Cracraft v. City of St. Louis Park , 1979 Minn. LEXIS 1497 ( 1979 )

TODD, Justice.

This is an appeal brought by the plaintiffs Jack Cracraft, individually, and as the guardian of his minor child, John Cracraft; and Leon Kasper, individually, and as the trustee for the heirs of Kenneth Kasper, against the defendant city of St. Louis Park. This suit involves the alleged negligent failure of a city inspector to discover a violation of the municipal fire ordinance at Benilde-St. Margaret’s High School, St. Louis Park, Minnesota. After argument by the parties, the trial judge granted summary judgment in favor of the city. Plaintiffs appeal from that judgment. We affirm.

On October 27, 1974, a 55-gallon drum of duplicating fluid, an extremely volatile and highly flammable liquid, ignited on the loading dock of Benilde High School. The dock is adjacent to the school’s football field and is commonly used by students as a means of ingress and egress.

As a result of the explosion, three youths received first, second, and third-degree burns over their entire bodies. Two of the boys died, including Kenneth Kasper. A third boy, plaintiff John Cracraft, received severe burns over 50 percent of his body.

The city fire inspector, Gerald Hines, inspected the entire premises on September 13, 1974. This inspection was conducted pursuant to a city ordinance. The presence of a drum of duplicating fluid on the dock would be a violation of the fire code. Mr. Hines testified, in deposition, that he did not see the drum at the time of his inspection. He stated that if it was there at the time of the examination, it would have been noticed and removed.

Plaintiffs contend that the city must conduct an inspection with due care, that the city’s inspection was negligently performed, and the negligence was a substantial causal factor of the injuries and damages. Defendant municipality, on the other hand, contends that it owed no duty of care for the purposes of a negligence action. Thus, the question in this case becomes: Under what conditions is a duty of care imposed on a municipality which seeks to enforce the law by inspecting for fire code violations? It is important to distinguish the issue presented by this case from confusingly similar issues. We are not concerned with the legal duties owed by municipalities as owners and operators of buildings, roadways, or other facilities.¹ Nor are we concerned with the duty of a municipality to comply with its own safety codes as we were in Lorshbough v. Township of Buzzle, 258 N.W.2d 96 (Minn.1977). These duties to comply with the law are analogous to those owed by private persons, and a breach of such duties can be the basis of a lawsuit against the municipality just as it can be the basis of a lawsuit against private tortfeasors. We are, instead, considering the municipality’s unique duty to enforce the law by taking steps to assure that third persons comply with the law.

To hold a municipality liable for negligently inspecting the conduct of third persons for fire code violations, plaintiffs must establish that the municipality has a common-law duty to provide a reasonable inspection. In 1972, this court decided Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972). In Hoffert, plaintiffs were guests at a motel that had been recently remodeled. The owners of the motel had submitted their proposal for improvements to the city of Owatonna. The city engineer and building inspector then examined the motel and issued a building permit. The building inspector also examined the premises during construction. Two weeks after the last inspection, a fire broke out in the motel and the plaintiffs alleged they were trapped on the second floor because of improper stairway enclosures constructed in violation of the building code.

This court affirmed the dismissal of the complaint against the city. Although recognizing that the Minnesota Legislature had abolished the doctrine of sovereign immunity as it applied to the political subdivision of the state,² we held (293 Minn. 222, 199 N.W.2d 159):

“ * * * [Tjhese statutory provisions [abolishing immunity] merely removed the defense of immunity. They did not create any new liability for a municipality. In order to recover against the city, appellants must show a breach of some duty owed them in their individual capacities and not merely a breach of some obligation owed the general public.

“The purpose of a building code is to protect the public.”

The court went on to state (293 Minn. 223, 199 N.W.2d 160):

“Building codes, the issuance of building permits, and building inspections are devices used by municipalities to make sure that construction within the corporate limits of the municipality meets the standards established. As such, they are designed to protect the public and are not meant to be an insurance policy by which the municipality guarantees that each building is built in compliance with the building codes and zoning codes. The charge for building permits is to offset expenses incurred by the city in promoting this public interest and is in no way an insurance premium which makes the city liable for each item of defective construction in the premises.”

