Sterling v. Bloom

STERLING, Plaintiff-Appellant, Maud BLOOM; Martin;

Fred Dale E. William Shrum, Lounge; dba

Elbert Seven Mile Entities;

XYZ and Richard L. Business N.J.L.,

Lash, Defendants, dba Idaho, Corrections, Board

State of

Defendant-Respondent. 15875.

No.

Supreme Court of Idaho.

May Rehearing

Petition for Denied 29,1986.

Aug. Smith, Hull,

Quane, Boise, Howard & rеspondent; McCurdy William appeared; A. argued. N. John Crawford BISTLINE, Justice.

I. compelling This on case calls us in fash- provisions ion re-examine certain seq. Act, et Idaho Tort Claims I.C. A review facts illustrates the case’s compelling nature.

The district court decided this case on a pleadings. judgment motion for on the On judgment the pleadings a motion for on 12(c), moving par- pursuant I.R.C.P. allegations oppos- ty admits all the ing party’s pleadings concomitantly ad- allegations own mits untruth its See, e.g., adversary denied. Burke, 464, 473, Davenport (1915). Sterling’s allega- P. tions, by the deemed admitted State motion, Idaho’s are as summarized: 30, 1982, oper- On an automobile June Bloom turned into ated defendant appel- motorcycle operated by struck the Sterling. At time of the accident lant .23 alcohol content was Bloom’s blood weight. percent by Sterling caused extensive collision (1) including physical, severe injuries, including injuries emotional mental and trauma, (2) continuing massive brain an- emotional physical pain, mental and disability injury guish, permanent memory, loss of certain including loss of functions, hu- disfigurement, and brain amounting miliation, (3) expenses medical $50,000, (4) medical future to at least yet deter- expenses in amounts be $30,000, mined, wages (5) of at least lost yet to wages in amounts lost future damage determined, (7) property helmet, clothing in motorcycle, her $300. of at least the amount collision, year prior Less than charge felony pled guilty to Bloom had vehicle while under operating a motor liquor intoxicating in vio- Boise, the influence Manweiler, Cameron, Bevis & convic- 49-1102. For this of I.C. lation argued. appellant; Mark H. Manweiler tion, driving sonably his third for influ- under the and prudently under the circum- ence, 21, 1981, on October was despite having knowledge Bloom stances five-year sentenced to serve a Ex- term. Bloom had been convicted least on two suspended, ecution of was sentence prior operating occasions of a motor ve- years pro- Bloom placed five hicle while the influence of intoxi- placed legal bation. was Bloom under cating beverages posed and hence a custody and control of the Director of great safety public threat to the of the Probation Parole of and the State of Ida- adequately supervised. unless special ho Board of A con- Corrections. and foregoing negli- Each all of those probation dition of was that for the first gent acts and of omissions the Board year probation of that not to Bloom was proximate were causes of the collision employ- drive a vehicle except motor for plaintiff Sterling’s and damages. Maude ment purposes. court, The granting district the State day On of sentencing, the same Bloom of judgment Idaho’s motion for on the Agreement executed a written Proba- of applied pleadings, holdings of Dunbar tion Board. agreement with the This America, v. United Steelworkers 100 provided, among things, other 523, 21, (1979), cert. denied Idaho 602 P.2d “respect obey Bloom all would and 983, 100 2963, S.Ct. 64 L.Ed.2d 839 laws,” report monthly to on basis Co., (1980), Supply Chandler Inc. v. officer, probation pur- and would not Boise, City 480, 104 Idaho 660 P.2d 1323 operate chase motor without vehicle (1983), and held the Board immune from permission written from the liability Idaho Claims Act on Tort Department. Probation T. Ronald (1) the bases that sector Board, Housely, employee an of the be- “parallel there is to that function” supervisor. came Bloom’s Board; (2) were, even if there Board, including The but not limited to engaged Board employee Housely, its negligently acted function. We will each of review these supervision of Bloom in at least the holdings setting in turn after first following particulars: (1) allowing Bloom stage. to drive a motor vehicle nonem-

