¶ 31. (concurring). I concur in the mandate affirming the circuit court's order granting the defendants' motion for summary judgment and dismissing them from the action. I agree that as a matter of law the defendants are not liable for a negligent failure to abate a private nuisance.
¶ 32. The majority opinion relies on several rationales in concluding that the defendants are not liable, without clearly explaining the relationship between the rationales, without identifying any single rationale as sufficient, and without stating whether all are necessary to conclude that the defendants are not liable.
¶ 33. The majority opinion appears to argue (1) that this is a case of an omission, not an affirmative act, and that in failing to abate the private nuisance (the omission) the defendants are not liable because they had no duty to abate the private nuisance (majority op., ¶¶ 10-22, 24 — 26); (2) that because the defendants did not create the private nuisance, they are not liable for failing to abate the nuisance (majority op., ¶¶ 22, 26); (3) that the defendants did not unreasonably interfere with the flow of surface water and therefore are not liable under the "reasonable use" doctrine adopted in State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974) (majority op.,passim); and (4) that it is unreasonable to require the defendants to abate the private nuisance in view of the extensive work and costs involved in abating this nuisance (majority op., ¶ 23).
*700¶ 34. I conclude that the defendants are not liable because the private nuisance is not abatable, meaning that abatement cannot be accomplished without unreasonable hardship or expense. Restatement (Second) of Torts, § 829 cmts e & f.
¶ 35. First I shall set forth what I think is the law applicable to the present case and then I shall point out the errors of the majority opinion's way.
I
¶ 36. The proper approach to this case is to recognize that three discrete areas of tort law converge in the instant case: private nuisance law,1 negligence law,2 and the tort liability of a possessor of property.3 When these three areas of law converge, as they do in the instant case, special rules of law apply.
*701¶ 37. A private nuisance is "a condition or activity which unduly interferes with the use of land."4 This case involves a private nuisance, in contrast with a public nuisance.
¶ 38. Private nuisances can be intentional or negligent.5 Thus in the instant case principles of negligence play a role in private nuisance law.
¶ 39. Furthermore, private nuisance law and negligence law are intertwined with special rules that have developed over the years relating to the tort liability of possessors of land. Like nuisance and negligence law, the law relating to the liability of land possessors has been treated as a discrete field of tort law.
¶ 40. These three discrete areas of the law have been synthesized in the Restatement (Second) of Torts in §§ 822-840A. This court has expressly adopted § 822 *702(stating the general rule subjecting a person to liability for a private nuisance)6 and has referred to and followed other sections, including § 824 (describing the conduct essential to liability for a private or public nuisance)7 and § 839 (stating the rule governing liability for a possessor of land who fails to abate an artificial condition),8 in deciding nuisance cases. I would use our prior cases that rely on the Restatement to decide the present case.
¶ 41. The inquiry under the Restatement (and our prior case law) begins with Restatement (Second) § 822.9
¶ 42. Section 822 is the Restatement's general rule governing liability for a private nuisance.10 Section 822 provides in full as follows:
*703One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either
(a) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.
¶ 43. An action for the negligent failure to abate a private nuisance falls within § 822(b) rather than § 822(a). Under § 822(b), a person is subject to liability for the negligent failure to abate a private nuisance if three elements are met: (1) there is "an invasion of another's interest in the private use and enjoyment of land,"11 (2) the person's conduct is "a legal cause of [the] invasion," and (3) the invasion is "otherwise actionable under the rules governing liability for negligent conduct."12
¶ 44. The first two elements are not at issue in the present case; the third element relating to liability for *704negligent conduct is at issue. I therefore focus my attention on the third element pertaining to whether a defendant's conduct is actionable under the rules governing liability for negligent conduct.
¶ 45. The comments to § 822 state that a court should look to Restatement (Second) § 824 for the standard used to determine "the type of conduct necessary to liability under the rule stated in [§ 822]." See also CEW Mgmt. Corp. v. First Fed. Sav. & Loan Ass'n, 88 Wis. 2d 631, 635, 277 N.W.2d 766 (1979) (stating that § 824 "is controlling in the determination of conduct that comes within the purview of sec. 822").
¶ 46. Section 824 (titled "Type of Conduct Essential to Liability") provides in full as follows:
The conduct necessary to make the actor liable for either a public or a private nuisance may consist of
(a) an act; or
(b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the public interest or the invasion of the private interest.
