74	                         March 26, 2015	                        No. 12

             IN THE SUPREME COURT OF THE
                   STATE OF OREGON

                     Billie Charles TOWE,
                     Petitioner on Review,
                                v.
                     SACAGAWEA, INC.,
                dba Re/Max Equity Group, Inc.;
                  Re/Max International, Inc.;
                    and Rick J. Matthews;
                           Defendants,
                               and
                     Rick J. MATTHEWS
                    and Sherry Matthews,
                   dba Mountain View Rock;
              and Re/Max Ideal Properties, Inc.;
                    Respondents on Review.
           (CC 084951L2; CA A142775; SC S059896)

      On review from the Court of Appeals.*
  Argued and submitted November 5, 2012; resubmitted
January 7, 2013.
   Robert Udziela, Portland, argued the cause for petitioner
on review. With him on the brief were J. Randolph Pickett,
R. Brendan Dummingan, Kristen West, and Kimberly O.
Weingart, Pickett Dummigan LLP, Portland.
   Andrew Grade, Fotouhi Epps Hillger Gilroy Mau PC,
Lake Oswego, argued the cause and filed the brief for
respondents on review Rick J. and Sherry Matthews, dba
Mountain View Rock. David O. Wilson, Law Offices of
Thomas A. Andersen, Eugene, filed the brief for respondent
on review Re/Max Ideal Properties, Inc.
   Shenoa L. Payne, Haglund Kelley Jones & Wilder, LLP,
Portland, filed a brief on behalf of amicus curiae Oregon
Trial Lawyers Association.
______________
	  *  Appeal from Jackson County Circuit Court, G. Philip Arnold, Judge. 246
Or App 26, 264 P3d 184 (2011).
Cite as 357 Or 74 (2015)	75

   Before, Balmer, Chief Justice, and Kistler, Walters,
Linder, Brewer, and Baldwin, Justices.**
    LINDER, J.
   The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court
is affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.
    Plaintiff, who was riding his motorcycle on a private road that provided
access to several pieces of property, was injured when he ran into a cable that
the owners of the last property had stretched across the road to prevent entry
onto their land. Plaintiff brought a negligence action against the property owners
who put up the cable and a real estate company that had posted a sign showing
properties for sale up that road. The trial court granted summary judgment for
defendants, and the Court of Appeals affirmed. Held: (1) the evidence did not
require a jury to conclude that plaintiff was entirely responsible for the accident;
(2) the real estate company was entitled to summary judgment because there
was no evidence that its actions were the cause-in-fact of the accident; and (3) the
property owners were not entitled to summary judgment, because the evidence
permitted a conclusion that plaintiff was not trespassing, in which case the own-
ers would have owed members of the public traveling on the road adjacent to the
property a duty not to create or maintain an artificial condition that posed an
unreasonable risk of harm to those who might reasonably deviate from the public
way onto the owners’ property.
    The decision of the Court of Appeals is affirmed in part and reversed in part.
The judgment of the circuit court is affirmed in part and reversed in part, and the
case is remanded to the circuit court for further proceedings.




______________
	  **  Landau, J., did not participate in the consideration or decision of this case.
76	                                              Towe v. Sacagawea, Inc.

	          LINDER, J.
	        Plaintiff was injured while riding his motorcycle on
a private road that provided access to several pieces of prop-
erty. On the upper part of the access road, a cable had been
stretched across the road to prevent entrance to a quarry at
the end of the access road. Plaintiff failed to see the cable in
time to stop and was injured when his motorcycle hit the cable.
	        Plaintiff brought this action for negligence against
Rick and Sherry Matthews, doing business as Mountain
View Rock (Mountain View), who had placed the cable across
the access road where the road crossed onto their property.
Plaintiff joined Re/Max Ideal Properties, Inc. (Re/Max), as
a defendant in the action, on the theory that Re/Max, by
advertising property along the access road as “for sale,” was
at least partly responsible for causing plaintiff to ride his
motorcycle up the access road. The trial court granted sum-
mary judgment for defendants, concluding as a matter of
law that plaintiff was “100% responsible for his injuries and
no reasonable juror could find otherwise.” A majority of the
Court of Appeals affirmed on the alternative grounds that
Mountain View, as a matter of law, did not breach any duty
of care that it owed to plaintiff and that Re/Max, as a mat-
ter of law, could not be found by a reasonable jury to have
caused plaintiff’s injuries. Towe v. Sacagawea, Inc., 246 Or
App 26, 264 P3d 184 (2011). We allowed review and, as we
will explain, we reverse the decision of the Court of Appeals
in part and affirm in part, and we remand to the trial court
for further proceedings.
                                 I. FACTS
	        Plaintiff was injured while riding his motorcycle in
November 2006. The road on which plaintiff was injured is a
side road off Indian Creek Road in rural Jackson County that
provides access to four properties. One property is owned
by the Bureau of Land Management (the BLM); a second
property has a residence on it and is owned by the Clarkes;
a third property, which is unimproved, formerly was owned
by a person named Kinyon (the “Kinyon property”);1 and the
	1
        The property once owned by Kinyon actually consists of three five-acre par-
cels, one of which sits parallel to and abuts the access road, and two of which sit
Cite as 357 Or 74 (2015)	77

final property is a rock quarry owned by Mountain View. The
access road ends at the quarry. The access road is gravel-
surfaced up to Mountain View’s property; from that point
on, the road is paved.
	         Where the access road crosses onto Mountain View’s
property, and changes from gravel to paved road, Mountain
View placed a cable across the road in an effort to deter theft
and vandalism at the quarry. The cable was on or nearly
on Mountain View’s property line, and stretched between
two metal posts on either side of the road. The record sug-
gests that the quarry operated sporadically, usually with
a crew of two or three workers. On days when the quarry
operated, the first worker to arrive in the morning gener-
ally would unlock and unhang the cable by moving it to the
side of the road. Conversely, the last worker to leave in the
afternoon or evening would rehang the cable and relock it.
The evidence permits competing conclusions, however, as
to whether workers were consistent in rehanging the cable.
Although the record contains evidence that workers were
reliable about rehanging and locking the cable when they
left the quarry for the day, the record also contains evidence
that people had traveled the road on weekends and other
times when the quarry was closed, and did not notice the
cable and were not blocked by it from continuing along the
road onto Mountain View’s property.2

off the access road, adjacent to the first parcel. Although the record suggests that
the three parcels are separate lots subject to separate purchase and ownership,
for present purposes, we treat all three as one parcel.
	 When the depositions were taken in this case, no one could identify the
current owner of the property that Kinyon formerly had owned. Kinyon was an
investor who did not reside on the property, and his name did not mean anything
to the local residents. In recent years, the property had changed hands as many
as four times. For ease of reference, we refer to that property as the “Kinyon prop-
erty” even though it was not locally known as that.
	2
        Some of the facts that we recite are not disputed. Others are. Consistently
with the applicable standard of review, we describe the disputed evidence in the
light most favorable to plaintiff. See Loosli v. City of Salem, 345 Or 303, 306
n 1, 193 P3d 623 (2008) (after grant of summary judgment, facts are viewed by
reviewing court in light most favorable to nonmoving party); ORCP 47 C (on sum-
mary judgment, trial court must determine whether there is no genuine issue of
material fact “based upon the record before the court viewed in a manner most
favorable to the adverse party”). In doing so, we nevertheless highlight certain
key factual disputes, because those disputes have particular bearing on our later
determination of whether summary judgment should have been granted.
78	                                  Towe v. Sacagawea, Inc.

	        The evidence relevant to the cable’s condition was
also disputed. Viewed in plaintiff’s favor, the cable hung only
about 10 to 12 inches off the ground, and it was weathered
and rusted. Likewise, the metal posts on either side of the
road to which the cable was attached were rusted steel and
not particularly visible. An orange construction cone had
been threaded onto the cable, apparently to make the cable
more visible, but the cone was faded and covered with black
dirt. Three pieces of yellow caution tape also had been tied
along the cable. After the accident, a no trespassing sign
was found face up on the ground nearby, but not attached
to the cable or otherwise visibly posted at the boundary to
Mountain View’s property. According to Clarke, who occa-
sionally worked at the quarry, the no trespassing sign some-
times hung from the middle of the cable, but it “would fall
off” because of the way it was attached.

	        The parties also dispute the extent to which the
privately owned access road was open to the public. The
record establishes that the access road is privately owned by
three different parties. The first portion of the access road
is owned by the BLM. The next portion of the road is owned
by the owner of the Kinyon property. The last portion of the
access road—beginning at or about where the cable had been
strung—is owned by Mountain View. As earlier described,
the road also provides access to a parcel of land owned by and
resided on by the Clarkes, which is near the entrance to the
access road off Indian Creek Road. But the Clarkes do not
own the portion of the access road that is adjacent to their
property; instead, the BLM owns that portion of the road.

