dissenting:
I should affirm. The jury was properly instructed on the law of negligence. Applying that law to the evidence, it could properly find that the City of Bethlehem was responsible for the death of appellees’ decedent, and we should not disturb its verdict. In entering judgment for the City notwithstanding the verdict, the majority holds that as an uphill landowner the City had an absolute privilege to develop and thereby increase the velocity of surface water run-off, without regard for the personal safety of appellees’ decedent,1 so long as “the increase [was] owing to normal, *537gradual development in the city.” Maj. at 524. This conclusion is contrary to settled principle, and is without support in the law.
-1-
The majority’s decision is a non sequitur. The majority states, correctly, that “the rules of law [regarding surface water run-off] originally were developed to adjust property and water rights between upper and lower landowners.” Maj. at 522. One of these rules of law is that because “owners of lots in cities and towns buy and own with the manifest condition that the natural or existing surface is liable to be changed by the process of municipal development ...” Reilly v. Stephenson, 222 Pa. 252, 70 A. 1097 (1908), they may be said to have consented to, or assumed the risk of, damage to their property by increased surface water run-off. See also Lare v. Young, 153 Pa.Super. 28, 33 A.2d 662 (1943); Bellas v. Pardoe, 15 A. 662, 2 Mona. 357 (1888). It does not follow from these premises, however, that appellee may not recover from the City of Bethlehem. She was not the owner of a downhill lot; and in no sense may she be said to have consented to her injury. The majority’s assertion that “the rules [that determine the rights and obligations of upper and lower landowners] are equally valid as statements of a landowner’s rights and obligations with regard to personal injury suffered on the lower land,” Maj. at 522, is, I submit, simply wrong.
-2-
In support of its assertion that the parties’ respective rights and obligations are determined by the rules that determine the rights and obligations of upper and lower landowners, the majority cites our decision in Piekarski v. Club Overbrook Estates, Inc., 281 Pa.Super. 162, 421 A.2d 1198 (1980). The citation is inapposite.
In Piekarski it appeared that a highway was flooded because of the defendant township’s negligently designed and maintained drainage system on the top of a hill. A head-on collision occurred when the driver of an automobile, attempting to avoid the flooded area, veered to his left and *538collided with a truck. Both the driver of the automobile and of the truck were killed, and their respective estates sued the township, among others, in negligence. The trial judge, applying upper riparian cases, charged the jury that the township could be found liable if the township’s drainage system “unreasonably or unnecessarily” increased the flow of surface water onto the highway. In considering the township’s argument that this was error, we opened our discussion by specifically noting that the township “[did] not dispute the [trial] court’s application of upper riparian cases to this case.” 281 Pa.Super. at 170 n. 1, 421 A.2d at 1202 n. 1. We went on to observe that “[t]hose cases have previously been applied only where an upper landowner injures a lower landowner, and not where, as here, an upper landowner injures a person traveling on the lower land.” Id. We then said that “ ‘[s]ince [the township had] not argued and briefed the significance, if any, of the difference between this case and the upper riparian cases’ ... we [would] not discuss the issue.” Id., 281 Pa.Superior Ct. at 170-71 n. 1, 421 A.2d at 1202-1203, n. 1. With this definition of the issue, we proceeded to consider, and to reject, the argument, that the township did make, which was that as a municipal upper riparian landowner, it should be held to a lower standard of care than a private upper riparian landowner. Piekarski, therefore, not only does not stand for the proposition for which the majority cites it; it expressly states that it is not to be read as standing for that proposition.2
*539-3-
This case is not a case between upper and lower landowners. It is a claim that appellee, while at an intersection where she had a right to be, was drowned as a result of the city’s negligence. The majority dismisses appellee’s negligence claim by stating that “[i]t is axiomatic that a negligence claim cannot be maintained upon facts on which the law does not impose a duty.” Maj. at 528, citing Boyce v. United States Steel Corp., 446 Pa. 226, 285 A.2d 459 (1971). The majority then cites cases that hold that a municipality has no general obligation to build sewers. The issue here, however, is not whether the city had to build sewers but whether it owed a duty to appellee to exercise reasonable care to avoid injury to her.