¶ 47. The instant case may be viewed as a failure to act under § 824(h). If so, I must determine whether under the circumstances of the case the defendants were under a duty to take positive action to abate the invasion of the private interest.
¶ 48. Sections 838-840 of the Restatement (Second) set forth "the circumstances under which the law imposes a duty on a person to take positive action for *705the protection of another and subjects him to liability if he fails to meet the standard of action required in the particular case."13
¶ 49. I therefore focus on §§ 838-40 to determine whether any of these provisions impose upon the defendants in the present case a duty to take positive action to abate the private nuisance.
¶ 50. Restatement (Second) of Torts § 839, entitled "Possessor Who Fails to Abate Artificial Condition" is relevant to the instant case. The plaintiffs allege that the defendants are liable for their failure to abate a nuisance resulting in part from an artificial condition on the defendants' land. This court has relied upon § 839 in Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, ¶¶ 73 & n.23, 76 n.24, 79, 85, 277 Wis. 2d 635, 691 N.W.2d 658.
¶ 51. Section 839 of the Restatement imposes a duty on a possessor of land14 to take reasonable steps to abate an artificial condition on land causing a nuisance. The scope of the duty depends on the circumstances. A possessor of land has a duty to abate an abatable artificial condition when: (a) the land possessor knows or should know of the condition and the nuisance or unreasonable risk of nuisance involved, (b) the land possessor knows or should know that it exists without the consent of those affected by it, and (c) the land possessor has had a reasonable opportunity to take reasonable steps to abate the condition or to protect the *706affected persons against it. If a land possessor fails to take reasonable steps under the circumstances stated in § 839, the land possessor's conduct is actionable.
¶ 52. Restatement (Second) of Torts § 839 provides in full as follows:
A possessor of land is subject to liability for a nuisance caused while he is in possession by an abatable artificial condition on the land, if the nuisance is otherwise actionable, and
(a) the possessor knows or should know of the condition and the nuisance or unreasonable risk of nuisance involved, and
(b) he knows or should know that it exists without the consent of those affected by it, and
(c) he has failed after a reasonable opportunity to take reasonable steps to abate the condition or to protect the affected persons against it. (Emphasis added.)
¶ 53. I will discuss only those aspects of § 839 that are at issue and apply specifically to the present case.
¶ 54. First, if the particular artificial physical condition is not abatable, a possessor of land who did not create the artificial condition is not liable. Restatement (Second) § 839 cmt. e. An abatable condition is "one that reasonable persons would regard as being susceptible of abatement by reasonable means." Restatement (Second) § 839 cmt. f. An artificial condition is not abatable unless abatement can be accomplished without unreasonable hardship or expense. Id. This provision was cited with approval in Milwaukee Metropolitan Sewerage District, 277 Wis. 2d 635, ¶ 73 n.23.
¶ 55. Second, a possessor of land may be liable under Restatement § 839 for failing to abate a private nuisance resulting frQm an abatable artificial condition *707on the possessor's land even though the possessor played no role in creating the artificial condition or the nuisance. The comments to § 839 explain that "a vendee or lessee of land upon which a harmful physical condition exists may be liable under [§ 839] for failing to abate it after he takes possession, even though it was created by his vendor, lessor or other person and even though he had no part in its creation." Restatement (Second) § 839 cmt. d. Liability under § 839 for the failure to abate an artificial condition on land causing nuisance to another "is not based upon responsibility for the creation of the harmful condition." Restatement (Second) § 839 cmt. d.
¶ 56. Third, Restatement § 839 imposes a duty of due care on a possessor of land. The scope of the duty (that is, the standard of care) is "to do what is practicable and reasonable under the circumstances" to abate a private nuisance resulting from an artificial condition on the possessor's land. Restatement § 839 cmt. e. A land possessor's liability under Restatement (Second) § 839 is based "upon the fact that [a possessor of land] has exclusive control over the land and the things done upon it and should have the responsibility of taking reasonable measures to remedy conditions on it that are a source of harm to others." Restatement (Second) § 839 cmt. d.
