dissenting.
I respectfully dissent. I am unable to join the majority or concurring opinion because I do not believe Dulcina Smith should be forced to bear the losses caused by the malfunctioning of a sewer system over which she had no control. Our duty as a court of law is to do justice; justice in this case requires that a jury be permitted to determine whether the condominium association, which has exclusive control over all the common sewer lines of the condominium complex, should be held liable for the damage sustained in Smith’s individual unit. I would reverse the trial court’s entry of compulsory non-suit and remand the case for trial.
The majority, while sympathetic to Smith’s plight, nevertheless concludes that Smith “failed to produce sufficient evidence on any theory of tort to avoid non-suit____” According to the majority, “[t]he major stumbling block for the trial court and the parties below seems to have been the articulation of precisely which theory of tort or negligence was being presented. Knowing the theory is vital, because that will determine what is required to establish a prima facie case.” The majority then proceeds to analyze various theories of tort recovery in light of the facts of record before dismissing the theories as either improperly argued, insufficiently raised or not raised at all by Smith. Consequently, Smith is left without an avenue of redress.
The trial court determined that Smith’s primary theory of liability, section 364 of the Restatement (Second) of Torts, “Creation or Maintenance of Dangerous Artificial Conditions,” was “plainly inapplicable” because section 364 applies only to situations involving two separate owners of two separate parcels of real property. As a condominium owner, Smith was part owner of the common areas, sewers included; she was also a member of the condominium association she was suing. *277Therefore, according to the trial court, Smith was not an adjacent landowner but one of several common owners, and as such, she could not claim an adjacent landowner’s right to be free of physical harm emanating from an artificial condition created by the possessor of the neighboring land.
As my colleagues on the panel indicate, the trial court misapprehended the law. Liability under section 364 is premised primarily on possession and control, and not merely on ownership. Moreover, section 3311 of the Commonwealth’s Uniform Condominium Act specifically provides that a unit owner is not precluded from bringing an action against the condominium association merely because he is a member or officer of that association. See 68 Pa.C.S. § 3311(a)(2); (a)(4). Therefore, the condominium association, as the “possessor” of the common sewer lines, is liable to others such as Smith for physical harm caused by the sewer lines which the association realizes or should realize involve an unreasonable risk of harm when reasonable care is not taken to make the condition safe after the association knows about it. § 364 Restatement (Second) of Torts.
In its opinion, the majority concludes that Smith is precluded from recovery under section 364 because “[tjhere was no evidence presented at trial as to what appellee association could or should have done to prevent the injury ... [Smith] did not show that her injury was caused by a defectively designed or maintained plumbing system coupled with appellee condominium association’s failure to take available remedial action.” (emphasis in original). The majority also concludes that since the maintenance of sewage lines cannot be deemed to constitute an ultra-hazardous activity, Smith could not circumvent her omission by utilizing strict liability in tort imposed upon possessors of land with ultra-hazardous artificial conditions. Thus, while condominium unit owners generally can seek relief through section 364, according to the majority, Smith is ineligible to do so because she failed to advise the condominium association on how to fulfill part of the duties it was specifically created to perform.
*278I disagree with this analysis. Individuals purchase units in condominium complexes for myriad reasons, among them the desire to be relieved of personal responsibility for the care of structural and environmental elements of a dwelling, such as the roof, the electrical, plumbing and sewage systems, and the grounds. In a condominium, these tasks are delegated to- the condominium association, which is generally empowered to “[r]egulate the use, maintenance, repair, replacement and modification of common elements.” 68 Pa.C.S. § 3302(a)(6). The unit owners are assessed a monthly fee for the privilege of delegating their responsibilities to the condominium association. Thus it is inconceivable to me that, in order to be “made whole,” a unit owner damaged by the malfunctioning of a common sewer line must first present evidence to establish precisely what the association should have been doing to ensure that the sewer line functioned properly. Such a requirement defies logic and negates a primary benefit of condominium ownership.
