Smith v. State

Elwyn Smith, Randy SMITH and Morrie Kelly Smith, Minors, through Smith litem, their ad Guardian Kathleen Pren- tice, Plaintiffs, Idaho,

The STATE of Defendant.

Elwyn Smith, Randy SMITH and Morrie Kelly Smith, through Minors, Smith and litem, ad Guardian Pren- Kathleen tice, Plaintiffs-Appellants, CO.,

DUFFY REED CONSTRUCTION Corporation, Doe, Doe, John Jack Doe, Defendants, and Jane Idaho, Defendant-Respondent. surviving HOPPER,

James W. husband Hopper, individually, Deceased, Stella M. and as Guardian of the Estates of Rachel Hopper Hopper, Jane Estelle Rebecca surviving minor children M. of Stella Deceased, Hopper, Plaintiffs-Appellants, DI- IDAHO BOARD OF HIGHWAY Doyle Symms, RECTORS and C. Ed Flan- Gaffney, dro and Ernest F. the members of Directors, the Idaho De- Board of fendant-Respondent. Murphy,

Maurice MURPHY and hus- Zelda wife, Murphy band and Maurice Murphy, Guardian ad litem for Thomas minor, Plaintiffs-Appellants, HIGHWAYS,

The DEPARTMENT OF a civil department Idaho, Doyle of the State of Symms, Gaffney Ernest F. Flan- C. Ed dro Board of the De- Directors for partment Sessions, Highways, Blaine Doyle Symms, Gaffney Ernest F. and C. Flandro, Individually, Ed Defendants-Re- spondents, Burgess Burgess,

Melrose and Jane Doe hus- wife, band and Defendants. 10285, 10290,

Nos. 10315and 10388.

Supreme Court of Idaho.

Aug. 5, 1970.

Rehearing Aug. o, Denied

:.796

Kramer, Falls, Plankey Meehl, & Twin plaintiffs appellants for in Nos. 10285 and 10290. Greenfield, Boise,

McClenahan & for plaintiffs appellants in No. 10315.

Rayborn, Rayborn, Pike, Twin Webb & Falls, plaintiffs appellants in No. 10388. Tway,

Faber F. for defendants Boise, respondents. previous opinion regarding these cases is here- opinion withdrawn by substituted therefor.

DONALDSON, Justice. wrongful

These cases involve claims for personal injury against death and the State Idaho, alleged negligent acts based on employees De- of the State partment. cases, except In all Case summary 10285, the state No. moved judgment or dismissal in the district sovereign im- basis of the on the state’s munity. case were In each the motions granted by plain- the district court and in- appealed. No. 10285 tiffs have Case parties as Case the same and facts volved originally and was filed No. 10290 Supreme No. Court. In Case filed a motion dismiss and Su- pending still in the original action is preme Cases Court. consolidated Order

10315 were Court, January 1969. No. Case Order of this was consolidated warning said road traveling The facts of each case motorists (cid:127)on June dangerous thereon of the are as follows: conditions then existing. Smith, of Idaho —Nos. et v. State al. Murphy, et al. High- ways —No. claim, causes regard to this two

n (cid:127)actionwere Appeal from the District Court of original initiated: No. District, Falls, Fifth Twin Coun- ly in the District Court commenced Judicial ty. Ward, Honorable Theron W. District, County, District Falls Twin Fifth Judicial Judge. Ward, District Theron Honorable W. original action an and Judge, No. negligence is action recover This a Supreme pursuant Court filed before by a personal injuries suffered for the Idaho Constitut 10 of the to Article § in an auto passenger a minor who was ion.1 High- bridge on State into which skidded a Paul, Idaho. one-half mile west way 25 out an suits accident oc- These arose A.M., at about 8:00 The accident occurred A.M., April on curring 6:20 on 1965. December n approximately of a Highway 30 Elwyn Idaho. Hagerman, (cid:127)mile north the Idaho De- alleges that complaint The road, off the skidded Smith’s automobile bridge a partment Highways maintained n then rolled and turned over, resulting in an created Highway 25 which “on State wife, Smith, his Shirley the death of bridge spanned that unusual hazard Jean n and minor causing his three injuries its warm because water which sewer daughters, in the automo- passengers all build temperature, ice to collect caused bile. immediately surround- up pavement on de- allege the bridge.” Plaintiffs ing the portion that of the Plaintiffs claim gross negligence negligence fendant’s highway their was where vehicle skiddеd remedy toor correct their was failure to relatively (cid:127)of construction new dangerous and their failure condition Duffy Company which Reed Construction icy post adequate of the condi- warnings highway a certain constructed the used bridge. tion of the highway (cid:127)composition which rendered n dangerous unusually slippery when herein) parents (appellants The minor’s allege that the con- wet. Plaintiffs further right suing for medical in their own company struction did not construct of their expenses the treatment incurred for roadway where the accident occurred son, ad Murphy, guardians and as Thomas prac- good engineering .accordance with damages pain, general litem seek tices, bend or turn at since there was a by him. injuries sustained suffering, and point traveling tending cars throw appeal argue Appellants not on do southerly highway in a off the direction right they entitled their own to sue highway. .and on to the shoulder of the right barred acknowledge allege that the construction Plaintiffs since 5-201, limitations, I.C. the statute of §§ (cid:127)company operating pursuant to con- was 5-219. specificatiоns tract of the and directions Hopper v. State of Idaho —No. Idaho, negligent State of was n of the Appeal as the com- from the Court same reasons construction District District, County. pany. negligent Ada In addition the state was Fourth Judicial Durtschi, Ray Judge. warning along District failing signs to erect Honorable J. recommendatory; process tbe na- nor Art. Idaho Constitution. thereon; against shall issue over claims ture they execution “Jurisdiction reported Supreme session shall be to the next state. —The shall original against jurisdiction action.” of the for its to hear claims merely state, shall but decision immunity negligence regard This action arose to the tort occurring Highway accident U. 20-26 State of on S. to be abolished. Bliss, Idaho, July Gooding between * * * “An liability * * * avoids in tort under all circumstances decedent, Hopper, conferred, wife of W. not par- because of the James appellant, facts, and her minor children were ticular but because of the status proceeding westerly position direction in an defendant; a favored tort, automobile U. S. and it 20-26. does not deny the but the was being op- Prossеr, auto struck then resulting liability.” bus L.W. Law easterly Torts, erated in an wrong 1964). direction on the (3d (Emphasis ed. highway. side of the supplied). As result of the collision, appellant died wife The doctrine of sovereign immunity has and the minor injuries. children sustained its roots in the ancient common law which day On the of the accident the Idaho theorized that king wrong.2 can do no Highways But it applying was acknowledged king that the “sealer coat” justice road surface fountain of equity, could eastbound lane of a portion six mile refuse to wrongs redress peti when U. S. 20-26 tioned by between to do Gooding subjects.3 and Bliss. so his complaint The alleges that flagmen had recognized in the It was well thirteenth been stationed at each end project of the century king that was later while the to warn motorists that both east and west- law, directly that subject not bound traffic being was channelled into against though ordinary did not lie writs the westbound lane of highway. Dur- court, morally him in his he was bound ing the July 20, 1967, afternoon of they justice subjects do to his the same flagman stationed at easterly point compelled could to one to do another. of this project left his post. Upon his juris Exchequer In fact of had the Court departure there flagman, was no nor against equitable diction of claims signal device, sign nor point king.4 history Concerning the and effect warn the deceased that the eastbound traf- immunity, sovereign the doctrine of fic was also proceeding in the westbound speaking' Supreme California Court lane. Traynor through in the case Chief Justice District,. Appellants Hospital allege complaint Muskopf Corning in their negligent Cal.Rptr. the defendants 359 P.2d. were the con- Cal.2d struction, say: supervision (1961), had this to and maintenance of portion highway repair under “ * * * common law At the earliest by failing warning to construct erect 'sovereign immunity’ did. the doctrine of signals signs. appellants The allege also produce to- not the harsh results it does negligent the defendants in fail- were day. sub- It a rule that allowed was ing easterly flagman, have the at the began personal stantial relief. It duty end project, remain on warn impetus- prerogative king, gained westbound traffic traffic approaching century metaphysical from con- sixteenth west. cepts, may mis- been basеd on the have