¶ 57. This case might be decided on a number of factors under § 839, but it is clear under the record in the instant case that the artificial condition at issue here is not abatable and that the defendants have not violated their duty to do what is practicable and reasonable under the circumstances. Even viewed most favorably to the plaintiffs, the record does not support the conclusion that the defendants could have abated the nuisance to the plaintiffs by using reasonable *708means.15 As a matter of law, the defendants therefore did not breach their duty as possessors of land to do what is practicable and reasonable under the circumstances to abate a private nuisance resulting from an artificial condition on the land that they possess.
¶ 58. For these reasons, I agree with the majority opinion that the defendants are not liable for the private nuisance in the present case.
II
¶ 59. Here's why the majority opinion has lost its way:
¶ 60. First, the majority opinion relies too heavily on classifying the defendants' conduct as an omission to act and applying what it considers applicable rules of negligence law in determining that the defendants are not liable.16
*709¶ 61. As I have written previously, the distinction between omission and commission is a nebulous one.17 This case proves the point. The defendants' conduct is an omission if characterized as a failure to abate a private nuisance and is an affirmative act if characterized as maintaining a private nuisance. Indeed, our nuisance cases appear to move freely between characterizing a defendant's conduct as a failure to abate a nuisance (an omission) and the maintenance of a nuisance (a commission).18
*710¶ 62. Restatement § 824(b) uses language consistent with the commission/omission distinction, but the distinction between commission and omission is not outcome-determinative in the present case because the possessor of land has a duty relating to the maintenance of (or failure to abate) artificial conditions on the land. Restatement § 839 imposes a duty upon a possessor of land to conform his or her conduct to a standard of care by doing what is reasonable and practicable under the circumstances to abate a nuisance resulting from an artificial condition on the possessor's land.
¶ 63. In sum, the majority opinion errs in ignoring the special tort rules applicable to a case involving private nuisance, negligence, and possessors of land.
¶ 64. Second, the majority opinion erroneously concludes that a possessor of land who did not create an artificial condition on the land causing a nuisance cannot be liable for merely failing to abate the condition. The Restatement and our case law declare that a possessor may be liable even if the possessor did not create the artificial condition.19
*711¶ 65. Third, the majority opinion erroneously concludes that the defendants' liability is precluded by the "reasonable use" doctrine relating to interference with the flow of surface waters.
¶ 66. Interference with the flow of surface water is treated in the Restatement as a nuisance. Under Restatement § 833 (titled "Interference with the Flow of Surface Waters"), "[a]n invasion of one's interest in the use and enjoyment of land [i.e., a private nuisance] resulting from another's interference with the flow of surface water may constitute a nuisance under the rules stated in §§ 821A-831," setting forth the Restatement's general provisions relating to nuisance. Put another way, § 833 provides that when an interference with the flow of surface waters results in a private *712nuisance, "the same general rules apply in determining liability for the invasion of the neighbor's interest in the use and enjoyment of his land as apply when an invasion results through vibrations, noise, smoke or the pollution of waters."20
*713¶ 67. The Restatement adopts the reasonable use doctrine for intentional nuisances. This court adopted the reasonable use doctrine in State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974) 21 Deetz recognized that the "reasonable use" doctrine is codified in Restatement (Second) of Torts § 833 and adopted the reasonable use doctrine as codified in § 833 22
¶ 68. Under the reasonable use doctrine, "each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable."23
*714¶ 69. The "reasonable use" doctrine codified in Restatement § 833 and adopted in Deetz governs intentional invasions of the neighbor's interests, not negligent invasions such as in the present case. Deetz concerned an intentional invasion of another's interest in the use and enjoyment of land. See Deetz, 66 Wis. 2d at 19. Accordingly, the court in Deetz relied upon provisions in the Restatement (Second) falling within §§ 826-831, governing intentional nuisances. See Deetz 66 Wis. 2d at 19-20.
¶ 70. In other words, when a private nuisance results from an intentional interference with the flow of surface water, "liability depends upon whether the invasion is unreasonable" under Restatement of Torts (Second) §§ 826-831 (relating to the reasonableness of an intentional invasion of another's interest in the use or enjoyment of land).24
¶ 71. In contrast, when a private nuisance results from a negligent interference with the flow of surface water, Restatement § 833 requires the same inquiry as Restatement (Second) § 822(b), setting forth the general rule of liability for a private nuisance based on negligent conduct.25 I applied § 822(b)'s general rule in *715Part I of the concurrence, as well as the more specific rules (§ 824 and § 839) to which § 822(b) directs the inquiry under the circumstances of the present case. Although liability for the negligent maintenance of a nuisance depends upon whether the defendant's conduct is unreasonable, the test is not whether the defendant has interfered with the flow of surface waters through an unreasonable use of land.