I would hold that Smith has met her burden in establishing a cause of action under section 364, under a theory of nuisance, or utilizing res ipsa loquitur. The Pennsylvania Supreme Court has defined nuisance as “that which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him.” Tuckachinsky v. Lehigh & Wilkes-Barre Coal Co., 199 Pa. 515, 518, 49 A. 308 (1901). Under the theory of absolute nuisance a defendant is held strictly liable for the offending activity, relieving the plaintiff of the burden of proving the defendant’s negligence or intent to harm. Prosser and Keaton on Torts, 5th ed., § 78 at 552 (1984). The primary consideration in determining whether a condition constitutes an absolute nuisance is the relation of the objectionable activity to its surroundings. Id. The accumulation of sewage, when it flows onto the property of another, has long been held to be an absolute nuisance. See In Re Haugh’s Appeal, 102 Pa. 42 (1883); Knauss v. Brua, 107 Pa. 85 (1884). See also Schneider v. Sweeney, 66 Pa.D. & C. 437 (1948) (listing cases finding *279sewage seeping onto the property of another to be a private nuisance per se.)
In Haugh, supra, our supreme court was faced with the problem of one landowner’s privy leaking into the well of the adjoining landowner. In holding for the injured plaintiff, the court stated:
the right to have a privy is a right only so long as it is used without material injury to the property of others: when its fetid contents begin to leak upon the adjoining lands it becomes a nuisance and is actionable as such ... the proposition that one man should, under any circumstances, be permitted to deposit any part of his health-destroying filth in or upon his neighbor’s premises, is simply absurd.
Haugh, 102 Pa. at 44-45. (emphasis added).
In Knauss, supra, the plaintiff and defendant owned adjoining lots and dwellings. The sewer connection to defendant’s privy periodically became obstructed, causing “filthy water” to seep into the plaintiffs cellar. Knauss, 107 Pa. at 86. The defendant denied responsibility on the grounds that his house was leased to a tenant. At trial, in a special verdict, the jury had determined that there was a defect in the construction of the sewer that rendered it inefficient for the purpose for which it was intended. Id. at 90. Our supreme court still found the defendant liable because the privy had been malfunctioning before the tenant took possession. “But for a defect of this kind, which required not repair but reconstruction, even as between tenant and landlord, the former cannot be held; therefore, on all authority, the damages resulting from this default must fall on the latter.” Id.
Unit owners in a condominium are adjacent property owners. The state legislature has granted them the right to sue other unit owners or the condominium association as individual property owners. Rather than each unit having its own sewer line, in a condominium several unit owners share one sewer line. The condominium association is the entity responsible for maintaining the common sewage system. It is also the entity charged with responsibility for determining whether and when common elements need repair, reconstruction, or *280replacement. Moreover, the condominium association is vested with authority to levy assessments against the unit owners in order to pay for the requisite maintenance or improvement of the common elements. See 68 Pa.C.S. § 3302(a). Despite this new type of property ownership unknown in Pennsylvania a century ago, I would find our supreme court’s resolution of the issues in Haugh and Knauss controlling here.
Although the majority now agrees Smith has a valid cause of action in absolute nuisance, it nonetheless states: “While we feel that it is proper for us to alter slightly appellant’s § 364(c) negligence argument so that it comports to the law of condominium, we feel that it is not proper for us to permit appellant relief on appeal based upon a wholly different cause of action.” To the majority, to provide such relief would be “tantamount to raising the issue sua sponte,” in violation of the supreme court’s admonitions in Wiegand, infra, and Estep, infra. I find the majority’s conclusion unsupported in the record and the cases cited inapposite.
In Wiegand v. Wiegand, 226 Pa.Super. 278, 310 A.2d 426 (1972), this court declared two sections of the Divorce Code unconstitutional because they were contrary to the equal rights amendment of the Pennsylvania constitution. On allocatur, our supreme court reversed, stating that “the constitutionality of these provisions was never questioned by the parties either in the trial court or in their briefs in the Superior Court.” Wiegand v. Wiegand, 461 Pa. 482, 484, 337 A.2d 256, 257 (1975). The justices also noted that sua sponte determinations negate the inviolate rule that issues presented on appeal must have been properly preserved for appellate review. Id., 461 Pa. at 485, 337 A.2d at 257. Similarly, in Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985), another divorce action, the supreme court, quoting heavily from Wiegand, supra, reversed because this court “improperly interjected a legal theory not otherwise considered or preserved.” Id. at 628, 500 A.2d at 420.
