                                                                                              May 19 2015


                                            DA 14-0309
                                                                                           Case Number: DA 14-0309

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                            2015 MT 139


SARA KENT, individually and as
Personal Representative of the
Estate of CASEY KENT, deceased,
and as guardian for their minor children,
STELLA KENT and LILA KENT,

            Plaintiff and Appellant,

vs.

CITY OF COLUMBIA FALLS,

            Defendant and Appellee.


APPEAL FROM:          District Court of the Eleventh Judicial District,
                      In and For the County of Flathead, Cause No. DV 11-655B
                      Honorable Robert B. Allison, Presiding Judge

COUNSEL OF RECORD:

               For Appellant:

                      John F. Lacey, McGarvey, Heberling, Sullivan & Lacey, PC, Kalispell,
                      Montana

               For Appellee:

                      Todd A. Hammer, Angela K. Jacobs, Hammer, Jacobs & Quinn, PLLC,
                      Kalispell, Montana

               For Amicus Curiae:

                      Justin Stalpes, Beck & Amsden, PLLC, Bozeman, Montana
                      (Attorney for Montana Trial Lawyers Association)

                      Jim Nugent, Missoula City Attorney, Susan A. Firth, City of Missoula Chief
                      Civil/Administrative Attorney, Missoula, Montana;
                      (Attorneys for Montana League of Cities and Towns)


                                                    Submitted on Briefs: December 24, 2014
                                                               Decided: May 19, 2015
Filed:
__________________________________________
                  Clerk




                    2
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     Casey Kent, aged 35, died on June 14, 2008, as the result of a head injury he suffered

on June 2, 2008, after falling while skateboarding in Cedar Pointe Estates in Columbia Falls,

Montana. Sara Kent, Casey’s wife, sued the City of Columbia Falls and various other

entities involved in designing, developing, and constructing Cedar Pointe Estates. She

alleged multiple counts including negligence, premises liability, breach of professional

duties, and wrongful death. Sara claims that a portion of the paved path upon which Casey

was skating was built with a 24% grade and the steepness of this grade caused Casey’s fall

and resultant fatal head injury. Sara ultimately settled with all defendants except the City of

Columbia Falls. The Eleventh Judicial District Court for Flathead County granted the City’s

motions for summary judgment. Sara appeals. We reverse and remand.

                                           ISSUE

¶2     A restatement of the issue is whether the District Court properly applied the public

duty doctrine to grant summary judgment to the City.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     Development of a 20-acre plot of land in southeast Columbia Falls began in

approximately 2003. Donald Gatzke owned the property and hired John Schwarz with

Schwarz Architecture & Engineering (later APEC Engineering) to design the infrastructure,

draft and submit official and detailed plans to the City, and construct what became a 79-lot

residential PUD development known as Cedar Pointe Estates. A PUD, a/k/a “planned unit

development,” is a planned community that allows for varied and compatible land uses. This

type of development gives local governments and developers greater flexibility in designing


                                              3
a proposed subdivision than would be allowed with a traditional subdivision. It authorizes a

city to approve a project that might not otherwise conform to applicable zoning and

subdivision regulations.

¶4     In the design documents submitted to the City for approval, Gatzke and Schwarz

proposed features for Cedar Pointe that did not meet City standards. For example, they

proposed installing narrow streets without sidewalks. Narrow streets that do not allow

emergency vehicles to navigate a neighborhood if cars are parked on the streets do not meet

the City’s standards for a residential development but can satisfy the requirements for a PUD

if other accommodations are made. As an accommodation for narrow streets and the lack of

sidewalks, Gatzke and Schwarz proposed construction of multiple small parking lots and a

trail system that included both a bike and a walking path.

¶5     In October 2003, the City Council of Columbia Falls adopted Resolution No. 1316 in

which it conditionally approved the preliminary plat submitted for Cedar Pointe.1 Attached

to the resolution were 28 conditions imposed by the City. Condition 12 stated: “In lieu of

sidewalks throughout the development the applicant shall install a bicycle and pedestrian

trail system as shown on Drawing C-3 prepared by Schwarz Engineering and dated 09-18-03

. . .” with modifications. The City instructed that the trail system be widened and extended

in specified locations. It also required the city manager to “approve of the design and

location of the trails prior to the start of construction.”




1
 Early documents refer to the subdivision as Cedar Park Subdivision. The name was changed after
November 2004.


                                                4
¶6     In November 2003, the City Council approved Ordinance No. 647, an amendment to

the development of the Cedar Pointe PUD. Attached to the ordinance was another set of

conditions. Condition 9 provided that a non-motorized trail system (bike path) was to be

constructed as part of the subdivision. It described where the bike path was to be located, the

width of the bike path, and that the City would maintain all portions of the bike trail as it was

located within the City’s right-of-way. Condition 10 instructed that a walking path would be

built within the subdivision and would provide direct access to every lot that did not share a

property line with either the bike path or a public street. The location and width of the

walking path was specified. Again, the City retained the right to “approve of the design and

location of the trails prior to the start of construction.”

¶7     In July 2007, the City Council approved Ordinance No. 690 which included additional

amendments to Cedar Pointe. Attachments to Ordinance No. 690 required that the bike path

be re-routed in places and that both the bike and the walking paths be paved. The

Subdivision Improvement Agreement (SIA) attached to Ordinance No. 690 stated: “The

City, in its sole and exclusive discretion, shall determine when and if all of the required

conditions of the PUD, Plat or related documents have been met.” Attached to the SIA was a

Final Plat Report requiring the developer to post a security bond of $471,867.75 to cover

completion of the proposed work. Also attached was an APEC Inspector’s Daily Record of

Work Progress dated March 8, 2007, indicating remaining items to be completed. One such

item was “Bike path and walking paths will need to be completed with specified grades and

surfacing materials.”




                                                5
¶8     On July 31, 2007, a contractor on the Cedar Pointe construction project contacted

APEC questioning the grade of the bike path and whether it met ADA (Americans with

Disabilities Act) standards. APEC responded in writing that the bike path must be

ADA-compliant but that the walking path need not be. The letter indicated that APEC had

conferred with the city manager who stated the City had no expectation of ADA-compliance

for the walking path. The Manager further advised that Gatzke should seek legal advice

concerning whether an ADA-non-compliant sidewalk was acceptable from a liability

standpoint. APEC opined that “it would be exceedingly challenging to meet ADA grade

guidelines for the complete walk path system on the Cedar Pointe property.”

¶9     Throughout construction of the trail system, City officials made numerous on-site

visits and inspections. Additionally, at multiple times during construction the City notified

engineers and contractors on the project that failure to comply with the City’s instructions

could result in the City’s denial of approval or rejection of the project. On December 21,

2007, the City Director of Public Works indicated that the final inspection of all

infrastructure items had been completed and approved, with the exception of a short list of

remaining items not pertinent to the trail system, and that the original security bond should

be released.

¶10    On June 2, 2008, Casey Kent was skateboarding within the subdivision along the

paved walking path. At the bottom of a 24% decline in the path, Casey fell off his board, hit

his head, and lost consciousness. He was transported by ambulance and subsequently

airlifted to a hospital where he died 12 days later of severe head trauma.




                                             6
¶11    On June 1, 2011, Sara filed suit against the City of Columbia Falls, Gatzke, Schwarz,

APEC, the Cedar Pointe Estates Homeowners’ Association, and various John Does. Among

her complaints against all defendants, including the City, were allegations of negligence,

willful or wanton misconduct, negligence per se, and wrongful death. She alleged claims of

premises liability, nuisance, and attractive nuisance against the City, Gatzke, and the

Homeowner’s Association. Lastly, she asserted a claim exclusively against the City for

failure to follow its own regulations. During the first three years of litigation, Sara settled

with all the defendants except the City of Columbia Falls.

