specially concurring.
We have previously held that “Our Constitution is framed on the premise that the state is immune from suit and that if immunity is lifted it shall be done so by the action of the legislature.”① As the majority opinion correctly points out, we have also held that “even when acting in a governmental capacity cities are not immune from liability for harm caused by the maintenance of either a public or private nuisance.” The majority characterizes the conduct of keeping a dog with knowledge of its dangerous propensities as a nuisance. The majority assumes that if it had been proven that the dog kept by defendant in this case had dangerous propensities of which defendant was aware, defendant could not raise the barrier of governmental immunity.
The difficulty with this analysis is that we are not told what characterizes a nuisance or why the city is not entitled to immunity when a nuisance exists. The idea that a municipality is liable for the creation of a nuisance is described by Prosser as an “anomaly.” He comments upon the anomaly as follows:
“* * * The origin of this seems to be found in the idea that the creation of a private nuisance amounted to a taking of land without compensation, or that the city, as a landowner, was necessarily a proprietor, and subject to the responsibilities of one toward other landowners. If this was the explanation, it was soon lost to sight when the principle was extended to public nuisances where neither consideration is involved. Since liability for nuisance rests in many cases upon nothing more than negligence, for which in theory the municipality is not liable, the result has been a rather hopeless *45attempt to distinguish between the two, which has added confusion to the law of both nuisance and municipal corporations. It seems reasonable to say that there is no sound argument behind the distinction itself, and that resort to the more or less undefined concept of nuisance is merely one method by which the courts have retreated from municipal nonliability.” Prosser on Torts, § 125, pp. 1009-1010 (3d ed 1964).
The majority opinion contributes to this confusion by employing the nuisance concept to describe the conduct of one who keeps a dog knowing that it is vicious or that it has dangerous propensities.
When the nuisance label is removed we are better prepared to identify the problem which is presented in this case. The problem must be examined within the framework of the rules relating to the liability for keeping an animal whose dangerous propensities are known to the possessor. If, within the framework of these rules, the actor is not liable, it mil be unnecessary to decide whether the city would be entitled to immunity if the facts were such as to make the rules of strict liability applicable. The majority opinion proceeds upon this basis in holding that there was not sufficient evidence to establish one of the elements of the rule of strict liability, namely, the possessor’s knowledge of the animal’s dangerous propensities. But this is done upon the assumption that if the officer had knowledge of the dangerous propensities of the dog, the city would be liable under the theory of the law of “nuisance,” which, as I have demonstrated, is simply another way of describing the well-recognized tort of keeping animals known to be dangerous.② I
*46Even though an animal is dangerous, the utility in keeping him may be so great that strict liability is not imposed upon the possessor.③ This is the import of Restatement of Torts, §509, comment e (1933) in which it is explained that some animals such as bulls although having dangerous tendencies, “their usefulness in performing their function in the socially essential breeding of livestock, justifies the risk involved in their keeping.”④
The principle that the utility may outweigh the risk has been applied in a number of cases involving
*47the keeping of animals.⑤ I believe that the present case is brought within that principle. In my opinion the utility of a police dog in the important work of law enforcement with its benefit to the community outweighs the risk of harm. Therefore, I can find no justifiable reason for treating the conduct of defendant city in this case as giving rise to strict liability.⑥ Whether the city would be immune from liability if the utility of its conduct did not outweigh the risk, we are not now required to decide.
Therefore, I would affirm the judgment for reasons different than those stated in the majority opinion.
Vendrell v. School District No. 26C, 226 Or 263, 278, 360 P2d 282 (1961). *46for conduct creating an unusual danger to the community (e.g., the handling and use of high explosives, collecting or bringing upon the land dangerous substances, etc.), a holding in the present case that the city does not have immunity would necessarily extend to the other situations in which strict liability has been imposed.
Since the rule relating to the keeping of dangerous animals is but a part of the larger body of law imposing strict liability *46disagree with, the majority’s assumption that the city would be liable simply because it had knowledge of the animal’s dangerous propensities.
In this class of cases, as in all cases in which strict liability is asserted, it is necessary to look not only at the risk which the defendant’s conduct creates but also at the utility of that conduct, and the latter must be balanced against the former. The process of balancing is described in Prosser, Selected Topics on the Law of Torts (the Principle of Rylands v. Fletcher), p. 185 (1953), as follows:
“The unreasonableness of the risk is to be determined on much the same basis as in negligence cases, by balancing the probability and gravity of the harm threatened against the utility of the defendant’s conduct, both to the defendant himself and to the community. The decision is, however, not left to the jury, but is always made by the court.”
The comment adds that “while a certain amount of danger is inseparable from the keeping of these socially essential or useful animals, there is no social value in keeping animals which are vicious or have other dangerous propensities which are in excess of those necessary for their utility and as such are abnormal to their class.” Restatement of Torts, .§ 509, comment e, p. 21 (1933).
The rule of absolute liability was held inapplicable to a defendant which kept animals in a park “where the animals were maintained as a public enterprise under legislative authority for educational purposes and to entertain the public.” Guzzi v. New York Zoological Soc., 192 App Div 263, 266, 182 NYS 257, 259 (1920). In Connor v. Princess Theatre, 27 Ont Rep 466, 10 DLR 143, Ann Cas 1914A, 762, the rule of absolute liability was not applied where a trained monkey caused damage. The court balanced against the risk of harm the fact that trained animals “serve some purpose for the use of man.” The court quoted from 2 Cooley on Torts §411 (3d ed): “When wild animals are kept for some purpose recognized as not censurable, all we can demand of the keeper is that he shall take that superior precaution to prevent their doing mischief which their propensities in that direction justly demand of him.” 69 ALR 509 (>1930).
See Barr v. District of Columbia, 202 F Supp 260, 262 (D.C. Cir 1962) (dictum).