ployment purposes, contrary to the order II. (2) probation; allowing oper- Bloom to A. Standards Construction and Re- required ate a motor vehicle without the view. permission, written contrary to the legislature’s adoption Idaho agreement probation, (3) allowing Act), (Idaho Idaho Tort Claims Act operate Bloom to an motor uninsured 1-31, 743, 150, p. Idaho ch. Sess.Laws §§ vehicle in violation of con- I.C. § patterned largely has been observed to be trary agreement (4) probation, (Federal on the Federal Tort Claims Act allowing to Bloom reside in same Act), 1346(b), (1976 U.S.C. 2671-2680 §§ building which housed the Mile Seven 1981). Dunbar, Supp. & V. 100 Idaho at Lounge, work and to there as a bartend- 530, 602 P.2d at 28. “A which is er, statute (5) failing require report to Bloom to adopted jurisdiction from another will be regular supervising basis to his presumed adopted prior to be with the con- probation contrary agreement officer placed upon struction the courts of probation, failing to otherwise Tribes, Nixon v. jurisdiction.” activities; such other supervise (6) failing his to ini- 198, 200, P.2d pro- Idaho proceedings tiate to revoke Bloom’s Zaring, quoted Odenwalt despite bation fact that Bloom had (1981); 383, 387 Idaho 624 P.2d see comply failed and/or refused to Durtschi, also Doe probation agreement order of and the 472 n. (1986); 1244 n. prior on numerous occasions Dunbar, (7) collision; failing rea- 100 Idaho at to act Consequently, particu- exceptions we liability. look with That pre-1971 interest law in lar federal case following found in the sections of the Idaho legislature’s pursuit our intent. and Federal Acts: Exceptions govern- I.C. 6-904. provides: Tort Claims Act liability. governmental entity mental Liability of en- —A 6-903. employees acting and its while within employees. (a) Ex- tities —Defense of — scope employment course and of their act, cept provided in this otherwise and without malice or criminal intent every governmental entity subject shall be liable claim which: arising money damages out wrongful of its otherwise any act Arises out of or omission employ- acts omissions those of its employee governmental entity acting scope of ees within the course and care, exercising ordinary in reliance duties, whether or employment their performance a or the execution or of pro- or arising governmental a out function, statutory regulatory or wheth- of govern- prietary function, where the regulation er or not statute or private person a or entity mental valid, upon per- or if or based exercise money entity be liable dam- would for or formance the failure to exercise or Ida- ages under the laws the state of discretionary duty perform a function or ho, governmental enti- provided that the part governmental entity or of a subject pro ty thereof, employee whether or not damages share total awarded rata discretion be abused. is attributa- in favor of a claimant which provisions this The 28 U.S.C. 2680 wrong- negligent or otherwise ble 1346(b) title chapter of this and section governmental ful acts or omissions apply to— shall (Emphasis add- entity employees. or its (a) upon or Any based an act claim ed.) Govern- employee of an omission Federal Tort provisions The similar care, ment, execu- exercising due (the jurisdictional in na- Act first Claims regulation, whether of a or tion statute ture) pertinent part are: regulation be val- or or not such statute (b) Subject to 28 1346 ... U.S.C. § per- id, or or exercise based title, the chapter 171 of this provisions of or failure to exercise formance or the courts, shall exclusive district ... have or perform on claims jurisdiction of civil actions agency or part of a federal on the States, money the United Government, whether employee of the January damages, accruing on and after abused. involved be the discretion 1945, 1, property, loss injury or provide acts is to purpose of both by the death personal injury or caused suffering inju- relief to those “much-needed wrongful omission act or government em- negligence of ry from the while of the Government any employee Muniz, 374 States v. ployees.” United acting scope his office within 1859, 1850, 10 150, 165, S.Ct. 83 U.S. circumstances employment, is to be Idaho’s act 805 L.Ed.2d States, private where the United if “ view to “liberally” and ‘with construed liable to the claimant person, would be purposes, aims accomplishing [its] place with the law the in accordance Farber attaining justice----’” substantial or omission occurred. where the act 685, State, 398, 402, P.2d 102 630 v. Idaho added.) (Emphasis Price, 68 Keenan v. quoting 689 States United 28 2674 U.S.C. § (1948); 662, 438, 423, 670 195 Idaho manner in the same shall be liable ... 18; Const., 1, I.C. art. also see indi- private extent as the same circumstances____ 73-102(1). vidual under like the Idaho purposes, such Consistent provisions case the above This involves certain rule with liability the makes Act “discretionary function” and the so-called

