Wе are again faced with the confusing area of whether a duty owed by the state to the public in general has been narrowed to a private duty which will support liability for the negligent acts of the state’s agent. In particular this appeal presents the liability of the state for acts committed by an escaped convict.
This actiоn was instituted by plaintiff-appellant, Patricia Cady, against the State of Arizona and several employees of the Department of Corrections for injuries suffered by her at the hands of John Bates, a felon who had escaped from the custody of the Department of Corrections. Following several procedural maneuvers not material to the issues raised by this appeal, the Superior Court of Maricopa County granted the state’s motion for summary judgment, holding, in essence, that the state owed no duty to the plaintiff under the undisputed material facts presented which would form any basis for liability for the negligent acts of its employees. The plaintiff has appealed.
Thе undisputed facts are that on February 25, 1977, John David Bates and two other convicts were transported from the Arizona State Prison in Florence, Arizona, to the Maricopa County Hospital in Phoenix, Arizona.
*260 The prison van used to transport the prisoners was parked in the public parking lot of the Maricopa County Hospital and the prisoners were escorted by two Department of Corrections officers into the hospital. Shortly before noon, the three prisoners, under the custody of the two guards, left the hospital and proceeded through the public parking lot to the prison van. Numerous people were coming and going in this area. Each prisoner was secured with a waist chain and wrist manacles, but no leg irons. Upon reaching the van, one of the guards checked the van for security, and opened the side sliding doors. After one of the prisoners had been placed in the van, Bates turned to the guard and said, “Okay, gentlemen, this is it,” whereupon a female instructed the guards not to touch their guns. The guards turned and were confronted by a- female (later identified as Bates’ wife), holding a gun. Bates disarmed the guards, locked them in the van and made good his getaway in a silver station wagon.
Later that day, at approximately 11 p. m., the plaintiff was accosted by Bates and his wife in a parking lot in Tucson, Arizona (approximately 120 miles from Phoenix). She was abducted by them and forced to drive the fugitives in her automobile to the state of Missouri. The plaintiff was held captive by the Bates for six days during which time she suffered both emotional and physical injuries.
Plaintiff’s cause of action arising out of these facts is bottomed upon the admitted duty of the Department of Corrections to keep convicted felons in custody, a negligent breach of that duty, and resulting injuries proximately caused by the breach. The state, while conceding that a general duty exists to keep convicted felons in custody 1 and admitting for summary judgment purposes that a trier of fact could find negligence on the part of the prison guards in allowing Bates to escape, nevеrtheless contends that its general duty to the public created by this statute had not narrowed to a private duty to this plaintiff, the breach of which would give rise to liability.
We began this opinion by commenting that this case fell within the “confusing” area of public versus private duty insofar as actions of state officers are concerned. Although this confusiоn need not be documented for the knowledgeable, a review of Arizona case law on this subject may be helpful for the uninitiated. We can start our review with the 1969 case of
Massengill v. Yuma County,
It was on the element of duty that the court focused in denying liability on the part of the county. In doing so, the court, quoting 2 T. Cooly, Torts 385-386 (4th Ed. 1932), held:
[I]f the duty which the official authority imposes upon the officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution.
* * * * i|c *
The failure of a public officer to perform a public duty can constitute an indi *261 vidual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its nonperformance.
Illustrative of this narrowing of the public duty to a private duty are cases where because of state action the
plaintiff
acquires a relationship with the state so that the failure of the state to perform its public duty results in actively causing injury to that particular plaintiff; e.
g.,
the failure to protect an informant such as in the case of
Schuster v. City of New York,
The rule in
Massengill
that a breach of duty owed to the public is not actionable unless the plaintiff can establish that a course of conduct occurred which gives rise to a special relationship was followed in Arizona for several years.
Duran v. City of Tucson,
Then along came
Grimm v. Arizona Board of Pardons and Paroles,
The Board of Pardons and Paroles in this instance has narrowed its duty from one owed to the general public to one owed to individuals by assuming parole supervision over, or taking charge of, а person having dangerous tendencies. (Emphasis added).
The basis of this “narrowing” according to the court was that Massengill dealt with a failure to act (act of omission) while the Board of Pardons and Paroles performed an affirmative act in releasing the dangerous parolee (an act of commission). Since there was no attempt tо establish a relationship between the decedent Grimm and the Board of Pardons and Paroles and the court referred to individuals in general, rather than the particular plaintiff involved, it could reasonably be assumed that the liability of the state in these types of cases turned not on the public or private duty dichotomy, but rather whether the action of the state arose from an act of commission or omission.
Following the
Grimm
decision, the Court of Appeals on several occasions applied the rationale of public versus private duty and the Arizona Supreme Court denied review.
McGeorge v. City of Phoenix,
The Supreme Court itself reaffirmed the
Massengill
principle in the ease of
DeHoney v. Hernandez,
Is the doctrine of
Massengill
which requires the creation of a special relationship between the injured plaintiff and the state before a duty is established a viable doctrine in Arizona? Two additional Arizona Supreme Court decisions cast serious doubts
*262
on its validity. The first of these is
State v. Superior Court,
Since Massengill, supra, and with the exception of Grimm v. Arizona Board of Pardons and Paroles,115 Ariz. 260 ,564 P.2d 1227 (1977), neither this Court nor the Court of Appeals has found that the duty of a governmental agency or a public official extends to a private individual. We emphasize, however, that such determination can only be made on a case by case basis and that in the instant case the public duty has been created by statutory language that is designed to protect a particular class of persons rather than the public as a whole.
State v. Superior Court
was followed in
Oleszczuk
v.
State,
The examiner issued Bilodeau a license after filling in a question left blank by Bilodeau inquiring as to whether the applicant suffered from epilepsy, seizures or fainting spells.
