Lead Opinion
During the 1979-1980 school year, appellant Lawrence Durtschi was employed as a fourth grade teacher at the Ammon Elementary School. Durtschi transferred to Ammon from Iona Elementary School in the same district. The school district employing Durtschi was School District No. 93 of Bonneville and Bingham Counties, Idaho (hereinafter “the school district”). The minor plaintiffs in the various cases on appeal
Plaintiffs filed complaints for damages, naming both Durtschi and the school district as defendants. Plaintiffs’ action against Durtschi was for lewd and lascivious conduct toward the minor plaintiffs. Their action against the school district sounded in negligence in its hiring and retaining Durtschi, and breach of its duty of care toward the minor plaintiffs. In all three cases, plaintiffs stated that as a result of Durtschi’s conduct, the individual minor plaintiffs suffered irreparable physical injury and severe psychological injury with physical manifestations, and that the parents of the minor plaintiffs suffered physical and psychological injuries, as well as incurring the future financial obligations of providing treatment and care for their children. Recognizing that the three cases raised the same questions of law, the district court consolidated them for purposes of determining liability.
Durtschi answered the complaints, admitting some of the conduct alleged. Durtschi then cross-claimed against the school district for indemnification under the Idaho Tort Claims Act, I.C. § 6-901 et seq. (ITCA). The school district answered Durtschi’s cross-claim by denying any liability, and cross-claimed itself against Durtschi for indemnification. The school district answered plaintiffs’ complaints by denying liability and counter-claiming for attorney’s fees.
The school district moved for summary judgment against the plaintiffs’ claim for negligence. The district court held that the plaintiffs were precluded from recovery under the assault and battery exception to the ITCA. Judgment was entered accordingly, from which plaintiffs appeal. The district court also denied plaintiffs’ motion for reconsideration; plaintiffs appeal that decision as well.
Thereafter, the school district moved for summary judgment against Durtschi’s cross-claim for indemnification. Ultimately, the district court held that, as a matter of law, Durtschi was precluded from seeking indemnification from school district under the ITCA, because defendant-teacher was not acting within the course and scope of his employment when he committed the lewd sexual acts. Once again, judgment was entered for the school district. Both the plaintiffs and Durtschi appeal from that decision and judgment.
As a preliminary matter we briefly review the law of summary judgment. A motion for summary judgment is proper only when “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c). When the motion is supported by depositions or affidavits, the adverse party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” I.R.C.P. 56(e). The latter requirement, however, does not change the standards applicable to the summary judgment motion. Central Idaho Agency, Inc. v. Turner,
With that as background and as explained below, we affirm the district court’s summary judgment against Durts-ehi, though on different grounds. We reverse the summary judgment against plaintiffs. Finally, we reject the school district’s suggestion that we uphold the summary judgment against certain of the plaintiffs on the ground that they failed to provide timely notice as required in the ITCA.
I. DEFENDANT DURTSCHI’S CROSS-CLAIM FOR INDEMNIFICATION.
I.C. § 6-903(c) of the ITCA provides:
The defense of its employee by the governmental entity shall be undertaken whether the claim and civil lawsuit is brought in Idaho district court under Idaho law or is brought in a United States court under federal law. The governmental entity may refuse a defense or disavow and refuse to pay any judgment for its employee if it is determined that the act or omission of the employee was not within the course and scope of his employment or included malice or criminal intent. (Emphasis added.)
In support of its motion for summary judgment against Durtschi’s cross-claim for indemnification, the school district argued that it was excused from indemnification because Durtschi acted outside the scope of his employment, or alternatively because Durtschi acted with criminal intent. See, e.g., R., Vol. 2, pp. 263-64. The district court tackled the difficult “scope of employment” question, ultimately holding that as a matter of law Durtschi indeed had acted outside the scope of his employment, and thus was due no indemnification. The district court did not reach the question of criminal intent, though it noted:
[A]t least in Case No. 29,029 [Doe], Durtschi admitted performing the acts alleged, [and] thus the Court can conclude that a battery occurred. The only affirmative defense raised by the defendant is that he is protected by provisions of the Idaho Tort Claims Act. R., Vol. 3, p. 174.
While we admire the district court’s courage and scholarly effort, we believe it chose the more troublesome and less certain of the two alternative routes. Upon reviewing the record in accordance with the standards set out above, we find that Durtschi unquestionably acted with criminal intent in all three cases. Being wary of recrossing the district court’s bumpy route, we do not reach the question of scope of employment.