215 specific exceptions. Durtschi, Sterling’s claim, supra, “parallel because no 471, 1243; Richards v. 716 P.2d at Idaho at function” to that of a officer States, 1, 6, 585, United 369 U.S. S.Ct. R., 2, pp. existed sector. Vol. 589, (1962); City v. Jackson 7 L.Ed.2d 492 117-18; (“Thus id. at 118 the Court holds 278, City, 235 Kan. Kansas 680 P.2d parallel that the functions test has not been 877, (1984); Highway Jones v. State met in the case at bar since there is no Comm’n, 557 S.W.2d 225, (Mo.1977); private prison parole system in Madera, 685, County Ramos 4 Cal.3d state.”). implied exception This first sur (Cal.1971). Cal.Rptr. Dunbar, supra. Dun Although faced justification “There is no for this Court to bar and two succeeding appeared cases exemptions beyond read into the Act those find such an within the confines legislature].” Rayonier, provided by [the “discretionary of the so-called function” ex States, 315, 320, 77 Inc. v. United 352 U.S. Act, 6-904(1),1 ception to the Idaho I.C. § (1957), quoted 374, 377, S.Ct. L.Ed.2d 354 Court, Chan argues the Board and this Muniz, supra, 374 U.S. at 83 S.Ct. dler, supra, 104 Idaho at 660 P.2d at exceptions ex- at 1859. Those which are 1325, has held that the actual source for pressly closely must be construed. stated 6-903(a), implied exception is I.C. § Kosak United requote which we for the sake of conve n. S.Ct. 79 L.Ed.2d 860 nience: (“We proper objective think that of a Liability entities— attempting court to construe one of the employees. (a) Except as Defense of [exceptions of 28 2680 subsections U.S.C. — § act, provided gov- every otherwise in this identify the Federal ‘those to is to Act] entity subject for ernmental circumstances which are within the words money damages arising negli- out of its exception’ and reason of the less and —no gent wrongful acts or omis- [Quoting Dalehite v. United or otherwise no more. States, 15, 31, 956, 965, employees acting 346 73 97 of its U.S. S.Ct. sions and those (1953).] L.Ed. 1427 scope of their em- within the course [Citations omitted.]” duties, arising whether out ployment or B. The “Parallel Function” Test. proprietary or func- tion, governmental entity where the The district court held that the if private person entity or would be charge of Bloom immune officer 228, 197, 198-99, (1981); discretionary. purported P.2d 229-30 Gavi 1. Dunbar to review the 628 58, 65, 861, Hansen, Dunbar, exception 101 Idaho function to the Idaho ca v. Act. 529-30, (1980). supra, 868 100 Idaho at 602 P.2d at 27-28. proceeded Dunbar to review various cases as explained part opinion, next of this As in the although exception, serted to deal with this eral, sev discretionary nothing function there is exception in the including Towing Indian Co. v. United way any rational can be said that 123-25, States, 61, 63-65, 122, 350 U.S. 76 S.Ct. parallel function test. The term to create such a (1955), Rayonier, supra, did 100 L.Ed. 48 uniquely gov- way implicates in no "discretion" discretionary not deal with the function found parallel pri- in the functions without ernmental 2680(a), actually addition, in U.S.C. but dealt with 28 § 28 6-904(1). In § sector. See I.C. vate prior Dunbar, 1346(b) supra, 100 U.S.C. and 2674. §§ Court the United States 532, Idaho at 602 P.2d at 30. While Dunbar argument rejected based on the had such an 6-903(a) reaching its hold § cited to I.C. before discretionary exception. Federal Act’s function language,” point ing Airlines, Co., based on "such it at that Trust Eastern Inc. v. Union language 62, had to a returned discussion per nom. United F.2d curiam sub aff'd 907, discretionary exception. Co., Id. at function U.S. 76 S.Ct. States v. Union Trust (refers 192, cases explained 602 P.2d at 43-44 back to in United 100 L.Ed. 796 Airlines, 797, interpreting language” Varig “such of the discretion 467 U.S. 104 S.Ct. States v. 2755, 2764, (1984). ary exception, including Dalehite v. function L.Ed.2d 660 correctly S.Ct. 97 L.Ed. that the United Court has concluded This decisions, (1953)). excep- subsequent only implied this for this In two conceivable source Co., 6-903(a). Supply Chandler Court cited the function tion is I.C. 480, 482-83, Boise, City "parallel 104 Idaho as the source for the functions” test. Inc. v. Dist., Nampa Highway 1325-26 McClure money damages liable Here we are faced with claims Idaho, provided that laws state government govern- related to the governmental entity subject lia- mental of governing. function are There only pro bility rata share of parallel private functions in the sec- damages total awarded in favor of a Dunbar, tor. 100 Idaho at neg- claimant which attributable P.2d at ligent wrongful or or otherwise acts As one has pointed commentator governmental entity omissions of the out, 6-903(a) this construction of I.C. cre added.) employees. (Emphasis parallel requirement ated a where However, opinion from this Court has plain language none exists in the attempted parallel explain ever how the Hall, A. Immunity statute. Sovereign language function test is derived from the Re-emergence the Govemmen Chandler, supra, subsection. See tal/Proprietary A Distinction: Setback (states 104 Idaho at 660 P.2d at 1325 Law, in Idaho’s Liability Governmental application test “was an (foot 20 Idaho L.Rev. 231-32 6-903(a) sovereign 1.C. waives im omitted). says nothing person for misconduct great persuasiveness, would be liable the pra. force and With alleged regardless Sterling earnestly urges against government, that the counsel for private this Court now conduct a considered exami the individuals ordinari of whether any support if nation and ascertain there is role underlying same function or ly fill the “parallel test.3 basis for the function” able government, govern so will be respond supplication. that We words, if a action ment. other cause of individual, against private it will lie a would parallel function test of Dunbar was against government. A also lie stated as follows: lan application of the straightforward a [Wjherein liability attach to tort would 6-903(a) instant facts guage to the of § governmental entity en- private person, a government be as follows: would gaging in conduct will be liable. the same person private potentially “if a liable a to create We do not ascertain an intent damages money entity liable for would be govern- new cause of action for of the state of Idaho” under the laws gov- entity attempts for mental ern____ person supervision of a third danger known to be or should be who is [Regulatory] functions ... foreseeably ous, results negligence traditionally been seen government have in harm to the proximately causes in and judi- from invasion as sacrosanct 6-903(a). I.C. jured party. cial branch. ing probationer sector, private do in exist 214, II.A., p. supra Quoted in Part 2. parent supervising in the functions of a a child p. 758. supervising patient. and a mental institution holding today Because our we need not reach argued parallel Sterling that also Counsel 3. arguments. these supervis- probation officer to that of functions 64, 124, cited with straightforward the more U.S. at 76 S.Ct. at Not is this approval in Chief Justice Donaldson’s dis- application application, it is the made Chandler, 488, supra, sent in 104 Idaho at language in the Federal Act similar 660 P.2d at 1331. beginning in States United place continuing up on Clearly, there is no difference between time. Prior present proposed exception liability had held that the Federal Supreme Court “uniquely governmental functions” and the subject government to lia- did not Act Dunbar exception posed “govern- bility “arising governmental from acts of a governing” to which mental functions of Dalehite, supra, nature or function.” parallel functions in the are not “[t]here 28, at 964. The Court U.S. at S.Ct. Dunbar, supra, 100 Ida- private sector.” language of 28 U.S.C. there read the The Dunbar ho at 602 P.2d at limiting liability to “the same man- Dalehite) (as required holding lower 2674— private extent as a ner and to the same underlying examine the function courts to like circumstances” —to individual performed by or role analogous parallel function require an alleged agency employee involved in the public private sectors. between If was suffi- misconduct. Dalehite, supra, distinguish 346 U.S. at S.Ct. ciently “governmental” sector, language Relying private found then at 972. from those found liability, regardless of Feres v. United there could be no (1950) (involved private person entity would whether “a 95 L.Ed. 152 S.Ct. 6-903(a). be liable.” I.C. military personnel suing government), concluded that because the fire- the Court Court, per Towing Indian Justice fighting Guard had activities Coast Frankfurter, “uniquely gov- rejected the sector, parallel it followed exception: function” ernmental government immune from was statute as if it The Government reads the alleged negligence in fire- claims based on imposed liability to the same extent Dalehite, supra, 346 U.S. at fighting. imposed private individual on a would at 972. 73 S.Ct. “under the same circumstances.” But language is like cir- statutory “under However, this rationale of Dalehite cumstances,” it is hornbook tort law subsequent cases. specifically overruled who undertakes warn that one Towing, In Indian re- danger thereby induces public of operation lighthouse of a conceded that its “good his Samari- perform must liance function, but ar- was not a Id. in a careful manner. tan” task gued language “imposing 64-65, 124 at at 76 S.Ct. U.S. ex- ‘in the same manner and to the same added). like cir- private tent as a individual under ’ * * * private read as exclud- individuals cumstances must be not whether It matters of activities function of the Coast ing liability performance ordinarily fill this interpreta perform. High persons do not the Court’s private Guard. Under statute, is wheth argue] what matters Thus, government continued to tion of this [the be liable he private individual would liability for er a there would be no if carry the function and perform governmental or she did performance ‘uniquely ” Dunbar’s hold- supra, 351 act of misconduct.4 Towing, out the Indian functions.’ lends itself more guаge § 28 U.S.C. 2674 Towing primarily U.S.C. on 28 Indian focused 4. 2674, though "uniquely governmental readily function” in form to a which differs somewhat § language pertinent governmental in exception, not in substance from the its reference to with IIA). 6-903(a) (see part quotations supra private I.C. liability as under “like circumstances” potential government's Nevertheless, define the Towing Both statutes and Indian individuals. liability private as that which individuals for such subsequent there to be no cases found Accordingly, presumption that the bear. exception. Supreme legislature adopted Court’s con- anything, pertains. the lan- still If struction 218

