dissenting:
125 The majority concludes that the District had no common-law duty to inform Salt Lake City of conditions the District knew were dangerous to students because the District did not have a special relationship with the injured child. I respectfully dissent. Whether under the standards set forth in our prior case law or under the rules the majority imports from other jurisdictions, I am convinced that a special relationship existed between the injured student and the District. I would hold that under the cireumstances of this case-where the District knew of the dangerous conditions, the danger was immediately adjacent to the school, the District took no action to warn or protect students, and the child was injured while attending a mandatory school function-the District had at least the minimal duty of informing the city of the need for a safe crosswalk and crossing guard.
I. Utah Caselaw
11 26 In considering whether a special relationship existed between the District and the student, the majority focuses only on the question of whether the school had eustody over the child at the time of the injury. The majority takes this approach primarily from the comments to the Restatement (Second) of Torts and New York case law. This rigid inquiry, however, is contrary to the approach we have taken in the past when considering whether a special relationship exists. In Higgins, we reiterated the rule:
[UJulike the Restatement writers, we do not attempt in our duty analysis to rigorously maintain the artificial categorization that differentiates between cases based on whether the actor owes the duty to the victim or to the victimizer, ... nor do we apply the Restatement's precise formulation uncritically. Instead, we have taken a policy-based approach in determining whether a special relation should be said to exist and consequently whether a duty is owed.
Higgins v. Salt Lake County, 855 P.2d 281, 236-37 (Utah 1998); see also Wilson v. Valley Mental Health, 969 P.2d 416, 419 (Utah 1998); Rollins v. Petersen, 813 P.2d 1156, 1161-62 (Utah 1991); Ferree v. State, 784 P.2d 149, 151-52 (Utah 1989); Beach v. Univ. of Utah, 726 P.2d 418, 418 (Utah 1986). The policy approach, we noted, "is more realistic than that which would result from a broad reading of the Restatement, especially when one considers the fact that at bottom, the issue is one of negligence-a lack of reasonable care." Higgins, 855 P.2d at 287. A consideration of policy factors is necessary to a fair evaluation of tort duties:
It is meaningless to speak of "special relationships" and "duties" in the abstract. These terms are only labels which the legal system applies to defined situations to indicate that certain rights and obligations flow from them; they are "an expression of the sum total of those considerations of policy which lead the law to say that a particular plaintiff is entitled to protection."
Beach, 726 P.2d at 418 (quoting William Prosser, Law of Torts 338 (Bd ed.1964). Thus, in Higgins and its predecessors we abandoned the "mechanistic relational models" of the Restatement and based our analysis on "careful consideration of the consequences of imposing that duty for the parties and for society." Higgins, 855 P.2d at 287; 'see also Beach, 726 P.2d at 418.
1 27 In considering whether a special relationship exists, we have weighed a number of factors, including: (1) the foreseeability of the harm, see Wilson, 969 P.2d at 419-20; Higgins, 855 P.2d at 240; Rollins, 813 P.2d at 1162; Beach, 726 P.2d at 416-17; (2) the relationship between the parties, see Gilger v. Hernandes, 2000 UT 23, 1115 & 18, 997 P.2d 305; Wilson, 969 P.2d at 419; Higgins, 855 P.2d at 287; Beach, 726 P.2d at 415-16 & 418; and (8) the ease with which the defendant could have fulfilled the duty, see Gilger, 2000 UT 23 at T17, 997 P.2d 305; Wilson, 969 P.2d at 419; Higgins, 855 P.2d at 237; Beach, 726 P.2d at 418. Our sister states have considered a similar range of factors when determining whether a special relationship exists. California and Idaho, for example, weigh the following factors:
The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the con*1238nection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.
Rife v. Long, 127 Idaho 841, 908 P.2d 143, 148 (1995) (quoting Isaacs v. Huntington Mem'l Hosp., 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653, 658 (1985) (citations omitted)).
{28 A consideration of these factors, with particular emphasis on the factors that we have found determinative in the past, leads to the conclusion that a special relationship existed here. First, the court should look to the foreseeability of the harm under the circumstances of the case. We have stated that "we will find a special relationship and consequent duty when a defendant knew of the likely danger to an individual or distinct group of individuals or when a defendant should have known of such danger.'' Higgins, 855 P.2d at 240; see also Wilson, 969 P.2d at 419-20; Rollins, 813 P.2d at 1162; Beach, 726 P.2d at 416-17. Foreseeability i§ necessarily a flexible concept:
Where the degree of result or harm is great, but preventing it is not difficult, a relatively low degree of foresecability is required. Conversely, where the threatened injury is minor but the burden of preventing such injury is high, a higher degree of foreseeability may be required.