The majority relies especially heavily on Strauss v. Allentown, 215 Pa. 96, 63 A. 1073 (1906), but that decision in no way precludes a municipality’s liability to respond in damages for personal injuries caused by its negligence. In Strauss the issue was stated as being whether “the city [was] liable to a property owner for the increased flow of surface water over or onto his property, arising merely from the changes in flow in the channels of the surface caused by the opening of streets, building of houses, etc., in the ordinary and regular course of expansion of the city.” Id., 215 Pa. at 98, 63 A. at 1073 (emphasis added). In holding that the city was not liable, the Court found “no sound reason why the same not apply to municipalities as to individuals”. Id. It made plain, however, that this holding did not preclude liability for negligence. Thus, in explaining its decision, the Court said: “In this natural change and *540development from agricultural or rural to urban territory-some disturbance of the surface drainage is inevitable, but without negligence the municipality is not liable for the results.” Id., 215 Pa. at 99, 63 A. at 1073, citing Carr v. Northern Liberties, 35 Pa. 324 (1860) (emphasis added). The “guiding principle” of its decision, the Court said, was that
[e]very man has the right to a natural, proper and profitable use of his own land, and if in the course of such use without negligence, unavoidable loss, is brought upon his neighbor, it is damnum absque injuria.
Id. 215 Pa. at 98, 63 A. at 1073 (emphasis added).
More recently, in Leiper v. Heywood Hall Construction Co., 381 Pa. 317, 113 A.2d 148 (1955), which is also relied upon by the majority, our Supreme Court stated that a lower landowner may recover for damage inflicted where the “owner of the higher land is guilty of negligence”. Id., 381 Pa. at 320, 113 A.2d at 149 (quoting Chamberlin v. Ciaffoni, 373 Pa. 430, 437, 96 A.2d 140, 143 (1953)). And as already noted, in Piekarski v. Club Overbrook Estates, supra, we held that upper landowners, including municipal landowners, may be liable in negligence where they “unreasonably or unnecessarily” increase the flow of surface water.
In Pfeiffer v. Brown, 165 Pa. 267, 30 A. 844 (1895), which we quoted in Piekarski, it is stated that
the use which inflicts the damage must be natural, proper and free from negligence, and the damage unavoidable---- Hence, the practical inquiry is, first, whether the damage was necessary and unavoidable; secondly, if not, was it sufficiently obvious to have been foreseen, and also preventable by reasonable care and expenditure? Id. 165 Pa. at 273, 30 A. at 845, quoting Collins v. Chartiers Valley Gas Co., 131 Pa. 143, 18 A. 1012 (1890).
It is apparent, therefore, that when carefully read, the cases upon which the majority relies do not support the majority’s position. The cases establish that an upper landowner municipality is liable in negligence for damages *541caused by surface water runoff to the property of lower landowner. True it is, the lower landowner, because he is a lower landowner, will be held to have consented to, or assumed the risk of, some increases in surface water runoff. But this consent, or assumption of risk, does not extend to negligent increases. And if the upper landowner municipality may be liable in negligence for damage caused by surface runoff to the property of a lower landowner, surely the municipality may be liable in negligence for injury caused by surface runoff to the person of some one like appellee. For appellee consented to, or assumed the risk of, nothing. She was entitled to be where she was, and she was entitled to have everyone, including the city, exercise due care for her safety.
The fallacy in the majority’s reasoning is that it equates appellee’s position with the lower landowner’s. It may be that in some circumstances an upper landowner may be entitled to say to a lower landowner, “You’re going to have to put up with some of my surface runoff.” But that has, literally, nothing to do with this case. It does not follow that because I can say or do something to one person, I can say or do it to another. u My duty will depend upon who the other person is. Appellee was not a lower landowner, and the city’s duty to her was not the same as its duty to a lower landowner.
-4-
When one recognizes that appellee is to be treated in her own right, and not as a lower landowner, the solution to this case becomes perfectly straightforward. For it is settled that a municipality may be liable for failing to exercise reasonable care with respect to persons, like appellee, foreseeably injured by surface water runoff.