ing found Dalehite holding, conflicted with “necessar- was also misunderstood which federal statutes Towing.” Indian ily rejected by 352 U.S. (and inferentially statutes) which Idaho 319, (holding govern- at 377 that 77 S.Ct. holding involved. potentially for ment liable Forest Service’s approv- cited with negligent fire-fighting), premised Dunbar misconcep was Chandler, supra, 487, al in Towing that Indian 104 Idaho at involved tion the “dis Dunbar, (Donaldson, C.J., cretionary exception. at 1330 dissent- function” P.2d 532, supra, Towing, Indian ing). Idaho at at 30 with As it dealt Towing, Indian (Quotes language Rayonier Dunbar saw dealing as describing finespun “distinctions so and ca “discretionary exception, function” when it incapable pricious being as be almost actually utilizing language of 28 mind adequate held in the for formulation” Dunbar, 1346(b) su- U.S.C. 2674. §§ referring supposed discretionary as 532, pra, 100 Idaho at 30. 602 P.2d at exception, in reality function whereas that Muniz, supra, Finally, the Court found language actually proposed referred to the pertinent language no bar to a claim governmental” “uniquely excep function government the federal in its ca- Towing, Indian tion. See 350 U.S. prisons pacity administrator —a Dunbar 68, 126.). 76 S.Ct. at failed capacity surely constituting a traditional Towing’s Indian express recognize rejec par- governmental ready function without very Dunbar tion of construction U.S. at allel in the sector. Towing, however, Indian employed. full 153-54, 83 at 1853. Post-Indian Tow- S.Ct. comprehended language well here in accord. lower federal courts are created concerned States, 234 F.2d E.g., Fair v. United same causes action pri for which (5th Cir.1956); see cited in cases liable. See persons held vate would be supp. note note U.S.C.A. Discretionary generally O. Reynolds, 240, 256-57, The confu- 36 A.L.R.Fed. 280. Exception the Federal Tort Function Dunbar resulted perceived by from its sion Act, Georgetown L.J. Claims 99-100 own confusion over which section Supreme was ad- Federal Act the Subsequent repeatedly reaffirmed cases Rayoni- Towing Indian dressing Supreme rejection Court’s noted, presume er. As must previously we governmental parallel “uniquely func- legislature adopted the Su- the 1971 Hatahley Id. at 102-03. test. tion” pertinent preme construction of the Court’s States, United 351 U.S. 76 S.Ct. implied thereby language, rejected 100 L.Ed. 1065 the Court parallel/uniquely language to pertinent make read exception. illegal government potentially liable have Post-1971 Court decisions agents enforcing range of its federal acts reading of 28 U.S.C. continued this because, laws, “[ujnder the law Utah In- Varig, supra, explained reaffirmed persons employer is liable to third Rayonier. Towing 104 S.Ct. at dian employees if the acts are willful torts his Lockheed 10. In 2765 n. employer’s furtherance of Aircraft committed 190, 198, Corp. v. United if force could have interests or the use of 1033, 1038, 74 L.Ed.2d 911 103 S.Ct. contemplated employment.” In in the been absolutely that made clear the Court Rayonier, left doubt the Court causes of language referred to pertinent “uniquely governmental” function that omission place where act or Towing law Perhaps importantly, the Indian more 1346(b), Towing nor in in Indian § before U.S.C. occurred." Neither Court had it 28 Supreme language nearly 6- Court identical I.C. has subsequent contains decision 903(a) making government liable governmental" “parallel" "where "uniquely found a States, person, private be if a would language. United lurking in this function to the in accordance with liable claimant ereign immunity. The Federal Tort action, role or to the ground Act cuts the from under function: Claims doctrine; self-defeating by it is not permits an Act The Federal Tort Claims embedding indemnity against covertly the casuistries action the United Indian liability and to the municipal “in the same manner torts. States would lie same extent” that the action Towing, supra, 350 U.S. at 76 S.Ct. like private individual under added; “a omit- (emphasis at 124 footnotes 2674; see 28 U.S.C. circumstances.” ted). Corp Engineering Aero v. Unit- Stencel Rayonier rеiterated this criti- States, 431 U.S. 666, 669-670, ed 97 S.Ct. cism: 2054, 2056-2057, 52 L.Ed.2d 665 government] argues that the Act [The Co., v. Yellow Cab United States (citing only imposes liability on United 71 S.Ct. 95 L.Ed. 523 340 U.S. gov States under circumstances where (1951)). added.) (Emphasis traditionally bodies have ernmental government capacity which the responsible been misconduct of functioning in Lockheed was none other the com employees their and that neither quintessen- military capacity than the —the Washington im mon law nor the law capaci- “uniquely governmental” all tial of liability municipal or other local poses ties. Lockheed leaves no doubt as to the negligence of their governments for the courts. of this “test” in the federal status “uniquely govern agents acting legislature evidence that the Affirmative public capacity mental” fireman. re- Supreme to follow the Court’s intended Tow Indian recently But as we held parallel test surfaces jection of the States, Co. United 350 U.S. the federal upon further examination of the test estab L.Ed. S.Ct. [100 48] language and the of I.C. 6- case law Tort Claims Act for deter lished Towing Indian 903(a). branded liability mining the United States’ agency’s argument for a private person would be re whether a excep- “uniquely governmental function” negligence under sponsible similar attempt as an to return to the “non- tion the acts of the State where the laws proprie- governmental governmental” or — expressly decided in Indi occurred. We old tary governmental distinction of the — Touring States’ liabili an United municipal corporations: law of liability of a ty is not restricted Government in effect reads the [T]he public municipal corporation or other liability in same imposing statute as injured party cannot body and that an municipal corpora- if it were a manner as under the Act deprived rights his per- tion and not as if it were a distinction, im alleged by resort to an push the courts son, and would thus municipal cor law ported “non-governmental” “govern- into the — the Government’s porations, between quagmire long mental” “proprie it acts in a negligence when municipal corpora- plagued the law of when negligence tary” capacity and study the cases comparative A tions. “uniquely governmental” it acts in forty-eight States will disclose capacity. 