*1 COMPANY, INC., CHANDLER SUPPLY
Plaintiff-Respondent, Indemnity Company,
Industrial Involun-
tary Plaintiff-Respondent, BOISE, municipal corpora-
CITY OF
tion, Defendant-Appellant.
No. 13489.
Supreme Court of Idaho.
Feb. 1983.
Rehearing April Denied Elam, Burke, Evans, Boyd,
Peter J. Koontz, Boise, defendant-appel- Boyd & lant. *2 Smith, аppeal on because Howard, Quane, raising How- that defense
John P.
as an af-
Hull, Boise,
immunity
failed to assert
respondents.
ard &
Boise
pleadings.
in its
I.R.C.P.
firmative defense
BAKES, Justice.
issues not raised
15(b) states that “[w]hen
by express
tried
or
pleading[s]
are
by
appeal
brought
judg-
This
is
from a final
they shall be
parties,
consent of the
implied
ment
respondents,
entered in favor of the
they
as if
had been
respects
treated in all
Co., Inc.,
Supply
Chandler
and Industrial
That rule also
pleadings.”
raised
Indemnity
brought
Co. Chandler had
suit
pleadings may
provides that while
Boise,
against
appellant,
City of
under
to the
pleadings
conform the
amended to
Act,
the Idaho Tort Claims
title
Code
evidence,
amend does not
“failure so to
chapter
alleging negligence
part
on the
these is-
of the trial of
affect
the result
of Boise’s fire department.
ap-
The facts
record re-
An examination of the
sues.”
pеar
substantially
to be
as follows.
immu-
veals that the issue
22,1976,
December
p.m.,
On
at about 5:34
nity pursuant
Department
the Boise Fire
responded to
by
tried
to and
presented
building
activation of a
fire alarm. On
we hold
Consequently,
trial court.
location,
reported
arrival at the
the fire-
15(b)
gov-
the issue of
pursuant
to I.R.C.P.
fighters
grass
discovered a
fire of unknown
present-
properly
ernmental
origin burning between a set of railroad
appeal.
on
ed to this Court
enclosing
tracks and a fence
a warehouse.
1976, set
6-903(a), as it read in
I.C. §
firefighters
The
extinguished
using
the fire
liability
governing
the basic rule
forth
shovels,
burlap bags,
water.
buckets of
Idaho for tort
entities in
leaving
approximately
Before
the scene at
against
claims filed
them.
p.m.,
department
5:55
members of the fire
checked the exterior
“6-903. LIABILITY OF GOVERN-
of the warehouse and
found no evidence that
MENTAL
OF
building was
ENTITIES —DEFENSE
(a) Except
involved in the fire. At
as otherwise
apрroximately 6:12
EMPLOYEES. —
p.m.,
response
act,
to a
telephone report
provided
every governmental
in this
fire,
building on
the fire
re-
department
entity
subject
money
turned to the location of the earlier grass
negligent
out of its
or
damages arising
fire. The firefighters discovered that
acts or omissions and
wrongful
otherwise
previously checked warehouse was on fire.
within the
employees acting
those of its
fought
The fire was
and extinguished, but
scope
employment
course
of their
damage
resulted in substantial
to property
duties,
arising
govern-
whether
out of a
owned by Chandler. Both Chandler and his
function,
mental or
where
timely
city.
insurer filed
claims with the
A
governmental entity
private person
if a
jury trial was held which resulted in a
money
would be liable for
dam-
entity
special
finding
verdict
Boise 75%
the laws of the state of Ida-
ages under
negligent.
and Chandler 25%
Total dam-
added.)
(Emphasis
ho.”
$116,331.31.
ages
city
amounted to
The
еxceptions
6-904 contains several
appeals.
Boise now
es-
governmental liability
the basic rule of
6-903(a).
excep-
tablished under I.C. §
primary question1
by ap
raised
case is the
present
tion relevant
pellant is whether the trial court erred in
exception con-
“discretionary
function”
refusing to hold the
of Boise immune
city
6-904,
(1)
tained in subsection
of I.C. §
6-904(1),
from
under
I.C. which,
follows:
read as
“discretionary
function”
However,
TO GOVERN-
respondents
Tort Claims Act.
