Kent v. City of Columbia Falls , 379 Mont. 190 ( 2015 )


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  •                                                                                               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
    39
    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.
    40
    ¶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
    41
    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
    42