(dissenting) — The majority opinion errs in two significant ways. First, as a matter of stare decisis, the majority misconstrues existing cases directly on point. Second, as a matter of public policy, the majority creates a universe in which our precious natural resources will be barricaded from public access. While I share the majority’s concern for the tragic near drowning of Jason Farris, the suggested remedy is simply too extreme. We should maintain our existing law in this area and leave it to the appropriate government agencies to educate the public on the dangers natural bodies of water pose to children. Accordingly, I respectfully dissent.
In order to maintain an action in negligence, the aggrieved party must first establish that the defendant owed a duty of care. Estate of Kelly v. Falin, 127 Wn.2d 31, 36, 896 P.2d 1245 (1995). Certain natural hazards on one’s property can give rise to a duty of care. For example, property owners owe a duty of care to prevent injuries resulting from an accumulation of snow and ice. Geise v. Lee, 84 Wn.2d 866, 529 P.2d 1054 (1975). Since natural bodies of water pose the threat of drowning and other accidents, it follows that a duty of care would arise from mere ownership of property containing lakes or streams. Nevertheless, we have long recognized that imposing this potential liability on all such property owners is contrary to public policy. See Ochampaugh v. City of Seattle, 91 Wn.2d 514, 588 P.2d 1351 (1979); Barnhart v. Chicago, Milwaukee & St. Paul R.R. Co., 89 Wash. 304, 154 P. 441 (1916).
Our decision in Ochampaugh provides controlling authority for the case presently before the court. In Ochampaugh, two young boys drowned in a nearby pond while unsupervised. Although the boys had fished with *56their father at the pond on previous occasions, he had prohibited them from going to the pond alone. The father brought a negligence action against the City of Seattle. He argued that the City owed his sons a duty of care under the doctrine of attractive nuisance even though they were trespassing on city property at the time of the accident. Generally, landowners owe no duty of care to trespassers beyond refraining from causing willful or wanton injury. Ochampaugh, 91 Wn.2d at 518. If, however, a landowner knows that children are likely to trespass on property containing a dangerous condition, the landowner has an affirmative duty of care under the doctrine of attractive nuisance to alleviate the hazard. Ochampaugh, 91 Wn.2d at 520. The attractive nuisance doctrine elevates the status of a child from trespasser to invitee, thus requiring a higher standard of care on the part of the landowner. See e.g., Cope v. Doe, 102 Ill. 2d 278, 464 N.E.2d 1023 (1984); Baker v. Lane County, 28 Or. App. 53, 56, 558 P.2d 1247 (1977); Martinello v. B&P USA, Inc., 566 So. 2d 761, 762 (Fla. 1990); 65 C.J.S. Negligence 63(57) (1966).
Under this higher standard, the City ordinarily would have owed a duty of care to the Ochampaugh boys. Nonetheless, we recognized an exception in Ochampaugh for natural bodies of water and thus refused to find a duty on the part of the City. In doing so, we rejected a rule that would require the City to contemplate filling or fencing natural bodies of water frequented by children. We considered such a rule impractical, unnecessary, and inimical to the rights of property owners.
A body of water — either standing as in ponds and lakes, or running as in rivers and creeks, or ebbing and flowing, as on the shores of seas and bays — is a natural object incident to all countries which are not deserts. Such a body of water may be found in or close to nearly every city or town in the land; the danger of drowning in it is an apparent open danger, the knowledge of which is common to all; and there is no just view consistent with recognized rights of property owners, which would compel one owning land upon which such water, or part of it, stands or flows, to fill it up, or surround it with an impenetrable wall.
*57Ochampaugh, 91 Wn.2d at 522 (quoting Barnhart, 89 Wash. at 308 (quoting Peters v. Bowman, 115 Cal. 345, 47 P. 113 (1896))). Moreover, we declared that compelling property owners to destroy or enclose natural bodies of water ran afoul of public policy.
The numerous ponds, lakes, rivers, creeks, and miles of shoreline in this state comprise one of its most cherished amenities, and to require that they he drained, filled, or surrounded by impregnable fences (which appear to be the only means of making them child proof) in order to escape liability for the occasional drowning which occurs, would not only impose an unreasonable burden on the owner but would also run counter to the public policy of this state.
Ochampaugh, 91 Wn.2d at 523. This decision also noted that the destruction of natural bodies of water could result in considerable damage to the environment and wildlife. Ochampaugh, 91 Wn.2d at 523.
In releasing the City from potential liability, we declined to shift parental responsibility to strangers. Ochampaugh, 91 Wn.2d at 522. The facts of Ochampaugh demonstrate how shifting the burden of responsibility away from parents saddles landowners with a great expense without any commensurate benefits to children. Prior to our resolution of Ochampaugh, the City filled the pond where the boys drowned at a significant cost. Rather than easing the concerns of neighborhood parents, the City’s destruction of a favored recreational spot left both parents and children upset. Even worse, the pond’s demise did not create a safer environment for children since other natural bodies of water remained nearby. Ochampaugh, 91 Wn.2d at 523. The majority ignores these considerations as it shifts responsibility to landowners.
