dissenting.
I respectfully dissent, as I believe the issues the majority has decided must be presented to a jury.
1. An action for negligence is properly set forth in this case. Although the majority states Queen’s complaint asserts exclusively acts of nonfeasance, Queen’s complaint asserts that the City’s decision to hold the parade in the vicinity of the railroad tracks, with its attendant dangers, was a positive act of misfeasance. In this case, the City has chosen to act, and has acted; its actions are not simply nonfeasance, taking the matter out of the ambit of OCGA § 36-33-2. City of Columbus v. Myszka, 246 Ga. 571, 571-572 (1) (272 SE2d 302) (1980).
In planning the parade, the City owed the parade spectators a duty “not to subject them to an unreasonable risk of harm.” Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982). Although *775the majority recognizes this concept, it finds that the duty was not breached. However, evidence was presented that congestion of parade spectators adjacent to the railroad tracks was a problem during previous parades and that the City was aware of this. It is for a jury to determine whether again planning the parade route as in the past despite knowledge of the crowd congestion and its foreseeable consequences, was a breach of the City’s duty.
The majority also finds that the Queen girls were not injured by any parade participant, were not on City property, and were not injured by any instrumentality over which the City exercised control. Although the majority concedes that injuries such as those that befell the Queen girls may be foreseeable when a municipality plans an event such as a parade, it holds that despite that forseeability, a municipality will not be liable for such an injury because, as a matter of law, the municipality’s act will be deemed not to be the cause of the injury. However, whether any City action was the proximate cause of the Queen girls’ injuries is properly decided by a trier of fact, not by an appellate court. Atlanta Ob. & Gyn. Group, P.A. v. Coleman, 260 Ga. 569, 570 (398 SE2d 16) (1990). A jury should decide whether the City was responsible for the “situation of peril” in which the Queen girls found themselves. See Alexander v. Harnick, 142 Ga. App. 816, 817 (3) (237 SE2d 221) (1977).
2. The majority also improperly finds that, as a matter of law, the City’s actions could not constitute a nuisance. It cites OCGA § 41-1-1’s definition that “[a] nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance,” but ignores the statute’s inclusion of a lawful act. The majority focuses on the statement in Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 425 (3c) (249 SE2d 224) (1978), that to be a nuisance an act must be done in an “illegal manner,” but equates “illegal” with “not authorized by law,” and the majority concludes that because the acts were in the City’s legal power they were not “illegal.” The statute specifically recognizes that a nuisance may be a lawful act, and it is irrelevant that the City is empowered to conduct a parade and empowered to site its streets adjacent to railroad tracks. The issue is not whether the municipality’s act is within the government’s authority, but whether it is “illegal” as that term is used in the context of nuisances. Mayor <fee. of Savannah uses the term only in the context of a lawful act; the act is “illegal,” though otherwise lawful, when done in violation of some right, here the right to attend the parade without being subjected to an unreasonable risk of harm. The law has long been that “[a]n action may be brought against a municipality for the creation or maintenance of a nuisance where the municipality is negligent in carrying out a lawful act which it was authorized to do.” See *776Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 838 (165 SE2d 141) (1968). The salient inquiry is whether the City “committed an act which created the dangerous condition.” Mayor &c. of Savannah, supra at 427 (4).
Decided March 8, 1999 — Reconsideration denied April 2,1999. Hawkins & Parnell, Charles R. Beans, for appellant. Johnny R. Pannell, Parker & Lundy, William L. Lundy, Jr., for appellees. Walter E. Sumner, Susan M. Pruett, amici curiae.The effect of the majority’s decision is that whenever a municipality is acting within its powers in conducting an event, that event cannot be a nuisance, regardless of how dangerous a condition the municipality may create. That is not the law of Georgia, and this Court should not declare it to be the law. Whether the City created a dangerous condition in this case is a question which should properly be presented to a jury.
Nor is summary judgment appropriate on the basis that the parade and its attendant congestion cannot be considered a nuisance because no one else had been injured by a train in the more than 30 years in which the parade had been held. It is not necessary that there be a prior injury for there to be a public nuisance; a public nuisance exists if the act complained of affects rights which are common to all those in a particular area. Moreland v. Cheney, 267 Ga. 469, 469-470 (479 SE2d 745) (1997). All those who attended the parade had the right not to be subjected to an unreasonable risk of harm, and the creation of such a risk to a body of spectators can be considered a public nuisance; it is sufficient if the circumstances surrounding an act pose a threat to those of the public who come into contact with it. Id.
Neither the lower court nor this Court should act as the jury in this case. Accordingly, the judgment of the Court of Appeals should be affirmed.