“6-904. EXCEPTIONS
initially argue that Boise is barred
MENTAL LIABILITY. —A
appeal.
bility
Appellants
we do not
raise
the Tort Claims
several
issues
However,
presented.
since we reverse on the basis that the
reach the other issues
Department
subject
lia-
Boise Fire
was not
entity shall
above,
not be liable for
claim
have
any
“As we
indicated
there
no
which:
uniformity
interpretation
of such lan-
guage
“1.
courts nor are
alternative
there
Arises out of
act
omission
interpretations
might
from which we
se-
employee of
lect
exercising
care,
persuasive
interpretation
one
due
the execution
supported
logic
most
and reason.” 100
regulation,
statute or
whether or
*3
545,
Idaho at
602 P.2d
43
regulation
valid,
(emphasis
statute or
at
or based
upon
added).
the
or performance
exercise
or the
failure to
or perform
exercise
a discre- Then, following further discussion concern-
tionary function or duty
part
on the
ing
“melange
the
of decisions” from other
governmental entity
thereof,
or employee
jurisdictions, this
concluded that with
whether or not the discretion be abused.”
regard
inspections
the state
by
mine
(Emphasis added.)
“[tjhere
the
parallel
are not
functions in
result,
private sector.” As a
it was held
scope
governmental
The
of
liability under
that
the state was not
subject
this scheme was first
addressed
this
under the Tort
Act.
Court in
Claims
Dunbar v. United
of
Steеlworkers
America,
523,
100 Idaho
(1979).
On appeal, the parties in Dunbar focused
arguments
their
the interpretation
on
of
Court,
subsequent opinions by
Two
discretionary
exception.
100
Hansen,
v.
101 Idaho
608 P.2d
Gavica
Nevertheless,
Idaho at
602
at
P.2d
(1980),
Nampa
v.
Highway
McClure
holding
this Court’s
in Dunbar
that
the Dist.,
(1981),
102 Idaho
subject
state was not
to liability under the may
engendered some confusion con-
have
Tort
Act
Claims
did
rest on an applica-
holding
of
in Dun-
cerning the extent
our
rather,
exception;
tion of that
it
rested
concerned
bar. Both Gavica and McClure
provisions
6-903(a).
of I.C. §
Follow-
governmental
question
of
exhaustive review of numerous cases
part
where there was a failure on
of
jurisdictions
from other
which illustrated
post
responsible governmental agencies to
great
prevailing
confusion
on the sub-
dangerous
signs warning
highway
condi-
ject
immunity under simi-
Gavica,
approached the
tions.
In
this Court
statutes,
lar tort claims
this Court stated
question
immunity by
following
in Dunbar:
argu-
state’s
recognizing
primary
11(7)
(now
highways
“Section
of that act
signing
codified
ment was
6-903(a))
I.C.
provides
function under
govern-
§
constituted
be-
entity
6-904(1).
opinion
shall be liable for acts
in Gavica
I.C.
§
pri-
‘where the
entity
gan by reviewing
if a
this Court’s decisions
person
vate
would be liable for
v.
Smith
money damages
under the laws of the
Dunbar v. United
Steelworkers
America,
state of Idaho.’
had
supra.
ruling
Smith
private
functions in the
abrogated
“parallel
tortious acts
terms of
state
sector,”
nothing
legisla
done in
it would add
unit’s
I.C.
capacity,
plan
provided
at 944.
tive
over that
473 P.2d
Gavica,
discretionary function
however,
6-903(a), and the
recognized that the subse-
§
surplusage
mere
and of
quently
would be
enacted Tort Claims Act was con-
statute, however, must be
trolling
question
on the
no effect. A
construed,
given
so that effect is
immunity.
6-903(a)
possible,
if
Since I.C.
estab-
§
of Utah
University
provisions.
lished the
to all its
governing
basic rule
the tort lia-
Bethke, 101
v.
bility
entities,
Hospital
& Medical Center
proper
(1980);
v.
Norton
Idaho
course in Gavica was to first determine
Dept.
Employment,
whether
sign
dangerous
failure to
condi-
(1972).
P.2d 825
tion on a highway fell within the scope of
6-903(a).
I.C.
Consequently, Dunbar was
§
Dist., su-
Nampa Highway
McClure
reviewed because it
interpreted
had in fact
with another
pra,
this Court was faced
6-903(a)
I.C.
and had established the
case,
simply
followed
highway signing
*4
“parallel function” test.
100 Idaho at
See
the conclu-
holding
by quoting
in Gavica
65,
Waiver
governmental
immuni
Although the Tort Claims Act which our
ty
under the Tort Claims
legislature
very
I.C.
