concurring and dissenting.
I agree with the majority opinion only with regard to its discussion of liability for *276willful and wanton conduct and its remand for further proceedings on that issue. Otherwise, I dissent to its treatment of attractive nuisance and to the application of the recreational trespass statute to city parks.
I.
With no discussion whatsoever, the majority blandly states that “[t]he doctrine of attractive nuisance in this state does not apply to streams,” citing Bass v. Quinn-Robbins and Bicandi v. Boise Payette Lumber Co. While a little stare decisis is a good thing, the above two cases are not worthy of much deference as evidenced by the following pronouncements contained therein:
Every man who has been brought up with the freedom allowed to American boys knows that you might as well try to dam the Nile with bulrushes as to keep boys away from ponds, pools, and other bodies of water.
Bicandi v. Boise Payette Lumber, Co., 55 Idaho at 551, 44 P.2d at 1111.
The weight of authority is to the effect that ponds, pools, lakes, streams, reservoirs, and other waters do not constitute attractive nuisances, at least in the absence of any unusual element of danger. The natural and ordinary perils thereof are usually deemed to be obvious to children of the tenderest years, and as a general proposition no liability attaches to the proprietor by reason of injury or death resulting therefrom to children who have come upon the land to bathe, skate, or play. 56 Am.Jur. 850.
Bass v. Quinn-Robbins, 70 Idaho at 313, 216 P.2d at 949 (emphasis added).
While these statements, which are little but decrees issuing ipse dixit from the ivory tower of this Court, may have made pleasant reading in a bygone era, a contemporary reasoning court would either overrule them or apply the specific facts of a case and create appropriate exceptions.
Such a case is before us today in the tragedy of Dustin Jacobsen, a two-year old at the time of his life-altering injury. The leading treatise on torts has observed that while the danger of drowning may be apparent enough to a mature child as to create a general rule of no liability,
[tjhese fixed rules have been found deficient in certain situations. One is where the possessor of the land knows or has reason to know that the children who are likely to trespass are so extremely young that they cannot appreciate the danger. When an infant of three or four is known to be in the vicinity of fire or water, or other dangerous conditions, it is ‘pure fantasy, straight from outer space1 to say that he will be fully able to protect himself against them. The arbitrary categories have also proved unsatisfactory in cases where there is an enhanced risk, greater than the ordinary one normally attending such a condition, as where some part of the danger is hidden, or there is some special, distracting feature, such as a diving board, or special reason to anticipate trespasses, such as past experience or proximity to a place where children congregate.2 There are so many of these exceptional cases that many courts have rejected such fixed and arbitrary rules, and said that each case must be considered in the light of all of its particular facts.
Prosser and Keeton on The Law of Torts, 5th ed., 1984, pp. 407-408 (emphasis added).
It is obvious that our hallowed Idaho rule excluding the application of attractive nuisance to streams ought to give way, in the minds of a reasonable court, in the case of a two-year old victim who can hardly be assumed to appreciate the danger of many, if any, hazards. By not tempering this harsh rule in the case of young Dustin Jacobsen, the majority engages in the “pure fantasy, straight from outer space” criticized by the Michigan court in City of *277Saginaw3 and adopted by Prosser and Keeton.
In addition, the facts here establish that the city of Rathdrum located playground equipment near the ditch and the bridge over it — facts which the Arizona court in Harris, supra, found persuasive enough to withdraw immunity from attractive nuisance liability in the case of a twelve-year old victim. This may be the only court in the nation to not apply the attractive nuisance doctrine in the face of such compelling facts.
While Idaho allegedly has adopted the attractive nuisance doctrine, today’s opinion demonstrates that a majority of this Court is extremely reluctant to apply it to appropriate factual situations. See also Hughes v. Union Pacific Railroad Co., 757 P.2d 1185 (1988). But it has not always been so with all Idaho jurists. More than 50 years ago, Justice Holden established that it was possible for one to occupy a position on this Court without resigning from the human race:
In the case at bar, then, one is compelled to determine whether to align himself with that group of courts which have adopted what has been designated as the “humane” (attractive nuisance) doctrine, or with that other group which have adopted what has been designated as the “hard” doctrine. The “hard” doctrine *278puts property above humanity; on the other hand, the “humane” doctrine puts humanity above property. To hold that one who artificially creates and maintains something dangerous on his land, which from its very nature is attractive to children, something which will attract children to it to play just as certainly as a fish is attracted to and mechanically follows a bait, is under no duty to exercise reasonable and ordinary care to protect children from its dangers because they are not given an express invitation, smacks of the barbarous it seems to me. I do not hesitate, personally, to adopt the rule which places humanity above property, and gives reasonable protection to children of tender years against dangers which they cannot perceive and appreciate, even though an express invitation may not have been given.