The “criminal intent” provision “is satisfied if it is shown that the defendant knowingly performed, the proscribed acts____” State v. Gowin,
Durtschi admitted to performing the lewd and lascivious acts on the minor plaintiffs. R., Deposition of Durtschi, pp. 22-23. He specifically named each of the minor plaintiffs as the objects of his actions. Id. at 32. He expressly stated that he acted intentionally. Id. at 22-23. In the face of the school district’s arguments that he acted with criminal intent, Durtschi made no denials. In fact, he pled guilty to
In light of these facts, pursuant to I.R. C.P. 56(c), summary judgment was appropriate. “[Tjhere is no genuine issue as to any material fact” that Durtschi acted with criminal intent. Id. In such an event, I.C. § 6-903(c) makes clear that the school district is absolved from indemnifying him as a matter of law. On these grounds, we affirm the district court’s granting summary judgment to the school district against Durtschi’s cross-claim.
II. PLAINTIFF’S CLAIM AGAINST THE SCHOOL DISTRICT.
Pursuant to I.C. § 33-512(4), school districts in the state of Idaho are under a statutory duty to protect the morals and health of their students. In the instant case, the plaintiffs have alleged not only that the school district transferred Durts-chi with knowledge that he had previously sexually abused students entrusted to his care, but that even after learning of his abuse of the plaintiff children, the school district allowed him to continue teaching, retaining those same children in his classroom. In its arguments and briefing to both the district court and this Court, the school district has not argued that there is no genuine issue of negligence;
With the enactment of the ITCA, the state has subjected itself to liability for its own negligent acts and the negligent acts of its employees. Masters v. State,
There is a distinction between the conduct which forms the basis of a cause of action in negligence and one for assault and battery. A cause of action in negligence requires the breach of a duty which is the proximate cause of the plaintiff’s injury. Restatement (Second) of Torts § 328A (1965). A battery, on the other hand, requires intentional bodily contact which is either harmful or offensive. Id. § 13. Under the plaintiffs’ allegations, the children’s injuries arose out of the basic negligence of the school district. The injuries were the foreseeable consequence of the school district’s negligence in retaining Durtschi despite full knowledge of his proclivities.
The fact that the plaintiffs’ injuries were caused by a third party does not
It is clearly unsound to afford immunity to a negligent defendant because the intervening force, the very anticipation of which made his conduct negligent, has brought about the expected harm. Gibson v. United States,
If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.
Restatement (Second) of Torts § 449. See Smith v. Sharp,82 Idaho 420 , 428,354 P.2d 172 , 176 (1960).
The fact that the foreseeable danger was from intentional or criminal misconduct is irrelevant; the school district had a statutory duty to make reasonable efforts to protect its students from such a danger. A breach of that duty constitutes negligence. Under the allegations of the present case, Durtschi’s actions would not constitute a supervening cause, and the school district’s tortious conduct would not arise out of assault and battery. Rather, the roots of the assault and battery would be in the district’s own negligence.
The instant appeal presents a question of first impression in Idaho.
The cases barring recovery do so, in large part, in a conclusory fashion without any analysis of the important policy considerations which bear on this issue. See, e.g. Hughes v. United States,
Of course, a plaintiff cannot merely point to an assault and battery and then claim, based simply on its occurrence, that the state was negligent in not preventing it. For example, in the present case the school district would clearly not be liable if it had no knowledge of Durtsehi’s proclivities. In order to withstand dismissal under the intentional tort exception to the ITCA, a plaintiff must allege sufficient facts which, if proven, would demonstrate that the governmental entity should have reasonably anticipated that one of their employees would commit an intentional tort. In the instant case, the plaintiffs allegations, if proven, would permit a court to find that the school district’s negligence proximately caused the plaintiff children’s injuries. We therefore reverse the district court’s award of summary judgment to the school district under I.C. § 6-904(4) of the ITCA.
III. NOTICE OF CLAIM.
The school district urges us to affirm the district court’s summary judgment as to plaintiffs Doe and Smith on a basis which the district court itself did not address: that plaintiffs failed to give notice of their claims within the required time period. This argument is without merit. Clearly unresolved questions of fact remain regarding when the adult plaintiffs ought to have given notice of their claim. The minor plaintiffs, on the other hand, gave timely notice as a matter of law.
