concurring in part and dissenting in part.
I agree with Justice Cooper’s analysis of Appellee Potts’s liability, and I thus concur in the majority opinion to the extent that it vacates the trial court’s summary judgment for Appellee Potts and remands that claim to the trial court. I dissent from the remainder of the majority opinion, however, because I would hold that the trial court properly granted summary judgment in favor of the other Appellees — City of Mount Sterling, Kentucky (“the City”) and Danny and Debra Morton (“the Mor-tons”) — and I vote to affirm the Court of Appeals’s holding, which affirms the summary judgments as to those parties. Because I agree fully with Justice Cooper’s analysis of the City’s liability, I write separately merely to explain my view that the trial court properly granted summary judgment for the Mortons.
*512By premising the Mortons’ liability upon the alleged inadequacy of the 42" stormwa-ter drainage pipe located under their property, the majority opinion implicitly suggests that the Mortons were required to accept whatever amount of stormwater that the upstream landowners directed onto the Mortons’ property. Kentucky, however, follows a modified version of the civil law rule1 governing adjoining landowners’ rights and duties with respect to surface water: “Although a lower owner is bound to accept natural drainage from an upper owner ... the upper owner may not unreasonably change the natural flow of water or cause it to collect and be cast upon the lower estate at a point where it had not previously flowed or in an increased volume or an accelerated rate of flow so as to cause substantial damage to the lower owner.”2 Accordingly, the Mor-tons had no duty to retrofit the drainage system to accommodate additional drainage if the pipe had become “inadequate” because subsequent improvements had unreasonably increased the volume or rate of stormwater discharge. In this case, the plaintiffs alleged in their complaint (and demonstrated through expert testimony) that “upstream” residential and commercial developments contributed to the flooding conditions by increasing the amount of stormwater runoff. And Kentucky precedent suggests that the Mortons would not be liable for the flooding if the drainage pipe under their property was sufficient to handle the flow when it was installed but subsequently became inadequate because of additional runoff created by other landowners’ subsequent developments.3
I also disagree with the majority opinion’s contention that the facts in this case create a jury question as to the Mortons’ liability under Restatement (Second) of Torts § 366. The discovery conducted in this case produced absolutely no evidence to demonstrate — or even to permit a reasonable inference — that the Mortons were aware that the inadequate size and/or condition of the 42" stormwater drainage pipe located under their property caused flooding at the headwall located on the other side of Richmond Avenue. Although Danny Morton did acknowledge in his deposition that he “witnessed flooding almost every year,” it was clearly established through additional questioning at his deposition that he was referring to Hinkston Creek overflowing its banks rather than the stormwater pooling on Potts’s parking lot. Any suggestion that the Mortons “should have known” of the problem traceable to the storm drainage system on their 'property is directly refuted by Appellants’ own expert’s testimony that “the average citizen on the street [does not] understand the dynamics and mechanics of stormwater drainage.” By permitting this case to proceed to trial under these facts, the majority effectively holds that summary judgment is never proper as to a normative issue of fact — i.e., whether the Mortons “should have known” that the 42" pipe under their property was inadequate to handle the stormwater discharged into it. In my view, nothing more than pure conjecture — or a desire to find someone to blame for this tragic event — would support liability on the part of the Mortons, and the trial court thus correctly granted summary judgment.
*513In addition, today’s majority misapplies Restatement (Second) of Torts § 366 to the extent that it ignores the commentary as to subparagraph (b), which clarifies that, even in cases where a landowner is actually aware that an artificial condition on his property causes surface water to flood another’s property, unless the landowner receives “some notice, complaint, or request to abate the condition”4 he or she may reasonably assume that the condition exists with the other landowner’s consent.5 And, given that there is no evidence in this case to suggest that the Mortons ever received any such request from anyone, Appellants cannot demonstrate that the condition existed without the consent of the upper landowner. As such, the Mor-tons cannot be held hable under § 366.6
Accordingly, I would reverse the Court of Appeals’s opinion to the extent that it affirms the trial court’s summary judgment in favor of Appellee Potts, but I would affirm the opinion in all other respects.
. See 78 AM. JUR. 2D Waters § 177 (2002).
. Commonwealth, Dept. of Highways v. S & M Land Co., Inc., Ky., 503 S.W.2d 495, 497 (1972) (emphasis added). See also Klutey v. Commonwealth, Dept. of Highways, Ky., 428 S.W.2d 766 (1968).
. See Rutherford v. Louisville & Nashville R. Co., Ky., 243 S.W.2d 1017 (1951).
. RESTATEMENT (SECOND) OF TORTS § 366 cmt. e (1965).
. Id. See also id. reporters notes (referencing and collecting "an array of more than fifty decisions” holding "that a vendee ... who takes possession of land with an existing private nuisance upon it is liable only after he is given notice of its existence and requested to abate it. This is said to be because he is entitled to assume, when he takes possession, that any existing nuisance has the consent of the adjoining landowners.” (emphasis added)).
.RESTATEMENT (SECOND) OF TORTS § 839 ill. 7 (1979). See also RESTATEMENT (SECOND) OF TORTS § 366 cmt. a (1965) ("This Section should be read together with § 839, as to liability for a private nuisance[.]”)