Bicandi v. Boise Payette Lumber Co., supra, 55 Idaho at 556, 44 P.2d at 1116 (Holden, J., concurring specially) (citations omitted).
II.
Also found wanting is the majority’s rote recitation of the elements of “Idaho” attractive nuisance which include the requirement that the child be “attracted to the nuisance.” Modern courts have discarded this requirement and have instead treated child trespasser law as simple negligence law:
As a logical consequence of the ‘attractive’ theory, the Supreme Court, in a much criticized opinion of Mr. Justice Holmes, held that a child could not recover when he was not induced to trespass by the presence of the pool of poisoned water that killed him, but discovered it only after he had come upon the land. Thirteen years later the decision apparently was overruled; but in the meantime this limitation on the doctrine had been accepted and followed by a number of other courts. It has now been rejected by a large majority of courts, and there remain only a handful of jurisdictions which still adhere to it. Early in the twenties a different theory began to gain ground as a justification for the liability to the child, which discarded the necessity of allurement, enticement or attraction onto the land, and considered that this was important only in so far as it meant that the trespass was to be anticipated. The basis of the liability was thought to be little more than the foreseeability of harm to the child, and the considerations of social policy which, in other negligence cases, operate to bring about a balancing of the conflicting interests, and to curtail to a reasonable extent the defendant’s privilege to act as he sees fit without regard to the effects on others. In other words, child trespasser law began to be viewed as essentially ordinary negligence law, and the fact that the child was a trespasser merely one fact to be taken into account, with others, in determining the defendant’s duty, and the care required of him.
He * * * * *
In 1934 the Restatement of Torts, in what has proved to be one of its most effective single sections, threw its support behind the special duty rules for child trespassers. It discarded the idea of allurement to trespass, and defined the ‘attractive nuisance’ rule in general negligence terms. Section 339, as modified in the Second Restatement, has been cited so frequently, and has received such general acceptance on the part of the courts, that it has become the new point of departure.
Prosser and Keeton, supra, pp. 401-402 (emphasis added).
Yet such “modern” developments as the 1934 Restatement of Torts position on “attraction to the nuisance” have not penetrated into darkest Idaho. See Hughes v. Union Pacific Railroad Co., 757 P.2d 1185 (1988). This, along with the continued adherence to the unreasoning and unreasonable blanket rule that attractive nuisance liability does not extend to water, casts considerable doubt upon my personal goal that our homegrown Idaho jurisprudence will enter the Twentieth Century by the year 2000.
*279in.
My final area of disagreement with the majority is its application of the recreational trespass statute to a city park. It is due to the application of the statute here that Dustin Jacobsen and his mother must resort to arguing attractive nuisance and wanton or willful conduct rather than ordinary negligence law. My thoughts on the matter have been expressed fully in my dissent to McGhee v. City of Glenns Ferry, 111 Idaho 921, 729 P.2d 396 (1986), with Justice Huntley in full accord. How a child, as a member of the public whom the city invites to use a city park, can be considered a recreational trespasser is beyond the reasoning power of rational minds, mine included. Apparently this obvious paradox has not troubled the calm contemplation of the majority.
Yet, curiously, the McGhee decision is not cited by the majority today. The author of the Court’s opinion has properly avoided utilizing it as one would the plague. In fact, McGhee has not yet been cited by this Court since it unfortunately materialized out of whole cloth, despite the fact that the majority has had two opportunities, today included, to do so. Rice v. Miniver, 112 Idaho 1069, 739 P.2d 368 (1987) (McGhee cited in dissent by Bistline, J.). McGhee was also snubbed by the Ninth Circuit Court of Appeals when it considered the applicability of our recreational trespass statute. Seyler v. U.S., 832 F.2d 120 (9th Cir.1987). In fact, a computer search reveals that, to date, not a single majority opinion of any court, including this one, has relied upon the McGhee majority opinion or even acknowledged its existence.
Contrast that with the subsequent history of a contemporaneous4 opinion from the high court of the state of New york, Ferres v. City of New Rochelle, 68 N.Y.2d 446, 510 N.Y.S.2d 57, 502 N.E.2d 972 (1986). There a unanimous (7-0) court held that a similar New York recreational trespass statute could not be applied to a city park which the public was invited to use.