6-
enacted is
similar to that
§
903(a)
6-904,
contemplates
states,
passed by Congress
many
§
two
other
step process. The first step consists of de
“melange
our review in Dunbar of the
termining whether
the governmental
yields
such acts
interpreting
decisions”
proprietary
parallel
function has a
jur-
conclusion that the decisions from other
private sector
if a private person
would
little
for defin-
provide
guidance
isdictions
governmental
liable
the same circumstances.
un-
scope
step
determining
The second
consists of
der our
Act. As stated in
own Tort Claims
any applicable exceptions Dunbar,
whether there are
we
derive some
“[Although
may
Indeed,
liability.
if the discretionary
legislative language,
scintilla of intent from
determining
function
were to be measured in we are left with the task of
and enunciating
policy.”
100 Idaho at
did not extend to traditional
We therefore undertake an
forty-first
legislature,
functions. The
how-
independent analysis of the discretionary
ever,
sovereign
subsequently waived
immu-
function
as contained in I.C.
nity
acts
tortious
to not
6-904(1).
§
only
proprietary but also
functions of a
unit which
Interpretation of the discretionary func-
have
parallel
private
sector. 1971
tion exception
begin
must
awith
review of
3;
Idaho
ch.
Sess.Laws
Idaho
§
the status of sovereign immunity in Idaho
4;
6-903(a).
Sess.Laws ch.
I.C.
§
immediately preceding the enactment of
Thus,
expansive
was more
the Tort
Claims Act.
In Smith v.
allowing
relief
from
torts
Idaho
this
course,
than was this Court in
Of
Smith.
Court held the following:
the legislature
exceptions
enacted certain
hereby hold
doctrine of
“[W]e
including the
liability,
discre-
sovereign immunity
longer
is no
a valid
tionary
exception.
defense in
upon
actions based
tortious
is,
ch.
The question
Sess. Laws
4.§
acts of the state or
its depart-
what
intent behind establishing
ments,
subdivisions,
political
counties, or
particularly
those
exceptions,
discretion-
cities,
where
unit has
ary
exception.
acted in a proprietary
distinguished
from governmental
(Em-
capacity.”
abolishing
prior
its
rule of sover
phasis added.)2
eign immunity for
acts arising
tortious
The Court in Smith also invited the legisla-
state,
functions
*5
ture to exercise its own prerogative in the Court
did not provide
any
Smith
for
sovereign
area of
and
immunity
therefore
exceptions
immunity.3
to such
The unstat
delayed the effect of the Smith decision
ed
underlying
but obvious reason
such unre
days
until “60
to
subsequent
adjourn-
the
liability arising
govern
stricted tort
a
ment of
First Regular
the
Session of the mental unit’s
functions was
proprietary
”
Forty-First
Legislature
Idaho State
....
liability
impinge
that such
does
upon
93 Idaho at
P.2d at
the
to
ability
government
supply
of the
the
significance
of the
decision
services
which
traditionally
Smith
for
it has
been
the present case is the
that
responsible.
appears
fact
while this
This
to have
concept
its prior
abolished
court made rule of
been
over in the
formu
legislature’s
carried
sovereign immunity
proprietary
exceptions
for
func-
governmental
lation of
to
tort
unit,
tions of a governmental
that
Only
abolition
under I.C.
subsec-
liability
6-904.4
holding
2. The
in Smith did not
in fact effect
activities involved in
McClure
Gavica and
were
significant change
such a
in the law
clearly beyond
scope
discretionary
as the
the
language might
regard
political
indicate with
to
exception,
function
and no extended discussion
prior
and
subdivisions
cities.
In the
case of
necessary
exception
was
those
that
cases.
Caldwell,
499, 505,
City of
Ford v.
following
was stated:
4.“6 —904.
TO GOVERNMEN-
EXCEPTIONS
jurisdiction
“It is well
established
this
that
governmental
TAL LIABILITY. —A
and
municipality
a
in the absence of a statute
employees
acting
its
while
within the course
imposing
is not liable for the torts of
employment
scope of their
and
and
without
employees occurring
its officers and
malice
intent
not be
or criminal
shall
liable for
function;
governmental
a
exercise of
it is
any claim which:
only
acting
proprietary
liable
when
ain
ca-
“1.
out of
or omission of an
Arises
act
pacity."
(Emphasis added.)
employee
governmental entity exercising
Note,
generally,
Sovereign Immunity
See
care,
ordinary
upon
in reliance
or the execution
Idaho,
(1970).
