Donahue v. Durfee
In Donahue v. Durfee, 780 P.2d 1275 (Utah Ct. App. 1989), the court of appeals stated that the common law version of the open and obvious danger rule was incompatible with a comparative fault tort system. Donahue, 780 P.2d at 1279.
The court further concluded that Restatement rule was a modification of the common law rule, but was still a child of the contributory fault scheme, and not sufficiently altered from the original to survive the adoption of the comparative fault system. Id. at 1278-79.
Specifically, the court rejected the duty-defining capacity of the Restatement rule, holding that "'deeming . . . the invitee's voluntary encounter with a known or obvious danger to excuse the landowner's duty'" would effectively and impermissibly "'resurrect contributory negligence as an absolute bar to recovery.'" Id.
Instead, the court of appeals decided, the open and obvious nature of a danger is just one factor to be considered in determining whether a landowner breached a duty of care. Donahue, 780 P.2d at 1280.