Dunbar v. United Steelworkers of America

sоns through who fault unemployed P.2d own, employ- their who are desirous al., al., Mary Wood, et et DUNBAR Laura ment, and engaging who are al., Rawson, Johnson, Tharon et Bernice activity preclude which would their availa- al., Plaintiffs-Appellants, et bility work, for full time we conclude the language 72-1312(a) permits of I.C. § receipt of eligible benefits an otherwise OF AMERI- UNITED STEELWORKERS claimant whose enrollment in school does Association, CA, Unincorporated not affect the claimant’s availability Defendants-Respon- Idaho, State suitable full employment. time dents. proceedings before Industrial Com to 12231. Nos. 12228 following Department mission of Em ployment’s determination that claimant Supreme Court of Idaho. Smith ineligible for unemployment benefits, compensation Commission Sept. 1979.

found that Smith’s class “has attendance 23, 1979. Rehearing Denied Nov. not affected availability her for full time work.” upon finding Based this and our

decision in Kerr v. Department Employ

ment, (1976), Idaho

Commission awarded Smith benefits. Al

though it has subsequently been determined Supreme Court of the United States interpre the Kerr case is not a correct

tation of the fourteenth amendment of the Constitution,

United Department States Employment Smith, 100, 98 S.Ct. U.S.

327,54 L.Ed.2d 324 finding made

by the Industrial Commission that Smith

was available for work in the summer of

1975 entitles her to receive benefits under interpretation 72-1312(a) of I.C. we

adopt today. Any language

of this Court in Employment Swanson v.

Security Agency, 385, 342 81 Idaho P.2d 714

(1959), which is inconsistent with our deci today

sion disapproved.

We therefore affirm Industrial Com-

mission’s award of unemployment compen-

sation benefits made Industrial Com- 9, 1976,

mission order February dated en-

tered in this case.

Affirmed. respondent Costs to Smith.

SHEPARD, J.,C. DONALDSON

BISTLINE, JJ., SMITH, Tem., J. Pro

concur. Robinson, May, May, Nampa,

Bruce O. Matthews, Falls, Fuller, Twin & Sudweeks Mitchell, Wilson, Boise, A. Thomas Lee & Lewiston, Cart- d’Alene, Rapaich, Eli Coeur Sucherman, Inc., Saroyan, Martin & wright, Maki, Cockrel, Philo, Francisco, Cal., San Mich., Detroit, Robb, Spearman Cooper, & & Prothero, Whelan Burgess, Joyce, Webb, J. Butte, Mont., Lloyd O’Leary, Pedersen, Twin Webb, Burton, Carlson & Falls, plaintiffs-appellants. Gen., Kidwell, Atty. L. Wayne Honorable Gen., Jenkins, Atty. Sp. Asst. Peter C. Barr, Gottesman, Cohen, Co George H. Eberle, C., Peer, D. Washington, hen & Chtd., Gillespie, Berlin, Kading, Tumbow & Radke, Fuller, Boise, Fuller & Wayne P. Orofino, McNichols, Caldwell, E. Michael V. Ill., Frederick Gore, Chicago, David L. Skeel, McKel Carey, D. and Paul Betts Seattle, Betts, Henke, & vy, Evenseon Feldman, Kleiman, Wash., & Cornfield defendants-respondents. Ill., for Chicago, SHEPARD, ap- For emphasis, Justice. we reiterate that this peal summary judg- is from the orders These are appeals from orders of summa- on solely trial court ment issued ry judgment entered the trial court in the charаcter legal theories under defendants, favor both the United Steel- defendants, the Union and the two workers of America and the State Idaho. recovery. State, State, plaintiff’s As to the bar were held to the court held that the activity upon which plaintiffs base their argument analysis with begin We our claim fell within the discretionary act ex- by adopted and advanced the Union ception to the Idaho Tort Claims Act. I.C. court, e., jurisdiction trial i. Union, 6-904. As to the the court held adjudicate and hear courts of Idaho to plaintiff’s that preempted claim Un- against claim plaintiffs-appellants’ regulation federal of labor law. Motor superseded and ion is preempted Employees Coach Lockridge, v. 403 U.S. law regulation of labor pervasive federal 274, 1909, 91 S.Ct. (1971). 29 L.Ed.2d 473 are committed exclu- and that such matters We affirm the trial court’s order for sum- jurisdiction of sively primary mary judgment State, as to the but reverse Board. National Labor Relations the trial court’s summary order of judg- ment to the Union. Co., Ritchfield 435 Ray v. Atlantic The Coeur Mining d’Alene District is lo- 988, 151, 98 55 L.Ed.2d 179 U.S. S.Ct. cated in northern Kellogg Idaho near and it is stated: Wallace, Idaho. are Therein located a num- that cases indicate prior “The Court’s mines, ber of “hard rock” the shafts in some police pow- when exercise of a State’s which 6,000 extend feet below the sur- Supremacy under the challenged er is face and some of up which contain to 125 Clause, with the assumption ‘we start of underground miles tunnels and workings. police powers of the historic The Sunshine Mine is one of workings such superseded to were not be States the largest producer of silver and Federal Act unless that the clear antimony in the 2,May United On States. ” purpose Congress.’ manifest 435 1972, some 200 miners at were work in the 157, at at 994. U.S. 98 S.Ct. mine when a fire broke out which claimed the lives of 91 of those workmen. Surviv- Quoting Corp., Fe Rice v. Elevator Santa ors or deceased miners these ac- 218, 230, 67 331 S.Ct. 91 U.S. L.Ed. for wrongful death, tions which were con- (1947). preemption law state solidated for appeal. or of jurisdiction state court is not be v. White readily inferred. Malone Motor I. Corp., S.Ct. U.S. Union, As plaintiffs allege negli- (1978). L.Ed.2d 443 gence on part of the Union in that of the United primary philosophy undertook prevention to act as rep- accident in the Supreme pre- States labor law Court resentative and enforcer “company- emption Diego area was in San announced employees” agreement. It was asserted Garmon, Bldg. Trades Council 359 U.S. Union misrepresented its safety 3 L.Ed.2d 775 S.Ct. concern expertise; it failed to There the Court said: develop an adequate safety program for its determining “In the extent members; inspect it undertook to regulation yield state to subordinat- must enforce the prevention accident clauses of authority, we have been con- federal the company-employees contract and did so delimiting potential cerned with areas negligently drills, in failing require fire conflict; personal protective potential conflict of rules equipment, adequate protection law, and of spontaneous combustion, remedy, administration. * * * adequate emergency egress necessarily and failed to We have been con- require evacuation on evidence of potential smoke. cerned with the conflict of two authorities, with dis-

law-enforcing to allow to con- adopted, mode the States one systems, in two na- inherent subject harmonies trol conduct which state, federal the other potential inconsistent create regulation tional would standards of substantive law and differ- purposes.” frustration of national ing remedial schemes.” 359 U.S. at 241- 244, 79 at 779. U.S. at S.Ct. 42, 79 S.Ct. 778. viable and language That continues to In some cases the desire to avoid the con- since on several occasions quoted has been flicts delineated in has Garmon led Brother Farmer v. United Garmon. See Court to declare that some are matters 290, 97 S.Ct. hood 430 U.S. Carpenters, exclusively committed to the primary juris- 76, In (1977); Lodge 51 L.Ed.2d diction of the National Labor Relations Machinists Association of ternational Board, states, and a fortiori state Comm’n, Relations Employment Wisconsin courts, jurisdiction regulate without v. Lock Employees supra; Motor Coach 76, hear the disputes. Lodge or Interna- ridge, supra. tional v. Association of Machinists Wiscon- the claims Employment Comm’n, position sin that Relations 427 It is the Union’s 132, the 2548, on U.S. 96 49 based plaintiffs-appellants S.Ct. L.Ed.2d 396 are (1976); Bldg. San Trades v. Diego representation. Council duty of fair breach of the Garmon, cases, however, supra. 335, In other Moore, 84 S.Ct. 375 v. U.S. Humphrey the has Court held that state courts have being the 363, (1964). That 370 11 L.Ed.2d jurisdiction. concurrent v. Sipes, Vaca 386 law labor case, argue, federal the Unions 171, 903, U.S. 87 17 842 S.Ct. L.Ed.2d case is the even when applied must be (1967); v. Courtney, Charles Dowd Box Co. Sipes, v. 386 court. Vaca in state 502, 519, 368 7 U.S. 82 483 S.Ct. L.Ed.2d The 903, 842. 171, 17 L.Ed.2d U.S. 87 S.Ct. (1962). plain- the continues that argument Union’s A substantial state factor as whether Union show that must tiffs-appellants are jurisdiction courts ousted from all Union the deceased discriminated share jurisdiction appears concurrent to be of the prove a breach members in order whether the involved is activity “arguably Motor Coach duty representation, of fair subject to [paragraph] [paragraph] 7 or 8 of since Lockridge, supra, v. Employees Labor Act.” San [National Relations] not made have plaintiffs-appellants Diego Bldg. Garmon, Trades v. 359 Council judgment showing, summary such a 245, 79 U.S. at at 780. In Garmon the S.Ct. We favor of the Union. entered in properly stated: Court are claims Plaintiffs-appellants’ disagree. “When it is may clear or be as- fairly of the on violation necessarily based sumed that the activities which a State is not and such duty representation of fair purports to regulate protected by 7§ its mem- a union to owed only duty Act, of the National Labor Relations assum- Further, even we believe that bers. practice constitute an unfair labor under fall plaintiffs-appellants the claims of (a)-(b)], regard 8 U.S.C.A. 158 due § [29 scope doctrine within of the general requires for the federal enactment clear we deem nevertheless preemption, jurisdiction yield. state must To leave narrow falls within the case also regulate the States free to so conduct doc- exceptions preemption same to that plainly within central aim of federal v. Farmer trine which were described regulation great danger involves too 430 U.S. Carpenters, United Brotherhood conflict power between asserted Con- (1977). 290, 1056, 338 51 97 L.Ed.2d S.Ct. gress requirements imposed by state has never representation The fair duty of law. Nor has it mattered whether and its defined carefully precisely been through have laws of broad States acted but, summa- a fair appear vague

general application spe- than contours rather laws “to enforce governance designed tion that it is cifically of it is directed towards indi- Regardless fully principle of industrial important relations.

