The opinion
POPOVICH, Chief Judge
(dissenting).
I respectfully dissent and would affirm the trial court:
1. Following Spanel v. Mounds View School District No. 621, 264 Minn. 279 , 118 N.W.2d 795 (1962), the state legislature enacted the Minnesota Tort Liability Act of 1963 granting municipalities and local agencies, including counties, limited immunity. Minn.Stat. ch. 466. The absolute immunity of the state was limited by passage of Minn.Stat. § 3.736 in 1976. The majority makes much of the exclusion of counties from the definition of “State” in section 3.732, subd. 1(1). The legislative history of both laws indicates the basis for that exclusion since counties were already covered in chapter 466. The discussion of inclusion or exclusion is of no assistance in this matter.
2. The responsibility to inspect homes and license day care homes is a state responsibility, as the majority admit. This state responsibility is delegated to the counties who, when so acting, are doing so as state employees. The majority cites Le-Grand Supper Club as authority for their position the county is not an employee, but LeGrand involved private employers for the limited purpose of state unemployment compensation law. Here the statute indicates the actual relationship.
Under Minn.Stat. §§ 245.783 and 245.801, the ultimate decision to issue, deny, suspend or revoke a license rests with the Department of Public Welfare. However, under Minn.Rule 9545.0310, subpt. 1, the local county welfare department is designated “the duly delegated representative of the commissioner.” The rules compel the county welfare department to evaluate the potential operator and recommend licensing if the prospective licensee meets the minimum standards prescribed by the rules. Rule 9545.0320, subpt. 5. Furthermore, the county must make evaluation visits at least once every twelve months. Id. subpt. 7. In order to provide these services, the county receives funding from the state and federal governments. All of these factors *840 tend to show that the relationship between the state and the county was that of an employer and employee.
The district court, viewing the question as a “problem of statutory construction” held the county did act as an employee of the state, therefore it was immune from liability. That court, citing Minn.Stat. § 3.732, subd. 1(2), noted the county was an agent which acted on behalf of the state. The district court, therefore, held the county was an employee of the state. I agree.
3. Neither do I believe the county has a special duty to appellants as it performs the state’s licensing duties. The special duty theory stems from Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn.1979). There, the supreme court held a governmental body is not liable for negligent inspection unless it owes a “special duty” to the injured person rather than a general duty to the public as a whole. The special duty doctrine is essentially a judicial recognition of the modern trend to make government inspections in a vast number of areas. Governmental bodies routinely make general building inspections, fire inspections, and inspections of a wide variety of other establishments. While each of the inspections benefit the individuals who use the particular establishment inspected, the entire regulatory scheme is designed to protect society as a whole. The special duty doctrine recognizes the prevalence of these general regulatory enactments and the immense financial burden which could be imposed on governmental bodies when possibly insolvent or underinsured third parties are negligent and plaintiffs seek a “deep pocket.” As the court stated in Lorshbough v. Township of Buzzle, 258 N.W.2d 96, 102 (Minn.1977), “Government is not intended to be an insurer of all the dangers of modern life, despite its ever-increasing effort to protect its citizens from peril.” Because of this, the Minnesota Supreme Court has held in order for the government to be liable for negligently performing its duties under these general regulatory inspections, the government must have owed the plaintiff a special duty.
In the present case, there is a controversy over whether the county had actual knowledge of the dangerous conditions of the day care center. The statutes and regulations also seem to have been designed to protect day care children as a class. In spite of this, summary judgment should have been granted because it is undisputed that appellants did not reasonably rely on specific representations and conduct of the county nor did the county increase the risk of harm to the children.
Under the second prong of the Cracraft test, appellants must show they reasonably relied on specific actions or representations of the county so they failed to take other steps to protect themselves. Although the trial court suggested numerous ways in which appellants may have relied on the county, the only evidence is an affidavit filed by one of the appellants which says he would not have sent his child to the day care center had it not been licensed. This general reliance on the county’s inspections and recommendations to license is just not enough to satisfy this requirement. As the Cracraft court stated:
Reliance on the inspection in general is not sufficient. Instead, the reasonable reliance must be based on specific actions or representations which cause the persons to forego other alternatives of protecting themselves.
279 N.W.2d at 807 .
Appellants do not assert they relied on any specific statements by county officials that they had inspected and the facilities were safe. Nor do they assert they relied on any specific conduct other than the general inspection and licensing. Because the record contains no evidence to show that appellants relied on any specific actions or representations of the county, the second factor of the Cracraft test is clearly not met.
The fourth factor in the Cracraft test is also not present in this case. The trial *841 court felt the county would be liable merely if it did not exercise reasonable care in investigating the day care center. However, under Cracraft the test is not whether the county used due care to decrease the risk of harm as the trial court seemed to believe. Under Cracraft , appellants must show the county did not “use due care to avoid increasing the risk of harm.” Id. While the distinction is subtlé, the cases have shown that the county is not obligated to decrease the risk of harm, but merely to avoid increasing the risk of harm. In Hage v. Stade, 304 N.W.2d 283 (Minn.1981), the court found this fourth factor was not present even though the governmental inspectors failed to decrease the risk of harm. The same is true of the Cracraft inspectors who arguably failed to exercise reasonable care in their inspections.
It is clear in this matter the county did nothing to increase the risk of harm to the children. Even assuming the county knew of the dangerous conditions at the day care center, the risk of injuries to the children after the inspections was the same as before the inspections. The situation is similar to Cracraft , where the court stated “the risk of explosion prior to the inspection was the same as after the inspection.” 279 N.W.2d at 808 . Because of this, the fourth part of the Cracraft test is also clearly not met.
4. In any event, it is clear the county has procured liability insurance. To the extent it has, immunity is waived to the extent of the coverage defined in the policy, otherwise the premium expenditures would have been a waste of public funds and contrary to public policy. Minn.Stat. §§ 3.736, subd. 8, 466.03, subd. 6 (1984). In my opinion, unlimited liability is not, however, provided. The plaintiffs continue to have a proper private cause of action against the operator and employees of the day care center itself.