(dissenting).
In its decision affirming the trial court, the majority purports to be doing no more than applying well-established rules of negligence law to the facts of the instant case. I respectfully disagree. A close analysis of the opinion in conjunction with a review of the applicable legal principles reveals that the majority’s opinion would salvage the last vestiges of sovereign immunity under the theory of a strict duty analysis.
The determination of whether and under what standard a city should be held liable for negligent inspection of premises under a municipal fire ordinance is a difficult question involving far-reaching considerations of social and political significance. In most cases, however, the determination that a given duty under a statute is a “public” one is merely a shorthand statement of a conclusion rather than an aid to analysis. A court’s holding that a given duty is “public” or “special” generally stops short of necessary inquiry into the specific effects and other considerations which bear on the root policy issue involved.
No less an authority on torts than Prosser has stated as much in his respected treatise. Referring to duty, he says:
“Its artificial character is readily apparent; in the ordinary case, if the court should desire to find liability, it would be quite as easy to find the necessary ‘relation’ in the position of the parties toward one another, and hence to extend the defendant’s duty to the plaintiff. The *809statement that there is or is not a duty begs the essential question — whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct. It is a shorthand statement of a conclusion, rather than an aid to analysis in itself * * *. But it should be recognized that ‘duty’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” Prosser, Torts, § 53, p. 325.
Other commentators have also written on the nature of “duty” in the law of negligence, finding it to be wholly superfluous. The general theory expressed by these writers is that duty is simply a restriction on an individual’s freedom of conduct requiring him to behave as a reasonably prudent man would behave in similar circumstances. Winfield, Duty in Tortious Negligence, 34 Col.L.Rev. 41; Green, The Duty Problem, 28 Col.L.Rev. 1014; 29 Col.L.Rev. 255. This was persuasively pointed out in A. E. Investment Corp. v. Link Builders, Inc., 62 Wis.2d 479, 214 N.W.2d 764, 766 (1974):
“ * * * The duty of any person is the obligation of due care to refrain from any act which will cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the act * * *.
“A defendant’s duty is established when it can be said that it was foreseeable that his act or omission to act may cause harm to someone. A party is negligent when he commits an act when some harm to someone is foreseeable. Once negligence is established, the defendant is liable for unforeseeable consequences as well as foreseeable ones. In addition, he is liable to unforeseeable plaintiffs.”
Nevertheless the majority opinion is bottomed on the distinction between a public duty and a special or private duty. I believe this distinction is artificial and that this is borne out by a close analysis of established legal principles.
Justice Cardozo stated the general rule in Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 276:
“It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.”
Restatement, Torts (2d) § 324A expresses this rule as follows:
“One who undertakes, gratuitously or for consideration to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
That injuries to a third person as a result of a negligent building inspection are foreseeable is without doubt. It seems equally clear that the plaintiffs here arguably fit into any of the three categories set out in the Restatement provision above, but most certainly into the first and third. In the first instance, the duty is created because the risk of injury is increased by the inspector’s failure to report and enforce existing code violations. The third provision creates a duty founded upon the reliance of either the landowner or the injured victim on the defendant’s undertaking. In this case, the school’s reliance is clearly justified. By adopting the ordinance in question, the city set certain minimum fire safety requirements and established itself as the enforcement agent thereby inducing reliance upon the reports of its inspector. After each inspection the school received a report from the city indicating any violations found by the inspector. It does not seem to be unreasonable for the school to assume that other than the specific violations cited in the report, the condition of the building was *810safe. Not only do the landowners come to rely on the reports of the inspectors, but the public for whose benefit the inspections are made does so as well. Yet the majority tells us that members of the public cannot rely on services of the municipality performed pursuant to statute or ordinance because it owes them no duty to use due care. Common principles of negligence and public policy counsel otherwise.