527 vidual may invidious, represents, union member J.I. Co. v. National suffer cf. Case 335, hostile major- 332, treatment at the hands of the 64 Board, Labor R. U.S. [321 ity of his coworkers.” Motor Coach Em- 762], it has also L.Ed. S.Ct. ployees Lockridge, U.S. a corre- imposed representative on the Clark, S.Ct. at 1925. Duty See The of Fair the lan- sponding duty. We hold Representation: Structure, A Theoretical re- which we have guage of the Act to Cox, (1973); Tex.LRev. 1119 Duty ferred, purposes of light read Representation, Fair 2 Vill.L.Rev. 151 Act, Congress expresses the aim (1957); Rosen, Representation, Fair Con- representative impose bargaining on the tract Breach and Fiduciary Obligations: duty employees of a craft or class of Unions, Union Officials and the Worker in power conferred fairly to exercise Collective Bargaining, 15 Hastings L.J. 391 those for whom it upon it in behalf of all (1964). acts, without hostile discrimination In Steele v. R.R., Louisville & N. 323 U.S. against them.” 65 S.Ct. L.Ed. 173 201-03, 323 U.S. at at 231-232. S.Ct. Court held that statutory exclusive Sipes, Corp. Vaca v. supra; See Wallace agent of bargaining employees unit could Bd., 323 U.S. National Labor Relations not discriminate on the basis of race. The L.Ed. 216 S.Ct. Court stated: representation has been of fair “Unless the labor representing union arbitrary dis- extended to other forms craft owes some duty represent to non- alone, beyond crimination that of race union craft, members of the at least to authority, duty insofar as we are cited the extent of not discriminating against representation of fair retains its fundamen- them as such in the contracts which it against tal invidi- protection character as a makes as representative, their the minori- majority of a bar- by ous discrimination ty would be left with no pro- means of Motor gaining against minority. unit a tecting interests, their indeed, their Lockridge, supra; Employees Coach right to earn a by livelihood pursuing the Moore, Humphrey supra. We are cited occupation in which they are employed. to that authority no which indicates While the majority of the craft chooses duty representation encompasses of fair the bargaining representative, when cho- displaces law by those duties created a state represents, sen it as the Act by its terms requires person, a or an plain, corporation makes class, the craft or and not association, unincorporated to refrain from majority. The interpretation fair the statutory engaging wrongful language conduct which results organi- is that the zation chosen represent injury person property. to a in death or to craft is to reрresent members, all its the majority as urges here Union well minority, as the and it is to act for it “only” those duty by owed a union to and not those represents. whom it represents representation. is that of fair disagree. authority, We We are cited to We Railway think the Labor Act im- example, which insulates a union for its poses upon statutory representative negligent one and tortious conduct toward of a craft at least exacting duty members, e., a union i. if a member of protect equally the interests of the ‍‌‌​​​​‌​‌‌‌‌‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌​​‌​​‌​‌‌​​​‍mem- by by was struck a motor vehicle owned bers of the craft as the Constitution im- its officials operated by union and one of poses upon legislature give equal for the during employment of his protection course to the interests of those for union, would we cannot believe the union legislates. whom it Congress has seen fit on the basis that bargaining representative clothe the be insulated from powers members comparable pos- only duty to those it owed toward its by legislative sessed If a un body both to create representation. was that of fair and restrict the rights of those whom it results in the ion’s unreasonable conduct members, death governed of one of its it should not those federal labor laws and be excused from liability because of the we ascertain no conflict which will neces- legal fortuity organizational of its status sarily arise between the state and federal anymore brought than if its conduct death permitting authorities as a result of such ato nonunion member. courts. litigation traditional in the state which would authority We are cited to no urges The Union application permit the National Labor Relations Board decision of Safety Appliances House v. Mine cognizance wrongful take death claims Co., (D.Idaho F.Supp. 1976), decided against unions. We are to no authori- cited by the United States District Court for ty holding may fairly inferred Idaho, arising out of the same Sunshine Congress deprive meant to the states tragedy. Mine That federal court relied in determining litigation powers their part upon very trial court decision brought wrongful stat- under state death subject which is the appeal. this We are Hake, F.Supp. utes. See Helton v. not bound the federal court’s determina- (W.D.Mo.1974); Prosser, is, of Torts best, tion and its W. Law only per- at (4th 1971). suasive. ed.

The court in House advanced another rea assumption We now turn to son for its determination that the negli preemption might apply general in a term gence preempted. action upon It relied We notwithstanding the above discussion. Workers, Bryant v. United Mine 467 F.2d 1 the doctrine opinion are of the that even if ' denied, (6th 1972), cert. Cir. U.S. general preemption apply should (1973). Bryant 35 L.Ed.2d 592 S.Ct. terms, nevertheless this case falls within was-also a case in which suit was exceptions preemp those doctrine by survivors of miners killed in a mine previously tion announced the United disaster. There the survivors claimed that Farmer v. Supreme States Court. See had breached the union created Carpenters, United 430 U.S. Brotherhood bargaining agreement regard the collective 296-301, In Farmer a 97 S.Ct. 1056. safety. Bryant mine the collective state claim by was asserted a union member bargaining agreement stated that the union against the se union for the infliction of “may inspect any affirming mine.” In that vere emotional distress intentional defendants, judgment in favor of the the outrageous Farmer conduct. The Court in Appeals stated that use Court “[t]he held that such the exception was an permissive ‘may’ obligatory rather than preemption rule. Other activities which language clearly negatives in the clause the Supreme excep Court has determined to be possibility any duty that was to be created.” general tions to the preemption rule include F.2d at 5. As noted federal libel, malicious Linn v. Work Plant Guard House, agreement district court ers, 657, 15 U.S. S.Ct. L.Ed.2d the case аt bar uses words “shall in (1966); picketing mass and threats of vio spect.” lence, United Automobile Workers v. Rus sell, 356 U.S. 78 S.Ct. 2 L.Ed.2d issues re We hold that material (1958); wrongful expulsion from re in the case at bar main in existence Gonzales, membership, union Machinists v. duty the Union had garding whether 2 L.Ed.2d 1018 U.S. 78 S.Ct. duty. it breached inspect and whether (1958). Die also Roebuck v. San See Sears questions In the case at bar these go Carpenters, 436 County Dist. Council of the trial court reached since held that never 1745, 56 L.Ed.2d 209 U.S. 98 S.Ct. preempted by the cause of action representation. fair This duty of federal therefore,

case, clearly distinguishable Farmer, exemptions excep- As noted in Bryant. preemption doctrine should re- tions of the fed- protected by interests flect an into the nature inquiry believe the We and the regulation are death statutes unrelated eral and state interest in wrongful state potential inspect compliance safety regula- for with reg- interference with federal operator ulation or thereof notify whether the tions and to potential conflict required with any violations. The statute “tangential federal scheme is noncompli- operator remote.” to correct conditions Here the federal interest is tan- so, inspector gential failing ance and to do at best. see possibility And we closing the mine or might issue an order that the federal will labor laws be thwarted could portions sanctions thereof. General requiring the Union to answer in state compliance be applied for failure court to the it wrongfully claim that caused such orders. the death of these survivors’ decedents. fire, time there was At the of the We summary judgment reverse the effect, adopted 1971 Minimum December

district court respondent as to the Union Min- Safety for the Standards and Practices and remand portion of the cause for Industry. [Safety Code and Mineral 5]. further proceedings. Code 5 rеlevant Safety Portions of that our are: II. consideration here Plaintiffs’ claims as provides code Paragraph 2:3 of this State of Idaho provi are under the follows: sions of 6-904, I.C. which is § denominated general expres- “In this code numerous the Idaho Tort Act legisla Claims and is a safe, used, adequate, sions are such

tive waiver of the State’s otherwise sover etc., substantial, particularly in proper, eign immunity. It was and is the assertion safeguards. By reference such terms of the State summary judgment was specify available is the intention granted the State on basis plain articles and conditions in ac- attainable tiffs’ claims portion were barred practice standard good cordance with I.C. 6-904 provides which that the State In industry and to avoid makeshifts. shall not be liable for claim arising out the first determination of instance the of or upon “based the exercise perform safe, reasonable, adequate, what sub- ance or failure perform to exercise or stantial, etc., prerogative is the part function on the inspecting making such de- official. governmental of a entity termination, or employee must consult inspector thereof, whether or not the discretion ap- and consider the fixed or standards abused.” proved authorities, by recognized ap- Codes, plicable Safety Idaho State At the time of the accident and the time regulations not in conflict with filing action, of this the Idaho stat- set forth herein. provided utes for the Inspector office of dispute, “In cases of involving doubt or Mines for the State Idaho. That official Inspec- the advisory of the services State required to visit each mine in the State tor Where time of Mines are available. year Idaho at each least once for the permits, new un- approval by him of or purpose of determining the conditions as to sought tried devices in ad- should sаfety and health to promulgate and rea- added.) vance.” (Emphasis sonable rules regulations and safety for health employees Regulation 2:4(A) therein after as follows: consulta- reads tion with the Safety State Mine Advisory compliance provi- “When of the with statutes, Board. 47-101, I.C. et [Those impracticable sions appears of this code seq., appealed were and the same duties Inspector of unreasonable the State essentially Department transferred to the upon writing, Mines in may, application of Labor and Industrial Services and the permit requirements of the modifications Director Sess.Laws, thereof. 1974 Idaho protection substantially equivalent when Chapters 39 and now codified as I.C. required to that this code has been 44-101, §§ et seq.] Those statutes provided. also shall set forth application Such authorized the inspector to requesting enter mines to in full detail the reasons for significant interpretation of the The first Any