352 U.S. at 318-19 S.Ct. at [77 that, conflict. More than irreconcilable added) (footnotes omit 376] are the States the decisions in each of Fish Co. ted); also Mid-Central see the inev- and disclose disharmonious (W.D.Mo. States, F.Supp. United try apply chaos when courts itable Mfg. Co. nom. National 1953), sub aff'd inherently law that is unsound. rule of (8th Cir. 210 F.2d v. United theory of the matter is that The fact 1954) S.Ct. cert. denied [74 amena- municipalities are made whereby L.Ed. 1108] endeavor, however is an ble Presumably aware of escape contradictory, awkward gov- uniquely having equated of sov- Court’s historical doctrine from the basic ernmental/parallel function test with the parallel whether or not is to a there a distinction, proprietary/governmental governmental private function in the sector legislature following any is fortuitous Idaho inserted often and unrelated to 6-903(a): govern language immunity: into I.C. “the rational basis for entity subject is ... mental permit the United States were to [I]f arising governmental out a whether operation private lighthouses at —not function____” (Emphasis proprietary all ba- inconceivable—the Government’s teaches, added.) Towing As gone Indian sis of differentiation he would governmental uniquely negligence functions are bound charged in this case traditionally as equate with those viewed be be would actionable. Yet there would functions, those “governmental” change while in of the no the character performed by pri activity places functions similar to ones in the Government’s persons equate operated lighthouse, vate entities would where it a and we traditionally “proprie as attributing with those viewed would be bizarre motives 66-67, 125; at tary.” Congress 350 U.S. at 76 S.Ct. were we that it was to hold Hall, But, predicating liability completely at whether or 230.5 on such a presence fertile minds are able to concoct fortuitous circumstance—the “uniquely governmental private activity. function” that was 350 U.S. at identical omitted). 66-67, (footnote “governmental under the not a function” 76 S.Ct. municipal misses the corporations law Further, inherently is flexible the test so Supreme point; what matters is that the predictability. At one it offers no unequivoсally proposed saw the Court extreme, say governmental one can that all governmental/proprie to be the those found activities are distinct from (2) rejected tary disguise, distinction other, sector; one can at the using language essentially the same it. gov- analogy always make some between discus Supreme found in the Court’s private activities. ernmental activities and provision Act of the Federal sions explained: Court 6-903(a), leg Idaho analogous to I.C. liability is circum the area of While equated proposed also must have islature Fed provisions of the by certain scribed with the “uniquely governmental function” Act, 28 U.S.C. see eral Tort Claims distinction, proprietary/governmental all Govern 28 U.S.C.A. § Accord, expressly rejected. it then which “uniquely activity inescapably ment 228-35; Hall, see also supra, at performed it is governmental” State, Ryan 134 Ariz. 656 P.2d In case which Government. (1982)(“Here appellee-respondents Corporation, a Crop Insurance Federal urge governmental immunity should enterprise, wholly Government-owned continue in those instances where the ser crop-in on a sought to be held liable was provided vices are uniquely governmental in pri theory that a policy on the surance nature. proprietary-govern This is the old liable company would insurance vate mental distinction bright in a new word- situation, stated: this Court same package.”). public or partly is not “Government gov good depending upon the private, without legislature partly was type pedigree reject any continuation ernmental reason activity the manner be- particular distinctions pre-1971 judicially imposed it.’’ pro- conducts the Government which government conduct tween Corp. v. Mer Crop Insurance Federal governmental. prietary, and that which 1, 3, 380, 383-384, 68 S.Ct. rill, 332 U.S. explained, Towing Indian As the consistent test parallel function 5. Further evidence that Gavica, supra, test of Dunbar. parallel function recasting governmental/proprietary is a With the 608 P.2d at Gavica, case ex- supra. That found in test is legislative creation of a governmental/proprietary dis- advent liability, plained that the viability. longer had State, Smith found Smith v. tinction hand, it is summarizing the other Justice Frankfurter’s 92 L.Ed. 10. On criti- Towing any governmental to think ac- Indian proposed cism in hard level,” tivity “operational exception uniquely governmental our func- “uniquely gov- concern, nothing which is present aptly put: tions is “There is in the ” ernmental, in the sense that its kind Tort Claims Act which shows that Con- been, time another or gress has not at one or intended to draw distinctions so fine- be, per- conceivably privately spun capricious incapa- as to could not be almost Towing, supra, Indian being adequate in the mind for ble of held formed. supra, Towing, Indian at 126 formulation.” U.S. at S.Ct. 68, added). U.S. at 76 S.Ct. 126. believing leg- parallel function test Additional reasons for