At the time this action arose, I.C. § 6-906 provided:
All claims against a political subdivision arising under the provisions of this act and all claims against an employee of a political subdivision for any act or omission of the employee within the course or scope of his employment shall be presented to and filed with the clerk or secretary of the political subdivision within one hundred twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later. (Emphasis added.)
To avoid thwarting meritorious claims on nonmeritorious, technical grounds, this Court consistently has taken a “liberal approach to interpreting the notice requirement of the ITCA.” Farber v. State of Idaho,
Obviously, a claim is not necessarily discovered the instant the injury or damages occur. The claimant only knows of his or her claim against the governmental entity and the 120-day limit only begins to run after the claimant becomes fully apprised of not only the injury or damages, but also of the governmental entity’s role. In Prosper v. Raymond,
Determining when the county’s interest in the gravel pond reasonably should have been discovered is a question of material fact which, by its very nature, is inappropriate for determination on a motion for summary judgment. Id. (emphasis original).
Contrary to the representations of the school district, Ralphs v. City of Spirit Lake,
[Ojn the date of the incident plaintiff Ralphs was aware that he had been attacked, assaulted and battered, that the Chief of Police was allegedly negligent in permitting the attack and that the city of Spirit Lake was negligent in employing a man of Newton’s alleged characteristics and in failing to discharge him. Id. at 228,560 P.2d at 1318 .
The 120-day period began to run because the plaintiff knew of his claim against the city on the date in question, not because the plaintiff was injured on the date in question. The majority held that the plaintiff could not put off the date of discovery to the time when he learned of the greater extent of his injuries. Id. Here, plaintiffs allege they knew nothing of the role of the school district until a point well within the 120-day period preceding their notices.
Surely the school district does not suggest that every wrong-doing by one of its employees raises a presumption that it negligently retained that employee. The instant plaintiffs made no such presumption. They assert that they learned of the negligence of the school district in early August, 1980. At that time, during a presentence investigation of Durtschi, they discovered that the school district had retained Durtschi even after knowing of his illicit tendencies. R., Vol. 3, pp. 12, 17, and 43. They then filed their claims in less than 120 days. R., Vol. 3, pp. 14-15,17, 20, 46-47. If these facts are established at trial, the plaintiffs hardly could have discovered the negligent retention of the
B. The Minor Plaintiffs.
The determination of reasonable discovery and notice on the part of minor plaintiffs is a different matter which this Court has yet to satisfactorily resolve.
The long-standing policy of Idaho has been to shelter minor plaintiffs from the insensitive ticking of statutory clocks. See Chapin v. Stewart,
If a person entitled to bring an action, other than for the recovery of real property, be, at the time the cause of action accrued, ... [w]ithin the age of majority ... the time of such disability is not a part of the time limited for the commencement of the action, provided however, that the time limited for the commencement of an action shall not be tolled for a period of more than six (6) years on account of minority, incompetency, a defendant’s absence from the jurisdiction, any legal disability or for other cause or reason except as specifically provided in section 5-213, Idaho Code.
Despite such statutes, some courts have refused to toll the time in which minors must give notice of their claims to governmental entities. These courts reason that the requirement of notice is not a statute of limitation, and that any exception from the notice requirement must come from the legislative branch. See generally 56 Am. Jur.2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 782, 783. The majority in Callister apparently took this approach. Callister, supra, 97 Idaho at 63,
Such an approach ignores the fact that whether the requirement is to file notice or to file an action, the policy concerns of the state and the consequences for the minor litigant are the same. In a leading opinion, the Texas Court of Appeals aptly described the state’s interests:
The purpose of the various statutes of limitations in Texas is to require one to present his claim before evidence to rebut it is apt to be destroyed or lost____ The purpose of the charter provisions by many of the home rule cities in the State of Texas requiring a specified timely notice as a condition to the city’s liability for damages for personal injuries, whether they be considered statutes of limitations or not, is similar in nature — to permit the city to investigate the basis of the claim while the facts are fresh.
City of Houston v. Bergstrom,468 S.W.2d 588 , 590 (Tex.Civ.App.1971),*476 writ of error refused; approved in McCrary v. City of Odessa,482 S.W.2d 151 , 154 (Tex.1972) (citations omitted).
