(concurring and dissenting):
I concur with that part of the majority opinion concluding that there was no cause of action against the Browns. I dissent, however, from the conclusion that the trial court properly granted summary judgment for the hospital on the duty question. The *1165majority holds that there is no valid cause of action for negligence against the hospital because it had no duty of care. I think we should hold that plaintiffs have established the existence of a special relationship and a duty on the part of the hospital.
In the past, this court has stated, “One essential element of a negligence action is a duty of reasonable care owed to the plaintiff by defendant.” Beach v. University of Utah, 726 P.2d 413, 415 (Utah 1986). Traditionally, a government tort-feasor has been accorded a special status with regard to the duty question. Under the public duty doctrine, liability against a government for torts committed against an individual must be premised on the violation of a special or particular duty owed the individual plaintiff rather than on the violation of a general duty owed the public as a whole. Under the doctrine, a duty to all is a duty to none.
Several times since the legislature’s enactment of the Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to -38 (originally enacted under 1965 Utah Laws ch. 139, §§ 1-37), this court has restated its acceptance of the public duty doctrine. In Obray v. Malmberg, 26 Utah 2d 17, 484 P.2d 160, 162 (1971), for example, the court held that damages arising from a sheriffs failure to investigate a burglary were not “pursuable by an individual since the public official’s duty is to the public....” In Christenson v. Hayward, 694 P.2d 612 (Utah 1984), deputies stopped but did not arrest an intoxicated motorcyclist. The motorcyclist was subsequently killed when he failed to negotiate a curve. Specifically rejecting the trend to the effect that “public employees should be held liable for their tortious acts to the same extent as private persons,” this court (in a per curiam opinion) held that there was no action for com-pensable damages because the police had no duty of care toward the individual over and above a general duty to the public. Id. at 612-13.
Most recently, in a unanimous opinion in Ferree v. State, 784 P.2d 149 (Utah 1989), we concluded that corrections officials were not liable to the family of a victim killed by an inmate on weekend release from a halfway house. This court held that in order to establish an action in tort against a governmental entity, there must be a particular duty owed the plaintiff as an individual rather than a violation of a general duty owed to the public at large. Id. at 151. We noted that the adoption of a duty toward the public in general “would impose too broad a duty of care on the part of corrections officers toward individual members of the public.” Id.
The public duty doctrine is probably still followed in a majority of states. See Leake v. Cain, 720 P.2d 152, 158 (Colo.1986), and cases cited therein. There is, however, a recent trend to reject the doctrine in light of legislative abrogations of sovereign immunity. See, e.g., Adams v. State, 555 P.2d 235, 241-42 (Alaska 1976); Ryan v. State, 134 Ariz. 308, 656 P.2d 597, 598-99 (1982); Leake, 720 P.2d at 158; Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1016 (Fla.1979); Brennen v. City of Eugene, 285 Or. 401, 591 P.2d 719, 725 (1979); Coffey v. Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132, 139 (1976). At least one court has held that the public duty doctrine and the concept of sovereign immunity exist independently, see J & B Dev. Co. v. King County, 100 Wash.2d 299, 669 P.2d 468, 471-72 (1983), but the rationale for that result is not persuasive. “[Wjhether or not the public duty rule is a function of sovereign immunity, the effect of the rule is identical to that of sovereign immunity. Under both doctrines, the existence of liability depends entirely upon the public status of the defendant.” Leake, 720 P.2d at 160; see also Chambers-Castanes v. King County, 100 Wash.2d 275, 669 P.2d 451, 461 (1983) (Utter, J., concurring in the result) ("The public duty doctrine is in reality merely a not so subtle and limited form of sovereign immunity.”).
Those courts repudiating the doctrine determine the government’s duty on the basis of general common law principles of duty as applied in actions between private individuals. See Annotation, Modern Status of Rule Excusing Governmental Unit from Tort Liability on Theory that Only *1166General, Not Particular, Duty Was Owed under Circumstances, 38 A.L.R.4th 1194 § 4 (1985 & Supp.1990). Liability is therefore determined without regard to a defendant’s governmental status.