In Cooper v. City of Reading, 392 Pa. 452, 140 A.2d 792 (1958), two children drowned in a sixteen foot deep pool that had been created by erosion caused by the frequent discharge of surface water from a Reading storm water outlet pipe. As in this case, the storm water originally fell within the city and was carried via a storm water control system, *542for which the city had an easement, to an abandoned canal owned by the Commonwealth. Also as in this case, the city knew of the dangerous condition created by its storm water discharge because a report of a drowning three years ago, at the same location, had been filed with its police department. The Court held that the city had properly been found liable for the children’s deaths. The Court noted that as an easement holder the city had the power “to secure and make safe its exercise of rights”, id., 392 Pa. at 462, 140 A.2d at 796 (quoting the trial judge), and that it was therefore subject to the liability of a possessor of land under Restatement of Torts § 339 (the attractive nuisance, doctrine). Reversing judgment n.o.v. for the city, the Court stated:
In the instant case the jury was justified in finding that the pool which the City allowed to form presented just such an unreasonable risk. Here, neither the appearance of the canal bed nor the land around it gave any indication that the pool concealed a “step-off” 16 feet deep in its center. Children could play in the water at its edges or upon the ice covering it without ever learning that it was anything more than what it appeared to be — an oversized puddle which had formed at the terminus of a pipe. The very fact that the pool was deceptively shallow at its edges and therefore innocent in appearance is the factor which created the unreasonable risk of harm to unsuspecting child trespassers. Whether the City exercised proper care in permitting the pool to exist in this condition, without giving any warning to the children it knew or should have known were using it as a place of recreation, was a question of fact and properly submitted to the jury for determination. Cf. Altenbach v. Lehigh Valley Railroad Company, 349 Pa. 272, 277, 37 A.2d 429 [(1944)], supra; Barthold v. Philadelphia, 154 Pa. 109, 110, 26 A. 304.
Id., 392 Pa. at 463-64, 140 A.2d at 797.
The present case is at least as strong a case for liability as Cooper, for appellee was not a trespasser, as were the children in Cooper, but a lawful user of the highway, to *543whom a high degree of care was owed. Clifton v. Philadelphia, 217 Pa. 102, 66 A. 159 (1907). The fact that the intersection where appellee was drowned was outside the city’s municipal boundaries did not give the city the privilege of creating an unreasonably dangerous condition there. Hudson v. Grace, 348 Pa. 175, 180, 34 A.2d 498 (1943) (possessor of land in close proximity to public highway may not create unnecessarily dangerous conditions for traveling public); Piekarski, supra, 281 Pa.Super. at 180, 421 A.2d at 1207-08 (same); Restatement Second Torts § 368.
In Decker v. City of Scranton, 151 Pa. 241, 25 A. 36 (1892), the plaintiff sued for injuries incurred when the sleigh in which he was riding overturned on an accumulation of ice caused by the freezing of water from a broken water main and other sources. In affirming judgment for the plaintiff, the Court held:
It was certainly [the city’s] duty to construct and maintain suitable ditches and sluices to carry off the water which ordinarily flowed from springs and other sources outside and in the vicinity of the highway. It could not in violation of this duty allow such water to run along the centre of the road, until there was an accumulation of ice from it which rendered unsafe and obstructed travel thereon, without incurring liability to a party who in consequence thereof sustained an injury.
Id., 151 Pa. at 243-44, 25 A. at 37.
Again, the present case is as strong as Decker. For whether the cause of the injury be ice or water on the highway, the principle is the same: a municipality has a duty not to create an unreasonably dangerous condition on the highway.
In McCracken v. Curwensville Borough, 309 Pa. 98, 163 A. 217 (1932), a case where the plaintiff’s decedent was killed when the car he was driving slipped on an accumulation of ice and into a river, the Court stated:
“If the city authorities were negligent in allowing a dangerous obstruction to exist in the public highway, which they could have removed, and the plaintiff was *544injured thereby, without any fault of his own, the city was undoubtedly liable for the damages which he suffered. It is argued, however, that as the obstruction complained of was the result of natural causes, over which man has no control, therefore the defendant is not liable. This would be true if the effects produced by these causes were beyond human remedy; but ordinarily such is not the case. Roads are constantly being worn by the never ceasing action of the elements; but no one imagines that this is an excuse for a neglect to repair them. A sudden flood may render a public bridge or highway impassable, but surely that is no reason for allowing it to remain so forever. A municipality cannot prevent the general slipperiness of its streets, caused by the snow and ice during the winter, but it can prevent such accumulations thereof, in the shape of ridges and hills, as render their passage dangerous. It is no more difficult to remove or level such obstructions than it is those occasioned by the water and earth during the summer.”