Accord, Farber, supra,
The consequences of failing to apply Idaho’s tolling statute — I.C. § 5-230 — to notice requirements for the minor litigant are immediate, severe, and incongruous with the policy of § 5-230. Minors lack the judgment, experience, and awareness to protect their rights with appropriate, timely civil action; they also lack the ability to appear in court on their own behalf. I.C. § 5-306. To strictly apply the notice requirement to minors would inevitably result in the elimination of meritorious and justified claims, through no fault of the innocent minors. The notice requirement would accomplish this elimination just as surely and completely as would a running statute of limitation. Thus, it makes no sense to toll a statute of limitation because of the injured party’s minority, while at the same time require that party to provide notice of his or her claim within 120 days. See Turner v. Staggs,
The provision in I.C. § 6-907 — that the minor’s claim “may be presented and filed on behalf of the claimant by any relative, attorney, or agent representing the claimant” (emphasis added) — does not diminish the harshness of the consequences. As Justice Bakes noted in his dissent to Callis-ter, “[t]he section [6-907] recognizes that others may act to protect a minor’s rights, but it does not require them to act in order to preserve the minor’s rights.” Callister, supra,
[I]t would be fundamentally unfair for a minor to be denied his recourse to the courts because of circumstances which are both legally and practically beyond his control. The legal disabilities of minors have been firmly established by common law and statute. They were established for the protection of minors, and not as a bar to the enforcement of their rights. 43 C.J.S. Infants § 19 (1945). The legislature recognized this when it inserted the provision in RCW 4.96.020 allowing a relative, agent or attorney to file a claim on behalf of the minor. However, ... his right of action should not depend on the good fortune of having an astute relative or friend to take the proper steps on his behalf.
Hunter v. North Mason High School,12 Wash.App. 304 ,529 P.2d 898 , 899-900 (1974), aff'd,85 Wash.2d 810 ,539 P.2d 845 (1975); reaffirmed in Hall v. Niemer,97 Wash.2d 574 ,649 P.2d 98 (1982).
A number of courts have held that the enforcement of notice requirements against minor plaintiffs despite their inability to comply with it violated their rights to due process. Tafoya v. Doe,
To bring notice of claim requirements in alignment with due process and with general tolling statutes, many courts have applied the policy of their general tolling statute to the notice statute — in effect applying the tolling statutes by analogy. The Texas Court of Appeals provides an example:
Insofar as the limitation statutes are concerned, the Legislature has expressed the public policy of this state in Articles 5518 and 5535, V.A.T.S. Those statutes, generally, provide that the time during which a claimant is under disability such as that of minority, shall not be deemed a portion of the time limited for the commencement of an action on his claim. It seems reasonable that such policy should apply to the time limit fixed for giving a city a notice of a claim against it. Bergstrom, supra,468 S.W.2d at 590 .
See also Haymes v. Catholic Bishop of Chicago,
We feel on firmer ground by directly applying the general tolling statute, I.C. § 5-230, to the notice statute, I.C. § 6-906. This is the more straightforward course suggested by Justice Bakes in his dissent to Callister, and taken by several jurisdictions. Besette v. Enderlin School Dist. No. 22,
Both the plain meaning and the policy of I.C. § 5-230 reinforce this approach. Section 5-230 does not toll just the time after which the minor plaintiff must file an action; rather, it tolls the time after which the minor must commence the action. Section 6-906 requires the minor plaintiff to commence the action by filing notice. As Justice Bakes observed in his dissent to Callister, “The filing of the notice of claim is an integral part of the initiation of an action against a governmental entity.” Callister, supra,
This surely reflects the legislative policy behind these statutes. If it were otherwise, as Justice Bakes noted, even
It cannot be seriously asserted that children in such circumstances are capable of protecting their interests or that there will be a party available who can protect the children’s interest by filing a notice of claim within 120 days. I cannot believe the legislature intended to prevent such claimants from bringing their action by non-compliance with the notice of claim statute. Id. at 67,539 P.2d at 995 .
The obvious intent of I.C. § 5-230 is to preserve the rights of injured minors until they are old enough to take appropriate action. We must construe the statute in harmony with its objective. Local 1494 of Internat’l Assoc. of Firefighters v. City of Coeur d’Alene,
To interpret I.C. §§ 6-906 and 6-907 as somehow placing the notice requirement beyond the reach of the tolling statute would be to read these statutes as impliedly repealing the tolling statute’s protection of minors injured through the wrongdoing of the government. According to a well-established rule of statutory construction, we must presume the legislature did not intend to limit the pre-existing general tolling statute by mere implication. Jordan v. Pearce,
The presumption against implied repeals is founded upon the doctrine that the legislature is presumed to envision the whole body of the law when it enacts new legislation. There is also the assumption that existing statutory and common law is representative of popular will. This presumption has been said to have special application to important public statutes of long standing. Singer, supra at § 23.10 (emphasis added).
