(concurring in part and dissenting in part):
20 I agree with the majority that Plaintiffs have not stated a claim upon which relief *899can be granted for a taking of their water rights without due process of law. I respectfully dissent from the section of the majority opinion regarding Plaintiffs' negligence claim, however, because I do not believe the complaint sets forth facts which establish a special relationship between Jerry D. Olds (the State Engineer) and Plaintiffs that could create a duty to them individually as opposed to the public at large.
21 To state a claim for negligence, Plaintiffs must establish four elements: "'(1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, (8) that the breach of duty was the proximate cause of the plaintiff's injury, and (4) that the plaintiff in fact suffered injuries or damages." Webb v. University of Utah, 2005 UT 80, 19, 125 P.3d 906 (quoting Hunsaker v. State, 870 P.2d 893, 897 (Utah 1998)).
For a governmental agency and its agents to be liable for negligently caused injury suffered by a member of the public, the plaintiff must show a breach of a duty owed him as an individual, not merely the breach of an obligation owed to the general public at large by the governmental official.
Ferree v. State, 784 P.2d 149, 151 (Utah 1989) (finding that state corrections officers only had a duty to the public at large and did not owe an individual duty to victim to prevent prison inmate on weekend release from murdering victim); see also Obray v. Malmberg, 26 Utah 2d 17, 484 P.2d 160, 162 (1971) (holding that public duty doctrine barred plaintiff's claim as evaluated from the complaint); Cannon v. University of Utah, 866 P.2d 586, 588-89 (Utah Ct.App.1993) (holding that public duty doctrine barred negligence claim by pedestrians struck by vehicle while crossing state-owned road from university parking lot to university special events center); Lamarr v. Utah State Dep't of Transp., 828 P.2d 535, 588-89 (Utah Ct.App.1992) (holding public duty exception barred claim against Utah Department of Transportation for alleged failure to maintain overpass or to control transient population). For a governmental agent to be liable to a particular individual, there must be a special relationship between that individual and the agent or agency. Whether the State Engineer owed Plaintiffs a duty of care is " 'entirely a question of law to be determined by the court.'" Lamarr, 828 P.2d at 588 (quoting Ferree, 784 P.2d at 151).
The Utah Supreme Court recently reiterated that
"A special relationship can be established (1) by a statute intended to protect a specific class of persons of which the plaintiff is a member from a particular type of harm; (2) when a government agent undertakes specific action to protect a person or property; (3) by governmental actions that reasonably induce detrimental reliance by a member of the public; and (4) under certain cireumstances, when the agency has actual custody of the plaintiff or of a third person who causes harm to the plaintiff."
Webb, 2005 UT 80 at 125, 125 P.3d 906 (quoting Day v. State, 1999 UT 46, 1118, 980 P.2d 1171). Here, Plaintiffs claim that the State Engineer engaged in governmental actions that reasonably induced their detrimental reliance. To satisfy this prong of the special relationship test, however, Plaintiffs' reliance must have been reasonable. See id. at 127 (holding that student's reliance on professor's instruction to walk on iey path during field trip was not reasonable, thereby negating any special relationship and barring negligence claim against university under public duty doctrine). In a situation where a landowner's water rights are defined by actual water shares within the possession of the landowner, I believe that it was not reasonable, as a matter of law, to rely upon the State Engineer's failure to discover unauthorized use during an audit directed at protecting the aquifer.
$23 I also think this result is consistent with the realities of the relationship that existed between the State Engineer and Plaintiffs during the audit.
Determining whether one party has an affirmative duty to protect another ... requires a careful consideration of the consequences for the parties and society at large. If the duty is realistically incapable of performance, or if it is fundamentally at odds with the mature of the parties' *900relationship, we should be loath to term that relationship "special" and to impose a resulting "duty," for 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....
Day, 1999 UT 46 at ¶ 13 n. 1, 980 P.2d 1171 (emphasis added) (omissions in original) (quoting Beach v. University of Utah, 726 P.2d 413, 418 (Utah 1986)).
T 24 In this case, the State Engineer conducted an audit of water use because the aquifer was being rapidly depleted by unauthorized use. The purpose of the audit was to identify and stop the misappropriation of water for the good of the public at large, not to advise individual landowners as to the volume or value of their individual water rights.1 Here, Plaintiffs were engaged in unauthorized use and are now claiming that the State Engineer had a special duty to catch them. Under these cireumstances, I believe the imposition of a special duty on the State Engineer "is fundamentally at odds with the nature of the parties' relationship." Id. For these reasons, I respectfully dissent from the portion of the majority opinion that addresses Plaintiffs' negligence claim.
. For this reason, I am also unpersuaded by Plaintiffs' argument that the State Engineer gratuitously undertook an obligation and therefore was required to perform it with reasonable care. The purpose of the audit was to stop depletion of the aquifer by unauthorized use. The State Engineer never undertook to define or calculate Plaintiffs' water rights. Compare Nelson v. Salt Lake City, 919 P.2d 568, 573 (Utah 1996) (holding that once city undertook duty to install fence between park and Jordan River, it had duty to perform with reasonable care), with Weber v. Springville, 725 P.2d 1360, 1364-65 (Utah 1986) (finding city owed no duty to prevent two-year-old from falling into creek where city's maintenance of the creek was for flood control and not for the purpose of protection of its citizens).