¶12    In February 2012, early in the proceedings, the City moved for summary judgment on

all counts against it. The City disputed premises liability, claiming that it did not own the

property, did not construct the path, and expressly required the homeowner’s association to

maintain the walking path. The City also argued that it did not assume any duty by virtue of

its supervisory authority over and involvement in designing the walking path’s layout

because the public duty doctrine precludes the existence of such a duty. Consequently, the

City asserted, without a duty to be breached, Sara’s negligence and premises liability claims

could not stand. Both Sara and APEC opposed the City’s motion. APEC filed a brief in

opposition arguing that the “special relationship/detrimental reliance” exception to the public

duty doctrine applied in this case; therefore, the City may be held liable.

¶13    Sara chose not to address the public duty doctrine in her brief in opposition, asserting

that discussion of the doctrine, if necessary, should be reserved for a future date after all

potential parties had been identified. Rather, she argued that applying the public duty

doctrine was unnecessary because the City created a non-delegable legal duty for itself when


                                              7
it adopted resolutions and ordinances allowing the development and construction of the trail

system for Cedar Pointe Estates to replace sidewalks throughout the subdivision, subject to

explicit conditions. She claimed that by allowing Cedar Pointe Estates to utilize a trail

system in lieu of sidewalks, the City retained the same responsibilities and liabilities for the

trail system as it had for other City sidewalks. Sara observed that the general public using

the trail system saw no distinction between the bike path and the walking path, nor did the

City seek to establish such a distinction.

¶14    Sara also asserted that in addition to the statutory duty, the City voluntarily undertook

oversight of the trail system based upon its self-imposed obligation to “approve” the trail

system and its active participation in the design and location of the trail system. Relying on

Dobrocke v. City of Columbia Falls, 2000 MT 179, ¶ 33, 300 Mont. 348, 8 P.3d 71,

overruled in part on other grounds by Roberts v. Nickey, 2002 MT 37, 308 Mont. 335, 43

P.3d 263. Sara claimed the City’s duties required it “to act with reasonable care in the

approval of the design and location of the trails . . . .” She opined that the existence of these

duties rendered application of the public duty doctrine unnecessary and incorrect.

¶15    The District Court conducted a hearing and on November 10, 2012, granted the City’s

motion on multiple counts of the complaint, including premises liability. Upon entry of this

order, Sara’s only claims against the City that remained extant were those alleging willful or

wanton misconduct and wrongful death.

¶16    On December 21, 2012, this Court issued its decision in Gatlin-Johnson v. City of

Miles City, 2012 MT 302, 367 Mont. 414, 291 P.3d 1129, in which we addressed the public




                                               8
duty doctrine as it pertains to public safety in a municipal park. A detailed discussion of

Gatlin-Johnson is provided below.

¶17    In April 2013, Columbia Falls moved for summary judgment on the remaining counts.

Sara both opposed the City’s motion and, in light of our decision in Gatlin-Johnson, filed a

motion under M. R. Civ. P. 54(b) seeking reconsideration of the District Court’s earlier

summary judgment rulings pertaining to her negligence claims and her claim that the City

failed to follow its own regulations. On March 21, 2014, the District Court granted the

City’s motion for summary judgment. It also determined that Gatlin-Johnson was not

dispositive and denied Sara’s motion for reconsideration.

¶18    Sara filed a timely appeal.

                                STANDARD OF REVIEW

¶19    This Court reviews a district court’s decision on a motion for summary judgment de

novo, to determine whether it is correct, applying the same considerations as the district

court under M. R. Civ. P. 56. Summary judgment is proper when the moving party shows

that there is no genuine issue as to any material fact, and that the moving party is entitled to

judgment as a matter of law. Gatlin-Johnson, ¶ 10 (citations omitted).

¶20    The existence of duty is an issue of law, and this Court reviews a decision on an issue

of law to determine whether it is correct. Gatlin-Johnson, ¶ 11 (citations omitted).




                                               9
                                       DISCUSSION

¶21    Did the District Court properly apply the public duty doctrine to grant summary
       judgment to the City?

¶22    As indicated by this issue statement, Sara’s appeal is narrow. Notably, we are not

determining whether the City is liable to Sara nor are we determining whether the District

Court’s discussion of the public duty doctrine and its exceptions is correct. Our focus here is

whether the District Court should have applied the doctrine at all under the facts of this case

and our ruling in Gatlin-Johnson.

Public Duty Doctrine

¶23    “The public duty doctrine provides that a governmental entity cannot be held liable

for an individual plaintiff’s injury resulting from a governmental officer’s breach of a duty

owed to the general public rather than to the individual plaintiff.” Gatlin-Johnson, ¶ 14.

Under the doctrine, “where a municipality owes a duty to the general public, that duty is not

owed to any particular individual.” Prosser v. Kennedy Enters. Inc., 2008 MT 87, ¶ 18, 342

Mont. 209, 179 P.3d 1178. Such duties to the general public include law enforcement

services and fire protection. “[A] law enforcement officer has no duty to protect a particular

person absent a special relationship because the officer’s duty to protect and preserve the

peace is owed to the public at large and not to individual members of the public.” Gonzales

v. City of Bozeman, 2009 MT 277, ¶ 20, 352 Mont. 145, 217 P.3d 487. See also Coty v.

Washoe Cty., 839 P.2d 97 (Nev. 1992)(“[T]he duty to fight fires ‘runs to all citizens and is to

protect the safety and well-being of the public at large.’ Therefore, the duty of fire and

police departments ‘is one owed to the public, but not to individuals.’”). An exception to the



                                              10
public duty doctrine exists when a “special relationship” arises, “giving rise to [a] special

duty that is more particular than the duty owed to the public at large.” Nelson v. Driscoll,

1999 MT 193, ¶ 22, 295 Mont. 363, 983 P.2d 972.

¶24    A special relationship generally can be established in one of the following four

circumstances: (1) by a statute intended to protect a specific class of persons of which the

plaintiff is a member from a particular type of harm; (2) when a government agent

undertakes specific action to protect a person or property; (3) by governmental actions that

reasonably induce detrimental reliance by a member of the public; and (4) under certain

circumstances, when the agency has actual custody of the plaintiff or of a third person who

causes harm to the plaintiff. Nelson, ¶ 22. To establish a “special relationship” under the

third exception, a plaintiff must show that: (1) there has been direct contact between the

public official and the plaintiff; (2) the official has provided express assurances in response

to the plaintiff’s specific inquiry; and (3) the plaintiff justifiably relied on the representations

of the official. Prosser, ¶ 36.

District Court Arguments

¶25    Sara argued to the District Court that the City had assumed two distinct and specific

duties, both of which were firmly grounded in “generally applicable principles of law,” and

neither of which were owed to the public at large: (1) the City took upon itself through its

ordinances a non-delegable statutory duty to approve the design and construction of the

Cedar Pointe Estates’ trail system, which includes both the bike path and the walking path;

and (2) the City voluntarily undertook—through its active role in deciding and monitoring

the location and layout of the trail system—the duty to “act” with reasonable care in


                                                11
approving the walking path because its participation in the planning and building process

went beyond simple approval. Sara asserted that a duty of reasonable care attached to both

the statutory and voluntary obligations, and that breach of these duties was sufficient to

support her tort claim against the City.

¶26    Before eventually settling with Sara, APEC had argued in opposition to the City’s

motion for summary judgment that the City’s substantial participation in the design and

completion of all facets of the Cedar Pointe Estates, including the walking path, created a

special relationship with Casey that “reasonably induced” Casey’s reliance, to his detriment,

that the walking path was designed and constructed in the same safe manner as the bike path

and other sidewalks throughout the City. Thus, it was APEC—and not Sara—that raised the

public duty doctrine in opposition to the City’s motion for summary judgment.

District Court’s Rulings

¶27    The focus of Sara’s appeal is the District Court’s initial application of the public duty

doctrine in its November 2012 order (Order I), and its subsequent March 2014 order

following publication of Gatlin-Johnson, in which it refused to reconsider application of the

doctrine (Order II).