The results of 6-903(a) de islature not intend as a depend largely on whether the court did I.C. § specific exception from com- role in broad come scribes terms, distinguishing paring char it to and an examination of I.C. which enhances designated terms, 6-903(a) is acteristics, general which dimin ‍‌​​​‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌‌​‌​‌​‌​‌‌‌​​‌‌​​‌‌​​‌‌‌​​‍ 6-904. I.C. or § § Hall, exception as an 6-904 is so liability; at 239-40 n. 205. ishes them. designated. legislature is Dunbar’s point application Had the conceived A case in governmen- the test to the facts of Martin v. United “uniquely of an (9th Cir.1976) cert. parallels pri- without in the 546 F.2d 1355 tal functions 2950, sector,” logical vate then 6-904 was denied 97 S.Ct. place incorporate it. Dunbar found the which to L.Ed.2d 1078 of Yellowstone National administration exceptions importantly, specific More substantially different Park to be “not establish that set out in I.C. 6-904 parks which its nature than wild animal legislature did consider excepting certain might operated by private persons or functions,” “unique governmental and did entities____ Hence, we see no reason gov- certain but not all except uniquely apply the same standard of care exceptions in- These ernmental functions. apply as we would to such an following: clude enterprise operated by non-government [A]ny claim which: P.2d at 31. persons.” 100 Idaho at glosses over general-term description This Arises out of the assessment that, distinguishing factor un the obvious fee, or the deten- collection of tax operators park, animal like the of a wild by any any goods or merchandise tion of fulfills all gov Park the National Service law enforcement officer. including enforce еrnmental functions law or es- imposition 3. Arises out of the ment, all provides for and oversees by govern- quarantine of a tablishment Yellowstone, including lodg services within quarantine entity, whether such mental services, sales, ing, and automo food retail persons property. relates to prominent. tive to name the most services fact, carries out the the Park Service of the activities 5. Arises out safety in public health and same sort of engaged in guard when Idaho national spections which Dunbar held to have no 316, 502, training under sections If the Na parallels sector.6 title United 505 or equat readily so tional Park Service can be Code, arising there- then, the claim parks, States operators of wild animal ed to provisions of under the gov payable from is parallels for all truly, potential exist (section Act Claims the National Guard functions. ernmental mortality reproductivity related to key between cesses distinctions 6. This states the biota, physical changes envi- parks parks. National animal national parks flora, fauna, and wild they preserve the native ani- in that characterizes wild also differ None of this ronment. features. other natural and all parks. mal pro- They preserve maintain natural also Code) except title United States liability intended to “gov- extend some compensated ernmental” that a claimant in whole functions formerly which were part or in under the immune. Supreme National Guard The Court has ex- plained: may Act assert his Claims claim under

