concurring in part; dissenting in part.
I concur in Part 1 of the majority opinion. Ante, p. 1169. I agree that special action relief is proper where qualified tort immunity is asserted. I also agree with Part 2 of the majority opinion that the Salladay doctrine continues to be a matter of judicial interpretation notwithstanding the amendment of Ariz.Rev.Stat.Ann. (“A.R.S.”) section 33-1551. Ante, p. 1169. I also agree with the majority in Part 3 that the second motion for summary judgement did not constitute an unauthorized “horizontal appeal” and therefore should have been considered by the trial judge on its merits. Ante, p. 1170. It is from the remainder of the majority decision that I must respectfully dissent.
In Part 4, the majority asks: “Is the Salladay Doctrine Still Viable in A’izona?” I agree that the Salladay doctrine still has a place in Arizona jurisprudence. I disagree with the majority’s application of Salladay to the facts of this case. The doctrine remains a viable defense to suits against an irrigation company for death or injuries to one falling into a canal or waterway without more. That is the nexus of the original decision in Salladay v. Old Dominion Copper Mining Co., 12 Ariz. 124, 100 P. 441 (1909).
However, this case involves more than just the attractive nuisance of a waterway such as the lateral involved. In this case an inherently dangerous and hidden condition was created by Salt River Valley Water Users Association (“SRP”) when it installed the culvert and did not take known and reasonable safety precautions to protect children. I would hold that these facts preclude summary judgment for SRP as they take the situation out of the Salladay doctrine into an area of disputed facts which must be submitted to the trier of fact to determine whether SRP was negligent. Orme Sch. v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990).
*81 BASIS FOR SALLADAY
In 1909 our supreme court determined the applicability of the relatively new “turntable doctrine” when it issued the Salladay opinion. The “turntable doctrine” was a still evolving exception to the rule of landowner non-liability to trespassers “for the visible condition of his premises.” Salladay, 12 Ariz. at 130, 100 P. at 443. The facts presented by Salladay, well described in the majority opinion, set forth the issue whether the “turntable doctrine” should apply in a case of “patent and visible alluring dangers.” Id. at 129, 100 P. at 442.
The supreme court did not consider whether the “turntable doctrine” should extend to cases involving latent or hidden dangers. Id. The Salladay court refused to extend the doctrine to the visible dangers of canals largely for two reasons: 1) the public utility of flumes and irrigation ditches in an arid land and the great burden of making them harmless made liability for accidents in such flumes contrary to public policy; and 2) children old enough to be let out on their own can be presumed to appreciate the danger of open waterways. Salladay, 12 Ariz. at 130-31, 100 P. at 443; see William L. Prosser, Trespassing Children, 47 Cal.L.Rev. 427, 459 (1959).
These considerations applied in cases of patent and visible dangers are still viable today. But the law of attractive nuisance evolved beyond the static application of turn-of-the-eentury policies as portrayed in the majority’s opinion.
ARIZONA LAW SINCE SALLADAY
In Dombrowski v. Maricopa County Mun. Water Conservation Dist., our supreme court stated that a “meaningful distinction” may exist between the open canal in Salladay and the danger of negligent design and maintenance of a canal located in an urban area. 108 Ariz. 275, 277, 496 P.2d 136, 138 (1972). While the facts in Dombrowski did not present the court with the opportunity to establish a framework for evaluating an irrigation company’s duty to trespassing children, the facts at bar compel establishing such a framework.
The development of the Salladay doctrine has generally proceeded along two tracks; one upholding immunity from the attractive nuisance doctrine for open canals, waterways and power lines: Dombrowski, 108 Ariz. 275, 496 P.2d 136; Lee v. Salt River Valley Water Users’ Ass’n, 73 Ariz. 122, 238 P.2d 945 (1951); the other finding exceptions to or narrowing Salladay: Harris v. Buckeye Irrigation Co., 118 Ariz. 498, 578 P.2d 177 (1978); Partin v. Olney, 121 Ariz. 448, 591 P.2d 74 (App.1978); Clarke v. Edging, 20 Ariz.App. 267, 512 P.2d 30 (1973). Only this court’s ruling in Hersey expanded the Salladay doctrine. Hersey v. Salt River Valley Water Users’ Ass’n, 10 Ariz.App. 321, 458 P.2d 525 (1969). In Hersey a seven year old girl was thrown into a canal as the result of an intersection traffic accident which caused her to be ejected from the vehicle in which she was riding. As she tried to climb up the side of the canal the force of the current sucked her into a culvert partially covered by an improperly maintained trashrack. Hersey is a dangerous instrumentality along a roadway ease, not an attractive nuisance doctrine ease. The Hersey court’s reliance on Salladay was therefore improper.
DEVELOPMENT OF'RESTATEMENT SECTION 339
The general rule of land owner liability has been that the owner owes no duty to trespassers except to neither wilfully nor intentionally inflict injury on them. Buckeye Irrigation Co. v. Askren, 45 Ariz. 566, 573, 46 P.2d 1068, 1070 (1935).