¶28    In Order I, the court made the following relevant findings:

   (1) The City approved construction of a private subdivision containing an interconnected
       trail system consisting of a bike path and a walking path.

   (2) In approving the subdivision, the City mandated that “[t]he City shall approve of the
       design and location of the trails [in the trail system] prior to the start of construction.

   (3) Correspondence between City employees and the developer suggests “that the City’s
       involvement went beyond mere approval; rather, the City appears to have taken an
       active role in deciding the location and layout of the trail system.”


                                               12
The City did not challenge these findings through cross-appeal.

¶29     The District Court noted that several of Sara’s claims sounded in both negligence and

premises liability. For example, three of her claims alleged that the City (1) negligently

designed, built, and operated the walking path; (2) breached its duty to keep the walking path

safe for travel; and (3) failed to warn of a defective or dangerous condition on the walking

path. The court concluded that disposition of the case first required a determination of

whether the City owed a legal duty to Sara.

¶30     The court determined that the City had no duty under premises liability because the

City did not own or maintain the property upon which Casey was injured.2 Moreover, the

court concluded that the cases imposing “adjacent landowner” premises liability did not

apply to the City in this case. Sara does not appeal the court’s ruling pertaining to premises

liability.

¶31     Turning to Sara’s claims and the City’s public duty doctrine argument, the court

observed that Sara had presented no argument on the merits of the City’s public duty

doctrine claim. The court, therefore, limited its analysis of the public duty doctrine to

APEC’s argument that the “special relationship/detrimental reliance” exception to the

doctrine existed in this case. Relying on Prosser, the District Court concluded that the

exception to the public duty doctrine did not apply because an element of this exception

required direct contact between Casey and a City official and there was no such contact. The

2
  Premises liability may be imposed on a property owner who breaches the duty to use ordinary care
in maintaining the premises in a reasonable safe condition and to warn others of hidden or lurking
dangers. Richardson v. Corvallis Pub. Sch. Dist. No. 1, 286 Mont. 309, 321, 950 P.2d 748, 755
(1997).


                                               13
court did not address Sara’s claims that the City breached both a statutory and a voluntary

duty, independent of the public duty doctrine.

¶32    In Order II, the District Court specifically acknowledged Sara’s claim that the

City-adopted ordinances created a statutory duty for the City but the court characterized the

argument as an argument that the “statutory” exception of the public duty doctrine applied.

Therefore, the court again applied the doctrine and determined that the ordinance was not the

type of statute that created a “specific class of [protected] persons.” The District Court stated

that the City of Hamilton ordinances in Prosser and the City ordinances in the instant case

were both passed to promote general health and welfare and therefore did not create a duty to

an individual. Consequently, the court concluded that Sara’s claim of negligence failed.

¶33    Addressing Sara’s claim of a voluntarily-acquired duty and her application of

Gatlin-Johnson, the court determined that Gatlin-Johnson was a distinguishable premises

liability case and not applicable to Sara’s claims. The court noted that it had addressed

premises liability in Order I and would not revisit it. Choosing to analyze Gatlin-Johnson no

further, the court concluded its analysis with the assertion that “the decision in Gatlin held

that the public duty doctrine does apply to land use decisions by local government.”

(Emphasis in original.)

¶34    The District Court misstates the holding in Gatlin-Johnson. In Gatlin-Johnson, we

held that summary judgment granted to the City was error because the court did not allow the

plaintiff to present her case at trial. However, in preface to our analysis in that case, we

acknowledged numerous public duty doctrine cases that have been decided in our Court over

the past decade. We included Prosser in this list, acknowledging that we applied the public


                                               14
duty doctrine in Prosser “to land use decisions by a local government body.” However, by

deciding Prosser as we did, we did not intend to hold that all future “land use decisions by a

local government” would be analyzed exclusively under the public duty doctrine, regardless

of the level of participation by the municipality in the design and development of the given

project.

Sara’s Claims On Appeal

¶35    Sara argues on appeal that the District Court erred in refusing to reconsider

application of the public duty doctrine in light of our clarification in Gatlin-Johnson that

“The public duty doctrine was not intended to apply in every case to the exclusion of any

other duty a public entity may have. . . . It does not apply where the government’s duty is

defined by other generally applicable principles of law.” Gatlin-Johnson, ¶ 17. Sara

maintains that there was no need for the court to invoke the public duty doctrine because the

City had both a statutory duty and a duty based upon a voluntary undertaking to protect the

public using the trail system in Cedar Pointe, and that breach of these duties was sufficient to

support her tort claims. Gatlin-Johnson, ¶ 19. She argues that the District Court erred when

it presumptively applied the doctrine and its special exceptions without first assessing

whether the City’s statutes and voluntary control were sufficient to support her tort claims.




                                              15
The City’s Response

¶36    The City responds that the District Court’s Order I correctly analyzed whether the

City owed a specific duty to Casey and concluded it did not. The City argues that Sara’s

claims of a statutory and voluntary duty are actually assertions that the first and second

exceptions of the public duty doctrine apply and therefore the District Court correctly

analyzed the case under the public duty doctrine.

Gatlin-Johnson

¶37    In Gatlin-Johnson, an eight-year-old girl was severely injured when she fell from a

slide in a Miles City-owned playground and hit her head on the ground. The child’s mother

sued Miles City alleging that the City was negligent for failing to maintain sufficient

“impact-absorbing material” around and beneath the slide. Gatlin-Johnson claimed that both

the slide manufacturer and the Consumer Product Safety Commission required that there be

12 inches of impact-absorbing material under the slide. Gatlin-Johnson, ¶ 6. The District

Court concluded that the City had a duty to safely maintain the playground area in the park,

but that this duty was “owed to the general public at large” and was not a duty owed

specifically to Gatlin-Johnson’s daughter. The court, applying the public duty doctrine,

observed: “[w]here a tort claim is made against a public body, such as a municipality, the

public duty doctrine bars recovery unless a duty is created by a ‘special relationship.’” The

district court concluded no special relationship exceptions applied. Gatlin-Johnson, ¶ 7. The

district court granted summary judgment to Miles City holding that the City owed no duty to

Gatlin-Johnson’s daughter and that absent such a duty the City was not liable.




                                             16
¶38    On appeal, this Court acknowledged numerous cases in which we recognized the

applicability of the public duty doctrine, and discussed the “special relationship” exception

that can render the doctrine inapplicable. Gatlin-Johnson, ¶¶ 15-16. We then addressed the

district court’s reliance on language contained in previous cases that “it is necessary” for

district courts “to consider the public duty doctrine whenever there is a negligence claim

against a public entity or person.” Gatlin-Johnson, ¶ 17. Without expressly stating that the

subject language was being misinterpreted, we explained:

       Consideration of the public duty doctrine does not mean . . . that it always
       applies whenever a public entity or person is a defendant in a negligence case.
       The public duty doctrine was not intended to apply in every case to the
       exclusion of any other duty a public entity may have. It applies only if the
       public entity truly has a duty owed only to the public at large, such as a duty to
       provide law enforcement services or regulate the practice of medicine. It does
       not apply where the government’s duty is defined by other generally
       applicable principles of law.

Gatlin-Johnson, ¶ 17. We then discussed multiple cases in which we have applied the duty

of care in premises liability cases to governmental defendants without relying upon the

public duty doctrine. Gatlin-Johnson, ¶ 18. We observed that it was “clear that in each

[summarized] case there was no need to invoke the public duty doctrine because the

governmental entity had a specific duty, such as premises liability, that was sufficient to

support a tort claim.” We observed that this method of addressing government liability was

consistent with the Montana Tort Claims Act, which holds every governmental entity in

Montana subject to liability for its torts. We referenced the definition of “claim” in the

context of governmental tort liability “as arising from an act or omission ‘under

circumstances where the governmental entity, if a private person, would be liable to the



                                              17
claimant for the damages under the laws of the state.’” Gatlin-Johnson, ¶ 19; § 2-9-101(1),

MCA.

