The opinion
SULLIVAN-,'Judge,
concurring.
I concur subject to a caveat with respect to the majority and dissenting opinions’ analysis of “duty”.
Justice Dickson, speaking for the court in Gariup Construction Co., Inc. v. Foster (1988) Ind., 519 N.E.2d 1224, 1227 , noted that the duty determination is made “not without difficulty”, and, in quoting from a well-regarded treatise, concluded that “ ‘[n]o better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.’” See Jay Tidmarsh, Tort Law: The Languages of Duty , 25 Ind. L.Rev. 1419 (1992).
It is for this reason, perhaps, that we have in the past' articulated the principié that:
“The Law imposes but one common law duty and that duty is to use due care (citation omitted). The duty is the same for all relations, without regard to the facts of the case.” South Eastern Indiana Natural Gas Co., Inc. v. Ingram (1993) 1st Dist. Ind.App., 617 N.E.2d 943, 953 .
As a.-corollary to this premise we have said:
“[T]he substantive' law establishes the standard of care which must be met, i.e., reasonable care. The standard is a fixed one and is independent of the conduct of others but the conduct required of the individual to measure up to the fixed standard varies depending upon the nature of the duty owed and the surrounding circumstances.” Walters v. Kellam & Foley (1977) 2d Dist., 172 Ind.App, 207, 360 N.E.2d 199, 214 .
In short, the duty is that of reasonable care under the circumstances. That duty never changes. It always exists although the circumstances may differ from case to case. While the duty remains the same, the conduct required to meet that standard may be affected by tbe actor’s mental capacity. It is *450 for this reason that I agree that summary judgment was inappropriate and that the matter should be submitted to the trier of fact for determination. 6
. As an aside, I would also note that the trial court used the term "incurred risk” to describe the doctrine warranting summary judgment and the respective parties use the same term in their arguments. It is not uncommon for the terms "incurred risk” and "assumed risk” to be used interchangeably in reported decisions. There is little, if any, practical difference in the application of the principle contained within the doctrines. However, the term "assumed risk” is the appropriate term to describe the defense relating to a claim made by one who is exposed to a risk •arising within a contractual relationship. City of Alexandria v. Allen (1990) Ind.App., 552 N.E.2d 488 .