From its wording and an analysis of the statutory scheme, the sole purpose of General Obligations Law § 9-1035 is evident — to induce property owners, who might otherwise be reluctant to do so for fear of liability, to permit persons to come on their property to pursue specified activities. General Obligations Law § 9-103 offers two inducements to the property owner to give such permission: (1) the broad grant of immunity from liability conferred in subdivision (l)(a) (absolving the owner of the ‘duty to keep the premises safe for entry or use by others’ and of the duty ‘to give warning of any hazardous condition’) and (2) the assurance provided in subdivision (l)(b) (that by giving permission to use his property the owner does not, by that act, assure ‘that the premises are safe’ or ‘constitute the person to whom permission is granted an invitee to whom a duty of care is owed’). It would be contrary to reason to assume that the Legislature could have intended that the statute apply in circumstances where neither the basic purpose of the statute, nor, indeed, any purpose could be served — as in the case of the supervised park here where the municipality has already held its recreational facility open to the public and needs no encouragement to do so from the prospective immunity offered by the statute.
Moreover, subdivision (l)(b) — to have any meaning and effect — could not have been intended to apply here. Subdivision (l)(b) provides an additional incentive to the property owner by assuring him, among other things, that in giving permission for use of his property he does not ‘constitute the person to whom permission is granted an invitee to whom a duty of care is owed’ (General Obligations Law § 9-103[I][b]; emphasis added).
The Legislature can hardly have intended to grant this additional assurance afforded by subdivision (l)(b) where it would be superfluous and could serve no *280purpose, i.e., where the owner, like defendant here, has already encouraged public use and assumed the duty of reasonable care in the operation of its park, (citations omitted).
* * * * * %
[The statute] does not provide immunity to a municipality, which, irrespective of any inducement contained in General Obligations Law § 9-103, already operates and maintains a supervised facility, such as defendant’s, for use by the public. Nothing in the wording of General Obligations Law § 9-103 or its history supports defendant’s construction which results in a drastic reduction in a municipality’s responsibility in the operation and maintenance of its supervised parks, and serves no discernible public interest, certainly not one consistent with the stated aim of section 9-103: encouraging a landowner to permit persons to come upon his property for the purpose of hunting, fishing and other outdoor recreational activities, (citations omitted).
Ferres, supra, 510 N.Y.S.2d pp. 60-61, 62, 502 N.E.2d pp. 975-76, 977 (emphasis added).
The reasoning and unshakable logic of this position taken by one of the leading state appellate courts of this nation has been cited no less than eleven times by the courts of its own state, see, e.g., Leonakis v. State, 126 A.D.2d 706, 511 N.Y.S.2d 119 (1987); Meyer v. County of Orange, 129 A.D.2d 688, 514 N.Y.S.2d 450 (1987), twice by other jurisdictions, Caley v. City of Canton, Slip Op. No. 7262, Filed December 21, 1987 (Ohio App.1987) [available on WESTLAW, 1987 WL 31686] (LEXIS); Fastow v. Burleigh County Water Resource District, 415 N.W.2d 505 (N.D.1987), and once in Idaho. Rice v. Miniver, supra.
Is it any wonder that McGhee has never been cited by a majority opinion anywhere in the nation? No, wonder at all. It champions an absurd statement of law— that a child invited to use a city park open to the public is a trespasser of genus “recreational.” One well understands why today’s majority does not mention McGhee — such a monument of Idaho jurisprudence at its lowest.
As the saying goes in the vernacular, “use it or lose it,” which expressed in judicial parlance is “rely on it or overrule it.” How long will this Court leave McGhee on the books as a thorn in the side of conscientious judges and striving attorneys is anyone’s guess.
Today’s majority opinion, while it is a vast improvement as compared to McGhee, is not to be overly commended. It puts this toddler’s lawsuit in the disadvantaged position of being, believe it or not, a trespasser obliged to prove willful or wanton misconduct on the part of the city, whereas the little fellow had not the capability of being a trespasser, and was in fact an invitee to whom the city owed the duty of care due to all invitees.
IY.