The majority contends that it is creating no special rule for municipalities, but merely placing them on the same footing as any other person. However, an examination of the comments and illustrations given in Restatement, Torts (2d) § 324A reveals that a private individual or company in the same position as the city would undoubtedly be subject to liability for a negligent inspection. This proposition is amply supported by the case law. See, Hill v. United States Fidelity & Guaranty Co., 428 F.2d 112 (5 Cir. 1970) certiorari denied 400 U.S. 1008, 91 S.Ct. 564, 27 L.Ed.2d 621 (1971) (negligent inspection by private insurer); Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971) (negligent inspection by private insurer); Sims v. American Casualty Co., 131 Ga.App. 461, 206 S.E.2d 121 (1974) (negligent inspection by workers’ compensation insurer); Buszta v. Souther, 102 R.I. 609, 232 A.2d 396 (1967) (negligent inspection of automobile by private service station pursuant to state statute). Because we have abrogated sovereign immunity, I see no reason why, under the general principles of torts, the city, like any other enterprise, should not be held liable for the negligence of its inspectors resulting in foreseeable injury. This view is accepted by Cooley, 2 Cooley on Torts § 304 and is widely advocated by the legal commentators. See, generally, Note, 23 Loyola L.Rev. 458; Note, 13 Col.J.L. & Soc.Prob. 303. Admittedly, there are a number of cases cited by the majority that hold a city immune from liability for a negligent inspection on the basis of the public duty-special care distinction. These cases, however, are singularly without cogent analysis and can be read only as judicial attempts to insulate municipalities as much as possible from unwanted tort liability. See, Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 898, 240 N.E.2d 860, 861 (Keating, J., dissenting). What these cases and the majority are in effect saying is that a public duty equals no duty. I simply cannot agree. See, Adams v. State, 555 P.2d 235 (Alaska 1976); Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976).
In Adams v. State, supra, the Alaska Supreme Court, recognizing that sovereign immunity had been largely abrogated by statute in that state, upheld a suit against the state where it was alleged that due to the negligent inspection of an Anchorage fire inspector, a hotel fire started in which five people died. The attorneys for the state contended, as defendants do here, that the building codes and fire inspection laws enacted by the State of Alaska were for the benefit of the general public only. In rejecting that argument, the court there stated, in part:
“ * * * The purpose of fire inspection is to protect life and property from fire; the purpose of [this] inspection was to discover and alleviate fire hazards endangering users of the hotel. Plaintiffs or their decedents were members of that class; they were the intended beneficiaries of the inspection services provided and the foreseeable victims of the fire hazards left uneorrected.
******
“Second, we consider that the ‘duty to all, duty to no-one’ doctrine is in reality a form of sovereign immunity, which is a matter dealt with by statute in Alaska, and not to be amplified by court-created doctrine. An application of the public duty doctrine here would result in finding no duty owed the plaintiffs or their decedents by the state, because, although they were foreseeable victims and a private defendant would have owed such a duty, no ‘special relationship’ between the parties existed. Why should the establishment of duty become more difficult when the state is the defendant? Where there is no immunity, the state is to be treated like a private litigant. To allow the public duty doctrine to disturb this equality *811would create immunity where the legislature has not.” 555 P.2d 241-242.
I find this reasoning to be logical and consistent with basic principles of law. Accord, Coffey v. City of Milwaukee, 74 Wis.2d 526, 247 N.W.2d 132 (1976).
The artificiality of the public duty-special duty distinction is further demonstrated by the facility with which courts that recognize this distinction are able to find a special duty in cases wherein they wish to allow recovery. See, e. g., Foley v. State of New York, 294 N.Y. 275, 62 N.E.2d 69; Id., 177 Misc. 443, 30 N.Y.S.2d 998 (1945); Serpas v. Margiotta 59 So.2d 492 (La.App. 1952). Campbell v. City of Bellevue, 85 Wash.2d 1, 530 P.2d 234 (1975). In the above cases, recovery was allowed under circumstances where, under the general rule relied on by the majority, it would clearly have been denied. See, Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972). The majority opinion itself suggests that there may be occasions where a “public duty” may be transformed by the circumstances into a “special duty.” It is precisely this type of treatment by the courts that prompted Chief Judge Desmond to bemoan the majority rule’s “ * * * exceptions, interpretations and inconsistencies galore.” Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635 (dissenting).
