Powell v. District of Columbia

602 A.2d 1123, 1992 D.C. App. LEXIS 46, 1992 WL 25676

• Court: District of Columbia Court of Appeals
• Decided: February 14, 1992
• Docket: 90-1016
• Status: Published

Opinions

ROGERS, Chief Judge:

Appellant Verdina Powell seeks reversal of the judgment dismissing her lawsuit as barred by the public duty doctrine. We reverse, holding that the trial judge erred by concluding that under the public duty doctrine the District of Columbia government could not be held liable in tort for the negligence of its employee in issuing the wrong automobile license tags and registration number for appellant’s car since appellant sufficiently alleged a special duty as would bring her within the “special relationship” exception to the public duty doctrine.

I

Appellant purchased a 1984 Ford Escort in April 1986, registered the car in the District of Columbia, and received D.C. license tags bearing the number 131-772. Thereafter, on December 6, 1986, she was stopped by an Anne Arundel County, Maryland police officer and her car was impounded when a computer check, through the Washington Area Law Enforcement System (WALES), incorrectly indicated that appellant’s registration number belonged to another individual.¹ Based on these events, appellant sued the District of Columbia government (District), alleging that it negligently issued her a registration certificate and license plates that had previously been issued to Ms. Althea Hinds, and negligently entered her registration information into the WALES system. The trial judge granted the District’s motion to dismiss the complaint on the grounds that the suit was barred by the public duty doctrine.

II Hines v. District of Columbia, 580 A.2d 133, 136 (D.C.1990) (citing Turner v. District of Columbia, 532 A.2d 662 (D.C.1987); Morgan v. District of Columbia, 468 A.2d 1306 (D.C.1983) (en banc); Platt v. District of Columbia, 467 A.2d 149 (D.C.1983); Warren v. District of Columbia, 444 A.2d 1 (D.C.1981) (en banc)).

Under the public duty doctrine:

[the District of Columbia] and its agents owe no duty to provide public services to particular citizens as individuals. Instead, absent some “special relationship” between the government and the individual, the District’s duty is to provide public services to the public at large.

The purpose of the public duty doctrine is to shield the District and its employees from liability associated with providing “public services.” Hines v. District of Columbia, supra, 580 A.2d at 136. As applied by the court, it has operated to bar lawsuits by a person seeking, as an individual, to enforce the duties to prevent crime and otherwise protect against injury in the absence of a special relationship which imposes a special legal duty. Morgan v. District of Columbia, supra, 468 A.2d at 1311 (police services); Warren v. District of Columbia, supra, 444 A.2d at 2-3 (same); see also Hines v. District of Columbia, supra, 580 A.2d at 136 (ambulance services); Platt v. District of Columbia, supra, 467 A.2d at 150 (building permits).

Originally, the sovereign immunity doctrine shielded state and local governments from all tort liability under the common law maxim: “the king can do no wrong.” Note, Municipal Liability for Negligent Inspection, 23 Loy.L.Rev. 458, 459-460 (1977) (quoting Russell v. The Men Dwelling in the County of Devon, 100 Eng.Rep. 359 (K.B. 1788)) [hereinafter Note, Municipal Liability ]. Realizing that the doctrine of sovereign immunity often led to unfair results, many jurisdictions either abolished the doctrine altogether, id. at 460 n. 14 (citing Wash.Rev.Code Ann. § 4.96.010 (West 1967)), or limited its applicability. See D.C.Code §§ 1-1201 et seq. (1987 Repl.);² see also, ProsseR and Keaton on TORTS § 131, at 1044-1045, 1049 & 1052 (5th ed. 1984) [hereinafter PROSSER].

A number of jurisdictions, including the District of Columbia, now limit the circumstances under which governments can be sued by adopting one or more of three alternative approaches to avoiding liability. Note, Municipal Liability, supra, at 460, 463, 467; 57 Am.Jur.2d Municipal, County, School, and State Tort Liability §§ 104-144. All three approaches have existed at one time or another in the District of Columbia. Two of them continue the sovereign immunity doctrine’s jurisdictional bar to bringing suit, but limit its applicability by dividing governmental activities into two categories: (1) governmental (immunity) and proprietary (no immunity) or (2) discretionary (immunity) and ministerial (no immunity). See generally Spencer v. General Hospital, 138 U.S.App.D.C. 48, 425 F.2d 479 (1969) (en banc). The third approach is the public duty doctrine, which focuses on “whether the municipality owes a duty to the injured person.” Note, Municipal Liability, supra, at 467; see 57 Am.Jur.2d Municipal, County, School, and State Tort Liability § 139.

