the approach to the question of the possessor’s liability on the basis of the common law distinctions based upon the status of the injured party as a trespasser, licensee, or invitee. Complexity can be borne and confusion remedied where the underlying principles governing liability are based upon proper considerations. Whatever may have been the historical justifications for the common law distinctions, it is clear that those distinctions are not justified in the light of our modern society and that the complexity and confusion which has arisen is not due to difficulty in applying the original common law rules—they are all too easy to apply in their original formulation—but is due to the attempts to apply just rules in our modem society within •the ancient terminology.

Without attempting to labor all of the rules relating to the possessor’s liability, it is apparent that the classifications of trespasser, licensee, and invitee, the immunities from liability predicated upon those classifications, and the exceptions to those immunities, often do not reflect the major factors which should determine whether immunity should be conferred upon the possessor of land. Some of those factors, including the closeness of the connection between the injury and the defendant’s conduct, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the prevalence and availability of insurance, bear little, if any, relationship to the classifications of trespasser, licensee and invitee and the existing rules conferring immunity.

Although in general there may be a relationship between the remaining factors and the classifications of trespasser, licensee, and invitee, there are many eases in which no" such relationship may exist. Thus, although the foreseeability Of harm to an invitee" would ordinarily seem greater than the *118foreseeability of harm to a trespasser, in a particular case the opposite may be true. The same may be said of the issue of certainty of injury. The burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach may often be greater with respect to trespassers than with respect to invitees, but it by no means follows that this is true in every case. In many situations, the burden will be the same, i.e., the conduct necessary upon the defendant’s part to meet the burden of exercising due care as to invitees will also meet his burden with respect to licensees and trespassers. The last of the major factors, the cost of insurance, will, of course, vary depending upon the rules of liability adopted, but there is no persuasive evidence that applying ordinary principles of negligence law to the land occupier’s liability will materially reduce the prevalence of insurance due to increased cost or even substantially increase the cost.

Considerations such as these have led some courts in particular situations to reject the rigid common law classifications and to approach the issue of the duty of the occupier on the basis of ordinary principles of negligence. (E.g., Gould v. DeBeve (D.C. Cir.) 330 F.2d 826, 829-830 [117 App.D.C. 360]; Anderson v. Anderson, supra, 251 Cal.App.2d 409, 413; Taylor v. New Jersey Highway Authority, 22 N.J. 454 [126 A.2d 313, 317, 62 A.L.R.2d 1211]; Scheibel v. Upton 156 Ohio St. 308 [102 N.E.2d 453, 462-463]; Potts v. Amis, 62 Wn. 2d 777 [384 P.2d 825, 830-831]; see Comment (1957) 22 Mo.L.Rev. 186; Note (1958) 12 Rutgers L.Rev. 599.) And the common law distinctions after thorough study have been repudiated by the jurisdiction of their birth. (Occupiers’ Liability Act, 1957, 5 and 6 Eliz. 2, ch. 31.)

A man’s life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty.

It bears repetition that the basic policy of this state *119set forth by the Legislature in section 1714 of the Civil Code is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property. The factors which may in particular cases warrant departure from this fundamental principle do not warrant the wholesale immunities resulting from the common law classifications, and we are satisfied that continued adherence to the common law distinctions can only lead to injustice or, if we are to avoid injustice, further fictions with the resulting complexity and confusion. We decline to follow and perpetuate such rigid classifications. The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.

Once the ancient concepts as to the liability of the occupier of land are Stripped away, the status of the plaintiff relegated to its proper place in determining such liability, and ordinary principles of negligence applied, the result in the instant case presents no substantial difficulties. As we have seen, when we view the matters presented on the motion for summary judgment as we must, we must assume defendant Miss Christian was aware that the faucet handle was defective and dangerous, that the defect was not obvious, and that plaintiff was about to come in contact with the defective condition, and under the undisputed facts she neither remedied the condition nor warned plaintiff of it. Where the occupier of land is aware of a concealed condition involving in the absence of. precautions an unreasonable risk of harm to those coming in. contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence. Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it.

. It may be noted that by carving further exceptions out of the traditional rules relating to the liability to licensees or

*120social guests, other jurisdictions reach the same result (see Rest.2d Torts, supra, § 342; Annot., Duty of a possessor of land to warn adult licensees of danger (1957) 55 A.L.R.2d 525; 49-55 A.L.R.2d, Later Case Service (1967) 485; but cf. Hansen v. Richey, supra, 237 Cal.App.2d 475, 478-479; Saba v. Jacobs, 130 Cal.App.2d 717, 719 [279 P.2d 826]; Ward v. Oakley Co., 125 Cal.App.2d 840, 844-845 [271 P.2d 536]; Fisher v. General Petroleum Corp., 123 Cal.App.2d 770, 779-780 [267 P.2d 841]), that by continuing to adhere to the strained construction of active negligence or possibly, by applying the trap doctrine the result would be reached on the basis of some California precedents (e.g., Hansen v. Richey, supra, 237 Cal.App.2d 475, 481), and that the result might even be reached by a continued expansion of the definition of the term “invitee” to include all persons invited upon the land who may thereby be led to believe that the host will exercise for their protection the ordinary care of a reasonable man (cf. O’Keefe v. South End Rowing Club, 64 Cal.2d 729, 737-739 [51 Cal.Rptr. 534, 414 P.2d 830,16 A.L.R.3d 1]). However, to approach the problem in these manners would only add to the confusion, complexity, and fictions which have resulted from the common law distinctions.

The judgment is reversed.

Traynor, C. J., Tobriner, J., Mosk, J., and Sullivan, J., concurred.

BURKE, J.

I dissent. In determining the liability of the occupier or owner of land for injuries, the distinctions between trespassers, licensees and invitees have been developed and applied by the courts over a period of many years. They supply a reasonable and workable approach to the problems involved, and one which provides the degree of stability and predictability so highly prized in the law. The unfortunate alternative, it appears to me, is the route taken by the majority in their opinion in this case; that such issues are to be decided on a case by case basis under the application of the basic law of negligence, bereft of the guiding principles and precedent which the law has heretofore attached by virtue of the relationship of the parties to one another.

Liability for negligence turns upon whether a duty of care is owed, and if so, the extent thereof. Who can doubt that the corner grocery, the large department store, or the financial institution owes a greater duty of care to one whom it has *121invited to enter its premises as a prospective customer of its wares or services than it owes to a trespasser seeking to enter after the close of business hours and for a nonbusiness or even an antagonistic purpose? I do not think it unreasonable or unfair that a social guest (classified by the law as a licensee, as was plaintiff here) should be obliged to take the premises in the same condition as his host finds them or permits them to be. Surely a homeowner should not be obliged to hover over his guests with warnings of possible dangers to be found in the condition of the home (e.g., waxed floors, slipping rugs, toys in unexpected places, etc., etc.). Yet today’s decision appears to open the door to potentially unlimited liability despite the purpose and circumstances motivating the plaintiff in entering the premises of another, and despite the caveat of the majority that the status of the parties may “have some bearing on the question of liability . . . ,” whatever the future may show that language to mean.

In my view, it is not a proper function of this court to overturn the learning, wisdom and experience of the past in this field. Sweeping modifications of tort liability law fall more suitably within the domain of the Legislature, before which all affected interests can be heard and which can enact statutes providing uniform standards and guidelines for the future.

I would affirm the judgment for defendant.

McComb, J., concurred.

McGRAW, Justice.

Appellants Patricia A. Mallett and Ernest R. Mallet appeal a grant of summary judgment entered against them in their tort action, in which they sought damages for an injury Mrs. Mallet sustained when visiting *147the home of their friends, Seibert Pickens and Anita Pickens. The lower court granted summary judgment on the basis that Mrs. Mallet, as a social guest, was merely a licensee upon the property of the Pickenses, and that the Pickenses had no duty to Mrs. Mallet, save to refrain from, willfully or wantonly injuring her. The Mallets appeal, claiming that Mrs. Mallet should be considered an invitee, or, alternatively, that this Court should instead apply a duty of reasonable care upon landowners with respect to all non-trespassing entrants. Because we concur with the Mallets and choose to abolish the common law distinction between licensees and invitees, following the modern trend in the development of premises liability law, we must reverse the .decision of the lower court.

friend’s medical bills to their insurance carrier, which denied the claim. The Mallets filed suit, and the lower court granted summary judgment in favor of Mr. and Mrs. Pickens, ruling that-Mrs. Mallet was a licensee, and the Pickenses did not breach their, duty of care-toward Mrs. Mallet, which was merely the duty not to willfully or wantonly injure her. The Mallets claim the lower court erred in finding Mrs. Mallet a licensee, and they ask, alternatively, that we abolish the licensee/invitee distinction and adopt for landowners a duty of reasonable care under the circumstances for all non-trespassing entrants of land. Because we now abandon the common law distinction between licensees and invitees, we reverse the decision of the circuit court.

I.

FACTUAL BACKGROUND

On July 23, 1994, the appellants, Patricia and Ernest Mallet, decided to visit their good friends, the Pickens family. Mrs. Pickens had been injured some time before in an auto accident, and the Mallets wanted to wish her well in her recovery. Although the two families often visited one another, the Pickenses did not know that the Mallets were coming to visit that day.

The Pickenses were having work done to their home, so at the time of the visit, the only access to the front door of the house was by way of a set of temporary, wooden stairs, which did not have a railing or banister. Additionally, because of the construction, a masonry block had been left on the ground near the steps. When Mrs. Mallet exited the home after the visit, the stairs shifted under her weight and she fell, striking her head on the block. Mrs. Mallet suffered broken bones in her face that required surgery.

