Opinion

HANSON (Thaxton), J.

Introduction

The events giving rise to this action occurred on the night of October 30, 1979, when an NBC television camera crew entered the apartment of Dave and Brownie Miller in Los Angeles, without their consent, to film the activities of Los Angeles Fire Department paramedics called to the Miller home to administer life-saving techniques to Dave Miller, who had suffered a heart attack in his bedroom. The NBC television camera crew not only filmed the paramedics’ attempts to assist Miller, but NBC used the film on its nightly news without obtaining anyone’s consent. In addition, after it had received complaints from both Brownie Miller and her daughter, Marlene Miller Belloni, NBC later used portions of the film in a commercial advertising an NBC “mini-documentary” about the paramedics’ work.

The paramedics were unable to successfully resuscitate Dave Miller; he died that October evening at Mount Sinai Hospital. His widow, Brownie, *1470and daughter, Marlene (hereinafter, sometimes plaintiffs or plaintiff wife and plaintiff daughter), brought suit against defendants National Broadcasting Company (NBC), doing business as KNBC, a Los Angeles television station, Ruben Norte (Norte), a producer employed by NBC, and the City of Los Angeles (City) for damages, alleging trespass, invasion of privacy, and infliction of emotional distress against all defendants. After considerable discovery and amendment of pleadings, the trial court granted defendants’ motion for summary judgment. Plaintiffs appeal. We affirm in part and reverse in part.

Procedural History

On May 29, 1980, plaintiffs filed a “Complaint for Damages: Trespass; Intentional Infliction of Emotional Distress; Negligent Infliction of Emotional Distress; Invasion of Privacy”1 naming NBC, Norte, City’s Fire Department as defendants. Plaintiffs prayed for general and special damages according to proof and punitive damages in the sum of $500,000.

On July 6, 1984, defendants NBC and Norte filed a notice of motion for summary judgment as to plaintiffs’ second, third, fourth, fifth, sixth and seventh causes of action along with points and authorities.

On August 6, 1984, the superior court, after consideration of the moving and opposition papers, deemed defendants’ motion to be a judgment on the pleadings and granted plaintiffs 15 days to amend with the following proviso: “Plaintiff[s] may plead one tort for each broadcast seen by each plaintiff and may plead trespass so long as damages are not based on the broadcast.”

On August 21, 1984, plaintiffs filed a “First Amended Complaint for Damages” which essentially incorporates the allegations of the seven causes *1471of action in the original complaint (see fn. 1, ante) into three causes of action.2

On August 31, 1984, defendants NBC and Norte filed a notice of motion and motion for Judgment on the Pleadings, arguing that the amended complaint did not comply with the court’s order of August 6,1984 by improperly pleading several different tort actions arising out of each television broadcast *1472allegedly viewed by plaintiffs and was in contravention of the Uniform Publications Act section 3425.3.

On September 6, 1984, a mandatory settlement conference was conducted and the matter set for trial on December 4, 1984.

On September 20, 1984, the superior court denied defendants NBC and Norte’s motion to strike the at-issue memorandum and the judgment on the pleadings.

(The record reflects that at this hearing defense counsel requested the trial be continued to allow time to prepare and file a motion for summary judgment and plaintiffs’ counsel waived all time and notice requirements for the motion.)

On September 19,1984, defendant City filed its answer to the first amended complaint, denying the complaint and affirmatively alleging that City’s employees were given actual or implied consent to enter plaintiff Miller’s residence, and that defendant City is immune from liability pursuant to Government Code sections 815.2 and 820.2 and Civil Code section 47.

On October 18, 1984, following extensive discovery including depositions, defendants NBC and Norte filed a “Notice of Motion and Motion for Summary Judgment or, in the alternative, for Summary Adjudication.” The moving papers included points and authorities in support of the motion and a “Statement of Undisputed Facts.”

(The plaintiffs’ “Appendix in Lieu of Clerk’s Transcript on Appeal” does not include copies of exhibits attached to defendants’ motion for summary judgment, consisting of extracts from depositions taken during discovery. Pursuant to rule 12a, California Rules of Court, we have ordered up and reviewed the entire superior court file (No. C-324427), including copies of the portions of depositions referred to by defendants in their moving papers and plaintiffs’ opposition papers.)

On November 6, 1984, plaintiffs filed a “Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment or Summary Adjudication; Statement of Disputed and Undisputed Facts.”

(Plaintiffs’ opposition papers direct the court’s attention to other portions of the depositions referred to by defendants in their moving papers and incorporate deposition testimony of Fire Captain Anthony R. De Domenico of the Los Angeles City Fire Department and Douglas E. Brown, Senior Paramedic for the Bureau of Emergency Medical Service, Los Angeles City *1473Fire Department, along with a copy of “Defendants’ Response to Plaintiffs’ Third Set of Interrogatories.”)

On November 13, 1984, defendants filed “Reply Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment,” asserting that plaintiffs concede 1) “that they have no cause of action based upon the contents of the KNBC broadcast; 2) that they cannot as relatives, maintain an action based upon the KNBC broadcast depicting their relative; 3) and that the consoling telephone calls from friends and neighbors, which they naturally received after Mr. Miller’s death, cannot give rise to an independent cause of action.” (Italics original.)

Defendants further construe plaintiffs’ memorandum in opposition to their motion for summary judgment as asserting that the amended complaint states a claim for an “intrusion,” i.e., “invasion of privacy” by reason of the publicity of their deceased relative which caused emotional harm. Defendants also filed “Defendants’ Response to Plaintiffs’ Assertion of Various Material Facts in their Opposition to Defendants’ Motion for Summary Judgment.”

On November 16, 1984, counsel for all defendants (NBC, Norte and City) and plaintiffs presented oral argument; documentary evidence was introduced and the cause was submitted for decision.

On April 24,1985, the court below, “after full consideration of the moving papers and responding papers, all supporting papers, and oral argument of counsel,” signed and filed its “Judgment by Court and Statement of Decision.”

In ruling in favor of defendants NBC and Norte and against plaintiffs, the court found plaintiffs’ stated causes of action had no merit and presented no triable issues of fact. The court stated:

“1. Plaintiffs Brownie Miller and Marlene Belloni have no actionable claim for invasion of privacy, intentional infliction of emotional distress or negligent infliction of emotional distress based upon their alleged viewing of NBC broadcasts allegedly depicting their (now deceased) relative, Mr. Miller. Flynn v. Higham, 149 Cal.App.3d 677, 683 [197 Cal.Rptr. 145] (1983); Coverstone v. Davies, 38 Cal.2d 315 [239 P.2d 876] (1952); Hendrickson v. California Newspapers, Inc., 48 Cal.App.3d 59 [121 Cal.Rptr. 429] (1975); Grimes v. Carter, 241 Cal.App.2d 694, 702 [50 Cal.Rptr. 808, 19 A.L.R.3d 1310] (1966).

“2. Defendants are entitled to summary judgment of Plaintiff Miller’s cause of action for the alleged trespass by Ruben Norte and other employees *1474of Defendant National Broadcasting Company, Inc. because (1) there is no evidence that Defendants entered Plaintiff Miller’s property maliciously; and (2) Plaintiff Miller suffered no actual damage as a result of the alleged entry.”

On June 20, 1985, the superior court denied plaintiffs’ motion for a new trial.

On July 8, 1985, plaintiffs timely filed their notice of appeal and notice of election to prepare appendix.

On February 3, 1986, by stipulation, the appeal against defendant City was dismissed.

The Scenario

Defendant Norte, an NBC news field producer in charge of new stories and projects, was assigned a minidocumentary on fire department paramedics and their work. The minidocumentary was to run during the five weekdays for two weeks, airing for five minutes at the end of the 6 p.m. news, and about half that time on the 11 p.m. news. The first week concerned the paramedics’ work generally. The second week focused on the administering of CPR by a paramedic team.

Norte, holding a University of Texas degree in Mass Communications, with field newspaper and television experience and five years as field producer for KNBC, commenced background work and research well in advance of the scheduled showing of the minidocumentary. Filming started four to five weeks before airing. In preparation of the documentary, Norte contacted not only the fire departments of the City and County of Los Angeles but also the paramedics in many other cities, including Santa Monica, Sierra Madre, Glendale, Burbank and Seattle.

Norte contacted Tony De Domenico, the Los Angeles City Fire Department medical representative, and discussed the feasibility of having a film crew accompany a unit of paramedics, and was advised that it would be acceptable with the City. (Norte in his deposition testified that he did not discuss with De Domenico or anyone else a requirement of getting permission from any of the persons whose home the film crew would enter.) Norte testified that “My intent was to film and document whatever their work was and whatever it happened to be when we filmed.” He told the paramedics’ media representative, Brown, that he wanted to film something “dramatic.” He personally accompanied his film crew, consisting of a cameraman and a soundman, and between 10 and 15 times entered private residences with *1475the film crew while filming with the paramedics. He testified that about half of the time someone asked what they were doing, that he always responded, and that no one objected. Norte also testified that it was standard practice in the television industry to secure consent before entering someone’s home to film, but that he had not considered the necessity for such permission when accompanying the paramedics on their rounds.3

Turning specifically to the instant case, Norte testified that his crew was with the paramedic unit which was responding to a call that Mr. Miller had suffered an apparent coronary. Before proceeding to the Miller home, the paramedic unit had responded to at least four other calls, including an overdose case and an automobile accident. Norte rode in back of the paramedics’ ambulance with Stan Riley (carrying a film-tape recorder) and John Parson (carrying a camera). When they arrived at the Miller home, all three NBC personnel immediately followed the two paramedics into the apartment and the bedroom, where they filmed the paramedics performing CPR on Dave Miller. At no time did Norte or any other NBC employee seek or obtain consent to follow the paramedic team into the residence. The cameraman and soundman left with the paramedics, who placed the heart attack victim on a gurney and took him to Mount Sinai Hospital, where he subsequently died.

Although Norte later learned that the coronary victim had died, he did not attempt to ascertain the exact location of the filming or the identity of the deceased’s relatives. He did not believe that was necessary, because “there was no identity made of the victim verbally or visually [on film].” Norte, while supervising the editing of the film, did observe a tattoo on the victim’s arm, but it showed for a “couple of frames, couple of seconds” and he stated that he “would be surprised if anybody could identify him from the film that was aired.”

While Norte conceded it was normal procedure to get permission to enter a house, because of the emergency situation “there was no one to ask.”4

Norte testified that to his knowledge the only time the footage was shown containing this heart attack victim was on the 6 p.m. news on November 19 and a shorter (cut down) version on the 11 p.m. news. He was not aware *1476that some footage was used as a lead commercial for the following week’s series on CPR.

Norte received a telephone call on November 19 after the 6 p.m. news from a woman who said she thought the person in the film was her father, who had passed away recently. Norte told her he was sorry to hear her father passed away. Following the telephone call, he did nothing to ascertain the identity of the victim, but did review the film footage and concluded that it did not show enough of the person that he could be identified.

Plaintiff wife’s deposition was taken under oath on September 22, 1983, and she testified substantially as follows: that on October 30, 1979, she and her husband Dave Miller resided in apartment.3, 8211 Blackburn; that at about 10 p.m. on that date, Dave Miller collapsed onto the bedroom floor; and that she screamed and a neighbor came and called the paramedics. Although aware that the paramedics arrived and were administering CPR to her husband, she was completely unaware that the NBC filming unit had arrived and left with them. A police officer who had arrived escorted her to another room while the paramedics were working on her husband. She at no time asked anyone to leave the apartment and no one asked her permission to film the paramedics.