Rife, 908 P.2d at 148-49 (quoting Sharp v. W.H. Moore, 118 Idaho 297, 796 P.2d 506, 509-10 (1990)). In this case, the risk of harm was great, as it is any time young children are compelled to cross busy streets. The burden of prevention, by contrast, was very low. The danger could have been avoided by a phone call. The District was required only to report the dangerous crosswalk and the need for a crossing guard to the city, The cirenmstances of this case extend well beyond the low degree of foreseeability required to find a special relationship. The District had every reason to know of the danger: the dangerous condition was adjacent to the school; parents had reported concerns about the crosswalk to the school; and the District itself scheduled the conference for a time when a crossing guard was not scheduled to be at the intersection. That a child could be seriously injured on the way to the conference was, therefore, quite fore-secable.
129 A second factor worthy of consideration is the underlying relationship between the parties. We have stated that "(tlhe essence of a special relationship is dependence by one party upon the other or mutual dependence between the parties." Beach, 726 P.2d at 415-16; see also Gilger,2000 UT 28 at ¶¶ 5 & 18, 997 P.2d 305. On the other hand, "[wle are loath to recognize a duty that is ... fundamentally at odds with the nature of the parties' relationship." Higgins, 855 P.2d at 237; see also Wilson, 969 P.2d at 419; Beach, 726 P.2d at 418. The majority embraces the concept that the school has a custodial relationship with its students while the students are within the charge of the school. The majority, however, applies this concept rigidly, presuming that onee a child steps beyond the schoolhouse gates the school relinquishes all responsibility for the child and fully transfers custody to the parents. Such a rule misapprehends the relationship between schools, parents, and students. The custodial relationship of the school and the parents over the child must properly be viewed as overlapping. The school's responsibility should be commensurate with its awareness of the danger, its ability to control the condition, and the degree to which parents reasonably rely upon the school to provide safety precautions. Here, it was the District that scheduled the conference for a time when no crossing guard would be at the intersection, the District that made attendance at the conference mandatory for children, the District that had been warned of the dangerous conditions, and the District that chose inaction by failing either to warn parents or remedy the situation. It is only natural that parents would rely upon the District-the entity that scheduled, ran, and required attendance at the conference-to ensure that the same safety precautions would be taken at night as were taken during *1239the day. This dependence of the parents and children upon the District, in addition to the school's control over the cireumstances, makes the special relationship between the parties quite clear.
(30 A third factor to consider is the burden that such a duty would place upon the defendant. We have refused to find a special relationship if by doing so "the defendant in question would be unable to perform the duty without either radically changing its character or drastically cireumseribing the function it was charged with performing." Higgins, 855 P2d at 287; see also Gil-ger,2000 UT 28 at 117, 997 P.2d 305; Wilson, 969 P.2d at 419; Beach, 726 P.2d at 418. In this case, the burden such a duty would place upon the District is quite minimal and fits squarely within the character and function of the school's other duties. I would hold that the school only has a duty to report the dangerous conditions to the proper authority where the danger is contiguous to the school property and threatens an important pathway to the school.1 Placing the duty to report upon the school fits within the school's typical responsibilities, including ensuring safety of arriving children during class hours. Indeed, as the entity that schedules school activities, the school is in a better position than any other person or entity to report such a problem to the city. Surely, the duty to make a phone call is not burdensome.
131 Finally, it is worth considering the overarching policy of preventing future harm. The majority states that while the District had no duty to report the danger, "it would be salutary" for the District to assist the city in maintaining safe streets. Where the lives of children are at stake, I find it inadequate to describe the District's duty as merely salutary. It would be unrealistic to expect that the city could independently remain aware of all potentially dangerous conditions adjacent to school property and the intricate schedules of various schools. If the District has no duty to inform the city of dangers and the need for a crossing guard after hours, there is little hope that accidents such as this will be prevented.