The Mallets’ health insurance carrier originally denied Mrs. Mallet’s claim, on the basis that a third party (the Pickenses) was at fault, and that the third party should pay the medical bills. The Pickenses submitted their

II.

STANDARD OF REVIEW

“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). A party moving for summary judgment faces a well-established burden: “A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syl. pt. 3, Aetna Cas. & Surety Co. v. Federal Insur. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

This Court’s right to respond to changes in the law is also manifest.. Though some have argued that it is not this Court’s prerogative to alter the common law in any substantial way, and that our Constitution prohibits such amendments, we have held that, “Article VIII, Section 13 of the West Virginia Constitution and W. Va.Code, 2-1-1, were not intended to operate as a bar to this Court’s evolution of common law principles, including its historic power to alter or amend the common law.” Syl. pt. 2, Morningstar v. Black and Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d 666 (1979).1 Wé elaborated on this holding in a later case:

*148In Morningstar v. Black and Decker Manufacturing Co., ... we discussed at some length the role of the English common law as precedent for this Court. There, we determined that Article VIII, Section 13 of our Constitution, and W. Va.Code, 2-1-1, which established the English common law as of 1863 as a part of our law, “were not intended to opérate as a bar to this Court’s evolution of common law principles, including-its historic power to alter or amend the common law.” -

We did not hold in Morningstar that we would ignore the English common law, but only that we are not required to accept it as forever binding us, to the point where we cannot make our own assessment of the reasonableness of an ancient common law rule in light of the present condition of our society.

Markey v. Wachtel, 164 W.Va. 45, 58, 264 S.E.2d 437, 445 (1979) (citations omitted).

Today we make our own assessment of the reasonableness of the ancient common law distinction between licensees and invitees, and find that it does not comport with the present condition of our society.

III.

DISCUSSION

A.

Current Law

West Virginia common law presently recognizes a difference regarding the duty owed to entrants of land. An entrant of land must fit into the licensee, invitee, or trespasser category and is owed a different duty of care from a landowner, depending upon ‘that status.

The duty owed to an invitee was outlined in Syl. pt. 2 of Morgan v. Price[, 151 W.Va. 158, 150 S.E.2d 897 (1966)], where we said:

“The owner or the occupant of premises owes to an invited person the duty to exercise ordinary care to keep and maintain the premises in a reasonably safe condition.” Point 2 Syllabus, Burdette v. Burdette, 147 W.Va. 313[, 127 S.E.2d 249 (1962) ].

However, in the case of a licensee, that is a person on another’s property with expressed or implied permission, the property owner does not have to correct the dangers arising from existing conditions. In the Syllabus of Hamilton v. Brown, ... [157 W.Va. 910, 207 S.E.2d 923 (1974),] we said:

“Mere permissive use of the premises, by express or implied authority ordinarily creates only a license, and as to a licensee, the law does not impose upon the owner of the property an obligation to provide against dangers which arise out of the existing condition of the premises inasmuch as the licensee goes upon the premises subject to all the dangers attending such conditions.” See also Miller v. Monongahela Power Co., 184 W.Va. [663,] 667-68, 403 S.E.2d [406,] 410-11 [ (1991) ].

Cavender v. Fouty, 195 W.Va. 94, 98, 464 S.E.2d 736, 740 (1995) (per curiam); accord Self v. Queen, 199 W.Va. 637, 487 S.E.2d 295 (1997) (per curiam). The third category is that of trespasser, which we have defined as follows:

A trespasser is one who goes upon the property or premises of another without invitation, express or implied, and does so out of curiosity, or for his own purpose or convenience, and not in the performance of any duty to the owner.

Syl. pt. 1, Huffman v. Appalachian Power Co., 187 W.Va. 1, 415 S.E.2d 145 (1991); accord Waddell v. New River Co., 141 W.Va. 880, 93 S.E.2d 473 (1956).2

B.

History of the Trichotomy

From the outset we must bear in mind that the categories of licensee, invitee, and trespasser evolved in a much different time, and in a significantly different legal climate than exists today. Scholars studying the *149subject regard the English cases of Parnaby v. Lancaster Canal Co., 11 Ad. & E. 223, 113 Eng. Rep. 400 (Ex. 1839), and Southcote v. Stanley, 1 H. & N. 247, 156 Eng. Rep. 1195 (Ex. 1856), as the progenitors of the lieen-see/invitee distinction, soon adopted by jurisdictions in this country, e.g. Sweeny v. Old Colony & Newport R.R. Co., 92 Mass. (10 Allen) 368, 87 Am. Dec. 644 (1865).3

The ancient precept of “sanctity of property,” and the concept of “privity of contract,” were the basic principles underpinning the employment of these categories. See Charles P. Dribben, Comment, The Outmoded Distinction Between Licensees and Invitees, 22 Mo. L.Rev. 186, 188 (1957). One of the main “benefits,” as seen through eyes of the time, of employing the licensee/invitee/trespasser trichotomy was the protection of property owners, who were a privileged minority, from the vagaries of juries, comprised mostly of land entrants and not landowners.4

Inherent in such a scheme was the notion that a jury could not be trusted to enter a just verdict; however, we have long ago cast off such suspicion of the jury system:

Chesterton, the “prince of paradox,” framing the experience of two millennia in Tremendous Trifles: The Twelve Men, said:

“Our civilization has decided, and very justly decided, that determining the guilt or innocence of men [natural or artificial] is a thing too important to be trusted to trained men. It wishes for light upon that awful matter, it asks men who know no more law than I know, but who can feel the things that I felt in the jury box. When it wants a library eata-logued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember right, by the Founder of Christianity.” Gilbert K. Chesterton, Tremendous Trifles: The Twelve Men 86-87 (1922).

Delp v. Itmann Coal Co., 176 W.Va. 252, 256, 342 S.E.2d 219, 223 (1986) (McGraw, J., dissenting) (alteration in original).5 In the case before us, the important matter of liability for Mrs. Mallet’s injuries was never presented to the jury; the old scheme served its purpose in limiting juror discretion, effectively eliminating the jury entirely from the consideration of the ease. This is the most pernicious side effect of the common law trichotomy, and it is no longer in step with the times.

We must examine the continuing relevance .of the common law trichotomy by viewing it in the context of the time in which it was developed. We must not overlook the fact that some of the hoary and “well-established” principles that held sway at the time the common law categories were introduced in the mid-19th Century included, slavery, see Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1856), and a lack of women’s suffrage, see Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed. 627 (1874) (confining the right of suffrage to males did not deprive women of property without due process of law), both of which, had they not been abandoned, would, to say the least, have had a negative impact on the recent composition of this Court.

*150Justice Starcher, joined by Justice Workman, recognized in their concurrence in Self v. Queen that many “established” rules must give way as society progresses:

When Justice Oliver Wendell Holmes spoke of “fixed and uniform standards of external conduct” in his 1881 lecture series (now found in The Common Law (1909)), we must keep in mind that Holmes was writing in a time when the harsh rules of contributory negligence, assumption of the risk, and the fellow-servant doctrine were taking root in the law. These rules, which were once new, shiny principles designed to immunize entrepreneurs and businesses from liability at a time of early industrialization, have since weathered and fallen in the face of time, reason, and a growing intolerance for human suffering that has accompanied the post-industrial era. See Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979) (abolishing contributory negligence rule and adopting modified comparative negligence principles); King v. Kayak Mfg. Corp., 182 W.Va. 276, 387 S.E.2d 511 (1989) (abolishing assumption of risk and adopting comparative assumption of risk); W. Va.Code, 23 — 1—1, et seq. (abrogating fellow-servant doctrine by providing workers’ compensation benefits to workers injured in the course of and as a result of their employment, including injuries by fellow employees).

199 W.Va. at 641, 487 S.E.2d at 299 (Starch-er, J., concurring).6 The outmoded distinction between invitees is just the sort of principle which, though perhaps once an accurate reflection of society’s values, no longer comports with our notions of fairness, and for that reason should be abandoned.

C.

Problems Inherent in the Old Scheme

Courts, in their efforts to distinguish between licensees and invitees, have felled whole forests and sacrificed them in an often vain attempt to explain the difference. These efforts have resulted in some opinions that strain the credulity of an honest observer. Courts on both sides of the Atlantic have pointed out the confusing complexities encountered when applying the common law classifications:

“A canvasser who comes on your premises without your consent is a trespasser. Once he has your consent, he is a licensee. Not until you do business with him is he an invitee. Even when you have done business with him, it seems rather strange that your duty towards him should be different when he comes up to your door from what it is when he goes away. Does he change his colour in the middle of the conversation? What is the position when you discuss business with him and it comes to nothing? No confident answer can be given to these questions. Such is the morass into which the law has floundered in trying to distinguish between licensees and invitees.”

Mariorenzi v. Joseph DiPonte, Inc., 114 R.I. 294, 306 n. 4, 333 A.2d 127, 133 n. 4 (1975) (abolishing distinctions between trespasser, licensee, and invitee) (quoting Dunster v. Abbot, 2 All E.R. 1572, 1574 (C.A.1953) (Eng.)).