The “turntable doctrine” discussed in Salladay became known as the attractive nuisance doctrine. The attractive nuisance doctrine rested on the idea that although landowners were generally not liable for injuries to trespassers, they had a duty to children who were drawn to the property by some visible attraction. Initially, courts were reluctant to broadly apply the fiction that children were lured to trespass like fish to bait, United Zinc & Chem. Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615 (1922), and limited application of the attractive nuisance doctrine to cases where the child was attracted by the instrument of his injury. Salt *82River Valley Water Users’ Ass’n v. Compton, 40 Ariz. 282, 289, 11 P.2d 839 (1932) (and cases therein). The supreme courts of both the United States, Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882 (1934), and Arizona, MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958), later abandoned this restriction and expanded landowners’ duties to trespassing children.
The most significant step in the evolution of the attractive nuisance doctrine was the adoption of section 339 of the Restatement of Torts (1934). In what Prosser and Keaton described as one of the Restatement’s most effective sections, the drafters provided a framework for deciding a landowner’s liability for physical harm to trespassing children. W. Prosser & W. Keaton, The Law of Torts § 59 (5th ed. 1984). The Restatement approach moved away from special exemptions from liability toward application of general negligence principles. Id. Such special exemptions were described as “probably a vestigial trace of landowner’s special privileges, not destined to endure long.” Flemming James, Jr., Tort Liability of Occupiers of Land: Duties Owed to Trespassers, 63 Yale L.J. 144, 170 (1953).
Arizona adopted section 339 of the Restatement of Torts in Buckeye Irrigation Co. v. Askren, 45 Ariz. 566, 46 P.2d 1068 (1935), and has since adopted section 339 of the Restatement (Second) of Torts. Spur Feeding Co. v. Fernandez, 106 Ariz. 143, 472 P.2d 12 (1970); Brown v. Arizona Public Serv. Co., 164 Ariz. 4, 790 P.2d 290 (App.1990); Clarke, 20 Ariz.App. 267, 512 P.2d 30; Giacona v. Tapley, 5 Ariz.App. 494, 428 P.2d 439 (1967).
By the time of the first Restatement, many states had already established the general non-applicability of the attractive nuisance doctrine to bodies of water. M.C. Dransfield, Annotation, Liability of Landowner for Drowning of Child, 8 A.L.R.2d 1254, 1262 (1949) (and cases cited therein). But this non-liability rule broke down where part of the danger was concealed, such as in the case of a deep hole in a muddy and apparently shallow pool. Prosser, Trespassing Children, 47 Cal.L.Rev. at 459.
This hidden danger element within an attractive nuisance problem was addressed by the drafters of the Restatement (Second).
There are many dangers, such as ... water ... which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed at large. To such conditions the rule stated in the Section ordinarily has no application, in the absence of some other factor creating a special risk that the child will not avoid the danger, such as the fact that the condition is so hidden as not to be readily visible----
Restatement (Second) of Torts § 339 cmt. j (1965). This liability rule expressed in Comment j has been widely accepted in other jurisdictions. E.g., Reynolds v. Willson, 51 Cal.2d 94, 331 P.2d 48 (1958) (holding that where the existence of a trap is shown recovery will be awarded); Kinya v. Lifter, Inc., 489 So.2d 92 (Fla.App.1986); Pasierb v. Hanover Park Park Dist., 103 Ill.App.3d 806, 59 Ill.Dec. 461, 431 N.E.2d 1218 (1981); Leary v. City of Boston, 20 Mass.App. 605, 481 N.E.2d 1184 (1985); Limberhand v. Big Ditch Co., 218 Mont. 132, 706 P.2d 491 (1985) (imposing liability where there is in or about the artificial stream some peculiar danger, in the nature of a hidden peril or trap for the unwary); Lohrenz v. Lane, 787 P.2d 1274 (Okla.1990); Pratt v. Mitchell Hollow Irrigation Co., 813 P.2d 1169 (Utah 1991); Ochampaugh v. City of Seattle, 91 Wash.2d 514, 588 P.2d 1351 (1979) (holding that the attractive nuisance doctrine will not apply to bodies of water “having natural characteristics and no hidden dangers not ordinarily found in such bodies of water”).
Of particular interest is the development of the law of attractive nuisance as applied to canals in our sister state of Utah. As cited by the majority, Utah has recognized the policy considerations underpinning the Salladay decision. Pratt, 813 P.2d 1169; Loveland v. Orem City Carp., 746 P.2d 763 (Utah 1987); Charvoz v. Salt Lake City, 42 Utah 455, 131 P. 901 (1913).
Beginning with Charvoz in 1913, Utah expressly followed the Salladay doctrine in both reasoning and effect. Charvoz, 131 P. at 906-07. Utah reaffirmed Charvoz on a *83number of occasions stating the rule as broadly as: the “owners/possessors of canals are not subject to liability under attractive nuisance doctrine.” Loveland, 746 P.2d at 772. But like our supreme court in Salladay, Utah left open the possibility of extending the attractive nuisance doctrine to artificial bodies of water with hidden dangers. Weber v. Springville City, 725 P.2d 1360, 1366 (Utah 1986). And similar to this court’s ruling in Clarke, Utah noted the possibility that the attractive nuisance doctrine could be imposed on landowners for “harms resulting from dangers that are not inherent in the very existence of canals and trenches.” Trujillo v. Brighton-North Point Irrigation Co., 746 P.2d 780, 783 n. 4 (Utah 1987). The dissent in Loveland, written by Justice Durham, rejected the notion that the factual basis in Charvoz was still valid, and argued instead that the irrigation company should have the burden of proving the economic necessities of their canals. Loveland, 746 P.2d at 780 (Durham, J., dissenting).
