(concurring and dissenting):
I concur in the main opinion’s analysis under the headings “Admission of Evidence” and “Failure to Give Specific Jury Instructions.” I dissent, however, both to the result and the analysis under the heading “Public Nuisance.”
Defendant filed a motion for summary judgment to dismiss the theory of public nuisance, basing its argument upon the fact that plaintiff could not prevail on public nuisance because his injury did not affect “an interest common to the general public, [but] rather [involved an injury] peculiar to one individual, or several.” The trial court granted defendant’s motion for summary judgment, holding as a matter of law that “the public nuisance statute ... was not intended to be applied to the present type fact situation.” Essentially, the trial court held that plaintiff did not have standing to sue under the public nuisance statute.1 The trial court erred in so holding.
An individual who sustains an injury different in kind from that sustained by the community in general has standing to bring an *153action for public nuisance.2 The Utah Supreme Court has held that a private individual may bring a public nuisance action where the “individual suffers some injury or damage through a public nuisance, which is different from that suffered by the community at large.... ” Lewis v. Pingree Nat’l Bank, 47 Utah 35, 42, 151 P. 558, 561 (1915). Most other jurisdictions are consistent with the Utah Supreme Court’s position.
Today it is universally held that a private individual has no action for the invasion of a purely public right, unless his damage is in some way to be distinguished from that sustained by other members of the general public. It is not enough that he suffers the same inconvenience or is exposed to the same threatened injury as everyone else. In the absence of some peculiar individual injury redress for a public nuisance must be left to the appointed representatives of the community.
Culwell v. Abbott Constr. Co., 211 Kan. 359, 506 P.2d 1191, 1196 (1973); accord Schlirf v. Loosen, 204 Okl. 651,232 P.2d 928, 930 (1951) (private action for public nuisance cannot be maintained for obstruction of public highway unless individual is specially injured). Thus, in order to bring an action for public nuisance, the individual must demonstrate that his or her injury was special or peculiar.3
In the present situation, plaintiff collided with the construction sign. Plaintiff allegedly sustained serious and permanent bodily injuries as a result of this collision. No other individual was injured by the sign. Plaintiffs injury was special or peculiar, and therefore, the trial court erred in holding, as a matter of law, that the public nuisance statute did not apply to the present fact situation.4
I would therefore reverse the summary judgment and remand the case to allow plaintiff to proceed on the theory of public nuisance. For me, any discussion of whether defendant actually created a public nuisance is premature. I nonetheless feel compelled to distance myself from the main opinion’s discussion of public nuisance.
The main opinion holds, as a matter of law, that defendant created a public nuisance under the statute by obstructing the roadway. The factfinder, not this court, must determine whether defendant’s placement of the sign created a public nuisance, to wit, whether defendant violated the statute.5 If the factfinder determines that the public nuisance statute is violated (and that plaintiff suffered special or peculiar damage), the defendant is liable without any showing of “unreasonable conduct,” despite the main opinion’s assertion to the contrary. See People v. Burtlesen, 14 Utah 258, 263, 47 P. 87, 89 (1896); accord W. Page Keeton, et al., Prosser and Keeton on the Law of Torts §§ 88 & 90 (5th ed. 1984) (discussing unreasonable conduct as requirement for private nuisance, but not mentioning it as requirement for *154public nuisance).6
In Burtlesen, defendant was charged criminally with creating a public nuisance by violating a predecessor statute virtually identical to section 76-10-803.7 Defendant kept about 2,000 sheep around a small stream of water, which was used for culinary and domestic purposes. Defendant argued that he was acting reasonably and with the. usual care, but had to remain around the small stream because the shearing pens were occupied. The Utah Supreme Court held that
[t]he only question to be determined was whether or not a nuisance had been committed, and in determining this question the motive or intent ivith which the defendant did the act complained of could not be considered. If his acts created a nuisance, it is immaterial how innocent the intent was, or how cautiously and reasonably the business ivas conducted, or whether the business was lawful. These elements do not enter into the question of nuisance.... ”
Burtlesen, 47 P. at 89 (emphasis added). The court reiterated this point by stating:
If the defendant so used his property as to annoy, injure, or endanger the comfort, repose, health, or safety of three or more persons, then his acts were unlawful, and he was guilty of the charge preferred against him, under the statute, even though he teas in the pursint of a lawful business, and conducting it in a reasonable and careful manner.