Quite often, the facts of a particular premises liability case will require a departure from Aristotelian logic in its search for common sense realism. The Indiana Court of Appeals demonstrated the mental gymnastics sometimes necessary to hold onto the old distinction in Markle v. Hacienda Mexican Restaurant, 570 N.E.2d 969 (Ind.Ct.App.1991). In Markle, the plaintiff decided to eat at a restaurant, but upon driving into the strip mall parking lot where the restaurant was located, stopped when he saw a friend. *151He got out of his car to transfer an item to the friend’s car, and was injured when he stepped into a pothole. Although the court decided that a jury question existed as to the duty the restaurant owed the plaintiff, they found necessary the following exercise in arcane logic:

We would reach this same result if, for instance, Markle was discussing business with an associate while eating dinner at the restaurant and injured himself in the same parking lot by stepping into the same chuckhole when going out to his car for some papers to use in the discussion. One could say that Markle stepped out of his role as an invitee — although briefly — by leaving the restaurant to get the papers. However, it is also reasonable that the owners could anticipate patrons would' meet to discuss business over dinner. Thus, the question of whether the patron who has left the restaurant to get some papers from his car has stepped out of his role as invitee is one properly left to the trier of fact. Likewise, the question of whether the Shopping Center could have anticipated that Markle — or any other customer — would transact business in the parking lot is one properly left to the trier of fact.

Markle, 570 N.E.2d at 975 n. 2. A search of other jurisdictions reveals case after case where a court, bound by the old, common law categories, is forced to ask the wrong question.7

The question in instances such as this should not be, “was the plaintiff emblazoned with the magic letters ‘L’ or T at the moment of injury?,” but rather “was the parking lot safe?” Or, alternatively, “did the landowner exercise reasonable care under the circumstances, to ensure that the parking lot was safe for a reasonably foreseeable event, namely, that somebody might walk across it?”8 Framing the question in this manner is important, because it recognizes that neither landowners nor entrants make decisions with these archaic distinctions in mind.

Justice Stareher underlined this discord between modern expectations and ancient rules in his concurrence to Self v. Queen:

For example, if I have a yard sale to get rid of junk accumulating in my garage, and a neighbor comes into my garage to make a purchase, the neighbor is a business invitee. I owe the neighbor a duty of due care, and if the neighbor, exercising due care, gets hurt tripping over dangerous tools I carelessly forgot to remove from the walkway, I may be held responsible. But if that same' neighbor is coming intending to visit me, as he regularly does upon my standing invitation, and trips over *152the same tools, I won’t be liable because he is a licensee and I owe him no duty. As a licensee, he comes “upon the premises subject to all the dangers attending such [existing] conditions.” Cavender v. Fouty, 195 W.Va. 94, 98, 464 S.E.2d 736, 740 (1995) (quoting Syllabus, Hamilton v. Brown, 157 W.Va. 910, 207 S.E.2d 923 (1974)). This is silly. No one declines to clean the garage, shovel snow off a sidewalk, or fill in potholes in a yard with the licensee-invitee rule in mind.

199 W.Va. at 643, 487 S.E.2d at 301 (Starcher J., concurring). Clearly, the average person paying premiums for a homeowners policy would expect a friend or loved one to be covered in any situation that the mailman would be covered. If we wish for our law to be predictable, and we do, then we have a duty to shape it in such a way that it meshes with the general, reasonable assumptions that people make in them daily lives. Because the common law distinction between invitee and licensee does not meet that standard, it should be discarded.

D.

The Modem Trend

A growing number of courts have taken Occam’s Razor to this problem, in search for a simpler and more predictable rule. Nearly 40 years ago, the Supreme Court of the United States declined to apply the common law categories to admiralty law, and identified the conflict between a feudally-derived liability standard and modern tort theory:

' The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifi-cations among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards “imposing on owners and occupiers a single duty of reasonable care in all the circumstances.”

Kermarec v. Compagnie Generate Transatlantique, 358 U.S. 625, 630-31, 79 S.Ct. 406, 410, 3 L.Ed.2d 550, 554-55 (1959) (footnotes omitted). Clearly the justices underestimated the degree of hesitation, but today we do our part by wading out of the “semantic morass.”

The Supreme Court’s opinion in Kermarec paralleled the logic of the English Parliament, which two years earlier passed the Occupiers Liability Act, 5 & 6 Eliz. 2, ch. 31 (1957) (Eng.), abolishing the distinction between licensees, invitees, and so-called contractual visitors. Before so doing, the Lord High Chancellor of Great Britain appointed a committee to determine the need for reform, if any. The committee reported that:

We think ... that the existing distinction between invitees and licensees based on the presence or absence of some material interest on the part of the occupier, or alternatively, on some material interest common to occupier and visitor, is untenable as a rational ground for fixing the occupier with a higher duty of care towards the former than towards the latter .... Where, on the facts of the particular case, an occupier has been culpably careless and his visitor has been thereby injured, the courts have usually contrived to fix him with liability, and conversely have been able to absolve the occupier in cases where the accident could not, in popular language, fairly be said to have been his fault. But this has been done in spite of, rather than with the assistance of, the categories, which, as it seems to us, tend to embarrass justice by requiring what is essentially a question of fact to be determined by reference to an artificial and irrelevant rule of law.

Law Reform Committee, Third Report, Cmd. 9305 at 31 (1954), quoted in Charles P. Drib-*153ben, Comment, The Outmoded Distinction Between Licensees and Invitees, 22 Mo. L.Rev. 186, 194-95 (1957). Not lost upon this Court is the irony that we, who inherited this system from the Mother country, still cling to it when those who originally foisted it upon us have forsworn its use.

Soon after the opinion in Kermarec, several states abandoned the old scheme, starting with California in Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968). Over 30 years ago, the California court realized that the old classifications were outmoded:

Complexity can be borne and confusion remedied where the underlying principles governing liability are based upon proper considerations. Whatever may have been the historical justifications for the common law distinctions, it is clear that those distinctions are not justified in the light of our modern society and that the complexity and confusion which [sic] has arisen is not due to difficulty in applying the original common law rules — they are all to easy to apply in their original formulation — but is due to the attempts to apply just rules in our modern society within the ancient terminology.

Rowland, 69 Cal.2d at 117, 70 Cal.Rptr. at 103, 443 P.2d. at 567. The Rowland court could see that application of the old distinction in premises liability cases often yields a result that seems unjust by the standards of today, especially when viewed in light of the general principles of negligence that we employ in other tort cases.

Broad generalizations about the state of premises liability law in other jurisdictions are always subject to caveats and limitations. Several states have special rules for invited social guests; others limit landowner liability via recreational use statutes, or employ a distinction between “active” and “passive” negligence. Having said that, our research reveals that at least 25 jurisdictions have abolished, or largely abandoned She licensee/invitee distinction. Among these 25 jurisdictions that .have broken with past tradition, at least 17 have eliminated or fundamentally altered the distinction.9 Another eight of the 25 have eliminated even the trespasser distinction.10 And, of those re*154taining the old scheme, judges in at least five of those states have authored vigorous dissents or concurrences arguing for change.11

A look at some of these cases provides an example of the logic that persuades us to join the modern trend.12 In a recent Nebraska case, a father visited his daughter, who worked at a hosp¿tal, and injured his back when he slipped on snow-covered stairs as he left the building. The lower court held that, because the father was visiting the daughter, he was a licensee and could not recover in a suit against the hospital. The Supreme Court of Nebraska recognized this absurd result:

When he was injured, Heins was exiting a county hospital, using the main entrance to the hospital, over the lunch hour. If Heins had been on the hospital premises to visit a patient or purchase a soft drink from a vending machine, he could have been classified as an invitee.... However, he came to visit his daughter and was denied recovery as a matter of law.

Thus Heins was denied the possibility of recovering under present law, merely because on this trip to the hospital he happened to be a licensee rather than an invitee. In the instant case, the hospital would undergo no additional burden in exercising reasonable care for a social visitor such as Heins, because it had the duty to exercise reasonable care for its invitees. A patient visitor could have used the same front entrance at which Heins fell and would have been able to maintain a negligence action; however, Heins has been denied the opportunity to recover merely because of his status at the time of the fall.

Heins v. Webster County, 250 Neb. 750, 759-60, 552 N.W.2d 51, 56 (1996) (citation omitted). The Heins court perceived the obvious question, “did the hospital exercise reasonable care under the circumstances?” The court went on to abolish the common law categories: “We conclude that we should eliminate the distinction between licensees and invitees by requiring a standard of reasonable care for all lawful visitors.” Id. at 761, 552 N.W.2d at 57.

Another recent case in which a court abandoned the old scheme is Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d 882 (1998). In Nelson, Mr. Freeland requested that his friend Mr. Nelson pick him up at his home for a business meeting the two were going to attend. In doing so, Mr. Nelson tripped over a stick Mr. Freeland had left lying on his porch. Mr. Freeland won summary judgment, which Mr. Nelson appealed. After a lengthy, exhaustive, and well-written analysis of the history of the common law trichotomy, *155the North Carolina Supreme Court abandoned the licensee/invitee distinction:

Given the numerous advantages associated with abolishing the trichotomy, this Court concludes that we should eliminate the distinction between licensees and invitees by requiring a standard of reasonable care toward all lawful visitors. Adoptions of a true negligence standard eliminates the complex, confusing, and unpredictable state of premises-liability law and replaces it with a rule which forces the jury’s attention upon the pertinent issue of whether the landowner acted as a reasonable person would under the circumstances.

Nelson, 349 N.C. at 631, 507 S.E.2d at 892.