Initially, the courts in the District of Columbia applied the govemmental/pro-prietary distinction in determining when sovereign immunity would bar a suit against the District, but gradually abandoned this in favor of the discretionary/ministerial approach. See Spencer v. General Hospital, supra, 138 U.S.App. D.C. at 52, 425 F.2d at 483, and cases cited therein.³ It is now “settled that a District officer, and the District when sued for the acts of an officer under the theory of re-spondeat superior, are protected by sovereign immunity if the officer’s acts are ‘discretionary,’ but subject to liability if the acts were ‘ministerial’ in character.” Rieser v. District of Columbia, 183 U.S.App. D.C. 375, 388, 563 F.2d 462, 475 (1977); accord District of Columbia v. North Wash. Neighbors, 367 A.2d 143, 148 (D.C. 1976) (en banc) (noting that this distinction was influenced by similar distinctions under the Federal Tort Claims Act) (citing Wade v. District of Columbia, 310 A.2d 857, 860-61 (D.C.1973).

This court has adopted the public duty doctrine to limit the District’s liability in negligence cases where sovereign immunity is not a bar to suit. This approach originated from a principle of negligence which states that:

A duty may be general, and owing to everybody, or it may be particular, and owing to a single person only by reason of his peculiar position. Instances of the latter sort * * * [include] the duty of every person to so conduct his business as to avoid exposing others to injury. But a duty owing to everybody can never become the foundation of an action until some individual is placed in [a] position which gives him particular occasion to insist upon its performance; it then becomes a duty to him personally.

Orzechowski v. State, 485 A.2d 545, 549 n. 3 (R.I.1984) (quoting 3 Cooley, Law of TORTS § 478 at 366 (4th ed. 1932)); see also Warren v. District of Columbia, 444 A.2d 1 (D.C.Super.Ct.1978) (Appended to Warren v. District of Columbia, 444 A.2d 1, 8 (D.C.1981)) (rebutting criticism of the tort principle that a duty owed to everyone implies a duty owed to no one).

From this general principle, Professor Cooley formulated the following rule for determining when a public official owes a duty:

[I]f the duty which the official authority imposes upon an 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. On the other hand, if the duty is a duty to an individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages. “The failure of a public officer to perform a public duty can constitute an individual wrong only when so.me 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.”

Warren v. District of Columbia, supra, 444 A.2d at 9 (citing 2 Cooley, Law of Torts § 300, at 385-86 (4th ed. 1932) (citation and footnotes omitted)) (Kelly, J., concurring in part and dissenting in part).

Thus, as with the govemmen-tal/proprietary and the discretionary/ministerial approaches to defining the scope of the District’s immunity, the public duty doctrine also establishes a dichotomy for determining whether a claimant may sue the District. The public duty doctrine, however, is not based on sovereign immunity considerations, but rather on whether, even if the acts involved are ministerial in nature, an actionable duty exists. Rieser v. District of Columbia, supra, 183 U.S.App.D.C. at 390, 563 F.2d at 477. The District is subject to liability for injuries arising from the negligence of its employees only if the duty owed to the plaintiff was a special duty to that person as an individual or as a member of a class of persons to whom a special duty is owed; the District cannot be sued if the duty it owed was a general duty to the public-at-large.⁴ Klahr v. District of Columbia, 576 A.2d 718, 719 (D.C.1990) (“Under the public duty doctrine, a person seeking to hold the District of Columbia liable for negligence must allege and prove that the District owed a special duty to the injured party, greater than or different from any duty which it owed to the general public.”). Since the individual employee cannot be held personally liable for his or her duties to the general public, neither can the municipality under a respondeat superior theory since the employer is entitled to its employee’s defenses.⁵ Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967).