Plaintiff Miller saw the film of her husband and the paramedics weeks after his death; at 10:30 a.m., while she was “flipping” channels looking for a “soap opera” to watch, suddenly the film was shown. She screamed and turned the television off. That was the only time she saw the film.

Plaintiff Miller also received telephone calls from friends who had seen the sequence; the calls upset her. She called Norte only once and said: “What nerve did you have to come into my home and invade my privacy and do the things that you did to disturb my whole household.” Norte’s answer was, “I am sorry. I am very sorry.” She “told him what nerve he had to come in and to do what he did. He was—my husband was a very private person. He would never have liked anything like that to have been on television.” Norte’s answer was, “I’m sorry. I’m very sorry.”

Plaintiff daughter, whose deposition was taken under oath on May 24, 1983, lived in Laguna Beach, quite some distance away from her parents’ home. Plaintiff daughter was not present when the paramedics and the NBC film crew went to the Miller home.

Plaintiff daughter was watching the 6 p.m. news on channel 4 on November 19. She “saw [the paramedics] going up a flight of stairs, and ‘realized when they went in the doorway—[her] mother had these pictures *1477on the wall,’” and realized that it was her mother’s apartment. She screamed for her husband [Mr. Belloni] to come in the room. She “was [then] out of the room for a couple of minutes until she thought it was over. ” Before [she] ran out of the room she observed everybody hovering over the heart attack victim and “saw a mask coming down.” When she returned to the room, she saw that “they were wheeling him out.” She knew it was her father because of a distinctive tattoo on the arm of the man being wheeled out.

Plaintiff daughter telephoned defendant Norte and told him she had viewed the telecast, was very upset, and that he was cruel in not getting permission to do it and not contacting them so a choice could be made to watch it or not. She testified that Norte said that he did not know how to get ahold of them, or “I didn’t know. I didn’t think of it.” She asked Norte not to show it again and he said that it was part of their whole week’s special but that he would look into not doing it. She testified that although she did not view the 11 p.m. news, her husband did and it was aired again.

She then called Norte again, “to tell him again how upset [she] was and to ask him not to show it.”

After talking to Norte the second time, she stated: “I called all of our immediate relatives that I thought might be watching the late news to make them aware not to watch it or if they did watch it, it was their choice not to be frightened, scared.” Only one had seen the documentary.

She also called her mother and told her “not to watch the news because her father was in it; that she had called Norte but didn’t know for sure if it was going to be on, but not to take the chance and watch it.” To her knowledge, her mother did not view the 11 p.m. newscast.

Plaintiff daughter subsequently saw one showing of a portion of the documentary involving her father for promotional purposes. But four or five close friends, who had been advised to keep track of promotional showings on advice of plaintiff’s counsel, had seen several other promotional spots.

As a result of seeing the newscast, she experienced what she called an “anxiety attack” in which she would cry, become emotional, and angry. She was very emotional due to her father’s death but after the telecast of the paramedics at work on her father, her emotional state changed to anger. When asked to verbalize why observing the short portion of the segment she saw made it difficult for her to deal with the situation any more than the fact of her father’s death alone, she stated that she had been told that when he had the heart attack he died right away, and that the telecast indicated that he was “brought back” several times before he died and she did not *1478like “to think that he may have experienced some of that [pain], [she] would hate to think that of him.”

Standard of Review

The rules applicable to an appellate review of a summary judgment granted by the trial court are well settled.

Code of Civil Procedure section 437c provides that any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense thereto: “(b) The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. . . . [1Í]. . . The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken. The opposition papers shall include a separate statement which responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts which the opposing party contends are disputed. . . . (c) The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Italics added.)

Under summary judgment procedure, since defendants NBC and Norte were the moving parties, they had to conclusively negate a necessary element of each of plaintiffs’ causes of action or establish a complete defense, and thereby demonstrate that under no hypothesis was there a material factual issue which required the process of a trial. (See Tresemer v. Barke (1978) 86 Cal.App.3d 656, 661-662 [150 Cal.Rptr. 384, 12 A.L.R.4th 27].) “The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.” (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851 [94 Cal.Rptr. 785, 484 P.2d 953].) The court is “limited to the facts shown in the affidavits and those admitted and uncontested in the pleadings.” (Levin v. State of California (1983) 146 Cal.App.3d 410, 414 [194 Cal.Rptr. 223].)

However, “[t]he trial court must grant a motion for summary judgment if ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter *1479of law.’ (Code Civ. Proc., § 437c.)” (Italics added.) (McCreery v. Eli Lilly & Co. (1978) 87 Cal.App.3d 77, 82 [150 Cal.Rptr. 730].) This is so, even though justice is generally better served when cases are heard on their merits.

Matters involving First Amendment rights, however, are subject to a somewhat different standard of review than those dealing with other areas of the law. Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 684-685 [150 Cal.Rptr. 258, 586 P.2d 572], cert. den. Good Government Group of Seal Beach, Inc., et al. v. Hogard (1979) 441 U.S. 961 [60 L.Ed.2d 1066, 99 S.Ct. 2405] (a writ proceeding) stated that “ [defendants are correct in asserting that, because unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable. [Citation.] Therefore, summary judgment is a favored remedy, and upon such a motion the trial court must determine whether there is a sufficient showing of malice to warrant submission of that issue to the jury. [Citations.]”

In Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 1046 [201 Cal.Rptr. 665], the Court of Appeal noted that “it also bears emphasis that a motion for summary judgment in First Amendment cases is an approved procedure because unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights and because speedy resolution of cases involving free speech is desirable [citations]. While the crucial test as to whether to grant a motion for summary judgment remains the same in free speech cases (i.e., whether there is a triable issue of fact presented in the case), the courts impose more stringent burdens on one who opposes the motion and require a showing of high probability that the plaintiff will ultimately prevail in the case. In the absence of such showing the courts are inclined to grant the motion and do not permit the case to proceed beyond the summary judgment stage [citations].”

In the case at bench, the parties themselves facilitated the summary judgment proceedings because the case is one in which the issues are legal questions arising from facts about which there is no basic dispute. As with demurrer procedure on occasion, the issues here are whether plaintiffs have stated causes of action against the defendants. If they have, there are numerous triable issues of fact; if they have not, there are none. We note also that the designation of the complaint as well as the form in which the complaint is drawn is immaterial in determining what causes of action, if any, are stated by the facts as pleaded. (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 367, p. 420.)

*1480Mindful of the standard of review in First Amendment matters, we address the questions of law which have been presented on this appeal.

Issues

In addition to identification of causes of action, a principle issue in this litigation is the extent to which the First Amendment to the United States Constitution and article I, section 2 of the California Constitution (hereinafter collectively referred to as First Amendment rights, on occasion) protect newsgathering of this kind from civil liability.

Discussion

I.

Trespass: Plaintiff Wife’s First Cause of Action

Plaintiff wife has alleged, and it is undisputed, that defendants made an unauthorized entry into her apartment on October 30, 1979. Common law defined such entry as a trespass. “The essence of the cause of action for trespass is an ‘unauthorized entry’ onto the land of another. Such invasions are characterized as intentional torts, regardless of the actor’s motivation. Where there is a consensual entry, there is no tort, because lack of consent is an element of the [theory underlying the tort]. ‘A peaceable entry on land by consent is not actionable.’ (4 Witkin, Summary of Cal. Law (8th ed. 1974) § 351, p. 2612.)” (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16-17 [135 Cal.Rptr. 915].)

The trial court awarded summary judgment to defendants on this cause of action “because (1) there is no evidence that Defendants entered Plaintiff Miller’s property maliciously; and (2) Plaintiff Miller suffered no actual damage as a result of the alleged entry.” (Italics added.)

The trial court’s ruling concerning the “trespass” was based on the notion that it was “technical” in nature due to the lack of specific malice directed against the Millers by the NBC camera crew. The trial court ignored the fact that the trespass was intentional in the sense that the law understands and uses that word: the defendants intended to cross the threshold of the Miller home. Thus, they committed an intentional tort, which rendered the actors’ more refined motivation or intentions immaterial in terms of establishing that commission. As Prosser and Keeton on Torts (5th ed. 1984) section 13, pages 73-74 explained, “[t]he intent required as a basis for liability as a trespasser is simply an intent to be at the place on the land where the trespass allegedly occurred. . . . The defendant is liable for an *1481intentional entry although he has acted in good faith, under the mistaken belief, however reasonable, that he is committing no wrong.”

With respect to damages, Prosser and Keeton observe, at pages 76-77, that “[i]t would appear that the defendant trespasser will be liable for all direct consequences of any conduct engaged in while trespassing. Quite frequently, however, the defendant has been held liable for indirect consequences, some of which have not been reasonably foreseeable, of conduct engaged in while trespassing. [Fn. omitted.] It is important to realize that those who use another’s land without permission may justifiably have ‘risks of losses’ allocated to them far beyond those normally imposed when liability is imposed on a negligence theory.”

Under California law, the “consequences” flowing from an intentional tort such as a trespass may include emotional distress either accompanied by a physical injury to the person or to the land. (See, e.g., Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328, 337-338 [5 Cal.Rptr. 686, 353 P.2d 294].) The basic statutory provision concerning tort damages reflects this view, in providing that “[f]or the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” (Civ. Code, § 3333.) In the case at bench, the “consequences” would include plaintiff wife’s anguish, i.e., her emotional distress when NBC broadcast her husband’s dying moments.

Thus, pursuant to common law principles accepted in California law, plaintiff wife has stated a cause of action for trespass unless First Amendment rights preclude it. (See discussion, post.)

II.

Invasion of Privacy—Plaintiff Wife’s Second Cause of Action

Plaintiff wife has alleged in her complaint a trespass which also constituted the tort of intrusion, one of a group of torts which comprise privacy invasion.

The right of privacy has been described as “independent of the common rights of property, contract, reputation and physical integrity, . . . ‘the right to live one’s life in seclusion, without being subjected to unwarranted and undesired publicity. In short it is the right to be let alone.’” (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 276 [239 P.2d 630].) Since the “right to be let alone” can be violated in contexts immensely diverse *1482in consequences and degree, the common law which recognized the right did not easily lend itself to analysis.

An early Harvard Law Review article (1890)5 deplored the activities of the press in reporting about society functions; some early state statutes tried to prevent entrepreneurs from exploiting an individual to sell their products. (California’s statute is Civ. Code, § 3344.)

In 1960, however, Dean W. L. Prosser categorized and defined four basic privacy interests in a classic article entitled Privacy which appeared in 48 Cal. L. R. 383, 389.

He described those interests as follows:

“ 1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

“2. Public disclosure of embarrassing private facts about the plaintiff.

“3. Publicity which places the plaintiff in a false light in the public eye.

“4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.”

Prosser stated that “[i]t should be obvious at once that these four types of invasion may be subject, in some respects at least, to different rules; and that when what is said as to any one of them is carried over to another, it may not be at all applicable, and confusion may follow. ” The Prosser analysis has been widely adopted; the Restatement Second of Torts uses it to explain and distinguish the legal principles in this area of the law. Recent California decisions have also employed it. (See, e.g., Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118 [188 Cal.Rptr. 762].)

The case at bench involves the first category of privacy rights, the right to be secure from intrusion. Restatement Second of Torts, section 652B declares that “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. ” (Italics added.)

As the Restatement definition indicates, the right to be secure from intrusion is not absolute, but instead is subject to an important limitation. *1483The unintended or mistaken foray into the territory of another does not give rise to liability, nor would damages be awarded for minor incidents of overstepping, which abound in a crowded world.