Some would argue, and indeed this Court has stated in the past,13 that the strength of the old system is that it engenders predictability. We are no longer persuaded by this argument. As we noted above, the average person has no idea that such a rule exists. Indeed, in situations such as the case before us, homeowners would probably imagine that if anyone is entitled to protection on their property (and coverage under a homeowners policy), surely their.Mends and loved ones would qualify. In fact, it is counterintuitive to most lay persons, and many a law student, that those closest to us are not afforded the same protection the law provides to the meter reader or the paper boy. Complicating this confusion among property owners is the fact that an entrant can cascade chameleon-like through the various “colors” of entrant status, from trespasser to licensee to invitee and back, in the course of a single visit.14

E.

A Standard Both New and Old

Today we hold that the common law distinction between licensees and invitees is hereby abolished; landowners or possessors now owe any non-trespassing entrant a duty of reasonable care under the circumstances. We retain our traditional rule with regard to a trespasser, that being that a landowner or possessor need only refrain from willful or wanton injury. Though our decision might seem a radical departure from past cases, in its basic philosophy it is not.

We have held since the 19th Century that: “Negligence is the violation of the duty of taking care under the given circumstances. It is- not absolute, but is always relative to some circumstances of time, place, manner, or person.” Syl. pt. 1, Dicken v. Liverpool Salt & Coal Co., 41 W.Va. 511, 23 S.E. 582 (1895). Although before today we have allowed the old labels to limit a court’s examination of a negligent act, we have recognized that the foreseeability of an injury is dispositive of the duty owed:

The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?

Syl. pt. 3, Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988); see Robertson v. Le-Master, 171 W.Va. 607, 612, 301 S.E.2d 563, 568 (1983). In so holding in Sewell, we were in accord with Justice Cardozo’s celebrated maxim: “The risk reasonably to be perceived defines the duty to be obeyed .... ” Palsgraf v. Long Island R. Co., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928).

We are quick to recognize, however, that foreseeability is not all that the trier of fact must consider when deciding if a given defendant owed a duty to a given plaintiff, *156even in the absence of the licensee/invitee distinction:

While the. existence of a duty is defined in terms of foreseeability, it also involves policy considerations including “the likelihood of injury, the-magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant.”

Harris v. R.A. Martin, Inc., 204 W.Va. 397, 401, 513 S.E.2d 170, 174 (1998) (per curiam) (quoting Robertson v. LeMaster, 171 W.Va. at 611, 301 S.E.2d at 567). Some factors that other jurisdictions have included in the analysis of whether a landowner or occupier has exercised reasonable care under the circumstances include the seriousness of an injury, see O’Leary v. Coenen, 251 N.W.2d 746, 751 (N.D.1977), the time, manner and circumstances under which the injured party entered the premises, and the normal use made of the premises, see Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 606 (1998); Heins v. Webster Co., 250 Neb. at 760-61, 552 N.W.2d at 57.

We hold that, in determining whether a defendant in a premises liability case met his or her burden of reasonable care under the circumstances to all non-trespassing entrants, the trier of fact must consider (1) the foreseeability that an injury might occur; (2) the severity of injury; (3) the time, manner and circumstances under which the injured party entered the premises; (4) the normal or expected use made of the premises; and (5) the magnitude of the burden placed upon the defendant to guard against injury.15

While we have long purported to follow the licensee/invitee/trespasser trichotomy without deviation, we have been willing, when the facts demanded it, to carve exceptions. The most obvious example is the exception created for children who were not invitees when injured: . .

Although the Attractive Nuisance Doctrine is not recognized in this State, this Court has adopted a rule quite similar to that Doctrine and has held that where a dangerous instrumentality or condition exists at a place frequented by children who thereby suffer injury, the parties responsible for such dangerous condition may be held liable for such injury if they knew, or should have known, of the dangerous condition and that children frequented the dangerous premises either for pleasure or out of curiosity.

Sutton v. Monongahela Power Co., 151 W.Va. 961, 971, 158 S.E.2d 98, 104 (1967). Accord Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964); Brown v. Carvill, — W.Va. -, — S.E.2d. -, 1998 WL 394654 slip op. (No. 23941, July 16, 1998). This rule focuses, not upon the child’s entrant classification, but upon the foreseeability of the harm. Although we do not today alter our treatment of the common law category of trespasser, the logic in Sutton is in harmony with our decision in the instant case.

But our focus has not always been so sharp. For many years, the licensee/invitee distinction has distracted us when examining a given negligent act, and forced us to ask the extraneous question of “who was injured?” before asking “what was the risk reasonably to be perceived?” For example, the holding in Self v. Queen, supra, precluded recovery by a woman who was injured when she stepped into a hole in her mother’s yard. Our analysis centered on the woman’s entrant classification, but never reached the question of the risk reasonably to be perceived, presented by the presence of the hole in the yard. Thus, the classifications have acted like a filter; when trying to determine if a defendant has acted negligently, the important question of foreseeability we have seen through a glass, darkly. By removing *157the invitee/lieensee distinction, we are now able to see the question of foreseeability, face to face.

IV.

CONCLUSION

We hold that the invitee/lieensee distinction is abandoned. Our cases that rely upon it, including Puffer v. Hub Cigar Store, 140 W.Va. 327, 84 S.E.2d 145 (1954), Hamilton v. Brown, 157 W.Va. 910, 207 S.E.2d 923 (1974), Miller v. Monongahela Power Co., 184 W.Va. 663, 403 S.E.2d 406 (1991), and their progeny, are overruled to the extent that they rely upon an invitee/lieensee distinction. In light of these developments, Mr. and Mrs. Mallet should be afforded another attempt at recovery; and all similar claims, in the future, should be adjudicated under the new standards we have articulated. Accordingly, the lower court’s grant of summary judgment is reversed and this case is remanded for proceedings consistent with this opinion.

Reversed and remanded.

*372 MEMORANDUM-DECISION and ORDER

HURD, District Judge.

I. INTRODUCTION

Plaintiff Nobel Bowen (“Bowen” or “plaintiff’) brought this tort action against defendants, National Railroad Passenger Corporation a/k/a Amtrak (“Amtrak” or the “railroad”) and CSX Transportation, Inc. (“CSX” or “defendants”) alleging that he sustained injuries due to their negligence. Defendants move for summary judgment pursuant to Rule 56. Plaintiff opposes. Oral argument was heard in Uti-ca, New York on June 14, 2005. Decision was reserved.

II. FACTS

On July 14, 2001, Bowen attended a party at a friend’s apartment in Castleton, New York. Castleton is small community on the Hudson River that is home to around 1,600 people. 1 Throughout the course of the evening Bowen and six friends consumed an undetermined amount of beer, played cards, and listened to music. After 9:00 plaintiff stepped out behind his friend’s apartment and sat in the doorway facing two sets of railroad tracks with his feet on the steps. The tracks were approximately twenty feet away. N.Y. R.R. Law § 83 prohibits persons not associated with the railroad from walking on or along the tracks.

The tracks are owned by CSX which leases the right of way to Amtrak which operates trains over them. While the area was clearly not open to the public, neither were there signs, fences, or barricades announcing the danger of active tracks. Bowen was aware that the tracks were in use, however, as he had heard one pass by earlier in the evening.

While Bowen’s memory of the events that followed is unclear, two of his friends testified as to how he came to be in the path of Amtrak Train No. 269. Christopher Soto (“Soto”) and Doug June (“June”) were out drinking beer with plaintiff near the rear entrance of the apartment when they heard a train approaching around 9:35 p.m. The train’s bell was ringing and its headlight was functioning properly. According to procedure, as the train approached the vicinity of the men it sounded its horn in two long blasts, one short blast, and then a long blast.

The northbound train was traveling at 107-108 mph. (The maximum speed allowed there is 110 mph.) June testified that he was standing at the edge of the grass line or on the rocks bordering the tracks as the train approached. Soto testified that both he and Bowen told June to get away from the tracks. Perhaps inebriated, June did not move and plaintiff ran towards the tracks, grabbed June with his left arm, and pulled him away. Plaintiff was struck by the rear portion of the engine. His arm was severed in the accident. He also suffered damage to his left leg and hip, and must use a wheelchair.

The train engineer, saw three people run toward the tracks as the train passed the site, but was unaware that the train struck Bowen until arrived it at the next stop, Albany/Rensselaer Station.

III. DISCUSSION

A. Summary judgment standard

Summary judgment is granted only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 *373 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir.1991). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine “whether the evidence presents a sufficient disagreement to require submission to a [factfinder] or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

“The party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists and that the undisputed facts establish her right to judgment as a matter of law.” Rodriguez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir.1995). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir.2002). Thus, “[s]um-mary judgment may be granted if, upon reviewing the evidence in the light most favorable to the nonmovant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).

A material fact is one that would “affect the outcome of the suit under the governing law,” and a dispute about a genuine issue of material fact occurs if the evidence is such that “a reasonable [factfinder] could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir.1997). The Court is “to grant summary judgment where the nonmovant’s evidence is merely colorable, conclusory, speculative or not significantly probative.” Schwimmer v. Kaladjian, 988 F.Supp. 631, 638 (S.D.N.Y.1997) (citing Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505).

B. Jurisdiction

Federal jurisdiction over this tort action is maintained pursuant to 42 U.S.C. § 1331 as it is applies to federally chartered corporations; and 42 U.S.C. § 1334 which limits that jurisdiction to those corporations in which the United States is the owner of more than one-half of its capital stock. Amtrak was created by an act of Congress and the United States owns more than one-half of its capital stock. See Eichelberg v. National R.R. Passenger Corp., 57 F.3d 1179, 1183 (2d Cir.1995); see also Union Pacific R. Cases, 115 U.S. 1, 5 S.Ct. 1113, 29 L.Ed. 319 (1885).

