dissenting.
I respectfully dissent.
Strikes by public employees are clearly illegal in Tennessee. City of Alcoa v. IBEW, 203 Tenn. 12, 308 S.W.2d 476 (1957). It is also true that present case law in Tennessee declares that contracts between municipalities and public employee unions are illegal and unenforceable. Weakley County v. Vick, supra.
Our sister states, had in the past, almost uniformly adhered to those two judge-made principles, but in recent years most state legislatures have enacted public employee labor relations acts legalizing labor contracts, but not strikes. The tremendous increase in the number of public employees and the corresponding increase in public employee unions has inevitably led to many illegal strikes by public employees and to many illegal collective bargaining agreements or so-called memorandum of understanding. A strike that terminates fire, police, or other public services vital to the health, safety, and economy of the community always threatens catastrophic consequences, and unfortunately those consequences often materialize. In recognition of such potentialities, forty-one states have enacted legislation dealing to some extent with collective bargaining rights of public employees and the sanctions that may be *273imposed by public officials when public employees strike and endanger the health, safety, or welfare of the public.1
The overwhelming majority of those statutes continue to prohibit strikes by public employees, although sometimes limited to essential services, which inevitably include fire and police.
As might be expected considerable litigation has been spawned by public employee strikes. The most significant cases that my research has disclosed are Burns, Jackson, Miller, Summitt & Spitzer v. Lindner, 108 Misc.2d 458, 437 N.Y.S.2d 895 (1981); Burke and Thomas, Inc. v. International Organization of Masters, Mates and Pilots, 92 Wash.2d 762, 600 P.2d 1282 (1979); Lamphere Schools v. Lamphere Federation of Teachers, 400 Mich. 104, 252 N.W.2d 818 (1977); Caso v. AFSCME, 43 App.Div.2d 159, 350 N.Y.S.2d 173 (1973); Jamur Production Corporation v. Quill, 51 Misc.2d 501, 273 N.Y.S.2d 348 (1966).
None of these cases involved danger to the lives and property of the public with the possible exception of Caso.
In Jamur, a cause of action was denied business corporations that sustained economic damage as a result of a transit strike.
In Burke and Thomas, Inc., a ferry pilots’ strike prevented the flow of Labor Day traffic from the mainland to resort areas, to the loss of resort business operators. The Court clearly indicated a willingness to hold public employee unions liable for the tort of public nuisance but declined to do so in that case, adopting as one of its reasons the judicial restraint doctrine of Lamphere.
Our Court of Appeals has created a new cause of action to fill a part of the vacuum left by legislative inaction in the field of public employment labor relations. The proposition that a public employee strike such as occurred here constitutes a public nuisance appears to be gaining some judicial acceptance in our sister states.
The complaint in this case alleges that the illegal strike left the City without adequate fire protection “endangering the lives and property of plaintiff and other citizens of Memphis.”
In considering a T.R.C.P. 12.02(6) motion to dismiss, the Court should construe the complaint liberally in favor of the plaintiff taking all of the allegations of fact therein as true. Huckeby v. Spangler, 521 S.W.2d 568, 571 (Tenn.1975).
I see a marked distinction between an illegal strike by transit workers, ferry pilots, etc. that merely causes great inconvenience to the public at large and significant loss of profit to the business community as was the case in Jamur, Burke and Thomas, Inc., and Burns, Jackson or school teachers as in Lamphere and a strike by firemen that endangers the lives and property of the citizens of a crowded metropolitan city. The majority concedes that the creation of a condition that is offensive or unreasonably dangerous, constitutes a nuisance, as in City of Nashville v. Mason, 137 Tenn. 169, 192 S.W. 915 (1917). The essence of that decision was that the negligent and reckless acts of municipal employees in piling upon a burning heap great quantities of highly combustible matter, left to burn at will during a high wind, that caused the destruction by fire of Mason’s house, stated a cause of action in nuisance. The rationale of that decision was that the performance of the public duty to promote public health by picking up and disposing of garbage is a governmental duty as distinguished from a proprietary function of government and a municipality is not liable for the negligence of its servants in so doing, subject to the exception that in performing that duty it must not commit a nuisance. See Kolb v. Knoxville, 111 Tenn. 311, 76 S.W. 823 (1903) and Knoxville v. Klasing, 111 Tenn. 134, 76 S.W. 814 (1903).
The rationale behind the judge-made rule in Tennessee against public sector strikes is that employees who have assumed a duty to *274serve the public in performing a governmental function, must as a matter of public policy, be prohibited from taking concerted action that will result in a paralysis of that governmental function.
We do not know the extent of the proof that the plaintiffs might adduce in support of the allegation that the illegal strike left the city without fire protection that endangered the lives and property of the plaintiff and other citizens of Memphis. It appears to me that the plaintiff could likely present evidence that would justify the conclusion that an unreasonably dangerous condition was created. If so, I seriously question the vitality of the distinction the majority makes between “direct action” such as blocking the streets and “indirect action,” the legal label they place on an illegal strike. If the inevitable result of an illegal strike is to create an unreasonably dangerous condition endangering the lives and property of the citizenry, I find it totally immaterial whether the proximate cause thereof was a direct or an indirect act.
I prefer judicial neutrality and restraint in the area of public employee labor relations because it is clear that the ultimate public policy goal of labor, peace and tranquility in the public sector can best be achieved by a legislative act that balances the rights and responsibilities of public employees, the duties and powers of governmental entities and the sanctions that may be imposed by them, and the rights of private citizens who may be innocent victims of labor strikes, even under the best of public employment regulatory acts.
However, if as a result of a public employee’s strike the lives and property of the citizenry are exposed to unreasonably dangerous conditions, the public interest demands that there be a remedy, a deterrence or a sanction, legislative or judicial and at the present time no such remedy exists in Tennessee.
I am not willing, today, to commit myself to the adoption of a new doctrine that would create a cause of action by individuals injured as a result of an illegal strike by public employees, solely on the strength of the meager allegations in the complaint before us. On the other hand, I am not willing to concur, on a Rule 9 appeal, in the dismissal of this lawsuit without a trial on the merits of whether an unreasonably dangerous condition was created by the Memphis firemen’s strike and whether an acceptable doctrinal basis exists to justify recognition of a cause of action for a public nuisance in such circumstances.
I would therefore deny this discretionary appeal and remand this ease for a trial in the Circuit Court of Shelby County.
. See Note, Private Damage Actions Against Public Sector Unions for Illegal Strikes, 91 Harv.L.Rev. 1309 (1978), for a listing of states that had enacted collective bargaining statutes as of April, 1978. See also Annot. 84 A.L.R.3d 366 (1978).