Public Duty Doctrine With Regard To Definition, Theory and Application

Essay by Mehmood October 2008

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Public duty doctrine definition is that "a local government entity's liability for nondiscretionary functions may not be predicated upon the breach of a general duty owed to the public as a whole; instead only the breach of a duty owned to the particular person injured is actionable." The public duty doctrine is based on the absence of duty in the first instance. This means that the government entity can only bear liability if at all a particular individual is injured due to the failure of the entity; this means that there must be a duty which is breached on that particular individual. Liability is not taken if at all it is based on the general public. (Knight, 1999)"Governmental duty to protect its citizens is a general duty to the public as a whole, and where there is only a general duty to protect the public, there is no duty of care to an individual citizen which may result in liability."

The public duty doctrine is not applicable to the cases of general duty to the public but it is only applicable in cases of an individual person. In case whereby a plaintiff claims for breach of the general duty it can not be awarded because it is governments duty to protect its citizens but if it is under special duty the plaintiff can claim and be awarded damages. (Knight, 1999)Underlying the public duty doctrine is the notion that certain governmental conduct-even though it may create a "zone of risk" may not give rise to a duty of care to individuals if the burden of exposing the government to tort liability is significant enough that it may substantially interfere with or impair the ability of the executive branch to exercise its power for the public benefit. Even though the entity may have liability there are cases whereby the duty of care may not be awarded to the individual. This may be as a result of preventing the entity from carrying its activities which have public benefit. (Wynn, 2007)Any conduct that creates a "foreseeable zone of risk" gives rise to a duty of care. If the government entities have a conduct that may create a risk to an individual or people when such a risk happens to the people or individuals then there is a duty of care by the government but if the no conduct or anything which has been done by the entity to create risks to the people and a risk occurs to individual or the general public then there is no duty of care. The government entity is only reliable in cases whereby there is evidence of foreseeable risk which was not acted upon at the right time. (Drake, 2006)In order to establish that a special relationship exists between a local government entity and an individual, which is the basis for a special duty of care owed to such individual, there are certain elements which need to be present in such a case. In the first place "an assumption by the local government entity, through promises or actions of an affirmative duty to act on behalf of the party who was injured." Secondly the knowledge on the part of the local governmental entity's agents that inaction could lead to harm. Thirdly "some form of direct contact between the local government entity's agents and the injured party"; and finally "party's justifiable reliance on the local government entity's affirmative undertaking." (Drake, 2006)I do not agree with the public duty doctrine because of the requirements which have to be provided before a liability is accepted by the government entity. Some of the requirements are put forth to limit people from claiming duty of care which should be provided to every one injured due to their failure. (Wynn, 2007)List of referencesDrake W.N. (2006), Florida's Public duty doctrine, Florida Bar Journal. 6 Sep 2008Knight D. (1999), In the supreme court of Appeals of West Virginia, 5 Sep 2008Wynn A.J. (2007), COA splits again over Public Duty Doctrine, 31 Aug 2008