C. Negligence

In order to prove negligence, plaintiff must demonstrate (1) the existence of a legal duty owed to the plaintiff; (2) a breach of that duty; and (3) injury to plaintiff proximately resulting from such a breach. Leiching v. CONRAIL, 858 F.Supp. 337, 339 (N.D.N.Y.1994) (citing Akins v. Glens Falls City School Dist, 53 N.Y.2d 325, 338, 441 N.Y.S.2d 644, 424 N.E.2d 531 (N.Y.1981)). Bowen alleges that defendants failed to take proper measures to prevent or alert pedestrians of the potential train hazard. Plaintiff argues that it is reasonably foreseeable that persons would get too close to the tracks at the accident site where there are no posted warning signs or erected fences. Defendants move for summary judgment on the grounds that they did not breach their duty to warn, and do not have a duty to fence the tracks. Defendants also argue that plaintiffs conduct precludes a finding *374 that they were the proximate cause of his injuries. 2

Where there is no legal duty, there can be no breach, and therefore no liability in negligence. Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019 (N.Y.1976). Thus, “a determination of negligence begins with consideration of the duty owed, which is a matter of policy, rather than with foreseeability.” Sukljian v. Charles Ross & Son Company, Inc., 69 N.Y.2d 89, 97, 511 N.Y.S.2d 821, 503 N.E.2d 1358 (1989). The existence and scope of an alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the courts. McCarthy v. Olin Corp., 119 F.3d 148, 156 (2d Cir. 1997); Polka v. Servicemaster Management Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 634 N.E.2d 189 (1994); Sanchez v. State, 99 N.Y.2d 247, 252, 754 N.Y.S.2d 621, 784 N.E.2d 675 (N.Y.2002). “Duty is essentially a legal term by which we express our conclusion that there can be liability. It tells us whether the risk to which one person exposes another is within the protection of the law. In fixing the bounds of that duty, not only logic and science, but policy play an important role.” De Angelis v. Lutheran Medical Center, 58 N.Y.2d 1053, 1055, 462 N.Y.S.2d 626, 449 N.E.2d 406 (N.Y.1983) (citations omitted). As the Second Circuit explained,

[[Identifying the scope of an alleged tort-feasor’s duty is not something derived or discerned from an algebraic formula. Rather, it coalesces from vectored forces including logic, science, weighty competing socioeconomic policies and sometimes contractual assumptions of responsibility. New York courts fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability.

Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir.2000) (citations and quotations omitted).

The role of policy and the balancing of competing interests is related in New York’s standard of care imposed on landowners: “A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 (N.Y. 1976) (quoting Smith v. Arbaugh’s Restaurant, Inc., 469 F.2d 97, 100 (D.C.Cir.1972); Maheshwari v. City of New York, 2 N.Y.3d 288, 294, 778 N.Y.S.2d 442, 810 N.E.2d 894 (N.Y.2004)). These factors are considered concurrently with questions of foreseeability. Basso, 40 N.Y.2d at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868. The concepts of duty and foreseeability are often confused. “Foreseeability ‘is applicable to determine the scope of duty—only after it has been determined that there is a duty.’ ” McCarthy, 119 F.3d 148, 156 (quoting Pulka, 40 N.Y.2d at 785, 390 N.Y.S.2d 393, 358 N.E.2d 1019; Sanchez, 99 N.Y.2d at 252, 754 N.Y.S.2d 621, 784 N.E.2d 675).

“[A] railroad owes a duty of reasonable care to those on or near a railroad track.” Fuentes v. Conrail, 789 F.Supp. 638, 640 (S.D.N.Y.1992). While the existence of a duty is easily stated, the scope of that duty is significantly more compli *375 cated. It is obvious to plaintiff, and likely many others, that trains passing at 108 miles per hour through a residential area only yards from back stoops, is a danger to local residents. The initial inquiry is what duty does the railroad have to those who are not employees, passengers or otherwise invited to enter the railroad’s right of way, but must, or choose to, enter, upon its tracks.

While New York no longer frames duty of care in terms of the status of the entrant—such as in invitee, licensee, or trespasser'—the circumstances under which a.person enters another’s property is relevant to determining what would be reasonable to impose upon landowners in terms of safety measures. As the New York Court of Appeals stated, “[w]hile status is no longer determinative, considerations of who plaintiff is and what his purpose is upon the land are factors which, if known, may be included in arriving at what would be reasonable care under the circumstances.” Basso, 40 N.Y.2d at 241, 386 N.Y.S.2d 564, 352 N.E.2d 868. Accordingly, the law has developed such that it recognizes a higher duty of care where the railroad has knowledge of a person’s entry and the scope of the duty expands in relation to the knowledge. Knowledge need not be actual but may be imputed through notice of an entrant’s presence. Fuentes, 789 F.Supp. at 641. As one would expect, the scope of the duty owed contracts where a railroad lacks such knowledge and has a reasonable expectation that persons will not be present on its right of way.

The general rule is that the railroad is entitled to use its right of way. Where others must necessarily' cross the railroad at road and street crossings—and thus the railroad has knowledge of those who enter—the duty to those who enter and/or approach to enter is articulated in detail in various state and federal regulations. There are legally prescribed warnings, warning devices-, and/or barriers at such crossings. See e.g., 49 C.F.R. § 234.

Despite the miles of tracks that pass through populated areas, trespassers are not presumed to be inevitable entrants and deemed legally anticipated. On the contrary, they are legally sanctioned under N.Y. R.R. Law § 83 which prohibits anyone not associated with the railroad from walking on or along the tracks. Thus, prior to Basso when status was still the measuring stick for the duty of care, the Court of Appeals succinctly summarized the law in this area in Merriman v. Baker as: “Whoever walks upon, or along, the tracks of a railroad, except when necessary to cross the same upon some street, highway, or public place, violates the law and is like a trespasser, and the company’s servants are under no other obligation than to refrain from willfully, or.recklessly, injuring him.” 34 N.Y.2d 330, 357 N.Y.S.2d 473, 313 N.E.2d 773 (N.Y.1974); see also Bain v. New York Central Railroad, 342 F.2d 801 (2d Cir.1965). The duty owed is essentially to announce the passing of trains to allow trespassers to remove themselves from the right of way.

However, knowledge of the presence of trespassers may trigger a greater duty of care anyway. For example, where a private crossing becomes known to the railroad as having the nature of a public crossing, the law imposes a duty to sound a warning. Hooks v. New York C.R. Co., 327 F.2d 259, 262 (2d Cir.1964) (citing Zambardi v. South Brooklyn Ry. Co., 281 N.Y. 516, 24 N.E.2d 312 (1939)); Lamphear v. New York Cent. & H.R.R. Co., 194 N.Y. 172, 86 N.E. 1115 (1909). ‘TT]he acquiescence of the railroad [to such use] may create a license so as to impose upon the carrier to all persons so crossing a duty to exercise reasonable care.” Carpi *376 no v. Baker, 66 A.D.2d 201, 205, 412 N.Y.S.2d 617 (N.YApp. Div. 1st Dep’t 1979). Likewise, when a railroad acquiesces to children playing on railway-property, the legal effect of trespassing is less persuasive in limiting the duty of care owed. Rasmussen v. Palmer, 134 F.2d 780 (2d Cir.1943)

The duty is also greater if the railroad is actually aware of the presence of a trespasser. “Once it becomes apparent to [an] engineer that the person on the tracks cannot or will not remove himself from harm’s way, the engineer has a duty to make an emergency stop.” Raspente v. Amtrak, 111 F.3d 239, 242 (2d Cir.1997) (citing Alba v. Long Island R.R., 204 A.D.2d 143, 611 N.Y.S.2d 196 (N.Y.App. Div. 1st Dep’t 1994)); Lucas v. New York City Transit Authority, 163 A.D.2d 21, 557 N.Y.S.2d 919 (N.YApp. Div. 1st Dep’t 1990).

Plaintiff has not argued that defendants had any knowledge of persons on the tracks in the vicinity of the accident either before the date of the incident or in the moment prior to it. Thus it is unnecessary to analyze whether the defendant should have taken any extraordinary measures besides more warning measures and/or efforts to prevent entry.

Defendants emphatically characterize plaintiff as a trespasser. Were it that clear, this case would likely fall into the lot of cases that are decided on proximate cause grounds without ever addressing the issue of the scope of the duty owed. Trespassers, even children, are usually found to be the proximate cause of their own injuries when they enter upon railroad tracks and are harmed by passing trains. See Mooney v. Long Island R.R., 305 A.D.2d 560, 560, 759 N.Y.S.2d 380 (N.Y.App. Div. 2nd Dep’t 2003)( children proceeded around a safety gate); de Pena v. New York City Transit Auth., 236 A.D.2d 209, 210, 653 N.Y.S.2d 327 (N.Y.App. Div. 1st Dep’t 1997) (13-year-old and friends walking on tracks in subway tunnel); Gao Yi Feng v. Metro. Transp. Auth., 285 A.D.2d 447, 727 N.Y.S.2d 470 (N.Y.App. Div. 2nd Dep’t 2001); Prysock v. Metropolitan Transp. Auth., 251 A.D.2d 308, 309, 673 N.Y.S.2d 736 (N.Y.App. Div. 2nd Dep’t 1998); Gutter v. Conrail, 242 A.D.2d 283, 284, 661 N.Y.S.2d 42 (N.Y.App. Div. 2nd Dep’t 1997); Brown v. Long Island R.R., 304 A.D.2d 601, 602, 758 N.Y.S.2d 150 (N.Y.App. Div. 2nd Dep’t 2003).