The general tolling statute certainly is an important public statute of long standing which the legislature would not amend or repeal without specific mention.
Only when new legislation is irreconcilable with and repugnant to a pre-existing statute may we find an implied repeal. Jordan, supra,
A final motive for our applying I.C. § 5-230 itself rather than just its “policy” is that § 5-230 is a qualified tolling
The legislature recently amended the ITCA in a fashion which substantiates our present holding. New § 6-906A makes clear both the legislature’s intent to protect minor claimants from the running of the notice time period, and its intent to apply the precise policy of I.C. § 5-230, including the six-year maximum, to notice requirements:
No person who is a minor shall be required to present and file a claim against a governmental entity or its employee under this act [this section] until one hundred twenty (120) days after said person reaches the age of majority or six (6) years from the date the claim arose or should reasonably have been discovered, whichever is earlier. 1985 Idaho Sess. Laws, ch. 77, § 1, p. 151.
The legislature rejected the holding to the contrary in Callister. It demonstrated that the notice of claim requirement was never meant to be magically exempted from the tolling statute — that the interests of minors who had suffered injury at the hands of the government were never meant to be abandoned.
In sum, we hold that the general tolling provision, I.C. § 5-230, applies to all procedures integral to commencing actions against private or public defendants, including the notice procedure of I.C. § 6-906. Consequently, § 5-230(1) tolled the running of the time within which § 6-906 required the minor plaintiffs to give notice to the school district. Thus, the notice given on their behalf was adequate as a matter of law. To the extent Callister is inconsistent with our holding today, we acknowledge its disapproval by the legislature and acquiesce therein.
IV. CONCLUSION.
The district court’s granting of summary judgment against Durtschi’s cross-claim is affirmed. The district court’s granting of summary judgment against plaintiffs is reversed, and the matter is remanded for trial on the question of the school district’s negligence.
The school district’s costs related to the cross-claim to be paid by Durtschi; the plaintiff’s costs related to their claims to be paid by the school district. No attorney’s fees.
Notes
. This is in contrast with the question of whether there was no genuine issue as to Durtschi’s criminal intent, which the school district did argue.
. The Idaho legislature largely modeled the ITCA on the FTCA. Dunbar v. United Steelworkers of America,
. Shearer was a negligence action against the United States under the FTCA. Private Vernon Shearer was kidnapped and murdered by another serviceman who had previously been convicted of murder and manslaughter. His mother initiated the action claiming that the army’s negligence caused her son’s death. She alleged that the army knew the other serviceman was dangerous and negligently kept him on active status without supervising his actions or warning others that he was at large.
The Third Circuit held that neither Feres v. United States,
. I.C. § 6-906 has been amended to provide for a 180-day period in which to give notice. 1985 Idaho Sess. Laws, ch. 136, § 2, p. 372.
.With the passage of I.C. § 6-906A, the legislature expressly applied the general tolling statute’s policy of protecting minors to the notice of claim requirement in the ITCA. 1985 Idaho Sess. Laws, ch. 77, § 1, p. 151. As a result, the subsequent discussion of § 6-906’s implications for minors pertains only to actions arising before the effective date of § 6-906A, which is July 1, 1985. I
. Recently, I.C. § 5-230(1) has been amended for the sake of clarity to read, “Under the age of majority." (Emphasis added.) 1985 Idaho Sess. Laws, ch. 74, § 1, p. 149. This change better reflects the intent of the section, which existed in the former version, to protect minors before they reached the age of majority.
. The legislature essentially reversed this holding of Callister by enacting the new I.C. § 6-906A.
. As the instant facts do not involve the passage of six years time, we do not reach the question of the constitutionality of the six-year proviso to I.C. § 5-230 and to new § 6-906A.
. Had Durtschi argued he had not acted with criminal intent, then we may have found his cross-claim to be frivolously pursued. However, the arguments among counsel in the district court and on appeal centered on the question of whether Durtschi acted within the scope of his employment, which is a close question.
Dissenting Opinion
dissenting.