Each maxim, only of the three cases now before this reading of an ancient viz., presents Court question; completely identical rarely effect of de- had the whether or sovereign not the doctrine of in: nying compensation. became How Blackstone, Law, Atkyns, B., Attor Commentaries Pawlett v. The Per p. Ill, ney (1668), Eng.Rep. (1941). Ed. Gavit’s General Dyson Attorney (Ex.1668); Gen Holdsworth, English Law, (1911), History 3. 9 A K.B. 410 at 415. eral (1966) p. Ed. 3d for a and that negligence

the United States the basis rule follows individuals and corporations governments responsible negli- and state did federal for the gent agents employees their torts have answer for has acts of their mysteries legal acting employment, been 'one called the course of their ** 211 at evolution.’ Cal.2d this Court shall evaluate the doctrine reason, 90-91, Cal.Rptr. sovereign immunity light logic, 89 at actions, 457 at our and duties of functions century. The state in this the twentieth majority Nevertheless the rule in the following made Car- statement Justice the .states of the United been States pertinent dozo even more one of absolute 1970: regard to torts committed state. early The case of Mower v. Inhаbitants of wofully misinterpreted judges “If Leicester, precedent (1812), 9 Mass. 247 set day, the mores of their or if mores which has been most state followed ours, day longer their those courts in the United States. As sometimes tie, they ought helpless submis not to case, is the prin- a court will enunciate sion, the hands of successors.”5 ciple law, ‍​​​‌‌‌​‌‌‌​​​​‌‌​​‌​​‌‌‌​‌‌​​‌​‌‌‌​‌‌‌‌‌​​​​‌​​‌‍citing authorities and reasons law, sovereign im- The rule of known as decision, supporting only to find that munity, Supreme adopted the Idaho in time widely prop- the case is cited for early in its statehood. Hollister original osition of law unrelated to the State, 71 P. 541 question presented by the case. Su- reasoning articulating case best behind preme Court of Massachusetts in Judicial of sov- adoption rule Court’s Leicester, supra, Mower Inhabitants State, ereign 30 Ida- immunity is Davis v. reasoning relied on Eng- an earlier ho The Court 163 P. 373 case, Devon, lish The Russel Men of 100 approval the state- quoted that case with Eng.Rep. (K.B.1788), 359 upon “rest ment doctrine did not govern- an unincorporated held that are no means ground narrow there injuries mental unit not was liable for enforced, by obligations which such can be resulting bridge frоm a since it defective obliga- ground no larger but on was better that an individual sus- State, tions therefrom.” Davis v. arise tain an injury public than the should suf- supra, at at However 163 P. 375. fer the collecting inconvenience of monies recognized, recently as this 1967 Court paying injured party. and then them to the It is evident there was no basis law or any of “That Idaho and of State fact for the Massachusett’s court Mower departments, such its subdivisions Leicester, supra, to ap- Inhabitants of Directors, are im- of Board ply Devon, the rule of Russel v. Men liability mune for the torts supra, the town since of Leicester was in- immunity has been employees unless corporated judg- could have satisfied liability insur- waived to the extent of spite ment. distinguishing Yet in of these subr by ance or its obtained State firmly features the rule became entrenched division, standing long is a rule only not in Massachusetts also in the but State, Idaho Idaho. Davis majority jurisdictions. of American Parsons, 373; Idaho P. Brockman, 20; Pigg by expressed P.2d the notion Because 609; Bare v. wrong,” adage, King of can no “The do Highways, 88 Idaho justice, fends and because our sense & Nelson 401 P.2d v. Pickett sovereign immunity runs direct 552.” Gates doctrine of at Company, underlying ly concept Construction contrary to the basic at 784 P.2d 780 of tort the entire field law p. Press, Process, Cardozo, Univ. 1921. Judicial Yale The Nature application principle And first followed when the this 1903 when Court sovereign immunity justice, doctrine of will not result in it is evident that starting gain pop- just applicable. automobile to not doctrine is properly ularity. highway systems both vast Boise, Presbytery In Bell v. intra and con- interstate had not then been 421 P.2d the doctrine (1966), signals, interchanges, structed. Traffic by this charitable was overruled many highway divided other waiting Court for the without engineering begun ap- marvels had not change reasoning find the ex- the law. We pear roadways. Today on American how- pressed ques- pertinent that case to the ever the influence both state and fed- bar, by presented tion case at government permeates aspect eral every injury painful, dis- “Personal is less Health, American ag- transportation, life. costly abling, damage-producing sim- riculture, communication, and education if negligent is inflicted ply because harm directly not regulated by government a charitable than non- institution rather are at supervised least Thus it. Presbytery charitable Bell v. one.” evident that there has been a tremendous Boise, supra, at 421 P.2d at 747. increase in functions and a approval the quoted This then with Court resulting government involvement between following statement: and the individual citizen. Man has landed “ right, yet the moon and not right, ‘It not now asked been apply proposition right for the law law which is un- it ever be nor could just, outmoded, illogical only any forgive any person when association times, measured per- current persons wronging but also other when ” light viewed in Hospital of human affairs in (Mullikin son.’ v. Jewish Louisville, at 932 Ass’n of S.W.2d Boise, [Ky.1961]) Presbytery Bell v. rule, “I think that when a after it has 376, 747, supra, duly been experience, tested has been found to be inconsistent with the sense neg- respect These statements made in justice welfare, or with the social apply ligent acts of charitable institutions there should be less hesitation in frank equal logic negligent force and avowal and full abandonment.”6 acts of the state. This in proper Court perform unquestionable there is an es It is ance judicial of its required function is discrediting the doctrine tablished trend prior examine its precedents. prec When juris sovereign immunity. of Numerous edent is light examined in the of modern immunity by the tort dictions have waived reality and it is evident that the reason statutory comprehensive enactment of precedent longer exists, the abandon recently jurisdictions have schemes.7 Six ment of precedent is not a destruction by .judi concept the outmoded overturned of stare decisis but rather a of fulfillment of cial decision.8 In the first session proper its function. legislation deal Legislature, Fortieth Idaho immunity Stare decisis is not a confining phe sovereign ing subject of with the nomenon but rather principle passed a of seriously urged law. and was was Cardozo, Community The Nature Dist. Kaneland Judicial tor v. Unit p. Process, 152, University 11, Press, 302, 163 N.E.2d 89 Tale No. 18 Ill.2d Indiana, (1959) ; Perkins v. State (1969); Indiana, Ind., 251 N.E.2d 30 Tork, Oklahoma, Oregon, 7. New Nevada. Kittle, 841, Kansas, 203 Kan. v. Carroll Arizona, Highway (1969); Nebraska, v. John Stone Arizona 457 P.2d 21 University Commission, 384, Municipal 93 Ariz. 381 P.2d 107 son v. Oma (1963) ; California, Corning Muskopf ha, v. 169 N.W.2d 286 184 Neb. Hospital District, supra; Illinois, Moli construction and maintenance branch while units. The The executive

