dissenting. The majority, like the trial court, has struck too soon, faulting plaintiffs for failing to “come forward with. . . facts from which a jury could reasonably infer a breach of. . . duty” while affirming a dismissal that prevented any factual showing. Accordingly, I dissent from parts I and II of the majority opinion.
Plaintiffs’ complaint charged that the horse and pen were an attractive nuisance to the small child and it was foreseeable that the child would enter the pen, which was possible because the fence was not electrified. It further charged that in the confined area of the pen, “the horse was spooked and trampled plaintiff Cory” Defendant *305immediately moved to dismiss, arguing that Cory Zukatis was a trespasser and defendant owed no duty to a trespasser. With no factual development, the court dismissed the attractive nuisance count with the following order:
Count I of the Complaint asserts a claim entitled “attractive nuisance.” The doctrine of attractive nuisance is not recognized in Vermont. Trudo v. Lazarus, 116 Vt. 221, 223 (1950).
It went on, over a year later, to dismiss the remaining counts on a motion for summary judgment. That order did not revisit the attractive nuisance ruling or cite any facts that would have been relevant to such a ruling. None of the facts, or absence of claims or facts, cited in the majority opinion appear anywhere in the trial court rulings.
In my opinion, our law on landowner liability is in serious need of reexamination. We have failed to do so because the parties have not briefed or argued alternative theories, either here or in the trial court. See Buzzell v. Jones, 151 Vt. 4, 7, 556 A.2d 106, 109 (1989). Here, the parties have focused on part of that reexamination, whether to allow liability for damages caused by artificial conditions highly dangerous to trespassing children, as endorsed by Restatement (Second) of Torts § 339 (1965). I am inclined to follow the Restatement rule, although I prefer that any attractive nuisance rule be placed in the broader context of reconsidered policies on landowner liability generally.
We have been consistent that a motion to dismiss for failure to state a claim may not be granted “unless it appears beyond doubt that there exist no circumstances or facts which the plaintiff could prove about the claim made in his complaint which would entitle him to relief.” Levinsky v. Diamond, 140 Vt. 595, 600-01, 442 A.2d 1277, 1280-81 (1982). We have emphasized that “[a] court should be ‘especially reluctant to dismiss’ a cause of action on the basis of the pleadings when the theory of liability is novel.” In re A. G., 151 Vt. 167, 169, 559 A.2d 656, 657 (1989) (quoting Association of Haystack Property Owners, Inc. v. Sprague, 145 Vt. 443, 447, 494 A.2d 122, 125 (1985)).
I cannot find the proper standard for judging a Rule 12(b)(6) motion reflected anywhere in the majority opinion. Instead of considering what plaintiffs might be able to prove in support of their brief complaint, and showing reluctance to rule on a novel theory without factual development, the majority relies on facts not stated in the *306complaint and faults plaintiffs for failing to make contrary and specific factual allegations. It concludes from this that the horse “was not aggressive,” that “the fence was in good repair and effectively restrained the horse,” that the “failure to activate the electric wires was [not] unreasonable,” and that “the potential for young children to enter harm’s way was [not] substantial enough to warrant ‘child proofing’ the pasture.” If we look at the complaint in the way our decisions specify, we must conclude that it is entirely possible that plaintiffs could prove that the electric charge would have kept the child out of the horse pen without injuring him and that the horse pen was such a small, confined area that there was an unreasonable risk that a horse, spooked by an intruder and unable to avoid contact, would react by trampling the intruder. Plaintiffs are clearly entitled to make this kind of showing.
The majority holds that “summary judgment should have been granted on all three counts of plaintiffs’ complaint.” That statement might ultimately prove correct, but plaintiffs are entitled to have summary judgment granted on a motion for that relief and not a motion to dismiss. Meanwhile, this Court should face and decide the question of law presented by the trial court.
I dissent.