	        A sign was posted where the access road inter-
sected with Indian Creek Road—that is, where people might
turn off Indian Creek Road and onto the access road. The
sign was divided into three parts. The top third of the sign
identified Mountain View and listed phone numbers for
that business; the middle third identified the Clarkes and
listed their address; and the bottom third of the sign stated
“Private Road No Trespassing.” Rick Matthews, who owned
Mountain View, had the sign made and put it up sometime
in 2003 or 2004. There was no similar “no trespassing” sign
for either the BLM or the Kinyon properties. Rather, the
Cite as 357 Or 74 (2015)	79

only evidence as to whether the BLM permitted the public to
travel its portion of the road is that the BLM had previously
prohibited Mountain View from closing a gate that Mountain
View and Clarke, at some point in the past, had constructed
across the access road near the intersection with Indian
Creek Road. The only evidence as to whether the owner
of the Kinyon property did or did not permit public use of
the adjacent portion of the road is that, in January 2006
(about 10 months before the accident that resulted in this
case), Kinyon had listed his property for sale with Re/Max
and Re/Max, in turn, had posted a sign at the intersection
with Indian Creek Road with a directional arrow pointing
up the access road.
	        That sign with the directional arrow is significant
to plaintiff’s claim against Re/Max. In addition to the direc-
tional sign that Re/Max had placed at the intersection with
Indian Creek Road, Re/Max also had placed a second sign
on the Kinyon property that was visible from the access road
and that identified the property as “for sale.” That second
sign had been located about 120 to 150 yards before the
point where Mountain View’s cable hung across the road.
The Re/Max agent had visited the property and had seen the
cable stretched across the access road, near the boundary
line for Mountain View’s property. At some time before the
accident occurred, around the end of August or beginning
of September 2006, the Re/Max agent removed the sign on
the Kinyon property because the listing with Re/Max had
been withdrawn. The agent, however, inadvertently left the
directional sign posted at the intersection near the base of
the access road.
	        Plaintiff was familiar—at least, in a general way—
with the access road and the properties along it. Plaintiff
lives on another access road off Indian Creek Road, approx-
imately two miles from the accident site. He had worked
for Mountain View at the quarry for a few days 10 to 11
months before the accident. He knew that the area of the
road above the cable crossed on to Mountain View’s private
property and was owned by Mountain View. Plaintiff also
knew about the cable itself. At least once during the brief
time that he worked for Mountain View, plaintiff had taken
down the cable when he arrived in the morning; he thought
80	                                  Towe v. Sacagawea, Inc.

he had probably put it up once when he left as well. Plaintiff
also understood that the cable was up “quite often” when
the quarry was closed. But the cable was not up at least two
times when plaintiff had gone up the access road while the
quarry was closed, one of which was on a Sunday. Finally,
plaintiff, at the time of the accident, knew where the Kinyon
property was located and was aware that it had been for
sale. In fact, he and his girlfriend had driven up the access
road the spring before the accident when it was listed for
sale by Re/Max, saw the “for sale” sign marking the prop-
erty, and walked around the area on foot.
	        Plaintiff’s ongoing interest in property for sale in
the area was what prompted him to ride up the access road
on the day of the accident. His girlfriend had mentioned to
him the weekend before, and again the weekend of the acci-
dent, that there were three or four properties for sale up
the access road. She also had said that they would not sell,
because the owner of Mountain View would not allow an
easement on the road to access them. In plaintiff’s words,
he believed those properties “must be on [Mountain View’s]
private road where the cable is—you know, where the cable
is, up that paved road or something.”
	        The accident occurred after 4:00 p.m. on Sunday,
November 5, 2006. Plaintiff and another person, Koch, were
riding their motorcycles on Indian Creek Road. Plaintiff
was following Koch, because Koch had been having some
mechanical difficulties with his motorcycle. Koch turned
onto the access road; plaintiff did not know why Koch
decided to take that route. Plaintiff decided, however, that
he would follow Koch so that he could look at the property
that his girlfriend had told him was for sale up the road.
He saw the Re/Max directional sign at the entrance to the
access road, which caused him to think about the properties
that his girlfriend had described. As plaintiff testified in his
deposition:
   	 “A  * * * The reason for me to go down that road is more
   property for sale, where is it. That was the reason I went
   down there.
   	 “Q  Well, the first time you said that the reason he
   went down the road was you were following [Koch], right?
Cite as 357 Or 74 (2015)	81

    	 “A  Right. * * * I wondered why he [Koch] turned on
    that road. And then the Re/Max [directional] sign is down
    here at the bottom of the road; I said well, might as well go
    up there and see where there’s properties for sale.”
	         Koch took the lead as the two rode up the access
road, and plaintiff followed. As they rode past the Kinyon
property and towards Mountain View’s property, plaintiff
was looking for the properties that his girlfriend had told
him about. Plaintiff saw that the sign that had been on
the Kinyon property was no longer there, but he thought
that the properties his girlfriend had mentioned were in
the same general vicinity, probably on Mountain View’s
privately owned portion of the road, and plaintiff was look-
ing for “another sign” to indicate where they were. Plaintiff
characterized his eyes as “wandering,” looking for a posted
sign that would indicate where there was “more property”
for sale.
	        What plaintiff did not think about was the cable. He
expressly admitted that he “forgot” about it. Koch, likewise,
was not thinking about the cable. He had traveled the road
alone on his motorcycle before, and had done so as many as
15 times, but the cable had not been up and blocking the
road on those occasions, so Koch had never before noticed
or seen it. Koch nevertheless spotted the cable in time to
slow and stop before reaching it. Following from behind,
plaintiff saw Koch begin to slow; plaintiff passed Koch,
accelerating slightly as he did so; and then plaintiff glanced
back to see if Koch was following him.3 During that brief,
	3
      Both the Court of Appeals majority and dissent characterized Koch as
stopping 100 yards short of the cable, and described plaintiff as having seen the
cable for the first time when he was 25 yards away from it. Towe, 246 Or App
at 30 (majority); Id. at 47 (Sercombe, J., dissenting). The record, in our view, is
inadequate to support those observations, for two reasons. First, plaintiff offered
the estimate that Koch stopped 100 yards from the cable. He then qualified his
estimate by saying that the distance was “probably shorter” than that and he was
guessing about the distance and would need to go back to the site and measure
it. Counsel conducting the deposition assured plaintiff that counsel was just ask-
ing for “an estimate.” Second, the estimates that Koch offered were dramatically
different and arguably more favorable to plaintiff than plaintiff’s own. They are
also, however, difficult to credit. Koch estimated that he was only 50 feet or so
from the cable when he saw it, that plaintiff looked back at him after that, and
that Koch then came to a stop 20 feet from the cable. But Koch also described
plaintiff as having looked back at Koch and then ahead again at 20 feet away
from the cable, at which point was unable to stop and rode into the cable. Koch’s
82	                                              Towe v. Sacagawea, Inc.

split-second glance, plaintiff saw that Koch had stopped and
had a shocked look on his face. Plaintiff immediately looked
ahead, at which point he saw the cable. He engaged his
brakes, but barely had time to slow before his motorcycle hit
the cable, causing it to “slingshot” back, seriously injuring
him. Plaintiff estimated that his fastest speed while trav-
eling on the access road was between 25 and 30 miles per
hour, and that he was traveling only somewhat less than
that speed when his motorcycle hit the cable.
              II.  PROCEDURAL POSTURE
	        Plaintiff brought an action for negligence against
Mountain View and Re/Max in circuit court. The crux of
the allegation against Mountain View was that it had been
negligent in hanging the cable across the access road and
failing to either mark the cable adequately or warning that
it was there, given that Mountain View knew or should have
known that the general public frequently traveled on the
access road and that the public had been invited to inspect
real property for sale on that road. The crux of plaintiff’s
allegation against Re/Max was that it had been negligent in
putting up the sign that directed interested parties up the
access road toward the cable, while also removing the sec-
ond sign marking the Kinyon property for sale, the absence
of which caused plaintiff to be distracted looking property
for sale and thus not notice the cable, which Re/Max had not
warned was there.
	        Both Mountain View and Re/Max moved for sum-
mary judgment on multiple grounds. As relevant to the
issues presented here, Mountain View argued that, as a
matter of law, it had met the requisite standard of care for
a property owner regardless of whether plaintiff was a tres-
passer or a licensee (although it asserted that plaintiff was
a trespasser). Mountain View also maintained that plaintiff
was wholly responsible for his own injuries. Re/Max asserted
that it was not a property owner and so had no duty of care
to warn plaintiff of dangers on adjacent land. It also argued
estimates would have meant Koch stopped only one second after he first saw the
cable, given his estimate that they were traveling 25 miles per hour. In all, we are
not satisfied that a reasonable inference can be drawn on this record about how
far Koch or plaintiff were from the cable when Koch saw the cable, began to slow,
and came to a stop.
Cite as 357 Or 74 (2015)	83

that plaintiff was solely at fault for not seeing the cable and
that Re/Max did nothing to prevent plaintiff from seeing the
cable. Finally, Re/Max argued that, under ordinary negli-
gence principles, as a matter of law it should not be subject
to liability for hazards on the access road based merely on
its conduct in posting a real estate directional sign at the
entrance to the access road.
	        The trial court granted summary judgment for
defendants, concluding that plaintiff was solely responsible
for the accident. As the trial court explained in its order:
   “None of the defendants can be found negligent in not fore-
   seeing [that plaintiff] would disobey the law requiring
   motorists to keep a lookout by taking his eyes off the road to
   turn around. Even without considering the other respects
   in which [plaintiff] failed to keep a lookout (by having his
   eyes ‘wander’), at a minimum, it is undisputed [that plain-
   tiff] did not keep a lookout when he turned around to look
   back at Koch.
   	 “[Plaintiff] was driving without looking. He might as
   well have been driving blindfolded. Koch could see the
   cable and stopped. [Plaintiff] was 100% responsible for his
   injuries and no reasonable juror could find otherwise. * * *
   	 “In light of the dispositive nature of [plaintiff’s] undis-
   puted testimony, the court need not reach the issues of
   whether [plaintiff] was an invitee or a trespasser on the
   private road, whether the cable should have been better
   marked, the import of the undisputed facts about [plain-
   tiff’s] prior knowledge that Mountain View kept a cable
   across the road at various times, or any of the other argu-
   ments addressed in the parties’ briefs.”
	        Plaintiff appealed to the Court of Appeals, asserting
that the trial court effectively had resolved the issue based
on the comparative negligence of the parties, which plaintiff
urged was a factual question that should have been left to
the jury to resolve. Mountain View and Re/Max defended
the trial court’s rationale for granting summary judgment,
and they also argued alternative grounds for affirming the
trial court’s ruling.
	       A divided panel of the Court of Appeals ultimately
affirmed on two of defendants’ alternative grounds without
84	                                    Towe v. Sacagawea, Inc.