IL Other Law
132 Even if I were to agree with the majority's abandonment of our precedent in analyzing common-law duties, I would still find a special relationship here under the approach the majority adopts from other jurisdictions. The majority finds the critical inquiry to be whether the school had "custody" of the child at the time of the accident. However, the cases cited by the majority in support of the proposition that the school district did not have custody are easily distinguishable.
83 In Rife v. Long, the court found that the school district owed no common law duty to a student who was "no longer in a relationship of control or supervision by the District." 127 Idaho 841, 908 P.2d 148, 148 (1995). In reaching this conclusion, however, the court first considered a number of factors, including the foreseeability of the harm and the policy consequences of finding a special relationship. Id. The court did not, as the majority suggests, lay down a general rule that a school has no duty to a child after classes have adjourned for the day. Rather, the court determined, based on the specific facts of that ease, that the student had no special relationship with the school at the time of the child's injury.
1 34 Even if the case were only concerned with custody, the facts of Rife are clearly distinguishable from the current case. The student in that case had crossed the school soccer field and was apparently a block or two beyond the soccer field when the accident occurred. Id. at 145. Here, the stu*1240dent was, quite literally, going in the other direction; he was coming back to school for a mandatory meeting, and was right in front of the school when the accident occurred.
135 The majority equates custody of the child with what it terms "control" over the dangerous cireamstances. In the middle of the discussion on custody, the majority states that Salt Lake City, not the District, had the responsibility to "maintain the crosswalk" where the accident occurred, and that this lack of "control" over the premises negated any duty the District might owe to the child. It then cites to Norton v. Canandaigua City School District, stating that the duty a school district owes to a child is "limited by time and space.'' 208 A.D.2d 282, 624 N.Y.S.2d 695, 697 (N.Y.App.Div.1995). While I do not disagree with this general proposition, it avails us little on these facts. There is no question the school was not required to supply a crossing guard or to establish a no-parking sign; these are statutorily defined as duties of the city. But maintenance of the crosswalk has nothing to do with who had custody of Young at the time he was injured. The issue is whether the District, because of the nature of its relationship with the child and its authority to request a crossing guard and no-parking sign, had a duty to report the need for such safety measures to the city.
136 In Norton, the student was hit by a car while crossing the street to wait for her bus to take her to school. Id. at 696. As in Rife, these facts are wholly different than the facts before us now. Unlike the current case, the child in Norton was not injured at a crosswalk adjacent to the school or where a crossing guard had been provided in the past.
Finally, in Pratt v. Robinson, a student was injured by a car at a busy intersection three blocks from where the school bus dropped her off for the day. 89 N.Y.2d 554, 384 N.Y.S.2d 749, 349 N.E.2d 849, 850 (1976). The court found that the school no longer had custody of the student at the time of her injury. It reasoned that the duty owed by the school to its student is
coextensive with and concomitant to its physical custody of and control over the child. When that custody ceases because the child has passed out of the orbit of its authority in such a way that the parent is perfectly free to reassume control over the child's protection, the school's custodial duty also ceases.
Id. at 852 (emphasis added).
I 38 In Pratt, the court's use of the phrase "orbit of [the school district's] authority" is particularly apt to defining the physical parameters of the school district's responsibility to its students. While the Pratt court held that the school district does not owe a duty to a student crossing a busy street three blocks from where the school bus dropped her off, it conceded that by offering students the option of busing, the school district "extended its control over its pupils from the school door to the bus stop ...." Id. at 858. In the case before the court a similar "orbit" exists, defined by the extent to which the school had extended its authority over the passageway to the school. It is difficult to imagine how such an "orbit of authority" could be strictly limited by the school's formal boundaries and not reach the crosswalk immediately in front of the school building where the child was headed.
$39 For the foregoing reasons, I would hold that the District had a special relationship with the injured student and, consequently, the District had a duty to report the dangerous conditions to the city.
. It should be noted that this accident did not take place at an intersection blocks from the school or at a place where there was no history of providing safety precautions. The majority suggests that finding a special relationship in this case would "dramatically expand tort liability." To the contrary, following the policy-based analysis we have used in the past would help to ensure that liability is found only where the danger is known, nearby, and could have been easily remedied by the liable party. Indeed, rather than basing liability solely on a single factor that may have only marginal relevance, Le., "custo, dy," this analysis bases liability on the knowledge, ability, and responsibility of the tortfeasor. There is, therefore, no true risk of a slippery slope.