dissenting.
Respectfully, I dissent.
This is not a farm animal case, but an urban cowboy case. I agree with the Majority that ordinarily it is not an attractive nuisance to maintain on your property livestock, including horses and other domestic farm animals. But this case is different, and it is as important for the law to discriminate between differences as it is to apply neutral principles equally where no differences exist. This was recognized in the Court of Appeals’ Opinion, which stated:
“[W]hen a herd of horses is introduced into an area heavily populated with children by the very company which developed the adjacent subdivision where they live, a different situation is presented.”
Ordinarily keeping animals on your property is a natural condition which is not included within the parameters of the attractive nuisance doctrine. But no rule should be applied blindly regardless of circumstance. It may be that upon trial of this case, the claimant will be unable to prove the facts as stated in the Court of Appeals’ Opinion. Nevertheless, in the absence of facts or circumstances establishing that “as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant,” a summary judgment is inappropriate. Steelvest, Inc. v. Scansteel Service Ctr., Ky., 807 S.W.2d 476, 483 (1991). “[S]uch a judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances.” Id. at 480.
The holding of the Court of Appeals, which we should affirm, states:
“The maintenance of a herd of horses in the midst of two residential subdivisions may or may not involve an unreasonable risk of death or serious bodily injury to trespassing children. We believe that this is a matter to be determined by the special facts in each case and that the determination should be made by a jury.”
This case is no different from Perry v. Williamson, Ky., 824 S.W.2d 869 (1992), in *263that both involve a natural condition, the maintenance of which would not constitute negligence towards a person coming on to the property but for special circumstances justifying a different conclusion. If a herd of horses was brought to this residential area with the permission of the movant, this could qualify as an attractive nuisance. This was no longer a farm where the horses were indigenous to the area, nor were these horses there before the build-up of the surrounding suburban area. As stated in the Restatement (Second) of Torts, § 363, Comment B:
“ ‘Natural condition of the land’ is used to indicate that the condition of the land has not been changed by any act of a human being....”
We have adopted a per se rule in circumstances where such a rule is inappropriate.
COMBS, J., joins this dissent.