¶39    We concluded in Gatlin-Johnson that the district court erred in applying the public

duty doctrine simply because a municipality was the defendant and the park was open to the

public. Gatlin-Johnson, ¶ 20. Consequently, we reversed and remanded the case to the

district court for further proceedings. Gatlin-Johnson is not “new” law; rather, it is a

reminder that courts should first determine whether a governmental defendant has a specific

duty to a plaintiff arising from “generally applicable principles of law” that would support a

tort claim. If a private person would be liable to the plaintiff for the acts that were

committed by the government, then the governmental entity would similarly be liable.

Where such a specific duty and breach exists, the public duty doctrine has no application.

Prosser

¶40    As noted above, the District Court relied on Prosser in its analysis in both Orders I

and II. In Prosser, defendant Kennedy purchased a former fast food restaurant and

submitted plan documents to the City of Hamilton proposing modification of the property for

commercial use as a casino and lounge. Following a hearing, at which two of the plaintiffs

attended and raised concerns, the Hamilton City Zoning Board of Adjustment adopted the

plan by resolution and subsequently issued a permanent certificate of occupancy. Prosser,

¶¶ 5-6. The casino promptly became a nuisance with noise, fights, drug use, and garbage.

Three neighbors living in a residential area adjacent to the casino sued Kennedy and the City

alleging that the City owed them a special duty, i.e., had a “special relationship” with them,

because ordinances approved for construction and operation of the casino and the ordinances


                                             18
being violated (noise, drugs, etc.,) had been adopted to protect them specifically as

neighbors. They alleged the Board of Adjustment violated various ordinances in approving

Kennedy’s plan, and that various City officials had failed to abate the nuisance despite

plaintiffs’ requests. Prosser, ¶¶ 7-8. The district court, analyzing the case under the public

duty doctrine, granted summary judgment to the City and we affirmed. Prosser, ¶ 9.

¶41    The District Court’s reliance in Order I on Prosser is understandable considering

Gatlin-Johnson had not yet been issued and the District Court believed it was appropriately

applying the public duty doctrine and that an analysis of the “special relationship/detrimental

reliance” as argued by APEC, was required. However, the District Court again relied on

Prosser in Order II when it declined to reconsider its analysis after Gatlin-Johnson was

issued. We conclude this was error.

¶42    While we acknowledge some similarities between the case before us and Prosser,

there is a significant distinction between Prosser and the case at bar—that is, no one in

Prosser argued that the public duty doctrine did not apply. The plaintiffs in Prosser asserted

throughout the proceedings that the special relationship exception applied. The Prosser

Court therefore decided the case on the issues that were before it. In the case before us, Sara

expressly argued that the City had duties defined under other generally applicable principles

of law that rendered application of the public duty doctrine erroneous.

¶43    Additionally, in Prosser, while the city officials processed Kennedy’s paperwork,

approved of her remodeling/re-commercializing plan, and later fielded irate phone calls from

the plaintiffs, it does not appear that the city was actively involved in the design of the

project, which was in essence a remodel of a restaurant. It did not voluntarily undertake


                                              19
oversight of the construction, nor did it actively participate in the design and location of the

remodeled building.

¶44    Conversely, in the case before us, the record reflects that the City reviewed numerous

plans and drawings for Cedar Pointe over time. It imposed multiple conditions upon the

developers, including the requirement that a bicycle and pedestrian trail system be

constructed. It obligated the city manager to approve the design, location, and final

construction of the trails. In executing these tasks, city officials made numerous site visits

and ultimately instructed that the trail system be widened and extended in specified

locations.   The City conducted inspections of the trail system during and after the

construction phase. As the District Court found—and the City does not contest via cross-

appeal—“the City’s involvement went beyond mere approval” of the project and in fact “the

City appears to have taken an active role in deciding the location and layout of the trail

system.” (Opinion, ¶ 28.) Many of the City’s actions were similar to those that would be

typically undertaken by the architects, contractors, and engineers. Consequently, this case

does not involve a uniquely governmental activity.

¶45    Additionally, the City did not distinguish for the public what was a bike path and what

was a walking path. The paths were created by the same contractor and looked identical.

Even the police officer who responded to Casey’s accident wrote in his report that Casey was

found on the south side of the “bike path.” The record also reflects that numerous City




                                              20
officials walked the path, some on multiple occasions,3 and knew first-hand of the existence

of a dangerous and ADA-non-compliant grade in a public walking path. Nonetheless, it

“approved” the walking path without requiring that the path meet Code requirements.

¶46    During the discovery phase of this case, Kent asked the City to identify the standards

and regulations the City relied upon while “reviewing, considering, [and] placing conditions

upon and giving approval for the design of the path and trail system.” The City responded

that it relied upon Title 17 of the City Code and the City’s adopted Standards for Public

Works improvements. Columbia Falls Municipal Code 17.14.030 disallows subdivided land

with “slopes equal to or greater than twenty-five percent subsidence,” recognizing that

building on such a slope could cause environmental degradation or “be detrimental to the

health, safety or general welfare of existing or future residents.” Moreover, the Standards for

Public Works improvements Section 2.05 (E) required: “Bicycle Paths and/or Walkways:

Access-ways for people to use with non-motorized vehicles, primarily for recreational use,

the minimum width shall be 9 feet, all slopes and grades shall meet ADA requirements.” It

is apparent however that the City did not require the owner, the contractors, or engineers to

redesign the City-required public walking path to conform to ADA grade standards.

¶47    In arguing the District Court’s ruling should be affirmed, the Dissent discusses,

among other cases, a recent Utah Supreme Court case, Cope v. Utah Valley State College,

342 P.3d 243 (UT 2014). In Cope, a dance student was injured while rehearsing a

choreographed dance routine that required her dance partner to lift her to his shoulder as she

3
   It appears that William Shaw, the city manager, was on site at least five times during the
pre-construction and construction phases of the project and that Lorin Lowry, the Director of Public
Works, visited the site frequently and delivered site-related information to Shaw.


                                                21
completed a back flip. Cope, ¶ 4. Although the move proved to be a challenging one, the

school did not provide the usual spotters to help protect the dancers as they learned a new

lift. In fact, the instructor told the students to use “more power” and try again. He told the

couple he would drop the lift from the routine if they were unable to perform it. In their third

attempt, Cope’s partner lost his footing, and Cope fell and was injured. Cope, ¶ 5. She sued

the college which moved for summary judgment on the grounds that it owed no duty to

protect her. The motion was granted and Cope appealed. Cope, ¶¶ 7-8.

¶48    The Utah Supreme Court conducted an in-depth analysis of whether the dance

instructor’s action was an “affirmative action” or an “omission.” The court noted that if

Cope’s accident arose from an “affirmative action” taken by the college, the public duty

doctrine would not apply to her claim. However, if her claim arose from an omission, the

public duty doctrine may present a bar to liability. Cope, ¶ 34. The court concluded that

Cope could “trace her harm back to an affirmative act by UVSC”; therefore, the public duty

doctrine did not bar her claim. Cope, ¶ 39. The Utah court explained that the college

created, funded, and supervised the dance team, and gave students course credit for team

participation. The court stated: “UVSC’s actions in creating and overseeing the ballroom

dance team had advanced to a stage where it had a duty to act in a reasonable manner to

prevent injuries cause by participation with the dance team.” In other words, “the college

‘launched a force or instrument of [potential] harm’” and assumed a duty to act reasonably.

Cope, ¶ 36.

¶49    The Dissent distinguishes this case from Cope, concluding that Sara “has done

nothing to show that the City created the dangerous grade on the walk path.” To the


                                              22
contrary, as was the case in Cope, Sara’s claim is premised upon affirmative actions taken by

the City. As the District Court found, the City did not merely approve the walkway; it took

an active role in monitoring, determining, and approving the engineering aspects of the trail

system. It walked the walkway and gave instruction on the design. Having undertaken this

active role, the City assumed a duty to act reasonably. Cope, ¶ 36.