While what is “highly offensive to a reasonable person” suggests a standard upon which a jury would properly be instructed, there is a preliminary determination of “offensiveness” which must be made by the court in discerning the existence of a cause of action for intrusion.

There is little California case law based upon facts showing actual physical intrusion to assist us in making this determination, probably because even today most individuals not acting in some clearly identified official capacity do not go into private homes without the consent of those living there;6 not only do widely held notions of decency preclude it, but most individuals understand that to do so is either a tort, a crime, or both.7

It would seem, however, that degree remains an important factor to be considered in determining “offensiveness”; a “party-crasher” might not, under some circumstances, be regarded as a major tortfeasor, while an intruder upon highly personal, intimate activities or events might very well be. One of the early cases in this country, for example, awarded damages against a person who intruded into a place where a woman was giving birth to a child (De May v. Roberts (1881) 46 Mich. 160 [9 N.W. 146]). That was considered “highly offensive.” There are other areas involving intimate conduct where intrusion would be regarded as actionable at law. A court determining the existence of “offensiveness” would consider the degree of intrusion, the context, conduct and circumstances surrounding the intrusion *1484as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.

The matter before us does not involve the death of a statesman nor of a person who was in any way a public figure; that is not in dispute. The case law involving public figures, celebrities and those who invite attention to themselves is not persuasive here, although even as famous a figure as the widow of an American President has been afforded privacy protection from egregious intrusion. (Galella v. Onassis (1972) 353 F.Supp. 196 (S.D.N.Y.); Galella v. Onassis (2d Cir. 1973) 487 F.2d 986.) Here, reasonable people could construe the lack of restraint and sensitivity NBC producer Norte and his crew displayed as a cavalier disregard for ordinary citizens’ rights of privacy, or, as an indication that they considered such rights of no particular importance.

In our view, reasonable people could regard the NBC camera crew’s intrusion into Dave Miller’s bedroom at a time of vulnerability and confusion occasioned by his seizure as “highly offensive” conduct, thus meeting the limitation on a privacy cause of action Restatement of Torts, section 652B imposes.

Plaintiff wife has stated a cause of action for breach of privacy, and is entitled to a jury’s determination on the cause, unless other rules recognizing public policy limitations or paramount constitutional privileges of the defendants preclude it.

The plaintiff wife’s recovery of damages for intrusion involves different rules but the result is the same. In Dietemann v. Time, Inc. (9th Cir. 1971) 449 F.2d 245,247, the Ninth Circuit observed that “ [d] espite some variations in the description and the labels applied to the tort [of invasion of privacy], there is agreement that publication is not a necessary element of the tort, that the existence of a technical trespass is immaterial, and that proof of special damages is not required.”

Damages recoverable in California for invasion of a privacy right were discussed in detail in Fairfield v. American Photocopy etc. Co. (1955) 138 Cal.App.2d 82 [291 P.2d 194]. The Court of Appeal declared that because the interest involved privacy, the damages flowing from its invasion logically would include an award for mental suffering and anguish. Fairfield was an appropriation case, but the principles it laid down concerning damage awards in privacy cases relied on a body of California law which had already recognized violation of the right of privacy as a tort.

The court also referred to opinions of other jurisdictions, however. “‘The gravamen of the action here charged is the injury to the feelings of the *1485plaintiff, the mental anguish and distress caused by the publication. In an action of this character, special damages need not be charged or proven, and if the proof discloses a wrongful invasion of the right of privacy, substantial damages for mental anguish alone may be recovered. [Citations.]’” {Id., at p. 89.)

Fairfield also approved the rule that ‘“One whose right of privacy is unlawfully invaded is entitled to recover substantial damages, although the only damages suffered by him resulted from mental anguish.’” {Id., at p. 89.)

The elements of emotional distress damages, i.e., anxiety, embarrassment, humiliation, shame, depression, feelings of powerlessness, anguish, etc., would thus be subjects of legitimate inquiry by a jury in the action before us, taking into account all of the consequences and events which flowed from the actionable wrong.

The trial court, in awarding summary judgment to defendants on plaintiff wife’s causes of action for privacy invasion and the intentional infliction of emotional distress, mistakenly relied on Flynn v. Higham (1983) 149 Cal.App.3d 677 [197 Cal.Rptr. 145] (petn. den., S.Ct., Feb. 15, 1984).

In Flynn, this court held that the purely personal right of privacy dies with the person. The Flynn complaint alleged that the defendants (author and publisher of “Errol Flynn—The Untold Story”) defamed plaintiffs (children of the deceased, Errol Flynn) by writing that their father was a homosexual and a Nazi spy.

In affirming the order of dismissal after defendants’ demurrer was sustained and the plaintiffs failed to amend their complaint, Flynn v. Higham, supra, 149 Cal.App.3d 677, 683, quoted the following discussion: ‘“It is well settled that the right of privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded, that is, plaintiff must plead and prove that his privacy has been invaded. [Citations.] Further, the right does not survive but dies with the person. [11] It is clear that the publication must contain some direct reference to the plaintiff. The publication must invade the plaintiff’s privacy. Where the publication was directed at another individual and referred incidentally to the plaintiff but was not directed at him, no recovery can be had. Where the plaintiff’s only relation to the asserted wrong is that he is a relative of the victim of the wrongdoer and was unwillingly brought into the limelight, no recovery can be had.’ (Italics in original.) (Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59, 62 [121 Cal.Rptr. 429].)”

*1486The California cases are legion which support the result reached in Flynn.8 The rationale has been stated well in Nelson v. Times (1977) 373 A.2d 1221, at p. 1225: “In the context of this particular tort [invasion of privacy] [many] courts, being wary of spurious claims or those purely emotional in character have refused to recognize such actions. Additionally, if actions for violating the right of privacy were allowed by other than the person directly involved, fixing their boundaries and parameters would become an almost impossible task. For example, within what degree of relationship, if any, must a prospective plaintiff be? Might not a very close friend have as serious an emotional reaction as a mother or father? The consensus seems to be that limiting the action to the person directly involved is a sounder judicial policy. [Citations.]”

In the instant case, the NBC camera crew, the uninvited media guests, not only invaded the Millers’ bedroom without Dave Miller’s consent, they also invaded the home and privacy of his plaintiff wife, Brownie Miller, referred to by Norte in his deposition as “a woman in the hallway.” Not only was the “woman in the hallway” Dave Miller’s wife, the hallway was a part of her home, a place where NBC had no right to be without her consent.

In the context of Fourth Amendment search and seizure law as applied in a criminal case, the California Supreme Court has observed that former case law had reflected “the now defunct community property principle that management and control of real and personal property are vested in the husband. (Former Civ. Code, §§ 162a, 172a, repealed by Stats. 1969, ch. 1608, § 3, p. 3313). Under present law a wife possesses independent and coequal authority to consent to a search of commonly occupied areas. (See Civ. Code, § 5105.)” (People v. Haskett (1982) 30 Cal.3d 841, 857, fn. 5 [180 Cal.Rptr. 640, 640 P.2d 776].) This view does not merely result from *1487recent changes in women’s status; an early case, Young v. Western & A. R. Co. (1929) 39 Ga.App. 761 [148 S.E. 414], held that a wife was also injured by a trespass onto property of her husband and herself.

Thus, the defendants’ invasion of plaintiff wife’s rights was direct and personal to her; therefore, it is also consistent with Vescovo v. New Way Enterprises, Ltd. (1976) 60 Cal.App.3d 582 [130 Cal.Rptr. 86], where it was held that the 14-year-old daughter residing in the house had a recognizable privacy interest to be free of intrusion there.

III.

Plaintiff Wife’s Cause of Action for the Intentional Infliction of Emotional Distress

Plaintiff wife seeks redress for the intentional infliction of emotional distress by defendants. “The elements of a prima facie case for the tort of intentional infliction of emotional distress were summarized in Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593 [156 Cal.Rptr. 198, 595 P.2d 975] [citation], as follows: ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard [for] the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. ’ ” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209 [185 Cal.Rptr. 252, 649 P.2d 894].)

Just as defining the parameters of the right of privacy from intrusion requires a reviewing court to make a preliminary determination, the tort of intentional infliction of emotional distress requires the same process of definition; in this instance, it requires consideration of what constitutes “extreme and outrageous conduct.” We approach the problem by employing the abstract but useful standard of how reasonable people might view such conduct, excluding from that category those either overly sensitive or callous.

The key to analysis of the facts before us was the trespass committed by the NBC camera crew in crossing the threshold of a private residence without, apparently, even a moment’s hesitation. The record contains no evidence that crew members, including the producer, Norte, had any specific malicious or evil purpose. Here, the record discloses that the NBC camera crew apparently devoted little or no thought whatsoever to its obvious transgression.

*1488“Little or no thought” constitutes, in this context, “reckless disregard” of the rights and sensitivities of others. We are not unmindful of Norte’s testimony that before invading the Miller house, he and the camera crew had done the same thing at other private places without any negative expression from those invaded. This conduct does not establish the complaint in this case as that of overly sensitive people. It illustrates, perhaps, a widespread loss of certainty about where public concerns end and private life begins, and a loss of personal identity manifested by individual members of the public when confronted by aggressive media representatives. Personal security in a society saturated daily with publicity about its members requires protection not only from governmental intrusion, but some basic bulwark of defense against private commercial enterprises which derive profits from gathering and disseminating information.

With respect to plaintiff wife’s cause of action, we leave it to a reasonable jury whether the defendants’ conduct was “outrageous.” Not only was her home invaded without her consent, but the last moments of her dying husband’s life were filmed and broadcast to the world without any regard for the subsequent protestations of both plaintiffs to the defendants. Again, the defendants’ lack of response to these protestations suggests an alarming absence of sensitivity and civility. The record reflects that defendants appeared to imagine that they could show or not show Dave Miller in extremis at their pleasure, and with impunity.

So it was that plaintiff wife, weeks after the event, was watching her television set on a Wednesday morning and saw an intensely private event, meaningful only to her and a few others in a personal way, as filmed by an NBC crew who had no right to be where they were when they filmed it. It is immaterial that in defendants’ judgment (expressed by Norte in his deposition testimony) that upon review of the film in question, the body of Dave Miller was not identifiable by the average viewer. Plaintiff wife was not an average viewer, a member of the general viewing public; the film depicted her house and her husband, and that fact was known to her.

She has stated a cause of action for the intentional infliction of emotional distress unless precluded by the defense of First Amendment privilege. (See “Constitutional Rights,” post, p. 1489.)

IV.

Plaintiff Daughter’s Causes of Action

We hold, however, that plaintiff daughter has stated neither a cause of action for intrusion of her right of privacy nor for the intentional infliction of emotional distress.

*1489With respect to her asserted privacy invasion, she was not present when the invasion of her parents’ household occurred nor did those premises belong to her. By way of contrast, the right of privacy upheld in Vescovo, supra, 60 Cal. App.3d 582 was based on facts showing the direct and personal intrusions into a teenaged daughter’s household caused by the defendant.

In the case at bench, the daughter’s claims of injury fall within the policy limitation of Flynn v. Higham, supra, 149 Cal.App.3d 677, because the principal thrust of the daughter’s claims were due to her relationship to the victims of the defendants—her parents—rather than the defendants’ conduct toward her.

Plaintiff daughter argues on this appeal that the broadcasts of her father’s dying moments into her home in and of themselves constituted “photographic intrusions” as to her, coming within the ambit of invasion of privacy by intrusion. We do not hold that such intrusion could not conceivably occur, but delineation of a tort of this nature must await more appropriate circumstances. Flynn precludes claims by relatives of victims wronged by publicity as a matter of sound policy. It precludes her action here.