Because the building code ordinances did not create a duty owed to plaintiffs as individuals, they could not recover for the alleged negligence of the city’s employees.

The Hoffert decision is controlling in this case. Recently, however, significant criticism has been launched against the distinction between a duty owed to the public in general (which cannot be the basis of a negligence action) and a duty owed to individual members of the public (which can be the basis of a negligence action). See, Adams v. State, 555 P.2d 235 (Alaska 1976); Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976). See, generally, Note, 13 Columbia J.L. & Soc.Prob. 303; Note, 23 Loyola L.Rev. 458. The distinction, say the critics, is a relic of sovereign immunity and should be discarded upon the abolition of sovereign immunity. Plaintiffs contend that the distinction should be discarded and Hoffert should be overruled.

We disagree. 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.

At what point, then, does the municipality assume to act for the protection of others as distinguished from acting merely for itself when it inspects the activities of third parties for fire code violations? There is no bright line. But, without intending to be exhaustive, there are at least four factors which should be considered. First, actual knowledge of the dangerous condition is a factor which tends to impose a duty of care on the municipality.⁸ Second, reasonable reliance by persons on the municipality’s representations and conduct tends to impose a duty of care.⁹ Of course, reliance on the inspection in general is not sufficient. Instead, the reasonable reliance must be based on specific actions or representations which cause the persons to forego other alternatives of protecting themselves. Third, a duty of care may be created by an ordinance or statute that sets forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole.¹⁰ Finally, the municipality must use due care to avoid increasing the risk of harm.¹¹

Applying these factors to this case; we find no evidence in the record indicating that a duty was assumed or a special duty was created. The inspector, without contradiction, stated that he had no actual knowledge of the 55-gallon drum on the loading dock. With regard to the factor of reliance, the inspection had resulted in the discovery of some problems and a letter was sent by the municipality to the school, listing several problems which had to be corrected immediately and several problems which had to be corrected as soon as possible. No reference was made to the 55-gal-lon drum of duplicating fluid. Any representations in this letter might be relied upon with regard to the enumerated problems, but under the facts of this case, no grounds for reasonable reliance exist with regard to hazards not set forth in the letter.

We have already indicated that the applicable codes, ordinances, or statutes have not been drawn with sufficient specificity to create an inspection duty in favor of a class of individuals rather than the public as a whole. Finally, the municipality did nothing to increase the risk. Even assuming the 55-gallon drum was on the dock at the time of the inspection, the risk of explosion prior to the inspection was the same as after the inspection. Because the record fails to show the creation of an assumed or special duty, summary judgment for defendants must be affirmed.

In conclusion, we refuse to impose a duty of care merely because an inspection is undertaken, for it would create a new tort. It would expand the concept of “assumed duty” beyond its common-law proportions. This court will not undertake such a radical change, for the change has no relation whatsoever to the abolition of sovereign immunity. We feel compelled to reiterate: The abolition of sovereign immunity created no new torts. And even if the harsh results of the doctrine of sovereign immunity could provide a reason for creating a new tort once the doctrine was abolished, such results are not present in this situation. Prior to abolishment of sovereign immunity, an injured party was left with no right of recovery when the state or municipality was the sole negligent actor, a result which clearly contradicted our constitutional mandate that every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive to his person or property. Minn.Const. art. 1, § 8. In this situation, there exist viable defendants who allegedly violated the fire codes and may be held responsible at law if their negligence caused injury to the plaintiffs. We are being asked to add another defendant; namely, the municipality involved. If such an expansion and change of the law is to occur, it is better that the legislature act in this field where extensive hearings can be conducted to consider the extent of the financial impact of such a basic change. It is quite apparent that we are unable to comprehend the ramifications of imposing a duty to enforce the law with reasonable care. It is of little help to assume that the municipalities will not often be liable or that their financial exposure is limited by statute. This assumption may be false, and in any event, municipalities will often be named as defendants in a host of litigation where they presently have no exposure. The cost of defense is a vital ingredient in procuring insurance or providing self-insurance for such litigation.

Manifestly, then, the creation of a new duty owed by municipalities and other governmental entities to enforce the law with reasonable care is a change which should be made by the legislature. We will not assent to such a change by the judiciary.