I dissent for two reasons. First, because the majority unnecessarily overturns several years of this Court’s decisions on an issue not decided by the district court in its decision on summary judgment. Secondly, because the majority’s holding regarding intentional torts cannot survive the analysis of the Bakes, J. dissent.
When the legislature enacted our Tort Claims Act it saw fit to require that a claimant submit a notice of claim to the governmental entity within 120 days from
In 1985 the legislature adopted a more lenient attitude and suspended the effect of the notice of claim until a minor claimant reached majority, or to a maximum period of six years. Such conclusively indicates a change in legislative intent but does not result in a retroapplication of the new statute to a time and circumstance well prior to the 1985 change in statute.
Hence, at the time and circumstances of the instant case, the legislative requirement as to notice, was 120 days from the time the claim arose or reasonably should have been discovered. To hold as does the majority that the 1985 statute somehow controls the notice of claim requirement in the instant case, or that the legislature has overruled Callister, is simple sophistry.
The majority opinion cites Farber v. State of Idaho,
Just as the majority opinion slips and slides around the then legislative requirement of a 120-day notice of claim, so the majority evades the clear legislative intent not to waive sovereign immunity in the cases of intentional torts. Hence, I concur in the dissent of Bakes, J. Whether the legislature should have exempted intentional torts from the purview of the Tort Claims Act is not for question by this Court, since the policy reasons for that legislative decision cannot be examined. It is sufficient to say that the broadening of the scope of governmental entity liability has allegedly resulted in such substantial losses that some governmental units in Idaho are no longer able to obtain liability insurance coverage.
While under the strictures of Smith v. State,
Dissenting Opinion
dissenting:
Interpreting the allegations of plaintiffs’ complaint as stating a cause of action for negligence, the majority, in Part II, fails to recognize that the essence of plaintiffs’ cause of action “arises out of” an assault and battery, and thus the school district is exempt under the Idaho Tort Claims Act (ITCA). It is beyond dispute that Durts-chi’s lewd and unconsented touching of the minor plaintiffs constituted a battery. Nevertheless, the majority concludes that plaintiffs’ cause of action “arises out of” or has its roots in negligence, rather than arising out of a battery. This conclusion ignores the express language of the ITCA.
I.C. § 6-904 does not merely exclude liability for assaults and batteries; rather, it states that the governmental entity “shall not be liable for any claim which arises out
The majority’s argument effectively removes from the statute the words “arising out of.” This the majority does without evidence from any extrinsic source indicative of legislative intent to support such a reading of the statute. The logical interpretation of the phrase “arising out of” would employ a common sense meaning, i.e., “based upon” an assault or battery, or “having its roots in” an assault or battery.
The Idaho Tort Claims Act, I.C. §§ 6-901 et seq., was based upon the Federal Tort Claims Act, and the exception here in question, the assault and battery exception, is identical to that of the Federal Tort Claims Act. In Odenwalt v. Zaring,
“ ‘This Court has consistently held that a statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction. Nixon v. Triber,100 Idaho 198 , 200,595 P.2d 1093 , 1095 (1979); State v. Miles,97 Idaho 396 ,545 P.2d 484 (1976); Doggett v. Electronics Corp. of America,93 Idaho 26 ,454 P.2d 63 (1969).’ Odenwalt, supra,102 Idaho at 5 ;624 P.2d at 387 .” Leliefeld v. Panorama Contractors, Inc., (1986).
As Leliefeld instructs, our analysis of the Idaho Tort Claims Act in this case should commence with an analysis of the federal cases interpreting the Federal Tort Claims Act as of 1971, the date when Idaho adopted the federal act.
The Idaho Tort Claims Act passed in 1971 was modeled after the Federal Tort Claims Act, and the “exceptions to governmental liability” set out in I.C. § 6-904, subsection (4), which are involved in this case, are identical to the exceptions set out in Section 2680(h) of the Federal Tort Claims Act. That subsection exempts from the waiver of immunity any claim which:
“4. Arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.”
Prior to the adoption of the exception set out in I.C. § 6-904(4), the federal courts had unanimously held that the “exception to governmental liability” contained in 2680(h) of the Federal Tort Claims Act, from which I.C. § 6-904(4) was copied, covered cases in which negligence underlies the claims. The United States Supreme Court first addressed that issue in United States v. Neustadt,
“We are in accord with the views urged by the government, and unanimously adopted by all circuits which have previously had occasion to pass on the ques*482 tion, that Section 2680(h) comprehends claims arising out of the negligent, as well as willful, misrepresentation.”366 U.S. at 702 ,81 S.Ct. at 1298 . (Emphasis added.)