Although the court has not described all of the circumstances under which the public duty doctrine applies, the court has defined it broadly for purposes of limiting the District’s substantive liability. See, e.g., Hines v. District of Columbia, supra, 580 A.2d at 136. The court clearly has decided that the doctrine applies to law enforcement services and services akin to police and fire protection, and that the existence of a user-fee does not necessarily create a special relationship. See Morgan v. District of Columbia, supra, 468 A.2d at 1313 (no special relationship arises from fact person requests police assistance, nor from gratuitous promise to provide services); Wanzer v. District of Columbia, 580 A.2d 127 (D.C.1990) (noting history of free ambulance service, present prohibition against denying service for inability to pay, and “heavy subsidy to the E[mergency] M[edical] S[ervices] from general revenues”). Moreover, within this area of providing police and related services, the doctrine applies to actions as well as inactions by District government employees. See Nichol v. District of Columbia Metro. Police Dept., 444 A.2d 1 (D.C.1981) (en banc) (where officer directed plaintiff’s companion to cease efforts to obtain identification of assailants, and then failed to obtain the information himself, court held that the officer’s “actions and failings ... possessed no additional element necessary to create an overriding special relationship and duty”) (companion case to Warren v. District of Columbia, supra, 444 A.2d at 1). To determine whether the District may be held liable, a court must analyze whether the duty owed to the victim is a general duty to the public-at-large, in which case the public duty doctrine insulates the District from liability, or a special duty to the plaintiff, in which case the “special relationship” exception to the public duty doctrine applies and the District is subject to suit.⁶

The question we must decide, therefore, is whether appellant has alleged an actionable claim by reason of the existence of a special duty owed to her, and thereby has brought herself within the special relationship exception.

III

Under the public duty doctrine, “a person seeking to hold the District of Columbia liable for negligence must allege and prove that the District owed a special duty to the injured party, greater than or different from any duty which it owed to the general public.” Klahr v. District of Columbia, supra, 576 A.2d at 719 (citations omitted). Thus, in the area of police services, the court explained that a special legal duty is created “when there is a course of conduct, special knowledge of possible harm, or the actual use of individuals in the [criminal] investigation.” Warren v. District of Columbia, supra, 444 A.2d at 3. In other words, liability exists where a “ ‘special relationship’ between the city and the injured party” is established. Turner v. District of Columbia, supra, 532 A.2d at 667 (citation and footnote omitted). The court suggested in Turner that “there are at least two ways to demonstrate the existence of a ‘special relationship’_” Id. at 667. A “special relationship” can be established by a statute prescribing “mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole,” Morgan v. District of Columbia, supra, 468 A.2d at 1314 (citations and internal quotation omitted), or by satisfying the two-prong test established by Platt v. District of Columbia, supra, 467 A.2d at 151 (citing Warren v. District of Columbia, supra, 444 A.2d at 11 (Kelly, J., concurring in part and dissenting in part)), discussed infra p. 1131. Appellant asserts that she can satisfy either test.

Appellant contends that as a result of the District’s law requiring registration of motor vehicles, the District has established a special class of individuals who must take certain steps in order to exercise the privilege of owning and operating a motor vehicle in the District of Columbia. Further, she contends that by issuing her a registration certificate and license plates bearing someone else’s number, it was reasonably foreseeable that, if the error were discovered outside of the Offices of the Bureau of Motor Vehicle Services, serious consequences could result for appellant. Therefore, she contends the public duty doctrine does not bar her lawsuit because she was identified as the recipient of the particular services, which are not analogous to police or fire protection provided to the general public, and which are funded by a user fee.⁷

In determining whether a statute or regulation establishes a “special relationship,” the court has not to date defined a protected class in as broad a manner as appellant urges. Licensing and permit statutes do not necessarily create a “special relationship.” District of Columbia v. Forsman, 580 A.2d 1314, 1317-18 (D.C. 1990) (demolition permits; third party claim); Platt v. District of Columbia, supra, 467 A.2d at 152 (occupancy permits for businesses, and necessary fire and building code inspections, third party claim). No statute or regulation relevant here prescribes, to an extent previously held sufficient to create a special relationship, “mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole.” Turner v. District of Columbia, supra, 532 A.2d at 667 (finding a protected class of abused children in the Child Abuse Protection Act, which mandated actions by the District (citing Morgan v. District of Columbia, supra, 468 A.2d at 1314)). Although D.C.Code § 40-102(c) (1990 Repl.) requires the District to issue a certificate and identification tag to qualified motor vehicle owners, the District argues, not unpersuasively, that the purpose of this provision— facilitating law enforcement — is to protect the public-at-large and not motor vehicle owners as a special “class.”⁸ Improved law enforcement protects not only motor vehicle owners but others, such as pedestrians and passengers, some of whom do not own motor vehicles. Therefore, as the District maintains, the government’s interest and purpose in obtaining the information about appellant’s car was limited to law enforcement, and its duly was to the general public, not to provide appellant with benefits or services in any manner different from those provided to members of the general public. In this sense, she was treated as was everyone else who applied for registration.