L.Rev.
performance
statutory
regulatory
or
of a
or
clearly
3. Smith
held that
the maintenance of
function,
regula-
or
statute or
whether
not the
function,
highways
proprietary
opposed
ais
valid,
upon
or
tion be
based
exercise or
governmental
to a
function
state. The
performance
per-
or the
exercise or
failure to
signing problems in Gavica and McClure like-
discretionary
duty
form a
on the
function
proprietary
wise concerned
functions of the
below,
Consequently,
state.
as discussed
Ford,
boy
injured
was
young
a
(8)
exception
defines an
clearly
tion
fire
city
of Caldwell’s
visiting
he was
functions.
applicable
on
ready
was in the
room
boy
station.
subsection, however,
is not
true
Even that
He had
the fire station.
floor of
upper
sets forth
exception
liability.
merely
It
showed to
toy whiсh he
with him a rocket
any design
plan
that
standard
While
present.
were
two firemen who
improvement
public prop-
construction or
boy
toy,
with the
played
two firemen
engineer-
erty
judged
in accordance with
hole in the floor
through the
fell
at the
design
prevailing
and
standards
floor below
the concrete
onto
ready room
plan.
preparation
design
time of
was
injured.
Suit
seriously
and was
(5)
(2), (3),
Exceptions under subsections
the trial court
city,
but
brought against
(6)
clearly apply
govern-
to traditional
Court af-
appeal,
dismissed it. On
functions,
sub-
exceptions
mental
under
stated
This Court
the dismissal.
firmed
(4)
(7)
prop-
sections
focus
activities
providing
of a statute
in the absence
erly
to individuals alone rather
attributable
“not liable
otherwise,
municipality
government.
apparent
than to the
It seems
employees
of its officers
for the torts
legislature’s
purpose
that a basic
behind the
govеrnmental
in the exercise
occurring
”
exceptions
govern-
creation of a list of
function ....
its
was to limit the effect of
that the mainte-
It
then held
at 593.
sovereign immunity
waiver of
municipal
department by
nance of a fire
governmental
partic-
functions. Such is
function, and
corporation
is a
ularly true with reference to the discretion-
was therefore immune from
city
6-
ary
the firemen.
suit for the
view,
904(1).
behind the
In our
type
of result
Ford illustrates
pre-
is to
intended to
likely
most
immunity from tort lia-
serve
tort
change
when it waived
which arise from
bility
consequences
for the
pro-
as well as
planning
decision-mak-
the firemen
Although
functions.
prietary
units
ing necessary
to allow
scope of a
working within the
in Ford were
freely perform
govern-
their traditional
i.e.,
function,
traditional
mental functions. A review of this Court’s
they
*6
department,
fire
publicly maintained
Caldwell,
City
decision in Ford v.
of
oper-
planning
the
and
engaged
werе not
in
499,
(1958),
to the
helps
decision-making necessary
Idaho
through the discretionary enactment of the exception. function hold To otherwise J., SHEPARD, McFADDEN, and J. open would be to to such govern- door (Ret.), concur. mental as that evidenced in Downs States, DONALDSON, (6th Justice, v. dissenting. United F.2d Cir. Chief 1975). To countenance the construction of the Downs, government federal function discretionary I.C. be found to liable under potentially 6-904(1) adopted by majority § would federal tort claims act for murders perpe Act, be to emasculate Idaho Tort Claims FBI by skyjacker agents trated shot Title I.C. To Ch. construe discre- engines out one prevent aircraft’s tionary apply to all a takeoff. The court held that there planning in tradi- and decisions FBI agents’ actions did not constitute a tional governmental functions does not fur- “agents because ther of the Act as general were involved in formulating govern not expressed 6-903(a). I in I.C. dissent. at policy.” 522 F.2d 997. This adoption Prior to the of the Idaho Tort clearly Downs in disapproved of Dun Act, I.C., which was Claims Title Ch. bar, 535-36, 545-46, at Idaho decision in legislative response to our 33-34, 43-44, certainly legisla our P.2d 937 Smith v. interpre ture did intend such narrow (1970), City v. the Court had held in Ford placed tation term upon to be “discre Caldwell, tionary function.” engaged Public officers not be municipality an Idaho would preserving peace safety liable for of its officers upon are called to exercise their community legis employees pursuant in the exercise judgment in a manner often means func authority lative life or death themselves and others. De fire maintaining tion of operating cisions in such areas as law enforcement the Idaho department. passage With firefighting must often made in an ruling Tort in Ford Claims Court’s Surely, by enacting instant. discretion Caldwell, legisla City supra, has been *7 ary exception, legislature rec Therefore, resolve the tively displaced. to ognized making discretion in such that turn to the present Court should case the judgments is at least' entitled to deference it, Act, and other construing our case law given judges and equal legislators to that to of persuasive authority. passage Since time, debate and a luxury who have the Act, dis has considered comparatively place safe and comfortable to govern to cretionary function in which ponder ways gov and decide the Dunbar v. in three cases: liability business be conducted. ernmental should America, 100 Idaho United Steelworkers denied, 523, 446 (1979), cert. that the discre