such modification. modification fed- exemption under discretionary act granted particular shall be limited to the in Dalehite was announced eral statute application case covered for modi- States, 73 S.Ct. 346 U.S. United fication. Authorization for modification from a case arose That L.Ed. writing shall be in on file at and shall be port Texas explosion fire and in a property respect with to such modifi- The disaster persons. more than 500 killed modification Any cation as allowed. such deci- government resulted from a federal shall reasona- be revocable after due and volatile highly produce export sion to writing employer.” ble notice in legis- interpreted The Court fertilizer. liability of Plaintiffs-appellants asserted concluded act and history lative of the “undertook, pursuant State in that it subject to not be government should statutes, inspect Idaho and enforce governmen- оf a arising from acts liability safety in mine and the aforementioned further The Court tal nature or function. elementary failed to enforce an accident said; * * *” prevention program by failing to do, hold, we enough “It drills, require fire safety meetings, mine can- duty’ ‘discretionary function smoke, upon discovery evacuation ade- Tort for suit under not form a basis quate personnel protective equipment and initia- than the Act includes more Claims adequate emergency escape. means of It also programs and activities. tion of negli- Plaintiffs-appellants also asserted by execu- made includes determinations gence in that the failed allegedly establishing Governor in tives or administrators give adequate supervision oper- chief executive schedules plans, specifications or policy Inspector; direction to the State Mine is room ations. Where there discretion. there is negligent approv- in judgment Governor was of subordi- that acts necessarily follows inspector It appointment of a mine operations out the carrying nates qualifications to necessary who lacked the with official in accordance government office; adequately that the mine handle be actionable.” directions cannot inspector deputies negligent and his (Footnote 35-36, at 968. 73 S.Ct. U.S. at inspecting the mine in accordance omitted.) Safety 5 in the above and additional Code dissented of the Court members matters. Three of the Thus, members with two Dalehite. judge district Upon motion therefor the result- the decision participating, Court of the judgment in favor granted summary members sitting split 4—3 ed in a alleged as- acts holding that the State the Court. within fell by plaintiffs-appellants serted “[Sjince majority opinion states exemp- act purview could be negligence acts of individual Act. Tort Claims tion to the Idaho resulted shown, damages that «the suits Tоrt Claims portion of the Idaho That liability necessarily predicated “a discretion- exempting Act States participation of the United on the previ- duty” has not been ary function transportation and the the manufacture ously construed this Court. That lan- nitrate fertilizer].” FGAN [ammonium however, clearly adopted from guage, However, as 23, at 961. at 73 S.Ct. U.S. Act, 28 the federal Tort Claims U.S.C. negli- out, allegations pointed specific 2680(a) (1970). interpretation were government gence part on the by federal construction of a federal act e., material i. by plaintiffs, asserted courts, binding, persuasive. while not and hazardous dangerous inherently was an hazard; coating Pipe that a Idaho & Steel Co. Cal-Cut Southern and fire explosive susceptible to Co., highly 567 P.2d Pipe Supply & 98 Idaho the material rendered material Miles, (1977); explosion; 97 Idaho 1246 State v. fire or ignited by easily placed bags (1976). contact with by spontaneous fire or combus- by the dissent: As we deem well said tion; packed high that the material was at Government, “The landowner, as as man- degrees temperature which rendered the ufacturer, warehouseman, shipper, as as material more susceptible explo- to fire and shipowner as operator, carrying on sion; high that said temperature continued indistinguishable activities from those by reason of the method packaging while performed by private persons. In this shipped; material was that the sacks of area, good there is no to stretch reason the material were not labeled or marked as legislative text to immunize the explosive required and as a fire hazard responsi- Government or its from officers by the regulations rules and of the Inter- acts, bility ap- for their if done without Commission; state Commerce and that propriate safety care for the of others. common carriers of the material were not Many official decisions even in this area advised of dangerous nature and char- acter of the material. may balancing involve a nice various considerations, but kind this is the same pointed As well dissent, out by the “The of balancing which at citizens do their fertilizer had been manufactured peril and we think it is not within the plants Government-owned at the Govern- exception of the statute. ment’s order and specifications. to its It here was negligence Government’s was being shipped at its part direction as policy not in or regulatory decisions of a program foreign aid.” 346 U.S. at governmental nature, ac- involved 73 S.Ct. at (Jackson, J., dissenting). Hence, tions akin private to those of a manufac- we note that the manufacturing op- eration operated turer, contractor, Reading shipper. controlled government entity sought liable, to be held do, the discretionary exception as we in a product and the resulting opera- from said way legis- both workable and faithful to placed tion was into commerce intent, lative we would hold government. Further, we note that Government was these cir- liable under manufacture, packaging shipping of a cumstances.” at S.Ct. U.S. product fertilizer is not an activity com- (Jackson, J., dissenting). pletely foreign to private the sector of busi- involving the Ida- appropriate In an case ness as contrasted governmental with a ac- undoubtedly Act, ho Tort Claims we would tivity for which there is no corollary in the the dissenters agree be constrained to private sector. in Dalehite the manufac- on the basis that The majority opinion com- nevertheless out turing operation was carried ments specific on “the negligence” acts of result government was the product and the argues specific that each of the acts manufacturing operation as was of that was the result of “discretionary” some de- shipment plac- and the packaging and the termination and thus could not constitute of com- product into the stream negligence. respectful With all deference merce; out activity carried Bench, to our high brethren on the we private of a government was “akin to those suggest that such reasoning terminology contractor, manufacturer, shipper.” Id. provides no realistic answer as to what con- dictum, majori- In what was perhaps “discretionary stitutes a function.” It seeks ty in Dalehite allegation also held that an to insulate the of negligence govern- on the part specific negligence by stating acts of fighting ment in the fires which resulted negligent decision to be or careful explosion from the discretion, support did not a cause involves negli- and hence the action, gence States, citing Feres v. United is not actionable. Such treatment U.S. provides S.Ct. L.Ed. 152 question no answer to the whether the dissenters years was owed which was A scant two later in Indian prevailed appear breached Dalehite to have damage and which resulted 61, another. States, 350 U.S. Towing Co. v. United 122, 100 (1955). S.Ct. L.Ed. 48 personnel. There service It was alleged liabili that the ty was sought to imposed govern on the improperly fire was controlled and thus ment for negligent failure to maintain a Although damaged plaintiffs. lighthouse with the ship result that a and clear, portions of probable it is that those barge aground went and damaged. were dealing immunity Dalehite and Feres The Court in a relatively opinion short bot negligence firefighters from the tomed opinion on the “Good Samaritan” facility Again, overruled. we note that theory and said: owned, operat- involved was controlled and “The just broad purpose which the negligence ed the government and the

statute Claims designed [Tort Act] which was the immediate'cause of the dam- effect was compensate the victims of age any intervening without factors was negligence in the governmen conduct of government that of As in Indi- employees. tal activities in circumstances like unto Towing, Rayonier an in made no Court those in private person which a would be scope of the substantial effort to define the * * *." liable atU.S. 76 S.Ct. Tort “discretionary exemption act” at 126. Act, negligent obviously than Claims other employees fighting government of fires Court held neither Feres nor Daleh- applicable exception. ite is not within the ambit of the to the decision in Indian Tow- ing, stating only, “The differences between It was said in the Dalehite dissent: this case and Dalehite need not be labored. judge that a “This is one of those cases The governing factors in Dalehite suffi- door likely to leave the same ciently emerge opinion from the in that we have through As which he enters. case.” 350 at (foot- U.S. 76 S.Ct. at 127 craft, been told a master of our ‘Some omitted.). note philosophy of theory liability, some Again, deference, with all we cannot ac- enlarg- by tightening end to be served cept the rationale majority opinion remedies, is at ing rights the circle of Towing. Indian activity While the or lack situa- in novel root of activity which allegedly caused the dam- analogies equivocal tions when are age ” facility involved a govern- which was precedents U.S. are silent.’ ment operated, owned and agree we cannot (Jackson, J., dissenting) at 975. S.Ct. that there is or parallel could be a between (Footnote omitted). the government being held to the same reading it is with our of those deci- So liability since, private person as a pointed Supreme sions of the Court United States out, all but the expressly exemp- “discretionary act the area of prohibited maintaining lighthouses. and find no tion.” We leave them no wiser With some language of the Court in Indi- the mean- clear as to theory philosophy Towing, howevеr, we are agree- total “discretionary act” application ment, to-wit: “discretionary act” Act which exemption to the Tort Claims exemption to the Tort Claims Act invites legisla- common to the federal and Idaho drawing finespun of “distinction so tion. capricious as to be almost incapable of be- lower We have reviewed decisions of the ing held in adequate the mind for formula- dealing with the discretion- federal courts tion.” 350 U.S. at 76 S.Ct. at 126. ary exemption function as an Less than years two thereafter Court Tort imposed by otherwise the federal by a 7-2 majority opinion delivered an to en- review also fails Claims Act. Such Rayonier, States, Inc. v. United 352 U.S. gender in the areas of either assistance 77 S.Ct. 1 L.Ed.2d 354 guidelines. legislative policy intent or There the United owned certain States land States, through 546 F.2d permitted which it Martin v. United railroad to operate, (9th 1976), under the as a result thereof a forest fire was an action Cir. ignited which was a death fought by forest federal Tort Act based on Claims lines, resulting grizzly from a bear attack in Yel- sure on the which electrical resulted lowstone National Park. The Court death, planning therein a level decedent’s was concluded, Dalehite, as in that decision as decision, operational with an as contrasted to the park administration of the area decision, and, therefore, constituted a dis- might which grizzly result invading bears function, exempting liability un- cretionary camp ground high areas was a policy level McGarry der the In Tort Claims Act. determination which fell at planning noted, imposing court no error in “We find level, rather operational than the level. duty this under circumstances care The Court in Martin also found no credible by this was owned power case. The line evidence that government had failed to contemplated United to be States. It was warn dangerous condition, of a ap- which engage that in work in сontractors would pears to have possible been the sole source neighborhood, the AEC here was of liability of government. may Such exploratory aware of the location of the explain part willingness that court’s to presented hole.” If with a 549 F.2d at 590. find government’s activities were situation, undoubtedly would McGarry we at the planning level, therefore discretion- duty hold the no different than government ary and exempt therefore from the tort sector. We would private owed in the claims Nevertheless, coverage. we would not be the level at concerned with undoubtedly disagree with that court’s find- opera- as to might decision be made ing as it relates to the discretionary func- lines, tion whether power rather tion. Although Yellowstone Park is admit- duty persons there had been a breach tedly a expanse animals, vast land to be in expected who reasonably could is not substantially different in its nature the vicinity power line. than wild parks animal which might be Manufacturing Co. v. In J. H. Rutter Rex operated by private persons or entities. 1975), States, (5th Cir. United 515 F.2d might decedent have been construed to resulting suit damages filed for be an Hence, invitee. we see no reason not plaintiff delay unreasonable reason of an apply the same standard of care to the Board in Relations National Labor government apply as we would to such an dispute case. The closing a pay back labor enterprise operated by non-government per- decided opinion court in a brief cryptic sons. In the of the management context “clearly NLRB in- the decision of the of a privately business, owned we would public volved policy considerations—balanc- undoubtedly hold the fact that a deci- ing of considerations to various cost-benefit sion was made high corporate level 515 F.2d at advance the interest.” officer level, on a planning rather than 99. from Rutter the There could be drawn relatively low level trainer employee animal leading argument seminal thread in his day-to-day operations, would be irrele- government not be liable as a should vant. As to the duty existence of a be- there is no result of for which activities tween operators the owners facility of a parallel sector and Tort private in the invitee, and an undoubtedly we would hold provide designed Claims Acts were liabil- plaintiff for a duty. and the existence of a ity government only as to the when a com- Martin, contrast to less year than one parable would exist in later the same Ninth Circuit decided however, private Such, is not sector. ex- McGarry States, (9th United 549 F.2d 587 opinion. Rutter pressly discussed in the 1976). Cir. That ‍‌‌​​​​‌​‌‌‌‌‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌​​‌​​‌​‌‌​​​‍claim resulted from the States, (5th death of Smith v. 375 F.2d 243 employee an of a United company under 1967), contract with Cir. was also a of the Fifth drill ex- ploratory juror holes on Atomic Circuit. in a federal Energy Com- Smith sat as a mission test rights alleged site. so court civil suit. He working, damages While equipment jury struck electrical wires and that as a on the result of his service employee verdict, It argued rights groups killed. was there and their con- civil that the decision to install spired against picket- automatic reclo- and the his business