Id. (emphasis added). Thus, the Utah Supreme Court has held that a violation of what is now section 76-10-803(l)(a) created a nuisance per se. Similarly, there is no justifiable reason to believe that violation of subsection (l)(e) does not also create a nuisance per se, especially since it is more specific than subsection (l)(a).
The main opinion asserts, “Unless plaintiff can show that defendant’s action constituted nuisance per se, plaintiff must demonstrate that the defendant’s conduct was unreasonable in order to impose liability. Branch v. Western Petroleum, Inc., 657 P.2d 267, 276 (Utah 1982); Turnbaugh v. Anderson, 793 P.2d 939, 943 (Utah App.1990).” This ruling is contrary to Burtlesen, which requires only the commission of the act regardless of the reasonableness of the conduct. Further, Branch does not hold that unreasonable conduct is required for a public nuisance. To the extent that Tumbaugh, a court of appeals decision, requires unreasonable conduct for a public nuisance, it is contrary to Burt-lesen, a supreme court decision. This court is not in a position to overrule or hold contrary to Burtlesen under the doctrine of stare decisis. See State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993). However, even if this court could overrule the supreme court in Burtlesen, as the main opinion presumably does, thereby requiring a showing of unreasonable conduct to establish a public nuisance, it is a fact-sensitive issue that cannot be determined as a matter of law on summary judgment.
The main opinion also asserts that “mere violation of the public nuisance statute does not constitute nuisance per se.” (citing Branch and Turnbaugh). Again, Branch’s holding does not support the main opinion’s assertion, and to the extent that Tumbaugh does support its assertion, it is contrary to Burtlesen. In summary, if plaintiff can demonstrate that defendant violated the public nuisance statute, defendant will be liable to *155plaintiff.8
•Assuming, however, the main opinion is correct in asserting that nuisance per se is not created by violating section 76-10-803, there is another specific statute that in the present case invokes the nuisance per se doctrine. See Utah Code Ann. § 27-12-141 (1989).9 Section 27-12-141 provides, in pertinent part: “Any person ... who willfully or carelessly places or leaves, or causes to be placed or left, anything upon any such highway in such a way as to obstruct travel or to endanger property or persons passing upon such highway, is guilty of a misdemeanor.” Id. (emphasis added).10
I do not believe, as the main opinion implies, that a finding of negligence is particularly relevant to whether defendant “willfully or carelessly” placed or left something on a highway. Liability based on negligence is analytically different from liability based on public nuisance.
Nuisance is a field of tort liability rather than a type of tortious conduct. Nuisance has reference to the interests invaded, to the damage or harm inflicted, and not to any particular kind of act or omission which has led to the invasion. Professor Prosser concludes that the attempt frequently made to distinguish between nuisance and negligence, for example, is based entirely upon a mistaken emphasis based upon what the defendant has done rather than the result which has followed, and forgets completely the well-established fact that negligence is merely one type of conduct which may give rise to a nuisance.
Culwell, 506 P.2d at 1196 (citing Keeton, § 87).
In the present case, if the factfinder determines that defendant “willfully or carelessly” placed or left anything on the highway that obstructed travel or endangered plaintiffs life or property, defendant is liable regardless of whether or not it was generally “negligent.” Further, I believe that the trial court cannot properly determine, as a matter of law on summary judgment, whether defendant “willfully or carelessly” placed the sign on the highway. Such a determination is fact-sensitive.
I would therefore reverse the summary judgment and remand the case for further proceedings on the public nuisance theory, allowing plaintiff the opportunity to show that defendant’s placement of the sign constituted a violation of the public nuisance statute.
. The trial court's holding might alternatively be interpreted to mean that an obstruction of a highway cannot create a public nuisance. Such a ruling would clearly be contrary to established law. See Utah Code Ann. § 76—10—803(1)(c) (1990). Professors Prosser and Keeton state that one of the most common examples of a public nuisance is an obstruction of a highway. See W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 90 (5th ed. 1984).