In the past, the public duty doctrine has been defended by two rationales: (1) protecting against excessive governmental liability, and (2) avoiding interference in the governing process. Adams, 555 P.2d at 242; Leake, 720 P.2d at 158; J & B Dev., 669 P.2d at 473. It has been argued that those justifications are the same as the defenses used in support of sovereign immunity and that they lost any persuasiveness when absolute sovereign immunity was abrogated. Ryan, 656 P.2d at 599; Chambers-Castanes, 669 P.2d at 460 (Utter, J., concurring in the result). Some courts opine that any fear of excessive governmental liability is dispelled by the fact that, even with the rejection of the public duty doctrine, a plaintiff must still establish a duty on the part of the government under conventional tort principles of foreseeability. Adams, 555 P.2d at 242; Leake, 720 P.2d at 160. The number of potential plaintiffs is further limited by requirements of proof of proximate cause. Id. Moreover, where it is necessary to spread losses, insurance can be acquired by governmental entities in the same manner as it is used by private parties. Chambers-Castanes, 669 P.2d at 461 (Utter, J., concurring in the result). Nor would there be undue interference with the governing process and governmental decision making. Even without the public duty doctrine, public officials continue to enjoy qualified immunity and the protections of governmental immunity statutes. Adams, 555 P.2d at 242; Leake, 720 P.2d at 160.
An additional problem with the public duty doctrine is that it creates confusion in the law and inequitable results. J & B Dev., 669 P.2d at 475 (the doctrine “unnecessarily injects confusion into the law, for the existence of a special ‘doctrine’ for one type of defendant implies some different analysis is to be applied in such cases”); Leake, 720 P.2d at 159 (finding this “the most persuasive reason” for the abandonment of the doctrine). This confusion is created, in part, by the imposition of a judicially created doctrine in an area where the legislature has acted. In light of developments in tort reform and the increasing rejection or limitation of absolute sovereign immunity, I am persuaded that we should reconsider the continued application of the public duty doctrine.
Section 63-30-4 of the Utah Governmental Immunity Act establishes that where governmental immunity is statutorily waived, “liability of the entity shall be determined as if the entity were a private person.” Imposing the public duty doctrine over and above this statutory declaration creates immunity where the legislature did not intend it. Adams, 555 P.2d at 242. The legislature’s willingness to expose governmental entities to liability, as shown by its abrogation of absolute sovereign immunity, deprives the public duty doctrine of the reason for its existence. Chambers-Castanes, 669 P.2d at 462 (Utter, J., concurring in the result).
In this case, without the protection of the public duty doctrine, the hospital would be subject to the same duty as a private individual. Plaintiffs would be entitled to establish that a duty was created by virtue of a special relationship under section 315 of the Restatement (Second) of Torts. Even if a majority of this court is unwilling at this time to abandon the public duty doctrine, the court should at a minimum recognize an exception to the doctrine where a special relationship is established between the governmental entity and the third person (not the victim member of the public). Whether we eliminate the public duty doctrine or recognize an exception to it, a closer scrutiny of the special relationship concept is necessary.
Section 315 of the Restatement (Second) of Torts lists two exceptions to the general tort principle that an actor has no duty to control the conduct of third persons. Under that section, such a duty is created if a “special relation” exists between the actor and the third person or between the actor and the plaintiff. Restatement (Second) of Torts § 315 (1965). In considering the government’s duty to control the conduct of third persons, this court has already applied a “special relationship” exception to the public duty doctrine under the second *1167part of section 315, focusing on whether a duty is owed to the individual plaintiff as distinguished from the public at large. See Beach, 726 P.2d at 418 (outlining the factors to be considered in determining whether a plaintiff has a special relationship with the government entity); Ferree, 784 P.2d at 152 (government officials may be liable if they have “good reason to believe that a particular person [the plaintiff] may be jeopardized by the release of a prisoner who has demonstrated capacity for violence ... ”). The majority concludes, and I agree, that there is no “special relation” established in this case between the hospital and Schopf. The majority, however, overlooks the language of the first part of section 315. Under that part, we also must determine whether there is an exception to the public duty doctrine because the hospital formed a special relation with Petersen. Simply because this court has never looked at the public duty doctrine in the context of the first part of section 315 does not mean that we should now ignore its language.