It is obvious that the majority opinion does not make the tort liability of the state and local governments co-equal with that of private entities. There may be a reluctance to permit such liability, presumably based on the fear of the crushing burden of limitless liability which may be placed on the political subdivisions of the state if such suits were allowed to be brought. Some courts have indicated a belief that subjecting governmental units to suits of this sort would unduly impinge on the business of governing. Such apprehension is understandable. It is difficult to state with any certainty the actual economic impact of allowing suits of this type. Theoretically, many hundreds of people could be included within the class of persons intended to be protected by these kinds of ordinances. The possibility that a municipality may be held liable for the breach of every building code or zoning ordinance within the city, and the consequent enormous potential drain of the public coffers, is often raised as the prime justification for the “public duty doctrine.” See, Lorshbough v. Township of Buzzle, 258 N.W.2d 96 (Minn.1977); and Hoffert v. Owatonna Inn Towne Motel, Inc., supra.
Such arguments, however, were raised a decade ago in opposition to the proposal that the state waive its defense of sovereign immunity. See, Spanel v. Mounds View School Dist. No. 621, 264 Minn. 279, 118 N.W.2d 795 (1962). These contentions proved to be false then and they are just as likely to be false now. See, Borchad, Governmental Liability in Tort, 34 Yale L.J. 129 (1924); Antieau, Statutory Expansion of Municipal Tort Liability, 4 St. Louis U.L.J. 341 (1957). Furthermore, the tort liability act sets maximum liability limits of $300,-000 on any tort committed by a municipality.1 Thus, the problem of potential unlimited liability of the cities has been largely abrogated by the legislature.
Moreover, by allowing suits of this type against the state, the state does not assume an absolute duty to enforce its laws and ordinances. Cities will not be held to guarantee compliance with codes and to insure the safety of every building in the city, as the majority seems to indicate. Rather, cities will be held only to a standard of due and reasonable care, liability being limited by such principles as proximate cause and foreseeability.
*812Finally, there are many defenses to municipal tort liability already set out by our legislature in Minn.St. c. 466.2 These exceptions provide ample protection to political subdivisions of the state, and no further exceptions to tort liability need be judicially created.
In addition to the legal justification stated above, there are reasons of public policy which convince me that the decision of the majority is erroneous. By immunizing municipalities from tort liability arising out of the negligent performance of a “public duty,” the majority opinion severely undermines any motivation on the part of a municipality to insure that such important duties as fire inspection are properly performed — rendering these duties meaningless. Furthermore, by hanging onto this relic of governmental immunity, the majority is perpetuating the inequity we strove to banish when we abrogated sovereign immunity. I believe that Judge Desmond said it most clearly in his dissent in the case of Motyka v. City of Amsterdam, 15 N.Y.2d 134, 141, 256 N.Y.S.2d 595, 599, 204 N.E.2d 635, 638:
“The time has come to remove from our law all the remaining vestiges of governmental immunity. We should be done with exceptions and incongruities. We should cut through the wilderness of special instances and say * * * that municipal nonliability for injury-causing breaches of duty is archaic and unjust. Cities should be held to the same standards of conduct as apply to private persons, since the risk of liability * * * is incidental to municipal activities.”
I would reverse the decision of the trial court.3
. Minn.St. 466.04 states in pertinent part: “Subdivision 1. Liability of any municipality on any claim within the scope of sections 466.-01 to 466.15 shall not exceed
“(a) $100,000 when the claim is one for death by wrongful act or omission and $100,-000 to any claimant in any other case; “(b) $300,000 for any number of claims arising out of a single occurrence.
“No award for damages on any such claim shall include punitive damages.”
. Minn.St. 466.03 provides: “Subdivision 1. Section 466.02 does not apply to any claim enumerated in this section. As to any such claim every municipality shall be liable only in accordance with the applicable statute and where there is no such statute, every municipality shall be immune from liability.
“Subd. 2. Any claim for injury to or death of any person covered by the worker’s compensation act.
“Subd. 3. Any claim in connection with the assessment and collection of taxes.
“Subd. 4. Any claim based on snow or ice conditions on any highway or other public place, except when the condition is affirmatively caused by the negligent acts of the municipality.
“Subd. 5. Any claim based upon an act or omission of an officer or employee, exercising due care, in the execution of a valid or invalid statute, charter, ordinance, resolution, or regulation.
“Subd. 6. Any claim based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused.
“Subd. 7. Any claim against a municipality as to which the municipality is immune from liability by the provisions of any other statute.”
. It should be noted that the trial court’s decision was reluctantly made in the light of our previous decisions. The trial court’s memorandum urged us to overrule our prior decisions and to do away with the immunity of governmental units based upon the “public duty” theory.