The wrinkle in this case is that plaintiff isn’t exactly a trespasser. Accepting plaintiffs allegations as true, Bowen entered upon the land only fractions of a second before his injury for the purpose of saving his friend’s life. See Spooner v. Delaware, L. & W.R. Co., 115 N.Y. 22, 34, 21 N.E. 696 (N.Y.1889) ( holding that if plaintiff stepped upon the track in the humane effort to save younger children from danger, she was not a trespasser.); Eckert v. Long Island R. Co., 43 N.Y. 502 (N.Y.1871).

The question becomes how the fact that he was not a trespasser in the usual sense effects the railroad’s knowledge of his presence and therefore its duty under the circumstances. If not a trespasser, he is at best a foreseeable rescuer to whom the railroad might be liable under the foreseeable rescuer doctrine articulated in New York in Wagner v. International R. Co., 232 N.Y. 176, 180, 133 N.E. 437 (N.Y. 1921) (“The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path.”); Guarino v. Mine Safety Appliance Co., 25 N.Y.2d 460, 464, 306 N.Y.S.2d 942, 255 N.E.2d 173 (N.Y.1969) But that requires a finding that defendants were negligent in creating the situation that endangered the *377 person rescued. Hirschman v. Dry-Dock E.B. & B.R. Co., 46 A.D. 621, 61 N.Y.S. 304 (N.Y.App. Div. 1st Dep’t 1899). Defendants would no doubt argue that Bowen’s friend created his own danger when trespassing on the defendants’ tracks. See Guarino v. Mine Safety Appliance Co., 25 N.Y.2d 460, 306 N.Y.S.2d 942, 255 N.E.2d 173 (N.Y.1969). While the rescuing nature plaintiffs entry is relevant to the issue of proximate cause, the difference in duty owed to plaintiff as a rescuer is not expanded beyond what was owed to the one he rescued, a trespasser.

Turning to that duty, plaintiff argues that defendants were negligent in maintaining the physical circumstances of the scene of the accident. In essence, he argues that in some circumstances, like this one in Castleton, the presence of high speed train travel within communities triggers a higher standard of care than defendants undertook in simply warning those near the tracks of approaching trains through headlights and sounding horns. Since duty is commensurate with knowledge, this would require legally imputing knowledge of anticipated trespassers according to the track’s proximity with other structures, and the nature of the community through which the train travels. Plaintiff is unable to provide authority or precedent for imputing such knowledge based on community circumstances. This would require a significant, and undebatably burdensome, expansion of the duty owed considering under current policy the law imposes a greater duty of care only where the railroad has actual knowledge or notice of trespassers and the number of miles of tracks that run through structurally developed and populated communities.

Neither the proximity of the tracks to the apartment building nor the fact that the tracks run through a residential community are in and of themselves sufficient to impute knowledge of inevitable trespassing to raise the standard of care owed above the requirement to warn of passing trains and justify the imposition of the additional safety measures plaintiff seeks.

1. Duty to Warn

Plaintiff argues that the defendants’ warning measures were inadequate considering the circumstances of the accident site. He argues that reasonable care would include posted signs or a barrier of some sort to demarcate an otherwise unobstructed boundary. “While what degree of care is reasonable ordinarily presents a jury question, ‘in any negligence case the court must always determine as a threshold matter whether the facts will support an inference of negligence or lack of negligence.’ ” Leiching v. CONRAIL, 858 F.Supp. 337, 339 (N.D.N.Y.1994) (quoting Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794(Ct.App.1976))

It is not disputed that Bowen was aware that the train was coming. Plaintiff knew the tracks were in use. The horn sounded and the bell was ringing. The train’s light was on. His awareness is affirmed by the fact that he warned his friend to get away from the tracks. No trespassing signs would not have effected his decision to enter upon the tracks. He had already refrained from entering upon the tracks until his friend was in danger. Indeed, it was that awareness of the train that motivated him to enter upon the railroad property. It cannot be said that additional warnings would have had any effect on plaintiffs conduct. MacDonald v. City of Schenectady, 308 A.D.2d 125, 128, 761 N.Y.S.2d 752 (N.Y.App. Div. 3rd Dep’t 2003) (citing Liriano v. Hobart Corp., 92 N.Y.2d 232, 242, 677 N.Y.S.2d 764, 700 N.E.2d 303 (N.Y.1998); Leiching v. CONRAIL, 901 F.Supp. 95, 99 *378 (N.D.N.Y.1995); Miller v. Town of Fenton, 247 A.D.2d 740, 669 N.Y.S.2d 391 (N.Y.App. Div. 3rd Dep’t 1998)). Defendants did not breach their duty to warn by not placing posted signs at the site in question.

Plaintiff has argued that a barricade of some sort may have been required under the circumstances. While forgoing a detailed analysis of the differences between fences and barricades, it is noted that one purpose of such a construction is to'prevent entry altogether, which will be addressed under the duty to fence, and another is to provide a more effective notice of a boundary. The argument that a barricade or other structure that marked the boundary of the tracks was required as part of the duty to warn is weak on the instant facts because the track boundary is clearly marked by the change in land surface at that site. The railroad’s right of way is covered in gravel in contrast to the grassy patch behind the apartment where the men gathered.

Any suggestion that the railroad’s duty to warn should be extended to include a raised barricade or the like must be considered in light of the burden incurred in such a measure in contrast to the value of the additional information provided. As noted, at the instant site the surface of the land itself denotes the boundary. Defendants did not breach their duty to warn by not providing a. barrier to .serve as an additional warning mechanism.

2. Duty to Fence

Absent a statutory requirement, railroad owners do not have a duty to fence their property to prevent trespassing. Munger v. Tonawanda R. Co., 4 N.Y. 349 (N.Y.1850); McCarthy v. New York, N.H. & H.R. Co., 240 F. 602, 605 (2d Cir.1917). New York Railroad Law does include statutes that relate to the fencing of railroads. The first is part of the General Railroad Act of 1850 and relates to farm animals. N.Y. R.R. Law § 52 requires fencing to “prevent cattle, horses, sheep and hogs from going upon” the tracks. This provision has been construed to apply for the protection of animals only, not humans. Lefler v. Pennsylvania R. R., Inc., 203 Misc. 887, 890, 118 N.Y.S.2d 389 (N.Y.Sup.1952); Di Caprio v. New York Central R.R. Co., 231 N.Y. 94, 131 N.E. 746, (N.Y.1921). The other three statutes were enacted for the protection of people. The commissioner of transportation may require fencing along a railroad’s right of way at his or her discretion, in Queen’s County, and along tracks that involve an electrified third rail in cities that have more than one million inhabitants. See N.Y. R.R. Law § 52-b; N.Y. R.R. Law § 52-e; N.Y. R.R. Law § 52-a (McKinney’s 1991).

The common law does not impose a fencing requirement at sites like the one in question in Castleton, and the state legislature and commissioner have declined to impose the burden. While it is clear that statutes do not constitute “the maximum measure of care demanded,” exceeding these policy determinations would require extraordinary circumstances not present in the instant case. Markar v. New York, N.H. & H.R. Co., 77 F.2d 282, 284 (2d Cir.1935).

If it were established that railroads had a duty to fence their tracks where they were in close proximity to' homes, and running through a community such that trespassing should be anticipated, the facts of this case demonstrate that the burden would be too great to impose in relation to the risk. Cf., Pulka, 40 N.Y.2d at 786, 390 N.Y.S.2d 393, 358 N.E,2d 1019. (refusing to find duty in the context of third party actors in near parking garages because there was no logical limit to the duty). *379 Without undertaking any detailed statistical risk analysis in relation to particular track sites, it is apparent that the risk of human injury would necessarily correlate with the population total and/or density of the community through which the train traveled. Amtrak runs through a multitude of communities with higher populations, and population densities than Castle-ton with its 1,600 residents. Even if the duty to fence based on such factors was established, it is unlikely that after a mile by mile analysis, that duty would extend to communities as small as Castleton.

IV. CONCLUSION

Defendants did not breach their duty to warn plaintiff of the passing train by not posting signs or erecting a barricade. Defendants did not have a duty to fence their railroad tracks to prevent trespassing, and thus the rescue such trespass might invite.

Accordingly, it is

ORDERED that

1. Defendants’ motion for summary judgment is GRANTED.

2. The complaint is DISMISSED.

The Clerk of the Court is directed to enter judgment accordingly.

IT IS SO ORDERED.

Callow, J.*

The plaintiff, Steven Wiltse, slipped and fell in water that came from a hole in the roof of the defendant, Albertson's Incorporated, self-service grocery store. At trial, the court instructed the jury that the plaintiff had the burden of proving that this condition had "existed for a sufficient length of time and under such circumstances that defendant or defendant's employees should have discovered it in the exercise of ordinary care."

The issue is whether the trial court erred in instructing the jury that the plaintiff had the burden of proving actual or constructive notice of the water existing at defendant's grocery store, based on Pimentel v. Roundup Co., 100 Wn.2d 39, 666 P.2d 888 (1983).