We therefore hold 2963, 839 S.Ct. 64 L.Ed.2d I.C. 6- U.S. 100 tionary function Hanson, 608 v. (1980); units from tort 904(1) shields Gavica Nampa v. (1980); and McClure arising from P.2d 861 consequences for the liability District, 628 P.2d Highway and decision-mak planning (1981). necessary performance to the of tradi- Dunbar, federal ment’s traditional im- all-encompassing the Court searched In to an effort authority in tort actions and to establish munity and sister state from by general approach or rationale unprecedented governmental discern a and novel function or whether a which to determine liability.... Congress was aware would be and thus duty was by negligence when losses caused such from the ambit of excepted treasury charged against public are juncture, con- At that the Court liability. spread among all those they are in effect theory there was “no clear or cluded that support financially who contribute to philosophy meaning application as to resulting bur- of the Government and ‘discretionary act’ exemption slight. taxpayer relatively den on each which Act is common to Tort Claims burden falls on the But when entire Dunbar, su- legislation.” federal and Idaho it destitute injured party may leave him pra, 602 P.2d at The Court also at 30. could, greviously Congress harmed. language concluded that with did, apparently and decide 6-903(a) gov- which provides a public would be unfair when the as liability governmen- ernmental “where the per- whole benefits from the services private entity tal a entity person if by employees.” formed Government damages under money would be liable 319-20, supra, at Rayоnier, S.Ct. of the state ...” that laws 377. uniformity interpretation “there is no traditionally have been municipalities While there language by of such courts nor are negli- from resulting immune from interpretations alternative firefighting activities, City v. gence in Ford might persuasive we select that one Caldwell, supra, legis- I that the believe by logic most interpretation supported immunity. lature has removed such Rather, melange reason. we find a Dunbar we held that: wherein times of decisions reason at has where- “our intended that have flown window.” seems to out the private to a in tort would attach Dunbar, supra, at P.2d at governmental entity engaging a person, I language, Rayo- such believe that Despite same conduct will liable. We do be States, Incorporated nier United 352 U.S. an create a new not ascertain intent to L.Ed.2d 354 S.Ct. against cause of action presents helpful guid- considered in Dunbar govern.” for its to Dun- entity attempts Rayonier brought ance. ' bar, at 44. supra, at Tort Claims Federal U.S.C. im- activity in Dunbar which was held 2671-2680, alleged 1346(b) for losses §§ paral- had no mune was by been caused have Here, no I find private lel in the sector. fire allowing a forest employees federal plausible reason accord failing on federal land and be started per- be conceivably could activity which fire. due care in fighting act with dis- I see no private entity. con- formed explicitly Court without Rayonier negli- private individual excep- tinction between discretionary function sidering the activity a fire the same fighting negligent firefighting gently tion found department. fire by municipal result firefighters performed could to hold it would irrational liability. agree with I feel that I negligent and believe who is language Rayonier private such a following department to our own liable a fire analogously applied fighting it a fire can be manner сlaims act: acts in the same tort who *8 I Hanson, supra. Gavica v. immune. See unprec- be that it is ‘novel and may “It was con- result accept such a cannot States to hold the United edented’ In Dunbar legislature. templated fire- for the of its accountable we “although recognized that of the Tort the Court very fighters, but scintilla of intent some may the Govern- derive Act was waive Claims 488
legislative language,
arewe
left with the
I agree with the majority that the Court’s
task of determining and enunciating poli-
Dunbar,
holding
supra,
did not rest on
cy.” Dunbar,
supra, at
course,
v.
498
State
P.2d
dealing with a statute sub-
jecting the Government
(Alaska 1972);
State,
712
Andolino v.
624
potentially great sums of money,
(Nev.1981);
P.2d 7
Bigelow Ingersoll,
v.
