(concurring, with whom Nolan and Lynch, JJ., join). I agree that the decision dismissing the complaint should be reversed and the case should be remanded. I reach that result, however, by an entirely different route from the one taken by some of my colleagues. In my view, the plaintiffs’ complaint sets forth a viable claim under the principles articulated in Onofrio v. Department of Mental Health, 408 Mass. 605 (1990), S.C., 411 Mass. 657 (1992). The resolution of this appeal does not require acceptance or abandonment of the public duty “nonrule” that has evolved in this Commonwealth “composed,” as the Chief Justice rightly says, “of inconsistent and irreconcilable parts, the sum of which leaves both the Justices and litigants quite incapable of predicting when and why liability will be imposed,” ante at 504, nor does it require rejection of the traditional public duty rule that three members of this court have repeatedly *516advocated. See Cyran v. Ware, 413 Mass. 452, 460-472 (1992) (O’Connor, J., concurring with whom Nolan and Lynch, JJ., joined); A.L. v. Commonwealth, 402 Mass. 234, 250-251, 251-261 (1988) (Nolan, J., dissenting, with whom Lynch, J., joined) (O’Connor, J., dissenting, with whom Lynch, J., joined); Irwin v. Ware, 392 Mass. 745, 775-777 (1984) (Nolan, J., dissenting, with whom Lynch and O’Connor, JJ., joined). The traditional public duty rule is a good rule, but it does not fit the circumstances of this case as set forth in the complaint.
The traditional rule, about which I shall say more below, applies only to situations, like those present in Irwin v. Ware, supra, and its progeny, in which a plaintiff has sustained injury or loss as a result of a public employee’s failure to act, as required by his or her employment contract, to prevent or diminish the harmful consequences of a condition or situation not originally caused by the employee. For example, the fire fighters in Cyran v. Ware, supra, allegedly did nothing to extinguish a fire, not caused by them, that destroyed the plaintiffs’ home. Id. at 469 & n.l (Wilkins, J., dissenting, with whom Abrams, J., joined). The traditional public duty rule would apply to that situation. Here, however, as in Onofrio v. Department of Mental Health, supra, the public employees are charged in the complaint with taking action that caused injury to the plaintiffs. The plaintiffs claim that they suffered injuries as a result of a parole board clerk’s having incorrectly informed Department of Correction personnel that the parole board had voted to parole an identified prisoner and department personnel having released the prisoner in violation of established department procedure. This is not a case in which the only allegation is that the plaintiffs were injured as a result of a public employee’s failure to act to rectify a situation not created by the employee.
In Onofrio, too, the plaintiff asserted that he had sustained loss as a result of certain conduct (not a failure to act) of a public employee. The plaintiff claimed that an employee of the Department of Mental Health (DMH) had solicited the placement of a DMH client in the plaintiffs home without *517informing the plaintiff of the client’s known history of property destruction, including fire setting. The client was placed in the plaintiff’s home and thereafter set it afire. In Onofrio, we held: “The DMH employees owed Onofrio a duty of care, not because they were employed to protect persons such as Onofrio and failed to do so, but because, by taking action that exposed Onofrio to risk, they were bound, as any other person would be, to act reasonably. The employees’ duty was no different than it would have been had the employees been acting merely as private individuals.” 408 Mass. at 610. The Onofrio reasoning applies to the present case. If the plaintiffs’ allegations, set forth above, are proved at trial, the public employer will be liable, as was the public employer in Onofrio, just as a private individual or employer would be liable in similar circumstances.