Nevertheless, another type of statute may give rise to a special relationship even though it does not mandate duties for a special class. A statute which affords an individual the opportunity to seek its protection by taking certain actions may give rise to a special duty to that individual. Thus, appellant contends that a “special relationship” arose between herself and the District of Columbia Bureau of Motor Vehicle Services when, as required by law, she registered her car by filling out forms, making a sworn statement, and paying a fee.

In Platt v. District of Columbia, supra, the court adopted a two-prong test for a “special relationship” of this kind, under which a plaintiff must demonstrate: “1) a direct contact or continuing contact between the victim and the governmental agency or official; and 2) a justifiable reliance on the part of the victim.” 467 A.2d at 151 (citing Warren v. District of Columbia, supra, 444 A.2d at 11 (Kelly, J., concurring in part and dissenting in part)).⁹ The first prong, which focuses on the contact between the plaintiff and the public official, requires “some form of privity between the police department and the victim that sets the victim apart from the general public_ That is, the victim must become a reasonably foreseeable plaintiff.” Warren v. District of Columbia, supra, 444 A.2d at 10 (Kelly, J., concurring in part and dissenting in part) (citing City of Tampa v. Davis, 226 So.2d 450, 454 (Fla. 2nd Dist.Ct.App.1969)). The required contact must, in other words, be a “direct transaction with the person injured” or “an arms-length relationship in which the city’s agent is dealing directly, in some form, with the person injured.” City of Tampa v. Davis, supra, 226 So.2d at 452-53.

It could be argued that appellant’s contact with the Bureau of Motor Vehicle Services did not satisfy the first prong of the test.¹⁰ In Wanzer v. District of Columbia, supra, 580 A.2d at 132, the court noted that even a series of contacts over a period of time is not enough “absent some showing that the agency assumed a greater duty to that person than the duty owed to the public at large.” But the broad language in Hines merely states the obvious, namely, that mere contacts are insufficient in the absence of evidence of a special duty arising as a result. The Platt test takes this into account because it requires not only proof of a type of contact different from that of the District with the general public, but also proof of justifiable reliance.¹¹

Appellant met the first prong of the Platt test for a special relationship because the District’s duty under the statute to issue her the correct license plates and registration for her car arose from a “direct transaction” — as evidenced by her application and payment of a fee — between herself and the Bureau of Motor Vehicle Services. This direct and personal transaction was an undertaking by the District to her individually that the number on her license tags and registration belonged only to the car she owned. See D.C.Code § 40-102(c) (1990 Repl.); see Morgan v. District of Columbia, supra, 468 A.2d at 1314; cf. Rieser v. District of Columbia, supra, 183 U.S.App.D.C. at 392, 563 F.2d at 479. While paying a fee may be insufficient standing alone to create a special relationship, see Wanzer v. District of Columbia, supra, 580 A.2d at 130, it is one factor properly considered in determining whether a “direct transaction” took place between appellant and the District.¹²

To drive a car without suffering penalties of law, appellant was required by District of Columbia law to register her car, and to renew her registration annually. D.C.Code §§ 40-102(a) & (b) & (d), 40-105(a)(1) & (b) (1990 Repl.). The statute described the obligation that the District assumed upon accepting her application and issuing license tags and a registration. Id. § 40-102(c). Thereafter it was reasonably foreseeable by the District that if appellant’s registration and license tags’ number were incorrectly recorded and entered in the WALES system, she could suffer various penalties including the impoundment of her car, as occurred here. Id. §§ 40-102(g)(3), 40-105(a)(l); 18 DCMR §§ 411.3, 429.3(c); Md.TRAns.Code Ann. § 13-402.1(f) (1987) (misdemeanor for nonresidents’ noncompliance with registration requirements); 18 DCMR §§ 1101.1, 1110.1 ($300 fine or 10 days in jail); see also United States v. Hill, 458 F.Supp. 31, 32 (D.D.C.1978) (impoundment for failure to register).