The Flynn rationale is equally applicable to plaintiff daughter’s cause of action for the intentional infliction of emotional distress; the same consideration, that of placing a reasonable limitation on liability, governs this claim as well. There are relatively few successful prosecutions of this tort because, by its very definition, the law limits claims of intentional infliction of emotional distress to egregious conduct toward plaintiff proximately caused by defendant. We need not address with particularity the proximate cause problem raised by television broadcasting, since plaintiff daughter’s claim is not based in the first instance on conduct sufficiently egregious with respect to her.

V.

Constitutional Rights

Defendants have vigorously defended against liability in the instant case, relying, in addition to Flynn, on two propositions: (1) that by calling for the paramedics, the Millers impliedly consented to the entry of the NBC camera crew and (2) plaintiff wife’s cause of action was precluded by NBC’s constitutionally recognized and protected First Amendment right to gather news.

The first proposition is devoid of merit. One seeking emergency medical attention does not thereby “open the door” for persons without *1490any clearly identifiable and justifiable official reason who may wish to enter the premises where the medical aid is being administered. In Dietemann v. Time, Inc., supra, 449 F.2d 245, the court held that newsgatherers cannot immunize their conduct by purporting to act jointly with public officials such as the police or paramedics. The clear line of demarcation between the public interest served by public officials and that served by private business must not be obscured.

The second argument, however, merits discussion. As a preliminary matter, we note that conceptually speaking, as noted First Amendment scholar Melville R. Nimmer has stated, with respect to the Prosser categories of privacy rights, both “intrusion” and “appropriation” may be “put to one side .... Intrusion does not raise first amendment difficulties since its perpetration does not involve speech or other expression. It occurs by virtue of the physical or mechanical observation of the private affairs of another, and not by the publication of such observations. The appropriation form of privacy invasion probably also does not raise first amendment problems, although here speech and other expression is involved. ” (Nimmer, The Right to Speak From Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy (1968) 56 Cal. L.Rev. 935, 957.)

We will, however, explore defendants’ contention, since the events upon which this litigation was based involved both “physical observation of the private affairs of another” and the filming and dissemination of the physical observation.

Defendants are not alone in enjoying some constitutional protection for their pursuits. Individual ordinary citizens also enjoy certain protections, one of which is to be left alone in their own homes except under carefully prescribed circumstances. As Galella v. Onassis, supra, 353 F.Supp. 196, observed, the individual’s right to be let alone permeates the federal Constitution in a number of different ways. “The Constitution itself creates a right of privacy. The First Amendment protects the right of freedom of association. The Fourth Amendment protects the individual from unreasonable searches and seizures. The Fifth Amendment and its privilege against self-incrimination safeguards the individual in a zone of privacy into which the Government may not intrude, and the Ninth Amendment provides that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” (Id., at p. 231.)

In California, the voters enacted, on November 5, 1974, article I, section 1 of the California Constitution, which provides that “[ajll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting *1491property, and pursuing and obtaining safety, happiness, and privacy. ” (Italics added.) The voters were actually reenacting a provision that had long been a part of the California Constitution’s declaration of rights. As early as 1931, Melvin v. Reid (1931) 112 Cal.App. 285,291 [297 P. 91] recognized California’s dedication to privacy rights. The 1974 enactment expressly added “privacy” to the California Constitution.

As White v. Davis (1975) 13 Cal.3d 757, 775 [120 Cal.Rptr. 94, 533 P.2d 222] explained, the 1974 amendment which was approved by the voters was presented to voters as a necessary protection against some perceived “mischiefs,” including “(1) ‘government snooping’ and the secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information by government and business interests; (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party; and (4) the lack of a reasonable check on the accuracy of existing records.”

White v. Davis held that the amendment was “intended to be self-executing, i.e., that the constitutional provision, in itself, ‘creates a legal and enforceable right of privacy for every Californian.’” (Id., at p. 775.) While primarily aimed at unreasonable intrusion by governmental and business interests into people’s private affairs, the California Supreme Court recently stated that despite this emphasis on the scope of the constitutional right of privacy, “the right to privacy has been held to protect a diverse range of personal freedoms. [Citations'.]” (Robbins v. Superior Court (1985) 38 Cal.3d 199, 213 [211 Cal.Rptr. 398, 695 P.2d 695].) We are of the view that it encompasses the rights of plaintiff wife in the present case, both those personal and those of property.

We assume, for the purpose of discussion here, that public education about paramedics, as well as about the use of cardio-pulmonary resuscitation (CPR) as a life-saving technique almost anyone might either need or be called upon to administer to another, qualifies as “news.”

The First Amendment of the United States Constitution declares that “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” The protection afforded the disseminators of the news, be they reporters, broadcasters or television newspersons, has been perceived throughout our history as of the utmost importance in maintaining a free society. The protection extends not only to prohibit direct state action, but must be considered when any private citizen seeks to impose civil liability for invasion of privacy by the press or media through access to state courts. *1492 (New York Times Co. v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R.2d 1412].)

Newsgathering, as well as news dissemination, may be within the protective ambit of the First Amendment. Branzburg v. Hayes (1972) 408 U.S. 665,681 [33 L.Ed.2d 626,639,92 S.Ct. 2646], observed that “without some protection for seeking out the news, freedom of the press could be eviscerated.” A series of United States Supreme Court decisions have upheld the right of the press and media to publish information contained in public records or obtained during public proceedings, as part of the public’s right to know. (See, e.g., Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469 [43 L.Ed.2d 328,95 S.Ct. 1029].) California, on First Amendment grounds, has extended the right to gather news without the burden of civil liability to certain heretofore “confidential” proceedings involving assessment of the qualifications of judicial candidates. (Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 509 [223 Cal.Rptr. 58].)

Where the United States Supreme Court has addressed the problem of providing adequate constitutional protection for newsgathering, however, it has been careful to point out that the protection is limited, rather than absolute. Branzburg, for example, cited with approval the statement that “‘[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.’ Associated Press v. NLRB, 301 U.S. 103, 132-133 (1937).” (Branzburg v. Hayes, supra, 408 U.S. 665, 683 [33 L.Ed.2d 626, 640].) Implicit in Cox and other decisions upholding newsgatherers’ access to public records assumed that the newsgathering activity was lawful, rather than unlawful. Nicholson notes that the protection extended for newsgathering does not mandate “that the press and its representatives are immune from liability for crimes and torts committed in news gathering activities simply because the ultimate goal is to obtain publishable material. ...” (Nicholson v. McClatchy Newspapers, supra, 177 Cal.App.3d 509, 518.)

The same observation was made in Dietemann v. Time, Inc., supra, 449 F.2d 245 , 249, in the following particularly appropriate language: “We agree that newsgathering is an integral part of news dissemination . . . [but] [t]he First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another’s home or office. [Fn. omitted.]” (Italics added.)

We conclude, in the case before us, that the obligation not to make unauthorized entry into the private premises of individuals like the Millers *1493does not place an impermissible burden on newsgatherers, nor is it likely to have a chilling effect on the exercise of First Amendment rights. To hold otherwise might have extraordinarily chilling implications for all of us; instead of a zone of privacy protecting our secluded moments, a climate of fear might surround us instead. Others besides the media have rights, and those rights prevail when they are considered in the context of the events at the Miller home on October 30, 1979.

In summary, we hold that plaintiff wife, Brownie Miller, has stated three causes of action against defendants and that since there are triable issues of material fact, the trial court erred in awarding summary judgment to defendants as to plaintiff wife, Brownie Miller. The trial court’s award of summary judgment to defendants on those causes of action pleaded by plaintiff daughter Marlene Miller Belloni was correct and is hereby affirmed.

Disposition

The judgment as to plaintiff Miller’s causes of action is reversed, The judgment as to plaintiff Belloni’s cause of action is affirmed. Plaintiff Miller is to recover her costs.

Spencer, P. J., and Ruiz, J.,* concurred.

Petitions for a rehearing were denied January 12, 1987, and the petitions of appellant Belloni and respondents for review by the Supreme Court were denied March 11, 1987.

Munson, J.

It is alleged as the ground of recovery that on the 13th day of November, 1904, the defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached thereto, which island and dock were then in charge of the defendant’s servant; that the plaintiff was then possessed of and sailing upon said lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest, whereby the sloop and the property and persons therein were placed in great danger of destruction; that to save these from destruction or injury the plaintiff was compelled to, and did, moor the sloop to defendant’s dock; that the defendant by his servant unmoored the sloop, whereupon it was driven upon the shore by the tempest, without the plaintiff’s fault; and that the sloop and its contents were thereby destroyed, and the plaintiff and *474his wife and children cast into the lake and upon the shore, receiving injuries.

This claim is set forth in two counts; one in trespass, charging that the defendant by his servant with force and arms wilfully and designedly unmoored the sloop; the other in case, alleging that it was the duty of the defendant by his servant to permit the plaintiff to moor his sloop to the dock, and to permit it to remain so moored during the continuance of the tempest, but that the defendant by his servant, in disregard of this duty, negligently, carelessly and wrongfully unmoored the sloop. Both counts are demurred to generally.

There are many cases in the books which hold that necessity, and an inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and interferences with personal property that would otherwise have been trespasses. A reference to a few of these will be sufficient to illustrate the doctrine.

In Miller v. Fandrye, Poph. 161, trespass was brought for chasing sheep, and the defendant pleaded that the sheep were trespassing upon his land, and that he with a little dog chased them out, and that as soon as the sheep were off his land he called in the dog. It was argued that, although the defendant might lawfully drive the sheep from his own ground with a dog, he had no right to pursue them into the next ground. But the court considered that the defendant might drive the sheep from his land with a dog, and that the nature of a dog is such that he cannot be withdrawn in an instant, and that as the defendant had done his best to recall the dog trespass would not lie.

In trespass of cattle taken in A, defendant pleaded that he was seized of C, and found the cattle there damage feasant, and chased them toward the pound, and that they escaped from him and went into A, and he presently retook them; and this was held a good plea. 21 Bdw. IV. 64; Vin. Ab. Trespass, H. a 4 pi. 19. If one have a way over the land, of another for his beasts to pass, and the beasts, being properly driven, feed the grass by morsels in passing, or run out of the way and are promptly pursued and brought back, trespass will not lie. See Vin. Ab. Trespass, K. a. pl. 1.

A traveller on a highway, who finds it obstructed from a sudden and temporary cause, may pass upon the adjoining land *475without becoming a trespasser, because of the necessity. Henn’s Case, W. Jones 296; Campbell v. Race, 7 Cush. 408, 54 Am. Dec. 728; Hyde v. Jamaica, 27 Vt. 443 (459); Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 811.

An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. 21 Hen. VII, 27; Vin. Ab. Trespass, H. a. 4, pl. 24, K. a. pl. 3. In Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff’s beach for the purpose of saving and restoring to the lawful owner a boat which had been driven ashore and was in danger of being carried off by the sea; and it was held no trespass. See also Dunwich v. Sterry, 1 B. & Ad. 831.

This doctrine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 37 Hen. VII, pl. 26. One may sacrifice the personal property of another to save his life or the lives of his fellows. In Mouse’s Case, 12 Co. 63, the defendant was sued for taking and carrying away the plaintiff’s casket and its contents. It appeared that the ferryman of Gravesend took forty-seven passengers into his barge to pass to London, among whom were the plaintiff and defendant; and the barge being upon the water a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger of being lost if certain ponderous things were not cast out, and the defendant thereupon cast out the plaintiff’s casket. It was resolved that in case of necessity, to save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiff’s casket out of the barge; that if the ferryman surcharge the barge the owner shall have his remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one ought to bear his loss, to safeguard the life of a man.