deciding the correctness of the trial court’s ground of deci-
sion. Specifically, the majority concluded that, on the record
developed for the summary judgment motion, plaintiff had
been a trespasser on the access road as a matter of law and
the only duty that Mountain View owed therefore plaintiff
was a duty to avoid willful or wanton conduct. Towe, 246 Or
App at 38-39. The Court of Appeals majority further con-
cluded that, on the summary judgment record, a reasonable
juror could not find that Mountain View’s conduct had been
willful or wanton. Id. at 40.
	        With regard to Re/Max, the majority affirmed sum-
mary judgment on the alternative ground that plaintiff’s
evidence did not create an issue of fact on causation. The
majority noted that two different tests for causation—“but
for” and “substantial factor”—might apply. Id. at 40. Under
either test, the majority concluded, no reasonable juror
could find that Re/Max’s actions caused the injuries to
plaintiff:
   “Plaintiff did not go up the road to look at the Kinyon prop-
   erty; rather, he testified that he went up the road to look
   for property that his girlfriend told him was for sale and
   that he believed to be on Mountain View’s road, which he
   knew to be private. There is no indication from this record
   that the presence of the Re/Max sign substantially influ-
   enced his decision to travel up the access road or that, in
   the absence of Re/Max’s conduct, the accident would not
   have occurred.”
Id. at 42.
	        Judge Sercombe authored a dissent based on the
“different factual inferences” that he drew from the record
on summary judgment. Id. at 42 (Sercombe, J., dissenting).
With regard to Mountain View’s potential liability, the dis-
sent concluded that there was evidence from which the jury
could find that plaintiff was on a road open to the public at the
time that he collided with the cable, id. at 49 (Sercombe, J.,
dissenting); that, even if plaintiff was a trespasser, a jury
could find on this record that Mountain View was aware of
constant or persistent trespassers using the access road,
thus creating a greater duty on Mountain View’s part, id. at
49-50; and that, even if plaintiff had to prove that Mountain
Cite as 357 Or 74 (2015)	85

View had acted in a wanton manner, the record would per-
mit the jury to so find, id. at 50-52.
	        With regard to Re/Max, the dissent thought that
a reasonable juror could find “that plaintiff was induced by
[the Re/Max] sign on Indian Creek Road to drive up the
graveled road in search of homesites marketed by Re/Max.”
Id. at 43. Thus, in the dissent’s view, the record gave rise
to a jury question as to whether Re/Max’s actions had the
necessary causal relationship to plaintiff’s injuries. Id. at
52-54. The dissent further concluded that a jury could find
that Re/Max had been negligent in putting up a directional
sign that directed the public toward a dangerous condition—
the cable—that Re/Max knew about, while simultaneously
not marking the particular parcel for sale, which could
cause drivers to be distracted by looking for that parcel.
Id. at 57-58. Finally, the dissent rejected the trial court’s
basis for its ruling, explaining that it could not conclude that
plaintiff’s negligence exceeded defendants’ negligence as a
matter of law. Id. at 60-61.
                             III. ANALYSIS
	        The resolution of this case by the trial court and
Court of Appeals (both the majority and dissent), together
with the parties’ arguments, pose issues of causation, fore-
seeability, and duty that arise with frequency in negligence
law. Because the case comes to us on summary judgment,
our disposition depends on whether any of those issues pres-
ent questions of fact for a jury’s resolution as to one or both
defendants.4 For plaintiff to avoid summary judgment in
favor of each defendant, plaintiff must show the existence of
a factual question on all dispositive issues framed by each of
defendants’ motions. See Two Two v. Fujitec America, Inc.,
355 Or 319, 326, 325 P3d 707 (2014) (party seeking sum-
mary judgment frames issues on which party opposing sum-
mary judgment must show existence of factual question).
Conversely, each defendant is entitled to summary judg-
ment if, as a matter of law, it prevails on any of the elements
	4
       See ORCP 47 C (“No genuine issue as to a material fact exists if, based upon
the record before the court viewed in a manner most favorable to the adverse
party, no objectively reasonable juror could return a verdict for the adverse party
on the matter that is the subject of the motion for summary judgment.”).
86	                                     Towe v. Sacagawea, Inc.

that it challenges in its motions. To better frame the issues
that the parties debate, we begin with the general negli-
gence principles that apply.
A.  General Principles: Negligence
	        Traditionally, the basic elements of common-law
negligence required a plaintiff to plead and prove that the
“defendant owed [the] plaintiff a duty, that [the] defendant
breached that duty, and that the breach was the cause-in-
fact of some legally cognizable damage to [the] plaintiff.”
Brennen v. City of Eugene, 285 Or 401, 405, 591 P2d 719
(1979) (stating elements and citing cases). In Oregon, how-
ever, the traditional duty-breach analysis is often, but not
always, subsumed in the concept of reasonable foreseeability:
   “[U]nless the parties invoke a status, a relationship, or a
   particular standard of conduct that creates, defines, or lim-
   its the defendant’s duty, the issue of liability for harm actu-
   ally resulting from defendant’s conduct properly depends
   on whether that conduct unreasonably created a foresee-
   able risk to a protected interest of the kind of harm that
   befell the plaintiff.”	
Fazzolari v. Portland School Dist. No. 1J, 303 Or 1, 17, 734
P2d 1326 (1987). In effect, the more traditional duty-breach
analysis in an ordinary negligence claim is supplanted by
the question whether the defendant’s conduct resulted in a
foreseeable and unreasonable risk of harm of the kind that
the plaintiff suffered. Solberg v. Johnson, 306 Or 484, 490,
760 P2d 867 (1988); see generally Oregon Steel Mills, Inc.
v. Coopers & Lybrand, LLP, 336 Or 329, 340, 83 P3d 322
(2004) (discussing shift in Oregon jurisprudence). Thus,
when asserting an ordinary negligence claim, a plaintiff
does not need to prove that the defendant owed the plaintiff
a duty, because—as a general proposition—everyone owes
each other the duty to act reasonably in light of foreseeable
risks of harm.
	        But as the passage quoted above from Fazzolari
observes, the duty element is not always subsumed in a fore-
seeability analysis. Rather, the nature and scope of the duty
owed by the defendant to the plaintiff can be created, defined,
or limited based on, among other things, the relationship
between or status of the parties. Thus, the focus on reasonable
Cite as 357 Or 74 (2015)	87

foreseeability has exceptions. One of those exceptions comes
into play for premises liability. Under conventional common-
law principles, when the defendant is an occupier of land
and the plaintiff is someone who was injured on the defen-
dant’s land, the nature and scope of the defendant’s liability
to the plaintiff depends on the plaintiff’s status as a licensee,
an invitee, or a trespasser on the defendant’s property. See
Hagler v. Coastal Farm Holdings, Inc., 354 Or 132, 140-41,
309 P3d 1073 (2013) (distinguishing general foreseeability
principles of Fazzolari from special duty that possessors of
land have toward invitees to correct unsafe conditions).
	        Neither concept—that is, neither reasonable fore-
seeability nor the existence of a specific duty of care based
on the status of the parties or their relationship—eliminates
the plaintiff’s obligation to prove, as an element of a negli-
gence claim, cause-in-fact. Conceptually, foreseeability and
causation are separate elements. Fazzolari, 303 Or at 13. To
be sure, the idea that a particular kind of harm is a reason-
ably foreseeable risk of some act or omission suggests the
existence of a causal relationship between the the risk and
the harm. But that is not the factual causation that a neg-
ligence action requires. Foreseeability is a prediction of the
risk that an act or omission will result in a particular kind
of harm—it turns on “what prospectively might happen.” Id.
(describing foreseeability) (emphasis added). Causation is an
assessment of whether a particular act or omission in fact
resulted in the particular harm that a plaintiff suffered—it
turns on “what retrospectively did happen.” Id. (describing
causation element of negligence action) (emphasis added).
Thus, apart from proving either that the defendant’s con-
duct created an unreasonable risk of the kind of harm that
befell the plaintiff or that the defendant breached a special
duty owed to the plaintiff, the plaintiff in a negligence action
must also prove an actual causal link between the defen-
dant’s conduct and the plaintiff’s harm—that is, the plain-
tiff must prove “cause in fact.” Oregon Steel Mills, Inc., 336
Or at 340.
B.  Plaintiff’s Conduct as “Sole Cause” of his Injuries
	        Against that backdrop, we turn to the particular
issues that this case presents. We begin with the ground on
88	                                     Towe v. Sacagawea, Inc.