ing and boycott resulting therefrom de- decisions concerning enforcement of its stroyed alleged his business. He its comprise part that the criminal a statutes government failure of the govern- to arrest and/or pursuit policy. of national If the prosecute persons those prosecuting for the crime of ment could be held liable for case, juror intimidation of a federal its failing resulted in to such a prosecute the accrual of a quite cause of action conceiva- choices in this area could Thus, government. appears The court in* a bly by Smith to be affected such a suit. rеject planning-operational dichotomy policy government the federal decision of in determining with per- might plaintiff whether the function a be influenced formed is “discretionary” governmental responsibility.” under the Tort Claims Act. The court said: F.2d at 247. “Cases put under the Act therefore courts DeCamp, The case of United States question of what sorts of decisions (9th 1973), similar in some F.2d 1188 Cir. is can be resulting classified as from discre- States, su- respects McGarry to v. United tion meaning 2680(a). within the It pra, however, distinctions. important not is a govern- sufficient defense for the brought under DeCamp action was ment merely point to out that some deci- occurring while a Tort Claims Act for death sion-making power was exercised company a employee decedent was the official whose questioned. act was An- Army Corps of under contract with the swering questions, these a proc- difficult operator Engineers. He was a bulldozer ess, is not by importation aided of the the absence who was killed as a result of planning stage-operational stage stan- would oth- canopy a on the bulldozer which argued dard as for a Smith. Such court his death. The prevented erwise have specious. distinction is may It be a finding non-neg- approved a lower court makeweight easy in cases where of course equip ligence failure to employer for needed, it is not difficult cases it stat- The court canopy. the tractor with a proves to example be another of a distinc- ed: tion spun capricious ‘so fine as to be would as- person private “In California a incapable almost being held con- reaching this duty by sume no tort ” adequate mind for formulation.’ with cano- clusion tractors equip [not F.2d at 246. can- pies] engineer government The Court in implicitly appears Smith standard.” higher not be held be saying that where certain functions of F.2d at 1193. parallel private have no in the Hills, F.Supp. Although Estrada v. governmental sector “an official exerts au- (N.D.Ill.1975), was an action thority in a legally manner which binds one than against federal officials rather or many, acting way he is in a which no Government, deem the United we States J., private person (Jackson, dissent- could.” groping language to be indicative Dalehite.) discretionary The func- discretionary interpreting the courts in prevents tion exemption the diffusion of Act. to the Tort Claims exemption function governmental power private into hands. offi federal alleged There it was say: The Court in went on to Smith building in hazard cials had maintained Attorney “. . . The discretion of the and caused led to a fire ous condition which in choosing prosecute General whether to de building to be plaintiff’s adjacent prosecute, or not pros- or to abandon a The court said: stroyed. started, already ecution is absolute. useful guidance “. . source of One ****** here, however, explanation of is the de- distinction wellbeing discretionary-ministerial national has been in the the Federal during struggle veloped

balance the recent in the context of * * * Generally equality, present racial of which the ac- Tort Claims Act. discretionary if it in- piece. government’s , speaking, duty is tion is a The federal case, judgment, volves deci planning policy stant such an individual would, course, sions. negli- It if involves be liable for the it opera- gence privately employed enforcement or tower administration of man Therefore, level, datory duty at tors. when the United States operational even if degree professional parallel private some assumed a role that of expert persons, negligent required. evaluation is is liable acts omit [Citations Lines omissions. The Court in Eastern Air key is whether ted.] finding if the problem had little mandatory, and whether com act question operatiоnal- an was controlled plained of policy-making involved distinction, planning performed duties the judgment. example, For negligence in operational and stated: the construction of a facility that, opinion is “It is if a therefore our nondiscretionary subjects the Government clears negligently towerman Government to under the Federal planes runway two to land at on the same Tort Claims Act. [Citations omitted.] time, the guilty same or is of some other hand, On the other the is Government doing negligent his act omission liable under the Federal Tort Act Claims work, the is liable' for result- Government the actions based on of dis exercise ing in the manner and injury same cretion, if even that discretion abused.” is . injury the same that is liable for reason it F.Supp. at 436 who, done driver mail truck of a One of the more often cited East- cases drive, exercising discretion to how to as Lines, Co., ern Air Inc. Union Trust through negligently runs a red traffic U.S.App.D.C. (D.C.Cir. 221 F.2d 62 light.” U.S.App.D.C. at 221 F.2d 1955), (affirmed Curiam, Per 350 U.S. at 78. 799.) S.Ct. 100 L.Ed. There it was States, The case Downs v. United alleged negligent given by that instructions (6th 1975), impossi- virtually F.2d 990 Cir. air traffic controllers who were em- federal ble to reconcile with case of Smith ployees resulted in military the crash of a States, supra. United Downs claims plane recognized and an airliner. The court hijacking pas- resulted from the of a small that principal question presented was senger airplane. agents FBI refused to al- whether the United States had consented to plane refueling low when the landed and be negligence sued for of its control tower engines. shot out one of the The aircraft’s employees in regulating air The traffic. hijacker thereupon shot killed two court noted follows: occupants plane and then himself. “The government insists that its tower holding The court court affirmed the trial operators perform governmental func- agents that did not the actions of the FBI nature; tions a regulatory that no purview fall within the private power individual has such of reg- rejected the exemption. act The court ulation; therefore the Act does not level anal- planning operational level versus permit negligent suit based on perform- ysis and stated: ance of their duties. The situation in- “We con- question believe that the basic here, Government, says volved when cerning exception is whether circumstances, viewed in all the ‘cannot judgments employee of Government equated be to one which would predicate Con- quality’ ‘the nature and analogous private liability,’ and so it is gress re- judicial put beyond intended to said the claims are excluded from the in- Congress view. [Citations omitted.] coverage of the Tort Claims Act.” 95 to encom- ‘discretionary tended functions’ U.S.App.D.C. at 221 F.2d at 73. pass for- entail the those activities which The went point court on to out governmental policy, whatev- mulation of saw why no reason private individual engaged. er We the rank of those so could not airport construct an operate agree analysis commentator’s control operated tower much as the in- provision: justifications

It would seem that it for release to the in a manner exception for the do not necessitate a agency inconsistent with in violation of broader application than to those deci- regulations. ingest- argued It was sions which are arrived through was tested ed vaccine was in a lot which administrator’s quasi-leg- exercise of a permissible levels found to exceed the quasi-judicial islative or function. [De- was, vaccine neurovirulence. That lot of velopments in the law-remedies nevertheless, approved because released and the United States and its officials. 70 agency reasoned that the unfavorable (1957).] Harv.L.Rev. 827 produced by test results were not defects in The court further stated: tested, sample but rather the vaccine proper

“The approach is to consider the product of unusual characteristics of the precise issue, function at and to deter- particular monkeys innoculated with the mine whether likely an officer is “biological varia- theory vaccine. Such unduly inhibited in performance discounting disregard- tion” resulted in function the threat of liability for significant ap- as not what otherwise * * * tortious conduct. prospect peared to be excessive neurovirulence. government of liability for the actions of Court said: law enforcement officers should not cause judgments government “The fact that of vigorously those officers less to enforce requiring profes- officials occur in areas the compensation law. The need for neces- expert sional evaluation does not injured by govern- citizens the torts of from ex- sarily judgments remove those ment employees outweighs whatever by classifying amination of courts them slight government effect vicarious liabili- as discretionary functions under the Act. ty might have on law enforcement ef- * * * capable This court is of fully forts.” 522 F.2d at 998. scrutinizing processes the and conclusions We suggest that the Court’s characteriza- of the decision-maker the usual stan- by tion of the government actions of the em- applied professional neg- dards cases of ployees being in Downs as tortious dictates ligence.” At 1066-67. the result which is to be achieved balanc- concludes majority opinion The in Griffin ing the interest of individuals which have discretionary act ex- its discussion of the damages against sustained as the possibility emption stating: governmental activity. inhibition of We cases, predicated not “Liability, in such is suggest that such balancing test sheds no negligent policy on a determi- unwise light on whether or not a existed nation, but on the failure of Government running from the to the in- act cоnsist- employees to conform to and jured citizens, the violation of which result- We ently authority delegated. with the legal ed in the determination that a “tort” bemay do not hold that the Government had been committed which could result in liable made policy determinations liability. Rather, only its we hold officials. The States, case of Griffin v. United where its may Government be liable (3d 1974), F.2d 1059 Cir. is a case frequently duties, their employees, carrying out cited in this field. That action involved the statutory fail pre-existing to conform to claim of a quadri- woman who became a At 1069. regulatory requirements.” plegic ingesting as a result live virus points out that polio dissenting opinion vaccine. An action had been vaccine against agency to release pharmaceutical decision manufacturer the exercise prior may settled well have resulted Griffin claim scope within government. alleged permitted discretion It was therefore, and, was Biologic agency regulation Division of Standards of majori- HEW subjected polio had vaccine not in violation as contended testing safety potency approved ty.