The traditional public duty rule is that “the employment duties of public officers and employees ordinarily are owed only to the city, town, county, or State with whom the officers and employees have contracted. Those duties are enforceable only administratively or by criminal proceedings. They are not owed to individuals who may be affected by their nonfulfilment but with whom the employees have not contracted. There are two exceptions. One exception is that, when a statute expressly provides that a public servant’s employment duties are designed to benefit a specifically identified group of persons in addition to the general public, the individuals in that group are owed a special duty, violation of which may be actionable. Courts seldom apply that exception. ‘Despite numerous references to the statutory intent rationale, it is difficult to find cases which hold that a statute creates a special duty to a particular class of persons.’ Glannon, The Scope of Liability Under the Tort Claims Act: Beyond the Public Duty Rule, 67 Mass. L. Rev. 159, 163 (1982). The other exception to the traditional public duty rule is where a ‘special relationship’ exists between certain individuals and a public agency or employee, such that the public employee’s duty to exercise reasonable care to prevent or to minimize harm from conditions not created by the em*518ployee runs not only to the general public as a whole, but to those individuals in particular. A common thread running through the cases applying this exception is that the special relationship is found to exist when the public agency, officer, or employee has expressly or impliedly represented to an individual that special care would be taken for his or her protection, such as a police officer’s promising an informant special protection, thus justifying that individual’s reliance in a special way on the employee’s carrying out of his or her responsibilities. A special relationship for public duty rule purposes is not a creature of statute, but instead is created by conduct of the public agency or employee inducing reliance on the part of the injured person, much in the same way that a contract is created.” Cyran v. Ware, supra at 462-463 (O’Connor, J., concurring).
Although the courts of at least twenty-two other States, an overwhelming majority of those entertaining the question, have embraced the traditional public duty rule, unfortunately that rule has never been accepted by this court, nor is it accepted today.1 In my view, this is a serious mistake. The rule “fairly reflects current social values and promotes sound public policy. It not only promises reasonably predictable results in cases . . . involving harm indirectly (secondarily) caused *519by a public employee’s failure to act in response to a situation the employee did not create, but also establishes a reasonable balance between competing values: the compensation of injured individuals and the protection of government from financial burdens of such magnitude as to threaten its ability to function.” Cyran v. Ware, supra at 463 (O’Connor, J., concurring). As Justice Greaney said in Cyran, supra at 465, “[sjociety would not favor, and public policy does not support, a rule which would expose a municipality to liability for damages every time its fire department does not, in a plaintiff’s view, fight a fire satisfactorily. In busy urban areas such exposure could be limitless, and in extreme circumstances (as recent events in Los Angeles illustrate), the potential cost of such governmental liability could be catastrophic.” In view of the announcement today of an intention “to abolish the public duty rule at the first available opportunity after the conclusion of the 1993 session of the Legislature,” ante at 499, the threat of catastrophic governmental liability about which Justice Greaney wrote is very much a reality.
The Chief Justice states, ante at 507, that the formulation of the traditional public duty rule as I expressed it in my concurring opinion in Cyran v. Ware, supra at 467, “apparently relies either on a distinction between acts and omissions, or a distinction between misfeasance and nonfeasance.” Let there be no question about it. The traditional public duty rule does make such a distinction, see, e.g., Brennen v. Eugene, 285 Or. 401, 409 (1979), and, despite the Chief Justice’s assertion to the contrary, ante at 507, the distinction is entirely consistent with the Massachusetts Tort Claims Act. I discuss that subject in more detail later in this opinion.
The Chief Justice implies that any attempt to distinguish between acts and omissions is unworkable. Both Cyran v. Ware, supra, and Mamulski v. Easthampton, 410 Mass. 28 (1991), the Chief Justice says, ante at 507, “can be characterized easily either as cases of misfeasance or nonfeasance.” The Chief Justice is incorrect. There was no suggestion in Cyran that the firefighters did anything that caused or inten*520sified the fire in the plaintiffs’ building. Rather, the plaintiffs’ claim was that the fire fighters did nothing to extinguish a fire that the defendants had neither originated nor aggravated. See Cyran v. Ware, supra at 469 & n.1 (Wilkins, J., dissenting, with whom Abrams, J., joined). In Mamulski, on the other hand, the defendant town maintained public ways on which motorists were invited to travel. The town held out the roads to be reasonably safe. The court held that the town owed such travelers a duty to exercise reasonable care for their safety in the same way that a private owner of property would owe a similar duty to invitees and licensees. Id. at 29-30. It cannot be said that a town that maintains roads for public use is in the position of one who, as was alleged against the defendants in Cyran, has simply failed to act.