Affirmed.

1 . See, Ondarko v. Village of Hibbing, 256 Minn. 17, 96 N.W.2d 865 (1959) (duty of care when operating a gas service line); Diker v. City of St. Louis Park, 268 Minn. 461, 130 N.W.2d 113 (1964) (duty of care when operating a hockey rink).

2 . Minn.St. 466.02 provides: “Subject to the limitations of sections 466.01 to 466.15, every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function.”

3 . In his classic treatise, Thomas Cooley states (3 T. Cooley, Law of Torts, § 478, p. 366): “A duty may be general, and owing to everybody, or it may be particular, and owing to a single person only by reason of his peculiar position. Instances of the latter sort [include] * * * the duty of every person to so conduct his business as to avoid exposing others to injury. But a duty owing to everybody can never become the foundation of an action until some individual is placed in position which gives him particular occasion to insist upon its performance; it then becomes a duty to him personally.”

4 . The record indicates that the relevant portions of the ordinances read: “Section 5:1101. Establishment of Bureau of Fire Prevention. The Fire Prevention Code shall be enforced by the Bureau of Fire Prevention in the Fire Department of the City of St. Louis Park which is hereby established and which shall be operated under the supervision of the Chief of the Fire Department.”

“Section 1:404. Inspection and Elimination of Fire Hazards.

“A. Fire Prevention Duties of the Chief. The Chief of the Fire Department shall enforce all laws and ordinances covering the following:

“(a) Inspection of potential fire hazards.

“(b) Abatement of existing fire hazards.

“(c) Investigation of the cause, origin and circumstances of fires.

“(d) Control and use of explosives and flammables.

“C. Scope of Inspection Authorized. The inspection and examination authorized by this Ordinance shall be for the purpose of reporting and correcting the following fire hazards pertaining to buildings and their occupants:

$ ¡⅜ * * * *

“(h) Conditions endangering other property or occupants.

“(i) Any other fire hazards dangerous to life or property.

“D. Required Inspections. It shall be the duty of the Chief to cause to be inspected:

“(a) Buildings and Premises. All buildings and premises within the Fire Limits not less than twice a year.

“(b) Place of Public Assembly. All places of public assembly not less than once a month.”

5 . Restatement, Torts (2d, § 288, comment b, states: “Many legislative enactments and regulations are intended only for the protection of the interests of the community as such, or of the public at large, rather than for the protection of any individual or class of persons. Such provisions create an obligation only to the state, or to some subdivision of the state, such as a municipal corporation. The standard of conduct required by such legislation or regulation will therefore not be adopted by the court as the standard of a reasonable man in a negligence action brought by the individual.”

Comment cf states: “Other legislative enactments and administrative regulations are intended only for the purpose of imposing upon the actor the performance of a service which the state, or some subdivision of it, has undertaken to give to the public. They are intended to make the actor responsible to the state, rather than to any individual * *

Illustration 5 states: “A municipal ordinance provides that abutting property owners must repair defects in sidewalks and remove snow and ice from them, and that if they fail to do so they shall be liable to the city for the cost of the repairs or removal. The ordinance is construed to have no other purpose than to impose responsibility to the city. A, an abutting owner, fails to remove ice from the sidewalk. B slips on the ice and is injured. The ordinance does not provide a standard of conduct for the benefit of B.”

6 .See, Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973); Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967); Dufrene v. Guarino, 343 So.2d 1097 (La.App.), writ denied, 343 So.2d 1069 (La.1977); Smullen v. City of New York, 28 N.Y.2d 66, 320 N.Y.S.2d 19, 268 N.E.2d 763 (1971); Campbell v. City of Bellevue, 85 Wash.2d 1, 530 P.2d 234 (1975), second appeal on other grounds, 86 Wash.2d 572, 546 P.2d 922 (1976). See, generally, Note, 13 Columbia L.J. & Soc.Prob. 303; Note, 23 Loyola L.Rev. 458.