Section 319 of the Restatement gives a more detailed explanation of the duties described in section 315 with regard to the custody of “persons having dangerous propensities”:
§ 319. Duty of Those in Charge of Person Having Dangerous Propensities
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
Contrary to the majority’s reasoning, the key to this duty is not the supervising individual’s relationship with the potential victim, but rather it is the relationship with the person in custody. The duty extends to the protection and safety of those “others,” whether a class or an individual, who are foreseeably endangered.1 Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755, 769 (1986). Where a confinement is in the nature of restraint, “there is both a duty to the inmate [patient] to provide him with reasonable rehabilitational conditions under the circumstances and to the outside public to restrain the dangerous, or potentially dangerous, so that they may not harm others.” Williams v. State, 308 N.Y. 548, 127 N.E.2d 545, 549 (1955). Section 319, which the majority purportedly follows, clearly establishes a duty when there is a special relation between a defendant and a third person.
The majority argues that imposing a duty on the hospital in this case would jeopardize all “transitional” programs designed to assimilate recovering inmates and patients back into the community. The majority’s arguments ignore two significant facts unique to this case: (1) At the time of the incident, Petersen was not off the hospital premises on any kind of an authorized conditional or temporary release; he was not in a “transitional” program designed to ease his reentry into the community. (2) Although the hospital’s decision to place Petersen in a less restrictive environment within the confines of the hospital grounds may have been discretionary, its failure to follow its own written policies and to enforce its own rules in locating an escaped patient was neither discretionary nor policy oriented.
Petersen was committed to the hospital under court order because he was mentally ill. By definition, therefore, he was a “dangerous” person. Utah Code Ann. § 62A-12-209(2)(d) (Supp.1990). In assuming the custodial and legal care of Petersen, the hospital acquired a duty under section 319. Petersen was admitted to the hospital as a full-time inpatient. The hospital’s duty, pursuant to the court order, was to keep him in a secured 24-hour setting. Within that secured setting, Petersen was transferred to a less strict type of custody because of the improvement in his behav*1168ior. He was not given permission to leave the premises. He was not, as the majority implies, on parole or in a minimum security or “transitional” program as was the case in Ferree, 784 P.2d 149 (weekend release from prison), and Doe v. Arguelles, 716 P.2d 279 (Utah 1985) (community placement from youth detention center).
There are allegations and evidence in the record that Petersen had a history of escape, violence, and unpredictability. His hospital record includes two escapes from supervision, the first an AWOL in September 1983, and the second a “walk away” from a halfway house in March 1985. At the time of the incident, Petersen was still a potential AWOL risk. The decision to permit him to routinely leave the ward without signing out, to return dishes as part of his regular therapeutic program, is similar to the kind of release decisions we have characterized as discretionary functions. See Doe, 716 P.2d 279. The hospital’s failure to follow its own rules immediately after Petersen’s violation of the terms of his work assignment, however, are of a different nature. The hospital has a duty to exercise reasonable care in restraining, supervising, and protecting patients in its care. See Comiskey v. State, 71 A.D.2d 699, 418 N.Y.S.2d 233, 234 (1979). This duty includes protecting the patient from causing harm to himself or others and, at a minimum, requires its compliance with its own established rules and policies regarding supervision.
From the time Petersen left the ward until he stole the Browns’ car, an estimated thirty to fifty minutes had passed. Hospital ward policy stated that an individual not signed back in within five minutes of his expected time of return is considered a potential AWOL. Established policies permitted Petersen’s brief absence from supervision, but those same policies required supervising personnel to monitor and enforce the rules for such absences. By definition, Petersen remained a dangerous person with a history of escape. The decision to ignore his unauthorized absence from the ward was not a “policy” decision — it was an act alleged to be in violation of policy. If plaintiffs can establish at trial that the act was negligent and led to Schopf’s death, recovery should be permitted.
. The majority limits the duty under section 319 to those plaintiffs "reasonably identifiable” as individuals or members of a "distinct group.” If read broadly, this definition could include those "foreseeably endangered” under my understanding of section 319. As the majority’s analysis of the facts of this case shows, it results in a narrow reading of the definition. Again, the majority places too much emphasis on the duty owed to the victim rather than the duty owed to the third person "detainee.”