¶ 72. For the reasons set forth I conclude that the majority's legal analysis of the instant case is faulty. I write separately to set forth what I conclude is the correct legal analysis.
¶ 73. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.Nuisance long has been treated as its own subject within tort law. See Restatement (Second) of Torts § 821D ("Trespass and private nuisance are alike in that each is a field of tort liability rather than a single type of tortious conduct.").
The Restatement (Second) of Torts, as well as leading treatises, address nuisance as a separate topic in the law. See Restatement (Second) of Torts, ch. 40 (§§ 821A-840E); 2 Dan B. Dobbs, The Law of Torts (2001), ch. 34, at 1319-42; W Page Keeton et al., Prosser and Keeton on Torts (5th ed. 1984) ch. 15, at 616-54.
This court has remarked that although liability for a nuisance may be predicated on negligent conduct, "negligence and nuisance are distinct torts." Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2002 WI 80, ¶ 27 n.22, 254 Wis. 2d 77, 646 N.W.2d 777.
See Chapter 9, Restatement of the Law (Third) Torts: Liability for Physical and Emotional Harm (Tentative Draft No. 6, March 2, 2009), at xx (stating that "historically, land possessors' duties have been treated as a discrete subject" in the law of tort).
*701The Restatement (Second) of Torts includes a separate chapter relating to liability based on the condition or use of land, Restatement (Second) of Torts, ch. 13 (§§ 328E-387). The tentative draft of .the Restatement (Third) of Torts similarly uses a separate chapter to "address[] the special case of the duty owed by land possessors." Restatement of the Law (Third) Torts: Liability for Physical and Emotional Harm, at 1 (Tentative Draft No. 6, 2009). Leading treatises follow suit. See 1 Dan B. Dobbs, The Law of Torts 587-630 (2001) (relating to liability for owners and occupiers of law); W Page Keeton et al., Prosser and Keeton on Torts 386-450 (5th ed. 1984) (same).
Milwaukee Metro. Sewerage Disk v. City of Milwaukee, 2005 WI 8, ¶ 24, 277 Wis. 2d 635, 691 N.W.2d 658 (quotation marks and citation omitted).
See also Milwaukee Metro. Sewerage Disk, 277 Wis. 2d 635, ¶ 27 ("[A] private nuisance is broadly defined to include any disturbance of the enjoyment of property." (quotation marks and citation omitted)).
Milwaukee Metro. Sewerage Disk, 277 Wis. 2d 635, ¶ 33 ("Liability for a nuisance may be based upon either intentional or negligent conduct." (citations omitted)).
State v. Deetz, 66 Wis. 2d 1, 16, 224 N.W.2d 407 (1974). See also Milwaukee Metro. Sewerage Disk, 2005 WI 8, ¶ 25 n.4, 277 Wis. 2d 635, 691 N.W.2d 658 ("Wisconsin has adopted the Restatement (Second) of Torts § 822 (citations omitted)); CEW Mgmt. Corp. v. First Fed. Sav. & Loan Ass'n, 88 Wis. 2d 631, 634-45, 277 N.W.2d 766 (1979) (stating that the court specifically adopted § 822 in Deetz).
Milwaukee Metro. Sewerage Dist., 277 Wis. 2d 635, ¶¶ 35, 48 (following § 824); CEW Mgmt. Corp. v. First Fed. Sav. & Loan Ass'n, 88 Wis. 2d 631, 635, 277 N.W.2d 766 (1979) (same).
See Milwaukee Metro. Sewerage Dist., 277 Wis. 2d 635, ¶¶ 73 & n.23, 76 n.24, 79, 85 (following, without explicitly adopting, § 839 in determining whether the City of Milwaukee could be liable for a private nuisance due to its failure to regularly dig up and inspect buried water mains).
See Milwaukee Metro. Sewerage, 277 Wis. 2d 635, ¶ 32 (relying on § 822 as a statement of the elements necessary for liability in a private nuisance case).
Section 822 is titled "General Rule" and is the first section appearing in a Topic titled "Private Nuisance: Elements of Liability."