both houses.9 highways proprietary function and recognized the vetoing proposed statute persons held so this Court: Eaton v. suf has been affording relief to need for City Weiser, acts 86 P. 541 the tortious 12 Idaho fering injury because Genesee, (1906) City of Carson v. 9 Ida of the state.10 In second session ho (1903); more 74 P. v. Legislature, in Strickfaden Fortieth District, 42 Idaho comprehensive (H.B. act No. Greencreek tort claims ; Lively City (1926) 248 P. 456 v. of Black early in the session 591) introduced foot, major large 91 Idaho P.2d by a passed in the House and act ity. did not However Senate cities incorporated “It seems to us that legislation and it died committee. only legislative villages act continuing awareness This indicates the in a governmental capacity, but also necessity of limit Legislature private capacity, or and that business immunity ing abolishing sovereign or sidewalks repair care streets and including of torts. the field various areas reasonably be the ex- cannot said to dis- legislative governmental ercise of already acted to This Court has cretion, is rather a ministerial but immunity. sovereign limit the doctrine of duty they business to the individuals owe State, Renninger In the case of impliеdly over their invite to travel P.2d the Court refused thoroughfares. is sustained This view sovereign immu follow doctrine of following authorities: Sutton pri nity involving taking cases Snohomish, 24), 39 City (11 Wash. property by vate and where the Am.St.Rep. 847; P. Dillon on recovery by condem owner seeks inverse Municipal Corporations, (4th Ed.) § nation. the recent Con In case Grant 1023; Corporations, Beach on Public Burns, struction Co. Dunsmore, 1209; City of Denver v. abolished 705; 7 Colo. 3 P. Stevens immunity contract doctrine of Muskegon, (111 72), 69 N.W. Mich. of all these indications actions. view City of L.R.A. 777.” Carson unequivocally sov demonstrate Genesee, 255, 74 P. 862 9 Idaho 244 at ereign upon dis is looked at 865 (1903). our state favor all three branches of held have jurisdictions other Futhermore government trend evi noticeable rule. the Idaho in accord with hereby jurisdictions, denced other we occa- a number said on “We sovereign immu hold that the doctrine of the construction sions that nity longer is no defense in actions a valid not a proprietary and ais upon tortious acts of the state based Indus- Montgomery v. function.” subdivisions, political departments, 441, at Commission, 439 190 Okl. trial counties, cities, governmental the оr where also (1942). See P.2d 726 729 124 proprietary as distin unit has acted in a Gar- County Commissioners Board of governmental capacity. guished from a al., 166 et County v. Sims et al. field governmental a unit acts in the Where 298, (1933). P.2d 633 27 Okl. capacity, of tort proprietary same rules the “ * * * streets the maintenance private individ applicable to law which are or a ministerial classed as governmental to sidewalks apply uals will the now 9. House 10. “I lature, ful zens subdivisions claims ; believe responsible Bill for 19S, should be injury Fortieth to persons responsible sense that and its Idaho or political Legis- prop- law- citi- state should be Bill 198. House, erty Governor’s should these entities of is to April Message a receive expect 4, good 1969 realistic to citizen good citizenship, government. re: Veto Speaker compensation * ^[*] n of House If the it

803 not [City “We here with a situa- v. faced proprietary function. Sandlin adopted 257, Legislature tion in has Wilmington, 116 S.E. N.C. 185 of] cited; 733, [City judicial interpretation cases v. established Graham * * Charlotte, repeated 649, 120 re-enactment of a N.C. S.E. statute. 186 of] Bern, 466; comprehensive 191 Nor a [City faced with Willis v. New we of] 507, 286; [City legislative designed v. enactment to cover N.C. 132 Michaux S.E. Rocky Mount, 550, us is N.C. 137 S.E. field. is before a series 193 What of] Rocky statutes, 663; [City sporadic operating Hamilton on each of] Mount, immunity separate governmental N.C. 154 area S.E. [199 844] Greensboro, supra; Speas [City where Defendant its evil felt most. of] say Leg- 807.” Millar v. N.C. S.E. us that because the would have Wilson, 342, 23 Town of 222 N.C. 340 at im- governmental islature has removed 42 at (1942). S.E.2d munity powerless in these areas we are to it read remove others. We imposing We are not however say: meaning only they statutes as what liability all for torts committed the state. shall indicated there areas As Supreme the Nebraska Court said They immunity. be City Omaha, Brown v. 183 Neb. ad- leave to the court it should whether N.W.2d 805 : here to its rule of in other own “Any shaped by ultimately modification areas.” 11 Cal. 55 Cal.2d 211 this court should be limited torts and to Rptr. (1961). 89 at 457 at 461 not be imposing construed as lia- the rule immun- Furthermore any bility governmental body in the ity origin judicial or law common might exercise what ‘minis- be termed modify power this Court has the discretionary terial or nor on functions’ long legislature it so has not acted. legislative the exercise ‍​​​‌‌‌​‌‌‌​​​​‌‌​​‌​​‌‌‌​‌‌​​‌​‌‌‌​‌‌‌‌‌​​​​‌​​‌‍judicial 73-116; Iverson, Idaho I.C. State quasi-legislative quasi-judicial func- White, 310 P.2d Holytz Milwaukee, tions. See agree (1969). We supra.” Wis.2d [17 N.W.2d 618] Supreme Court when the Nebraska 430 at Neb. 805 at N.W.2d said : v. Mu- See also Johnson Legislature and this court “Both the nicipal Omaha, University of 184 Neb. change power to act to the doctrine have 169 N.W.2d 286 Legislature may and it well be recognize We also the broad coexistent This will the ultimate would word. authority to act in this poor seem to reason avoid be and, therefore, field holding we do modify common obligation court’s enlarge negli- the state’s justice requirements law serve gent when acts in- obtained society. ought not to in a modern We coverage pursuant Chapter surance re- upon Legislature sole thrust case, Title 41 of In such a Code. injustice ground on the sponsibility governed by action is 41-3505 I.C. § that, reign it was ‘Thus said any recovery ex- will limited to the IV,’ ground that Henry nor even on tent of a coverage reasonable of insurance. tradi- would constitute change Where the has acted in a limited heresy judicial tionally condemned recognize imposed area we the limitation Omaha, City of legislation.” Brown v. by legislаture. the However the Idaho at 80S 160 N.W.2d 183 Neb. 430 Legislature preempted has not field. the Traynor As case of said the Justice separate three District, analyzing In the Muskopf Hospital v. Corning opinion, supra: involved cases which are pri- negligent for liable construction main- cause of action appears it that each dangerous tenance of their Idaho 738 upon alleged streets.” marily an based realize through negli- the P. 456 at We condition created and Highway performs Depart- Department' the Highway State gent acts of State many functions and in connection of care duties considering standard ment. expeditious Department with efficient and required Highway adminis- of the State system. highway of our tration state opinion that standard is our impose a private indi- Therefore to standard be that strict similar to owed for upon Highways care possessor Department vidual is the owner or who opinion that their tortious in our to an hold would land We therefore acts invitee. be subject unfair. Highway persons for harm caused to law- the De required of The standard care fully purposes using highways for the and partment Highways reasonable Depart- Highway intended when the State proper and duties in view of the extensive dangerous ment creates or maintains a con- High powers granted to Board highway if High- dition on the the State and way duties Directors.11 The relevant way Department: Highway powers of the Idaho Board of 40-120 prescribed by by the Directors are (1) knows of or exercise of rea- I.C. § would sonable care discover such condi- follows: tion, and powers “40-120. Duties highway