The United States Supreme Court in United States v. Shearer, — U.S. -,
Moos v. United States,
“Since the unauthorized operation constituted an assault and battery, any attempt to segregate and separately state a cause of action for negligence is unavailing. The fact of the negligent transfer of the site of operation and the resulting delay in performing the wanted operation ‘arose out of’ the assault and battery and formed an integral part of the entire incident which encompassed the battery. It is immaterial that the negligence may have occurred first in point of time. United States v. Wilcox, D.C.S.D.N.Y.,117 F.Supp. 119 . See Duenges v. United States, D.C.S.D.N.Y.,114 F.Supp. 751 (claim arising out of false imprisonment)____” Moos v. United States,118 F.Supp. 275 , 277 (D.Minn 1954).
The facts of Moos are substantially similar to those in this case. In Moos, the unauthorized operation [touching] constituted an assault and battery, as did the unauthor rized touching of the plaintiffs in this case. Also, in Moos the plaintiff was arguing about “the negligent transfer of the site of the operation,” and in this cáse the plaintiffs are alleging the negligent transfer of Durtschi.
Prior to 1971, one other federal circuit court had addressed this issue. In Panella v. United States,
Prior to 1971 a federal district court case, Collins v. United States,
The Collins court in its opinion, after noting that the plaintiff was arguing that his claim is not founded on the assault and battery, but rather on the negligence of the government in employing who it knew or should have known had “violent, vicious and malicious propensities,” stated:
“It is true that the claim here is predicated on negligence. However, that negli-, gence would have been without legal significance absent the alleged act of Brosz. Without that, there would have been no actionable negligence. It was the attack which served to attach legal consequences to defendant’s alleged negligence. Congress could easily have excepted claims for assault. It did not; it used the broader language excepting claims arising out of assault. It is plain that the claim arose only because of the assault and battery, and equally plain that it is a claim arising out of the assault and battery. This being so, the United States has not waived its immunity as respects this claim.”259 F.Supp. at 364 , emphasis in original.
Thus, at the time that Idaho adopted the Federal Tort Claims Act in 1971, and particularly Section 2680(h) as I.C. § 6-904(4), the federal eases interpreting that act had held that the exemption for intentional torts set out in 2680(h) included not only the intentional tort itself, but any negligence which underlies the intentional tort. Accordingly, if we are to follow the “time honored principle” described in Leliefeld “that a statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction,” Leliefeld, then we should uphold the district court’s conclusion that plaintiffs’ claim “arises out of assault [and] battery.” I.C. § 6-904(4).
The federal cases which have been decided subsequent to 1971, the year Idaho adopted the Tort Claims Act from the federal act, have continued the same interpretation as those decided before 1971. The most recent, and of course the final and ultimate- authority is the recent decision of the United States Supreme Court in United States v. Shearer, — U.S. -,
The Court of Appeals had held that Mrs. Shearer’s suit was not precluded by the assault and battery exception to the Federal Tort Claims Act. The Court of Appeals reasoned, similar to the majority in the present case, that Mrs. Shearer’s complaint alleged negligence and that “if an assault and battery occurred as a ‘natural result’ of the government’s failure to exercise due care, the assault and battery may be deemed to have its roots in negligence and therefore it is within the scope of the FTCA.” Shearer v. United States,
The Supreme Court found further support for its reading of the exception in the legislative history of the act and from its cases interpreting other exceptions to the act. The Court noted that there was no indication that Congress distinguished between “negligent supervision” claims and respondeat superior claims, with only the latter excluded under the act. And regarding interpretation of similar exceptions, the Court stated:
“In United States v. Neustadt,366 U.S. 696 [81 S.Ct. 1294 ,6 L.Ed.2d 614 ] (1961), the Court held that the exception in Section 2680(h) [the intentional tort exception clause] for claims ‘arising out of ... misrepresentation’ covers cases in which negligence underlies the inaccurate representation. And in Kosak v. United States, ... [465 U.S. 848 ]104 S.Ct. 1519 [79 L.Ed.2d 860 ] (1984), we held that the exception for claims ‘arising in respect of ... the detention of any goods or merchandise by any officer of customs’ includes a claim for negligent handling. Because Congress viewed these exemptions in the same light as the exception at issue here [the assault and battery exception], see, e.g., H.R.Rep. No. 1287, 79th Con., 1st Sess., 6 (1945), it is inescapable that the phrase ‘arising out of assault or battery' is broad enough to encompass claims sounding in negligence.” Shearer,105 S.Ct. at 3043 .