This first element simply requires that a private nuisance exist. Restatement (Second) § 821D states that "[a] private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land."
See Milwaukee Metro. Sewerage Dist., 2005 WI 8, ¶ 63, 277 Wis. 2d 635, 691 N.W.2d 658:
Having determined that the only actionable claim in this case is one for negligently failing to abate a nuisance, we lastly examine whether the circuit court properly granted summary judgment in this case. As we previously discussed, in order to prevail on a claim of nuisance based on negligence, the plaintiff must prove the following elements: 1) The existence of a private nuisance — the interference with another's interest in the private use and enjoyment of land; 2) The defendant's conduct is the legal cause of the *704private nuisance; and 3) The defendant's conduct is otherwise actionable under the rules governing liability for negligent conduct, including notice.
Restatement (Second) § 824 cmt. e. See also Scope Note to Restatement (Second) of Torts ch. 40, Topic 4 (stating that ch. 40, Topic 4, Title B, which encompasses §§ 838-840A, "deals with liability for failure to act").
The term "possessor of land" is defined in Restatement (Second) § 328E.
See majority op., ¶ 23.
Although the majority opinion distinguishes omission and commission in ordinary negligence law and applies the distinction to the present case to require a duty, the jury instruction for negligence makes no distinction between acting and failing to act. Wis JI — Civil 1005 (titled "Negligence: Defined") states that "[a] person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property."
In contrast, Wis JI — Civil 1920 (titled "Private Nuisance: Negligent Conduct") follows the language of Restatement (Second) of Torts § 824 (referring to a duty to take positive action) in private nuisance actions premised on negligent conduct. Wis JI — Civil 1920 states that "[a] person is not using ordinary care and is negligent, if the person, without intending to do harm, acts (or fails to act under circumstances in which (he) (she) is *709under a duty to take a positive action) that a reasonable person would recognize as creating an unreasonable risk of (invading) (interfering) with another's use or enjoyment of property" (emphasis added).
For further discussion of the concept of duty in negligence law, see Behrendt v. Gulf Underwriters Insurance Co., 2009 WI 71, ¶ 52 n.5, _ Wis. 2d _, 768 N.W.2d 568 (Abrahamson, C.J., concurring).
For further discussion of the concepts of omission and commission in negligence law, see Behrendt v. Gulf Underwriters Insurance Co., 2009 WI 71, ¶¶ 54-55, _Wis. 2d _, 768 N.W.2d 568 (Abrahamson, C.J., concurring).
See, e.g., Milwaukee Metro. Sewerage Dist., 277 Wis. 2d 635, ¶¶ 32-33, 35, 40, 42, 45, 48, 61, 73, 76, 80 (referring to the maintenance of a nuisance interchangeably with the failure to abate a nuisance); Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2002 WI 80, ¶ 24 n.19, 254 Wis. 2d 77, 646 N.W.2d 777 (stating that in an action for "maintenance of a public nuisance," liability is based "on the defendant's failure to abate a public nuisance of which the defendant had actual or constructive notice"); Brown v. Milwaukee Terminal Ry. Co., 199 Wis. 575, 227 N.W. 385 (1929), on reargument, 199 Wis. 588, 589, 227 N.W. 385 (1929) ("One who maintains a nuisance created by another is liable for injuries sustained because of the danger incident thereto just as clearly as if he had himself created the danger in the first place. 'If the owner or the occupier of property continues a nuisance created thereon by others, he is *710liable, not because he owns or occupies the premises, but because he does not abate the nuisance.'" (quoting 20 Ruling Case Law at 392)).
See Restatement (Second) § 839 cmt. d (stating that under § 839 "a vendee or lessee of land upon which a harmful physical condition exists may be liable under [§ 839] for failing to abate it after he takes possession, even though it was created by his vendor, lessor or other person and even though he had no part in its creation."); Milwaukee Metro. Sewerage Dist., 277 Wis. 2d 635, ¶ 34 (stating that when "otherwise benign objects ... [change] over time and become harmful, through no fault of the owner of the object... liability is predicated upon the defendant's failure to remove the harmful condition after he *711has notice of its existence" (citing Brown, 199 Wis. at 589-90)); Physicians Plus Ins. Corp., 254 Wis. 2d 77, ¶ 24 (" 'One who maintains a nuisance created by another is liable for injuries' sustained because of the danger incident thereto just as clearly as if he had himself created the danger in the first place. If the owner or the occupier of property continues a nuisance created thereon by others, he is liable, not because he owns or occupies the premises, but because he does not abate the nuisance.'" (quoting Brown, 199 Wis. at 590) (internal quotation marks and citation omitted)).
