dissenting.
This is a question of first impression as to the effect and constitutional validity of I.C. § 36-1604. I believe the trial court erred in granting respondent Sunshine Mining Company’s motion for summary judgment.
The trial court assumed that I.C. § 36-1604 merely codifies the common law with regard to the duty owed by landowners and occupants to trespassers and therefore concluded that the statute does not exempt from liability landowners whose intentional acts or omissions injure another. The lower court declared that the only exception to the immunity provided for in the statute would be an intentional tortious act upon the part of the landowner or occupier. The trial court observed that the affidavits presented would not support a finding of intent to injure.
There are two problems with the trial court’s reasoning process. First, the statute does not provide for any type of limited immunity. The immunity it grants is absolute. Secondly, the trial court failed to address the issue of whether Sunshine’s conduct, if not intentional, was arguably willful and wanton as alleged in the complaint.
The clear language of the statute does not support the lower court’s assertion that it is, in most part, a codification of the principles of common law relied upon in Huyck v. Hecla Mining Company, 101 Idaho 299, 612 P.2d 142 (1980), wherein, this Court stated that the duty of an owner or tenant was to refrain from willful or wanton acts which might injure trespassers. Indeed, it would seem that the statute was intended not to codify the common law but rather to derogate it.
It is a settled canon of interpretation that when language is clear and unambiguous, it must be held to mean what it plainly expresses. Bastian v. City of Twin Falls, 104 Idaho 307, 658 P.2d 978 (1983 Court of Appeals); Knight v. Employment Security Agency, 88 Idaho 262, 398 P.2d 643 (1965); Petersen v. State, 87 Idaho 361, 393 P.2d 585 (1964). I do not consider the language of I.C. § 36-1604 to be ambiguous in any respect. The statute plainly provides:
36-1604. Limitation of liability of landowner. — ...
(c) Owner Exempt from Warning. An owner of land owes no duty of care to keep the premises safe for entry by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes. (Emphasis added).
Of the forty states having recreational use statutes, only Idaho and Ohio have attempted to grant absolute, unconditional immunity to landowners for injuries sustained by recreational users. Only one *872case has construed the scope of the immunity granted landowners under such statutes. In Plastic Surgery Associates v. Ratchford, 454 N.E.2d 567, 7 Ohio App.3d 110, the Ohio Court of Appeals held that, since under statute, (R.C. § 1533.181(A)(1)) an owner of premises owes no duty to a recreational user to keep the premises safe for entry or use, an action could not be brought against the owner by a recreational user for alleged wanton misconduct. The Court stated, “There can be no wanton misconduct unless one breaches a duty which he owes to another. Since the statute expressly provides that there is no duty, there cannot be wanton misconduct.” Id. at 567.1 By similarly granting immunity without regard to intent, I.C. § 36-1604 is arbitrary and unreasonable and denies appellants, the wife and children of the decedent, their federal and state constitutional guarantees of due process of law.
A due process challenge will be successful when (1) there is a preliminary showing that the interest is a cognizable property interest and (2) that the legislation challenged does not bear a rational relationship to the preservation and promotion of the public welfare. Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 199 (1976); Barry v. Koehler, 84 Idaho 170, 369 P.2d 1010 (1961). An action founded upon a wrongful death claim is a recognized property interest.
The state and federal due process boundaries defining the scope of a legitimate exercise of police power have been drawn as follows:
The legislature, under the broad field of “police power”, may enact laws concerning the health, welfare and morals of the people. This authority, resting with the legislature, is not subject to question by the courts, except to determine whether such authority has been exercised in an arbitrary or unreasonable manner, and whether it actually accomplishes some real purpose. Barry at 177, 369 P.2d 1010.
The legislation clearly had a viable objective — to open recreational lands to the public. However, its wording is so broad as to preclude it from passing constitutional muster. Under I.C. § 36-1604, no matter how inconsistent the use, condition, structure or activity is with recreational use, the owner is still free from liability. By not excluding from immunity intentional, willful or wanton conduct, the legislature has licensed an owner to create unsafe conditions which are totally inconsistent with recreational use. By failing to limit the immunity in this fashion, the legislature has elevated the promotion of recreational use over life itself. It is simply not rational to say that the demands of recreation are so pressing as to rise superior to a proper regard for the safety of human life. Hence, the enactment of I.C. § 36-1604 was not a proper exercise of the state’s police power. This Court cannot save the statute by straining for a constitutional interpretation. Only the legislature has the power to amend or correct it. Herndon v. West, 87 Idaho 335, 393 P.2d 35 (1964).2
Moreover, the statute offends public policy.3 The burden to a landowner/occupier to warn of a known, newly created, con*873cealed, dangerous, man-made condition in an area of known recreational use is minimal when compared to the burden that the victim or his family face if the landowner is given a cloak of immunity and recovery is denied. It is absurd to immunize a landowner from civil liability when reckless, wanton or willful conduct which is harmful to human life may result in criminal prosecution.