Nevertheless, Annot., appears, implicitly Griffin See also cases collected in 99 A.L. least, to be on planning based level- R.2d 1016 operational majori- level standard since the Although the above review of decisions ty virtually regulations concedes that if the complete lower federal courts is not governing testing had the vaccine exhaustive, we deem it sufficient demon- followed, been plan- such would constitute a strate a lack of coherent doctrine ration- ning level decision and fall within the dis- gain ale. nothing by way We of assistance cretionary exemption. function Of further analysis. to our interest in the Griffin the court’s holding States, that Mahler v. United of our sister decisions the courts (3d 1962), F.2d Cir. distinguishable guidance states or as- provide likewise sincе negligence. Mahler based on as nearly furnish sistance. Those decisions many theories there rationales and/or Again, note appears we un- Griffin jurisdictions. concerned concept with the of tortious lia- bility, imposition rather the Abbott, (Alaska In State v. when the government degree fails in some 1972), judg- held Alaska court protect efforts its citizenry and ment against the state affirmed should be society general by regulating and circum- when alleged negligence state scribing the conduct those who offer remedy high- failure to slippery products or services to society. way during the winter time. That court In First National Bank in Albuquerque v. concluded that such was within the am- States, United (10th 552 F.2d 1977), Cir. bit of operational plan- rather than a plaintiffs relied on Griffin. The in- case ning level decision and thus state volved the claim on behalf four children was not liability immune from under the who pork had eaten which had been fed exception act to the tort grain mercury treated with fungicide. a claims act. The same was rationale utilized The children permanently sight, speech, lost I’Anson, (Alaska in v. State 529 P.2d 188 locomotion and use of hands. It was al- 1974), alleged wherein it was the state was leged inadequate- had negligent failing place in warning signs to ly tested and investigated fungicide the and passing and no striping high- zone on the to prohibit failed the use of the fungicide way, the plaintiff injury sustained in a require and failed labeling danger to of the by collision reason thereof. In Adams v. of food poisoning chain on the fungicide State, (Alaska 1976), plaintiffs 555 P.2d 235 packaging. injuries suit for death and result- The purports Court agree to with the ing a alleged- from fire in a hotel which had case, however, Griffin it held that the dis- ly negligently inspected been and/or which cretionary function exception applied. The the municipality negli- state the had and/or Court held that the labeling, warnings, pre- gently failed to close because of fire hаz- cautions required and directions for pol- use ards. The to apply Alaska court refused icy judgments in evaluating the adequacy dichotomy the of Da- planning-operational labeling of the only and thus involved a lehite, the in favor but rather decided case generalized protection safety. the implications” plaintiff “policy on government’s As to the authority to sus- a rejected would be argument that such pend or products cancel the registration, into by judiciary wrongful intrusion only: Court said (See, how- government. other branches of “Whether such discretion is exercised and Conner, also ever, J. See dissent of abused,

possibly or whether there 09.65.070(d)(lXA), wherein Alas.Stat. discretion, § failure to exercise the such could not against municipalities acts or omissions claims related to the cancella- tion to in- function are within the failure the terms thereafter be based on exception provided 2680(a).” a viola- spect, or abate At discover violation 377. Morris, 555 P.2d tion.) v. See also State (Alaska 1976), dan- plaintiff inspection highly wherein when disclosed a was an prop- gerous private

denied recovery against on the condition on state electrical basis of immunity erty, property when the fell to that decedent but service when bridge from a employer which his Decedent was killed was con- disconnected. faulty structing body for the State of she a water electrified Alaska and fell in dis- Loger state had negligently wiring. failed to Nerbun and require the Both Campbell contractor safety equipment; to use that in tinguished on the basis Jennings State, (Alaska v. inspection carried out had been 1977), where the state was the munici- dangerous held immune known condition liability from if girl pointed for the death of a school out pality. It was further attempting highway to cross a out negligent carrying and it was been the state had alleged that negligent the state had been ex- duties, hаve state would statute failing provide Nevertheless, a safe crossing point. liability. empted fromit ex- municipality attempted fact that a State, In Nerbun 8 Wash.App. rele- held not empt by ordinance itself P.2d 873 was brought against action vant. the state for wrongful resulting death alleged negligence of the failing state in Wash.App. Hampton, In Walters to enforce safety standards. There the of a victim (1975), the 543 P.2d court denying said: city an action shooting brought fail- city

“We do legislature not believe the intend- negligence based on the impose ed to with duty upon person an absolute him from a protect Department fire- of Labor and Industries to for violence proclivities known place insure to be safe workmen held that arms. The court employed. legislature The most the in- thus fell discretionary and prosecute was tended Department pre- was that court liability. exception within the scribe safety some standards secure said: through compliance spot reasonable check “Furthermore, protection the amount of inspections. way safety In this condi- depart- police by any individual afforded tions for general workmen in would be necessarily determined ment improved. relatively pro- small staff determina- to it. The available resources vided for of Department the indication ef- most can tion these resources of how legislative this intent. The situation legislative-executive is a fectively be used akin to city cases where a is not those chief’s police a Were we to hold decision. held police department liable the because viola- alleged every prosecute failure to and its ordi- officers failed to enforce an a munici- exposes tion ordinance city of a nance.” at 877. 506 P.2d tort, we would liability to civil in pality of hav- Products, position in placing be ourselves a Loger In Washington v. Timber rе- police how limited Inc., 921, (1973), to determine 8 P.2d Wash.App. 509 1009 to be sources are allocated. the dis- approved, [Citations the Nerbun was traditional is neither a This and cretionary exemption was discussed act omitted.] courts role for the appropriate nor claim liability Loger was also a denied. at P.2d 651. in assume.” 543 against alleged negligence the state performing enforcement functions. safety be contrasted should The case above “where, impelled to discuss the court Such 321, 534 P.2d Bitton, 85 Wash.2d Mason v. processes, or- governmental in the area of speeding automobile a (1975). 1360 There act of stops and the liability thodox tort driv- police when being pursued at .” 509 P.2d governing begins hour, lost er, per 140 miles speed of a 1013. vehicle with another collided control and of occupants Bellevue, and killing 85 himself Campbell City of

In v. however, court held other That vehicle. 234 P.2d Wash.2d 530 deci- operational upheld pursue was decision to liability municipality was of 539 sion, not falling following within the See also the cases Flori exemption Hence, function liability. to tort Health & Appeals: Dep’t da Court of liability placed be could on McDougall, the state. v. 359 Rehabilitative Services Cheney v. Dade (Fla.App.1978); So.2d 528 view, In our clearly the acts fall would Sapp (Fla.App.1977); 353 County, So.2d 623 within the police power and the court’s Tallahassee, (Fla. v. City of 348 So.2d holding judicial invasion the operations West App.1977); City of Palm Gordon v. of another government. branch of Mason Beach, (Fla.App.1975); Florida So.2d seems impossible to reconcile with that City Jacksonville v. First National Bank of prior court’s cases. It be should noted that Jacksonville, (Fla.App.1975), 310 So.2d the collision pursued occurred between the (Fla.1976). cert. All of denied 339 So.2d 632 vehicle oncoming and an car. If the collid- appear such cases to have held recov ing vehicle had been that of the police, a ery was not allowed on the basis that different might rule applicable. also See duty, any governmental if owed enti Dahl, Halvorson v. 89 Wash.2d 574 P.2d ty, person, individual but (Wash.1978), Washington wherein the public general. ‍‌‌​​​​‌​‌‌‌‌‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌​​‌​​‌​‌‌​​​‍rather to the in court held plaintiff widow of dece- dent against stated a claim city whose Milwaukee, In 74 Wis.2d Coffey City alleged negligence enforcing building (1976), plaintiff 247 N.W.2d safety codes caused the death dece- city action dent in a hotel fire. Georges But see v. building inspector to recover for fire dam- Tudor, 16 Wash.App. 556 P.2d 564 age building allegedly inspec- caused (1976). negligence premises tor’s inspecting danger. court repu- fire Wisconsin Beach, Modlin v. City of Miami governmen- diated the distinction between (Fla.1967), So.2d 70 plaintiff decedent was proprietary tal act refused to fol- partial crushed collapse of retail low the discussed in Mod- rationale cases city store and the was named a defendant Beach, lin City of Miami 201 So.2d 70 on the basis of alleged negligent perform- (Fla.1967); Hoffert v. Owatonna Inn inspection ance of of construction Motel, Inc., Towne 293 Minn. progress and failing to discover the defect (1972); City N.W.2d 158 and Duran v. collapse. caused the sug- That court Tucson, 20 Ariz.App. gested legislative judicial discre- Coffey The court in held that tion will not sustain municipal liability in imposition liability always did not flow tort, but such will be sustained in negligence finding and cause the case of executive ac- administrative fact decision should rest but rather that the tivity. The court found that the activity policy. on considerations of complained of fell within executive of ad- court stated: ministrative activity, nevertheless plaintiff “Thus, could not recover since city this court has held even building inspector allegedly at the time he complete the of where chain causation is negligently performed inspection the direct, “owed recovery may sometimes bе duty to Mrs. Modlin in any way public different grounds policy denied on of be- from that owed to (1) other member of the injury cause: too remote from [t]he public. Therefore, the city negligence; (2) not liable the or the too injury is under the rule of respondeat superior.” wholly proportion culpabili- At out of to the 76. The also, tort-feasor; court said at- ty negligent (3) “We do not of the or in tempt to grapple with the much- question, retrospect appears highly it too extraordi- litigated jurisdictions, appar- in other nary negligence that the should have ently Florida, not harm; in public (4) whether the brought about the or because officers are not liability immune from tort recovery place allowance of would too for injury resulting discretionary from their a negligent unreasonable burden on the acts.” tortfeasor; Id. (5) or of because allowance