which the trial court granted summary judgment in favor
of both Mountain View and Re/Max. We do so because that
is the only basis for decision that is common to the claims
against both defendants. Moreover, if the trial court’s rea-
soning is correct, then that ground of decision is dispositive
as to both defendants and negates the need to reach the sev-
eral other issues debated by the parties.
	        As earlier described, in its order granting sum-
mary judgment for defendants, the trial court concluded
that plaintiff was “100% responsible” for his injuries. As a
predicate to that conclusion, the court set out certain undis-
puted facts from the summary judgment record that led the
court to conclude that plaintiff was fully responsible for his
injuries:
   	 “(1)  [Plaintiff] and [Koch] were riding their motor-
   cycles on a private road during daylight when they approached
   a cable across the road.
   	 “(2)  Koch saw something ‘hanging across’ the road,
   ‘started slowing down,’ and knew it was a cable.
   	 “(3)  Koch’[s] and [plaintiff’s] version of the events pre-
   ceding the time when [plaintiff] hit the cable are identical
   in all material respects. According to Koch, [plaintiff] ‘kind
   of coasted and then turned around and looked * * * back at
   me and then he looked back forward again * * * [a]nd then
   he hit the cable. According to [plaintiff], Koch ‘stopped, but
   I * * * continued to go. And I started to accelerate [a] little
   bit, and I looked back, and he had a shocked look on his
   face, and I turned back around, cable.’ [Plaintiff] testified
   that because of the shocked look on Koch’s face, Koch ‘could
   see that I was going to run into’ the cable.
   	 “(4)  Although [plaintiff] only turned around once to
   look at Koch, when asked if he was looking forward down
   the road at all other times, he testified, ‘actually my eyes
   are wandering, looking for a sign’ indicating where a piece
   of property was for sale.”
	        Based on those facts, the trial court concluded that,
as a matter of law, defendants could not be held liable for
plaintiff’s injuries. The court noted that the law requires a
person driving a motor vehicle to keep a lookout at all times
and observed that, “[e]ven without considering the other
Cite as 357 Or 74 (2015)	89

respects in which [plaintiff] failed to keep a lookout (by hav-
ing his eyes ‘wander’), at a minimum, it is undisputed [that
plaintiff] did not keep a lookout when he turned around to
look back at Koch.” In the trial court’s view, because plaintiff
was “driving without looking,” he “might as well have been
driving blindfolded.” The trial court therefore concluded
that plaintiff was “100% responsible for his injuries and no
reasonable juror could find otherwise,” making it unneces-
sary for the court to consider the other issues that the par-
ties’ arguments raised, such as “whether the cable should
have been better marked.” In effect, as the Court of Appeals
majority observed, the trial court concluded from undis-
puted facts in the summary judgment record that plaintiff’s
conduct alone was the cause of plaintiff’s harm and ruled in
favor of defendants on that basis. Towe, 246 Or App at 32.5
	        In that regard, the trial court’s reasoning is analo-
gous to this court’s holding in Garrison v. Deschutes County,
334 Or 264, 48 P3d 807 (2002), where we determined that
the plaintiff, as a matter of law, was the sole cause-in-fact of
his own injuries. The plaintiff in that case fell from a drop-
off at the county dump. The drop-off was designed so that
people could back their vehicles to a ledge and then throw
their refuse over the side directly into semi-truck trailers on
a cement slab below. Although a seven-inch high railroad tie
was in place to prevent vehicles from backing off the ledge,
the county had not put up any kind of barrier to prevent a
person from falling over the edge; nor had the county posted
a warning of the danger. Plaintiff, however, had backed his
pickup to the drop-off several times before and was aware
of the importance of being careful to not fall over the side
while unloading refuse from his pickup. On the day of his
injury, he consciously thought about the danger; indeed, he
and his wife, who was with him at the time, discussed the
	5
       An alternative way to understand the trial court’s ruling is that it was
based on the comparative negligence of the respective parties. The parties have
approached the ruling that way, as did the Court of Appeals dissent. See Towe,
246 Or App at 59-61 (Sercombe, J., dissenting). We consider that framing of the
trial court’s analysis later, after first determining whether the negligence claims
against either or both Mountain View and Re/Max fail as a matter of law. A
comparative analysis of the relative negligence of the parties is meaningful only
after determining whether there are triable issues of fact on one or both of plain-
tiff’s negligence claims against defendants and, if so, the nature of the negligence
alleged.
90	                                  Towe v. Sacagawea, Inc.

need for him to be careful. Even so, plaintiff fell. Id. at 267-
68. This court concluded that, as a matter of law, “no causal
link [existed] between the county’s failure to warn and the
injuries that befell [plaintiff]” because the failure to warn
“did not expose [plaintiff] to any greater risk than if [he] had
been warned.” Id. at 279. Said another way, the undisputed
evidence compelled a conclusion that “no reasonable juror
could find that a warning would have made a difference.” Id.
	        In much the same way, the trial court reasoned here
that no amount of marking or warning of the danger of the
cable would have made a difference because plaintiff himself
was paying too little attention to the road to notice the cable,
however well it could have been marked, or a warning sign if
there had been one. In the trial court’s view, plaintiff was so
remiss in his failure to keep a proper lookout for obstacles in
the road ahead of him that plaintiff might as well have been
riding “blindfolded.”
	        In so reasoning, however, the trial court gave undue
factual significance to plaintiff’s testimony about where he
was looking as he rode his motorcycle on the access road.
The trial court emphasized that plaintiff “turned around
to look at Koch.” But that overstated the evidence. Plaintiff
described his backward look as “[j]ust a glance.” When
asked to estimate how long he looked back at Koch, plaintiff
said “[h]alf a second.” Viewed most favorably to plaintiff, he
glanced back at Koch for a split second, then immediately
returned his eyes to the road ahead.
	        Similarly, to the extent that the trial court relied on
plaintiff’s acknowledgement that his eyes were “wandering”
from the road ahead to conclude that plaintiff might as well
have been “blindfolded,” the evidence of the degree to which
plaintiff’s eyes were wandering does not compel, as a matter
of law, that extreme characterization of plaintiff’s conduct.
Viewing the evidence (again) most favorably to plaintiff, he
was intermittently and briefly diverting his eyes to scan the
landscape adjacent to the access road. That is all; he did not
cease to return his eyes to the road ahead for any extended
time.
	       By viewing plaintiff’s conduct as more egregious
than a reasonable juror would have to view it, the trial court
Cite as 357 Or 74 (2015)	91

drew an undue legal inference from it as well. Contrary to
the trial court’s conclusion, neither plaintiff’s split-second
glance backwards nor his scanning of the surrounding land-
scape, nor the two combined, compels the legal conclusion
that plaintiff violated his duty as a motorist to keep a proper
lookout as a matter of law. A proper lookout does not require
a driver to target his or her gaze on the road ahead and
never look elsewhere. To the contrary, keeping a proper look-
out may require a driver, at least briefly, to look and pay
attention to the area to the side and the rear. Indeed, per-
sons seeking to obtain an Oregon driver license are advised
by the state of the importance of being “able to see what is
to the front, sides, and rear of your vehicle” and of scanning
“the road ahead and to the sides” for potential hazards that a
motorist with a fixed forward-view might otherwise not see.6
The state similarly, but more emphatically, advises persons
seeking a motorcyclist endorsement on their Oregon license
that safety requires a motorcyclist to “[s]earch aggressively
ahead, to the sides and behind to avoid potential hazards
even before they arise.”7
	6
        Driver and Motor Vehicle Services, Or. Dept. of Transp., 2014-2015 Oregon
Driver Manual § 4, 58 (2014-15). The knowledge test required for obtaining a
license is based on the information that the Oregon Driver Manual covers. Id. at
12. That publication further advises motorists:
     “Scanning does not mean looking at the middle of the road. It means taking
     in the entire scene, including the sides of the road. Scanning the road ahead
     and to the sides helps you see potential hazards ahead, vehicles that may
     enter your path, signs warning of a hazard ahead, or signs routing you to
     another street or road. It also helps keep you awake and alert.”
Id.; see generally Oregon Evidence Code (OEC) 201 (courts may take judicial
notice of certain facts).
	7
        Driver and Motor Vehicle Services, Or. Dept. of Transp., 2014-2015 Oregon
Motorcycle & Moped Manual § 3.4, 21 (2014-15) (emphasis added). Visual vigi-
lance to avoid hazards from all directions can be even more important for motor-
cyclists given their vulnerability in an impact of any kind. The Motorcycle Safety
Foundation (MSF), a national organization that promotes motorcycle safety
through, among other safety activities, state training and licensing programs,
warns that impacts with dogs, who like to chase motorcycles, and deer, who wan-
der onto roads unpredictably, are special hazards for motorcyclists. Motorcycle
Safety Foundation Basic Ridercourse® Rider Handbook 38 (1st ed 2014). Thus,
the MSF advises motorcyclists:
     “Your eyes should be busy and your mind active. Do not look at (or target-
     fixate) on any one object for more than a split second. Keep your eyes moving—
     far and near, side-to-side, including the instrument display and mirror and
     blind spot checks.”
Id. at 23; see generally OEC 201 (permitting judicial notice).
92	                                     Towe v. Sacagawea, Inc.