Appellant also has met the second, or “justifiable reliance” prong of Platt. The registration system is premised on different numbers being assigned to every vehicle. D.C.Code § 40-102(c); 18 DCMR §§ 413.5, 413.8 (“identification tags are solely for the operation of the vehicle described on the registration card which ac-companpes] them”). Indeed, the effectiveness of the registration system as well as the WALES system depends on an individualized numbering system in which registration numbers are accurately entered into the computer. Id. § 40-102(f) (“[t]o facilitate the identification and regulation of motor vehicles ... the Mayor shall establish ... (4) [a] program for keeping records of registration_”); id. § 40-102(e)(l) (registration is nontransferable since it expires upon sale or transfer of the vehicle). Since the sanctions of the registration law are visited upon a registrant through the operation of the WALES system, appellant also could justifiably assume that the District, in the interests of assuring the effectiveness of the WALES system, would accurately record her license and registration number in the WALES system.

The statutory scheme for lawful operation of a motor vehicle placed certain responsibilities on appellant which, upon their fulfillment, in return placed responsibilities on the District to her as the owner of the registered vehicle. Appellant relied to her detriment on the District’s affirmative actions in registering her car after accepting her application and fee, and her reliance was reasonable. By issuing a registration and license tags with a certain number, the District made constructive representations to appellant that that registration number had been assigned to her car. D.C.Code § 40-102(e)(l). Appellant’s subsequent reliance was not that of a member of the general public — upon the general assurance that the registration and WALES system would serve their law enforcement purposes — but rather upon the specific representation to her that her car would be correctly registered and her registration number correctly entered into the WALES system. She relied on the District’s representation when she affixed the license tags to her car and drove it into Maryland in the belief that, having properly registered her car under the District’s law, she would not suffer the penalties for driving without a valid registration and license tags.

Accordingly, because appellant sufficiently stated a claim of negligence against the District as a result of its special duty to her, thereby placing her within the special exception to the public duty doctrine, we reverse the judgment dismissing her complaint.¹³

1 . The record is unclear about what caused this error. The parties’ briefs, referring to a deposition that is not part of the record on appeal, state that a District of Columbia Bureau of Motor Vehicle Services representative thought that the error resulted when a computer operator mixed up the applications and numbers for appellant and Ms. Althea Hinds.

2 . E.g., D.C.Code § 1-1212 (1987 Repl.):

Hereafter the District of Columbia shall not assert the defense of governmental immunity in any suit at law in which a claim is asserted against it for money only on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the District occurring as the result of the operation by such employee, within the scope of his office or employment, of a vehicle owned or controlled by the District: Provided, that in the case of a claim arising out of the operation of an emergency vehicle on an emergency ran the District shall be liable only for gross negligence.

For other claims against the District, including those involving negligent or wrongful acts of employees, D.C.Code § 1-1202 authorizes:

The Mayor of the District of Columbia ... to settle, in his [or her] discretion, claims and suits, either at law or in equity, against the District of Columbia....

D.C.Code § 1-1202(1) also provides that "nothing herein contained shall be construed as depriving the District of Columbia of any defense it may have...."

3 . Spencer v. General Hospital, supra, involved a claim of negligent treatment at the hospital operated by the District. The court clarified its earlier rejections of the notion that the "classification of a function as ‘governmental’ ends, rather than begins, the inquiry into whether a tort action should be permitted to proceed against a public entity.” Id. at 52, 425 F.2d at 483. The court drew a distinction between governmental functions "of such a nature as to pose threats to the quality and efficiency of the government in the District if liability in tort was made the consequence of [a] negligent act or omission," and those that did not. Id. at 51, 425 F.2d at 482. The former, the court determined, involved "the performance of functions calling for the highest degrees of discretion and judgment," id., and for those the District could not be held liable in tort. Id. Other functions, however, where the District employee was simply carrying out a program developed through the exercise of discretion and judgment, could result in liability of the District. Id. at 52, 425 F.2d at 483. Thus, the District was not at risk in tort liability for all of its actions, but only for those which were ministerial in nature. See, e.g., Elgin v. District of Columbia, 119 U.S.App. D.C. 116, 121, 337 F.2d 152, 157 (1964) (no bar to suit for injuries suffered by pupil as a result of failure by District to repair broken guardrails at public school playground; ministerial act involved).