¶50    The City argues it had no duty to Sara. However, it has long been the rule in Montana

that should one gratuitously assume to render a service, the entity so doing is “bound to the

exercise of reasonable care in the performance of the services so voluntarily assumed.”

Vesel v. Jardine Mining Co., 110 Mont. 82, 92, 100 P.2d 75, 80 (1939). See also Nelson, ¶

37 (“[O]ne who assumes to act, even though gratuitously, may thereby become subject to the

duty of acting carefully, if he acts at all. . . . The rule has been applied in several Montana

cases where this Court has imposed a duty of reasonable care in the performance of an

undertaking.”). Thus, as Sara has alleged, the jury could find the violation of a duty

voluntarily assumed.

¶51    In Verity v. Danti, 585 A.2d 65 (R.I. 1991), the Rhode Island Supreme Court was

asked whether the public duty doctrine applied to a case where a child was seriously injured

as a result of a blocked sidewalk. While walking along a sidewalk the child encountered a

large tree that blocked her passage. A stone wall abutted the tree on one side and her only

way around the tree was to step off the sidewalk and onto a busy highway. In doing so, she

was hit by a vehicle and seriously injured. The State claimed it was protected by the public

duty doctrine but the Rhode Island Supreme Court disagreed. The court concluded that the

State knew of the sidewalk obstruction and consciously decided not to remove the obstacle,


                                              23
thereby forcing pedestrians into peril. In fact, the court noted that the State had evaluated the

condition of the sidewalk with the obstacle and concluded that it was “satisfactory.” The

Rhode Island court called the State’s decision “egregious” and held “when the state has

knowledge that it has created a circumstance that forces an individual into a position of peril

and subsequently chooses not to remedy the situation, the public duty doctrine does not

shield the state from liability.”

¶52    The same result is compelled here. Evidence sufficient to defeat summary judgment

exists that the City was actively involved in the design of the path, knew of its dangerous

grade, had the statutory authority to compel a modification, and yet exercised its statutory

and contractual authority to approve it. We conclude that the City could be held liable to

Sara should Sara establish her claims premised on violation of statutory duty and/or the

voluntary assumption of a duty to act with ordinary care. We therefore conclude that the

District Court erred in barring Sara’s claims on the basis of the public duty doctrine.

                                       CONCLUSION

¶53    Having concluded that the District Court erred in applying the public duty doctrine to

the case at bar, we reverse the District Court’s entry of summary judgment for the City and

remand for a trial on the merits.

                                                    /S/ PATRICIA COTTER

We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT




                                               24
Justice Patricia Cotter concurs.

¶54    I write separately to suggest that it is time to reconsider and rein in the application of

the public duty doctrine.

¶55    Article II, Section 18 of the 1972 Montana Constitution provides: “The state, counties,

cities, towns, and all other local governmental entities shall have no immunity from suit for

injury to a person or property, except as may be specifically provided by law by a 2/3 vote of

each house of the legislature.” In 1973, the Montana legislature enacted § 2-9-102, MCA,

which provides: “Every governmental entity is subject to liability for its torts and those of its

employees acting within the scope of their employment or duties whether arising out of a

governmental or proprietary function except as specifically provided by the legislature under

Article II, section 18, of The Constitution of the State of Montana.”

¶56    The legislature also defined what constituted a “claim” against a governmental entity

in § 2-9-101(1), MCA, as follows:

              “Claim” means any claim against a governmental entity, for money
       damages only, that any person is legally entitled to recover as damages
       because of personal injury or property damage caused by a negligent or
       wrongful act or omission committed by any employee of the governmental
       entity while acting within the scope of employment, under circumstances
       where the governmental entity, if a private person, would be liable to the
       claimant for the damages under the laws of the state.

(Emphasis added.)

¶57    After the passage of the 1972 Constitution and the foregoing laws, the Montana

legislature “reinstated limited governmental tort immunity by excepting from liability certain

discretionary acts of public officials and placing caps on damage awards. See Title 2,


                                               25
Chapter 9, Part 1, Montana Code Annotated (1977).” Massee v. Thompson, 2004 MT 121, ¶

76, 321 Mont. 210, 90 P.3d 394 (Nelson, J., dissenting). Among the legislative exceptions

was immunity for acts or omissions of legislators, including local governmental entities

given legislative powers by the state such as school boards. Section 2-9-111(1)(b), MCA

(1977). Subsequently, and at the urging of various county and state agencies, this Court in a

series of decisions extended tort immunity to various governmental entities. Massee, ¶ 76

(Nelson, J., dissenting). As Justice Nelson observed in his Massee dissent, the 1991

legislature ultimately undertook to limit the terms under which governmental entities

enjoyed statutory immunity by amending § 2-9-111, MCA, so as to preclude legislative

immunity in those instances where administrative actions are undertaken in the execution of

a law or public policy. See generally, Justice Nelson dissent in Massee, ¶¶ 67-96, addressing

sovereign immunity, legislative action, and the development of the public duty doctrine.

¶58    As observed by Justice Nelson, the public duty doctrine can trace its inception in this

state to Annala v. McLeod, 122 Mont. 498, 504, 206 P.2d 811, 814-15 (1949), in which the

Court concluded that the Sheriff would not be held liable for damages sustained to a

homeowner’s property during a riot. In doing so, the court followed the precepts set forth in

South v. Maryland, 59 U.S. 396, 15 L. Ed. 433 (1856), in which the Supreme Court

concluded that the duty of a sheriff to keep the peace is a public duty which would be

punishable only by indictment. South, 59 U.S. at 403. (Massee, ¶ 80.) Subsequently, we

decided Phillips v. Billings, 233 Mont. 249, 253, 758 P.2d 772, 775, (1988), in which we

concluded that the general duty of a police officer to protect the public “does not give rise to




                                              26
liability for a particular individual’s injury absent a greater duty imposed by a special

relationship.”

¶59    The foregoing cases did not reference the term “public duty doctrine”; however, they

clearly laid the groundwork for its adoption in Montana. Montana first formally recognized

the “public duty doctrine” in Nelson v. Driscoll, 1999 MT 193, 295 Mont. 363, 983 P.2d

972. In Nelson, we addressed the duty of care owed by a police officer to an intoxicated

woman whom he stopped for DUI but then released with instructions that she not drive

home. Subsequently, while walking along the icy shoulder of a roadway, she was struck and

killed by a motorist. Citing Phillips, this Court for the first time addressed the “public duty

doctrine” and the exceptions to the doctrine that survive in our case law to this day. Notably

for purposes of this discussion, in identifying the four circumstances that would establish a

special relationship so as to take the case outside of the doctrine, we said, quoting Phillips:

“An exception to the public duty doctrine arises when there exists a special relationship

between the police officer and an individual giving rise to [sic] special duty that is more

particular than the duty owed to the public at large.” Nelson, ¶ 22 (emphasis added).

¶60    In addressing the public duty doctrine and the four exceptions thereto, we cited the

history of the doctrine, quoting Phillips for the proposition that “a police officer has no duty

to protect a particular individual absent a special relationship.” Nelson, ¶ 21. We cited cases

from other jurisdictions and treatises which expressed the policy that “a police officer’s duty

to protect and preserve the peace is owed to the public at large and not to individual

members of the public.” Nelson, ¶ 21 (citations omitted). Thus, when we adopted the

“public duty doctrine” we did so in the limited context of its application to law enforcement


                                              27
officers. It was a “special relationship” between a police officer and a member of the public

that invited liability exceptions under particular circumstances, and not a “general”

relationship between a government bureaucrat and a member of the public.

¶61    Since Nelson, we have referenced the doctrine frequently in cases involving the

interaction of law enforcement officers and particular plaintiffs. See, e.g., Massee, Nelson v.