	        To be sure, a motorist may become unduly distracted
from the road ahead by looking for signs, landmarks, other
objects, or hazards to the side or the rear of a path of travel.
But the point at which a motorist’s “wandering eyes” unrea-
sonably compromises his or her appreciation of hazards in
the road ahead will depend on the totality of the circum-
stances involved. And frequently, assessing what is reason-
able in any given set of circumstances will give rise to a jury
question. As this court explained in Pitcher v. Leathers, 270
Or 666, 671, 529 P2d 381 (1974):
   “Human vision cannot simultaneously comprehend all
   points of the compass. Accordingly, a motorist is not held as
   a matter of law to be under a duty to look in a specific direc-
   tion at a specific time. The standard of lookout required is
   that of the reasonable motorist under the same or similar
   circumstances. The determination of what a reasonable
   person would have done is properly left to the jury unless
   the court can say without hesitation that no reasonable
   person would have proceeded as the plaintiff did under all
   the evidence.”
(Internal quotation marks and citations omitted.)
	        On this record, whether plaintiff’s conduct in
glancing back at Koch when Koch unexpectedly slowed, or
whether plaintiff’s conduct in scanning the landscape for a
sign marking adjacent properties for sale, was so egregious
as to render plaintiff “blind” to the road ahead, in turn mak-
ing plaintiff the sole cause of the harm that befell him, is a
question of fact for a jury’s resolution. The evidence does not
compel a conclusion adverse to plaintiff as a matter of law.
Nor, contrary to Mountain View’s suggestion, does the record
compel a conclusion (unlike the record in Garrison) that bet-
ter marking the cable or better warning of it would not have
mattered given that plaintiff already knew about the cable.
In Garrison, the plaintiff had testified that he was stand-
ing by and consciously aware of the drop-off as he unloaded
refuse from his truck. 334 Or at 279. This court therefore
concluded that the county’s failure to warn the drop-off did
not expose the plaintiff to any greater risk of harm. because
the plaintiff was already aware of the risk. Id.
	        In this case, in contrast, although plaintiff acknowl-
edged that he had personal knowledge of the cable, he also
Cite as 357 Or 74 (2015)	93

said he had forgotten about it, which was consistent with the
circumstances of the accident, as well as the rural nature of
the road, the infrequency with which plaintiff traveled it,
and the disputed evidence of the frequency with which the
cable was hung across the road. A reasonable juror therefore
could conclude as a factual matter that a better warning
could have made a difference in avoiding the injuries that
plaintiff suffered. Of course, reasonable jurors might differ
on whether plaintiff was negligent to have forgotten about
the cable under all the circumstances, but that bears on
plaintiff’s comparative negligence. Given the evidence that
plaintiff had forgotten about the cable, Mountain View’s
failure to better mark it or warn that it was there could be
found by a reasonable juror to have been a cause-in-fact of
plaintiff’s injuries. For those reasons, the trial court’s grant
of summary judgment for both Mountain View and Re/Max
on the theory that plaintiff’s own conduct was the sole cause
of his injuries was error.
C.  Defendants’ Conduct as Cause-in-fact of Plaintiff’s
    Injuries
	        Our conclusion that plaintiff’s conduct was not, as a
matter of law, the sole cause-in-fact of his injuries is not a com-
plete answer on the element of causation. For either Re/Max
or Mountain View (or both) to ultimately be liable for negli-
gence, each must have engaged in acts or omissions that were
a cause-in-fact of plaintiff’s injuries. Concluding that plain-
tiff was not the sole cause of his injuries does not—at least,
not necessarily—answer whether the record would support
a finding that the conduct of Mountain View or Re/Max
did cause those injuries. For that, we need to examine the
acts and omissions by Mountain View and Re/Max that
plaintiff claims contributed to causing him to ride his motor-
cycle into the cable.
	        Mountain View, for its part, does not argue that,
if plaintiff is not the sole cause of his injuries as a mat-
ter of law, then a question of fact remains as to whether
Mountain View’s conduct was at least a contributing cause
of plaintiff’s injuries. Re/Max, however, urges that no rea-
sonable juror could find its conduct to have been a factual
cause of plaintiff’s injuries. The Court of Appeals majority
94	                                      Towe v. Sacagawea, Inc.

and dissent divided on that point. As we will explain, we
agree with the Court of Appeals majority, and our agree-
ment is dispositive as to Re/Max’s entitlement to summary
judgment.
	        As we earlier described, plaintiff’s negligence claim
against Re/Max is based on Re/Max’s conduct in leaving its
directional sign at the base of the access road, while also
removing its parcel-specific sign from the Kinyon property,
which had marked that as the particular property that was
for sale. Under plaintiff’s theory, the absence of the second
sign caused him to be scanning the adjacent landscape look-
ing for a sign marking property as for sale when he other-
wise would not have, which in turn was at least a contrib-
uting cause-in-fact (but not the sole cause) of the harm that
befell him (i.e., riding his motorcycle into the cable).
	        The Court of Appeals majority and dissent split on
whether the record created a jury question on that issue,
because they viewed the factual inferences that the record
permits differently. The majority concluded that plaintiff, as
a matter of law, cannot establish causation as to Re/Max on
this record, reasoning that:
   “Plaintiff did not go up the road to look at the Kinyon prop-
   erty; rather, he testified that he went up the road to look
   for property that his girlfriend told him was for sale and
   that he believed to be on Mountain View’s road * * *. There
   is no indication from this record that the presence of the
   Re/Max sign [at the entrance to the access road] substan-
   tially influenced his decision to travel up the access road
   or that, in the absence of Re/Max’s conduct, the accident
   would not have occurred.”

Towe, 246 Or App at 40-42. The dissent disagreed, explain-
ing the different view that it took of the record:
   “The evidence was that plaintiff began the biking excur-
   sion with the sole purpose of monitoring the mechanical
   condition of [Koch’s] motorcycle. On the way home, plaintiff
   stopped and looked at the Re/Max sign at the bottom of
   the access road. Plaintiff testified at his deposition, ‘I said,
   well, might as well go up there and see where there’s prop-
   erties for sale. I’m thinking it’s in the vicinity of the same
Cite as 357 Or 74 (2015)	95

    place [i.e., the Kinyon property that had been previously for
    sale], but I wasn’t sure.’ ”
Id. at 54 (Sercombe, J., dissenting).8
	        On the summary judgment record before us, we
agree with the Court of Appeals majority that no reasonable
juror could find that Re/Max’s conduct in posting a direc-
tional sign at the entrance to the access road, alone or in com-
bination with its removal of the second sign on the Kinyon
property, caused plaintiff to travel up the access road and
to be distracted from seeing the cable. Plaintiff’s testimony
about why he went up the access road and what property
he was looking for was unequivocal—he was trying to find
three or four parcels of property that his girlfriend had told
him about, ones that he thought, from her description, likely
were on the access road on Mountain View’s property. In his
deposition, plaintiff specifically acknowledged that the sign
that had been placed on the Kinyon property was no longer
there. Necessarily, then, he knew where the Kinyon prop-
erty was located along the road. Viewed in the light most
favorable to plaintiff, the evidence is that plaintiff was not
sure that the parcels that his girlfriend had described were
located on Mountain View’s portion of the access road, but
he thought they were; he also thought they could be some-
where else in the “vicinity” of the Kinyon property. He was
not trying to find the Kinyon property, however, and no rea-
sonable inference can be drawn that he was.
	        Given that undisputed evidence, the fact that Re/Max
had removed the sign from the Kinyon property cannot be
said to have distracted him. Plaintiff knew that the sign
was down; he was not looking for it. He was looking for other
properties—“more” properties, as he said—expecting a sign
to mark them but not seeing one. Had the Re/Max sign
remained on the Kinyon property, the reasonable inference
to draw—and the only one—is that plaintiff would have
	8
       As the Court of Appeals majority correctly observed, two tests for causation
potentially apply: the “but for” test and the “substantial factor” test. Towe, 246
Or App at 40 (citing cases discussing both tests, including Joshi v. Providence
Health System, 342 Or 152, 158-62, 149 P3d 1164 (2006)). Both the majority and
the dissent, however, thought that the conclusion would be the same regardless
of which test applies in assessing whether Re/Max’s conduct was a cause-in-fact
of plaintiff’s injuries. Id. at 41 (majority); id. at 53 (Sercombe, J., dissenting). We
agree.
96	                                              Towe v. Sacagawea, Inc.

continued looking for a sign marking other properties that
his girlfriend had told him were for sale. Re/Max did noth-
ing to cause plaintiff to believe that other properties were
for sale along the access road. That was solely the result of
the conversations that plaintiff had with his girlfriend. The
directional Re/Max sign at the base of the access road was
the same sign that had been there for many months, since
the initial listing of the Kinyon property. The sign merely
jogged plaintiff’s memory (as any “for sale” sign there might
have) of his earlier conversation with his girlfriend about
additional properties for sale.9 Remembering the conversa-
tion, plaintiff decided to go up the access road to see if he
could find the properties that his girlfriend had described.
	        On that record, we agree with the Court of Appeals
majority that, as a matter of law, Re/Max could not be
found to have been a cause-in-fact of plaintiff’s injuries.
Consequently, as the Court of Appeals majority concluded,
the trial court’s grant of summary judgment to Re/Max was
correct on that alternative ground.
D.  Mountain View’s Premises Liability: Was Plaintiff a Tres-
    passer?
	        Having concluded that Re/Max was entitled to
summary judgment, we turn to Mountain View’s remain-
ing arguments that it was entitled to summary judgment.
Principal among them is Mountain View’s assertion that,
as a matter of law, plaintiff was a trespasser on its property
at the point at which plaintiff ran into the cable. That argu-
ment is important to Mountain View, because, as earlier
described, Mountain View’s status as an occupier of land, and
plaintiff’s status as someone injured on that land, invokes
special duties of care different from the general “reasonable
	9
      Worth noting in that regard is that plaintiff did not say—and did not
describe his girlfriend as saying—that the properties she had seen for sale were
listed by Re/Max. Likewise, he never described himself as looking for a parcel-
specific sign posted by Re/Max in particular. His testimony consistently was
that he was looking for “a sign” that would indicate to him where the properties
that his girlfriend had described were located. Even if plaintiff had testified that
he thought those properties would be marked by a Re/Max sign, nothing that
Re/Max did could reasonably be the cause of any such belief. Again, by all accounts
including plaintiff’s own, the directional Re/Max sign that plaintiff observed at
the base of the access road was the same one that had been there for the last 11
months and had been posted in connection with the sale of the Kinyon property.
Cite as 357 Or 74 (2015)	97

