dissenting in part.
Respectfully, I dissent from the answer we give to the second issue certified to our Court, which is:
*233“Whether K.R.S. Section 411.190 precludes application of the attractive nuisance doctrine[.]”
The Majority Opinion answers this question “yes.” I disagree. This is a humanitarian doctrine of longstanding in the common law, designed to protect children from “unreasonable risks” created by landowners when their injury is foreseeable and the likelihood of injury far outweighs the “burden of eliminating the danger.” See Restatement, Second, Torts, § 339, “Artificial Conditions Highly Dangerous to Trespassing Children.” There is no reason to believe the General Assembly has abandoned this humanitarian doctrine.
The effect of KRS 411.190, the recreational use statute, if properly understood, is to change the status of the recreational user from trespasser to licensee where he is now making recreational use of the landowner’s property, “encourage[d]” to do so, “directly or indirectly,” by a landowner who “invites or permits [such use] without charge.” Then, after the statute changes the recreational user’s status to licensee where the act applies, in Subsection (6)(a) the statute changes the duty owed to the recreational user back to the limited duty owed to a trespasser. The only logical interpretation of the effect of the recreational use statute when a child is involved is that the child is now a licensee by reason of the statute, but is still owed the same duty as before when he was a trespasser. Since a trespassing child is entitled to the protection of the attractive nuisance doctrine where it applies, a child licensee should be entitled to at least equal protection. The statute does not preclude application of the attractive nuisance doctrine. Neither should we.
Whether the attractive nuisance doctrine would apply in the present ease, given a “yes” answer to question two, would depend on facts not clear from the certification from the United States District Court: whether the injury was “caused by an artificial condition upon the land,” whether the “possessor knows or has reason to know that children are likely to trespass,” and whether “the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk ... to such children.” Restatement, Second, Torts § 339.
Where the recreational use statute does not apply, which is all cases involving trespassers except those where the landowner has intentionally encouraged recreational use, the attractive nuisance doctrine still applies to trespassing children. It defies reason to give the child less protection than he would have as a trespasser because the landowner has encouraged his use.
In the present case we are advised by brief that the landowner’s agents have testified that the recreational use being made of the property was unknown. If true, the recreational use statute does not apply to the case at hand. But the attractive nuisance doctrine for trespassing children should still apply, provided there is proof of the various elements necessary to its application. This is so because, whether or not the statute applies, the duty owed to the child is the duty owed to a child trespasser.
COMBS and LAMBERT, JJ., join this dissent.