State, 2008 MT 336, 346 Mont. 206, 195 P.3d 293, and Gonzalez v. City of Bozeman, 2009

MT 277, 352 Mont. 145, 217 P.3d 487. Where we have gone wrong, I submit, is in

expanding the sweep of the public duty doctrine to encompass all manner of general

government conduct.

¶62    In joining Justice Regnier’s special concurring opinion in Massee, I signaled my

agreement with Justice Nelson’s analysis and conclusion that it is difficult to sustain the

public duty doctrine in light of Article II, section 18 of the Montana Constitution, which

abolished sovereign immunity. However, I agreed with Justice Regnier’s observation that

the doctrine might arguably be preserved in the context of the exercise of discretion by law

enforcement officers. However, we left that discussion to “another day,” as the abolishment

of the doctrine was not critical to the outcome of the Massee case. Massee, ¶ 100.

¶63    Here, the plaintiff has not advocated for the partial or complete abolishment of the

public duty doctrine. I therefore write separately in the hopes that “another day” will come

soon. As the argument and citations contained in Justice Baker’s dissent underscore, the

public duty doctrine has morphed from a doctrine born and intended to apply only to the

actions and decisions of law enforcement, into one that is applied to a broad swath of

governmental actions and omissions. In our zeal to protect governments from negligence


                                              28
liability, we have expanded the doctrine well beyond its intended limitations, and in so doing

have ignored not only Article II, section 18, but also the clear language of §§ 2-9-101 and -

102, MCA, which hold every governmental entity subject to liability for torts under

circumstances in which that entity, if a private person, would be liable to the claimant for

damages. We have also ignored that provision of § 2-9-102, MCA, which directs that any

exception to the foregoing rule must be approved by the legislature by a 2/3 vote of each

house. Because the legislature has largely eliminated and declined to statutorily resurrect

governmental immunity for torts, I believe we have erred in expansively reviving that

immunity by resort to a judicially-created theory. For these reasons, I for one would

welcome in a future case a thorough re-examination and review of the viability of the public

duty doctrine.

                                                  /S/ PATRICIA COTTER



Justice Michael E Wheat joins the concurrence.


                                                  /S/ MICHAEL E WHEAT
Justice Beth Baker, dissenting.

¶64    In order to withstand a motion for summary judgment in a negligence action, the

plaintiff must establish that the defendant owed her a legal duty. Debcon, Inc. v. City of

Glasgow, 2001 MT 124, ¶ 29, 305 Mont. 391, 28 P.3d 478. Public and private defendants

are dissimilarly situated for purposes of establishing legal duty. Unlike private parties,

government touches nearly all aspects of organized life, and we expect the government to act

to serve the community as a whole and not individual interests. “Juries and courts are ill-


                                             29
equipped to judge ‘considered legislative-executive decisions’ as to how particular

community resources should be or should have been allocated to protect individual members

of the public.” Morgan v. Dist. of Columbia, 468 A.2d 1306, 1311-12 (D.C. Cir. 1983)

(citation omitted). If the government does not fulfill its duties, the law provides avenues of

recourse outside the courtroom. In light of the differences between public and private action,

unmitigated negligence liability has the capacity to expose governments to ceaseless

litigation and interfere with government discretion about how best to use limited resources to

benefit the public. Prosser, ¶ 18. The public duty doctrine exists in recognition of these

dangers and differences.

¶65    The public duty doctrine holds that an absolute duty that the government owes to the

public at large does not establish a legal duty, does not expose the government to negligence

liability, and does not provide a plaintiff the right to maintain a negligence action. Nelson,

¶ 21. Unless the government is liable under a generally applicable principle of law, such as

premises liability, Gatlin-Johnson, ¶¶ 17-18, our law is well-established that liability may be

found only when the government has established a special relationship with the plaintiff—

whether through specific protective statutes, specific protective actions, actions that

reasonably induce detrimental reliance, or through a custodial relationship with the plaintiff

or a third person. Nelson, ¶ 22.

¶66    In Prosser, we considered the applicability of the public duty doctrine to land use

decisions—specifically, approval of a change in use of a commercial building and

enforcement of a condition to that approval. Prosser, ¶ 12. These decisions were made

under local municipal codes intended to benefit the general public. Prosser, ¶ 23. We held


                                          30
that the government owed no legal duty to the plaintiffs in that case, in part because to hold

otherwise would force the government “either to deny all but the most benign development

plans or face innumerable lawsuits.” Prosser, ¶ 27.

¶67    The case before us presents the question of the applicability of the public duty

doctrine to another land use decision intended to promote the general welfare—approval of a

planned unit development. See Columbia Falls Municipal Code at 17.04.030. As we stated

in Gatlin-Johnson, Prosser recognizes the public duty doctrine’s applicability to government

actions involving “land use decisions by a local government body.” Gatlin-Johnson, ¶ 15.

The Court’s decision today, holding that the public duty doctrine does not apply to a land use

decision by a local government body, conflicts directly with Prosser.

¶68    The Court appears to find something novel or unique about the City’s use of a planned

unit development as a land use regulation tool. But planned unit developments, like zoning

amendments and variances, are normal land use regulation tools, their approvals are matters

committed to the judgment of local officials, and they are used to further the welfare of the

general public. Additionally, use of a planned unit development may be appropriate in

situations in which an amendment and variance is not: planned unit developments can serve

public goals by increasing flexibility, creativity, variety, and efficient use of open space in

land development projects. See 3 Josh Martinez, Local Government Law § 16:17, at 16-44

through 45 (2nd ed. 2014). They can achieve this because, by the very nature of a planned

unit development, a “local government exercises more precise control than would otherwise

be theoretically possible when acting upon a request for a map or text amendment.” Local

Government Law § 16:17, at 16-44 through 45.


                                          31
¶69    The Court’s apparent concern with this greater level of control, Opinion, ¶¶ 43-44,

misses the point that such control is inherent in planned unit developments, which are simply

tools for land use regulation to serve the general welfare. Land use regulation is exclusively

a governmental function and exclusively a creature of statute. See generally § 76-2-101

through -340, MCA. A private actor does not undertake land use regulation, so there is no

principle of law applying generally to both the government and private actors that imposes a

legal duty on the government during land use regulation.

¶70    The Court’s focus on the City’s “active involve[ment]” in this case overstates the

evidence and overlooks the parallels with Prosser. Like Kent, the Prosser plaintiffs claimed

that a government defendant facilitated a harm-causing instrumentality. Prosser concerned

the City of Hamilton’s approval of the change in property use of a fast-food restaurant to a

casino and lounge. Prosser, ¶¶ 5-6. Before the approval, neighbors to the property raised

their concerns (mostly regarding the noise and light pollution that the change would portend)

with the city. Nonetheless, the city approved the building modification on the condition that

it “comply with all federal, state and local laws.” The casino was built. Prosser, ¶ 6. The

neighbors then sued the city for its role in promoting and facilitating the very problems that

the city had considered in first approving the project (noise and light pollution) and for

failing to enforce its condition to the project’s approval. Prosser, ¶¶ 7-8.

¶71    The Court apparently concludes that, unlike in this case, the city’s involvement in

Prosser was not “active involve[ment]” because it did not “voluntarily undertake oversight

of the construction, nor did it actively participate in the design and location of the remodeled

building.” Opinion, ¶ 43. The harm-causing instrumentality in Prosser was not the design


                                           32
and construction of the building; it was the use of the land for a casino. The City of

Hamilton’s “active involve[ment]” in approving that use directly facilitated the instrument of

harm. Yet Hamilton was protected by the public duty doctrine because its action was taken

pursuant to state law and city ordinances that were enacted “to benefit the general public.”

Prosser, ¶ 23.

