Kilbourn v. City of Seattle , 43 Wash. 2d 373 ( 1953 )

Schwellenbach, J.

(concurring in the result) — I agree that, in the instant case, the dead limb did not constitute a nuisance; that the minds of reasonable men could not differ thereon; and the nuisance question should not have been submitted to the jury. I agree with the majority that the courts, in order to avoid governmental immunity, have called almost everything a nuisance. But I do not agree with the majority that the defense of governmental immunity should be available where the nuisance exists as a consequence of the negligence of the city’s officers, agents, or employees. If the municipality maintains a nuisance, regardless of its origin, and such nuisance is the proximate cause of the injury, the municipality should be liable in damages, and the defense of governmental immunity should not be available to it.

Grady, C. J., concurs with Schwellenbach, J.