540 See, Paul, however,

recovery City the Hansen v. likely open be too to St. would N.W.2d 346 claims; Minn. 214 way (6) for allow- 298 fraudulent the court There the issues before ance of recovery would a field that enter a has committed municipality whether the just has no stopping point.” sensible or be dan- dogs known permitting tort omitted; (Citations 247 N.W.2d at 140. prowl impoundable gerous, vicious and emphasis supplied.) in a public sidewalks upon uncontrolled The court concluded: said, so court The residential area. “[i]n policy dispute public here involves “[T]he may be we mindful that holding balancing requires considerations opens a this claimed or believed factors, determining policy municipal various respect box with Pandora’s all, and, upon liability moving whether there is to be hazards liability for other so, sidewalks, attacks if as extent The instant such public the. thereof. streets and public drunks upon pedestrians by munici complex case involves a issue or criminal committing violent persons pal arising alleged tort liability out of held court 214 at 350. The acts.” N.W.2d negligеnce inspector building of a knowledge of had city since the carrying inspections. The factual out fire sidewalks, dogs prowling vicious connections are so that a full attenuated func- not a such did constitute trial precede should this determi court’s not was therefore municipality tion and policy nation 247 considerations.” also, Lorsh- See liability. immune from N.W.2d at 140 - 41. Buzzle, 258 N.W.2d Township of bough v. See Lifer Raymond, v. 259 Wis.2d township a (Minn.1977). Therein (1977), N.W.2d guest passen- wherein a owed held to have dump a was maintained ger injured who auto- had been in a one-car own- neighboring property duty a of care mobile against accident an action fire a damaged as result ers who were the road test examiner employed township dump. in the which started Department Transportation alleg- State Amsterdam, 15 Motyka City In v. ing that the examiner negligent was court N.Y.2d 204 N.E.2d granting probation- the driver of the a car municipality a a dealt with claim ary driver’s license because the driver was held a result of a fire. court grossly so prevent obese as to was her from and such liability only, would exist exercising found, care reasonable control over a motor a found use due duty if was as dis- vehicle. liability particular persons Therein for the benefit of was denied with tinguished general from the holding the court that the determination of public to supply adequate fire police appli- examiner as to the an ability of protection. cant judgment involved an exercise of City also, however, Smullen See discretion. York, 320 N.Y.S.2d N.Y.2d New Inn Towne Mo- Hoffert Owatonna when was found (1971), wherein Inc., tel, Minn. 199 N.W.2d building a violation noted inspector injur- (1972), a a motel fire had occurred in over- had been when trench codes alleged it was plaintiffs four shoring and bracing or without excavated granting building permit into decedent inspector had led changes building in violation of held court peril. position municipality liable сode and hence inspector approval presence since court negligence. The held and, there- relationship special created for exclusively the building inspector acted fore, individual duty particular a distinguished as public, distin- benefit of the was therefore decedent. Motyka was 48 individual, Goldberg, who in- any individual an v. guished. Florence See also where- performance 917, (1975), alleged negligent 794 jured by an A.D.2d 369 N.Y.S.2d to a relating regulation not have a inspector does in it was a building held that of the special ain resulted crossing guard school of cause action.

541 duty “negligent performance duty of a voluntari- to school children and the munici- liability.” ly pality may was be a basis exempt therefore not from liabil- undertaken stated, The court also ity. case was New 564 P.2d at 1234. This affirmed the judicial 189, the absolute leaving “While intact Appeals, York of 44 375 Court N.Y.2d judi- immunity enjoyed by participants (1978). 763 N.E.2d abso- the we now abolish proceedings, cial however, See, State, Klee v. 94 Misc.2d public previously granted immunity lute 284, (1976). 404 N.Y.S.2d 772 discretionary functions.” officials in their Codd, 1047, See also Bruno v. 90 Misc.2d supplied.) (Emphasis 564 P.2d at 1233. (1977), regarding 396 N.Y.S.2d 974 an action Hays, the dissent of paragraph The first of officers, brought against police the proba- J., worthy quotation: of department tion court on the family “Beware, judge, trial unsuspecting oh ground they protect had failed to felon place a your that when assist wives assaulted husbands. probation goes awry, on the ma- horribly Stranger See also v. New York State in cloistered jority my sitting brothers 169, Corp., Electric & Gas 25 A.D.2d 268 gross call ivory your tower action N.Y.S.2d 214 subject you to thereof. consequences the In Jahnke v. Incorporated City majority of Des I hasten to concede that Moines, 1971), tells (Iowa logic N.W.2d 780 a opinion say does not this but plaintiff pa- had municipality sued the for dam of the discretionary acts me that ages injured when he was than stones thrown prоtection role board less need no by a standing mob on a There judge. street corner. The sentencing those court held that commissions, there was duty owing no bastions be may boards or individual citizen from a municipality or its not be ac- bureaucracy, should police force since there duty was no running quasi-judicial im- protection corded the plaintiff individually distinguished as munity, hardly parole board from a general member of the public. See at 1237. one of these.” 564 P.2d also Counihan, Hannon v. Ill.App.3d 509, See, however, cases of the later Arizona 210, 12 Ill.Dec. 369 N.E.2d 917 (Ill.App. State, 216, 571 P.2d 1057 Wesley v. 117 Ariz. 1977); and Guarino, Du frene v. 343 So.2d (1977), Depart- held wherein was 1097 (La.App.1977). duty no Liquor ment of Licenses had

In Duran City Tucson, v. bar, 20 Ariz.App. protect although a a patron' of 22, (1973), 509 P.2d violence, prior Arizona Court board had information Appeals license, held plaintiff that when was suspend a failed to revoke or injured 272, as a result Phoenix, of fire which McGeorge City in turn 117 Ariz. allegedly resulted from the was municipality’s (1977), liability where failure to annually inspect premises who failed to against municipality denied plaintiff’s employer, recovery protect could vehicle owner the known since, had although govern- prop- the doctrine of propensities neighboring violent immunity mental abrogated, has been erty owner. only duty owed was in general Supreme In Court of California contrasted with a to an individual. Dist., 55 Corning Muskopf Hospital Grimm v. Arizona Bd. of P.2d Pardons and Cal.Rptr. Cal.2d

Paroles, existing Ariz. 564 P.2d doctrine abrogated previous the Arizona court held that negligent governmental immunity for tort Califor- highly dangerous release of a prisoner stated, gov- on nia. rule of The Court “[t]he parole by parole board narrowed the is an ana- immunity ernmental tort public duty chronism, basis, otherwise of the board to the and has without rational decedent who during robbery was shot only by inertia.” existed the force of parolee. Cal.Rptr. board of 359 P.2d at 460. That deci- pardons upheld court, by the stating, heavily upon sion in this Court’s relied 542 State, 795, attempted

decision in Smith 93 Idaho 473 The Court in Johnson again to (1970). Muskopf, P.2d 937 distinguish The Court in between an immune “discretion- speaking through unprotected ministeri- Traynor, ary” Mr. Justice decision and an went indicate, however, language on to al such as: abrogation act. It used governmental immunity does not mean that will ne interpretation “[ajdmittedly, our the state is decisions; liable for all harms that result very cessitate delicate from its activities. “Both the state and ascertaining whether an offi process of individuals engage are free to in many ac level of cial rises to the determination tivities that result in long requires harm to others so judicial insulation from review as such activities are not tortious.” 11 Cal. that en sensitivity to the considerations Rptr. 94, (Emphasis 359 P.2d at 462. ter appreciation into it and an supplied.) to reex attempted ability The Court there court’s limitations on the distinguish potential draw negligent per Despite between officials’ amine it. these backs, however, possesses (for approach formance of our ministerial duties which concentrating on they liable) dispositive virtue of discretionary could be held immunity to the granting acts the reasons for scope authority (for within the of their governmental us to entity. requires which It they liable). would not be held quasi-legis find those areas of Court held that and isolate insofar as acts are sufficient concerned, justification policy-making lative for not abol rule that ishing ly justify sensitive to a blanket immunity danger such was the action courts will not entertain a tort diminishing public the desire of officials to contributed alleging that careless conduct carry out their Gregoire duties. See 73 Cal. governmental decision.” Biddle, (2nd 1949) 177 579 Cir. F.2d 248-249, at 360-61. Rptr. at 447 P.2d Hand, J.). (Learned quoted, above language Aside from the Issued the day Muskopf same was the prob- California court failed to resolve case Lipman Elеmentary v. Brisbane quagmire.” potential lem and “avoid this Dist., 224, 97, School 55 Cal.Rptr. Cal.2d 359 P.2d alleged Therein it Angeles, was City In McCorkle v. of Los sought 389, that the school trustees Cal.Rptr. to discredit Cal.2d when, superintendent the school injured and force her follow- plaintiff was from her position. accident, city The court held that the ing an he and a automobile scope trustees were acting policeman standing within the in an intersection were their discretionary, as contrasted with min- previous where a accident had occurred isterial, were, therefore, powers plaintiff oncoming within auto- was struck immunity police- the continued rule. It was contended that the mobile. the accident was investigating man’s act in legislature In 1963the enacted California “discretionary” and thus immune. exempted a tort claims from that act and police officer court found that while legislative immunity sovereign abolition of exercising discretion in un- may have been “discretionary” in John actions. injury to dertaking investigation, the his State, Cal.Rptr. son v. Cal.2d exercise plaintiff was not the result of that 352 (1968), 447 P.2d had for con court discretion, from the rather resulted sideration the claim that the California which followed his negligence of the officer Authority negligently Youth acted had Hence, the court exercise of discretion. allowing year boy a 16 old with homicidal immunity. found no of violence background tendencies Madera, 4 Cal.3d County in the home of In Ramos v. cruelty placed to be (1971), it P.2d 93 parents. plaintiffs, Cal.Rptr. act as foster who would were the who personal inju alleged that two families suffered Plaintiffs thereafter required alleged recipients assistance It was ries reason thereof. receiving further a foreseea to work as a condition to to warn of had a State seeking so. assistance. An action failed to do peril ble and had injunctive declaratory relief on the law. Nor does employee ba- have ‘dis sis that minors had “wrongfully been cretion’ to coerce California citizens coerced to work.” The court said: 429, Cal.Rptr. break the law.” 94 at 428 -