The distinction between acts and omissions in tort law is of long duration. The Restatement (Second) of Torts § 314 (1965), states: “The fact that [a private person] realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” Section 315, Comment b, at 123, states that, in the absence of the special relation identified in that section, a person “is not subject to liability if he fails, either intentionally or through inadvertence, to exercise his ability so to control the actions of third persons as to protect another from even the most serious harm. This is true although [the person] realizes that he has the ability to control the conduct of a third person, and could do so with only the most trivial of efforts and without any inconvenience to himself. Thus if [a person] is riding in a third person’s car merely as a guest, he is not subject to liability to another run over by the car even though he knows of the other’s danger and knows that the driver is not aware of it, and knows that by a mere word, recalling the driver’s attention to the road, he would give the driver an opportunity to stop the car before the other is run over.” Black v. New York, N.H. & H.R.R., 193 Mass. 448 (1907), cited by the Chief Justice, ante at 508, makes the point. In that case, the plaintiff, an intoxicated passenger on the defendant’s train, incapable of stand*521ing or walking or caring for himself, received assistance from the defendant’s employees, who, knowing his condition, took him partway up a stairway and left him. A moment later the plaintiff fell down the stairs and was injured. Id. at 449. The court held that the employees “were under no obligation to remove [the plaintiff] from the car, or to provide for his safety after he left the car. But they voluntarily undertook to help him from the car, and they were bound to use ordinary care in what they did that might affect his safety.” Id. at 450. The Black case and others demonstrate that for nearly ninety years the court has been distinguishing between a defendant’s acts and omissions in determining whether a duty of care exists, violation of which constitutes negligence. See O’Gorman v. Antonio Rubinaccio & Sons, 408 Mass. 758, 762 (1990); Mullins v. Pine Manor College, 389 Mass. 47, 52 (1983); Ballou v. Boston & Me. R.R., 341 Mass. 696, 699 (1961).
In the ordinary course, the court, not the Legislature, determines as a matter of common law the circumstances in which a legal duty of reasonable care shall be owed by one person to another. That determination is made in the light of existing social values and customs and appropriate public policy. Schofield v. Merrill, 386 Mass. 244, 246-247 (1982). The Chief Justice says, however, that the Massachusetts Tort Claims Act, G. L. c. 258, requires it to abandon any “rule” it may have established and to reject the traditional public duty rule which I advocate. Ante at 506-507. One might reasonably wonder how that interpretation of the Act escaped the court’s attention until now. The answer, I suggest, is that the Act never has mandated, and it does not now mandate, the result freely chosen by a majority of the Justices today. Indeed, if the Justices are truly convinced that the Act mandates abandonment of the public duty “rule” previously established by the court, and rejection of the traditional public duty rule, how can delay in that regard be justified until after the conclusion of the 1993 session of the Legislature?
This court has held in several cases that, in the circumstances there present, the public employees, who were re*522quired by the terms of their employment to prevent or diminish harmful consequences to the public of conditions or situations not originally caused by the employees, did not owe to individual members of the public a legal duty commensurate with their duty to the public as a whole. See, e.g., Appleton v. Hudson, 397 Mass. 812 (1986); Nickerson v. Commonwealth, 397 Mass. 476 (1986); Ribeiro v. Granby, 395 Mass. 608 (1985). However, now a majority effectively holds that, pursuant to the Massachusetts Tort Claims Act, public employees in the circumstances present in those cases will indeed owe duties to individual members of the public, violation of which, when there is resulting injury, results in public employer liability. The Act, according to the majority, creates the duty and thus the tort, and the majority is bound by that, or at least will be bound by it after the 1993 session of the Legislature concludes. Whatever happened to the notion, expressed by the present Chief Justice, writing for the court in Gallant v. Worcester, 383 Mass. 707, 711 (1981), that, by enacting G. L. c. 258, “[t]he Legislature did not. . . intend to establish new or enlarged bases of tort liability”? See also Dinsky v. Framingham, 386 Mass. 801, 804 (1982) (Act “did not create any new theory of liability for a municipality”).