Court must
promote
not
profligacy by
(Utah 1980);
State,
P.2d 50
Frank v.
careless construction. Neither should it
(Utah 1980);
Morrison v. Salt
as a
guardian
self-constituted
of the Lake City Corporation,
(Utah
489 routinе, matters, Thus, which concern everyday the distinction is ‘between basic formulation, immune, not requiring policy evaluation of broad which is policy ’ ” Bigelow implementation factors.” v. 618 the execution or of that Ingersoll, v. Frank 1980)(quoting immune, 50, (Utah policy, 53 basic which is P.2d 517, 520(1980)). implementation execution or of that basic State, P.2d 613 Air policy, Japan which is not immune.’ Planning many decisions as to how fire State, 934, P.2d 936 Lines Co. v. 628 stations to build and many firefighters how (Alaska 1981). to hire would be immune under such a lev- recognize ‘planning “We rationale from liability under the discretion- operational level’ test is somewhat el— ary function exception, but immunity would Nonetheless, inexact. it offers the ad- not be extended to routine everyday acts focusing on the reasons for vantage and decisions made by firefighters fight- immunity to the state. granting See ing routine everyday fires. 712, Abbott, (Alaska 498 P.2d 721 State v. Additional support for a planning-opera- 1972). test, аpplying In courts are tional garnered test can be reading from a required to isolate those decisions suffi- of recent decisions of the Supreme Alaska judicial so as to ciently justify sensitive See, e.g., State, Court. Wainscott v. 642 fashion, abstention. In this the test (Alaska P.2d 1982); State, 1355 Johnson v. protect worthy serves to those decisions (Alaska 636 1981); P.2d 47 Jennings v. of protection extending without the cloak State, 566 (Alaska 1977). P.2d 1304 immunity to an unwise extent.” Wainscott, a case involving a motor vehicle State, 1355, Wainscott v. 642 P.2d intersection, accident the Court held (Alaska 1982) (footnotes omitted). that a decision to traffic con- I dissent from the majority opinion be- trol devices was immune theory under the cause I perceive that its construction of the of the suit under a discretionary function emascu- exception similar to that found in I.C. lates the legislature’s permit intent re- 6-904(1). The Wainscott Court stated: covery in a speсtrum broader of cases and “Not all decisions involving an element practical purposes for all nullifies the intent discretion, however, fall within the dis of the Idaho Tort Claims Act. cretionary function exception. As nu It leaves the victims of conduct merous courts have recognized, even the by the State without recourse. most ministerial of tasks involves some degree of discretion. Jennings See v. BISTLINE, J., concurring. State, 566 P.2d (Alaska n. 30 Justice, BISTLINE, joining the dissent- 1977); State, Johnson v. 69 Cal.2d DONALDSON, opinion of C.J. Cal.Rptr. 447 P.2d Justice, join opinion I of the Chief (1968) (it is difficult to conceive of logical, persuasive, founded act that does not admit of some discre principles Only well-established of law. be- tion, even if it only driving involves 80 percent cause of the members of the nail). Rather, applies Idaho Bar Association have been admitted attaches when a decision since Idaho has had a Tort Act do I Claims entails planning policy see a responsibility my to add own views formulation. Japan Air Lines Co. v. a separate which I make no opinion State, 628 P.2d (Alaska 1981); —for apology far-reaching a case where the I'Anson, State 193-94 majority opinion scarcely effects of the can (Alaska 1974). A decision or action which be grasped. merely implements a preexisting policy is nature, considered unde The excerpt opin- in Justice Donaldson’s serving protection under the discre ion from Wainscott v.