(2) in- board. —The board of should realize the condition protest directors, right of subject risk of harm to volves unreasonable for, be vested using provided shall highways, hereinafter those functions, powers and duties with the expect persons using (3) should this act relating to the administration of highway will not or realize the discover power to: shall have danger, and (4) fails reasonable care to to exercise (3) Abandon the maintenance adequately make condition safe or highway it from and remove in- risk warn the condition de- system, action is highway when such volved, and, consent termined the unanimous persons using highway do

(5) board, public in the interest. know have reason to know construct, Locate, design, recon- Cf., 2 Re- condition and attendant risks. struct, alter, extend, repair and maintain statement, Torts, 342, 343, It 343A. § § by highways determined when highway is also districts and noted public in the interest. board to be municipalities liable for have been held the loca- standards for Establish dangerous of roads and thor- conditions reconstruction, tion, construction, design, oughfares years in In the many for Idaho. alteration, extension, mainte- repair and Genesee, supra, case of Carson v. provided that highways, nance of state municipalities this Court held owe to through vil- of state standards public duty keep streets and lages be coordinated and cities shall thoroughfares reasonably condi- safe the street for with the standards in use in the usual modes. tion use travelers villages or systems respective applied This Court later the same stand- cities. highway ard care in the case districts of Strickfaden v. Greencreek

District, final expanded (7) Approve and determine supra, and further municipalities plans, specifications duty estimates “That follоws: 40-112, § I.C. I.O. 40-120. Green, for Litigation, state and cause contracts hurt. Freedom of by highway (1944). state work to be let contract Ill.L.Rev. provided by manner law. public policy “Considerations are not and never have been for determina- Holmes, Expend Legislature tion (12) appropriated funds for alone. construction, Law, The (1881). Especial- and im- Common maintenance ly provement is this highways. rights of the so when the state individual’s put question by governmental ac- (13) regulations Prescribe rules and tivity opin- here. We now of the affecting highways, state and to enforce ion that principle re-examination of the compliance regula- with such and rules governmental immunity from ac- tort tions. duty tion is the of this Court and should be undertaken at this time.” 244 Ark. Furnish, maintain, (17) erect and 1242, 1243, 1239 at at 47 S.W.2d necessary public safety whenever convenience, markers, signs, sig- suitable The sovereign immunity” “rule of not has control, nals guide and other devices existed in Idaho in scope as wide a and warn pedestrians and vehicular traf- repetition with the force that its would fic entering traveling upon or imply. From inception has there been highway system. judicial cоnstant restriction of the rule. Forbid, restrict or limit the erec- out, previously pointed As municipali first tion of signs, unauthorized or billboards ties villages negli were held liable for structures on right-of-way any gent performed acts in the course of their highway, state and remove therefrom and proprietary City functions. Carson v. destroy any signs unauthorized now Genesee, supra; Village Moreton St. hereafter existing thereon. Anthony, 9 P. .75 (19) Close or any restrict use of Weiser, Eaton v. supra. This was highway whenever closing expanded highway further to include dis restricting of use is deemed tricts, Strickfaden Greencreek board necessary to be protection for the District, counties, supra, and Henderson v. public or for protection County, Twin Falls highway section thereof from sovereign restriction damage.” immunity expanded was further to the state Renninger in certain areas the cases The state urges that even if the rule also State, supra, Construction Grant archaic, of sovereign immunity illogical Burns, supra. Co. v. unjust in its effect that the “rule” has long only judiciary’s existed so principal A reason for power change addressing it. difficulties when itsеlf to Su- Arkansas preme question immunity quite answered from argument stem succinctly Pitts, inadequate (or complete Parish lack Ark. treatment (1968): complex S.W.2d 45 and intri- treatment) given this Ideally the subject by legislature. cate “ * * * Although the field of the com- legis- subject should be dealt with mon law is not primarily Legisla- comprehensive legislative lature en- problem, ture’s it is primary concern City of actment. As stated in Brown Court, Accordingly, Court. Omaha, supra: Legislature, extirpate however,

those recognize, rules of that the decision which are must ad- “We mittedly unjust, doctrine judiciary is to the power very field government given tort broad underlies provide pro- protection legislative process against and that the individual