. Utah Code Ann. § 76-10-803(1)(a) and (d) (1990) require certain types of public nuisances to involve three or more people; however, subsection (1)(c) does not restrict the number of people that must be injured where there is an "unlawful interference with ... [any] highway.” Id. § 76—10—803(1)(c).
. Defendant also argued that plaintiff had no standing because the sign posed a hazard only to "bicyclists travelling at a high rate of speed down the far right hand side of the road without headlights.” However, in light of Officer Lynch's testimony that "quite a few” people bicycle on that highway, I believe that the trial court could not rule, as a matter of law, that the protruding sign could not have imposed a danger to other individuals. The main opinion seems to agree: “Defendant’s placement of the sign ... rendered] the highway dangerous for passage to bicyclists like the plaintiff, especially given that bicyclists are required by law to ride as far to the right of the roadway as practicable. Utah Code Ann. § 41-6-87(1) (1993).” See also Keeton, § 90 ("It is not necessary ... that the entire community be affected, so long as the nuisance will interfere with those who come in contact with it in the exercise of a public right. The most obvious illustration, of course, is the obstruction of a public highway....”).
. My colleagues apparently agree that the facts in the present case trigger the doctrine of public nuisance, as is evident from their discussions of public nuisance. We seem to agree that the trial court erred in holding, as a matter of law, that public nuisance could never apply to this type of case.
. I also disagree with the main opinion's assertion that unlawful conduct is somehow broader than illegal conduct.
. The Utah Supreme Court has held that "[w]hen the conditions giving rise to a nuisance are also a violation of a statutory prohibition, those conditions constitute a nuisance per se.” Branch v. Western Petroleum, Inc., 657 P.2d 267, 276 (Utah 1982).
. Burtlesen concerned criminal liability, whereas the present case involves civil liability. However, "[i]t is axiomatic that statutory language imposing both civil and criminal liability cannot be interpreted to require stricter requirements in a civil context than it does in a criminal context.” Alta Indus. Ltd. v. Hurst, 846 P.2d 1282, 1288 n. 11 (Utah 1993) (interpreting section from criminal code in civil context). Section 76-10-803 clearly imposes both criminal liability, e.g., Burtlesen, 47 P. at 88, and civil liability, e.g., Turnbaugh v. Western Petroleum, Inc., 793 P.2d 939, 942 (Utah App.1990). Since the "additional hurdle” of unreasonable conduct is not required in the criminal context, it cannot be required in the civil context.
. Acts of God, such as a tree falling or wall collapsing, could not invoke the public nuisance statute since there would be no act or omission on the part of the defendant. See Utah Code Ann. § 76-10-803(1) (1990) (public nuisance consists of "unlawfully doing any act or omitting to perform any duty").
. This approach is consistent with the holding in Branch, which based its determination of nuisance per se on § 76-10-801 and what is now § 19-5-107.
. The concurring opinion asserts that plaintiff "failed to identify [§ 27-12-141] or any other law' which first makes [defendant's] placement of the sign an 'unlawful act.’ Thus, the trial court was deprived of the opportunity to consider this statutory requirement, and it cannot be raised for the first time on appeal whether by [plaintiff] or the dissent. Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1044 (Utah 1983); Shayne v. Stanley & Sons, Inc., 605 P.2d 775, 776 (Utah 1980).
Essentially, the concurring opinion states that plaintiff waived § 27-12-141 by failing to raise it. I do not believe that a party can waive the "law.” See, e.g., Thurston v. Box Elder County, 835 P.2d 165, 168 & n. 3 (Utah 1992) (analyzing statute not raised by parties but controlling). This court has a responsibility to decide cases in accordance with the law. This responsibility cannot be abdicated by a party’s failure to cite relevant law. While I agree that a party may waive issues or arguments that are raised for the first time on appeal, I do not believe a party can waive relevant law. Franklin and Shayne say nothing of waiving the law, but speak only of waiving issues.