It is clear that an entry upon the land of another may be justified by necessity, and that the declaration before us discloses a necessity for mooring the sloop. But the defendant questions the sufficiency of the counts because they do not negative the existence of natural objects to which the plaintiff *476could have moored with equal safety. The allegations are, in substance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to defendant’s dock to save his sloop and the people in it. The averment of necessity is complete, for it covers not only the necessity of mooring, but the necessity of mooring to the dock; and the details of the situation which created this necessity, whatever the legal requirements regarding them, are matters of proof and need not be alleged. It is certain that the rule suggested cannot be held applicable irrespective of circumstance, and the question must be left for adjudication upon proceedings had with reference to the evidence or the charge.

The defendant insists that the counts are defective in that they fail to show that the servant, in casting off the rope, was acting within the scope of his employment. It is said that the allegation that the island and dock were in charge of the servant does not imply authority to do an unlawful act; and that the allegations as a whole fairly indicate that the servant unmoored the sloop for a wrongful purpose of his own, and not by virtue of any general authority or special instruction received from the defendant. But we think the counts are sufficient in this respect. The allegation is that the defendant did this by his servant. The words “wilfully and designedly” in one count, and “negligently, carelessly and wrongfully” in the other, are not applied to the servant, but to the defendant acting through the servant. The necessary implication is that the servant was acting within the scope of his employment.13 Ency. Pl. & Pr. 922; Voegeli v. Pickel Marble etc. Co., 49 Mo. App. 643; Wabash, Ry. Co. v. Savage, 110 Ind. 156, 9 N. E. 85. See also Palmer v. St. Albans, 60 Vt. 427, 13 Atl. 569, 6 Am. St. Rep. 125.

Judgment affirmed and cause remanded.

O’BRIEN, J.

The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiffs’ dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about ten o’clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at fifty miles per hour and continued to increase during the night. There is some evidence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the hour mentioned until the morning of the twenty ninth, when the storm abated, and during that time no master would have been justified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Peynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was con*458stantly being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.

We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to leave permitted his vessel to drift away from it. One witness testified upon the trial that the vessel could have been warped into a slip, and that, if the attempt to bring the ship into the slip had failed, the worst that could have happened would be that the vessel would have been blown ashore upon a soft and muddy bank. The witness was not present in Duluth at the time of the storm, and, while he may have been right in his conclusions, those in charge of the dock and the vessel at the time of the storm were not required to use the highest human intelligence, nor were they required to resort to every possible experiment which could be suggested for the preservation of their property. Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship.

It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in that position after it became apparent that the storm was to be more than usually severe. We do not agree with this position. The part of the wharf where the vessel was moored appears to have been commonly used for that purpose. It was situated within the harbor at Duluth, and must, we think, be considered a proper and safe place, and would undoubtedly have been such during what would be considered a very severe storm. The storm which made it unsafe was one which surpassed in violence any which might have reasonably been anticipated.

The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial court is not necessary, as in our opinion the only question for the jury was the amount of damages *459which the plaintiffs were entitled to recover, and no complaint is made upon that score.

The situation was one in which the ordinary rules regulating property rights were suspended by forces beyond human control, and if, without the direct intervention of some act by the one sought to be held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiffs’ dock, the plaintiffs could not have recovered. Again, if while attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury indicted.

In Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, this court held that where the plaintiff, while lawfully in the defendants’ house, became so ill that he was incapable of traveling with safety, the defendants were responsible to him in damages for compelling him to leave the premises. If, however, the owner of the premises had furnished the traveler with proper accommodations and medical attendance, would he have been able to defeat an action brought against him for their reasonable worth?

In Ploof v. Putnam (Vt.) 71 Atl. 188, 20 L. R. A. (N. S.) 152, the supreme court of Vermont held that where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in that case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the injury done.

*460Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the tailing of private property for public purposes; but under our system of jurisprudence compensation must be made.

Let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming necessity of the situation, the owner of the cable could not recover its value.

This is not a case where life or property was menaced by any object or thing belonging to the plaintiffs, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs’ property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.

Order affirmed.

LEWIS, J.

(dissenting).

I dissent. It was assumed on the trial before the lower court that appellant’s liability depended on whether the master of the ship might, in the exercise of reasonable care, have sought a place of safety before the storm made it impossible to leave the dock. The majority opinion assumes that the evidence is conclusive that appellant moored its boat at respondents’ dock pursuant to contract, and that the vessel was lawfully in position at the time the additional cables were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold the boat in position, it became liable under the rule that it had voluntarily made use of the property of another for the purpose of saving its own.

*461In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an inevitable accident. If the master was in the exercise of due care, he was not at fault. The reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master had used the stronger cables, there would be no liability. If the master could not, in the exercise of reasonable care, have anticipated the severity of the storm and sought a place of safety before it became impossible, why should he be required to anticipate the severity of the storm, and, in the first instance, use the stronger cables?

I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into contractual relations with the owner of a vessel to moor the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.

JAGGARD, J.

I concur with lewis, J.

Ervin, J.

Each defendant assigns as error the disallowance of its motion for a compulsory nonsuit. We consider these assignments of error separately because the defendants urge different reasons to sustain their respective positions.

The High Penn Oil Company contends that the evidence is not sufficient to establish either an actionable or an abatable private nuisance. This contention rests on a twofold argument somewhat alternative in character. The High Penn Oil Company asserts primarily that private nuisances are classified as nuisances per se or at law, and nuisances per accidens or in fact; that when one carries on an oil refinery upon premises in his rightful occupation, he conducts a lawful enterprise, and for that reason does not maintain a nuisance per se or at law; that in such case the oil refinery can constitute a nuisance per accidens or in fact to the owner of neighboring land if, and only if, it is constructed or operated in a negligent manner; that there was no testimony at the trial tending to show that the oil refinery was constructed or operated in a negligent manner; and that consequently the evidence does not suffice to establish the existence of either an actionable or an abatable private nuisance. The High Penn Oil Company insists secondarily that the plaintiffs in a civil action can recover only on the case presented by their complaint; that the complaint in the instant action states a cause of action based solely on negligence; that there was no testimony at the trial indicating that the oil refinery was constructed or operated in a negligent manner; and that consequently the evidence is not sufficient to warrant the relief sought and obtained by the plaintiffs, even though it may be ample to establish a nuisance.

*191. The case on appeal discloses some substantial reasons for contesting .the soundness of tbe thesis of the High Penn Oil Company that there was no testimony at the trial tending to show that the oil refinery was constructed or operated in a negligent manner. Even expert witnesses for the defendants testified in substance on cross-examination that the oil refinery would not emit gases or odors in annoying quantities if it were “operated properly.” We would be compelled, however, to reject the argument of the High Penn Oil Company on the present aspect of the appeal even if we should accept at face value its thesis that there was no testimony at the trial tending to show that the oil refinery was constructed or operated in a negligent manner.

The High Penn Oil Company asserts with complete correctness that private nuisances may he classified as nuisances per se or at law, and nuisances per accidens or in fact. A nuisance per se or at law is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. 39 Am. Jur., Nuisances, section 11; 66 C.J.S., Nuisances, section 3. Nuisances per accidens or in fact are those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained, or operated. Swinson v. Realty Co,, 200 N.C. 276, 156 S.E. 545; Cherry v. Williams, 147 N.C. 452, 61 S.E. 267, 125 Am. S. E. 566, 15 Ann. Gas. 715; Dargan v. Waddill, 31 N.C. 244, 49 Am. D. 421. The High Penn Oil Company also asserts with complete correctness that an oil refinery is a lawful enterprise and for that reason cannot be a nuisance per se or at law. Waier v. Peerless Oil Co., 265 Mich. 398, 251 N.W. 552; Midland Empire Packing Co. v. Yale Oil Corp. of S. D., 119 Mont. 36, 169 P. 2d 732; Purcell v. Davis, 100 Mont. 480, 50 P. 2d 255. The High Penn Oil Company falls into error, however, when it takes the position that an oil refinery cannot become a nuisance per accidens or in fact unless it is constructed or operated in a negligent manner.