¶72    The harm-causing instrumentality in this case is the grade of the trail. Columbia Falls

was not “actively involved” with determining the trail’s grade. The City’s interest in the

portion of the trail where the accident occurred was simply that it connect properties that

otherwise were not adjacent to a sidewalk. Touching a sidewalk is normally a requirement to

development in Columbia Falls, but, at the developer’s proposal, the City waived that

requirement so long as a private trail system connected properties without a sidewalk. In

fact, the City Manager specifically told Cedar Pointe’s developer that that the City had no

expectation regarding the slope of the private walk path. Opinion, ¶ 8. The District Court

found that the City appeared “to have taken an active part in deciding the location and layout

of the trail system.” (Emphasis added.) What the City did in this case—requiring, as a

condition to waiving the requirement that sidewalks connect all properties, that a private path

connect properties, and having government employees walk the path to determine that it

fulfilled that specific condition—did not make the City the private path’s engineer,

responsible for creation of the path’s slope.

¶73    It is not entirely accurate to say, as the Court suggests, that “no one in Prosser argued

that the public duty doctrine did not apply.” Opinion, ¶ 42. In fact, though framed

differently, the plaintiffs in Prosser offered arguments nearly identical to Kent’s that the


                                          33
public duty doctrine should not apply to a city’s allegedly negligent exercise of its statutory

land use authority. While Kent frames her argument in terms of a generally applicable

principle of law exempting the doctrine’s application, the Prosser plaintiffs framed their

arguments in terms of a special duty exempting the doctrine’s application.1 But, in light of

the reasons for the public duty doctrine, the land use regulation exemplified in the City’s

oversight of a planned unit development is precisely the type of context in which the public

duty doctrine does apply. Development of real property almost always requires a local

government’s oversight, regulation, and either tacit or explicit approval. Today’s decision,

which situates local governments as the insurers of private developers, thus risks

innumerable lawsuits and burdening the discretion of governments to use their limited

resources to advance the general welfare.

¶74    The Court also places special “focus” on our opinion in Gatlin-Johnson, Opinion,

¶ 22, concluding that it was error for the District Court to decline “to reconsider its analysis”

after that case was decided, Opinion, ¶ 41. While acknowledging that Gatlin-Johnson did

not create new law, Opinion, ¶ 39, the Court relies on Gatlin-Johnson’s recognition that the

public duty doctrine “does not apply where the government’s duty is defined by other

generally applicable principles of law.” Gatlin-Johnson, ¶ 17. But, as the Court observes,

Gatlin-Johnson simply stated the terms of the public duty doctrine consistent with how we

1
  See, e.g., Brief of Plaintiffs and Appellants, Prosser v. Kennedy Enter., Inc., S. Ct. No. DA
06-0073, at 7 (“There exists a ‘special relationship’ between the Occupants and the City which has
given rise to a special duty that is more particular than the duty owed to the public at large which
prevents the application of the public doctrine to Occupants in this case.”); at 13 (“The special duty
owed by the City to the Occupants prevents the application of the public duty doctrine to bar
Occupant’s claims against the City in this case.”) (original emphases removed and new emphases
added).


                                             34
had stated them in the past: the doctrine “applies only if the public entity truly has a duty to

the public at large.” Gatlin-Johnson, ¶ 17.

¶75    In Gatlin-Johnson, we identified a single generally applicable principle of law that

imposes a legal duty on government and renders the public duty doctrine inapplicable:

premises liability. Gatlin-Johnson, ¶¶ 18-20. That conclusion was grounded in numerous

Montana cases that did not apply the public duty doctrine in negligence actions stating a

claim for premises liability against a government entity. Gatlin-Johnson, ¶¶ 18-19. We

explained that premises liability is a generally applicable principle of law because, with

premises liability, “the government entity, if a private person, would be liable to the claimant

for the damages under the laws of the state.” Gatlin-Johnson, ¶ 19 (quoting § 2-9-101(1),

MCA). Our recognition that the government often has a legal duty outside the public duty

doctrine when acting as a landowner was nothing new. See Cooley on Torts § 450, at 238

(4th ed. 1932) (noting that when municipal corporations act as “artificial persons” owning

and managing property, “they are chargeable with all the duties and obligations of other

owners of property, and must respond for creating or suffering nuisances under the same

rules which govern the responsibility of natural persons”). Clearly, however, premises

liability is not the theory on which the Court relies to impose a duty on the City in this case.

After all, the City did not own, maintain, control, design, engineer, or construct the path

where the tragic accident in this case occurred. The District Court accordingly concluded

that premises liability did not apply, and Kent has not appealed that conclusion.

¶76    The Court relies in part on the Rhode Island case Verity, Opinion ¶ 51, but Verity does

not purport to state a generally applicable principle of law. Rather, the Rhode Island court in


                                           35
Verity recognized an exception to the public duty doctrine when the government “has created

a circumstance that forces an individual into a position of peril and subsequently chooses not

to remedy the situation.” Verity, 585 A.2d at 67 (“abrogat[ing]” the public duty doctrine in

Rhode Island when governmental negligence is so “extreme” or “egregious” that “to bar suit

. . . would effectively excuse[] governmental employees from remedying perilous situations

that they themselves created”); see Berman v. Sitrin, 991 A.2d 1038, 1044 n.7 (R.I. 2010)

(describing Verity as recognizing an “exception” to the public duty doctrine “when the

governmental entity acts in an egregious manner”); Haley v. Lincoln, 611 A.2d 845, 849

(R.I. 1992) (describing the “‘egregious conduct’ exception to the public duty doctrine first

delineated by this court in Verity”). The exception recognized in Verity is particular to

government actors; it is therefore not generally applicable.2

¶77    The Court states nonetheless that the “same result” is compelled in this case as in

Verity because “the City was actively involved in the design of the path, knew of its

dangerous grade, had the statutory authority to compel a modification, and yet exercised its

statutory and contractual authority to approve it.” Opinion, ¶ 52. Once again, this “statutory

authority” derives not from a principle of law generally applicable to public and private

actors alike, but from the City’s role in land use regulation. The Court concludes that, by its


2
  Although not explicitly stated in Verity, it also appears that the defendant government agency in
that case maintained and controlled the property on which the danger that caused the plaintiff’s
injury was found. See Verity, 585 A.2d at 65-67. Rhode Island, like Montana, recognizes an
exception when the governmental entity acts as a landowner. Adams v. R.I. Dep’t of Corr., 973 A.2d
542, 546 (R.I. 2009); see Gatlin-Johnson, ¶ 20; Kaiser v. Town of Whitehall, 221 Mont. 322, 325,
718 P.2d 1341, 1343 (1986) (imposing on a government defendant a legal duty owed to those
“travelling on a public sidewalk”). But the case on appeal is not a premise liability case. The City
did not own, maintain, or control the path. The District Court accordingly determined that premises
liability does not apply in this case. Kent has not appealed that determination.


                                            36
active involvement under the guise of this authority, the City voluntarily assumed a legal

duty to regulate the slope of the private path. Opinion, ¶ 50. In contrast to a gratuitous

service, however, the City acted pursuant to statute and under the “more precise” exercise of

control inherent in the review of a planned unit development. Local Government Law

§ 16:17, at 16-44 through 45. Compare Vesel, 110 Mont. at 92, 100 P.2d at 80 (applying

duty of reasonable care to gratuitous service rendered “in the absence of a statutory or

contractual obligation”). Put simply, the City was not acting as a “good samaritan.” See

Nichols v. Block, 656 F. Supp. 1436, 1446 (D. Mont. 1987).

¶78    Without expressly saying so, the Court suggests a new exception to the public duty

doctrine where the government engages in affirmative acts that give rise to the dangerous

circumstance causing a plaintiff’s injury. Opinion, ¶¶ 46-49. This concept is not new to the

law. As stated by Judge Cardozo:

       If conduct has gone forward to such a stage that inaction would commonly
       result, not negatively merely in withholding a benefit, but positively or
       actively in working an injury, there exists a relation out of which arises a duty
       to go forward.