Here, unlike Wiegand and Estep, we would not be unfairly interjecting a legal theory not otherwise considered or preserved. Estep, supra. According to the majority: “The court *281and the parties below searched the Restatement (Second) of Torts in vain for the appropriate theory of tort to apply to the facts of this case. Their assay of tort law was quixotic because the theory of tort they were seeking exists more or less in an inchoate form.” Clearly, all parties were on notice that any applicable theory of tort would be considered; consequently, unfair surprise is not an issue. As the majority notes in footnote five, Smith stated at trial that her theory of the case was that the condominium association owed her an absolute duty not to put sewage on her property. Moreover, the record reveals that Smith preserved the issue for appellate review by raising it in her post-trial motion. Thus, under the peculiar circumstances of this case, granting Smith relief on the basis of absolute nuisance would not be tantamount to raising the issue sua sponte; it would merely be the “just, speedy and inexpensive determination” of her cause of action. See Pa.R.C.P. 126.
In the alternative, I would hold that Smith has established a valid cause of action in negligence utilizing the doctrine of res ipsa loquitur. The majority affirmed the trial court’s denial of Smith’s res ipsa loquitur claim, stating: “[essentially the trial court noted that ... a plaintiff must eliminate other potential causes of harm suffered ... appellant failed to eliminate herself as a possible cause of the blockage and sewer back-up, nor did she eliminate other unit owners in her building as possible causes.” I find that the trial court’s analysis to be contrary to the case law of the Commonwealth.
Res ipsa loquitur, as delineated in section 328D of the Restatement (Second) of Torts, was adopted as the law of the Commonwealth in Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974). According to our supreme court, res ipsa loquitur “is neither a rule of procedure nor one of substantive tort law. It is only a shorthand expression for circumstantial proof of negligence — a rule of evidence.” Id., 457 Pa. at 611, 327 A.2d at 99. Section 328D explains res ipsa loquitur as follows:
(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
*282(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.
Restatement (Second) of Torts, § 328D.
Under the Restatement rule, a plaintiff need not establish exclusive control; a defendant’s negligence may be inferred when “other responsible causes are sufficiently eliminated by the evidence.” Gilbert, 457 Pa. at 614, 327 A.2d at 101, citing Restatement (Second) of Torts, § 328D(l)(b) (1965). “Exclusive control may eliminate other causes, but the critical inquiry is not control but whether a particular defendant is the responsible cause of the injury.” Id. (emphasis in original).
Here, a common sewer line overflowed into Smith’s apartment, causing her great inconvenience and expense. Common sewer lines do not back-up and overflow into individual apartments with the documented frequency Smith experienced absent negligence, negligence either in failing to maintain the sewer lines properly or in failing to sue the developer for installing a defectively designed or constructed sewage removal system. The majority recognizes the condominium association was in exclusive possession and control of all the sewer lines in the condominium complex. Smith was on vacation at the time of the overflow in question. However, while it is true other unit owners were in residence, the sheer number and repetitive nature of the stoppages experienced in all the buildings of the condominium complex indicates that the backups were not simply the result of carelessness on the part of individual residents.
*283“On the criteria relating to other reasonable causes, a plaintiff is not required to exclude all other possible causes beyond a reasonable doubt, but it is enough if he makes out a case from which a jury may reasonably conclude that negligence was, more probably than not, that of the defendant. ” Schoenenberger v. Hayman, 77 Pa.Cmwlth. 411, 417, 465 A.2d 1335, 1338 (1983) (citations omitted) (emphasis added). Whether the condominium association was the “responsible cause of the injury” is a question of fact for the jury. Gilbert, 457 Pa. at 614, 327 A.2d at 102. I would hold that Smith presented sufficient evidence to establish a cause of action in negligence using res ipsa loquitur, thereby warranting presentation of her case to the jury.
As the majority notes, an appellate court, in determining whether the trial court properly concluded that the plaintiff failed to establish a cause of action, must view the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable inferences of fact arising from the evidence and resolving any conflict in the evidence in favor of the plaintiff. Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 559, 506 A.2d 862, 865 (1986). A compulsory non-suit will be affirmed on appeal only where it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most favorable to the plaintiff, could determine the controlling issue in plaintiffs favor. Stevens v. Cmwlth. Dept. of Transportation, 89 Pa.Cmwlth. 309, 312-13, 492 A.2d 490, 492 (1985). Such is not the case here.
Viewing the evidence in the light most favorable to Smith and giving her the benefit of all reasonable inferences that may be drawn from that evidence, Coatesville Contractors, supra, I conclude that Smith has indeed established a cause of action, either in negligence under section 364 of the Restatement (Second) of Torts or utilizing res ipsa loquitur, or under a theory of nuisance. I would hold that the trial court committed an error of law in entering an order of compulsory *284non-suit against Smith. Therefore, I would reverse the trial court order and remand the case for trial on the merits.