foreseeability” used for ordinary negligence. See Hagler, 354
Or at 140-41 (distinguishing general foreseeability princi-
ples of Fazzolari from special duty that possessors of land
have toward invitees to correct unsafe conditions); Rich v.
Tite-Knot Pine Mill, 245 Or 185, 191-92, 421 P2d 370 (1966)
(summarizing differing duties owed by occupier of land to
person injured on land depending on injured person’s status
as licensee, invitee, or trespasser).
	        As we earlier described, the Court of Appeals
majority determined that, as a matter of law, plaintiff was
a trespasser on the access road, and Mountain View there-
fore owed plaintiff only the duty to avoid willful and wanton
conduct, rather than to exercise ordinary care. Towe, 246
Or App at 38-39; see generally Rich, 245 Or at 191 (posses-
sor of land not liable to trespassers for failure to exercise
reasonable care to put premises in safe condition); Monnet
v. Ullman et al., 129 Or 44, 55, 276 P 244 (1929) (only duty
owed to trespasser is to avoid injury as a result of willful or
wanton conduct). The Court of Appeals majority concluded
that plaintiff had not presented sufficient evidence of willful
or wanton conduct to create a jury question on that issue;
consequently, as to Mountain View, it affirmed the trial
court’s grant of summary judgment on that basis. Towe, 246
Or App at 39-40.
	         The dissent, on the other hand, saw the facts as
more nuanced. The dissent thought that a jury question
existed as to whether the access road was open to public use
up to the point where it crossed on to Mountain View’s prop-
erty. Id. at 49 (Sercombe, J., dissenting). If a jury were to so
conclude, then the fact that plaintiff became a trespasser at
the moment that he crossed on to Mountain View’s portion
of the road did not mean, according to the dissent, that the
only duty that Mountain View owed plaintiff was to avoid
willful or wanton conduct. Rather, in that circumstance,
the dissent would have concluded that Mountain View owed
plaintiff a duty of reasonable care. Id. (citing Wolfe v. Union
Pacific R. Co., 230 Or 119, 124, 368 P2d 622 (1962)).
	       Insofar as the Court of Appeals majority understood
the portion of the access road owned by Mountain View to
be private and to be closed to the public, we agree that there
98	                                 Towe v. Sacagawea, Inc.

is no factual dispute on that score. Sometime around 2004,
Mountain View posted at the entrance to the access road a
large sign that identified its quarry (Mountain View Rock).
The sign stated “private road” and declared “no trespass-
ing.” Plaintiff acknowledged in his deposition that he was
personally aware that Mountain View did not want people
using “its road” and that he saw the sign as he turned off
Indian Creek Road and went up the access road towards
the quarry. On that record, the majority concluded that no
reasonable juror could find that Mountain View had tacitly
invited public use of the road. Towe, 246 Or App at 37. We
agree. But we further agree with the dissent that the fact
that Mountain View’s portion of the road was closed to pub-
lic use is not a complete answer in determining Mountain
View’s duty to those traveling the road before it crossed onto
Mountain View’s property.
	         As to those lower portions of the access road, the
record creates a question of fact whether the road, even
though a private road, was nevertheless open to public use.
As we described earlier, the summary judgment record
establishes that the access road was owned by three prop-
erty owners: the BLM, the owner of the Kinyon property,
and Mountain View. The BLM owned the first segment of
the access road; the owner of the Kinyon property owned the
second segment; and Mountain View owned the third. The
evidence bearing on whether the BLM and Kinyon portions
of the road were open to public use is sparse. The only pos-
sible affirmative evidence that they were not open to public
use is the sign at the entrance that posted the road as “pri-
vate” and said “no trespassing.” But that sign, which was
put up by Rick Matthews of Mountain View, identified only
Mountain View and the Clarkes (who resided up the road
and owned none of it). The sign was not posted by and did
not purport to represent the position of the BLM. Likewise,
it was not posted by and did not purport to represent the
position of the other owner a portion of the access road—the
owner of the Kinyon property.
	         As opposed to that lack of evidence that the BLM
and Kinyon portions of the road were closed to the public,
other evidence at least suggests inferentially that they were
open for public use. At some point in time, Mountain View
Cite as 357 Or 74 (2015)	99

and the Clarkes constructed a gate across the access road
near its entrance off Indian Creek Road. The BLM, which
owned that portion of the road, prohibited them from closing
that gate, however.10 From that evidence, a reasonable juror
could conclude that the BLM portion of the access road was
open to the public. There is less evidence, one way or the
other, about the status of the next portion of the road, which
was owned by the owner of the Kinyon property. But there is
no evidence that any owner of that property had ever posted
a no trespassing sign on the Kinyon portion of the road or
had ever wanted to preclude the public from using it. The
property had changed hands at least four times in recent
years. One of the most recent owners, Kinyon, held it for
investment purposes only. At least a fair inference on this
record is that no owner of that property had ever closed the
Kinyon portion of the road to public use, and none (as non-
resident owners) had reason to.
	        The only evidence that defendants point to as com-
pelling a conclusion that the access road was closed to the
public is the existence of the “no trespassing” sign posted at
the road’s entrance, together with the fact that plaintiff was
aware of that sign. But those facts do not control plaintiff’s
status. Plaintiff would not be a trespasser along the entire
access road merely because some sign, posted by someone, at
the entrance of the road said “no trespassing.” If, in fact, the
BLM and Kinyon portions of the road were open to public
use, Mountain View’s “no trespassing” sign could not render
plaintiff a trespasser while on those portions of the road.
And as we have concluded, the record creates a question of
fact as to whether the BLM and the Kinyon portions of the
access road were open to the public. If that factual issue
	10
      The record further establishes that the BLM would have permitted
Mountain View and the Clarkes to put up a gate certified by the BLM and use
the BLM’s locks on it, but that was too complicated for Mountain View and the
Clarkes to undertake. Although that evidence might suggest that the BLM was
not opposed to closing the road, that is not the only inference that it supports.
Rather, Rick Matthews’s testimony on the point was that the BLM would not let
them “close” their gate, not that it would not let them lock it. At least arguably,
the point of the BLM’s insistence on a certified gate that could be locked only
with BLM locks was so the BLM could control whether and when public use of its
portion of the access would be cut off. The fact that the BLM never chose on its
own to put up a locked gate is evidence that at least permits an inference that it
had no interest in precluding public use of its portion of the access road.
100	                                             Towe v. Sacagawea, Inc.

were to be resolved in plaintiff’s favor, then plaintiff would
not be a trespasser while traveling on the access road up to
the point where it crossed onto Mountain View’s property.
	       That conclusion, in turn, would alter the duty of care
that Mountain View owed to plaintiff as a person who was
traveling the road up to that point. The general rule in that
regard has been stated by various authorities. Professors
Harper, James, and Gray provide a particularly thorough
statement in their treatise on tort law:
    “The occupier of land owes a duty of care to prevent arti-
    ficial conditions on his land from being unreasonably dan-
    gerous to highway travelers. Moreover, if he arranges part
    of his premises so as to lead people to think that they are
    part of the highway, for example, by paving part of his land
    as a continuation of the sidewalk, he comes under a duty of
    care to keep that part of his land reasonably safe for trav-
    elers. * * *
    	   “* * ** *
    	 “In all these cases the trespass aspect is not made con-
    trolling and the courts are apt to use a straight negligence
    approach. This means that the duty and its scope depend
    on foreseeability of harm in all the circumstances. The
    proximity of the danger to the highway, the extent and
    character of travel, the past practices of travelers, the seri-
    ousness of the danger and the likelihood that it will be seen
    and avoided, and the physical surroundings of the danger
    would be among the variable factors entitled to consider-
    ation in deciding this cardinal question.”
Fowler V. Harper et al., 5 Harper, James and Gray on Torts
§ 27.4, 173-77 (3d ed 2006) (footnotes omitted). The Restate-
ment (Second) of Torts § 368 (1965) states a similar rule: A
possessor of land near an existing highway is liable for cre-
ating an artificial condition that he knows or should know
creates an unreasonable risk “to others accidentally brought
into contact with such condition while traveling with rea-
sonable care upon the highway.”11
	11
       See also Dan B. Dobbs, The Law of Torts, Hornbook Series § 231, 590 (2000)
(“The land occupier owes not only a duty of reasonable care to protect those on the
public way from activities and conditions on his land, but also a duty of care to
those who foreseeably stray from the road onto the land itself and are injured by
a condition such as an excavation that was put there after the road was built. The
Cite as 357 Or 74 (2015)	101

	        We have not before had a case in which we have
adopted the common-law rule for the duty owed by a land-
owner (or other possessor of land) to a person lawfully trav-
eling adjacent to the land.12 This case, however, implicates
that duty, and we agree in general principle with the rule as
stated by the authorities above. The duty of a landowner to
those who travel adjacent to it is a limited duty of ordinary
care, rather than a duty to avoid only willful or wanton con-
duct, as would be owed to an ordinary trespasser. That duty
is premised on the value that society places on the interest in
public passage, and it strikes a balance between that interest
and a landowner’s equally important interest in the exclusive
use and enjoyment of his or her own property. See Prosser &
Keeton on the Law of Torts § 57, 388 (W. Page Keeton ed.,
5th ed 1984) (noting public passage rationale for the rule);
Hutchings v. Bauer, 149 Ill 2d 568, 573-77, 599 NE2d 934,
936-38 (1992) (Freeman, J., specially concurring) (discuss-
ing rule as a balance between landowner’s interest in unre-
stricted use and enjoyment and interests of passersby). As
aspects of the ordinary care that is owed, the duty typically
extends only to artificial conditions on the land.13 See, e.g.,
duty of care is owed if the landowner should foresee that a highway user would
inadvertently enter the land even if she is exercising due care.”).
	12
        Wolfe v. Union Pacific R. Co., 230 Or 119, 368 P2d 622 (1962), on which the
dissent relied, came close. But it involved the more specific situation of a posses-
sor of land who knows or should know that others will reasonably believe part
of that land to be an extension of a public road. This court in Wolfe followed the
first Restatement of Torts § 367 (1934), which imposes a duty on the landowner
to exercise reasonable care to maintain that part of the property in a reasonably
safe condition for travel. See also Prosser and Keeton on the Law of Torts § 57, 389
(W. Page Keeton ed., 5th ed 1984) (“[I]f [a landowner] so maintains a part of his
land that it appears to be a highway, as where he paves a strip next to the street,
or gives a private way the appearance of a public one, he must use reasonable care
to see that there is no danger to those who are misled into using it.” (Footnotes
omitted.)). The rule that we adopt in this case, while consistent with the rule
adopted in Wolfe, is not limited to portions of land that reasonably appear to be
part of a “public highway” or other road open to public use. Nor would such a
rule aid plaintiff in this case. Plaintiff knew that Mountain’s View’s portion of
the road was not open to the public and he knew that Mountain View’s portion of
the road began at an easily identifiable point—where the gravel ended and the
pavement began.
	13
        According to at least the Restatement, the duty is further limited to artifi-
cial conditions that post-date the existence of a publicly used road; if the condi-
tions exist first, and the road comes into existence later, the person charged with
maintaining the road has the responsibility to warn travelers of the danger; the
duty to warn is not on the occupier of the land who first created the hazard. Id.
§ 368 cmt c. That limitation on premises liability is not implicated here, however,
102	                                             Towe v. Sacagawea, Inc.