Id., 309 Pa. at 104-05, 163 A. at 219, quoting McLaughlin v. City of Corry, 77 Pa. 109, 113, 18 Am.Rep. 432 (1874).
In McDonough v. Munhall Borough, 331 Pa. 468, 200 A. 638 (1938), the Court stated that it was
unable to find on the record any evidence of an unusual volume of water washing over the retaining wall which of itself would be sufficient to attract the attention of the borough authorities, or put them on constructive notice of a dangerous condition.
Id., 331 Pa. at 473-74, 200 A. at 640.
Finding no notice, and therefore no negligence, the Court reversed the plaintiff’s judgment and entered judgment for the borough. Here, there is no dispute that the city knew of the dangerous condition that its surface water runoff created.
Strauch v. City of Scranton, 157 Pa.Super. 174, 42 A.2d 96 (1945), is to the same effect as McDonough. There we *545found, as the Supreme Court had found in McDonough, that the record contained no evidence of the city’s negligence. Id., 157 Pa.Superior Ct. at 179, 42 A.2d at 99. We therefore entered judgment for the city. In the course of our discussion we cited McCracken v. Curwensville Borough, supra, and Decker v. City of Scranton, supra, as illustrative of cases in which a municipality had been properly held liable for negligence. We explicitly recognized that depending on the particular situation and danger, a municipality may be under a duty to construct a drainage system: “The line of demarcation between discretionary and mandatory construction of drainage systems by a municipality is determined by the volume of flow and discharge of surface water in each instance.” Id., 157 Pa.Superior Ct. at 178, 42 A.2d at 98.
The decisions of courts of other jurisdictions are to the same effect. Thus, in Booth v. District of Columbia, 100 U.S.App.D.C. 82, 241 F.2d 437 (D.C.Cir.1956), the evidence was held to have established the municipality’s negligence. In that case the plaintiff’s car was caught in a swift and deep current of flood water and was trapped against a pole. Attempting to escape from her car, the plaintiff lost consciousness and floated downstream until she was rescued by a police officer. She sued for her personal injuries and the damage to her car, alleging that the municipality was negligent because flooding at the location where her car was caught was frequent, and the municipality knew it and should have prevented it. Id. at 32-33, 241 F.2d at 437-38. As we should do in this case, the Court of Appeals recognized the issue as one “of municipal liability, not for injury to property by a sewer, but for a personal injury to a traveler by a want of repair in the highway”. Id. at 33, 241 F.2d at 438. Similarly, in Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971), where the plaintiffs sued for personal injuries and property damage, alleging that the city was negligent in authorizing new development within its borders knowing that the development would cause *546flooding downhill, the Supreme Court of Louisiana reversed an order that no cause of action had been pleaded:
The plaintiffs are seeking to hold the city, not for failing to provide adequate drainage, but for fault in adding new subdivisions, thus increasing the volume of water in the drainage area. In effect, according to the petition, the power to grant or withhold consent for new subdivisions in the Pines Village drainage area effectively controlled the volume of water discharged in that area.
For its fault the city may be held liable____
Id. at 138, 245 So.2d at 385 (citations omitted).
See also, City of Rome v. Brown, 184 Ga. 34, 190 S.E. 787 (1937) (where city negligently constructed street, causing water to pool on plaintiffs property, city may be liable for personal injury and property damage); North Judson v. Lightcap, 41 Ind.App. 565, 84 N.E. 519 (1908) (where streets negligently built city may be liable for damages caused by surface water runoff). See generally, 18 McQuillen, Municipal Corporations, § 53.142 (“A municipality which is negligent in the construction or improvement of its streets, thereby causing injury from surface waters, is undoubtedly liable”).
