Daily Development for
Thursday, January 28, 1999

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

MUNICIPAL CORPORATIONS: Public duty doctrine, which provides governmental entities with immunity from tort liability arising out of discretionary governmental actions, shields municipality from liability to subdivision lot purchasers where agency approved subdivision despite fact that water supply to lots was inadequate for residential use and fire protection.

Kashmanian v. Rongione, 712 A.2d 865 (R.I. 1998).

Numerous defendants alleged that the water supply to their homes was inadequate and, among other things, alleged that the town should not have approved the subdivision.  The property owners in this case were unsuccessful in convincing the court that either one of two exceptions to the public duty doctrine applied.  Immunity from liability is inapplicable when the municipality has assumed a special duty owing to a specific, identifiable individual.  The public duty doctrine is also inapplicable when the municipality is engaged in egregious conduct such that it has knowledge that it has created a circumstance that forces an individual into a position of peril.  Although the water district in the town had previously established a moratorium on new developments because of low water supply, the moratorium had ended before the town approved the new subdivision.  The court found that the town's knowledge of the moratorium did not create a special duty to the plaintiffs.

The "egregious conduct" exception did not apply in this case since the residents did not establish that they were in a position of extreme peril when the planning board approved the subdivision nor did they show that the town's approval of the subdivision created the water problems.

Comment: Phillips v. King County, the DD for May 1, 1998, held that a government entity could be liable (or potentially liable) in inverse condemnation for faulty design of water discharge system.  The damages in the instant case were somewhat more remote, and didn't arise to the level of an invasion of property rights.  The principles of liability involved, however, seem similar.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1 - 6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

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