In Brown, the court determined that the complaint stated a claim for maintenance of a nuisance when the complaint alleged that the defendant permitted a tree to remain in a dangerous condition with notice and knowledge of the condition. Brown, 199 Wis. at 590. In Physicians Plus, the court similarly concluded that the defendant landowners were liable for maintaining a nuisance "based solely on [the defendants'] failure to trim the branches of their tree, which they knew, or should have known to be obstructing the view of a stop sign — their failure to abate the public nuisance." Physicians Plus Ins. Corp., 254 Wis. 2d 77, ¶ 51.
Restatement (Second) of Torts § 833 cmt. b.
Prior to Deetz, the general rules for determining liability did not apply when a private nuisance resulted from the interference with the flow of surface water. Deetz abolished the "common enemy" doctrine, under which " '[s]urface water is recognized as a common enemy, which each proprietor may fight off or control as he will or is able, either by retention, diversion, repulsion, or altered transmission; so that no cause of action arises for such interference, even if some injury occurs, causing damage.'" State v. Deetz, 66 Wis. 2d 1, 10, 224 N.W.2d 407 (quoting Borchsenius v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 96 Wis. 448, 450, 71 N.W. 884 (1897)).
The Reporters' Note to Restatement (Second) of Torts § 833 .states that § 833 replaces the "rigid and antagonistic" rules (including the common enemy doctrine) that previously had governed when a private nuisance resulted from interference with the flow of surface waters.
One of the defendants' briefs to this court argues that general principles of liability for a nuisance do not apply when the nuisance involves surface water. See Defendants-Respondents' Charles C. O'Rourke, Joan R. O'Rourke, and American Family Mutual Insurance Company's Response Brief at 12-13 (arguing that "surface water is a topic given distinct treatment in the law" and that the plaintiffs err in "seek[ing] to apply general nuisance principles in lieu of long-established standards developed by Wisconsin courts to address excess surface water problems"). In its certification memorandum, the court of appeals also asked this court to determine whether special rules apply in nuisance cases involving surface water.
Comment b to Restatement (Second) of Torts § 833 answers the defendants' argument and the question posed by the court of appeals. Under the rule codified in § 833 and adopted in *713Deetz, a nuisance case involving the flow of surface waters is treated like any other nuisance case. See also Restatement (Second) of Torts § 839 cmt. k (stating that a vendee or lessee of land may be liable under § 839 for the failure to abate a nuisance occurring when "an embankment on the land diverts water that washes away the roadbed of a railroad" or when "a gutter on a building discharges water upon the public sidewalk which freezes in cold weather and makes the walk unsafe for passage").
Although the majority opinion is not clear, it also seems to conclude that nuisance cases involving the flow of surface waters should be decided under the rules governing liability in nuisance cases generally. See majority op., ¶ 5 n.5.
Deetz, 66 Wis. 2d at 18.
Deetz, 66 Wis. 2d at 16, 18 (identifying Restatement (Second) of Torts § 833 as "a codification" of the reasonable use rule; concluding that "the reasonable use doctrine as set forth in the Restatement of Torts better comports with the realities of modern society than does the common enemy doctrine and accords with the trend of decisions for the last thirty-five years").
Deetz, 66 Wis. 2d at 14 (quotation marks and citation omitted).
Restatement (Second) of Torts § 833 cmt. b. See also § 822(a) (stating that one may be subject to liability for a private nuisance if the invasion of another's interest in the private use and enjoyment of land is "intentional and unreasonable").
See Restatement (Second) of Torts § 833 cmt. b ("When the invasion is not intentional, the liability of the person harmfully interfering with the flow of surface waters depends upon whether his conduct has been negligent, reckless or abnormally dangerous, assuming that the other elements of liability stated in § 822 are present.").
Compare § 822(b) (stating that one is subject to liability for a private nuisance if "his conduct is a legal cause of an invasion *715of another's interest in the private use and enjoyment of land, and the invasion is . . . (b) unintentional and otherwise actionable under the rules controlling liability for negligent... conduct . . .").