806 dangerous likely effectively applied -i-s' to can moré which cause

cédures be solution, damage comprehensive injury the or must take due and a while- suit- to procedures precautions injury or processes and able to dam- avoid court’s age effectively persons property rightfully to to directed a solution more specific proximity.” Negligence narrowly to facts its 65 more limited C.J.S. litigated p. cases.” 183 Neb. framed (1968). N.W.2d by precautions The taken a a must be made sometime However start person place responsible dangerous for a had since it was this Court somewhere and instrumentality must be with commensurate originally life the doc- which breathed into apprehended the be and be suf dangers to immunity in trine of the State ordinary ficient circumstances to under province to it falls our within' prevent injuries. Midwest accidents snuff it out. Storey, Ind.App. Oil Co. v. . duty the 468 (1962) N.E.2d Furthermore to Turning now the be cases anticipate injury protective to and take Court, question that fore the there is by part the serious action is measured in plaintiffs case, Hopper the No. 10315 the Man danger. ness the Vaillancourt v. and bus collision between vehicle (head-on. Co., A. 353 chester Gas 88 N.H. alleged faiiure to a have because precau where the (1936). Thus burden flagman assigned post), stationed at his slight is tion to be taken defendant have stated a cause of action to valid compared the harm gravity in the heard court. deem district We avoided, unquestionable sought is to be it allege complaint Hoрper to claima duty take ef to has a the defendant relief under criteria enun heretofore prevent to forseeable precautions fective Upon specific examining facts ciated. . injury. case, Hopper appears of the serious consid- A States District United physical to harm death caused were problem ered and reasoned: a similar using highway a law individuals purpose. allegedly ful harm among ‘Chief [in case] factors caused, i., e., highway, a which condition on interest is of the the social value advance,’ Prosser, posted a-flagman the failure to at a seeking have is the actor location, strategic case, govern- or maintained supra, created p.. In.this State, opera- alleged undeniably state .(It engaged ment was very and maintained condi such value. great created tions of social tion.). correspondingly have realized that plaintiffs Should the state a will point the condition risk greater involved unreasonable other factors burden using important of harm to ? outweigh those might gov- risk” has been “Unreasonable defined аs fáilure on Gross consideration. pre- magnitude outweigh simplest risk such part to take ernment’s utility of safety defendant’s conduct. would be cautionary and measures Johnson D.C., States, Thompson, Ga.App. S.E.2d Graci v. United decisive.” risk risk as (5 1969). Unreasonable F.Supp. 947 Cir. (cid:127) prudent reasonable man would of Ida The intention Convery Ramsey, Ill.App. také. end of posted at each flagmen ho to' have It the construction of true commendable. project was indeed work roadway utility is of great-importance and upon the incumbent it was However public, justifica to but this is neither were its directives itself ássure alleged negligence nor for the tion excuse expressed faithfully The state carried out. of the-state. - the seriousness awareness doing danger in the it was inherent work person place, responsible “A for a flag- stationing precaution of

agency, instrumentality, operation taking them determined from the approaching to motorists of the we have men warn complaints that a danger. This in both of these cases great it undertook do to prima alleged against express its accord ad- facie claim has been own and was an state, dangerous appears the it that a gravity of harm which could since mission precautionary condition was created or allowed to re- result if this measure was precaution Highway Department the not taken. When the burden of main relationship is viewed in to the harm heretofore defined. sought by imposing to be avoided ourselves the now address We to defendant, burden on it is evident the High Department contention the falling upon the burden the defendant in ways pursuant to Constitu the Idaho negligible. this case was a small With sought by plaintiffs tion the the relief amount of effort at nominal economic precluded in each is three cases the cost, might prevented the state well have district in court level. This Court consequences tragic negligent of its act. recent case of Construction Co. Grant Regarding the issue of whether or not Burns, supra, brought stated in action an should have against the state for breach of contract anticipated using that an individual legal rights that the and re incurs state highway would not discover or realize the sponsibilities indi similar to those of the danger, from allegation appears it citizen, vidual for and that action virtually there was no manner those for may against breach of the state contract proceeding in a work to zone inform them- court, is brought be in the district selves or flagman to ascertain that no was proper a adjudicating cases tribunal for all posted strategic at a position. We need equity. Art. 20 of law § inquire

not as to whether or not state provides: Idaho Constitution to failed make the condition safe because original “The district court shall have apparent the state did not correct jurisdiction cases, in all both at law condition, nor warn dangerous of its char- equity, jurisdiction appellate and such acter. complaint Hopper, On its face the may conferred law.” No. states a negli- cause of action in Art. the Idaho does 10 of Constitution § gence against Again empha- the state. we having prohibit court from the district express size that opinion we no as to the jurisdiction claims tort determine plaintiffs’ merely merit of allegations but against state. that a valid cause of has been al- actiоn Renninger This in the case of Court leged. State, construing supra, Art. respect State, With to Smith v. Idaho Constitution stated: Nos. (alleged defect con “ * * * roadway struction of curve and surface for to force him [claimant] causing skid) Murphy recommendatory vehicle to relief file a for suit State, (vehicle No. judgment, which skidded on Art. Sec. before Su- icy bridge spanning preme Court, warm sewer water be almost denies relief be- alleged uncertain, cause of the prob- procedure failure of cause such remedy dangerous lematical, dilatory, purely or at situation and based post warnings least existence), right. with sufferance and not on Curtis out attempting Moore, to discuss each of these 133.” Reri- 221 P. individually State, ninger supra, cases applying stand 70 Idaho at ard of care heretofore enumerated to each Const., recommendatory; process

12. Idaho Art. na- § 10. no in the thereon; against “Jurisdiction over claims shall issue ture of execution they Supreme reported state. —The shall have he to the next session shall original jurisdiction against to hear claims its action.” state, merely but its decision shall be grant Supreme meaningless right a Court decided that there without States It is objection constitutional remedy. therefore hold We making court’s choice for itself over- proper tribunal district decision, the de- ruling the whether new rule against adjudication claims of only operate prospectively it shall complained of which clared in tort conduct for apply past also See negligent.13 to transactions. is Annot. at 85 A.L.R. 263 263. govern fu holding This will all consider no occasion to “We have arising after 60 ture causes of on or action the ef- this in time whether division of days the subsequent adjournment to is a sound or un- fects a decision Forty-First Regular First Session of application sound doctrine legislation Legislature Idaho unless the common decisis to stare as known respect is to enacted at that with session unsound, there in- is Sound or law. immunity of sovereign the abolition of the right pro- it of a volved in no denial the cases involved However state. Federal tected Constitution. opinion holdings governed by this are pertains it them and to as has think the Federal We Constitution parties may thеir claims proceed with upon subject. A state voice legislature in the district court. Since the prec- defining the adherence limits of considered the of the question abolition may itself be- edent make choice for immunity last sovereign state’s at both its operation principle of forward tween (Second Regular session Session may It and that of relation backward. Legislature) Idaho and the session Fortieth court, highest say its decisions previous Regular (First held to that Ses overruled, none though law later Legislature) it is sion of the Idaho Fortieth for transactions.” less intermediate aware evident Oil Northern R. Co. Great v. Sunburst injustice the doctrine of sov created Co., 364, at 148. 53 supra, & Ref. S.Ct. de ereign immunity. basing our We are referring the Sunburst A commentator postponing operative cision effect noted: Oil case the fact that since decision also on govern Department Highways and other litigation, Court, instant “That agencies upon mental the doc have relied ju- regarded problem wisely as one immunity quite pos sovereign trine of constitu- than in dicial discretion rather they hardship if sible that will suffer unduе tional and determined to continue law the abolition the doctrine of leaving courts policy immediately. take was to effect independently of constitutional work out Community Molitor Kaneland Unit Dis v. endeavoring exactions, they are now 302, supra. Limiting trict a decision No. ‘the conceptions do their bind- own precedent an established overrules meaning ‘the ing precedent’ force of ” only, prospective application so that it has a process.’ 42 Yale judicial L.J. principles. does not violate constitutional (1933). 782 779 & Great Northern R. Co. v. Sunburst Oil have cases Furthermore numerous other 145, Co., L. Ref. 287 53 U.S. S.Ct. 77 prospective overr concept endorsed the United Ed. 360 case uling.14 Salomon, Attorney Constitution, v. ex rel. General Art. N.M. (1870) ; Jones, 44 Ill. State v. ‍​​​‌‌‌​‌‌‌​​​​‌‌​​‌​​‌‌‌​‌‌​​‌​‌‌‌​‌‌‌‌‌​​​​‌​​‌‍(1940) ; Dubuque, Gelpcke Continental 107 P.2d U.S. Supply Abell, (1864) ; et 95 Mont. Harmon al. Co. L.Ed. 520 (1933) ; Accounts, Con. Hare General 123 Ill. of Public v. Auditor Corp., Purchase 220 Ark. 249 S.W. Ware Davies 13 N.E. Bowles, 2d 321 U.S. house Co. ; People 88 L.Ed. 635 S.Ct. for members held that no claim relief was stated as further find that the We against held the defendants the im- cannot be because of they my munity of It individually the state from liable acts whiсh suit. opinion original personally performed. further that the action filed Coldwater Highway Commission, with this v. State 118 Mont. court also be dismissed. My reaching (1945); Stone reasons this conclusion Highway Commission, supra. following. Arizona This determination is consistent also recently As stead- Witt, cases. Worden v. fastly adhered the rule 404, v. (1895); 39 P. 1114 Youmans any of “That the of Idaho State and Thornton, 10, 31 Idaho 168 P. 1141 departments, such as its subdivisions Smith, Elwyn and Morrie Smith Directors, im Highway Board Minors, Randy Smith, Kelly and Smith liability of their for the torts mune Litem,