“The 484 P.2d at 100-01. complained tortious acts of consist of coercing plaintiffs to work as a condi- Hence, the a cause of court found that tion to receiving payments AFDC [con- action had been stated and that the acts did trary to various . .”94 statutes] not fall within immune area. Cal.Rptr. at 97. 484 P.2d at State, In Baldwin v. 6 Cal.3d The court stated: (1972), Cal.Rptr. plain- Johnson we reviewed the semantic “[i]n tiff’s vehicle was struck from the rear and quicksand which had ensnared the con knocked into another lane of traffic where cept of ‘discretion’ in unyielding an an it was struck head-on. The California stat- trap of incomprehensibility. We noted provided govern- utes that there shall be no that discretionary acts have been defined injury by mental caused liability for as ‘those wherein there is no hard and im- plan design or of a construction of or fast rule as to the course of conduct that provement public property where such one must or must not take.’ [Citations plan in ad- design approved or has been omitted]) Finding the semantic distinc improvement vance of the construction or tions between ‘discretionary’ and ‘minis legislative body. Such is similar to terial’ inadequate deciding as a method of the Idaho statute. The court stated the controversies, actual we followed our question immunity design to be whether precedent landmark Lipman Bris v. having once effec- perpetually attached bane Elementary Dist., supra, School change tive regardless any subsequent concentrating policy on considerations conditions. The court stated: relevant claim of im design, the “Having approved plan or munity. Discretionary held, activity, we governmental not, entity may ostrich- is that related to policy decisions, basic like, blueprints, its in the hide head activity sometimes characterized as operation blithely ignoring the actual the ‘planning’ opposed ‘opera notice that plan. entity has Once tional’ level making.” of decision 94 Cal. changed physi- plan design, under Rptr. 426-427, at 484 P.2d at 98-99. conditions, dangerous cal produced has continued, The court act public property, condition of must “We are satisfied that a entity reasonably to correct or alleviate the haz- may be pursuant liable in tort to Govern- Cal.Rptr. ard.” 99 491 P.2d at Code, 815.6, ment section where it knows 1127. or should know that its failure to exercise Summary judgment in favor of the State to reasonably supervise employ- was reversed. ees will result coercing others to vio- laws,

late County Superior state and where such violation In of Sacramento proximately County, results in an 8 Cal.3d injury of the Court of Sacramento (1972), kind which designed pre- the law was Cal.Rptr. 503 P.2d have, alia, damages vent. Public sought entities inter real parties in interest mandatory duty obey legislative wrongful resulting prisoner enact- from a death ments, of which the must the de- escaping jail entities conclu- from a maintained sively presumed knowledge. Liability to have on the basis fendant. was denied Public liability dealing entities certainly statutory immunity have a mandato- ry duty not to coerce contend- escaped prisoners. others —either with Plaintiffs force leaving jail threatened withdrawal ed that the act door laws, act, life-sustaining aid —to violate state unlocked was not a nature, whether or entity specifically argu- not the was ministerial but such charged enforcing particular rejected by ment was the court. the victim and the HFH, Superior therapist, Court of Los between there Ltd. 508, 125

Angeles Cal. County, Cal.3d thera- did exist between ‍‌‌​​​​‌​‌‌‌‌‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌​​‌​​‌​‌‌​​​‍the killer and his plaintiffs Rptr. 365, P.2d 237 relationship patient a of and doctor. pist sought the nature alternative remеdies in said, relationship may The court a “[s]uch damages of inverse in condemnation or for support affirmative duties for the benefit municipality’s tort reason of the 23, persons.” Cal.Rptr. 131 551 of third at allegedly adoption zoning plan of which (The points P.2d at 343. dissent out the court, damaged plaintiff’s The in property. resulting problem phy- the of breach of the holding liability aspect no in the of the tort relationship, dif- sician-patient the inherent action, Jackson, J. in cited the dissent of danger ficulty forecasting in a the therapist States, supra, stating, Dalehite v. United violence, to necessity of of confinement the “Justice mot a expresses Jackson’s both prevent society the and the risks to danger principal of law and a rational necessity of of the general enlarges in a rule which government; insti constitutional and both mentally numbers of ill to be required the understandings legis tutional require that confined.) On the issue of acts, lative improper, judi even if find their exemption, act held that simply the court remedy undoing wrongful cial in of the to rule applicable since the laid down was legislation, money damages not in awarded private therapists, the same must necessari- 373, against 125 Cal.Rptr. the state.” every ly toward apply to and result 542 P.2d at 245. therapist. govemmentally employed University Regents In Tarasoff of the Co., Publishing In v. Chronicle Sanborn California, 425, Cal.Rptr. 17 131 Cal.3d 402, 406, P.2d Cal.Rptr. 556 18 Cal.3d (1976), court P.2d 334 the California (1976), action for plaintiff brought an major step. patient took another There a County against City defamation intention therapist had confided to his his had clerk Francisco its clerk. The San plaintiff’s daughter. Although to kill there which holding plaintiff been monies was no relationship victim between the explained he released to plaintiff doctor, the court held that nevertheless newspaper reporter transaction to a a cause had of action been stated. court plaintiff. The unflattering terms to court, in holding, so stated: clerk did not that the held activities issue, “In analyzing this bear in mind we discretionary act fall within immunized legal duties not discoverable officer’s dis stating, governmental area “A nature, conclusory facts of but merely press regarding public cussion with the or expressions that, particular cases of seem, functioning of his office would type, liability imposed should be for dam- instead, those category to fall within the age done. . . . The assertion routine, duties incident ministerial liability must ... be denied be- operations Cal. normal of that office.” 134 plain- cause defendant bears ‘duty’ no to Rptr. at at 769. 556 P.2d ‘begs question tiff the essential —whether Marin, 18 Cal.3d plaintiff’s County In Morris interests are entitled

legal protection against con- Cal.Rptr. defendant’s P.2d [Duty] duct. . plaintiff, injured is not sacrosanct who in the course itself, only expression an his was unable to secure employment and sum policy total of those considerations be- benefits compensation workmen’s partic- lead the law to say uninsured, cause his employer plaintiff ular protection.” entitled to failure county suit (Ci- 131 Cal.Rptr. at at 342. P.2d a build- require obtaining employer, omitted.) tations of work- ing permit, to file a certificate Hence, Although compensation insurance. had men’s plaintiff court held that public provides entity stated a that a therapist’s negligent case for the the statute issuance, failure to warn the The court held caused injury victim. not liable that although special relationship denial, suspension existed or failure or refusal deny, suspend gent issue acts of the permit, recovery revoke state when would did finding such not deter the court from had been allowed if the defendant have liability. The court said: private been a individual. “A entity, course, have does not care set forth the standard Court authority determine ‘whether or not’ in the required of state maintenance permit issue a only performs when it highways, opinion our state “it is ministerial, non-discretionary duty. to that owed standard should be similar cases, such policy ‘basic decision’ has owner private individual who is the already been made at a govern- different possessor At of land to invitee.” Thus, mental level. . . . the statu- proceeded 473 P.2d at 946. The Court then tory language suggests itself that of care lay specific out the standard to section’s immunity only attaches to dis- state, substantially placed upon the which is cretionary Cal.Rptr. activities.” 136 at of possessor the same as other owner or (Citations 559 P.2d omitted.) at 613. land owes an to invitee. stated, reiterate, The court in in- “[t]o Thereafter, (1971 legislature our case,

stant plaintiff impose seeks liability to 150) the Idaho Idaho Sess.Laws Ch. enacted the county on not for discharge failure to a of language Act. opening Tort Claims discretionary governmental function, but legislation provided: that rather perform for failure mandatory to a sovereign immu- duty “Waiving the defense county which the could dis- not its subdivi- nity its political cretion of the state and ignore.” Cal.Rptr. at sions; be shall act providing P.2d at this 616. Tort known as ‘Idaho and cited We now return to a consideration of Ida- definitions; Act’; pro- providing Claims ho’s court made statutory law. politi- viding liability state and of the State, This Court in Smith v. 93 Idaho cal conduct their tortious subdivisions for first held providing and providing exceptions; doctrine sovereign immunity was not a . .” exceptions liability to . . tort valid defense in actions on based tortious 11(7) as (now codified acts Section of that act of the state. We it deem clear that 6-903(a)) governmen- provides I.C. that a Smith did action, not create a new cause of tal “where entity but was shall be liable for acts rather the abolition of a total de- or governmental person fense a entity private to an if action in the traditional damages entity mоney orthodox field of would be liable for liability. tort The Court stated: under the laws of state of Idaho.” “Each of the three cases this now before above, As we have indicated there is presents Court viz., question; identical lan- uniformity interpretation of such whether not sovereign doctrine guage by alternative courts nor there

immunity regard liability to the tort interpretations might from which we select of the State of be Idaho to abolished. persuasive interpretation that one most * * * immunity ‘An avoids Rather, supported logic we and reason. ** in tort under all circumstances melange find a of decisions wherein reason conferred, it is par- not because at times seems to have flown out the win- facts, ticular but because of the status extreme, dow. At we one find decisions defendant; position of the favored mockery a appear to make out of tort, and it deny does not Jackson, J., repeated oft maxim of dissent- resulting Prosser, liability.’ W. L. Law Dalehite, ing in “it is a a tort for Torts, (3d 1964).” ed. At government govern.” Decisions which 473 P.2d at 941. guise liability theory under the of tort pointed The Court damages killing by out that was irra- award for: a murder- deny recovery tional to to a who plaintiff while officers were en- er law enforcement personal suffered injury negli- because gaged attempted prevention crime (Downs United States, supra); death we creation of new cause of action which injury perpetrated by legisla- a convicted felon contemplated by our deem not to penal whom officials was suffi ture, believed foreign concepts traditional ciently society rehabilitated to enter the law of torts. (Grimm Pardons, v. Arizona Board of su We do not so on the basis that find pra); recipients being required welfare alleged only govern- from the runs (Ramos Madera, County work supra). society large, rather than ment to extreme, At the other we have the decision plaintiffs. individual particular these highest court in the land in Dalehite We do not so find on the basis denying recovery in a situation in which a performance governmental employees private person assuredly would be held to do not find on would be inhibited. We so liability, but im is deemed be a basis that should distinction there solely mune of the governmental because by a offi- between decisions made cabinet official level at which decision was made viz-a-viz, cers, employee governmental endanger others. bot- today truck driver. Our Hence, although may we some derive com- plaintiffs’ allegation tomed on scintilla of lan- legislative intent from plaints. impression As a first case of guage, we with the are left task of deter- Idaho, we need cases go no further. Other mining enunciating and policy. holdWe problems other days present on other legislature that our has intended that aon to be decided analysis of are best left liability wherein tort to a would attach not the end that this by case case basis. To private person, governmental entity en- misconstrued, contemplate we do not gaging in liable. the same conduct will be liability under the Idaho Tort Claims We not create a do ascertain an intent to damages resulting only Act will result from new cause against governmental of action our Hopefully, from automobile accidents. entity govern. for its to attempts to deci- marginal relating other comments postulate government jurisdictions