Under Ochampaugh, landowners have no duty to mitigate the potential for water-related injuries. While this holding should dictate the outcome of today’s decision, the majority declines to follow Ochampaugh for two reasons. First, the majority erroneously asserts that "a child invitee is not the equivalent of the trespasser in an attrac*58tive nuisance action.” Majority at 53. As stated earlier, the attractive nuisance doctrine increases a landowner’s duty of care by treating trespassing children as invitees. Second, the majority declares "the landowner’s burden to make the property safe for children is not disproportionately heavy” where he or she profits from the presence of children. Majority at 53. This argument is flawed as well. Washington is not a landlocked state. Many businesses and dwellings are located on or near bodies of water. To expect that landowners can somehow make these waters safe for children at anything less than an extraordinary cost is to misunderstand the magnitude of the burden.
Even accepting the majority’s argument that the doctrine of attractive nuisance does not elevate the status of trespassers to invitees, the majority still reaches an imprudent result. In Casper v. Charles F. Smith & Son, Inc., 316 Md. 573, 560 A.2d 1130 (1989), two girls fell through ice into freezing waters, suffering permanent and severe injuries including brain damage. Their parents brought a negligence action against the City and its contractors. They claimed that the site of the accident, once merely a stream, had increased in depth after the onset of a construction project. Casper assumed for purposes of argument that the injured children enjoyed the status of business invitees since the parents could allege the site of the accident was a park. Casper, 316 Md. at 580. Nonetheless, Casper found an exception for bodies of water, and held that the City owed no duty of care even to invitees.
Bodies of water like the stream involved in this case have historically and consistently been afforded distinctive treatment in the law relating to landowners’ liability. The necessity, or at least the desirability, of maintaining such bodies of water, coupled with known inherent dangers and the difficulty of effectively protecting against those dangers, have led courts across the country to pronounce water an "open and obvious danger,” for which no warning or special precaution is ordinarily needed. Moreover, in those states in which the doctrine of attractive nuisance may elevate the status of *59child trespassers to that of invitees, bodies of water are generally excluded from the operation of that doctrine.
Casper, 316 Md. at 581. The majority opinion seems to assume that since young Jason was an invitee, Majestic Mobile Manor owes him a duty of care in all circumstances. What happened to Jason when he was two years and eight months old is every parents’ nightmare. His father was working on the roof of their mobile home and turned his back on Jason for a moment. Jason, who was riding his older sister’s bicycle, headed for Clark’s Creek. He nearly drowned in the creek, and as a result of the accident, suifers from severe brain damage and is a quadriplegic. To suggest, however, that the owner of the mobile home park might have had a duty to somehow enclose Clark’s Creek so that youngsters like Jason would not slip into the water places too great a burden on the property owners of this state.
This view is consistent with the holdings of other jurisdictions. In Scott v. Future Invs. of Miami, Inc., 559 So. 2d 726 (Fla. Dist. Ct. App. 1990), a seven-year-old boy drowned in a canal behind his apartment complex. His mother brought a wrongful death action against the owner of the apartment building, arguing that the owner had a duty to erect a fence around the canal. The Florida District Court of Appeal, refusing to shift parental responsibility to landlords, affirmed summary judgment in favor of the landowner. See also Stevens v. Riley, 219 Ill. App. 3d 823, 580 N.E.2d 160 (1991). Under the majority opinion, however, owners of housing units — usually strangers to the children in their dwellings — must now either barricade any water on their property or evict families with children in order to escape liability, should an accident occur.
The majority reaches this troublesome result by broadly interpreting our decision in Tincani v. Inland Empire Zoological Soc’y, 124 Wn.2d 121, 875 P.2d 621 (1994), a case having nothing to do with landowner liability for water-related accidents. In Tincani, a fourteen-year-old student *60was injured on a field trip to Walk in the Wild Zoo. While exploring the zoo, the student lost the main trail and became separated from a small group of friends. In an attempt to rejoin his friends, he jumped from a natural rock formation and suffered serious injuries. A jury found in favor of Tincani and his parents in a personal injury action brought against the zoo. We reversed and remanded for a new trial, in part, because the jury’s answers to special interrogatories were irreconcilably inconsistent. We also held that the trial court erred in its jury instructions on the zoo’s duty of care to invitees. To determine the extent of the duty, Tincani adopted the Restatement (Second) of Torts 343 (1965).
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, [the possessor]
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
Tincani, 124 Wn.2d at 138. When dangerous conditions are apparent, the Restatement circumscribes the duty of care. As we noted in Tincani, "[i]n limited circumstances, Restatement (Second) of Torts 343A creates a duty to protect invitees even from known or obvious dangers. This occurs when a possessor 'should anticipate the harm despite such knowledge or obviousness’.” Tincani, 124 Wn.2d at 139 (quoting Restatement (Second) of Torts 343A) (emphasis added).
It makes sense to hold, as we did in Tincani, that a landowner may have a duty of care to protect against known or obvious dangers when asking the invitee to "take a walk in the wild.” Where exploration is expected or encouraged then the landowner should be on guard to *61take measures that will safeguard his or her guests. The majority unfortunately extends the reasoning of Tincani to natural bodies of water which have inherent dangers. Every year we hear terrible stories of children and adults injured, and sometimes killed, in water-related accidents. Landowners with property containing natural bodies of water certainly can "anticipate harm” flowing from these waters. But the solution should not be to put landowners in the position of sequestering children from water. The waters of this state are exceptional and warrant an exception from the general duty of care that landowners owe to invitees. I would hold that as a matter of public policy, property owners do not have a duty to protect invitees from the dangers inherent in natural bodies of water.