with whom ROBINSON, J., joins, concurring in part and dissenting in part.
We concur with the majority’s conclusion that the Preservation Society of Newport did not owe a duty of care to the plaintiff in this case, and we join in the majority’s analysis relative thereto. We dissent, however, from Section III of the majority opinion, which holds that, in this case, the City of Newport will not be immune from suit pursuant to the Recreational Use Statute (RUS). While we certainly have genuine sympathy for the plaintiffs, we believe that the majority’s analysis in Section III cannot be squared with the language of the statute or with our settled jurisprudence.
As the majority explains, the RUS relegates a nonpaying user of private or public lands for recreational purposes to the status of that of trespasser, to whom a minimal duty of care is owed at common law. See generally Tantimonico v. Allendale Mutual Insurance Co., 637 A.2d 1056, 1057 (R.I.1994). A landowner’s immunity afforded by the RUS is specifically circumscribed by the provisions of G.L.1956 § 32-6-5, which state in relevant part:
“(a) Nothing in this chapter limits in any way any liability which, but for this chapter, otherwise exists:
“(1) For the willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity after discovering the user's peril * * (Emphasis added.)
In commenting on this statutory language, this Court has said that “[t]his rule is simply a legislative codification of the common law that is enunciated in our cases.” Cain v. Johnson, 755 A.2d 156, 164 (R.I.2000).
This Court in Cain explicated the common-law rule: “Under Rhode Island law it is well settled that a landowner owes a trespasser no duty except to refrain from willful or wanton conduct. * * * It is also well settled that such a duty arises only after a trespasser is discovered in a position of danger.” Cain, 755 A.2d at 160. The Court in Cain also discussed Zoubra *1055v. New York, New Haven and Hartford Railroad Co., 89 R.I. 41, 150 A.2d 643 (1959), which involved a plaintiff who was injured at a railroad crossing. In Cain, this Court explained, citing Zoubra, 89 R.I. at 45, 150 A.2d at 645, that “the law does not impose upon a landowner any duty toward a trespasser unless it has first discovered him or her in a position of peril, even though there was an allegation that the defendant knew or should have known of the presence of people on the crossing.” Cain, 755 A.2d at 161. The Cain majority additionally noted that this Court has not accepted the “beaten path exception,” available under the common law of some jurisdictions, pursuant to which a landowner is liable to a trespasser injured while using a limited area containing an unreasonable risk of harm. Id. “This theory * * * turns on a landowner’s knowledge of the use of his [or her] land by trespassers” and does not require that the landowner observe the particular trespasser on his or her property. Id. Rather, “this Court has steadfastly held that a landowner owes a trespasser no duty until he or she is actually discovered in a position of peril.” Id.
In subsequent cases, the Court repeatedly has held that the “willful or malicious” exception to statutory immunity under the RUS applies only after the landowner discovers a particular user in a position of peril. See Smiler v. Napolitano, 911 A.2d 1035, 1041 (R.I.2006) (recognizing that “the city’s duty would arise at the point when a city employee discovered that Irina was approaching an area where there was a known risk * * * ”); Lacey v. Reitsma, 899 A.2d 455, 458 (R.I.2006) (holding the state to be immune where there was “no evidence that [the] defendants discovered young R.J. in a position of peril and then failed to warn him against the potentially dangerous condition”).
We respectfully assert that the majority’s analysis is at odds with the unambiguous language of the statute and our settled jurisprudence. See Lacey, 899 A.2d at 458 (describing the language of the RUS as “unambiguous” and noting the “equally unambiguous nature of the relevant precedent”). In the instant case, a duty on the part of the city would have arisen only if an employee of the city had discovered Mr. Berman approaching an area where there was a known risk of danger and, thereafter, that employee willfully or maliciously failed to guard or warn him against the danger. See Smiler, 911 A.2d at 1041; see also Lacey, 899 A.2d at 458; Cain, 755 A.2d at 164. The plaintiffs allege no such wrongdoing by any agent of the city; and, in our judgment, general knowledge that recreational property has some dangerous element is not enough to give rise to a duty under the statute. See Smiler, 911 A.2d at 1038-39.
The gravity of Mr. Berman’s injuries cannot be understated. Further, it is undisputed that the city is aware of other catastrophic injuries that have occurred on the Cliff Walk, yet it has failed to take even the simple expedient of posting warning signs at all entrance points to what it actively promotes as a prime tourist attraction. This is likely because the RUS not only protects the city from liability but also acts as a disincentive for the city to implement any safety measures whatsoever.
In 1996, the RUS was amended to specifically include the state and municipalities within the definition of a landowner to whom the statute applies. Since that time, we have on several occasions exhorted the General Assembly to revisit the provisions of the RUS, “especially where public parks and similar public recreational areas are concerned.” Lacey, 899 A.2d at 458; see *1056also Smiler, 911 A.2d at 1042. In Lacey, 899 A.2d at 458, we stated “respectfully, but forcefully * * * that we find it troubling (to say the least) to be confronted with a legal regime” in which no duty of care exists for users of state and municipal recreational sites.
If ever there was a case to which one could apply the ancient maxim “Dura lex sed lex” (“The law is hard but it is the law”), it surely would be this case. Nevertheless, as this Court unanimously stated in the recent case of DeSantis v. Prelle, 891 A.2d 873, 881 (R.I.2006), “[ijt is not for this Court to assume a legislative function when the General Assembly chooses to remain silent.” The venerable concepts of tripartite government dictate that “[t]he remedy for a harsh law is not in interpretation, but in amendment or repeal.” State v. Duggan, 15 R.I. 403, 409, 6 A. 787, 788 (1886).17
We must decline “to substitute our will for that of a body democratically elected by the citizens of this state * * DeSantis, 891 A.2d at 881. Although we are sympathetic with the majority’s desire to deny the protections of the RUS to the city in this case, we feel compelled to dissent from the majority’s departure both from what we consider to be clear statutory language and clear precedent. At the same time, we once again urge the General Assembly to address the scope of the statute.
. “This Court * * * is not ‘entitled to write into the statute certain provisions of policy which the [L]egislature might have provided but has seen fit to omit ****** if a change in that respect is desirable, it is for the [L]egislature and not for the [C]ourt.‘ " Simeone v. Charron, 762 A.2d 442, 448 (R.I.2000) (quoting Elder v. Elder, 84 R.I. 13, 22, 120 A.2d 815, 820 (1956)).