through their Guardian Ad Kathleen employees immunity has been unless such Idaho, 10285, The Prentice v. State No. liability extent of insurance waived alleges dismissed ac because cause obtained its subdivision State or tion identical with case No. 10290. Costs ** 137, State, *. 30 Idaho Davis v. defendant. Parsons, 373; P. Idaho State v. Elwyn Smith, Brockman, Randy 787, 20; Smith Morrie Pigg and 80 P.2d v. Smith, Minors, Kelly Smith through 233, 609; and De P.2d and Idaho Bare Litem, 467, their Guardian Ad partment Kathleen Pren- Highways, 88 Idaho Duffy Co., tice v. Reed Particularly applicable Construction P.2d Corporation, Doe, Doe, Idaho De following Bare v. language from John Jack Idaho, 10290, Doe and the No. supra: State of partment Highways, Jane respect reversed with to the dismissal of “ Highways is an Department ‘The complaint against the State of Idaho. Costs department of the administrative appellants. government. In the ab- I.C. 40-411. § Hopper, individually, W. and as James sence of waiver of consent or Guardian of the Estates of Rachel Jane immunity by legislature, neither Hopper and Hopper Rebecca Estelle v. The highway its of- department, nor Idaho Board Directors and agents, subject the state ficers or can Doyle Symms, EdC. Flandro Ernest F. liability. only tort for dam- The Gaffney, the members Board of the Idaho ages imposed upon the be which can Highway Directors, 10315, No. reversed. state, this, is that im- in case as appellants. Costs 14, 1, constitution, posed by art. § Murphy Murphy, Maurice Zelda hus- property taking private incident to ” wife, band Murphy and Maurice public (Spear, J., in for a Gates v. use.’ Guardian Murphy Ad Litem for Thomas Co., Pickett Nelson 91 Idaho & Constr. Highways, de- civil 840, (1967)). partment Idaho, Doyle of the State of opinion McQuade, in In Justice Symms, Gaffney, Ernest F. and C. Flan- Ed State, Petersen v. 87 Idaho dro as the Board of Directors for the De- (1964), stated: partment Sessions, Highways, Blaine Doylе Symms, Gaffney Ernest and C. F. propositions appear to following “The Flandro, Individually. Ed Reversed. Costs recognized by parties to this be well both appellants. appeal: (1) of Idaho cannot consent, express its Hol- without sued SPEAR, McQUADE JJ., concur. State, 9 Idaho 71 P. 541 lister v.

McFADDEN, (dissenting). Chief State, 16 (1903); Thomas & Faris v. Justice (1909); (2) This my opinion It is Idaho 100 P. 761 trial courts correctly be found constitutional appeal consent must cases involved n BIO provisions, statutory Pigg Following adoption v. Brock of the constitution and