H.R. Moch Co., Inc. v. Rensselaer Water Co., 247 N.Y. 160, 167 (1928). See also Sult v.

Scandrett, 119 Mont. 570, 573, 178 P.2d 405, 407 (1947). The Utah Supreme Court recently

embraced this theory, ruling that the public duty doctrine “does not immunize the State from

liability for affirmative acts that harm a plaintiff.” Instead, the doctrine “is limited to

situations where a plaintiff seeks to impose liability for a duty to protect the general public

from external harms.” Cope, ¶ 2. The Utah court distinguished situations where the

government actor does not create the plaintiff’s peril—in which the public duty doctrine



                                          37
would shield the government from liability—from those in which “the affirmative acts of a

public employee actually cause the harm” and the public duty doctrine does not apply.

Cope, ¶ 24. See also Cooley on Torts, § 450, at 241-42 (noting that a city is not liable for

failure to abate a nuisance, “although it may be held liable for a nuisance created and

maintained by it”).

¶79       Kent has done nothing to show that the City created the dangerous grade on the walk

path.3 The Utah court’s analysis in Cope explained that “governmental actors are also not

liable for a defective effort to perform a public duty to ameliorate an externally caused

harm.” Cope, ¶ 24 n.5 (citing as an example a case in which the City of Salt Lake was

shielded by the public duty doctrine when it took various measures to combat flooding that

proved inadequate to protect the plaintiff’s property). Therefore, even under an “affirmative

acts” exception, Kent’s allegations against the City fail. In both Verity and Cope, the

government actor created the dangerous condition. Here, the Court seems to recognize that

the City did not create the slope when it states, “It is apparent” that the “City did not require

the owner, the contractors, or engineers” to lessen the grade of the private path. Opinion,

¶ 46. No party argues in this case that the City created the peril that caused Casey Kent’s

injury.

¶80       Absent facts showing that the City “launched a force or instrument of [potential]

harm,” Opinion, ¶ 48 (quoting Cope, ¶ 36), the concepts on which the Court relies already


3
 Though Kent pleaded a claim for willful or wanton misconduct, the District Court rejected that
claim as “merely a species of negligence, utilized in a premises liability action.” Kent has not
appealed that ruling. In any event, Kent’s claim for willful or wanton misconduct does not allege
that an affirmative act by the City created the peril that caused the accident in this case.


                                           38
are subsumed in the established exceptions to the public duty doctrine. Both Kent and the

Court have not argued and have implicitly conceded that the City’s acts or omissions do not

bring this case within any of the recognized exceptions.

¶81    With respect to the City’s “statutory duty,” our case law makes clear that the public

duty doctrine applies to a government entity under circumstances where a statute imposes a

duty to the public at large. For instance, in Nelson v. State, 2008 MT 336, 346 Mont. 206,

195 P.3d 293 (Doris Nelson), the plaintiff alleged “that the State negligently and in violation

of statute” issued a medical license to a doctor whose alleged malpractice played a role in the

death of the plaintiff’s decedent. Doris Nelson, ¶¶ 9-10. We applied the public duty

doctrine. Doris Nelson, ¶ 50. Similarly, in Prosser, where the government defendant had

the statutory authority to reject the proposed change in use, we applied the public duty

doctrine. Prosser, ¶ 22. If neither the statutory authority to deny a doctor a license nor the

statutory authority to deny a land use change creates a legal duty outside the public duty

doctrine, the statutory authority to reject a planned unit development does not, either.

¶82    Further, it is unquestionable that the statutes in this case do not meet the special

relationship exception for statutes intended to protect from harm a specific class of persons

of which the plaintiff is a member. The City approved the planned unit development under

the statutory authority provided to it by the state “[f]or the purpose of promoting health,

safety, morals, or the general welfare of the community.” Section 76-2-301, MCA. The

Court seems to suggest that the City negligently enforced its municipal ordinance

disallowing “slopes equal to or greater than twenty-five percent subsidence,” but this

ordinance’s purpose is to protect the “general welfare”—not private individuals of which the


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plaintiff is a member. Opinion, ¶ 46 (citing Columbia Falls Municipal Code 17.14.030).4 A

private person would not be “liable to the claimant for the damages under the laws of the

state,” Gatlin-Johnson, ¶ 19, for failing to exercise the statutory authority under which the

City approved the planned unit development. Nor do Kent’s allegations meet the exception

for application of the public duty doctrine when the government has taken affirmative steps

to protect a specific individual from harm. See Nelson, ¶ 38.

¶83    In the acknowledged absence of the inapplicability of any exception to the public duty

doctrine, it appears that the only basis for imposing a legal duty on the City in this case is a

general duty of ordinary care, applying to the City’s actions enforcing its land use code

provisions. Opinion, ¶ 50. But imposing a legal duty on this basis does not comport with

precedent in which we have applied the public duty doctrine to government actions enforcing

statutes that a governmental entity is charged with administering. For instance, in Gonzalez,

the plaintiff claimed that police officers acted negligently in responding to an emergency call

(leading to her rape), and negligently arrested her at the scene of the crime (causing her

severe emotional distress). Gonzalez, ¶ 19. The plaintiff argued that she was a foreseeable

victim of emergency response acts exercised without due care. See Brief for Appellant,

Gonzalez v. City of Bozeman, S. Ct. No. DA 08-0566, at pg. 11 (“The question of whether

the officers owed [the plaintiff] a duty of care also depends upon the foreseeability that she

would be injured by their conduct.”). Yet we analyzed this case under the public duty

doctrine and its exceptions. Gonzalez, ¶ 20.


4
 The Court does not explain why this municipal ordinance matters, considering the facts show that
the slope of the path where the accident occurred was under twenty-five percent. Opinion, ¶ 1.


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¶84      We have proceeded similarly in many other cases in which the government was

alleged to have been negligent in enforcing or following pertinent statutes, and found a legal

duty only where a special relationship brought the case within an exception to the public

duty doctrine. See Eklund v. Trost, 2006 MT 333, ¶ 32, 335 Mont. 112, 151 P.3d 870 (not

applying a general duty of due care to police conduct during a high speed chase and instead

imposing a duty only after finding a special relationship); Orr v. State, 2004 MT 354, ¶ 47,

324 Mont. 391, 106 P.3d 100 (not applying a general duty of due care to state enforcement of

mine regulations and instead imposing a duty only after finding a special relationship);

Massee v. Thompson, 2004 MT 121, ¶ 44, 321 Mont. 210, 90 P.3d 394 (not applying a

general duty of due care to sheriff’s deputies’ enforcement of a domestic abuse statute and

instead imposing a duty only after finding a special relationship); Nelson, ¶ 40, (not applying

a general duty of due care to a police officer’s failure to restrain a drunk driver and instead

imposing a duty only after finding a special relationship). The Court does not consider these

cases.

¶85      Our law on when a government defendant owes a duty in a negligence suit is not and

need not be as baffling as today’s decision makes it. Consistent with our precedent, the first

step in the Court’s analysis should be to ask whether the City truly owes a duty to the public

at large in executing its authority under the land use regulation statutes and ordinances.

Consistent with Prosser’s conclusion and Gatlin-Johnson’s affirmation that the public duty

doctrine applies to land use decisions, we should answer that question in the affirmative. We

should next ask whether Kent has identified a generally applicable principle of law that

otherwise would impose a legal duty on the City in this case. Kent has failed to identify such


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a principle. Then, we should examine the special relationship exceptions to the public duty

doctrine. Kent has not argued that any special relationship exception applies. Accordingly, I

would affirm the District Court’s order. I dissent from the Court’s contrary decision.



                                                  /S/ BETH BAKER


Justice Jim Rice and Justice Laurie McKinnon join in the dissenting Opinion of Justice
Baker.


                                                  /S/ LAURIE McKINNON
                                                  /S/ JIM RICE




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