tionary function and, exception. (Alaska 1982), State v. extremely persuasive, I'Anson, (Alaska 1974). mind, represents the view which I my *10 490
espoused in- our Dunbar v. United legislative Steel- Such action in no uncertain America, workers of 523, 547, 602 terms did with the away distinction be- (1979) (Bistline, P.2d 45 J., dissenting). tween functions of the politi- State and its The excerpt Wainscott is better understood cal thought subdivisions which were to be by adding to it the following sentenсe governmental and functions which were which follows the excerpt, and by adding thought proprietary. legislative to be The also the footnote to the sentence: action was taken at the invitation of the “Applying principles these to the case Supreme legislature extended to the hand, at we conclude that the decision to Smith P.2d install flashing yellow red and lights in which was opinion well-re- lieu of a sequential signal traffic consti- widely throughout ceived and acclaimed tuted a planning level decision.4” Idaho. Two members Court who join “4 today opinion sat on this case and emphasize We that Wainscott’s sole theo ry negligence relates to the selection of join of Justice the opinion Bakes did not traffic control mechanism for the intersection. Smith; dissented, Justice they Donaldson allege, Wainscott does not and the record does but agree did that “the issuе now before suggest, department negligently designed improperly positioned or the red legislature the court is one reserved to the case, flashing light. stop Were this the there Smith, for action.” 93 Idaho at might level, be on an (McFadden, J., dissenting). P.2d at 954 The actionable under AS 09.50.250.” 642 P.2d at (emphasis added). McFadden, view in which of Justice Justice BISTLINE, Justice, dissenting. that, joined, was even Shepard though not at that time ever en- had Prior to 1971 Idaho had never had a legis- field, was majority tered Smith latively created Tort Claims Act. 1971 Ida- “entering a field that this court has upon ho Sess. Laws Ch. 150 was the first. Prior recognized as one re- always previously thereto all propositions governing of law legislature.” Id. was Worry served expressed how a judgment were case-made. The case-made as to would precedential hinged satisfied, law around notions of suggested lacking and it was pro- functions and notions of “any provision expressly constitutional functions, prietary a somewhat nebulous directing depart or this Court to permitting distinction and one which many scholars previously so from its uniform radically ” throughout commentators the entire holdings .... Id. The first of the two country just highly Idaho —saw as —not dissenting opinions philo- closed with this questionable always and not desireable. sophical caveat: All of problems those vanished with the legislature, as the “Until such time as passage of the Tort Claims Act: resi- representatives of the electors and Liability “6-903. en- state, waiver of expand dents of this Except
tities —Defense of employees. (a) immunity, this court should — act, provided every otherwise in this adhere the doctrine. It is for the governmental entity subject court, to make this legislature, not for for money damages arising out of its . 93 Idaho at change policy.” wrongful or otherwise acts or 955. omissions and those of act- employees its act, course, did and su- legislature, ing within the their scope course and opinion language perseded Smith —its duties, employment arising whether doing away exceeding in Smith out state functions with the distinction between function, governmental entity where the governmen- proprietary and state functions private person if a would be 6-903(a), supra. tal. liable laws money damages under the comprised of majority Smith (Emphasis of the state of Idaho.” add- Donaldson, McQuade, ed.) Justice Justice 100 Ida- enunciating policy.” Sess.Laws, mining Spear. Justice After 1971 P.2d at law, ho at Spear 150 became Justice retired ch. from the Court. All of this academic— entire discloses opinion reading A *11 being superseded by Smith’s effectiveness innocuous apparently foregoing that the Act legislature’s
the
Tort Claims
of 1971—
necessary
way
no
statement,
was
which
strange
sheds
on the
but
it
illumination
decided, was
the
of
issue
to a determination
events
in the
turn of
which unfolds
Court’s
believe)
to
(as I
then
continue
thought
dissenters,
opinion today.
forg-
The Smith
excuse for not address-
as an
simply offered
Bakes,
judicially
Justice
ing with
have now
the
by
to
the
the Court
ing
presented
issue
the legislature’s
decimated
Tort Claims Act.
certain,
not
the
did
parties.
opinion
For
however,
dissenters,
The
were ada-
Smith
the
application
the
of
with
concern itself
policy changes
mant
that
in the field of
6-904(1),
exception,
immunity
legis-
state
from suit were for the
concedes,
Bakes
which as
Justice
here
even
lature,
955,
scintilla intent from the lan- its mine fulfilling we the task based guage, are left with of deter- on case, State, to the to be includ- “As court held that knew such one involved [trial] activity upon plaintiffs opinion: which base their of the Court’s the author discretionary exception claim fell within the not create a “We it clear that Smith did deem Dunbar, action, Idaho Act.” Tort Claims but rather the aboli- new cause of Idaho at at 23. 