¶ 72. (concurring). The majority attempts to clarify the relationship between pubhc nuisance and neghgence. Its attempt, although thorough, ultimately proves unsuccessful. It fails because the majority refuses to acknowledge what is interspersed throughout its opinion: that allegations of pubhc nuisance based on neghgent conduct remain essentially an action for neghgence.
¶ 73. I do not understand why the majority goes to such trouble to insist that neghgence is unnecessary to this case. Instead of recognizing that the case is grounded in neghgence, the majority engages injudicial gymnastics trying to fit pubhc nuisance into something it labels "analogous to neghgence per se." Majority op. at ¶ 20. When all is said and done, the majority opinion ends up looking like a neghgence analysis anyway.
¶ 74. In describing the intersection of pubhc nuisance and neghgence, the majority opinion cites elements and rules that lead me to conclude that this *143public nuisance cause of action is essentially an action for negligence. Indeed, the majority opinion acknowledges each of the following:
¶ 75. First, liability for maintaining a public nuisance can be based on negligent conduct.
¶ 76. Second, the same principles of comparing and apportioning negligence apply also to a public nuisance.
¶ 77. Third, both notice and causation, which are generally hallmarks of negligence actions, are required in public nuisance actions.
¶ 78. Fourth, as in negligence cases where an action can be maintained for an omission, a public nuisance action is maintained for failure to abate (which is an omission).
¶ 79. Fifth, and again as in negligence cases, public policy considerations can limit liability for public nuisance cases.1
¶ 80. On top of all this, sprinkled throughout the majority opinion are numerous other statements suggesting that the public nuisance action in this case is ultimately an action for negligence: "nuisance can be grounded on negligent or intentional conduct," majority op. at ¶ 25 (citing Raisanen v. City of Milwaukee, 35 Wis. 2d 504, 514, 151 N.W.2d 129 (1967)); "[c]ontribu-tory negligence is a defense in an action for damages occasioned by a nuisance grounded upon negligence," *144majority op. at ¶ 31 (quoting Schiro v. Oriental Realty Co., 272 Wis. 537, 547, 76 N.W.2d 355 (1956)); "where negligence is the basis of the nuisance contributory negligence principles apply," majority op. at ¶ 31 (citing McFarlane v. City of Niagara Falls, 160 N.E. 391, 392 (N.Y. 1928)).
¶ 81. Also, the majority opinion discusses each of the defendant's liability in terms of its acts or omissions, further reinforcing my conclusion that this case is grounded in negligence. As to the Frankes, the majority determines, "their responsibility is based solely on their failure to trim the branches of their tree." Majority op. at ¶ 51. Likewise, the majority states that "Dodge County does not escape liability based on its failure to trim the offending branches." Majority op. at ¶ 62. Finally, the majority addresses "whether the Town of Leroy should be held liable for its failure to trim the branches," concluding that it should. Majority op. at ¶¶ 63, 66.
¶ 82. In addition to interspersing its opinion with what reads like a negligence analysis, the majority relies heavily upon Brown v. Milwaukee Terminal Ry. Co., 199 Wis. 575, 224 N.W. 748, on reargument, 199 Wis. 588, 227 N.W. 385 (1929). Brown, however, recognizes that nuisance cases like the one before us are essentially grounded in the failure to exercise ordinary care, that is, negligence.
¶ 83. The Brown court explained:
In such cases where danger results, not from the planting of the tree, but through subsequent changes for which the defendant is not responsible, it is essential to liability that it be shown either that the defendant knew of the danger incident to the maintenance of the tree or that such condition had existed for such length of time that, by the exercise of ordinary care, the *145defendant ought to have discovered the danger and to have removed it before injuries were sustained by the plaintiff.
199 Wis. at 590 (emphasis added). Thus, even Brown, which the majority terms the "seminal case that links public nuisance and negligence concepts," majority op. at ¶ 19, explains that negligence is "essential" to liability here.
¶ 84. The reason the majority opinion reads like a negligence analysis is also explained by leading authorities on tort law. For example, Dobbs recognizes three grounds for a public nuisance cause of action for damages and explains that nuisance is little more than a label that covers all three:
"[T]alk of public nuisance in personal injury cases can be confusing when the plaintiff claims damages rather than abatement. If the defendant should be liable for the injury, it is because he has intentionally caused personal injury, carried on an abnormally dangerous activity, violated a statute aimed at protecting the plaintiff, or was negligent. To label the case as one of nuisance adds nothing to the clarity of decision-making or policy. Plaintiffs usually assert a public nuisance causing personal injury for strategic reasons, for example, to avoid the effect of their own contributory fault. But as Cardozo said in the leading case, "whenever a nuisance has its origin in" negligence, one may not avert the consequence of his own contributory fault by affixing... the label of a nuisance."
Dan B. Dobbs, 2 Law of Torts § 467, p. 1337-38 (2001) (emphasis added) (footnotes omitted).
¶ 85. Similarly, the Restatement (Second) of Torts recognizes the same three grounds for nuisance and that allegations of nuisance based on negligent conduct remain essentially an action for negligence:
*146Many nuisances, both public and private, are not intended by the defendant and do not arise from any abnormally dangerous activity, but are the result of mere negligence in failing to take proper precautions to prevent the invasion of the right. When this is the case the contributory negligence of the plaintiff is available as a defense as fully and under the same rules and conditions as in the case of any other action founded upon negligence. This is true, for example, when the defendant allows his building to fall into disrepair through failure to make reasonable inspection of it and its condition becomes dangerous to travelers on the highway or to the owner of adjoining land. In such a case the defendant's conduct is not removed from the field of ordinary negligence because it results in nuisance. The action remains essentially one for negligence and the contributory negligence of the plaintiff is a defense.
Restatement (Second) of Torts § 840B cmt. d (1979) (emphasis added).
¶ 86. I am persuaded by these learned authorities, and I am also persuaded by the adage: "[w]hen I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck." City of New York v. Clinton, 985 F. Supp. 168, 179 (D.D.C. 1998), aff'd, Clinton v. City of New York, 524 U.S. 417 (1998). I call this case essentially one of negligence.
¶ 87. I agree with the majority that on summary judgment none of the defendant is precluded from liability. However, I disagree with the majority that the plaintiff should be granted partial summary judgment based on a public nuisance cause of action as the majority defines it.2
*147¶ 88. In addition, I disagree with the majority's conclusion that public nuisance is "analogous to negligence per se." Majority op. at ¶ 20. Based on the interspersed negligence analysis in the majority opinion, the Brown case, and the secondary authorities cited, I conclude that this case remains essentially an action for negligence. Because the majority does not, I respectfully concur.
¶ 89. I am authorized to state that SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE, joins this concurrence.Wisconsin Stat. ch. 823, entitled "Nuisances," contains various provisions pertaining to public nuisances, including a statute authorizing causes of action for public nuisance. Wis. *147Stat. § 823.01. Thus, I do not question the power of government entities or others to bring actions to abate a public nuisance. I do, however, question the majority's conception of public nuisance in this action for damages.