Torts.  A doctrine providing that courts can impose liability against a governmental entity (e.g., a state or municipality) for an individual plaintiff’s injury when the government entity owed a duty of care to that plaintiff even if it may not have owed a duty to the general public. The special-duty doctrine provides an exception to the public-duty doctrine in cases in which the legislature has not granted immunity to the governmental entity.

See Public-Duty Doctrine.

Reference Desk

Harinek v. 161 N. Clark St. Ltd. Pshp., 181 Ill.2d 335 (1998)

The “special duty” doctrine which plaintiff seeks to apply in the instant case originated as an exception to the common law “public duty” rule. According to the public duty rule, a municipality could not be held liable for its failure to provide adequate governmental services, such as police and fire protection. Huey v. Town of Cicero,41 Ill.2d 361, 363, 243 N.E.2d 214 (1968). The rationale for this rule was that the duty of a municipality to provide governmental services was owed to the public at large and therefore took precedence over any duty owed to a particular plaintiff. See Calloway v. Kinkelaar,168 Ill.2d 312, 334, 213 Ill.Dec. 675, 659 N.E.2d 1322 (1995) (Freeman, J., specially concurring); Leone v. City of Chicago,156 Ill.2d 33, 47, 188 Ill.Dec. 755, 619 N.E.2d 119 (1993) (Bilandic, J., dissenting); Gebhardt v. Village of LaGrange Park, 354 Ill. 234, 237-38, 188 N.E. 372 (1933).

Despite abolishing common law sovereign immunity in Molitor, this court has nevertheless retained the public duty rule. As the court explained in Huey, the public duty rule exists “[i]ndependent of * * * common-law concepts of sovereign immunity.” Huey, 41 Ill.2d at 363, 243 N.E.2d 214. Therefore, although, absent a statutory immunity, governmental units are now liable in tort on the same basis as private tortfeasors, the public duty rule nevertheless prevents such units from being held liable for their failure to provide adequate governmental services.

In 1966, the appellate court first recognized an exception to the public duty rule now known as the “special duty” doctrine. In Gardner v. Village of Chicago Ridge,71 Ill.App.2d 373, 219 N.E.2d 147 (1966), the court held that, notwithstanding the public duty rule, police officers employed by a municipality could be held liable for their failure to protect a plaintiff from injury by others if the facts of the case showed that the officers undertook to exercise a particular duty of care or custody over the plaintiff. Gardner, 71 Ill.App.2d at 378, 219 N.E.2d 147. Subsequently, in 1968, this court acknowledged that an exception to the public duty rule exists where “the municipality was under a special duty to a particular individual.” Huey, 41 Ill.2d at 363, 243 N.E.2d 214.

Plaintiff in the instant case urges us to apply the special duty doctrine to override the immunity granted the City by the Tort Immunity Act. As this court emphasized in Huey, however, the basis for the public duty rule is “[i]ndependent of statutory * * * concepts of sovereign immunity.” Huey, 41 Ill.2d at 363, 243 N.E.2d 214. As we have more recently explained, “the existence of a duty and the existence of an immunity are separate issues.” Barnett, 171 Ill.2d at 388, 216 Ill.Dec. 550, 665 N.E.2d 808. Therefore, the question of whether the City owed plaintiff a duty under the special duty doctrine has no bearing on the separate question of whether the Act immunizes the City from liability for plaintiff’s injuries.

Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn. 1979)

By abolishing the distinction between public duty and special duty, this court would depart from vast precedent and traditional common-law principles of negligence. The distinction is not merely a relic of the verbiage used by courts in days of sovereign immunity. Instead, it is a corollary to a basic tenet of negligence law: general duties owed to the entire public rather than a specific class of persons cannot form the basis of a negligence action.[3]

To demonstrate that the distinction between public duty and special duty is not a doctrine unique to governmental torts, we start our analysis of the duty to enforce the law by placing municipalities on the same footing as any other person.

The common-law rule, of course, is that generally there is no duty to prevent the misconduct of a third person. As stated in Restatement, Torts 2d, § 315:

“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
“(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
“(b) a special relation exists between the actor and the other which gives to the other a right to protection.”

At the outset then, there is no common-law duty imposed on any individual or any municipality to inspect and correct the fire code violations of a third person unless there is a “special relation” between the parties.

If there were no additional considerations in this case, it could be concluded at this point that the defendant municipality had no duty, public or special, to inspect and correct fire code violations. There are additional considerations, however. The municipality’s own ordinances require that it undertake inspections for fire code violations.[4] However, such inspections are required for the purpose of protecting the interests of the municipality as a whole against the fire hazards of the person inspected. The inspections are not undertaken for the purpose of assuring either the person inspected or third persons that the building is free from all fire hazards, just as the state’s issuance of a driver’s license is no assurance that the licensed person will be a safe driver. Because the ordinances are designed to protect the municipality’s own interests, rather than the interests of a particular class of individuals, only a “public” duty to inspect is created. It is a basic principle of negligence law that public duties created by statute cannot be the basis of a negligence action even against private tortfeasors. Restatement, Torts 2d, § 288, states in part:

“The court will not adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively
“(a) to protect the interests of the state or any subdivision of it as such, or
“(b) to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public, or
“(c) to impose upon the actor the performance of a service which the state or any subdivision of it undertakes to give the public * * *.”

The comments to this section are also instructive that the distinction between public duty and special duty applies to alleged private tortfeasors as well as alleged public tortfeasors.[5] This distinction, therefore, is neither a fiction, nor artificial, nor a relic of the days of sovereign immunity. It is a well-established principle of negligence law applicable to tort actions against individuals as well as governments.

We hold, therefore, that a municipality does not owe any individual a duty of care merely by the fact that it enacts a general ordinance requiring fire code inspections or by the fact that it undertakes an inspection for fire code violations. A duty of care arises only when there are additional indicia that the municipality has undertaken the responsibility of not only protecting itself, but also undertaken the responsibility of protecting a particular class of persons from the risks associated with fire code violations. This is the rule set forth in Hoffert. This rule, or a similar rule, is recognized by all but two courts that have considered the issue.[6] It is also the rule in the context of other law enforcement activities.[7] Only two cases, Adams v. State, supra, and Coffey v. City of Milwaukee, supra, have abolished this time-honored distinction between public duty and special duty. We find these cases unpersuasive.

We refuse, therefore, to abolish the distinction between public duty and special duty. The concept of a special duty is not unique to government torts. “Special duty” is nothing more than convenient terminology, in contradistinction to “public duty,” for the ancient doctrine that once a duty to act for the protection of others is voluntarily assumed, due care must be exercised even though there was no duty to act in the first instance. Isler v. Burman, 305 Minn. 288, 232 N.W.2d 818 (1975). “Special duty,” therefore, could also effectively be termed “assumed” duty. It is somewhat unfortunate that the terms “public” duty and “special” duty have been used, inasmuch as they give the misleading impression that the distinction applies only to governmental tortfeasors. Perhaps “no duty” and “assumed” duty would be more appropriate.

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