man, (1957); P.2d 609 statehood this court in Worden Witt, A authorizing against statute (1895), suit 39 P. 1114 county derogation sovereignty state is in held commissioners construed, strictly individually Pigg damages injuries therefore must be liable in Brockman, reason supra.” Idaho at sustained defective - case, 393 P.2d at under the laws of Idaho. commenting upon the decision of Gorman State, supra, In Petersen v. it was deter- County, supra, Commissioners of Boise provisions mined court stated: given 7-703 has to be sued I.C. consent county “To hold counties or commission- proceedings. condemnation injuries arising ers liable all from de- early 1877, in Gorman v. Com- As country, highways, fective in this would County, 1 Boise missioners of very result two undesirable сonclu- supreme that a the territorial court held sions, abrogation the of- literal —the county for erroneous action was not liable county of (for fice commissioners county of It the board of commissioners. position, sane man with would assume the is stated therein: liability attached), such a the bank- every ruptcy county of Had in state. urged “It is of commis- that board any part there of been intention in duties violation sioners acted of liability impose to such a office, in -'appointing which Davis commissioners, they upon county belonged appellant, and in do- legally to so, by unequivocal would enact- have said wrong ing so was committed Idaho, supreme court of ment. injury. Conceding that their he suffered Boise Gorman v. Commissioners [of erroneous, appellant action and that was County], 655, question 1 Idaho settled the thereby, county wronged still county of of both the .responsible for Coun- cannot be made it. county jurisdic- commissioners invitmn, ties are for certain created tion, and we concur.” with decision They political governmental purposes. or 407, 4 at Idaho at P. 1115. 39 parts machinеry by which but are other conducted, below footnote people are forth in the Set affairs reiterating the rule aijd .they from this court stand in same cases relation they of a constitutional agents áre in the absence obliged .which immunity neither public statutory as the select aid services waiver torts liable for parts, government they of which nor its subdivisions is in accord responsible for their This agents.1 be held can more no. courts government. by majority acts- than * * * the entire can rule followed ” . Idaho, 1 country.2 659." at. Dept. v. Berger (1965) ; Parsons, 1. ex v. 58 Idaho 98 State rel. Walton 390 S.W.2d 246, (1938) ; Nordby Dept 787, Highways, 612 P.2d 353 80 20 v. 143 Colo. P.2d Highways, Dept. Works, 475, ; 143 (1960) 92 P.2d v. 60 Idaho Faber . Public ; Dept. Highways, (1960) ; (1939) 240, P.2d 609 789 Bare v. 353 Wilm Colo. v. William Authority 467, (1965) ; Housing ington Idaho 88 401 P.2d 552 v. ; (Del.1967) son, Pereira v. Gates Pickett and Nelson Constr. 228 782 A.2d Co. , Pigg (1967) ; Dept., 91 Idaho 432 P.2d 178 So.2d 780 Road State 626 Dept., Brockman, ; (Fla.App.1965) Road P.2d Valdez v. State 79 Idaho 314 ; (1957) ; (Fla.App.1966) Strick 609 Strickfaden v. Greencreek 823 189 So.2d Wellons, Ga.App. Highway Dist., 157 42 248 P. 116 Idaho land Dept. ; v. State 456 Clark 76 S.E.2d Labor, Ill.App.2d 365, N.E.2d (1966) ; Montgomery Bracht 2. Bd. Ed. Wallace v. Conservation 143 Comm., Ind.App. County, 280 Ala. N.E.2d 848 197 So.2d Hutchinson, (1967) ; Parker Denton, Roesler v. 239 Ark. [citing of this pronouncement most recent cases].” immunity in the areа of court Constr. found in Grant from suit is he This then court stated P.2d Burns, Co. v. agree principle. To de- with this “We opinion: in that It is stated ny right to sue such a contractual be state cannot have “We held deprive the dam- situation be to would consent, that such sued without its property with- aged contracting party of must implied consent but cannot be process of law. U.S.Const. out due stat- expressly given by constitutional Accordingly, we Amendments 5 .and utory provisions, [citing cases] here, where, has hold that however, legis- pursuant -a recognized, into contract entered “We authorization, the state has con- prohibiting provision our lative constitutional alleged breaches taking property public use un- sented be sued paid and cannot just compensation responsibilities til been waiv- its contractual sovereign im- protection es the of the state from suit invoke at P.2d damaged the munity.” where the state took or condemning property it. without first [citing Idaho at cases].” pointed out been has there Nowhere at 1009. constitutional, which statutory authority, the ac- quoted length This then from Carr the maintenance would аuthorize Coetlosquet, appeal. ex Du 127 Ind. in this rel. tions involved 204, 26 (1891), N.E. 778 and stated the law Throughout history of jurisdictions recognized in ac- areas Idaho,

“Courts other are has court Supreme agencies prop ruling governmental cord which various effect, held, Indiana the torts erly liable for held legislature that where the for mainte agents. has statute their Cities liable City of enter into certain to Eaton v. authorized nance their streets. contracts, 544, upon entering Weiser, into (1906) 12 Idaho 86 P. 541 thereby Anthony, Village such consents to be 9 contract Moreton of St. v. City 532, ; sued if it breaches contract to (1904) 75 P. 262 Carson v. ; damage contracting party 244, Genesee, (1903) of the other 862 9 Idaho 74 P. 148, (1966) ; 92, Comm., 196 Kan. P.2d 410 347 268 N.C. 150 S.E.2d 70 Jones v. Maine State Highway Comm., ; (1966) Davis v. North Carolina State (Me.1968) ; Highway Comm., 405, A.2d 226 238 State to Use of 156 271 N.C. S.E. Watkins v. Rich, 643, ; Heasley (1967) State, 126 Md. 95 A. 956 2d 685 v. 115 (Md.1915) ; Commonwealth, (N.D.1962) ; Smith v. 347 Park N.W.2d West 334 ; 453, (1964) Shopping Center, Masheter, Mass. 198 N.E.2d 420 Inc. v. 6 Ohio Highway Comm., ‍​​​‌‌‌​‌‌‌​​​​‌‌​​‌​​‌‌‌​‌‌​​‌​‌‌‌​‌‌‌‌‌​​​​‌​​‌‍(1966) ; 142, Curtis State 195 v. Miss. Rader 216 N.E.2d St.2d 761 Luttrell v. State (Miss.1967) ; Turnpike Comm., 609, So.2d 497 v. Penn. 407 Pa. , Highway Comm., (Mo. (1962) ; 379 S.W.2d 137 182 Darnall A.2d 199 v. State Coldwater v. State App.1964) ; Highway 59, (1961) ; 79 108 S.D. N.W.2d 201 Comm., 65, State, (Tex. 118 Mont. 162 P.2d 772 Fonseca v. 199 297 S.W.2d v. (1945) ; 865, State, Civ.App.1956) ; Noser, Shear N.W. 117 422 State v. S.W. Hampshire (1929) ; ; (Tex.Civ.App.1967) 223 N.W. 130 New 2d 594 v. Wilson v. Pera, Highway Commissioner, 82, Resources Bd. Water 108 N.H. State 174 Va. (1967) ; (1939) ; 226 A.2d 774 Schuschel v. 4 S.E.2d Elizabeth 746 River N.J.Super. Volpe, Beecher, 84 202 A.2d 218 Tunnel Dist. v. 202 Va. 117 v. New (1964) ; Township Springfield ; S.E.2d 685 State ex rel. Ad Jersey Highway Dept., Sims, 91 N.J. kins v. 130 46 W.Va. S.E.2d Super. 567, (1947) ; Highway 221 A.2d Lucero 81 Price v. State v. New Mexico State Highway Dept., Comm., Wyo. 385, P.2d (1951) ; (1946). N.M. 228 P.2d 945 Atlantic Highway Coast Line R. R. Co. v. State Village Sandpoint Doyle, governmental 11 Idaho immunity is a defense ac- 83 P. Highway districts tions of the court, nature now before negligence liable governmental maintenance unless immunity has roads. Strickfaden v. Greencreek been waived consent evidenced statu- Dist., tory 42 Idaho P. authority, constitutional be- (1926). And cities and counties are provisions liable cause 41-3505, of I.C. § for torts in areas of so-called “propri- my conclusion that the issue now be- etary” Weiser, City nature. Eaton v. fore the legis- court reserved to the one supra; County, Henderson Twin Falls majority opinion, lature for action. 56 Idaho (1935); P.2d contrary express provisions Strick- of Idaho faden Highway Dist., supra; states, Greencreek Const. which Art. § Falls, Lundahl of Idaho 78 Idaho powers government “The of this 338, (1956); Village Gilbert state are into three de- divided distinct Bancroft, 327 P.2d 378 partments, legislative, executive judicial; person or collection and no legislature enacted a re- bill persons charged pow- with the exercise of quiring carry liability all school buses to these properly belonging ers to one of part policy insurance. As a the bill the powers departments any shall exercise contract governmental immunity others, waived properly belonging to either of the S.L.1947, the extent of the Ch. insurance. expressly except as in this constitution 263, p. regarding I.C. See 33-1507 permitted.” directed or similar provisions. entering upon field court in 1955 also this state re- always recognized one previously S.L.1955, 146, which waived enacted Ch. attention legislature. Our served any extent has not constitutional been called first enactment liability insurance. This per- provision expressly directs at the repealed and re-enacted then radically from depart so mits this codification, time of the consolidation holdings, recognized previously uniform this state. insurance laws of revision consent the state’s legislature, that 41-3504, 41- S.L.1961, I.C. Ch. §§ given by con- expressly must “be be sued 3505, and 41-3506. statutory provisions.” or stitutional is, mind, statutory my a I.C. 41-3505 § worthy is this case feature of other One immunity governmental recognition the of of the Abolishing doctrine of comment. section doctrine. That states: majority immunity, as the governmental Idaho, any the state “Immunity of of cer in done, that opinion mean would board, institution or department, agency, eventually re litigants might tain cases subdivision any political other thereof, or Im the state. against judgment a cover Idaho, including munici- of of to how as question presented mediately a is subdi- specially chartered palities or satisfied. be judgment will such a damages, is visions, liability against as this consider opinion fails to majority the li- extent of hereby to the waived majority the problem. While pect of by the state ability insurance carried Presby upon Bell opinion relies cites ** add- (Emphasis *.” of Idaho 745 P.2d Boise, 421 Idaho tery 91 of ed.) support of abolish authority in (1966), as immunity, By of this enactment section governmental ing the of defense of recognize the existence in fact major did between distinction is one there immunity. , governmental defense of in the instant that in case situation re judgment case, any In authority in cases. long line Because of the property from could covered satisfied numerous by the this state as evidenced pres- as such In a case defendant. to the effect this court opinions from