In Pimentel, the plaintiff was injured when a can of paint struck her foot while she was looking through a magazine rack which contained books on home improvements. Pimentel, 100 Wn.2d at 41. There, the court held that the owner's actual or constructive knowledge of the hazard was not necessary if the existence of the hazard was reasonably foreseeable. Pimentel, 100 Wn.2d at 39. The new rule adopted in Pimentel was taken from a Colorado case, Jasko v. F.W. Woolworth Co., 177 Colo. 418, 494 P.2d 839 (1972). The Jasko court reasoned:

The basic notice requirement springs from the thought that a dangerous condition, when it occurs, is somewhat out of the ordinary. ... In such a situation the storekeeper is allowed a *454reasonable time, under the circumstances, to discover and correct the condition, unless it is the direct result of his (or his employees') acts. However, when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves. Then, actual or constructive notice of the specific condition need not be proved.

(Italics ours.) Jasko, 177 Colo, at 420-21. The court in Pimentel also stated that "the requirement of showing notice will be eliminated only if the particular self-service operation of the defendant is shown to be such that the existence of unsafe conditions is reasonably foreseeable." Pimentel, 100 Wn.2d at 50. That is not the case in the facts presented to us here.

There was no evidence that the leak in the roof was a result of Albertson's negligence nor that it came from the self-service operation of Albertson's. We will not abandon principles of negligence and make "self-service" stores liable whether they were aware or should have been aware of a dangerous condition.

Pimentel held that where the operating procedures of any store are such that unreasonably dangerous conditions are continuous or reasonably foreseeable, there is no need to prove actual notice of such conditions to establish liability for injuries caused by them. Pimentel, at 40. The Pimentel holding went on to say:

This does not change the general rule governing liability for failure to maintain premises in a reasonably safe condition: the unsafe condition must either be caused by the proprietor or his employees, or the proprietor must have actual or constructive notice of the unsafe condition.

Pimentel, at 49.

Here, none of the conditions expressed in Pimentel are present. That is, the conditions which led up to the plaintiff's accident were neither continuous, reasonably foreseeable, nor was the accident associated with the store's self-service mode of operation. The record bears this out.

First, there is no indication that the store manager or any employee was aware of the water on the floor previous to *455Mr. Wiltse's accident. The record indicates that the accident happened shortly after 7 p.m. on November 28, 1982. The store manager testified that he had been past the location of the plaintiff's fall minutes before the accident happened and did not notice, or have any previous notice, of any foreign substance on the floor.1 There was further testimony from an employee that she did not notice any water on the floor at the time she walked by the area to punch out.2 Thus, the record indicates that the store manager had *456no notice that an unsafe condition existed in the store until after the time of Mr. Wiltse's accident.

The water came to rest on the floor because of a previously unnoticed leak in the building's roof, not from the dairy case or any other means associated with the store's self-service operation. At trial, the plaintiff testified that:

Q: Now, you indicated a few moments ago that you slipped in some water but yet you didn't see the water. How is it you knew that it was water that you had slipped in?

A: Well, naturally I was laying in it. It was hitting me from a hole or the grate or whatever in the ceiling. It was hitting me in the chest. I assumed it was water. I couldn't imagine what else could be up there.

Thus, the hazard came from a leaking roof which could give way suddenly, unforeseen and without notice. This is not the same as a continuing danger resulting from the store's self-service mode of operation.

The Pimentel rule does not apply to all self-service operations, but only if the particular self-service operation of the defendant is such that it is reasonably foreseeable that unsafe conditions in the self-service area might be created. The trial judge understood the difference between the facts of the case at bar and the rule established in Pimentel when he denied the proposed Pimentel instruction of the plaintiff. He stated:

With respect to the first exception with regard to whether or not the Court should utilize the las [sic] as set forth in Pimentel, simply because the defendant admittedly is a self-service grocery store, I feel the law, which in substance in Pimentel eliminates the need to show notice of a dangerous condition, should be applied to those cases in which the condition arises out of the actual operation of such a self-service enterprise, and if it does, then such an instruction is appropriate.

But here we have admittedly a condition which really doesn't result from the self-service operation as such, but something entirely different, namely, a leaky roof, and the *457essence of the subject of liability is whether or not the defendant had notice of this condition or should have had notice, and I feel that we are therefore back to the basic law with respect to that duty as set forth in the Court's Instruction 13, based on Defendant's Proposed Instruction 19, and that it is necessary to give this in order to permit the defendant to argue its theory with respect to lack of notice.

(Italics ours.) Partial Report of Proceedings, vol. II, p. 53-54.

The common law allows a property owner to be put on notice of an unsafe condition prior to attaching liability. He must be negligent. Restatement (Second) of Torts § 343 (1965) reads as follows:

Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect against the danger.[3]

*458The plaintiff in a slip and fall case has traditionally had the burden of establishing that the proprietor's negligence was a cause in fact of his or her injury by showing that the proprietor had constructive notice of the specific dangerous condition:

[W]here the negligence of a storekeeper or restaurateur is predicated upon his failure to keep his premises in a reasonably safe condition, it must be shown that the condition has either been brought to his notice or has existed for such time as would have afforded him sufficient opportunity, in the exercise of ordinary care, to have made proper inspection of the premises and to have removed the danger.

Smith v. Manning's, Inc., 13 Wn.2d 573, 580, 126 P.2d 44 (1942), quoted in Pimentel, 100 Wn.2d at 44. See also Presnell v. Safeway Stores, Inc., 60 Wn.2d 671, 675, 374 P.2d 939 (1962); Restatement (Second) of Torts § 343 (1965).

The constructive notice rule requires the plaintiff to establish how long the specific dangerous condition existed in order to show that the proprietor should have noticed it. Under the traditional rule, the lack of such evidence precludes recovery. Brant v. Market Basket Stores, 72 Wn.2d 446, 451-52, 433 P.2d 863 (1967); Merrick v. Sears, Roebuck & Co., 67 Wn.2d 426, 429, 407 P.2d 960 (1965).

In Brant, a business invitee slipped and fell in the grocery store almost immediately upon entering because of an accumulation of water on the floor from weather conditions outside. The court, in affirming the trial court's dismissal, held that:

*459The plaintiff in this case has proven no more than that she slipped and fell on a wet floor and sustained certain injuries in consequence thereof. Our cases indicate that something more must be proved to establish that the defendant had permitted a situation dangerous to its invitees to exist.

Brant, 72 Wn.2d at 451.

The facts in Brant are more analogous to the present case than the facts in Pimentel. Like Brant, the plaintiff here was injured when he slipped and fell in the defendant's grocery store. There was no evidence of notice, constructive or actual, on the part of the defendant. Further, in Brant, as here, the plaintiff failed to prove that the defendant "permitted a situation dangerous to its invitees to exist." Brant, 72 Wn.2d at 451. The rule should implant in store owners the incentive to exercise due care.

In Kangley v. United States, 788 F.2d 533 (9th Cir. 1986), the Ninth Circuit appreciated the "intolerable burden on businesses" by applying the rule in Pimentel to slip and fall type cases. Kangley, 788 F.2d at 535. As with Brant, Kangley is more analogous to the present case than Pimentel. In Kangley, the plaintiff slipped and fell at Madigan Army Hospital and was awarded damages by the District Court. In reversing, the court stated:

The general rule in Washington for injuries caused by a transitory unsafe condition on property is that the owner or occupier of a building is liable for the injuries if it or its employees caused the unsafe condition or if it has actual or constructive knowledge that an unsafe condition exists. Pimentel v. Roundup Co., 100 Wash.2d 39, 44, 666 P.2d 888, 893 (1983); Hemmen v. Clark's Restaurant, 72 Wash.2d 690, 692, 434 P.2d 729, 732 (1967). Constructive knowledge exists if the unsafe condition has been present long enough that a person exercising ordinary care would have discovered it. Pimentel, 100 Wash.2d at 44, 666 P.2d at 893; Hemmen, 72 Wash.2d at 692, 434 P.2d at 732. The plaintiff has the burden of proving that the defendant had actual or constructive knowledge of the unsafe condition.

Further, Washington cases make it clear that the mere presence of water on a floor where the plaintiff slipped is not enough to prove negligence on the part of the owner or occupier of the building. See, e.g., Brant v. Market Basket Stores, 72 Wash.2d 446, 433 P.2d 863 (1967); Merrick v. Sears Roebuck & Co., 67 Wash.2d 426, 407 P.2d 960 (1965). To prove *460negligence, the plaintiff must prove that water makes the floor dangerously slippery and that the owner knew or should have known both that water would make the floor slippery and that there was water on the floor at the time the plaintiff slipped. See Brant, 72 Wash.2d at 451-52, 433 P.2d at 866-67.

The court's finding on this issue raises two questions for our review: (1) Whether the government actually knew that a dangerous condition existed or (2) whether the government had constructive knowledge of the existence of a dangerous condition. We review both of these questions for clear error. The first is a question of fact. The second is a question of application of law to facts in which issues of fact predominate: did the condition exist long enough that it should have been discovered? . . ..

The existence of a rug inside a door alone is not enough to establish that an owner or occupier knows the floor might be dangerous. See Kalinowski v. YWCA, 17 Wash.2d 380, 394-95, 135 P.2d 852, 859 (1943). The same is true of the fact that it is wet outside. If we were to hold that a person who slips inside a door where a mat has been placed on a day when it is wet outside may recover for injuries sustained without showing anything more, we would place an intolerable burden on businesses in areas like Tacoma where it is often wet outside. We are convinced that this is not the law in the state of Washington.

We hold that Kangley did not sustain her burden of proving that the government knew or should have known that a dangerous condition existed at the place and time she slipped and that the district court's finding that she had sustained that burden is clearly erroneous. . . .

(Footnote omitted.) Kangley, at 534-35.

