Griebler v. Doughboy Recreational, Inc. , 160 Wis. 2d 547 ( 1991 )

SHIRLEY S. ABRAHAMSON, J.

(concurring). I join the opinion. I conclude, however, that the only difference between the words "known" and "obvious" in sec. 343A of the Restatement (Second) of Torts is that "known" adopts the subjective standard and "obvious," the objective standard.

Comment b to Restatement sec. 343A describes "known" as meaning that a person knows the condition exists, recognizes that it is dangerous, and appreciates the probability and gravity of the threatened harm. According to comment b, "obvious" means that both the condition and the risk are apparent to a reasonable person. The phrase "condition and risk apparent to a reasonable person" means, I believe, that a reasonable person would know that the condition exists, would recognize that it is dangerous, and would appreciate the probability and gravity of the threatened harm.

I believe that Wis. JI — Civil No. 1007 — Contributory Negligence Defined (1989) — properly states the law applicable to this case as follows: Every person in all situations has a duty to exercise ordinary care for his [or her] own safety. This does not mean that he [or she] is required to avoid injury; he [or she] must, however, exercise ordinary care to take precautions to avoid injury to himself [or herself] .... It is the duty of every person to exercise ordinary care to recognize and appreciate all dangers that are open and obvious to him [or her] or which should have been recognized and appreciated by a reasonably prudent person under the same or similar circumstances. See also Comment, Wis. JI — Civil No. 8020 — Duty of Owner Or Possessor of Land to User (1988).