813 one, however, legislative ap ent a Shepard, J., without which concurs. I adhere funds, in propriation judgment expressed such a views in that dissent and file favor of the he satisfied. this claimant could not further dissent opinion 10; Idaho Art. See Const. Art. majority peti- § modified on denial of the Par also ex rel. rehearing. See Walton tion for sons, (1938); 58 20 Idaho opinion The majority states: Dist. Community Unit Molitor v. Kaneland “ * * * hereby we hold that the doc- (1959), No. N.E.2d Ill.2d sovereign immunity trine longer is no Davis, dissenting opinion J., 163 N.E. upon a valid defense in based actions 2d tortious acts state writ There been numerous articles subdivisions, departments, political coun- attacking ten the doctrine the foundation of cities, ties or where the sovereign immunity.3 In individual in proprietary unit has acted dis- may be recognized injustice case it is capacity. tinguished from a governmental re done where a claimant barred * * * mainten- The construction and doctrine, com covery because suсh a highways proprietary func- ance is a parisons, effectively great which reflect tion and this has been held so Court: injustice, may be made claimant between a [citations omitted.].” department or branch suing state statement, support majority In of that government and the situation upon following relies Eaton v. cases: might defendant an individual have been City Weiser, 86 P. entity. this doc corporate Nonetheless Genesee, 9 Idaho Carson v. part of the trine of has been a (1903); 74 P. Strickfaden many law this state for decades. In Highway Dist., Greencreek 42 Idaho analysis, people this state have final óf ; Lively City of Black- P. 456 only part accepted responsibility foot, It P.2d others, generally injury to then and even highway dis- recognized that cities and gov through legislative waiving action tricts and maintenance construction immunity in those instances ernmental capac- highways proprietary in a do act provided. Un where insurance ity. However, it does follow rep legislature, til as the such time as in construction and main- residents resentatives of electors and capacity. tenance of acts state, govern expand this waiver Wright, County Ada immunity, adhere mental this court stated: (1939), legislature, to the doctrine. It is for the maintenance building “Moreover court, change not for the to make this is by the state highways the roads and policy. govern- sovereign one of the duties of * * * foregoing ment : SHEPARD, in the J., concurs dissenting opinion, specifica- next passing to the Before dissenting McFADDEN, Justice, Chief is a there vast tion, again observe we rehearing. for petition on denial status legal difference between hand, and pre- one highways has been on rehearing for state petition A streets and highways, majority of county and district The in this case. sented villages. and previously alleys cities opinion and has withdrawn foundations dissent, at the necessity roads lies for my filed and to which I issued Against Shumate, Responsibility Claims “Tort Boreliard, “Governmental Contemp. Governments,” Prob. ; & (1924) Law Tort,” Casner Yale L.J. for Liability Maguire, ; Liability “State “Municipal Fuller, in & Tort Tort,” Harv.L.Rev. for Operation,” 54 Harv.L.Rev. government. (29 C.J., p. ployees performed discharge note while civil government representative governmental duty?

8(d).) mandatory, In a of a franchise people [emphasis supplied.] exercise the elective voting places; they and must reach the state, “It in the is settled law this county they seat of must reach the express (as in absence of statute as government discharge duties their Idaho) effect, to that is the State transact coun- jurors taxpayers, and and negligent damages for for acts of liable business; must have ty and they employees performed in its officers and purposes their markets for mail and reach mandatory govern- a discharge sale; they must also purchase and duty, (citations).” Idaho at mental may they travel roads over which at 92 P.2d theAll government. the seat state Villages & of Eden Hazleton v. daily require thor- major life activities of Directors, Bd. of travel, they like- oughfares and (1961), this court stated 367 P.2d 294 peace necessary officers wise for use Highways p. is. “In 40 pri- peace public and maintaining the C.J.S. rule, supported enunciated the well safety The United vate of the citizens. construction, authority, mainten- that the public government recognizes States highways ance, repair public and duty declaring certаin governmental belongs governmental function which military high- post roads as roads and to, by, primarily may and be exercised ways of mails for the movement legislature, and the state state public troops and the dissemination of performance such work duty of intelligence. [60 omitted.] [citations imposed upon a may be or conferred 406-407, Idaho at P.2d at 139-140.] v officer, designated body, agency, or * * * * * highway department, commis- a state “ * * * acquiring building sion, commissioner, director, a state highly public roads and aof department public 83 Idaho- works.” nature when conducted at capacity the state in its opinion majority holding * that con- * *.” 60 Idaho 92 P.2d at 141. highway is struction and maintenance aof Works, In Nordby v. of Public “proprietary function” ignoring plain- (1939), state, sovereign capacity over- sought damages against department tiff role of looks distinction between the public grow- loss of works for cured city, compared highway district, originated ing grass caused fire relationship to the role of the to- state right way department highways. public works Lewiston Hill. This court upheld complaint, stating: a demurrer to the Again repeat that dis- judgments I missal affirmed. question: Is presents

“The record alleged damages liable in SHEPARD, ‍​​​‌‌‌​‌‌‌​​​​‌‌​​‌​​‌‌‌​‌‌​​‌​‌‌‌​‌‌‌‌‌​​​​‌​​‌‍negligent em- J., acts of officers and concurs.

Case Details

Case Name: Smith v. State

Court Name: Idaho Supreme Court

Date Published: Aug 5, 1970

Citation: 473 P.2d 937

Docket Number: 10285, 10290, 10315 and 10388

Court Abbreviation: Idaho