Negligence and nuisance are distinct fields of tort liability. 39 Am. Jur., Nuisances, section 4. While the same act or omission may constitute negligence and also give rise to a private nuisance per accidens or in fact, and thus the two torts may coexist and be practically inseparable, a private nuisance per accidens or in fact may be created or maintained without negligence. Butler v. Light Co., 218 N.C. 116, 10 S.E. 2d 603; Swinson v. Realty Co., supra; 39 Am. Jur., Nuisances, section 24; 65 C.J.S., Negligence, section 1; 66 C.J.S., Nuisances, section 11. Most private nuisances per accidens or in fact are intentionally created or maintained, and are redressed by the courts without allegation or proof of negligence. Godfrey v. Power Co., 190 N.C. 24, 128 S.E. 485; Moran v. Pittsburgh-Des Moines Steel Co., 166 F. 2d 908; King v. Columbian Carbon Co., 152 F. 2d 636; E. Rauh & Sons Fertilizer Co. v. Shreffler, *192139 F. 2d 38; Actiesselskabet Ingrid v. Central R. Co., 216 F. 72, L.R.A. 1916B, 716; Terrell v. Alabama Water Service Co., 245 Ala. 68, 15 So. 2d 727; Beam v. Birmingham Slag Co., 243 Ala. 313, 10 So. 2d 162; Gus Blass Dry Goods Co. v. Reinman & Wolfort, 102 Ark. 287, 143 S.W. 1087; Curtis v. Kastner, 220 Cal. 185, 30 P. 2d 26; Kafka v. Bozio, 191 Cal. 746, 218 P. 753, 29 A.L.R. 833; Swift & Co. v. Peoples Coal & Oil Co., 121 Conn. 579, 186 A. 629; Cunningham v. Wilmington Ice Mfg. Co. (Del. Super.), 2 W. W. Hair. 229, 121 A. 654; Dilucchio v. Shaw (Del. Super.), 1 W. W. Harr. 509, 115 A. 771; District of Columbia v. Totten, 55 App. D. C. 312, 5 F. 2d 374, certiorari denied 269 U.S. 562, 46 S. Ct. 21, 70 L. Ed. 412; Pitner v. Shugart Bros., 150 Ga. 340, 103 S.E. 791, 11 A.L.R. 1399; Laflin, & R. Powder Co. v. Tearney, 131 Ill. 322, 23 N.E. 389, 7 L.R.A. 262, 19 Am. S. R. 34; Menolascino v. Superior Felt & Bedding Co., 313 Ill. App. 557, 40 N.E. 813; City of Lebanon v. Twiford, 13 Ind. App. 384, 41 N.E. 844; Ryan v. City of Emmetsburg, 232 Iowa 600, 4 N.W. 2d 435; Andrews v. Western Asphalt Paving Corporation, 193 Iowa 1047, 188 N.W. 900; Bowman v. Humphrey, 132 Iowa 234, 109 N.W. 714, 6 L.R.A. (N.S.) 1111, 11 Ann. Cas. 131; Carlson v. Mid-Continent Development Co., 103 Kan. 464, 173 P. 910, L.R.A. 1918F, 318; Bailey v. Kelly, 93 Kan. 723, 145 P. 556, L.R.A. 1916D, 1220, 86 Kan. 911, 122 P. 1027, 39 L.R.A. (N.S.) 378; Rogers v. Bond Bros., 279 Ky. 239, 130 S.W. 2d 22; O’Neal v. Southern Carbon Co., 211 La. 1075, 31 So. 2d 216; Foley v. H. F. Farnham Co., 135 Me. 29, 188 A. 708; Toy v. Atlantic Gulf Pacific Co., 176 Md. 197, 4 A. 2d 757; Bern v. Boston Consol. Gas Co., 310 Mass. 651, 39 N.E. 2d 576; Ferriter v. Herlihy, 287 Mass. 138, 191 N.E. 352; Hakkila v. Old Colony Broken Stone & Concrete Co., 264 Mass. 447, 162 N.E. 895; Wilkinson v. Detroit Steel & Springs Works, 73 Mich. 405, 41 N.W. 490; H. Christianson & Sons v. City of Duluth, 225 Minn. 475, 31 N.W. 2d 270; Johnson v. Fairmont, 188 Minn. 451, 247 N.W. 572; Pearson v. Kansas City, 331 Mo. 885, 55 S.W. 2d 485; Boyle v. Neisner Bros., 230 Mo. App. 90, 87 S.W. 2d 227; Jeffers v. Montana Power Co., 68 Mont. 114, 217 P. 652; Toft v. City of Lincoln, 125 Neb. 498, 250 N.W. 748; Brownsey v. General Printing Ink Corporation, 118 N.J.L. 505, 193 A. 824; Dixon v. New York Trap Rock Corporation, 293 N.Y. 509, 58 N.E. 2d 517, motion for reargument denied, 294 N.Y. 654, 60 N.E. 2d 385; Hogle v. H. H. Franklin Mfg. Co., 199 N.Y. 388, 92 N.E. 794, 32 L.R.A. (N.S.) 1038, affirming judgment, 128 App. Div. 403, 112 N.Y.S. 881; Bohan v. Port Jervis Gas-Light Co., 122 N.Y. 18, 25 N.E. 246, 9 L.R.A. 711; Kremer v. City of Uhrichsville, 67 Ohio App. 61, 35 N.E. 2d 973; Ohio Stock Food Co. v. Gintling, 22 Ohio App. 82, 153 N.E. 341; Vantier v. Atlantic Refining Co., 231 Pa. 8, 79 A. 814; Gavigan v. Atlantic Refining Co., 186 Pa. 604, 40 A. 834; Rogers v. Philadelphia Traction Co., 182 Pa. *193473, 38 A. 399, 61 Am. S. R. 716; Rose v. Standard Oil Co. of New York, 56 R.I. 272, 185 A. 251, reargument denied, 56 R.I. 472, 188 A. 71; Braun v. Iannotti, 54 R.I. 469, 175 A. 656; Frost v. Berkeley Phosphate Co., 42 S.C. 402, 20 S.E. 280, 46 Am. S. R. 736, 26 L.R.A. 693; Cuffman v. City of Nashville, 26 Tenn. App. 367, 175 S. W. 2d 331; Soap Corp. of America v. Balis (Tex. Civ. App.), 223 S.W. 2d 957; Columbian Carbon Co. v. Tholen (Tex. Civ. App.), 199 S.W. 2d 825; G. L. Webster Co. v. Steelman, 172 Va. 342, 1 S.E. 2d 305; Terrell v. Chesapeake & O. R. Co., 110 Va. 340, 66 S.E. 55, 32 L.R.A. (N.S.) 371; Bartel v. Ridgefield Lumber Co., 131 Wash. 183, 229 P. 306, 37 A.L.R. 683; Flanagan v. Gregory & Poole, Inc., .... . W. Va. ...., 67 S.E. 2d 865; Wilson v. Phoenix Powder Mfg. Co., 40 W. Va. 413, 21 S.E. 1035, 52 Am. S. R. 890; Dolata v. Berthelet Fuel & Supply Co., 254 Wis. 194, 36 N.W. 2d 97; Brown v. Milwaukee Terminal Ry. Co., 199 Wis. 575, 227 N.W. 385, reversing 199 Wis. 575, 224 N.W. 748.

Tbe laiv of private nuisance rests on tbe concept embodied in tbe ancient legal maxim Sic utere tuo ut alienum non laedas, meaning, in essence, tbat every person should so use bis own property as not to injure that of another. Barger v. Barringer, 151 N.C. 433, 66 S.E. 439, 25 L.R.A. (N.S.) 831, 16 Ann. Cas. 472; Tennessee Coal, Iron & R. Co. v. Hartline, 244 Ala. 116, 11 So. 2d 833; Beam v. Birmingham Slag Co., supra; G. L. Webster Co. v. Steelman, supra. As a consequence, a private'll nuisance exists in a legal sense when one makes an improper use of bis T own property and in that way injures tbe land or some incorporeal right j of one’s neighbor. King v. Ward, 207 N.C. 782, 178 S.E. 577; Holton v. Oil Co., 201 N.C. 744, 161 S.E. 391; 39 Am. Jur., Nuisances, section 3.

Much confusion exists in respect to tbe legal basis of liability in tbe law of private nuisance because of tbe deplorable tendency of the courts to call everything a nuisance, and let it go at tbat. Moran v. Pittsburgh-Des Moines Steel Co., supra; Taylor v. City of Cincinnati, 143 Ohio St. 426, 55 N.E. 2d 724. The confusion on this score vanishes in large part, however, when proper heed is paid to tbe sound propositions tbat private nuisance is a field of tort liability rather than a single type of tortious conduct; tbat tbe feature which gives unity to this field of tort liability is tbe interest invaded, namely, the interest in tbe use and enjoyment of land; tbat any substantial non-trespassory invasion of another’s interest in the private use and enjoyment of land by any type of liability forming conduct is a private nuisance; that the invasion which subjects a person to liability for private nuisance may be either intentional or unintentional; that a person is subject to liability for an intentional invasion when his conduct is unreasonable under the circumstances of the particular case; and that a person is subject to liability for an unintentional invasion when his conduct is negligent, reckless or ultrahazardous. See *194Scope and Introduction Note to Chapter 40, American Law Institute’s Restatement of the Law of Torts; Moran v. Pittsburgh-Des Moines Steel Co., supra; Soukoup v. Republic Steel Corp., 78 Ohio App. 87, 66 N.E. 2d 334; 66 C.J.S., Nuisances, section 8.

An invasion of another’s interest in the use and enjoyment of land is intentional in the law of private nuisance when the person whose conduct is in question as a basis for liability acts for the purpose of causing it, or knows that it is resulting from his conduct, or knows that it is substantially certain to result from his conduct. Restatement of the Law of Torts, section 825; E. Rauh & Sons Fertilizer Co. v. Shreffler, supra; Harman v. City of Buffalo, 214 N.Y. 316, 108 N.E. 451; Bohan v. Port Jervis Gas-Light Co., supra; Columbian Carbon Co. v. Tholen, supra. A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury. Judson v. Los Angeles Suburban Gas Co., 157 Cal. 168, 106 P. 581, 26 L.R.A. (N.S.) 183, 21 Ann. Cas. 1247; Blackman v. Iowa Union Electric Co., 234 Iowa 859, 14 N.W. 2d 721; Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 39 A. 270, 63 Am. S. R. 533; Robinson v. Westman, 224 Minn. 105, 29 N.W. 2d 1; Bollinger v. Mungle (Mo. App.), 175 S.W. 2d 912; Powell v. Brookfield Pressed Brick & Tile Mfg. Co., 104 Mo. App. 713, 78 S.W. 646; Wallace & Tiernan Co. v. U. S. Cutlery Co., 97 N. J. Eq. 408, 128 A. 872, decree affirmed, 98 N. J. Eq. 699, 130 A. 920; Monaco v. Comfort Bus Line, 134 N.J.L. 553, 49 A. 2d 146; Jutte v. Hughes, 67 N.Y. 267; Whaley v. Citizens Nat. Bank, 28 Pa. Super. 531; Western Texas Compress Co. v. Williams (Tex. Civ. App.), 124 S.W. 493; Flanagan v. Gregory & Poole, Inc., supra; 39 Am. Jur., Nuisances, section 24. One of America’s greatest jurists, the late Benjamin N. Cordozo, made this illuminating observation on this aspect of the law: “Nuisance as a con-I cept of the law has more meanings than one. The primary meaning does not involve the element of negligence as one of its essential factors. One acts sometimes at one’s peril. In such circumstances, the duty to desist is absolute whenever conduct, if persisted in, brings damage to another. Illustrations are abundant. One Avho emits noxious fumes or gases day by day in the running of his factory may be liable to his neighbor though he has taken all available precautions. He is not to do such things at all, whether he is negligent or careful.” McFarlane v. City of Niagara Falls, 247 N.Y. 340, 160 N.E. 391.

When the evidence is interpreted in the light most favorable to the plaintiffs, it suffices to support a finding that in operating the oil refinery the High Penn Oil Company intentionally and unreasonably caused noxious gases and odors to escape onto the nine acres of the plaintiffs to such a degree as to impair in a substantial manner the plaintiffs’ use and *195enjoyment of tbeir land. This being so, tbe evidence is ample to establish tbe existence of an actionable private nuisance, entitling tbe plaintiffs to recover temporary damages from tbe High Penn Oil Company. Webb v. Chemical Co., 170 N.C. 662, 87 S.E. 633; Duffy v. Meadows, 131 N.C. 31, 42 S.E. 460; Hyatt v. Myers, 71 N.C. 271; Bohan v. Port Jervis Gas-Light Co., supra; 39 Am. Jur., Nuisances, sections 58, 59; 66 C.J.S., Nuisances, sections 23, 60. When tbe evidence is taken in tbe light most favorable to tbe plaintiffs, it also suffices to warrant tbe additional inferences that tbe High Penn Oil Company intends to operate tbe oil refinery in tbe future in tbe same manner as in tbe past; that if it is permitted to carry this intent into effect, tbe High Penn Oil Company will hereafter cast noxious gases and odors onto tbe nine acres of tbe plaintiffs with such recurring frequency and in such annoying density as to inflict irreparable injury upon tbe plaintiffs in tbe use and enjoyment of tbeir borne and tbeir other adjacent properties; and that tbe issuance of an appropriate injunction is necessary to protect tbe plaintiffs against tbe threatened irreparable injury. This being true, tbe evidence is ample to establish tbe existence of an abatable private nuisance, entitling tbe plaintiffs to such mandatory or prohibitory injunctive relief as may be required to prevent'the High Penn Oil Company from continuing tbe nuisance. Barrier v. Troutman, 231 N.C. 47, 55 S.E. 2d 933; Pruitt v. Bethell, 174 N.C. 454, 93 S.E. 945; Hyatt v. Myers, supra; Hedrick v. Tubbs, 120 Ind. App. 326, 92 N.E. 2d 561; Kepler v. Industrial Disposal Co., 84 Ohio App. 80, 85 N.E. 2d 308; 39 Am. Jur., Nuisances, sections 156, 158, 172; 66 C.J.S., Nuisances, sections 115, 116, 134.

Tbe contention of tbe High Penn Oil Company that tbe complaint states a cause of action based solely on negligence is untenable. To be sure, tbe plaintiffs assert that tbe defendants were “negligent and careless” in specified particulars in constructing and operating tbe oil refinery. When tbe complaint is construed as a whole, however, it alleges facts which show a private nuisance resulting from an intentional and unreasonable invasion of tbe plaintiffs’ interest in tbe use and enjoyment of tbeir land. Bohan v. Port Jervis Gas-Light Co., supra; Braun v. Iannotti, supra; Flanagan v. Gregory & Poole, Inc., supra; 39 Am. Jur., Nuisances, section 142.

For tbe reasons given, tbe evidence is sufficient to withstand tbe motion of tbe High Penn Oil Company for a compulsory nonsuit.

