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although government owes certain duties to public at large, does not owe those duties to individual membersof public. Thus, no individual has “standing” to sue for damages caused by breach of such duty. NOT an immunity defense, ANDnegates the duty elementof the P’s prima facie case BUT: when police promise to take care & fail, YES duty(SPECIAL relationship) (1)Assumption by government of affirmative duty (2)Knowledge of inaction would lead to harm (3)Direct contact of injured party with government (4)Justifiable reliance on government TESTBerkovitz v. United States:Requirements Determining when Discretionary Function Exception applies:**only decisions “based on considerations of public policy” will apply Conduct at issue must be discretionary, involving “an element of judgment or choice.”Judgment at issue be of the kind that the discretionary function exception was designed to shield.Purpose: prevent judicial second-guessing of gvn’t decisions ***Protect ONLY judgments grounded in social, economic, and political policy. TEST:To determine Special Relationship: AMOL 1.assumption by municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;2.knowledge on the part of the municipality agents that inaction could lead to harm;3.some form of direct contact b/w municipality’s agents and the injured party; and4.that party’s unjustifiable reliance on the municipality’s affirmative undertaking. 37
Riss v. City of New York(1969) Public Rule Duty; NOT affirmative Defense case YES LIABILITY EXCEPTIONFacts: P sued City of New York for failing to protect her from her stalker; Threatened to kill or harm P P repeatedly sought help from NY Police (D) D did nothing to protect. Stalker paid someone to throw lye in P’s face blinded in one eye and perm. DisfiguredHolding: NO. Municipality NOT LIABLE. No general duty to protect the public. Police responsibility is limited by its resources. Public Duty Rule.Strauss v. Belle Realty Co. (1985) Treating Con Ed like municipality for Public Duty Rule YES LIABILITY EXCEPTION Facts: D (private company) P (tenant of rent apt). P&D no contract. D power system blacked out, P injured. Holding: D owed NO DUTYto P. Dutyin Negligence Caseif NOT defined by foreseeability nor private contract. Matter ofPublic Policy: Because millionsof people were affected by Con Ed’s gross negligence, liability in a buildings common area,should be limited to those with a contractual relationship with. ** Winterbottom v. Wrightall over again!Dissent:Myth of crushing liability: perhaps we should put burden on ∆ to prove that liability would be in fact crushing.Kircher v. City of Jamestown: YES LIABILITY EXCEPTION3rdparty told police someone was kidnapped – and police offered to follow up. Normally this would be an affirmative step (which they didn’t do in Riss).