this act. may It be that it is “novel and unprece dented” of the to hold the United ac

6. Arises out activities of the States negligence countable for the of its fire guard engaged national when in Idaho fighters purpose very but the the during combatant activities a time of Tort Claims Act was to waive war. government’s traditional all encom passing immunity tort actions from plan design of a 8. Arises out or and to unprece establish novel and improvement high- or construction governmental liability. Rayo dented streets, roads, bridges, ways, or other nier, 319, 77 supra, 352 U.S. at S.Ct. at public property plan where such or de- Chandler, quoted approval in with sign prepared in substantial conform- 104 Idaho engineering design or ance with stan- (Donaldson, C.J., dissenting) (emphasis preparation in effect at the time of dards added). design, approved plan in ad- implication argument could be approved by vance of the construction government might impeded that the be in legislative body policymaking As tasks. discussed body entity by some other adminis- part opinion, the next of this that function exercising agency, by trative discretion by adequately protected the discretion- approval. give such I.C. authority to Thus, ary exception. legisla- function 6-904. § general exception unique- ture made no Obviously, general if there did exist a ex- ly governmental partly functions because ception unique governmental functions exception. there was for such an no need private in the parallels without section Finally, argument if is taken mean- 6-903(a), I.C. then there would have been § legislature did not that the intend specific exceptions in no for the I.C. need torts, is answered create new then such 6-903(a) 6-904. To so misconstrue I.C. noting prior existence tort con- in violation of rule of would be (as negligent supervision will be discussed provisions that all of a statute struction (Second) of subsequently, see Restatement effect, given part must and that no one Torts, (1965)). 319§ surplusage by mere should be rendered sum, support for the existence of overly broad construction of another. parallel test exists the lan- Chandler, Idaho supra, 104 Act, nor the federal guage of the Idaho C.J., (Donaldson, dissenting); P.2d at 1331 adoption prior existing law case Hospital and Medical University Utah Nothing Idaho Act in 1971. whatever Bethke, 245, 248, 611 Center v. that the rule of presumption overcomes subsequent Towing, Rayonier Indian that the Idaho argued It has been along adopted with the Fed- decisions was to create new causes Act not intended rejected cases Act. All of those eral government in its of action uniquely governmental func- exception for impera- If it governing. be the business of in the Federal Act language tions based on that the argument tive Idaho Fur- analogous of this Act. which is thermore, related to functions to be mindful that obliged for claims liable we are sector, liability imposition thеn is the both acts parallels with exceptions, and ex- nothing change rule, specific Act did narrowly, to be construed ceptions are delineated existing rules purpose thereby fulfilling the beneficient Smith, contrary, the Idaho supra. To of construction These rules Act, clearly of the Act. counterpart, federal like its away creating by implication negligence steer us the basic of the school dis- language from the such a broad injuries trict. The were the foreseeable 6-903(a). I.C. Court’s consequence negli- of the school district’s very presented question words on the to- gence retaining Durtschi despite full day repeating: justifica- bear “There is no knowledge proclivities. of his exemptions tion for this Court to read into plaintiffs’ The fact injuries beyond provided by Congress the Act those party caused were a third does Act, [or, legis- the case the Idaho liability absolve the district from school lature], If the Act is to be altered that is a negligence. concept super- for its The body for the that adopted same vening inapplicable, causation is 320, supra, it.” at Rayonier, 352 U.S. 77 allegations present of the case. 377, Muniz, quoted supra, S.Ct. at Durtschi’s actions were the foreseeable 1859; U.S. at 83 S.Ct. at see also alleged result of school district’s fail- Towing, supra, at Indian protect ure to exercise due care to (The S.Ct. at 126 court should not “as very students. The risk which constitut- guardian Treasury self-constituted ed negligence prob- the district’s was the import immunity back into a statute de- ability might that such actions occur. it.”), signed quoted approval to limit clearly afford It is unsound to immuni in Chief Justice Donaldson’s dissent ty negligent to a defendant because Chandler, 104 Idaho force, intervening very anticipation added). negligent, which made his conduct has Accordingly, 6-903(a) we hold that I.C. § brought expected about the harm. Gib exactly “every says: govern- means what it 1391, 1395 457 F.2d son v. United subject liability entity mental mon- (3rd Cir.1972). fly so would To do ey arising damages ... whether out of a law, principles face of basic of tort function, proprietary or recounted the Restatement: governmental entity private where the if a person If the likelihood that third person entity money liable for would be particular in a is the may act manner damages under the laws state of Idaho____” or one the hazards which hazard add, We do not “where there negligent, the actor such an act make private persons performing are or entities innocent, negligent, intention- whether then, parallel Clearly, functions.” the lan- tortious, pre- does not ally criminal guage always private that if a stated being actor liable for liable, so, then, vent the person entity would be thereby. caused Restatement government. “parallel will The harm be the (Second) language contrary in of Torts 449. See Smith function” to the Dun- progeny Sharp, bar and its is overruled. only remaining question is The danger fact that foreseeable private person liable whether a would be criminal misconduct from intentional or against alleged for the misconduct Bloom’s irrelevant; district had a the school that a officer. We hold duty ef- statutory to make reasonable person recent case of would be. In the from such protect its students forts Durtschi, supra,