Tbe reverse is true with respect to tbe motion of tbe Southern Oil Transportation Company. Tbe complaint charges tbe Southern Oil Transportation Company with responsibility for tbe nuisance alleged solely upon tbe theory that it actively participated in tbe construction and operation of tbe oil refinery. According to all tbe evidence, tbe Southern Oil Transportation Company bad no part in these undertakings. *196The evidence for the plaintiffs indicates that the Southern Oil Transportation Company was the absolute owner of the land on which the oil refinery stands until 10 September, 1952; that it possessed the consequent power to control the use of the land until that date; and that it knowingly permitted the High Penn Oil Company to operate the oil refinery upon the land owned and controlled by it down to 10 September, 1952, in such a manner as to constitute a nuisance despite notice and protest from the plaintiffs. The complaint does not invoke this evidence as a foundation of liability on the part of the Southern Oil Transportation Company for the nuisance alleged. McManus v. Railroad, 150 N.C. 655, 64 S.E. 766; Maynard v. Carey Const. Co., 302 Mass. 530, 19 N.E. 2d 304; 66 C.J.S., Nuisances, section 88. These things being true, there is a fatal variance between the pleading and the proof of the plaintiffs with respect to the Southern Oil Transportation Company, and the action ought to have been involuntarily nonsuited as to the Southern Oil Transportation Company in the court below under the fundamental procedural rule that a recovery cannot be had in a civil action on the basis of matters alleged, but not proved, or proved but not alleged. Wilkins v. Finance Co., 237 N.C. 396, 75 S.E. 2d 118; 66 C.J.S., Nuisances, sections 126, 147.

'While the evidence is ample to overcome its motion for a compulsory nonsuit, the High Penn Oil Company is entitled to have the cause tried anew because of prejudicial error in the instruction covered by its sixteenth assignment of error. This portion of the charge is thus phrased: “The court charges you . . . that before you can find that the defendants operated and maintained their plant and premises as a nuisance, you must find from the evidence and by the greater weight thereof that their operation injuriously affected the health, safety, morals, good order, or general welfare of the community, or infringed upon the property rights of the individual complainants. If you so find from the evidence and by its greater weight, you will answer the second issue ‘Yes.’ If you fail to so find, you will answer it ‘No.’ ”

The core of this instruction is lifted bodily out of its context in Kass v. Hedgpeth, 226 N.C. 405, 38 S.E. 2d 164, and is without relevancy to the pleadings, the testimony, and the issues in the instant action. What has already been said respecting the basis of liability in the law of private nuisance makes it obvious that the instruction under scrutiny conveyed to the jury a rather vague and a quite incorrect notion as to the essential elements of a private nuisance. The instruction is not robbed of its prejudicial character by the fact that the court may have given the jury correct instructions on this phase of the case in other parts of the charge. “It is elementary that where there are conflicting instructions with respect to a material matter- — one correct and the other not — a new trial must be granted, as the jurors are not supposed to know which one is *197correct, and we cannot say they did not follow the erroneous instruction.” Hubbard v. R. R., 203 N.C. 675, 166 S.E. 802.

New trial as to the High Penn Oil Company.

Reversed as to the Southern Oil Transportation Company.

OPINION

SHARPNACK, Judge.

Smith & Wesson, et al. (“Manufacturers”),1 bring this interlocutory appeal from the trial court’s denial of their motion to dismiss or, in the alternative, motion for judgment on the pleadings in the action brought by the City of Gary, Indiana (“City”). The Manufacturers raise two issues, which we restate as:

I. Whether the Protection of Lawful Commerce in Arms Act (“PLCAA”), 15 U.S.C. §§ 7901-7903, bars the City’s nuisance claims; and

II. Whether the PLCAA violates the Due Process Clause, separation of powers principles, and the Tenth Amendment.

Because we conclude that the PLCAA does not bar the City’s claims, we need not address the constitutional issues. We affirm.2

The relevant facts as stated by the Indiana Supreme Court in the first appeal in this case follow:

In September 1999, the City filed this action in state court against a number of participants at various stages in the manufacture and distribution of handguns. After an amended complaint dis*425posed of some defendants, the remaining named defendants are eleven manufacturers, one wholesaler, and five retailers. The City has also named multiple John Doe defendants in all three categories.

The complaint alleges that manufacturers of handguns typically sell to “distributors” who resell at wholesale to “dealers” who in turn sell at retail to the general public. Some categories of persons are prohibited by law from purchasing guns, and all dealer-defendants are alleged to have knowingly sold to illegal buyers through intermediaries in “straw purchases”. Specifically, three dealers, Cash America, Ameri-Pawn, and Blythe’s Sporting Goods, are alleged to have engaged in straw purchases that were the subject of a “sting” operation conducted by the Gary police department against suspected violators of the gun distribution laws. The police employed a variety of techniques in these operations. In general, an undercover officer first told a dealer’s salesperson that he could not lawfully purchase a gun, for example, because he had no license or had been convicted of a felony, and a second undercover officer then made a purchase with the clerk’s knowledge that the gun would be given to the first. Some other practices of dealers are also alleged to generate illegal purchases. These include failure by some dealers to obtain the required information for background checks required by federal law, sales of a number of guns to the same person, and intentional “diversion” of guns by some dealers to illegal purchasers.

The City alleges that the manufacturers know of these illegal retail sales of handguns, and know that a small percentage of dealers, including the dealer-defendants here, account for a large portion of illegally obtained handguns. The City alleges the manufacturers and distributors have the ability to change the distribution system to prevent these unlawful sales but have intentionally failed to do so.

The City alleges that these and other practices generate substantial additional cost to the public in general and the City in particular. Possession of unlawfully purchased guns is claimed to contribute to crime that requires expenditure of public resources in addition to the obvious harm to the victims. The complaint alleges that seventy murders with handguns took place in Gary in 1997, and another fifty-four in 1998. From 1997 through 2000, 2,136 handguns used in crimes were recovered. Of these, 764 were sold through dealers who are defendants in this suit. The City also asserts that harm is suffered by the City at the time of the sale of an illegal handgun because these unlawful sales generate additional requirements to investigate and prosecute the violations of law.

In addition to challenging the distribution practice of the defendants, the City also alleges negligent design of the handguns by the manufacturers that contributes to these injuries. Finally, the City alleges that the manufacturers engage in deceptive advertising of their product by asserting that a gun in the home offers additional safety for the occupants when in fact the contrary is the case.

Count I of the complaint alleges that these facts support a claim for public nuisance. Count II asserts a claim for negligence in distribution of guns and Count III presents a claim for their negligent design. All Counts request compensatory and punitive damages and injunctive relief. The trial court granted a motion by all defendants to dismiss both counts for failure to state a claim. *426The City appealed and the Court of Appeals affirmed the dismissal of the negligence count as to all defendants. Dismissal of the claim for public nuisance was affirmed as to the manufacturers and distributors, but the Court of Appeals concluded that the complaint stated a claim for public nuisance as to the dealers to the extent it alleged that they engaged in “straw purchases.” City of Gary v. Smith & Wesson Corp., 776 N.E.2d 368, 389 (Ind.Ct.App.2002).

City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1227-1229 (Ind.2003).

The Indiana Supreme Court granted transfer. Id. The court addressed the City’s public nuisance claim and the City’s allegations that the Manufacturers knowingly participated in a distribution system that unnecessarily and sometimes even intentionally provided guns to criminals, juveniles, and others who may not lawfully purchase them. Id. at 1231. The court held that unlawful conduct was not a requirement of a public nuisance claim and that “generally, gun regulatory laws leave room for the defendants to be in compliance with those regulations while still acting unreasonably and creating a public nuisance.” Id. at 1232-1233, 1235. The court referred to “Indiana Code sections 35-47-2.5-1 through 15, dealing with the sale of handguns” and held that “[s]ome of the activity alleged in the complaint presumably violates those regulatory statutes, either directly in the case of the dealers or as knowing accomplices in the case of the other defendants.” Id. at 1234-1235. The court concluded its analysis of the City’s public nuisance claim as follows:

In sum, the City alleges that all defendants intentionally and willingly supply the demand for illegal purchase of handguns. The City alleges that the dealer-defendants have participated in straw purchases and other unlawful retail transactions, and that manufacturers and distributors have intentionally ignored these unlawful transactions. The result is a large number of handguns in the hands of persons who present a substantial danger to public safety in the City of Gary. I.C. §§ 35-47-2.5-14, -15. Taken as true, these allegations are sufficient to allege an unreasonable chain of distribution of handguns sufficient to give rise to a public nuisance generated by all defendants.

Id. at 1241. As a result, the court reversed the dismissal of the City’s count of public nuisance against the Manufacturers. Id. at 1249. The court also held that the City could proceed on its negligence and negligent design claims. Id.

In 2005, the United States Congress passed the PLCAA, and it was signed into law. See 15 U.S.C. §§ 7901-7903. The findings and purposes of the PLCAA follow:

(a) Findings

Congress finds the following:

(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

(3) Lawsuits have been commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.

(4) The manufacture, importation, possession, sale, and use of firearms and *427ammunition in the United States are heavily regulated by Federal, State, and local laws. Such Federal laws include the Gun Control Act of 1968, the National Firearms Act, and the Arms Export Control Act.

(5) Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.

(6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation’s laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.

(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.

(8)The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.

(b) Purposes

The purposes of this chapter are as follows:

(1) To prohibit causes of action against manufacturers, distributors, dealers, and importers of firearms or ammunition products, and their trade associations, for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products by others when the product functioned as designed and intended.

(2) To preserve a citizen’s access to a supply of firearms and ammunition for all lawful purposes, including hunting, self-defense, collecting, and competitive or recreational shooting.

(3) To guarantee a citizen’s rights, privileges, and immunities, as applied to the States, under the Fourteenth *428Amendment to the United States Constitution, pursuant to section 5 of that Amendment.

(4) To prevent the use of such lawsuits to impose unreasonable burdens on interstate and foreign commerce.

(5) To protect the right, under the First Amendment to the Constitution, of manufacturers, distributors, dealers, and importers of firearms or ammunition products, and trade associations, to speak freely, to assemble peaceably, and to petition the Government for a redress of their grievances.

(6) To preserve and protect the Separation of Powers doctrine and important principles of federalism, State sovereignty and comity between sister States.

(7) To exercise congressional power under article IV, section 1 (the Full Faith and Credit Clause) of the United States Constitution.

15 U.S.C. § 7901.

The PLCAA provided that a “qualified civil liability action may not be brought in any Federal or State court” and a “qualified civil liability action that is pending on October 26, 2005, shall be immediately dismissed by the court in which the action was brought or is currently pending.” 15 U.S.C. § 7902. A “qualified civil liability action” was defined as:

a civil action or proceeding or an administrative proceeding brought by any person against a manufacturer or seller of a qualified product,[3] or a trade association, for damages, punitive damages, in-junctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting from the criminal or unlawful misuse of a qualified product by the person or a third party, but shall not include'—

-J- ⅜- *]» ⅜

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including—

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of Title 18;

⅜ ⅜ ⅜ * * *

15 U.S.C. § 7903(5).

Shortly after the enactment of the PLCAA, the Manufacturers moved to dismiss the City’s complaint or in the alter*429native for judgment on the pleadings.4 The trial court held a hearing on the Manufacturers’ motion to dismiss.5 The United States of America intervened for the limited purpose of defending the constitutionality of the PLCAA and filed a memorandum. The trial court denied the Manufacturers’ motion to dismiss and motion for judgment on the pleadings because it found the PLCAA to be unconstitutional. The trial court did not specifically address the applicability of the PLCAA but implied that the PLCAA was applicable to the City’s claims.

