dissenting.
I respectfully dissent. I agree with the majority’s initial application of traditional tort analysis with respect to whether the police officer had a duty to third parties to control Taggart’s conduct, but I cannot agree with the majority’s departure from this analysis to create what appears to be an expanded common law duty applicable to police officers.
The general duty of the police to protect the public is not a sufficient basis to support a tort action against the government or the officer for an alleged failure of an officer to prevent a potential tortfeasor from harming a third person. See Jordan v. City of Rome, 203 Ga. App. 662, 670-673 (417 SE2d 730) (1992) (Andrews, J., dissenting), cert. granted, 203 Ga. App.. 909. Rather, in the absence of sovereign immunity, a traditional tort analysis applies to the threshold duty issue. As the majority recognizes, the general rule in such third party cases as stated in Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693) (1982), is that “there is no duty to control the conduct of third persons to prevent them from causing physical harm to others.” Bradley Center dealt with specific exceptions to the general rule under Restatement, Torts 2d, §§ 315 and 319. Section 315 sets forth two exceptions to the no duty rule where “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” Section 319 is a more specific statement of the type (a) exception of section 315, and provides that: “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.” As in Bradley Center, this case deals with a type (a) exception.
I agree with the majority that the specific § 319 exception to the no duty rule applied in Bradley Center does not apply here because the police officer exercised no control over Taggart. I also agree with the conclusion that, although a police officer has authority to arrest a person without a warrant where an offense is committed in his presence or within his immediate knowledge (OCGA § 17-4-20), this authority alone does not create a duty to arrest for purposes of a tort action. The lack of such an affirmative duty to arrest sufficient to support a tort action is implicit in the holding of Ferguson v. City of Doraville, 186 Ga. App. 430, 431-432 (367 SE2d 551) (1988), overruled in part on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119, n. 8 (376 SE2d 861) (1989). In that case a police officer found the plaintiff alone and intoxicated in his parked automobile. The officer instructed the plaintiff he could remain in the car to sleep, but not to move the *885vehicle. After the officer left, the plaintiff exited the car, and while attempting to cross the street in his intoxicated condition, was struck and severely injured by a passing motorist. He sued claiming the officer breached a mandatory duty to arrest him as a drunk driver. The court addressed this issue finding it was unclear whether the officer had probable cause to arrest under the circumstances, but nevertheless concluding that, “[i]t being apparent without dispute from the uncontroverted evidence of record in this case that [the officer] did nothing to restrict [the plaintiff’s] liberty, expose him to greater danger, or otherwise adversely affect his position, we must agree with the trial court that the officer acquired no legal duty to protect him either from the consequences of his own behavior or from the negligence of others.” See also McGuirt v. Lawrence, 193 Ga. App. 611, 612 (389 SE2d 2) (1989) (physical precedent).
Accordingly, I find no breach of any affirmative tort duty to arrest Taggart, nor do I find a duty under exception (a) of Restatement, Torts 2d, § 315. In my view, the police officer’s encounter with Taggart does not give rise to the type of “special relation” contemplated in exception (a) of § 315. The exception under § 315 (a) has been applied in Bradley Center and other cases where there is evidence of some type of established, continuous relationship with the third party in which control is exercised. See Keppler v. Brunson, 205 Ga. App. 32 (421 SE2d 306) (1992); Ermutlu v. McCorkle, 203 Ga. App. 335, 336-337 (416 SE2d 792) (1992); Associated Health Systems v. Jones, 185 Ga. App. 798, 801-802 (366 SE2d 147) (1988). The passing encounter of a police officer with a third person in which the officer may or may not determine that probable cause exists to exercise his authority to make an arrest, is not such a “special relation” for purposes of creating a tort duty to prevent a third person from harming others. Moreover, to impose a “special relation” under these circumstances puts police officers in the precarious position of choosing between potential claims for false arrest, or potential tort liability to injured third parties for failure to arrest. In effect, the majority’s holding will discourage the reasonable exercise of discretion by police officers, and encourage arrests in marginal cases supported by only slight evidence of criminal conduct.
After starting down the path of traditional tort analysis, the majority has diverged from it to judicially expand the common law, and create a new tort duty applicable to police officers. Although conceding that the alcohol provider statutes (OCGA §§ 3-3-22; 3-3-23 (a)) do not apply to the present case, the majority concludes they provide the following rationale for imposing a tort duty on the officer to protect third parties by arresting Taggart: The duty imposed under these statutes, which prohibit providing alcohol to those noticeably intoxicated and underaged, is based on the Legislature’s desire to protect *886both drunk drivers and others on the highway. Sutter v. Hutchings, 254 Ga. 194, 197 (327 SE2d 716) (1985). Thus, the duty runs not only to those noticeably intoxicated and underaged persons to whom alcohol is provided, but also to third parties injured by these drinkers. Id. By analogy, the majority concludes that a similar duty running to injured third parties should be created and applied to police officers who fail to arrest suspected drunk drivers. I decline to join in this expansion of a police officer’s duty and potential tort liability. See Manuel v. Koonce, 206 Ga. App. 582 (425 SE2d 921) (1992) (declining to judicially expand the common law by analogy from OCGA § 51-1-40).
Decided December 4, 1992 — Reconsideration denied December 18, 1992 Thomas W. Malone, Peterson, Dillard, Young, Self & Asselin, James M. LaChance, for appellant. Chambers, Mabry, McClelland & Brooks, Eugene P. Chambers, Jr., John E. Hawkins, V. Jane Reed, Beth L. Singletary, Jenkins & Eells, Frank E. Jenkins III, Maddox, Starnes & Nix, John A. Nix, Lavigno, Dawkins & Serio, Harrill L. Dawkins, for appellees. Abdul S. Valiani, pro se.Because the defendants violated no duty for which they could be held liable in tort, the order of the trial court granting summary judgment in their favor should be affirmed.
I am authorized to state that Judge Pope joins in this dissent.