Contributor: Lee Grossman
General Governmental Immunity in North Dakota
Government leaders are often asked to make difficult policy decisions that balance public resources, risk, and accountability. North Dakota law recognizes that local governments cannot be expected to insure against every conceivable injury that may arise in the course of public service. Chapter 32-12.1 of the North Dakota Century Code sets the rules for governmental liability, carving out important immunities for political subdivisions (e.g., counties, cities, and townships).
Within these immunities, N.D.C.C. § 32-12.1-03(3)(f) shields political subdivisions from liability for many claims relating to the performance or nonperformance of a “public duty”—such as inspections, licensing, or providing police and fire protection. However, § 32-12.1-03(3)(g) draws a critical line: the public duty doctrine does not apply if a “special relationship” exists between the political subdivision (or its employees) and the injured party.
What Is a “Special Relationship”?
The statute outlines four elements that must all be present for a “special relationship” to exist:
- Direct Contact
The injured party must have had direct contact with the political subdivision or one of its employees. This goes beyond general community services—it requires some actual interaction. - Assumption of Duty
The political subdivision, through promises or actions, must have affirmatively undertaken a duty to act on behalf of that individual. For example, a city official explicitly promises to provide specific assistance. - Knowledge of Potential Harm
The political subdivision must know that its failure to act could lead to harm. This element requires awareness of the potential consequences of inaction. - Reliance or Increased Risk
The injured party must justifiably rely on the political subdivision’s undertaking, or the political subdivision’s action must increase the risk of harm. Alternatively, liability may attach if the injury occurs while the person is under the direct control of the political subdivision.
All four of these conditions must exist together before a court will recognize that the city owes a specific legal duty to the individual. Only in that case can liability bypass the general immunity granted by the public duty doctrine.
Why This Distinction Exists
Without subsection (g), political subdivisions could face near-limitless exposure for the everyday operations of police, fire, inspection, or regulatory departments. The immunity protects resources and allows local officials to make discretionary choices without constant fear of lawsuits.
At the same time, subsection (g) ensures that when a political subdivision explicitly undertakes responsibility for an individual—creating reliance and foreseeable harm if it fails to follow through—it cannot hide behind the shield of general immunity. The law strikes a balance: protecting government decision-making, while holding political subdivisions accountable when they step into a direct, personal duty.
Practical Examples
- No Liability (Public Duty Applies):
A building inspector fails to catch a code violation during a routine inspection, and later the building suffers damage. No direct relationship or reliance exists with a specific occupant; the immunity stands. - Possible Liability (Special Relationship):
A resident calls city fire services about a gas leak. The department promises to evacuate the resident, instructs them to wait, but never returns. If the resident suffers injury, a court may find a special relationship: direct contact, an assumed duty, knowledge of risk, and reliance on the city’s promise.
Conclusion
North Dakota law provides general immunity for political subdivisions as long as no special relationship is created between the political subdivision and the citizen. If you have questions about whether this special relationship was created, contact the legal professionals at SW&L Attorneys. If you need to consult with an attorney about political subdivisions, please contact us!
