Jеffrey McCLURE, Plaintiff-Appellant, v. NAMPA HIGHWAY DISTRICT, a Municipal Corporation, Defendant-Respondent.
No. 13105.
Supreme Court of Idaho.
May 7, 1981.
628 P.2d 228
Today is 1981, and we are asked to consider and apply the doctrine of implied reference. In the Court‘s opinion it is considered only to the extent that it is mentioned, and passed upon and rejected by resort to an inapplicable opinion rendered at an early time when the doctrine was practically unknown. Wе are, I fear, out of touch with reality. The transaction entered into in this case was typical of a good many, if not most, transactions taking place on a regular basis. A final agreement was reached over the telephone, and one is not hallucinating to surmise that it ended with one telling the other to send a check and a letter confirming the agreement reached. And it was done, аnd would have stayed done except for a change in ownership, and a new seller reneging on the hope that Idaho case law would allow an escape from an obligation when escape was not generally available elsewhere. The trial court was, of course, as we are not, bound to accept Idaho case law as it was or seemed to be.
Kenneth L. Pedersen of Webb, Burton, Carlson, Pedersen & Paine, Twin Falls, for plaintiff-appellant.
John P. Howard of Quane, Smith, Howard & Hull, Boise, for defendant-respondent.
BISTLINE, Justice.
In August 1977 at 12:30 a. m., when McClure‘s motorcycle went off the road at a
After filing an answer to McClure‘s complaint, the highway district moved for summary judgment of dismissal and McClure moved for summary judgment decreeing that the highway district was negligent per se in having failed to post any warning sign on the curve. At the ensuing hearing the court granted the highway district‘s motion, denied McClure‘s motion,1 and entered judgment of dismissal with prejudice. The court held that the highway district was immune from suit on the basis of the “discretionary function or duty” exception in the Idaho Tort Claims Act,
“EXCEPTIONS TO GOVERNMENTAL LIABILITY.—A governmental еntity and its employees while acting within the course and scope of their employment and without malice or criminal intent shall not be liable for any claim which:
“1. Arises out of any act or omission of аn employee of the governmental entity exercising ordinary care, in reliance upon or the execution or performance of a statutory or regulatory function, whether or not the statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” (Emphasis added.)
Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21 (1979), and Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980), had not then been decided.
Dunbar held that in determining when discretionary immunity would attach to an act of the state, “wherein tort liability would аttach to a private person, a governmental entity engaging in the same conduct will be liable.” 100 Idaho at 546, 602 P.2d at 44. Subsequently, in Gavica, where the claim against the state was premised on its failure to place warning signs on a highway where industrial haze and fog regularly reduced visibility and created a hazard, we held:
“If a private person or business negligently allowed a dangerous condition to exist in a stairway or elevator and thеreby caused injury, we would find the breach of a duty. No less so should we find a breach of a duty on the part of the state or a county which negligently maintained a dangerous condition on a stairway or еlevator of a statehouse, courthouse, or other government operated building. We see no distinction between those situations and the negligent maintenance of a known dangerous condition of a highway, owned, operated and maintained by the State and upon which the public is invited to travel. Thus, unlike Dunbar, the State‘s action in the case at bar has a parallel in the private seсtor, and the State, under the Idaho Tort Claims Act, bears the same duty as does a private landholder. Hence, we hold that the State‘s alleged negligence is not immunized by the ‘discretionary function or duty’ exception to governmental liability found in
I.C. § 6-904(1) .” 101 Idaho at 65-66, 608 P.2d at 868-69.
Gavica is dispositive of the issue before us, and we accordingly reverse and remand for further proceedings.
Costs to appellant.
McFADDEN and DONALDSON, JJ., concur.
The trial court‘s decision dismissing the plaintiff‘s complaint was based on the discretionary function or duty exception in the Idaho Tort Claims Act,
SHEPARD, Justice, concurring in part and dissenting in part.
While I agree that the judgment in the instant matter must be reversed and remanded for further proceedings, I must respectfully dissent from the majority‘s failure to articulate any reasons therefor оr to provide any guidance to the trial court upon remand.
The majority states that the trial court erroneously based its decision on the discretionary function exception to the otherwisе liability of the highway district and notes that the trial court had neither omniscience nor the benefit of this Court‘s opinion in Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21 (1979), or Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980). On that basis alone, this Court summarily reverses and remands “for further proceedings.”
The trial cоurt, however, did not apparently base its ruling solely upon the ground set forth by the majority, but rather clearly stated that its ruling, in part at least, was based “considering the fact the accident in question ocсurred on the 20th day of August, 1977 and how
I do not purport to perceive and it is inappropriate herе to attempt to unravel the legislative intent in that amendatory language to which the trial court made reference. It is my opinion, however, that, at least within the perimeters of the trial court‘s decision, there was a failure to give any attention, consideration or discussion to the real issue in the case. That failure of the trial court is continued here.
The instant case and its record bеlow differs substantially from many situations presented to this Court after the grant of a summary judgment. Here counsel has made and presented a substantial record delineating the factual issues which in most respеcts remain to be resolved by a trier of fact. Plaintiff-appellant contends that the roadway admittedly owned and maintained by the governmental entity was dangerous in one respect, i. e., the existence of a curve in that roadway. The record discloses the opinions of self-acknowledged experts stating conflicting views. Regardless of whether that particular stretch of roadway is “dangerous,” obviously a question is presented as to the applicability of
Thus, in my judgment, the instant case differs substantially from the factual pattern in Gavica. There the design or construction of the highway was not in question, but rather a hazard created by outside parties and forces creating a condition which made travel on the highways dangerous. In Gavica the question was whether the failure to warn of that known, acknowledged and admitted danger was negligence for which the governmental entity should respond in tort liability. Hence, the factual pattern was much more similar to that in Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), wherein there was no necessary danger from the design of the roadway. In the instant case it is the assertion of the plaintiff-appellant that the design and construction of the roadway was dangerous and the governmental entity was further negligent by not adequately warning of the dangerous design.
I beliеve the majority opinion errs in failing to supply any guidance to the trial court upon remand.