Seven United States Courts of Appeals have addressed the assault and battery exception, and all have held that the govern
In a case factually similar to the one before us, Hughes v. United States,
The Tenth Circuit has likewise held that a claim against the government for its antecedent negligence in retaining or supervising its employees may be barred by the assault and battery exception if the underlying facts indicate that the theory of negligence is but an alternative theory utilized by a plaintiff to circumvent the Tort Claims Act’s exceptions. In Naisbitt v. United States,
The District of Columbia Circuit has likewise held that “a litigant cannot circumvent the [Tort Claims Act] by the simple expedient of drafting in terms of negligence a complaint that in reality is a claim as to which the United States remains immunized.” Johnson v. United States,
Finally, the Fifth Circuit, in a recently released opinion, has held that a claim alleging negligence in the supervision of a governmental employee is nonetheless barred by the Tort Claims Act when the substance of the claim is grounded on the underlying illegal sexual conduct committed by said employee. In Garcia v. United States,
Of the cases relied upon in the majority opinion in support of their interpretation of I.C. § 6-904(4), none of them were decided prior to 1971, the year that Idaho adopted the analogous provision from the Federal Tort Claims Act. Accordingly, under our recent decision in Leliefeld, they are not to be considered in determining what the interpretation of the federal act was at the time that our legislature adopted it. Furthermore, of the cases cited in the majority opinion, only three are federal cases. Two of them, Liuzzo v. United States,
In Fitch v. United States,
The third case, Gibson v. United States,
“[W]hile only four Justices in Shearer joined the language interpreting the ‘arising out of proviso, the other four Justices did not reject its applicability but joined the decision to reverse on another ground. Such an intervening decision might not be sufficient to free this panel from clear circuit precedent, but it is sufficient to allow our retreat from Underwood and its reasoning, now so seriously questioned. We cannot ignore this strong signal rom the Supreme Court.”776 F.2d at 118 .
Thus, it is clear that, both prior to and after 1971, the interpretation placed upon the language “arises out of assault, battery, ...,” in Section 2680(h) of the Federal Tort Claims Act refers not only to the intentional torts listed in that subsection, i.e., “assault, battery, false imprisonment, ... misrepresentation,” etc., but also to any underlying negligence which may occasion those intentional torts. Accordingly, the “time honored principle” to which we have just paid “unwaivering adherence” in Leliefeld, supra, “that a statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction,” should be applied in this case also, and the district court should be affirmed. As was recently stated by the United States District Court for South Carolina:
“The plaintiff argues that his claim is not founded upon assault and battery, but rather upon the negligence of the government. Ever since the passage of the FTCA, litigants have tried to circumvent its exceptions by alleging that harm was caused not by the act for which sovereign immunity remained a bar, but rather by antecedent negligence. These attempts generally failed because the courts spoke to the essence of the claim and ignored the attempts of the plaintiff to characterize it in another way.” Taylor v. United States,513 F.Supp. 647 , 649-50 (D.S.C.1981).
In this case the district court was correct in its conclusion that the plaintiffs’ claims arise out of the battery committed by Durtschi and, accordingly, the defendant school district was not liable for those claims. The district court’s order awarding summary judgment on that basis was correct and should be affirmed.
. Only eight justices sat. Of those eight, all joined the opinion regarding the Feres doctrine, and four joined the opinion regarding the FTCA assault and battery issue, but of the four not joining in that part of the opinion, none dissented in the assault and battery issue.
. The cases which have adopted the interpretations which are at odds with that of the majority opinion in the present case are out of the Second, Fourth, Fifth, Seventh, Eighth, Tenth and District of Columbia Circuits. See, e.g., Panella v. United States,
The only Court of Appeals which has adopted an interpretation in favor of appellants is the Third Circuit which decided the Shearer case which, as discussed above, was reversed by the Supreme Court.
. The Fourth Circuit has recently reaffirmed its position in Doe v. United States,
. In reaching its conclusion in Garcia, the Fifth Circuit recognized that it was overruling admitted dicta of a prior opinion, Underwood v. United States,