The dispositive issue is whether the PLCAA bars the City’s public nuisance claim. As the Indiana Supreme Court held in the prior appeal of this case:

Indiana nuisance law is grounded in a statute enacted in 1881, and now appearing at Indiana Code section 32-30-6-6. It reads:

Whatever is:

(1) injurious to health;

(2) indecent;

(3) offensive to the senses; or

(4) an obstruction to the free use of property;

so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action.

City of Gary, 801 N.E.2d at 1229.

When the grant or denial of a motion to dismiss turns only on the legal sufficiency of the claims, a determination of fact is not required. Stulajter v. Harrah’s Ind. Corp., 808 N.E.2d 746, 748 (Ind.Ct.App.2004). Where the trial court’s judgment depends on the interpretation of a statute, the review of that judgment is a matter of law. Id. The judgment here turns on the interpretation of a statute. Therefore, we apply a de novo standard to review the Manufacturers’ appeal from the trial court’s denial of their motion to dismiss. Id.

The City argues that the exception in 15 U.S.C. § 7903(5)(A)(iii) of the PLCAA applies to its public nuisance claim. This exception provides that a qualified civil liability action shall not include:

an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including—

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable cause to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of Title 18[.]

This exception has been referred to as the “predicate exception” because its operation *430requires an underlying or predicate statutory violation. See City of New York v. Beretta U.S.A. Corp., 401 F.Supp.2d 244, 260-261 (E.D.N.Y.2005) (referring to 15 U.S.C. § 7903(5)(A)(iii) as the predicate exception).

The City argues that Indiana’s public nuisance statute has been applied to the sale or marketing of firearms because the Indiana Supreme Court applied the public nuisance statute to the sales practices of the Manufacturers in this case. The Manufacturers argue that “applicable” should be construed narrowly and that the Indiana nuisance statute is not a statute “applicable to the sale or marketing of the product.”6 Thus, this case turns on the interpretation of the word “applicable” in the predicate exception.

Because this case involves the interpretation of a federal law, we will review the United States Supreme Court’s statutory interpretation law. The Court has held that “[t]he preeminent canon of statutory interpretation requires us to ‘presume that [the] legislature says in a statute what it means and means in a statute what it says there.’ ” BedRoc Ltd., LLC v. U.S., 541 U.S. 176, 183, 124 S.Ct. 1587, 1593, 158 L.Ed.2d 338 (2004) (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992)). When the statutory language is plain, the sole function of the courts, at least where the disposition required by the text is not absurd, is to enforce it according to its terms. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, — U.S. -, -, 126 S.Ct. 2455, 2459, 165 L.Ed.2d 526 (2006). The first step in interpreting a statute is to determine whether the language has a plain and unambiguous meaning with regard to the particular dispute in the case. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. at 846. In the absence of a definition of a word in a statute, we construe a statutory term in accordance with its ordinary or natural meaning. F.D.I.C. v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 1001, 127 L.Ed.2d 308 (1994).

Based on the Supreme Court’s statutory interpretation canons, we first determine the particular dispute at issue in this case. We then determine whether the statute is ambiguous with regard to the particular dispute. An examination of the City’s complaint and the Indiana Supreme Court’s opinion indicates that the City alleged violations of Indiana statutes that are specifically applicable to the sale or marketing of firearms. The City’s com*431plaint included the allegation that the “Defendants’ conduct violates and undermines the laws, regulations, and public policies of the State of Indiana and the federal government, which inter alia, restrict who may purchase, own, or carry handguns and other firearms, and require specific permitting procedures limiting access to deadly weapons.” Appellant’s Appendix at 60. The Indiana Supreme Court referred to “Indiana Code sections 35-47-2.5-1 through 15, dealing with the sale of handguns” and held that “[s]ome of the activity alleged in the complaint presumably violates those regulatory statutes, either directly in the case of the dealers or as knowing accomplices in the case of the other defendants.” City of Gary, 801 N.E.2d at 1234-1235. In summarizing the analysis of the City’s public nuisance claim, the court held:

In sum, the City alleges that all defendants intentionally and willingly supply the demand for illegal purchase of handguns. The City alleges that the dealer-defendants have participated in straw purchases and other unlawful retail transactions, and that manufacturers and distributors have intentionally ignored these unlawful transactions. The result is a large number of handguns in the hands of persons who present a substantial danger to public safety in the City of Gary. I.C. §§ 35-47-2.5-14, -15. Taken as true, these allegations are sufficient to allege an unreasonable chain of distribution of handguns sufficient to give rise to a public nuisance generated by all defendants.

Id. at 1241 (emphasis added). Accordingly, the issue is whether Indiana’s public nuisance statute, as applied by the Indiana Supreme Court to the alleged conduct of the Manufacturers, is a statute applicable to the sale or marketing of firearms for purposes of the PLCAA. With the particular dispute in mind, we address whether the predicate exception is ambiguous by examining the language of the predicate exception, the context of the predicate exception, and the broader context of the predicate exception within the PLCAA.

We begin by examining the language of the predicate exception itself. The predicate exception provides that a qualified civil liability action shall not include “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product....” 15 U.S.C. § 7903(5)(A)(iii). The word “applicable” is not defined by the statute but is generally defined as “[e]apa-ble of being applied.” American Heritage Dictionary of the English Language 63 (1981). We cannot say that the word “applicable” in the predicate exception is ambiguous. On the face of the language, Indiana’s public nuisance statute appears applicable to the sale or marketing of firearms. See City of New York, 401 F.Supp.2d at 261-264 (addressing the PLCAA and holding that the word “applicable” means “capable of being applied”).

The Manufacturers argue that “[r]ead-ing the phrase ‘statute applicable to the sale or marketing of the [firearm]’ in the context of the remaining language of the predicate exception, it is clear that the phrase is limited to statutes regulating the manner in which a firearm is sold or marketed — i.e., statutes specifying when, where, how, and to whom a firearm may be sold or marketed.” Manufacturers’ Brief at 30. The Manufacturers argue that Indiana’s public nuisance statute bears “no resemblance to the firearm-specific regulatory statutes set forth in subsections (I) and (II) of § 7903(A)(5)(iii)” because they say nothing about firearms or sales or marketing. Id. at 32. The predicate exception provides that a qualified civil liability action shall not include: *432an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought, including—

(I) any case in which the manufacturer or seller knowingly made any false entry in, or failed to make appropriate entry in, any record required to be kept under Federal or State law with respect to the qualified product, or aided, abetted, or conspired with any person in making any false or fictitious oral or written statement with respect to any fact material to the lawfulness of the sale or other disposition of a qualified product; or

(II) any case in which the manufacturer or seller aided, abetted, or conspired with any other person to sell or otherwise dispose of a qualified product, knowing, or having reasonable causé to believe, that the actual buyer of the qualified product was prohibited from possessing or receiving a firearm or ammunition under subsection (g) or (n) of section 922 of Title 18[.]

15 U.S.C. § 7903(5)(A)(iii).

The City argues that “[b]oth subparts [in the predicate exception] state that gun manufacturers’ conduct falls within the predicate exception if they aid, abet, or conspire with anyone undertaking certain conduct,” and “[njeither the aiding-and-abetting statute[, 18 U.S.C. § 2(a),] nor the conspiracy statute[, 18 U.S.C. § 371] ... [say] anything about guns.” Appellee’s Brief at 23. The City also argues that if the subparts of the predicate exception expressly include violations of general laws, the subparts cannot be read to bar this case. The Manufacturers’ counter that “[a]iding-and-abetting and conspiracy liability never occurs in a vacuum, but only as a function of aiding-and-abetting or conspiring in some direct violation of the law.” Manufacturers’ Reply Brief at 20. The Manufacturers also argue that “[u]nder § 7903(5)(A)(iii), aiding and abetting and conspiracy liability only arises based upon an underlying violation of a statute directly applicable to the sale or marketing of the firearm.” Id.

Even assuming that the PLCAA requires an underlying violation of a statute facially applicable to the sale or marketing of a firearm, we cannot say that the City did not make such allegations. We note that the Indiana Supreme Court held that unlawful conduct was not a requirement of a public nuisance claim and that “generally, gun regulatory laws leave room for the defendants to be in compliance with those regulations while still acting unreasonably and creating a public nuisance.” City of Gary, 801 N.E.2d at 1232-1233, 1235. However, the Indiana Supreme Court referred to “Indiana Code sections 35^7-2.5-1 through 15, dealing with the sale of handguns” and held that “[s]ome of the activity alleged in the complaint presumably violates those regulatory statutes, either directly in the case of the dealers or as knowing accomplices in the case of the other defendants.” Id. at 1234-1235. The court also noted that the City alleged that the Manufacturers “are on notice of the concentration of illegal handgun sales in a small percentage of dealers, and the ability to control distribution through these dealers, but continue to facilitate unlawful sales by failing to curtail supply.” Id. at 1235 (emphasis added). Thus, even assuming that the PLCAA requires an underlying violation of a statute directly applicable to the sale or marketing of a firearm, the City alleged such viola*433tions in their complaint.7 We conclude that the specific context does not create an ambiguous meaning of the predicate exception with regard to the particular dispute in this case.

The Manufacturers argue that the broader context of the PLCAA supports the conclusion that the City’s claims do not fit within the predicate exception. The Manufacturers argue that the City’s complaint “is precisely the type of lawsuit Congress described in § 7901(a)(3),8 precisely the type of liability that Congress disapproved in § 7901(a)(5)[9] and § 7901(a)(6),[ 10] and precisely the type of lawsuit that Congress declared it was prohibiting in the first stated purpose of the PLCAA, § 7901(b)(1).”11 Manufacturers’ Brief at 34. The Manufacturers also point out that “[a]s its title suggests ... the [PLCAA] was designed to protect manufacturers and dealers engaged in ‘lawful commerce in arms’ from lawsuits seeking to hold them liable for the criminal misuse of their products by others.” Id. at 32 (footnote omitted). However, the City alleges that the Manufacturers engaged in unlawful conduct. Based on the City’s allegations, we cannot say that the Manufacturers are engaged in the “lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products,” 15 U.S.C. § 7901(a)(5) (emphasis added), or that the harm “is solely caused by others.” 15 U.S.C. § 7901(a)(6).

We also note that Congress made the following findings in the PLCAA:

*434(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.

(8) The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.

15 U.S.C. § 7901(a)(7) and (8). Indiana’s public nuisance statute was a legislative enactment, which the Indiana Supreme Court interpreted as applying to the City’s claim. Thus, we conclude that the City’s claim is not an attempt to expand the common law and that it is not an attempt to circumvent the legislative branch of government. See City of New York, 401 F.Supp.2d at 266 (holding that the law is not only the language that the legislature adopts, but what the courts construe to be its meaning in individual cases).

Based on the language of the predicate exception, the specific context of the predicate exception, and the broader context of the PLCAA, we conclude that the predicate exception is unambiguous.12 Because the City’s complaint and the Indiana Supreme Court’s opinion indicate that the City alleged that the Manufacturers “violated a State or Federal statute applicable to the sale or marketing of the product,” we conclude that the City’s action falls under the predicate exception and is not barred by the PLCAA.13 Because we con-*435elude that the predicate exception applies and that the PLCAA does not bar the City’s claims, we need not address the remaining issues.

For the foregoing reasons, we affirm the trial court’s denial of the Manufacturers’ motion to dismiss or, in the alternative, motion for judgment on the pleadings in the action brought by the City.

Affirmed.

RILEY, J. and FRIEDLANDER, J. concur.