Rosengren v. City of Seattle, 149 Wash App 565, 573-75, 205
P3d 909, 913-14 (2009) (analyzing whether trees planted
near sidewalk were natural or artificial hazard). Also, it
typically extends only to unreasonably hazardous condi-
tions, not to any danger. See, e.g., Hutchings, 149 Ill 2d at
572, 599 NE2d at 936 (assessing whether barrier erected by
landowner to protect property from speeding vehicles that
left road while rounding curve was unreasonably danger-
ous). Finally, the duty generally protects those who deviate
from the public way onto the private land only to the extent
that the deviation is a normal incident of traveling the pub-
lic way. Kavanaugh v. Midwest Club, Inc., 164 Ill App 3d 213,
218-19, 517 NE2d 656, 659-60 (1987) (discussing incidental
deviation requirement; holding that property owner did not
have duty to driver who, due to suffering epileptic seizure,
deviated from public highway and drove into pond on land).
	        Although treatises and other sources frequently
refer to the duty of a landowner adjacent to a public “high-
way,” no principled reason exists in Oregon to limit that
duty to publicly owned roads. Oregon motorists have many
of the same legal duties of safe driving whether they drive
on a publicly owned road or one that is privately owned but
open to public use.14 Just as motorists when traveling pri-
vate roads open to the public must abide by laws that protect
the safety of persons and property the same as if the road
were publicly owned, so too should a landowner adjacent to
and we do not decide whether we would adopt it. Mountain View first hung the
cable across the road in 2004, about the same time that it placed its “no trespass-
ing” sign at the entrance to the access road. The record does not suggest that
there had been any change in the public’s use of or permission to use the portions
of the road below Mountain View’s property. To the contrary, the reason that
Mountain View took those actions was because people were traveling the access
road all the way to the quarry and some were stealing and vandalizing quarry
property.
	14
        See, e.g., ORS 801.400 (“premises open to public” includes any premises
open to general public for use of motor vehicles, whether publicly or privately
owned and regardless if fee is charged for use of premises); ORS 806.010 (require-
ment of meeting financial responsibility laws applies to any vehicle driven on
premises open to public); ORS 807.010 (driver license and permit requirements
apply when operating vehicle on premises open to public); ORS 811.125 (speed
racing prohibition applies to premises open to public); 811.140 (reckless driving
prohibition applies to premises open to public); ORS 813.010 (driving under the
influence of intoxicants prohibition applies to any premises open to public); see
also ORS 811.700 and ORS 811.705 (duties of driver involved in accident that
injures person or property apply equally to premises open to public).
Cite as 357 Or 74 (2015)	103

a road open to the public have the same duty of care as owed
by a landowner to motorists traveling on an adjacent public
highway. That is not to say that the private nature of the
road is not relevant; it is. The character of the road, its own-
ership, and the rural or remote nature of the surrounding
property (among other factors) legitimately bear on whether
a particular hazard is an unreasonable one and the steps
that an adjacent landowner reasonably would take to warn
of the hazard or reduce its dangerousness. Those and simi-
lar factors, however, are relevant to whether the duty of care
has been breached, not to whether any duty of care is owed.
	         Mountain View’s arguments emphasize that the
access road was a private road, and plaintiff acknowledged
that fact. But the significant issue is not whether the access
road was privately or publicly owned; it is whether the road,
although private, was open to public use. It is on that point—
not the private ownership of the road—that the evidence is
mixed and gives rise to a question of fact for a jury’s resolu-
tion. The record in this case thus creates a basis on which a
trier of fact could find that Mountain View owed plaintiff, and
other persons traveling the access road up to the point where
Mountain View’s property began, a duty of ordinary care. As
we have concluded, a question of fact exists on whether the
access road, although private, was open to the public until
the road reached Mountain View’s property. If the factfinder
were to so find, then it would follow that plaintiff was law-
fully traveling those portions of the access road. At the point
that the access road crossed onto Mountain View’s property,
the road was under Mountain View’s ownership. Mountain
View was entitled to close its portion of the road to the pub-
lic, and the undisputed evidence in the summary judgment
record is that Mountain View had done so and plaintiff was
aware of that fact. In doing so, however, Mountain View had
a duty of ordinary care to those lawfully traveling the road
up to the point where it was off-limits to the public. That
duty was to not create or maintain an artificial condition
that posed an unreasonable risk to anyone who might inci-
dentally cross onto Mountain View’s land while negotiating
the publicly accessible portion of the access road. See, e.g.,
Cook v. Nashville, C. & St. L. Ry. Co., 45 Ga App 695, 165
SE 760, 761 (1932) (landowner railway owed ordinary duty
104	                                             Towe v. Sacagawea, Inc.

of care to travelers on road where it knowingly maintained
large unfenced excavation on property abutting end of road
and driver ran into excavation at night when hazard was not
visible).15
	        Put simply, motorists traveling the lower portion of
the access road had to stop at Mountain View’s property.
But if those motorists were lawfully traveling the portions of
the access road before Mountain View’s property, Mountain
View had to give them a reasonable opportunity to stop and
not erect an unreasonably dangerous barrier that they might
incidentally encounter before they could do so. Because a
jury question existed as to whether the lower portions of the
road were open to public use, Mountain View was not enti-
tled to summary judgment on the theory that the only duty
that it owed plaintiff was the duty to avoid willful or wanton
conduct.16
	15
        Worth noting is this observation by Professor Dobbs:
    “[T]he risk must be one to travelers who are reasonably careful. [The rule
    does not require] that the plaintiff must herself be without fault in the par-
    ticular instance if the risk would also be one to reasonably careful people.
    The fault of the actual plaintiff would thus become a matter of contributory
    [or comparative] negligence, not a matter of the defendant’s duty. It is easy to
    miss the distinction, and some authority holds that the defendant is under no
    duty to one who is actually at fault, even if the land’s condition was a threat
    to persons who were faultless as well. But no matter what, harm to someone
    must be foreseeable and on that point the danger’s distance from the road is
    highly relevant. A utility pole at the road’s edge is a great danger even when
    it is obvious, while a hidden excavation 100 yards from the road is not.”
    	“The occupier’s duty of care may extend in some cases to persons who
    intentionally enter the land either out of necessity or because the land appears
    to be a part of the public way, so long as risk to such persons is foreseeable.”
Dobbs, The Law of Torts, Hornbook Series § 231, 590-91 (footnotes omitted).
	 Thus, in this case, the fact that plaintiff’s own negligence may have con-
tributed to his injuries (which plaintiff concedes a reasonable juror could find)
does not mean that Mountain View owed no duty of ordinary care to him. That
duty depends on how the disputed facts are resolved as to whether the road was
open to public use up to the point that it crossed onto Mountain View’s property.
Plaintiff’s negligence, instead, bears on the comparison of the parties’ respec-
tive negligence. On the other hand, if a jury determines that the cable across
the access road was not unreasonably dangerous to a reasonably careful per-
son traveling towards it, then plaintiff cannot prevail as to Mountain View—not
because of plaintiff’s own negligence, but because Mountain View would not have
breached its duty to plaintiff.
	16
       We do not proceed to the parties’ related arguments about whether
Mountain View’s conduct as a matter of law was not willful or wanton, which is
an issue on which the Court of Appeals majority and dissent divided. Whether
that issue will arise in this case depends on whether, in resolving the disputed
Cite as 357 Or 74 (2015)	105

E.  Mountain View’s Alternative Theory: No Negligence as a
    Matter of Law
	        Mountain View alternatively argues that no reason-
able juror could find that it had been negligent, even assum-
ing that its conduct is tested under ordinary negligence
standards. We understand Mountain View’s argument to
be that its actions either did not create a foreseeable risk
of harm or that its actions were not unreasonable in light
of that risk. Although this case potentially presents close
facts, we disagree. The record here suggests—and a reason-
able juror could find—that Mountain View hung the cable
across its road close to its boundary line with no advance
sign warning that the boundary was approaching. Rather, a
motorist’s awareness of his or her obligation to stop and go
no farther depended on seeing the cable, and perhaps also
the “no trespassing” sign that sometimes hung from it, but
that frequently fell off. The evidence in the summary judg-
ment record about the cable’s visibility and appearance is
mixed. Whether the cable was sufficiently well marked to
be seen by an approaching motorist, thus permitting a rea-
sonably careful motorist to both stop and avoid the hazard
before crossing onto Mountain View’s land, are factual ques-
tions for a jury to resolve. Cf. Wolfe, 230 Or at 124-25 (where
reasonable juror could conclude that railway had not given
notice that road onto property was private, so that motor-
ist reasonably would have regarded road as integral part of
public highway system, railway had duty to warn motorist
of dangerous curve on road or otherwise protect them from
the danger).
	        On the record before us, a reasonable juror might
find that Mountain View had created a foreseeable risk of
injury because it erected an insufficiently marked cable
that would be a hazard to persons travelling on the road.
Furthermore, a reasonable juror might also conclude that
Mountain View’s actions were unreasonable in light of the
risk to travelers on the road: Mountain View did not control

evidence, a finder of fact determines that plaintiff was a trespasser on the BLM
and Kinyon property portions of the access road. Moreover, because the case must
be remanded for further proceedings, the limited summary judgment record now
before us is not the record on which the willful or wanton nature of Mountain
View’s conduct, if it becomes relevant, likely will be resolved.
106	                                             Towe v. Sacagawea, Inc.