In Chandler v. District of Columbia, 404 A.2d 964 (D.C.1979), the court applied the discretionary/ministerial distinction in determining that the District owed no duty of care in deciding to close a fire station. However, in Hines v. District of Columbia, supra, 580 A.2d 133, the court declined to apply the same distinction where District employees responded negligently to a request for ambulance services, observing that the distinction "related to a special form of sovereign immunity accorded the District as a municipality.” Id. at 137.

4 . The terms "special relationship” and "special duty" may be used interchangeably. See, e.g., Turner v. District of Columbia, supra, 532 A.2d at 661-62, 668; Platt v. District of Columbia, supra, 467 A.2d at 151. However, we use the terms as stated in Warren v. District of Columbia, supra, 444 A.2d at 3: "a special relationship ... imposes a special legal duty_" See also Morgan v. District of Columbia, supra, 468 A.2d at 1312 ("Although the police have no obligation to act at the behest of any one individual, once they begin to act on behalf of a particular citizen in such a way as to raise significantly the quotient of risk over and above the risks assumed by every other member of the community, additional responsibilities arise.”) (citing H.R. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167, 159 N.E. 896, 898 (1928)).

5 . A number of public policy considerations underlie the public duty doctrine. See Spencer v. General Hospital, supra, 138 U.S.App.D.C. at 51, 425 F.2d at 482. Courts concerned with separation of powers maintain that the public duty doctrine is necessary to avoid "judicial scrutiny of every act of the other branches of government which has some effect upon the public.” Orzechowski v. State, supra, 485 A.2d at 549 n. 3; see Spencer v. General Hospital, supra, 138 U.S.App.D.C. at 51, 425 F.2d at 482 (quoting Elgin v. District of Columbia, 119 U.S.App.D.C. 116, 337 F.2d 152, (1964) (retaining governmental immunity for injuries arising from "the performance of functions calling for the highest degrees of discretion and judgment.”)). Other courts, focusing on fiscal concerns, fear either "a potential drain on the public coffers," Note, Municipal Liability, supra, at 469 (citations omitted), or that the encouragement of increased litigation will deprive the municipality of funds for correcting the governmental error that gave rise to the complaint. Warren v. District of Columbia, 444 A.2d 1 (appended to Warren v. District of Columbia, supra, 444 A.2d at 89). Other courts have viewed the issue from the government employee’s perspective, maintaining that without the public duty doctrine such employees would be subject to an unreasonable litigation risk that could not be "passed on to their ‘clients’.” Id. In addition to reserving questions about the appropriate allocation of limited resources to the executive and legislature, and concern about the "severe depletion of these resources,” Morgan v. District of Columbia, supra, the court has emphasized the need for public employees to have broad discretion in responding to demands given limited resources and “the inescapable choices of allocation that must be made.” 468 A.2d at 1311 (citation omitted). Without such a limitation on liability, the District would be potentially liable for "every oversight, omission, or blunder made by a police, [ambulance or building inspection] official." Id.

6 . The District does not claim in the instant case that it is immune from liability. See 57 Am. Jur.2d Municipal, County, School, and State Tort Liability § 225, at 237-38 (noting "courts have also posited that the decision to issue a license apparently did not involve a discretionary function”) (footnote and citation omitted); cf. Annotation, Issuance of Permits, Licenses, and the Like as within 28 V.S.C.S. § 2680(a) Excepting From Federal Tort Claims Act Claims Involving Discretionary Function or Duty, 35 A.L.R. Fed. 481, 509 (1977) ("discretionary function” exception under Federal Tort Claims Act, 28 U.S.C.S. § 2680(a), inapplicable to claims "based on the allegedly negligent issuance of certificates").

7 . Appellant’s reliance on Scott v. District of Columbia, 493 A.2d 319 (D.C.1985), to support her contention that the District owed her an individual duty, is misplaced. In Scott the plaintiff was mistakenly arrested because a WALES printout incorrectly listed her name as a wanted fugitive. Id. at 320. The court noted only that she had not alleged a computer tort claim, and hence "the District did not have sufficient notice within the period of limitations of the claim against which it would have to defend. See Super.Ct.Civ.R. 8(f).” Id. at 323.

8 . With respect to the WALES system, the District points to the statement in the Report of the President’s Commission on Crime in the District of Columbia (1966), which indicates that the benefits would "result to the community." Id. at 192.