Most importantly, just four years after deciding Loveland and Trujillo, the Utah supreme court stated that “the attractive nuisance doctrine ... is applicable where there are some hidden dangers or traps not ordinarily present in a body of water.” Pratt, 813 P.2d at 1173. However, the Utah court refused to recognize the mere existence of a culvert without a trashrack as a hidden danger. Id. The court did say that the existence of a hidden trap or peril is an exception to the general immunity available to owners of canals and waterways. Id. The Utah court would not speculate as to what would constitute a hidden peril or trap. Id.
Given Arizona’s adoption of the Restatement (Second) of Torts section 339 as a general rule, the wide acceptance of the rule stated in comment j relating to bodies of water, and the need to establish a clear and consistent means of distinguishing between the dangers of open canals or waterways and the dangers of negligently designed or maintained diversion points and equipment, I would hold owners and operators of canals liable for harm to trespassing children where there exist artificial or manufactured hidden traps or dangers not ordinarily present in a natural body of water provided that the other elements of section 339 are also met. The issue of duty is usually one for the court as a matter of law. Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 354, 706 P.2d 364, 366 (1985). Once the landowner’s duty is established, it becomes a question of fact for the jury whether there exists a hidden peril or concealed danger. Shaw v. Petersen, 169 Ariz. 559, 821 P.2d 220 (1991); Downey v. Lackey, 11 Ariz.App. 528, 466 P.2d 401 (1970).
In the case at bar, plaintiff alleges that the canal ran from a relatively shallow depth into a pool with a sudden drop. Near the bottom of the pool was the entrance to the culvert that may have created a hidden sucking action dangerous to children, that also reduced or eliminated the chance of rescue. Courts in other jurisdictions have ruled that either of these factors can overcome the presumption of non-liability for owners of watercourses. E.g., Ansin v. Thurston, 98 So.2d 87 (Fla.App.1957) (sudden drop); Bjork v. City of Tacoma, 76 Wash. 225, 135 P. 1005 (1913) (distinguishing an enclosed flume from the open flume in Salladay and imposing liability due to lost chance of rescue). The record indicates that once Kevin Shoemaker was sucked into the culvert it took two scuba rescue firemen over twenty minutes to find his body. Even if a person with scuba diving gear had been present when the accident occurred, the fact that it took three attempts to find Kevin’s body indicates that any reasonable chance of rescue was eliminated by the design and maintenance of the culvert.
The facts in the record before us establish a genuine issue of material fact and preclude summary judgement. I recognize that the Utah supreme court in Pratt took the opposite view about the nature of an ungrated culvert as a hidden trap. However, the record in the case at bar is far more extensive than the record appeared to be in Pratt. The Utah court clearly supports the principle of law that I urge but it would not say to what facts it should be applied. However, our supreme court’s statement in Dombrowski about the distinction between open canals and negligent design and maintenance creates a question of application that should be *84answered with regard to the facts in this case. I believe exception from immunity is properly applicable here where the death of the child is caused by a hidden and dangerous condition manufactured or constructed by the defendant which trapped the child and destroyed any chance for his rescue.
I must also disagree with the majority’s conclusion that the burden of eliminating the danger in this case outweighs the risk to trespassing children. The majority’s risk/utility analysis improperly considers the cost of eliminating the danger in all of the Salt River Project’s more than 1000 miles of canals. Imposing liability only in the case of artificial hidden traps greatly reduces the potential cost of eliminating the risks. SRP has not proved, as a matter of law, that the risk to Kevin Shoemaker and other children is outweighed by the $1,000 expense of installing a trashrack on a culvert of less than 100 feet. SRP has installed some trashraeks on some of these culverts, but, unfortunately, not all. SRP has not shown that the burden of reasonable efforts to eliminate or ameliorate the danger of the hidden trap outweighs the risk to children as a matter of law. See Loveland, 746 P.2d 763 (Utah) (Durham, J., dissenting); Trujillo, 746 P.2d 780 (Utah) (Durham, J., dissenting); see also Markiewicz v. Salt River Valley Water Users’ Ass’n, 118 Ariz. 329, 576 P.2d 517 (App.1978).
CONCLUSION
This rule of liability for canal operators maintains the immunity for open and visible dangers of the waterways themselves as' established under Salladay, but imposes liability for artificial or manufactured hidden traps and dangers not ordinarily present in a natural body of water. Here the hidden and inherently dangerous condition created by the underwater, unscreened culvert presents a genuine issue of material fact that precludes summary judgment. I would deny relief and remand the case for trial.