We that if is not from will suffice sions other govern, anarchy regard. able to and are chaos this only gov- is to government alternatives. If is Union The cause as relates to the it ern, persons operate and must be selected to proceed- further reversed and remanded for of what implement the notions abstract to is the State ings. The cause it relates as is to government government If should do. affirmеd. controlling in- perform the function of mem- terrelationships between individual McFADDEN, DONALDSON, J., and C. an oversim- society (admittedly bers of our J., concur. plification), provide able to stan- it must be BAKES, concurring in Justice, they specially be called dards of whether conduct statutes, ordinances, or Part I: regulations, ukases applicable exceptions decrees. With not Supreme of light In of the decisions

here, government have such functions Sears, Roe Court of the United States from traditionally seen sacrosanct been Dist. Diego & Co. v. Council buck San by branch. judicial invasion 180, 98 Carpenters, 436 S.Ct. U.S. (1978), Carpen Farmer v. against with L.Ed.2d 209 and Here we claims are faced 25, 430 ters, relating governmen- Local S.Ct. U.S. major with the are not L.Ed.2d 338 I concur governing. function There tal erred ruling We the trial court private ity’s sector. parallel in the functions wrongful death dismissing appellants’ abilities with the essentially concerned United Steel officials, regulations, against respondent action the enactment doc preemption A find- workers because of of standards. the enforcement is a wrongful death “duties” trine. An those action for breach statutes, is of substan- in the of our would result creature running plaintiffs to state interest, tial traditionally stage local dismissal at the summary judgment has been it, briefly to jurisdiction committed state of the courts of the action Moreover, my require view the state. this the reasons which in action cause, too, deter- be heard and wrongful unlikely death should present to legal on the identical mined merits. proceeding issues as a under the federal labor arising laws this enter- miners who view the deceased my setting. same factual jurisdic- Assertion of only not mine portals of ed the Sunshine’s tion the courts of this state over the assum- allegedly right rely upon to had a appellants’ appear action would to present inspect the conditions duty of the union ed significant no risk оf undue interference mine, but practices prevalent in that with policy. national labor equally right rely upon the State’s had a statutory obligation. question The obvious Nevertheless, Sears, in both Farmer and Who, if not the here is: if not State and Roebuck, the court jurisdic ruled that the union, had the min- obligation assure tion of the state courts and state law tort not they being subjected ers that were preempted, only not after a careful prac- dangerous working conditions and scrutiny of legal issues raised course, answer, tices? An is that easy actions under state law—intentional inflic the miners could see for themselves tion of emotional distress in Farmer and could, practices, conditions and so to trespass Sears, Roebuck. In the instant they speak, didn’t stay out of the kitchen if precise case the legal nature issues However, most like the heat. I think that raised the appellants’ wrongful death agree longer philosophy will that such action not entirely present clear at the miners, country. in this These obtains procedural posture Indeed, of the case. dependents exactly support, not has yet been determined either the job, spirits simply free who could leave trial court this appellants’ Court that the may appeared the conditions of which have complaint in fact states a claim in for relief they unsafe. Whether or not were aware against tort the respondent union. Cf. dangerous of any existing conditions and Just’s, Arrington Inc. v. Co., Constr. 99 Ida practices, by exposure of their daily reason ho (1978) 583 P.2d 997 (ordinarily mere thereto, it is the widows and children of breach of tort); contract not a see also plain- those deceased miners who are the America, McAlvain General Ins. Co. of 97 statutory wrongful tiffs in these ac- death Idaho 554 (1976); P.2d Taylor tions, and their to the de- right rely upon Herbolo, Idaho alleged obliga- of their fendants’ fulfillment That issue was appeal not briefed in this to tions look out for the safety of their and so dowe not it. reach fathers and husbands is no less than my In view a final decision whether right in miners themselves. wrongful respon- death action It children is claimed widows dent union is preempted federal labor in that the State was negligent of Idaho laws must therefore await full factual regard inspect mines obligation to its development of the legal issues raised under working con- safe and secure the miners our tort state law. responds Idaho ditions. State of regula- the pertinent Idaho statutes and DONALDSON, McFADDEN, J.,C. of Mines imposed Inspector upon tions J., concur. wholly deputies which his duties BISTLINE, Justice, concurring dis- nature, liabili- “discretionary” and hence senting. by appli- ty negligence may be avoided I join the opinion Court’s wherein is Tort of the Idaho cation that section summary held of dismissal in judgment exempts Act Claims which State favor of the United should respect Steelworkers to a discretion- negligence with agree granted. have I am unable to ary duty part been on the function to a the State of Idaho entitled or its employee. State orders, compliance the State lengthy cita- replete The briefs are light way condi- safety and health authority regulate tion of intended seeks activity in concluding that the State’s mines, view of accommo- with the tions in safety mine was or was not a the mine dating the interests both function, is divergence of view However, re- and workers. operators great, might expected. None of this as and control operations sponsibility for the resemblance authority any case bears close private remains mine facilities over today relationship we consider —the responsibility the direct venture and not of Idaho obligation assumed of the State 61. Brief at State’s of the State.” safety of the man who works in the the surface dark and unknown world below It the con- quite seems to me that clear the earth. regard to cern of the Idaho with State of brief, nothing whatev- the mines of this has decrying in its while State State (by the widows and approach mechanical an is general public. er to do It with the categorize and dis children) which would equally responsibility of the clear that tinguish “operation between that which is place mine owners furnish a safe “planning level” in its al” and that which work, abrogated which to the Work- inspec equate turn would have us the mine civil Compensation men’s insofar as Law building inspec of a tor’s duties with those concerned, way any not in does heavily tor. The relies on the Minne State inspection lessen the duty of mine sota case of Hoffert v. Owatonna Inn out rea- carry State has assumed to Motel, Inc., 220, 199 Towne 293 Minn. legislative son of enactment. well-intended (1972), urging upon us that that N.W.2d building. A mine is It is not a not a court plain held “that in order to recover public place. nothing in this rec- There is tiffs had to show a breach of some ord which the families of intimates that capacities, owed to them in their individual these disaster victims ever had access obligation merely and not a breach of some mine, any right into that of access. Brief general public.” owed to the State’s fact, legislature other than that the created proposition same at 52. For inspector power the mine and author- City Amato v. cites and discusses State state, mines of this it is ity to enter the York, (S.D. F.Supp. of New any greater doubted that he would have Glendale, N.Y.1967), City Ivicevic v. to those than that available to access mines P.2d 240 Ariz.App. public general, ap- which so far as 263, State, Ariz.App. 518 Delarosa v. 21 Tucson, (1974), pears only. 20 invitation City P.2d Duran v. of 582 22, (1973), Hensley ArizApp. 509 P.2d 1059 pro- important It is also to note (Fla.App. 452 County, v. 268 So.2d Seminole at version (current visions of I.C. 47-104 § 1972), Fiduccia v. Hill Construction Summit aimed, pro- all at 44-109) I.C. are not 249, (1970), Co., 262 A.2d 920 N.J.Super. 109 tecting public dangerous 751, 329 38 A.D.2d Westerberg, Evers v. of conditions, purpose insecure but “for the City (1972), Whitney v. 615 N.Y.S.2d employees making said mine safe for York, 275 783 27 A.D.2d N.Y.S.2d New ” Electric (1966), York State Stranger v. New therein . . 169, 268 N.Y.S.2d Corp., A.D.2d & Gas 25 the State Notwithstanding foregoing, Co., (1966), Stubley Realty Allison 214 v. imposed on tells us in its brief that 759 App.Div. 108 N.Y.S. 124 the benefit inspector “existed for mine Falls, Niagara 29 Misc.2d City Reid v. another general” and at (1961), and Lockwood 850 216 N.Y.S.2d are decisions place inspector’s mine Buchanan, 182 18 Misc.2d Village v. “involves Following public safety” its discus “of and his decision 754 N.Y.S.2d that: considera- balancing competing policy declares of these cases State sion tions, interests of accommodating both the regula- through the instrument “It is standards, inspections and workers.” safety operators the mine tions

549 Nothing which I the statutory read in suggests JENKINS,

enactments least Claimant-Appellant, in the M. H. mine inspector was policy judg- to make a balancing ment and perform a act which CORPORATION, AGRI-LINES protection would afford some measure Employer, long miners so as it also accommodated capital. Quite interests of contrary, the policy determination been had made Department Employment, the legislature. That determination was Defendants-Respondents. were miners to be protec- afforded the No. 12404. tion controlled examination inspections so as to insure those miners Court Supreme of Idaho. working safe and practices. conditions Sept. 1979. That determination was that the State do qualified this person upon whom was Denied 1979. Rehearing Nov. specified conferred certain powers and au-

thority obligations concomitant —with those miners who perceived by

legislature be in need thereof. issue only before us whether the

action should have been on mo terminated

tions summary judgment. My vote is

that it should have That is been. not to

say that each might defendant not be enti judgment

tled to a involuntary dismissal

when presented, the evidence has all been done,

but until that has been neither this

Court nor the trial in any position court are

to rule as a matter of law that the ‍‌‌​​​​‌​‌‌‌‌‌​​​‌‌​‌​‌​​‌‌‌‌‌​‌‌‌‌​‌​​‌​​‌​‌‌​​​‍widows children miners deceased

without claim for relief for the losses allegedly by

suffered negli reason of the

gence of the defendants. Brown v. United

States, F.Supp. (E.D.Ark.1974), States,

State of California v. United

F.Supp. (N.D.Cal.1957), Bulloch v. Unit States, F.Supp.

ed (C.D.Utah 1955),

Guy Merritt, F. Atkinson Co. Chapman, Corp., (N.D.Cal.

& F.Supp. Scott

1954). What Justice has Bakes written in concluding

his paragraph appropriate motion State of Idaho as well as motion the United Steelworkers.

Case Details

Case Name: Dunbar v. United Steelworkers of America

Court Name: Idaho Supreme Court

Date Published: Sep 13, 1979

Citation: 602 P.2d 21

Docket Number: 12228 to 12231

Court Abbreviation: Idaho