Pimentel reaffirmed that most plaintiffs still need to show that a proprietor had actual or constructive notice of an unsafe condition. In creating an exception to this traditional rule, the court stated:

[WJhere the operating procedures of any store are such that unreasonably dangerous conditions are continuous or reasonably foreseeable, there is no need to prove actual or constructive notice of such conditions in order to establish liability for injuries caused by them. . . .

. . . This does not change the general rule governing liability for failure to maintain premises in a reasonably safe condition: the unsafe condition must either be caused by the proprietor or his employees, or the proprietor must have actual or constructive notice of the unsafe condition. Such notice need not be *461shown, however, when the nature of the proprietor's business and his methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable. This exception merely eliminates the need for establishing notice and does not shift the burden to the defendant to disprove negligence. The plaintiff must still prove that defendant failed to take reasonable care to prevent the injury.

Pimentel, 100 Wn.2d at 40, 49. We emphasized that this exception did not impose strict liability or even shift the burden to the defendant to disprove negligence. Rather, where the operation of a business is such that unreasonably dangerous conditions are continuous or reasonably foreseeable, it is unnecessary to prove the length of time that the dangerous condition had existed. The plaintiff can establish liability by showing that the operator of the premises had failed to conduct periodic inspections with the frequency required by the foreseeability of risk. Pimentel, 100 Wn.2d at 49.

Pimentel speaks to specific self-service operations and specific operating procedures of the store. Pimentel realized that certain departments of a store, such as the produce department, were areas where hazards were apparent and therefore the owner was placed on notice by the activity. Hence, the actual cause of the hazard is relevant in establishing whether the unreasonably dangerous condition was continuous or reasonably foreseeable because of the specific self-service operation. Because Pimentel is a limited rule for self-service operations, not a per se rule, the rule should be limited to specific unsafe conditions that are continuous or foreseeably inherent in the nature of the business or mode of operation. Risk of water dripping from a leaky roof is not inherent in a store's mode of operation.

Once discovered, the store must clean up the puddle resulting from a leaky roof as well as the puddle resulting from a leaky seltzer bottle, even though only the latter may be "inherent" to the nature and operation of its business. See King v. Seattle, 84 Wn.2d 239, 248, 525 P.2d 228 (1974) ("[liability extends to foreseeable results from unforeseeable causes"). If a customer had knocked over merchandise *462in the aisle and the next customer had immediately tripped over that merchandise, certainly the store owner should not be responsible without being placed on notice of the hazard. See also Wells v. Vancouver, 77 Wn.2d 800, 802-03, 467 P.2d 292 (1970); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 44, at 316-17 (5th ed. 1984).

A close reading of the record reveals that the puddle was located between two aisles. The plaintiff testified that:

Q: Could you describe that accident for the ladies and gentlemen of the jury?

A: I had just—I can't remember exactly what I had picked up in the aisle, but I had come around the end of the aisle and slipped in the water on the floor. It was between the two aisles as you go to the back of the store. . . .

(Italics ours.) Report of Proceedings, vol. II, p. 13. The dairy case has no bearing on the determination of this case.

The jury instruction given by the trial court was the proper one for this set of circumstances. The jury was given the instruction from Washington Pattern Jury Instruction 120.06.02. That instruction states:

In order to support a finding of negligence, a temporary unsafe condition of the premises which was not created by defendant or defendant's employees, [and which was not caused by negligence on defendant's part,] must have either been brought to the actual attention of defendant or defendant's employees or it must have existed for a sufficient length of time and under such circumstances that defendant or defendant's employees should have discovered it in the exercise of ordinary care.

WPI 120.06.02; Clerk's Papers, at 106 (jury instructions). In the present case, the trial court gave the proper jury instruction regarding the attendant circumstances presented. Further, there was no factual basis for the court to give a Pimentel instruction.

The trial court is affirmed and the Court of Appeals is reversed.

Dolliver, Andersen, Durham, and Smith, JJ., concur.

*463Utter, J.

(dissenting)—This case concerns the liability of a self-service grocery store for a puddle near a dairy case caused by a leak in the roof. The majority holds that not only the hazard itself, but also the specific cause must be foreseeable, and concludes the trial court did not err in instructing the jury that the plaintiff had the burden of proving actual or constructive notice of the puddle in defendant's store. Because the majority confuses the law and usurps the role of the jury, I dissent.

The unsafe condition in this case is a puddle of water on a smooth, rugless floor in defendant's self-service grocery store. The issue as to whether this puddle is an inherently foreseeable hazard within the meaning of Pimentel v. Roundup Co., 100 Wn.2d 39, 666 P.2d 888 (1983), should be left to the jury. In Pimentel, we held that plaintiffs need not establish either actual or constructive notice of reasonably foreseeable hazards in self-service establishments. 100 Wn.2d at 40. We explained that plaintiffs wishing to prove negligence without notice must show that the "nature of the proprietor's business and his methods of operation are such that the existence of unsafe conditions on the premises is reasonably foreseeable." Pimentel, 100 Wn.2d at 49. The specific cause of the hazard is not itself determinative. It is quite conceivable that a jury could find that a puddle caused by a leaking roof and located near a dairy display case is a reasonably foreseeable hazard within the definition of Pimentel. The trial court erred in failing to provide a Pimentel instruction.

The majority states there is no evidence that the leak in the roof resulted from defendant’s negligence. Majority, at 454. However, the record contains no information at all as to what caused the leak. The majority correctly states the rule in Pimentel, but states that it is not applicable to this case because "the conditions which led up to the plaintiff's accident were neither continuous, reasonably foreseeable, nor . . . associated with the store's self-service mode of operation." Majority, at 454. In making such a finding, the majority unnecessarily limits the rule established in *464Pimentel and usurps the role of the jury. Contrary to the majority's assertion, the hazard in this case can be labeled "inherent". The following facts reveal that a jury could find that the conditions which led to plaintiff's accident were associated with Albertson's self-service mode of operation.

As part of its method of operation, Albertson's creates displays that are designed to attract the customer's attention to specific sales or products. Partial Report of Proceedings, vol. I, at 48-49. The puddle was located about a ; foot and a half away from the corner of a display at the end of an aisle near the dairy case. Partial Report of Proceedings, vol. II, at 13-14. Plaintiff testified he thought his cart went down the produce aisle when he fell. Partial Report of Proceedings, vol. I, at 13. One of defendant's employees testified that there are times when there is some sort of water or liquid on the floor. Partial Report of Proceedings, vol. II, at 8. It is not difficult to imagine a shopper, distracted by displays, pushing a shopping cart in front of him, rounding a corner of an aisle, and slipping in unseen water. The specific cause of the puddle should not be determinative. Where the hazard is likely and the store makes every effort to direct the customer's attention away from the floor, the Pimentel exception applies.

The majority concludes that defendant had no notice of the puddle because two of its employees happened to walk by the area about 10 minutes or so before the accident, and neither one noticed any water on the floor. However, neither of these employees inspected the area, nor were they looking for any unsafe conditions. One was on her way to clock out at the end of her shift, the other was on his way to pick up some transmittals. The majority's analysis confuses the duty and causation elements. The majority states that the plaintiff traditionally has the burden to establish a proprietor's negligence as a cause in fact of an injury by showing constructive notice. Majority, at 458. Constructive notice relates to duty, not to causation: it triggers the duty to remove the hazard. See Presnell v. Safeway Stores, Inc., *46560 Wn.2d 671, 673, 374 P.2d 939 (1962); see also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Torts § 60, at 417 (5th ed. 1984). Regardless of the cause, the proprietor's duty—to respond to all reasonably foreseeable hazards—is not eliminated. Pimentel eliminates the notice requirement in a case such as this, and allows a jury to consider the nature of the defendant's business, the methods of operation, and whether the unsafe condition is reasonably foreseeable. This exception does not shift the burden and the plaintiff must still prove that defendant failed to take reasonable care to prevent the injury. Pimentel, 100 Wn.2d at 49. As the majority properly notes, "'[liability extends to foreseeable results from unforeseeable causes'". Majority, at 461 (quoting King v. Seattle, 84 Wn.2d 239, 248, 525 P.2d 228 (1974)).

The majority claims that the Ninth Circuit has recognized that application of Pimentel to slip and fall cases would place "an intolerable burden on businesses". This can only be construed as a confused argument that Pimentel should be overruled. The Ninth Circuit did not discuss the Pimentel "inherently foreseeable" exception in Kangley v. United States, 788 F.2d 533 (9th Cir. 1986), the case cited by the majority in support of this proposition. Neither Kangley nor the facts of this case can be cited as authority for overruling Pimentel. The facts of the present case show that the condition which caused the plaintiff's injury could be found to be inherently foreseeable.

The Brant case cited by the majority does not preclude use of a Pimentel instruction in this case. Brant v. Market Basket Stores, 72 Wn.2d 446, 433 P.2d 863 (1967). In Brant, there was no testimony that the water had made the floor slippery, therefore the court found the defendant had not permitted a dangerous condition to exist in the store. 72 Wn.2d at 448, 452. The majority finds the plaintiff in the present case failed to prove that the defendant " 'permitted a situation dangerous to its invitees to exist", just like the plaintiff in Brant. Majority, at 459. The majority forgets that we are not the jury in this case. The parties have asked *466us to determine whether the trial court properly refused a jury instruction which would have allowed the plaintiff to prove his case by showing that this particular hazard was reasonably foreseeable given the nature of defendant's business and its mode of operation. Our unanimous decision in Pimentel requires such an instruction in this case.

Dore, C.J., Brachtenbach, J., and Pearson, J. Pro Tem., concur with Utter, J.