9 . The court adopted the two-prong test based on the decision in Florence v. Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375 N.E.2d 763 (1978). See Warren v. District of Columbia, supra, 444 A.2d at 10 (Kelly, J., concurring in part and dissenting in part); see also id. at 1125 n. 2 (majority opinion). In Florence v. Goldberg, the city was held liable on the basis of a special relationship found to arise after a mother who, upon observing for two weeks a police-supplied school crossing guard at a busy intersection, decided to accept employment and send her child to school by himself. The child was hit by a taxi at that intersection on a day when the crossing guard was ill and the Police Department failed to provide a replacement or notify school officials. The New York court distinguished the general public duty cases on the grounds that the crossing-guard duty voluntarily assumed by the police was a limited one, directed at a specific class of individuals, and the mother had seen the service and relied to her detriment on the police department’s decision to provide a guard. Florence v. Goldberg, supra, 44 N.Y.2d at 189, 404 N.Y.S.2d at 583, 375 N.E.2d at 763.

10 .At oral argument, appellant's counsel stated that he believed appellant had not appeared personally at the Bureau of Motor Vehicle Services to apply for the registration of her car, but had relied on a "runner.” However, the use of a “runner” does not change the fact that the transaction was between appellant and the Bureau of Motor Vehicle Services, since the “runner” was serving as appellant’s personal agent.

11 . "Justifiable reliance, in this context of proving a special relationship, means particular or special reliance.” Morgan v. District of Columbia, supra, 468 A.2d at 1315 (citations omitted). The court has drawn a distinction between cases involving victims who suffer from public officials’ fail[ure] to show up at all or do nothing after their arrival, "and those who suffer from public officials’ ‘affirmative negligence.’ ” Johnson v. District of Columbia, supra, 580 A.2d at 142 (citing Warren v. District of Columbia, supra, 444 A.2d at 7-8 (suggesting a special duty exists where there is "negligent handling of a police dog, negligent operation of a police vehicle [or] negligent use of a police weapon”), and Weeda v. District of Columbia, 521 A.2d 1156 (D.C.1987) (actionable duty where ambulance crew negligently removed plaintiff from auto wreckage)). "While a victim may arguably ‘rely’ on [a public official] not to worsen her condition, no such reliance can fairly be based on the inaction or futile action [of such official]_’’ Johnson v. District of Columbia, supra, 580 A.2d at 143.

12 . The user-fee paid by appellant differs from the $35 ambulance services fee in Wanzer. The ambulance services fee was waived for those unable to pay, and no one could be asked about their ability to pay at the time services were requested. Wanzer v. District of Columbia, supra, 580 A.2d at 131. Furthermore, for purposes of satisfying the first prong of the Platt test, the significance of the user-fee is not that it exists but that it was actually paid, thereby establishing a direct and individualized contact between appellant and the Bureau of Motor Vehicle Services. By contrast, the plaintiffs deceased brother in Wanzer established no such contact since he never paid an up-front fee as a means of obtaining the ambulance services that never arrived. Id.

13 . According to our concurring colleague, who apparently favors a much narrower public duty doctrine than has been adopted by this court, the majority “presumes ... that because the defendant in this case is the District of Columbia, the[ ] familiar principles of negligence do not apply.” Concurring opinion at 21. This is incorrect. The public duty doctrine is applied to determine whether a duty exists, which is a basic element of negligence. See generally Rieser v. District of Columbia, supra, 183 U.S.App. D.C. at 390, 563 F.2d at 477. The doctrine rests on the understanding, repeatedly accepted by this court as sound, that duties owed by government to "everyone” are conceptually and practically distinct from duties owed to individuals, and hence enforceable by different means. See Warren v. District of Columbia, supra, 444 A.2d at 8. Moreover, the public duty doctrine is not the "analytical cousin of the private rescue cases," concurring opinion at 1135 if by that Judge Schwelb means that the doctrine should apply only where the latter cases would admit of no liability. The rationale for no-duty-to-rescue cases is that the actor never even assumes a duty toward the victim. By contrast, the point of the public duty doctrine is that government assumes a very broad range of obligations to the public-at-large, enforceable through the political and administrative processes, but that to allow suit for breach of those duties by individuals with whom no special relationship has been established would have profound costs, see note 5, supra, that outweigh any governmental desire to compensate for individual harms. The legislature has determined only that there shall be no governmental immunity in suits for money damages arising from the negligent operation of vehicles, other than emergency vehicles on emergency runs, by District government employees. See D.C.Code §§ 1-1213, 1-1215 (1987 Repl.).