the road below its property, and so it had to expect that the
owners of the lower sections of road would allow or invite
others to travel on the road, thus exposing those travelers to
the dangers of deviating onto its portion of the road before
they could see the inadequately marked cable and stop to
avoid it.17 On this record, then, Mountain View was not enti-
tled to summary judgment on the basis that a jury, as a mat-
ter of law, could not find Mountain View to have maintained
an unreasonably dangerous condition that injured plaintiff.
F.  Comparative Negligence
	        As we earlier alluded to, the trial court ruling in
this case may be understood to have reasoned that defen-
dants were entitled to summary judgment because plaintiff
was not entitled to recover under comparative negligence
principles. 357 Or at 89 n 5. Plaintiff does not dispute that
a jury could find that he was negligent in his actions that
led to the accident and that he therefore could be found to
have been at least partially at fault. His position, however, is
that defendants were negligent as well, that their negligence
contributed to his injuries, and that whether plaintiff’s neg-
ligence exceeded that of defendants’, thus barring plaintiff’s
recovery, is a question of fact for the jury. As we have con-
cluded, Re/Max is entitled to summary judgment because
its conduct, as a matter of law, was not a cause-in-fact of
plaintiff’s injuries. Therefore, the comparison to be made is
that of Mountain View’s potential negligence as compared
to plaintiff’s own. Before examining whether the record on
summary judgment gives rise to a material issue of fact in
that regard, we first briefly trace the development of the doc-
trine of comparative negligence in Oregon.
	       For many years, Oregon embraced the doctrine of
contributory—rather than comparative—negligence. Under
	17
        Mountain View suggests that it was not foreseeable that the cable would
injure a former employee who knew about the cable and who was distracted while
travelling down the road. That argument misunderstands foreseeable risk. In
negligence cases, the foreseeable risk is the “generalized risk of the types of
incidents and injuries that occurred rather than the predictability of the actual
sequence of events.” Fazzolari, 303 Or at 13. The question of this particular
plaintiff’s responsibility for the accident is more appropriately dealt with, as we
discussed earlier, in analyzing whether plaintiff was the “sole cause” of his inju-
ries and, as we discuss in the next section, in assessing plaintiff’s comparative
negligence.
Cite as 357 Or 74 (2015)	107

the contributory negligence doctrine, any negligence by a
plaintiff was a complete bar to the plaintiff’s ability to recover
damages from a defendant who was also at fault, regardless
of the degree of the plaintiff’s or the defendant’s negligence.
See Maser v. Klein, 224 Or 300, 304, 356 P2d 151 (1960),
overruled in part on other grounds by Godell v. Johnson, 244
Or 587, 592 n 8, 418 P2d 505 (1966) (“Contributory negli-
gence, briefly stated, is any negligence alleged against the
plaintiff which contributes as a proximate cause of the acci-
dent. * * * If it contributes in any degree as the proximate
cause of the accident and injuries, that is sufficient to bar
recovery on the part of the plaintiff.”).
	        In 1971, the legislature abandoned contributory
negligence and adopted the doctrine of comparative negli-
gence in its stead. Or Laws 1971, ch 668, § 1 (codified as
ORS 31.600). In particular, the legislature provided that the
respective negligence of a plaintiff and one or more defen-
dants are to be compared to determine whether and to what
extent the plaintiff might nevertheless recover damages
from the defendant. Under that approach, a plaintiff’s neg-
ligence results in reducing the damages that the plaintiff
can recover, rather than barring any recovery, as long as
the plaintiff is not more responsible for the injuries than
all other actors combined. See generally Eclectic Investment,
LLC v. Patterson, 357 Or 25, 35-36, ___ P3d ___ (2015)
(describing statutory change). Specifically, ORS 31.600 pro-
vides, in part:
   	 “(1)  Contributory negligence shall not bar recovery in
   an action by any person or the legal representative of the
   person to recover damages for death or injury to person or
   property if the fault attributable to the claimant was not
   greater than the combined fault of all persons specified
   in subsection (2) of this section, but any damages allowed
   shall be diminished in the proportion to the percentage of
   fault attributable to the claimant.”
	        As we earlier described, the trial court in this case
concluded that plaintiff was “100% responsible” for his inju-
ries because he failed to keep a proper lookout while driving
his motorcycle. Plaintiff and Mountain View both assume
that, in granting summary judgment on that basis, the
trial court determined that plaintiff’s negligence exceeded
108	                                 Towe v. Sacagawea, Inc.

Mountain View’s and Re/Max’s combined negligence as a
matter of law, which legally made plaintiff solely responsible
(i.e., 100 percent responsible) for his injuries because, under
the comparative negligence statute, his greater negligence
was a complete bar to recovery.
	        We agree with plaintiff that, if that was the trial
court’s rationale, the trial court erred. The apportionment
of negligence as between multiple negligent actors is, ordi-
narily, a question for a jury. See Jordan v. Coos-Curry Elec.
Coop., 267 Or 164, 165, 515 P2d 913, on reh’g, 516 P2d
472 (1973) (“Generally, the apportionment of negligence
[in comparative negligence] is for the jury and will not be
upset except where it is manifest as a matter of law that
the allocation is unreasonably disproportionate.” (Internal
quotation marks and citation omitted.)); see also Resser v.
Boise-Cascade Corp., 284 Or 385, 391 n 4, 587 P2d 80 (1978)
(citing with approval observation that comparative negli-
gence doctrine, given its very nature, lends itself even less
frequently to resolution as a matter of law than did contribu-
tory negligence rule). The record in this case does not make
it an exception to that usual rule. Determining fault and the
respective proportions of fault in this case is a fact-intensive
assessment that would require weighing, among other con-
siderations, whether plaintiff should have remembered the
cable, how much attention plaintiff was paying to the road
and surrounding hazards, how well Mountain View marked
and warned of the cable, and how well Mountain View
should have marked and warned of the cable, given the fre-
quency or infrequency of travel on the road and the rural
nature of the area. We cannot say that plaintiff’s negligence
exceeded that of Mountain View as a matter of law; the task
of apportioning negligence between plaintiff and Mountain
View should be left to the jury.
                     IV. CONCLUSION
	         For the reasons that we have discussed above, the
trial court erred in granting summary judgment to both
defendants on the ground that plaintiff was the sole cause
of his injuries. Although a jury could conclude on this record
that plaintiff was not riding his motorcycle as safely as he
could have or should have, the nature of his conduct was
Cite as 357 Or 74 (2015)	109

not such that the only reasonable conclusion is that plaintiff
would have driven into the cable despite any negligence on
either Mountain View’s or Re/Max’s part.

	        Re/Max is, however, entitled to summary judgment
on the alternative ground identified by the Court of Appeals
majority—viz., lack of evidence of cause-in-fact. Plaintiff’s
testimony established that he knew where the Kinyon prop-
erty was, observed that Re/Max’s “for sale” sign was no lon-
ger on it, and was looking for other property that he thought,
based on a conversation with his girlfriend, was for sale in
the same vicinity, probably adjacent to Mountain View’s por-
tion of the access road. On the record before us, a reason-
able juror could not find, as plaintiff alleged, that Re/Max’s
conduct in leaving its directional sign on the entrance to
the access road and removing the “for sale” sign from the
Kinyon property actually caused plaintiff to travel up the
access road, be distracted, and ride into the cable.

	         The record does, however, give rise to questions of
fact that preclude summary judgment in favor of Mountain
View. Contrary to the conclusion reached by the Court of
Appeals majority, the summary judgment record does not
compel a conclusion that plaintiff was a trespasser as a mat-
ter of law to whom Mountain View owed only a narrow duty
to avoid wanton conduct. A disputed factual issue exists as to
whether the access road below Mountain View’s property—
that is, the portions owned by the BLM and the owner of the
Kinyon property—were open for public use. If that factual
issue is resolved in plaintiff’s favor, then Mountain View
owed plaintiff and other members of the public traveling on
the road adjacent to his property a duty not to create or main-
tain an artificial condition that posed an unreasonable risk
of harm to those who might reasonably deviate from the pub-
lic way onto Mountain View’s property. Whether Mountain
View violated that duty is a jury question—reasonable
minds might differ on the point, depending on how a jury
resolves questions about how the cable was marked, the con-
sistency with which it was placed across the road, the rural
character of the area, and other circumstances that would
bear on Mountain View’s reasonableness. Finally, Mountain
View was not entitled to summary judgment on the ground
110	                               Towe v. Sacagawea, Inc.

that plaintiff was comparatively more negligent. That deter-
mination is ordinarily one for the jury, and the record in
this case does not provide reason to deviate from that usual
rule. Accordingly, the trial court correctly granted sum-
mary judgment to Re/Max and erred in granting summary
judgment to Mountain View.
	        The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.