The special concurring opinion of Justice Bakes serves to explain that which I have mentioned and criticized in parts I, II, and III of this opinion, i.e., he makes the effort of insuring that the trial court is aware that, “The plaintiff’s burden of proof in this case, i.e., proof that the city’s actions constituted ‘willful and wanton misconduct,’ IDJI 225, is greater than proving mere ordinary negligence and, accordingly, the factual record must be evaluated based on that higher standard.” He goes on to add that the record in Dustin Jacobsen’s case, “is a very close call as to whether or not the plaintiff’s affidavits alleged sufficient misconduct on the part of the city to raise a triable issue of fact of whether or not the city’s conduct was ‘willful and wanton’ within the meaning of the law as outlined in the Court’s opinion today.”
It is probably within bounds for Justice Bakes to surmise that the trial judge needs a refresher course on the law in order to rule properly at trial. I do not agree. Nor do I see any valid reason for him to add that the issue is close, after he has agreed with a result which is to give the child a day in court.
*281What most practitioners will make out of the second sentence is that it serves only as lead-in to his gratuitous advice telling the trial judge all about motions for directed verdict and motions for judgment n.o.v.
As an appellate judge I am grateful for the further gratuity as to this Court’s function on appeal.
Hopefully little Dustin and his mother will not be frightened out of court.
. Citing Smith, J. in Elbert v. City of Saginaw, 363 Mich. 463, 109 N.W.2d 879 (1961).
. Citing Harris v. Buckeye Irrigation Co., 118 Ariz. 498, 578 P.2d 177 (1978) (normal immunity from attractive nuisance doctrine for irrigation ditch accidents inapplicable to heavily used foot bridge over ditch near high school baseball field and swimming pool).
. The facts in City of Saginaw were very close to those before this Court today. There the city allowed an excavation in a residential street to remain open for 28 days. The pit filled with water four feet deep. The pit was guarded mainly by single planks resting on saw horses. A resident of the neighborhood complained to the city that the pit was a hazard to the numerous small children who lived nearby. A neighborhood boy, Jimmy Elbert, two and one-half years old, wandered away from his mother’s supervision and was found soon afterwards floating face down in the pit. He suffered permanent brain damage. The court in City of Saginaw reviewed a slightly different issue of law. It considered whether the foreseeability of harm to Jimmy was a matter of law for the court’s determination or one of fact appropriate for jury deliberation. The trial court submitted the matter to the jury who returned a defense verdict.
Judge Smith, writing for a plurality, reversed. Even though addressing a marginally different question of law, his impassioned words are appropriate for consideration by today’s majority which does not even discuss the reasonableness of the proposition that, as a matter of law, two-year olds are presumed in Idaho to be able to appreciate the hazards of water:
Under these circumstances what is the reasonable apprehension as to injury from the hazard created? Here a jury has been permitted to say that no reasonable person would anticipate that an infant might escape from its mother and enter upon the public' highway, there to be exposed to danger from this water hole. We, of course, are constantly admonished, while driving, to proceed with caution in residential areas, and, particularly, in the vicinity of schools. We are reminded that every time a ball rolls into the street we are to presume that it is attached to a child, who will follow it, and we are fully aware of the attractiveness of many nuisances to children. For such and related reasons legislative bodies have universally placed laws on the books requiring drivers to slow down in residential areas, and in the vicinity of schools. Why? Because children are apt to get into the streets, where they have no business to be. We of the courts, in turn, have held drivers negligent for not driving with due care in such areas. Why? Because children are apt to get into the streets, where they have no business to be. But here a jury is permitted to say that the water hole in the street imposes no duty of care upon these defendants. Why? Because children are not apt to get in to the streets, where they have no business to be.
In short, Justice, in all her majesty and with all her wisdom has been permitted to peer down upon this child standing at her bar and solemnly say to him that the water-filled hole in the public street in front of his home was of no concern to him. If ... he makes bold to ask why, the answer is clear: ‘Because to you there is no danger. No reasonable person could ever anticipate that you might escape from your mother and run into the street and fall into the hole.’
All of this is straight from outer space. It is pure fantasy. It is unrelated to life on this earth. It requires no treatise on child development to tell us that a child 2 years, 8 months of age is as inquisitive as a hornet and as slippery as an eel. Despite the utmost vigilance he will at times, when the mother is cooking, or washing, or caring for others, make his get-away. Is the situation as to his safety in this event as though he lived on the frontier, or in the jungle, or does modem urban society demand more for its young? Should the penalty visited upon him, who is not even aware of his fault, exceed the well-known measures of normal family discipline? Or should it include brain damage or death? It is our answer to give, not his.
Elbert v. City of Saginaw, supra, 109 N.W.2d at 887 (emphasis added).
. One day apart.
. The New York statute is similar to our recreational trespass statute, I.C. § 36-1604.