602 P.2d defense to action tion of a total liability.” Idaho field of tort traditional eloquently, per- spoke 2. The Dunbar but Court at 43. at haps misunderstanding, in in- inadvertent dissenting opinion was same view: timating duty that if find a it were to breach of only issue before us is whether “The part Inspector, it on the of the State Mine mo- have been terminated action should result of a new cause of “would in the creation summary judgment. My ” vote tions for wrongful action for action .... The cause of That is not not have been. it should Legis- death was the 1881 Territorial created say might defendant not be entitled that each lature, since it hаs virtu- which time continued involuntary judgment to a dismissal Hermann, unchanged. ally Hogan v. presented, been but until has all evidence J., (Bistline, (1980) concur- done, nor the neither this Court been has ring). any position rule as a are in trial court passage the Tort Claims Prior children that the widows and matter of law simply sovereign, immune to are claim miners without of the deceased sued; presented being hence the issue allegedly the losses suffered relief for that of the creation of in Dunbar was not negligence of the defendants.” reason of the action, kind of but whether the discre- a new at 47. exception ap- tionary of the Tort Claims Act plied sovereign immunity. Every- so as to retain inspection duties was not contemplated by ernmental functions. Such is particularly legislature, and was foreign to true with to the discretionary reference law, tort today’s the author of function sequel 6-904(1). under I.C. § Dunbar, assuming view, after In our firefighting behind the dis- is to City cretionary pre- activities of Boise do have function parallel (not function in serve from tort private sector because so, it is consequences for the arise but because it is said “there is a great from the deci- guidance”), planning need for some jumps di- govern- to allow rectly sion-making necessary back into the freely perform units to their tra- versus governmental quagmire ditional functions.” which the 1971 had extri- *12 cated people of the State. The round- In an effort this untenable con- to sustain about meanderings by which the gets Court to the pre- clusion the reaches back unbelievable, there are but more unbelieva- of Ford v. of City Tort Claims Act case ble is the conclusion: Caldwell, (1958), Idaho
“It seems apparent that a which is that which the ma- fortify basic said to legislature’s behind the of jority illustrating type creation of a list sees result as of exceptions governmental likely to most intended liability was to limit the effect of its it passed waiver of when the 1971 Act.3 Such is at sovereign with gov- speculation. best but whimsical Caldwell, City legislative grant authorizing 3. Ford v. of “While the P.2d 589 is an excellent municipal corporations refresher course to establish fire de- for practice those members of the Bar whose 50-1137) per- partments (I.C. is couched in § predates passage of the Idaho Tort Claims Act 50-1101), (I.C. language neverthe- missive practice in 1971. For those whose commenced corporation exercising municipal is less ‘A a date, after it as serves an excellent exam- governmental maintaining and function when ple sovereign of the state of the law of immuni- pursuant legis- operating department a fire ty prior opinion’s as it existed to the Smith authority,’ lative ... prodding legislature. of the 1971 One should weight authority “The is to the of effect keep highly reputablе in mind that two firms governmental municipality that a exercises a sought City to establish the of liabil- Caldwell’s depart- maintenance of its fire in the ity compared which—as to the the case facts of ment. ... today nothing we review whatever to do —had municipality in the “Since a maintenance Rather, firefighting activities. the issue at department of its fire exercises negligence; premises premises stake was generally functions municipality has been held that a it was the second floor of the firehall and an negligence not liable for the of is unguarded pole standing fire erect from the in connection with its officers and servants first of a floor and the middle 27-inch hole. department.... fire disputes proprietary familiar as func- overwhelming weight authority “The of is readily tions vs. function is municipal corporation is to the that a effect picked excerpts, being up from these citations arising not liable condition, torts defective for omitted: opera- construction alleges complaint “The amended that the [8 apparat- fighting tion its facilities fire year injuries damage minor’s were old] us. ... proximately negligence re- caused municipal corporation “Particularly, is a spondent inviting permitting the minor maintaining pole a liable not extending through play in and the fire around station near the floor from a hole in the open failing protect hole in the floor and in fighting quarters fire the firemen’s apparatus danger falling through the minor from the since such is the floor below it, when in the exercise reasonable care governmental function.... exercise of respondent knew or should have known of nonliability absolves Such doctrine dangerous premises. such condition of its negli- municipal corporation from jurisdiction “It well in this established gence where invitees in casеs its servants municipality that a a stat- absence of falling through injured by are licensees imposing ute is not liable for the City unguarded.” Ford such hole left employees occurring of its officers and torts in 504-06, Caldwell, function; it the exercise (1958). acting only 591-93 is capacity.” liable says it, majority it of the Court Was was, doing legislature in sense that, however, More than the Court an- holding
nounces a beyond extends far
the instant case:
“We therefore hold that the discretion-
ary 6-904(1) in I.C. §
shields units from tort lia-
bility for the consequences arising from
the planning and operational decision-
making necessary performance
traditional functions.”
For may those who wonder at what
meant by an activist court and search for a
definition one, and not majori- find today’s
ty opinion will at least supply an outstand-
ing example of judicial unbridled activism pinnacle. its Reaction is back in the
saddle, and state immunity from suit for functions as it prior existed
to 1971 rides again. *13 Idaho,
STATE of Plaintiff-Respondent,
Betty MITCHELL, Jane
Defendant-Appellant. 13757.
No.
Supreme Court of Idaho.
Feb.
Certiorari Denied May 16, 1983.
See