General Laws c. 258, § 2 (1990 ed.), provides that “[pjublic employers shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances . . . .” The Act does not purport to define negligence, which implies a legally imposed duty to exercise reasonable care, see Theriault v. Pierce, 307 Mass. 532, 533 (1940); Altman v. Aronson, 231 Mass. 588, 591 (1991), or to establish duties, or to declare what acts or omissions may be “wrongful.” The Act simply limits preexisting governmental immunity so that public employers, having lost their preexisting exemption, are ordinarily liable in the same circumstances that would result in private employer liability. In the *523absence of a “special relationship” of the kind contemplated by the traditional public duty rule, this court has never held that a private party is liable in tort for failing to prevent or diminish harm due to a condition or situation that the private party did not create, and nothing in the Act provides that a public employee or public employer is subject to a different rule.
The Chief Justice states, ante at 511 n.13, that my belief that today’s decision creates new duties and new torts is a misperception on my part. There is no misperception. Apart from possible legislative intervention, if cases identical to Cyran v. Ware, supra, Appleton v. Hudson, supra, Nicker-son v. Commonwealth, supra, and Ribeiro v. Granby, supra, should come before the court after the conclusion of the 1993 session of the Legislature, will not the present decision require that those cases be decided favorably to the plaintiffs, not favorably to the defendants as before, in the absence of countervailing legislation? The Chief Justice states, “By refusing to recognize the public duty rule as a bar to liability, we shall merely prevent a public entity from being treated differently from a private person in like circumstances” (emphasis in original). None of the Justices has cited a single case in which, in the absence of a special relationship of the kind contemplated by the traditional public duty rule, a private individual has been held liable in tort for failing to act in response to a situation he did not create. Rather, the court has held the opposite. See Black v. New York, N.H. & H.R.R., supra, and its progeny. Today, the court does not treat public entities in the same way that private persons are treated in like circumstances. Such a result certainly is neither sound public policy nor required by G. L. c. 258, the Massachusetts Tort Claims Act.
See Williams v. State, 34 Cal. 3d 18, 24-25 (1983); Shore v. Stonington, 187 Conn. 147, 151-154 (1982); Warren v. District of Columbia, 444 A.2d 1, 3 (D.C. 1981); Namauu v. City & County of Honolulu, 62 Haw. 358, 362 (1980); Fessler v. R.E.J., Inc., 161 Ill. App. 3d 290, 295 (1987); Crouch v. Hall, 406 N.E.2d 303, 304-305 (Ind. Ct. App. 1980); Fudge v. Kansas City, 239 Kan. 369, 371-372 (1986); Ashburn v. Anne Arundel County, 306 Md. 617, 626-628 (1986); Jones v. Wilcox, 190 Mich. App. 564, 568 (1991); Hage v. Stade, 304 N.W.2d 283, 285-286 (Minn. 1981); State v. Sanders, 756 S.W.2d 536, 538 (Mo. 1988); Frye v. Clark County, 97 Nev. 632, 633 (1981); Hartman v. Hooksett, 125 N.H. 34, 36 (1984); O’Connor v. City of New York, 58 N.Y.2d 184, 189-190 (1983); Braswell v. Braswell, 330 N.C. 363, 370-371 (1991); Commerce & Indus. Ins. Co. v. Toledo, 45 Ohio St. 3d 96, 99-101 (1989); Melendez v. Philadelphia, 320 Pa. Super. 59, 64 (1983); Barratt v. Burlingham, 492 A.2d 1219, 1221-1222 (R.I. 1985); Bellamy v. Brown, 305 S.C. 291, 294 (1991); Rollins v. Petersen, 813 P.2d 1156, 1162 (Utah 1991); Mull v. Bellevue, 64 Wash. App. 245, 250- 251 (1992); Randall v. Fairmont City Police Dep’t, 186 W. Va. 336, 346-347 (1991).