(dissenting).
For the reasons set forth in my partial dissent in Loveland v. Orem City Corp., 746 P.2d 763 (Utah 1987), I dissent. The majority acknowledges that this case is decided by judicially created doctrine, yet declines to assume responsibility for fashioning a remedy for current problems for which the doctrine is patently inadequate. Fairness and the pragmatic difficulties of such an undertaking are indeed important considerations, but there is no showing on this summary judgment record that such considerations may not be adequately addressed by the courts. Further, there is no showing whatsoever in the record that a significant concern of the majority — the cost of fencing — is in reality very important. For all we know, fencing open canals and ditches in urban and residential areas may, with modern equipment and materials, represent a nominal expenditure and one which is easily and fairly passed on to users. In my view, it is time to reexamine the factual bases for the 75-year-old doctrine affirmed by the majority and to ascertain whether the lives of children may not be more appropriately safeguarded by a rule of law designed for communities in the latter half of the twentieth century. I would remand for trial on the issue and leave questions of retroactivity to be determined after a full and fair hearing on the economic and practical necessities associated with the business of maintaining safe irrigation ditches. I suspect that after such a hearing, this Court would be in a far better position to consider the efficacy of an analysis similar to that set forth in section 339 of the Restatement (Second) of Torts (1965).