Some other courts have denied recovery on the grounds that the municipality’s inspection was governmental rather than proprietary, or discretionary rather than ministerial. See, E. Eyring & Sons Co. v. City of Baltimore, 253 Md. 380, 252 A.2d 824 (1969); Fiduccia v. Summit Hill Constr. Co., 109 N.J.Super. 249, 262 A.2d 920 (1970). Such analysis is inappropriate in this case. Municipalities are subject to tort liability even if the activity is governmental rather than proprietary. Minn.St. 466.02. And although municipalities cannot be held liable for discretionary acts, Minn.St. 466.03(6), the distinction between ministerial and discretionary acts relates to the municipality’s defense of immunity rather than the question of whether it even has a duty of care.

7 . Ordinarily, a municipality is not liable for failure to provide police protection unless a special duty to the plaintiff is created. See, Massengill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969); Henderson v. St. Petersburg, 247 So.2d 23 (Fla.App.), certiorari denied, 250 So.2d 643 (Fla. 1971); Huey v. Town of Cicero, 41 Ill.2d 361, 243 N.E.2d 214 (1968). See, generally, Annotation, 46 A.L.R.2d 1084.

8 . In Hansen v. City of St. Paul, 298 Minn. 205, 214 N.W.2d 346 (1976), plaintiff was bitten by dogs that were known by the city officials to be vicious and prone to unprovoked attacks. This court held the city had a duty to impound the dogs because the government clearly had knowledge of the dogs’ vicious propensities.

Cases in other jurisdictions indicate that the government officials’ knowledge of the code violations may create a special duty to the plaintiff. For example, the Washington Supreme Court in Campbell v. City of Bellevue, 85 Wash.2d 1, 530 P.2d 234 (1975), second appeal on other grounds, 86 Wash.2d 572, 546 P.2d 922 (1976), held that the city had a special duty to an area resident who reported to the city officials that her neighbor had improper electrical wiring in an underwater lighting system at a nearby creek. The court found that a special duty had been created because the inspector had knowledge of the neighbor’s code violations and yet did not disconnect the wiring as required specifically by statute. See, also, Annotation, 46 A.L.R.3d 1084, § 7 (reporting cases which impose a special duty on police to protect the plaintiff when the police have knowledge of threatened criminal activity against the plaintiff).

9 . The factor of reliance is present, for example, in Smullen v. City of New York, 28 N.Y.2d 66, 320 N.Y.S.2d 19, 268 N.E.2d 763 (1971). In that case, a city sewer inspector had told plaintiffs decedent that'a trench was “pretty solid there” and that it did not need to be shored. The trench collapsed, killing the decedent. The New York Court of Appeals held these utterances established a special duty.

Similarly, Restatement, Torts (2d), •§ 324A, provides: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect [sic] his undertaking, if

* * * * * *

“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” See, also, Restatement, Torts (2d), § 323(b).

10 . The statute considered in McCorkell v. City of Northfield, 266 Minn. 267, 123 N.W.2d 367 (1963), affirmed second appeal on other grounds, 272 Minn. 24, 136 N.W.2d 840 (1965), is illustrative of the type which may create a special duty to the plaintiff. In that case, a prisoner died from asphyxiation caused by a smoldering fire in an unattended jail. A statute contained in Minn. St. c. 642 required certain maintenance activities in prisons for the health and safety of prisoners. Because the statute was clearly designed to impose a duty of care for the benefit of prisoners, this court found a cause of action was stated against the municipality for failure to comply with the mandatory provisions of the statute.

Other courts have found a special duty to the plaintiff based on a statute containing mandatory acts for the benefit of a class of persons. See, Runkel v. City of New York, 282 App.Div. 173, 123 N.Y.S.2d 485 (1953), affirmed on second appeal on other grounds sub nom., Runkel v. Homelsky, 286 App.Div. 1101, 145 N.Y.S.2d 729 (1955); Campbell v. City of Bellevue, 85 Wash.2d 1, 530 P.2d 234 (1975), second appeal on other grounds, 86 Wash.2d 572, 546 P.2d 922 (1976).

11 .Restatement, Torts (2d), 324A, states in part: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect [sic] his undertaking, if

“(a) his failure to exercise reasonable care increases the risk of such harm * * See, also, Restatement, Torts (2d), § 323(a).