-5-
To establish the city’s negligence, appellee had to show that the city had a duty to conform to a certain standard of conduct; that it did not conform to that standard; and that its failure to conform to that standard caused actual loss to her. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983); Macina v. McAdams, 280 Pa.Super. 115, 421 A.2d 432 (1980). If the city should have foreseen the likelihood of harm resulting from its act or omission, it may be found negligent. Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289 (1951). If the city by its act or omission created an unnecessary risk to innocent persons, it may be found negligent if the risk outweighed the advantages of its *547act or omission. Clewell v. Pummer, 121 A.2d 459, 384 Pa. 515 (1956). The trial court fully instructed the jury on the city’s obligation to conduct itself as would a reasonably prudent person in the circumstances disclosed by the evidence. As appellant, the city has no objection to the instructions — except for its unwarranted contention, which the majority has accepted, that it cannot be liable because the increased flow of water resulted from the regular expansion of the city, with a consequent increase in the number of streets and homes. Brief for Appellant at 15.
I think it clear that the jury could properly find the city liable to appellee in negligence. The city was warned as early as 1966 that the intersection where appellee was drowned was subject to flooding, and that almost 77% of the flood waters originated within its boundaries. N.T. 149-50, 164. All parties stipulated to a report by Edgar K. Mulhausen, an engineer in the city’s department of public works, that the velocity of the surface water run-off had, because of the city’s development, increased by 40% from its natural state of 310 cubic feet per second to 440 cubic feet per second. N.T. 484, 656. And yet, knowing of the increased danger caused by its development, the city did nothing to alleviate the danger. Instead, to protect its citizens’ yards and cellars from flooding, it built a detention basin in the natural drainage swale leading to the intersection where appellee was drowned. N.T. 227, 230. That basin did not, and was not intended to, alleviate flooding at the intersection. N.T. 227. When Bethlehem Township devised a plan that would have alleviated the flooding, the city chose not to cooperate, for the reason that its proposed share of the cost would be too great. That was hardly a reason the jury was obliged to accept. Instead, the jury could properly find that the city had a duty of reasonable care for the safety of travelers at the intersection; that in the exercise of that duty the city should have foreseen that when the intersection was flooded, a traveler might drown; that in failing to do anything to alleviate that danger, the *548city failed to fulfill its duty; and that its failure caused appellee’s death.
I do not doubt that Bethlehem Township and the Pennsylvania Department of Transportation, which between them had more immediate control over the intersection, were also properly found negligent by the jury. Their failure to exercise their respective duties of reasonable care for appellee’s safety, however, in no way relieved the city of its duty of reasonable care. See Carlson v. A & P Corrugated Box Corp., 364 Pa. 216, 72 A.2d 290 (1950) (where tortfeasors are guilty of concurrent negligence each is responsible for full amount of damages on theory that but for its negligence none of the damages would have been sustained) Coyne v. Pittsburgh Railways Co., 393 Pa. 326, 141 A.2d 830 (1958) (if negligence concurs with some other event so that but for that negligence injury would not have occurred both defendants responsible).
I should affirm the judgment of the trial court.3
DEL SOLE, J., joins.. For convenience, I shall hereafter refer to appellees’ decedent simply as "appellee.”
., One further comment on the majority’s generalizations about the law of surface water seems required. On pages 521 & 522 the majority states that the law of surface water "remains essentially unchanged from its origin in the maxim, '[wjater must flow as it is wont to flow,’ ” and that "the owner of higher ground has an easement in lower land for the discharge of all waters that naturally rise in a flow upon the higher." This is what has been characterized as the civil law rule. See generally, Kinyon and McLure, Interference With Surface Waters, 24 Minn.L.Rev. 891, 893-897 (1940). Two paragraphs later in its opinion, id., the majority states that "[t]he law regards surface waters as a common enemy which every proprietor must fight to get rid of as best he may.” This is a statement of the so-called common law, or common enemy, rule. In effect, it is the opposite of the civil law rule, for instead of *539being obliged to grant an easement for the discharge of surface waters, the lower landowner may fight off the discharge by any means available. See Kinyon and McLure, supra at 898-904. Although most jurisdictions adhere either to the civil law rule or the common law rule, or to a so-called rule of reasonable use, see, e.g., Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4 (1956), one commentator has concluded that Pennsylvania follows the civil law rule in rural areas and the common law rule in urban areas. See Weston, Gone With The Water — Drainage Rights and Storm Water Management in Pennsylvania, 22 Vill.L.Rev. 901, 921 (1976-1977).
. I do not discuss appellant’s remaining arguments for I find that the trial court’s opinion has adequately disposed of them.