(concurring and dissenting):
I concur in the result as to the liability of Brown Brothers, but write separately in part I of this opinion about the analysis. I dissent as to the liability of North Union Irrigation Co. in part II.
I.
Although I concur in the result as to the liability of Brown Brothers, I write separately to identify a concern about the legal relationship between an original subdivider and a subvendee. Generally speaking, the doctrine of caveat emptor still applies to sales of land with the result that, in the absence of an express agreement, the vendee and all subvendees cannot hold the vendor liable for injuries that arise out of a dangerous condition on the land. Restatement (Second) of Torts § 352 (1965). Two exceptions to this rule have developed: (1) liability extends to the vendor when he conceals a dangerous condition; and (2) a vendee may hold a builder-developer strictly liable for defects in the construction of a home. Restatement (Second) of Torts § 353 (1965); W. Prosser & W. Keaton, The Law of Torts 721 (5th ed. 1984).
The majority correctly states that treatment of the issue of duty requires an analysis of the legal relations between the parties. W. Prosser & W. Keaton, The Law of Torts 356-57 (5th ed. 1984). Under general negligence analysis, the court would resolve this issue by determining if, as a matter of law, the tort-feasor could have anticipated the harm to the plaintiff. Restatement (Second) of Torts § 281 comment c (1965). Despite this general rule, a vendor of real estate remains totally immune from liability for any injury his conduct in maintaining the land may cause to a subsequent purchaser. It would be preferable, in my view, to apply the foreseeability rule to determine duty in negligence actions by vendees against vendors. In this case, Brown Brothers could have foreseen the harm to plaintiffs; therefore, they would owe a duty to plaintiffs to act with reasonable care under a general duty analysis.
*779One of the reasons for retaining the doctrine of caveat emptor in the area of real estate transactions is the assumption that the vendee has a reasonable opportunity to inspect the premises; therefore, the vendor has no liability for any injury arising out of dangerous conditions on the land at the time of sale. The purpose of the doctrine apparently is to protect vendors from suits where the plaintiff presumably knew of the condition. The vendor, however, would receive the same protection under an analysis of the negligence of the parties involved. In this case, for example, a jury could easily decide that plaintiffs’ negligence outweighed Brown Brothers’ and thereby relieve Brown Brothers of liability. Although this would require Brown Brothers to litigate the suit, it seems a better solution to meeting the competing interests of the vendor and vendee than does permitting the vendor blanket immunity on the theory that he has no duty to the vendee.
II.
With respect to the liability of North Union Irrigation Co., I write to clarify the condition of the canal in question here and to discuss what I perceive as an unjustifiable paradox in Utah law.
The majority opinion does not adequately describe the condition of the canal in which Michael Loveland drowned. North Union Irrigation Co. owns a canal easement running through the Lovelands’ back yard about ten feet from their property line and parallel to it. The canal is made of cement and is approximately ten feet wide. The edges of the canal are overgrown with morning glory, which obscures the edges of the canal. The cement sides of the canal are covered in slippery moss.
The majority opinion discusses the attractive nuisance doctrine, under which it declares that North Union has no duty to protect children from its canals. I do not think this doctrine should be applied to a child who has drowned in his own back yard and was not therefore a trespasser, as is ordinarily the case under an attractive nuisance analysis. I think a more apt analysis is found in the duty of care owed by the owners of ditches. We have consistently held that those in control of ditches and similar waterways are bound by a standard of reasonable care and are liable for damages when their conduct falls below that standard. In Jensen v. Davis and Weber Counties Canals Co., 44 Utah 10, 137 P. 635 (1913), we stated:
[The] owners of irrigating canals or ditches are liable for injuries or damages which are directly caused by their acts of omission or commission, if such acts constitute negligence and damage follows. In other words, if by the exercise of ordinary care and prudence, as those terms are ordinarily defined in negligence cases, the damages could have been avoided, a failure to exercise such care and prudence may constitute actionable negligence.
44 Utah at 14, 137 P. at 636. See also Jenkins v. Hooper Irrigation Co., 13 Utah 100, 44 P. 829 (1896) (holding defendant liable for damage to plaintiff’s trees and crops which were destroyed when defendant’s canal overflowed on plaintiff’s land; we stated, “The true standard by which to test the charge of negligence was one of prudence and care”); Mackay v. Breeze, 72 Utah 305, 269 P. 1026 (1928) (applying traditional negligence concepts in a case involving liability for harm to property from escaping water); Lisonbee v. Monroe Irrigation Co., 18 Utah 343, 54 P. 1009 (1898) (holding that irrigation companies have a duty to construct and maintain their canals in such a way that they do not harm the property of others). The legislature has also imposed upon the owners of ditches a duty of reasonable care. Utah Code Ann. § 73-1-8 (1980): “The owner of any ditch, canal, flume or other watercourse shall maintain the same in repair so as to prevent waste of water or damage to the property of others.... ”
I find it deeply ironic that our case law and statutes impose on ditch owners a duty of care which protects the property of others, while we remain unwilling to create a parallel duty to protect human life. The majority opinion justifies its conclusion with policy-based arguments tied to cost analysis. For empirical evidence, the ma*780jority relies on Charvos v. Salt Lake City, 42 Utah 455, 131 P. 901 (1913), a 1913 case containing a summary of evidence taken as to the condition of Salt Lake’s ditches in that year. I am unpersuaded by that evidence. I think the duty of reasonable care found in our previous case law and statutes should be read to require reasonable care in protecting lives as well as property. At least, North Union Irrigation Co. should be required to prove the validity of the cost assumption it has asked the courts to rely on.
Further, I note that whatever force of logic the majority opinion might have in a case in which a trespassing child was harmed by an exposed ditch does not seem to be present in this case. The defendants own an easement through the Lovelands’ back yard. It was apparent to defendants when the subdivision containing the Love-land home was constructed that children would have access to the canals. Ironically, the existence of the canal company’s easement complicated the ability of the Lovelands to place a fence in their own back yard. In North Union Canal Co. v. Newell, 550 P.2d 178 (Utah 1976), North Union Canal Co. sued property owners who had installed a fence on their .property (to protect it from North Union Canal’s easement) to compel the removal of the fence, which North Union claimed interfered with its use and enjoyment of its easement by making it more difficult for it to use canal maintenance equipment. We held that considerations such as the safeguarding of children allowed the installation of the fence, but required litigation to settle the exact description and placement of gates in the fence. A legal doctrine which imposes no duty on North Union Irrigation Co. to fence or maintain its canal in a manner reasonably safe for children, while simultaneously exposing property owners who attempt to fence canals to potential litigation, is more than ironic; it is unjust.