dissenting.
I dissent because I have several problems with the majority analysis.
In the first place, the majority gratuitously offers the plaintiff more time to develop facts to avoid dismissal. Having the opportunity to request more time and discovery, neither the parties nor the trial court saw fit to seek either. The trial court felt it had sufficient information to rule at the time of the Rule 12(b)(6) motion. Neither in the trial court nor here has the plaintiff sought the additional factual discovery which, at this distant remove, the majority now grants on its own initiative.
Secondly, this 12(b)(6) motion raises a legal question about duty, not a factual question about details of conduct. The proper focus in such a motion is whether there exists a legal duty under the facts pled in the complaint, i.e., whether under our law a sheriff has a duty to safeguard trespassers from dangers known to the sheriff to exist on private property. Regardless of the answer to that question, it remains a legal, not a factual question — a “policy question” as it is described in On-tiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983). Further factual discovery about details of the sheriff’s powers and procedures will not shed light on that policy question because it is a question not of details but of the nature of the relationship between the parties. On the present facts, an appellate court could hold that there does exist such a duty, or conversely that there does not, but neither conclusion is helped by discovering more details about the sheriff’s operating procedures. The necessary facts are known, available, and undisputed.
Third, I have hesitation about the majority’s broad interpretation of Austin to impose a duty upon a “reasonable” sheriff to safeguard trespassers about dangers on private property. Formerly, for many centuries in fact, the law reserved this duty to the private property owner. Apart from crime or disease, dangers on private property have not traditionally been considered subjects for safeguarding by public law enforcement agencies. Factually dissimilar *507in its criminal and geographic setting, Austin is now apparently read to mean that a reasonable law enforcement officer might have to warn trespassers of known dangers on private property just as the police must warn an identified victim of a telephoned criminal threat. Because of the dissimilarity between the sheriff’s civil and criminal authority, as well as that between public and private property, I cannot interpret Austin to support any such analogy.
Furthermore, the majority’s interpretation of Austin seemingly adopts the “reasonable man” [person] standard as the touchstone for determining the existence of duty. I have two problems here, one theoretical, the other practical. The theoretical one lurks in the footnote below detailing the wondrously unrealistic perfectionism of this odious standard-bearer who stands as a monument in our tort law.4 The more practical problem with the majority’s use of this test is that the reasonable-person standard does not generate a duty but instead assumes a duty derived elsewhere and then measures its execution by a standard of prudence. See W. Prosser & R. Keeton, The Law of Torts § 53, at 356 (5th ed. 1984). Reasonable-person conduct is generally a jury question precisely because it is factual rather than policy. In the present case, our concern is — or should be — not whether a reasonable sheriff might have acted more prudently under his powers and procedures, but whether the law requires this official to act at all, i.e., whether there exists a duty of care in the first place. This policy question is not a question about execution of duty but of its very existence. It is accordingly for a court, not a fact-finder to decide, and it turns not on details of conduct but on the relationship between the parties.
This majority’s analysis generates my further hesitation over its power/duty discussion. In my view, the question in this case at this point concerns the existence of legal duty — a matter of “policy.” The determination of legal duty logically precedes questions of power and procedure. Discovering the sheriff’s power and procedures as a prerequisite to determining duty confuses the existence of duty with specific details of conduct, a confusion our courts have repeatedly sought to dispel. Power and duty, furthermore, are not necessarily intertwined. Some duties exist without the power of implementation (e.g., preventing crimes, sickness, pollution), and some pow*508ers exist without a correlative duty (e.g., rescuing a drowning person).
For the foregoing reasons, I cannot find either in Austin or any of our other law any duty on the sheriff in this scenario. I would accordingly uphold the trial court’s order of dismissal.
Note: The Honorable Michael C. Nelson, Judge Pro Tempore, was assigned by the Chief Justice of the Arizona Supreme Court to participate in the disposition of this matter pursuant to Ariz.Rev.Stat.Ann. §§ 12-145-47 (1990).
. It is impossible to travel anywhere or to travel for long in that confusing forest of learned judgments which constitutes the Common Law of England without encountering the Reasonable Man____ The Reasonable Man is always thinking of others; prudence is his guide, and “Safety First," if I may borrow a contemporary catchword, is his rule of life. All solid virtues are his, save only that peculiar quality by which the affection of other men is won____ While any given example of his behavior must command our admiration, which taken in the mass his acts create a very different set of impressions. He is one who invariably looks where he is going, and is careful to examine the immediate foreground before he executes a leap or a bound; who neither star-gazes nor is lost in meditation when approaching trap doors or the margin of a dock; who records in every case upon the counterfoils of checks such ample details as are desirable, scrupulously substitutes the word “Order” for the word “Bearer,” crosses the instrument "a/c Payee only” and registers the package in which it is dispatched; who never mounts a moving omnibus and does not alight from any car while the train is in motion; who investigates exhaustively the bona fides of every mendicant before distributing alms, and will inform himself of the history and habits of a dog before administering a caress; who believes no gossip, nor repeats it, without firm basis for believing it to be true; who never drives his ball till those in front of him have definitely vacated the putting-green which is his own objective; who never from one year’s end to another makes an excessive demand upon his wife, his neighbors, his servants, his ox, or his ass____ Devoid, in short, of any human weakness, with not one single saving vice, sans prejudice, procrastination, ill-nature, avarice, and absence of mind, as careful for his own safety as he is for that of others, this excellent but odious character stands like a monument in our Courts of Justice, vainly appealing to his fellow-citizens to order their lives after his own example.
This engaging quote comes from “Lord Justice Morrow” in “Fardell v. Potts," a wholly fictitious case crafted by A.P. Herbert in his Uncommon Law (1955). Its fictitious origin does not detract from its valid insight that the reasonable person test sets a standard of total perfectionism attainable only by a legal superman or woman, not by mere mortals.