Assuming, arguendo, that the statute is constitutional and merely codifies the common law, I would point out that the trial court did not address the issue of whether Sunshine’s conduct, although unintentional as to the specific injurious result, was nonetheless willful and wanton. Sufficient allegations and affidavits were presented to raise the issue and its resolution is the province of the fact-finder. The Johnsons’ complaint alleges that the willful, knowing, active, intentional, negligent creation of a trap, hazard or unsafe condition was a breach of the duty to warn, in light of the known presence of recreational trespassers. The Johnsons acknowledge that Sunshine did not act with malice or with the intent to injure, but aver nonetheless that the excavation of a road known to have widespread recreational use manifested a conscious indifference for the safety of others so as to constitute wanton and willful conduct. The majority, however, states “We need not decide whether the Idaho statute exempts ‘willful or wanton’ acts by a landowner against a trespasser, and whether a lack of exemption in the statute would be an unconstitutional violation of due process. The activities of the defendant in excavating the ore from the dike for processing in its smelter do not rise to the level of willful or wanton conduct toward recreational users of the land. Huyck v. Hecla Mining Co., supra.” (page 273). The majority’s reliance on Huyck is misplaced. In Huyck, the Court held that a motorcyclist, who collided with a cable stretched across a private road providing access to a mine, was a trespasser and not an invitee to whom the property owner owed only a duty to refrain from willful or wanton acts that might cause injuries. To conclude that because the landowner’s conduct in Huyck was not willful or wanton Sunshine Mining Company’s conduct in this case was not willful or wanton makes little sense. The cases are factually distinct. Whether an act is “willful or wanton” depends on the particular circumstances of each case, and one of the factors distinguishing a willful and wanton act is such absence of care for the person of another as exhibits a conscious indifference to consequences. Dossett v. Anderson, 41 N.E.2d 313, 314 Ill.App. 376 (1942). Whether an injury is a result of “willful and wanton” conduct is a question of fact for the jury to determine from all the evidence. Trennert v. Coe, 124 N.E.3d 79, 83, 4 Ill.App.2d 166 (1955).
In the civil law the words “willful and wanton” mean more than ordinary negligence. Lancaster v. State, 64 S.E.2d 902, 911, 83 Ga.App. 746 (1951). “Wantoness” is the doing of some act or omission to do some act with reckless indifference to knowledge that such an act or omission will likely or probably result in injury; it is not intent, but knowledge which is crucial to wantoness. Gunnells v. Dethrage, Ala. 366 So.2d 1104, 1106 (Ala.1979). As respects the right of a trespasser to recover for injury on the ground that an act causing injury to the trespasser constituted “willful and wanton conduct”, ill-will is not a necessary element of wanton conduct. McDaniels v. Terminal R. Ass’n of St. Louis, 23 N.E.2d 785, 791, 302 Ill.App. 332 (1939).
The essential elements of “willful and wanton misconduct” are knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; the omission to use such care and diligence to avert the threat and danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. Olszewski v. Dibrizio, 275 N.W. 194, 195, 281 Mich. 423 (1937). The most critical element of wantoness is knowledge, and that element *874need not be shown by direct evidence; rather, it may be made to appear by showing circumstances from which the fact of knowledge is a legitimate inference.
Willful acts and omissions are conscious acts and omissions; acts and omissions, the possible consequences of which are considered and weighed and present in the mind. To be also wanton acts and omissions, they must be of such character or done in such manner or under such circumstances as to indicate that a person of ordinary intelligence activated by a normal and natural concern for the welfare and safety of his fellow men who might be affected by them could not be guilty of them unless wholly indifferent to their probable injurious affect or consequences. Kile v. Kile, 63 P.2d 753, 756, 178 Okl. 576 (1936).4
In light of the pleadings and affidavits in this case, it cannot be said, as a matter of law, that Sunshine’s alleged conduct was neither willful nor wanton. This is a material issue of fact.
In summation, I would hold that a landowner or occupier, aware of constant and continued use by recreational trespassers of the landowner’s property, owes the minimal duty to warn of latent dangers created at his direction. Because I.C. § 36-1604 does not permit recovery where the landowner’s conduct is intentional, willful or wanton, it violates state and federal concepts of due process and is therefore unconstitutional. On that ground, I would reverse.
However, assuming that the statute does not exempt intentional, willful or wanton landowners from liability, I would remand for a determination of whether the pleadings and affidavits were sufficient to raise a material issue of fact, i.e. whether Sunshine’s conduct, given the circumstances of this case, was willful and wanton.
. Compare I.C. § 36-1604 with Wash.Rev.Code § 4.24.210 (1976), the Recreation Use Act for the state of Washington, which preserves owner liability in only three situations: When the entrant is charged a "fee of any kind,” when he is injured by an intentional act, and when he sustains injuries “by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.”
. Notably, decisions from jurisdictions allowing liability for intentional misconduct, have demanded only a minimal duty of care, often requiring only that a sign be posted warning of the unobservable or latent danger. See Odar v. Chase Manhatten Bank, 138 N.J.Super. 464, 351 A.2d 389 (1976); cf. Heider v. Michigan Sugar Co., 375 Mich. 490, 134 N.W.2d 637 (1965); McGruder v. Georgia Power Co., 126 Ga.App. 562, 191 S.E.2d 305 (1972), rev’d subnom. Georgia Power Co. v. McGruder, 229 Ga. 811, 194 S.E.2d 440 (1972); Washington v. Trend Milk, Inc., 121 Ga.App. 659, 175 S.E.2d 111 (1970).
.See Knowles, Wiliam C., “Landowner’s Liability Toward Recreational Users: A Critical Comment," 18 Idaho L. Review 59 (Winter 1980).
. See also W.L. Prosser, Law of Torts (4th Edition) (1971) 185-188.