At this time the Department of Motor Vehicles was required to keep a record of all licensees whose licenses had been suspended or revoked and to keep a record of all convictions for traffic offenses together with the accidents giving rise to those convictions. A.R.S. § 28-428. In addition, the Motor Vehicle Department was required to establish a medical advisory board to advise the department on medical standards for driver licensing. A.R.S. § 28-432.
Apparently neither Mr. Bilodeau’s prior license surrender nor his previous traffic accidents got into the files and the department had failed to establish a medical advisory board.
Aрproximately one and one-half years later, Bilodeau became unconscious while driving his automobile and rear-ended an automobile being driven by Oieszczuk, resulting in serious injuries and a death. Oieszczuk sued the state, contending that it and its agencies were negligent in issuing a driver’s license to Bilodeau. In reversing a summary judgment in favor of the State, the Suрreme Court held:
We believe this case is closer to State v. Superior Court, supra, than to Massengill, supra. There is a difference between the general law enforcement duties of a police officer and the specific duty involved in the issuance of driver’s licenses. The duty of the law enforcement officers in Massengill was not just to highway safety alone, but to the general safety of all persons whether using the highways or not. It was a wide variety of diversified duties that all law enforcement officers have to the general public.
The duty of the Motor Vehicle Department in the issuance of driver’s licenses is more narrow. It is the specific duty of issuing driver’s licenses. When there is a statute involved, the more specific and narrow the duty required by the statute, the more likely it is that the duty has been narrowed from a general duty to the public to a specific duty to an individual.
124 Ariz. at 37fr-7,
What principles can be gleaned from this review of the Arizona case law (aside from *263 the fact that the law will be established “on a case by case basis,” State v. Superior Court, supra, which, of course, is to say there is no law at all)? If we were convinced that the Supreme Court in its decisions in Grimm, State v. Superior Court, and Oleszczuk had actually analyzed the rationale of Massengill and its supportive corollary which makes the general rule work, we would have to conclude that now a violation of a public duty is always actionable by a plaintiff who is injured by a breach of that duty. However, because of the vacillation of the Supreme Court on this subject and that court’s unwillingness to specifically overrule Massengill, we are not so convinced.
To place this matter in proper perspective, the rationale of Massengill, which we believe to be sound law, is that if the duty which is alleged to have been breached is one that the state (or its governmental agencies or agents) undertakes because of the obligation imposed upon it for the protection of the public at large, 2 that duty is actionable by an individual only when it can be established that by reason of previous conduct a relationship was established between the state and the individual such that failure to perform that duty or its negligent performance would actively work to the special injury of that individual.
In our opinion, it is the failure of the Supreme Court to focus upon the sine qua non of the public duty, that is, the relationship established by prior conduct between the injured plaintiff and the state, that has given rise to the mixed bag of judicial opinion on this subject. Under the
Massengill
rationale, it should be immaterial whether the breach of the duty arose from an act of omission as compared tо an act of commission (in this case we have some difficulty in determining whether the prison official failed to keep Bates in custody (an act of omission) or by transporting him from Phoenix facilitated his escape (an act of commission); or whether the duty was imposed by a general statute or a specific statute. We admit that a general statutory scheme for the protection of a particular class of the public can give rise to a reliance by the public on existence of that protection in conducting their affairs, and that the breach of that reliance and protection may impose liability.
Tcherepnin v. Franz,
However, when the duty is created by statute, no matter how specific, the first inquiry must always be whether the statutory functions undertaken pursuant thereto were in the furtherance of an obligation arising out of the protection of the public at large. If the answer to that inquiry is in the affirmative, then the second inquiry is undertаken to determine whether by prior . conduct between the state and the injured plaintiff, a relationship was established “whereby either the failure to perform the public duty or its negligent performance would actively work a special injury to that plaintiff. 3
Applying this analysis to the facts in the case, we hold that the duty to keep felons in custody created by A.R.S. § 31— 201.01(A) imposes upon the superintendent and hence the state, obligations that flow to the public at large. We further hold that *264 the plaintiff here has failed to to plead or establish a course of conduct between herself and the state which would create a relationship that would form the basis of a duty to her individually. 4 For thеse reasons the judgment of the trial court is affirmed.
We realize that in reaching this conclusion we are treating both Grimm and 01-eszczuk as aberrations in the law of public duty. We further realize that in the final analysis the question of whether a “duty” is to be imposed is a policy decision that rests, in this case, with the Arizona Supreme Court.
Judgment affirmed.
Notes
. A.R.S. § 31-201.01(A) provides: “The superintendent shall hold in сustody all persons sentenced to the state prison under the law and shall hold such persons for the term directed by the court or for such other period of time as may be ordered by the board of pardons and paroles, subject to law.”
. By this definition of “duty” we automatically eliminate those duties that arise out of conduct which if perfоrmed by an individual would impose liability but which by principles of respondeat superior impose liability on the governmental body, such as the negligent driving of a police officer who causes injury to a citizen, and those duties which imposed governmental liability when dealing with the providing of specific services and facilities such as the duty to maintain streets and highways, see Stone v. Arizona Highway Commission, supra.
. We realize that the result reached in Oieszczuk is not supportable under this analysis as the statutory scheme of issuing drivers’ licenses does not create a justifiable reliance on the part of the motoring public that all licensed drivers are either safe drivers or free from medical problems, nor was the injured plaintiff able to establish a relationship based upоn conduct between the state and himself.
. We do not reach the issue of the whether the plaintiff here was foreseeable either in determining the extent of duty or the expansion of negligence. Nor do we determine whether, assuming the duty exists, Mr. Bates’ criminal act in effectuating the escape was an independent superseding act.
See Chavez v. Tolleson Elementary School District,