Doe v. which involved duty consti- danger. A breach of negligent supervision of a retention and allegations teacher, negligence. Under tutes school we reasoned: case, present Durtschi’s actions requires negligence A of action in cause supervening not constitute would proxi- duty of a breach cause, district’s tortious and the school injury. Re- plaintiff’s cause of mate arise out assault conduct would (Second) Torts 328A statement Rather, battery. the roots of (1965)____ allega- plaintiffs’ Under the be in the dis- battery would tions, assault and injuries the children’s arose out negligence. Durtschi, trict’s own determining courts in they if should P.2d at 1243-44. paroled or should pro- be released on added.) (Emphasis bation. reaching question Before there battery whether assault and purport While the statute does not to iden 6-904(4) found in applied, tify by I.C. name or class those to whom that required owed, assigned Court was to consider wheth- duty is in the instant cir injured person cumstances, er an had a utmost, cause of action obvious to the the mo person entity another foreseeably endangered by torists neg supervision ligent supervision retention and of a of Bloom are within the dangerous person protected.7 See, third who harms the in- e.g., class Beck v. Kansas jured party. reasoning Foundation, University F.Supp. behind the holding directly applies (D.Kansas 1984)(Kansas here. Adult author ity duty protect present owed those at a argued It has that the been university medical center from foreseeable plaintiffs solely in Durtschi arose out of danger posed by prisoner); released see statutory the defendant school district’s Keeton, generally Prosser and The Law duty protect the to health and morals of its of (5th 1984) (hereinafter Torts ed. § students. This does not alter the reason- “Prosser’’). passage above, quoted which supports duty persons the existence of a to question “duty” may While of a of- foreseeably endangered by negligently question, tentimes be a difficult Prosser Here, supervised person. negli- third generally it is not so considered in the § gent supervision foreseeably of Bloom en- person charged context of a with and em- dangered any and all motorists Bloom powered to control the conduct of a third might encounter. person. explains: Dean Prosser general duty many in The which arises Moreover, statutory the Board a precautions relations to take reasonable and, duty supervise probationers where to safety may include the for the of others appropriate, investigate report to viola- obligation over the to exercise control probation pur- of conditions for the tions persons____ conduct of third pose revoking probation: relationships are custodi- ... parole super- [Some] 20-219. Probation and nature, requiring the al state board of correction vision.—The defendant guard charge his and to oth- to control charged duty super- shall be with pro- dangerous persons against er his placed probation vising persons all on Thus the owner of an automo- pensities. penitentiary or released from the state position in a to control parole, persons on bile is such and all released driving it in his one who is parole probation from other states and conduct of or rea- Idaho; required he to act residing making presence that is in the state of driving. A negligent sonably prevent investigations may be neces- such reasonably to keeper must act tavern sary; reporting alleged violations of injuring patrons from prevent intoxicated parole specific or cases to prevent his employer An must to aid in others. the commission or the courts throwing objects from employees from parole pro- or determining whether the windows, and this had been factory his bation should be continued or revoked include an generally to quite history extended preparing and of a case record any occupier of part of obligation on the the commission or prisoners to assist actions, naturally ought latter gov- extend to the Significantly, legislature immunized 20-231. Their liability included them employees would have ernmental entities and probationers supervision of releasing prisoner to omit negligently paroling decision for implies release, immunity that the grant failing parole but from legislature revoke the intended, requirement set negligently supervising probationers or not for failing abrogated way in no 20-219 was probation. If forth I.C. 20-231. to revoke a immunity legislature modified. that such had believed Hernandez, Ariz. Honey reasonable care premises to exercise (Though under Ari- upon P.2d 164-65 one control the conduct duty police protection zona case them, law protection of those outside. (a general public only to the rule is owed may negligent- A franchiser be liable for abandoned, Ryan, supra, see since ly permitting its franchisee to cheat 599), special and nar- P.2d at there is the physician charge of The customers. persons danger- duty with rower to control operation may be for failure to an liable tendencies.) ous negligence assistants. prevent the of his may hospital permitting A be liable Clearly duty to more than can be owed patient unqualified doctor to treat single the tort-feasor. individuals known to one, premises. duty rule has been on its same In a case like instant single psychothera- rather than a individ- applied hospitals owed to class highways, on the dangerous ual. a drunk driver charge With pists who have may strictly of chance who it is a matter who have patients, and to those mental however, certain, For his victim. become A com- charge dangerous criminals. persons include those potential victims is found application principle mon high- of motorists on same class parents failure to way. conduct here involved chil- proper control over their exercise endangered alleged obviously more dren, chapter considered victim, Sterling. Maude As single than the Yet, in the ab- on domestic relations. noted, “liability in tort Dean Prosser relationship, requisite sence of persons upon the relations of based generally protect is no oth- there others; may gen- relations arise and those persons. against harm from third ers per- of large groups or classes erally, with Prosser, (emphasis add- pp. 383-85 § sons, singly, with an individual.” Pros- omitted). ed, footnotes ser, 1, Here, p. 5. admitted § charge dangerous duty The to control a by probation offi- supervision Bloom the of guard persons against his to other “and potential for foreseeably a cer created dangerous propensities” which Dean Pros- whom Bloom harm to motorists those acknowledged in the Re- ser describes highways. the state’s would encounter on (Second) of statement Torts: owed those motorists probation The officer Duty Charge 319. of Those § duty. a Dangerous Propensities. Having Person many recognized by duty has This been charge person of a third One who takes jurisdictions. general many See courts be he or should know to whom knows (Second) Appendix Torts ly Restatement if likely bodily to harm others cause to fact, a In consid pp. 138-52 duty to exercise controlled is under a not recognized have number of courts erable per- care to control the third reasonable For exam duty in instant context. doing such prevent him from son Psychiatric Institute ple, in Semler harm. D.C., 123-24 F.2d Washington, Prosser’s As and Dean the Restatement 827, 97 (4th Cir.1976), denied U.S. cert. indicate, key this observations both officer, probation a 50 L.Ed.2d S.Ct. di- duty supervising individual’s institute, failed to psychiatric along with a endangered per- relationship rect probationer, that the enforce a court order persons, young rather is the relation- dangerous son or but person to be a known The supervised day individual. as ship supervised to the a girls, confined and safety protection Sterling duty extends institution. patient care disregard of endangered. foreseeably allegations of “others” similar made . killed the by probationer The duty governmental orders. Where the is borne court with whom officials, daughter, person a specific plaintiff’s than one duty it is a more had duty and the institute instead, probation officer general public; a Id. relationship connection. endangered. De- no direct foreseeably See to those The court held that the defendants operations owed decisions made their supervi- duty to plaintiff parolees.” R., decedent: sion p. Vol. holding Chandler’s apparent It is which district the court [from order] court referred states:

that the decision to release Gilreath was simply judgment view, to be a medical purpose In our behind the dis- based on the state of his cretionary function-exception mental health. pre- is to The judg- decision would also entail governmental immunity serve from tort by ment the court as to his whether consequences for the which arise release be in would the best interest of planning operational from the de- community. special relation- cision-making necessary gov- to allow ship order, by probation created freely perform ernmental units to their therefore, imposed duty appel- on the traditional functions. protect public lants to Chandler, supra, 104 Idaho at reasonably risk harm at (emphasis original). P.2d at 1328 foreseeable judge Gilreath’s hands that the state suggests support Chandler con- already recognized. had 6-904(1) struction of I.C. from the lan- (Second) Section 319 Restatement 6-904(1) guage addition, In itself. point____ Torts is close to the Chandler declined to consider the federal The Restatement measures custodian’s provision, relying solely case law on this on duty by the care. standard of reasonable the review of such eases made in Dunbar. Here, that standard has been delineated already explained, As Dunbar failed to precise language оr- court comprehend provision of the Federal appellants der. were retain custo- key certain federal Act cases were address- dy over he Gilreath until was released ing. As ex- recently from the Institute order of the court. plained Varig, supra, and as earlier No lesser measure of care would suffice. discussed, there is no unresolved inconsist- (emphasis added). Id. at 125 ency between such cases Indian Tow- have Other courts found the same Rayonier, and ing, Eastern Airlines part parole officers. light Dalehite. 104 S.Ct. 2763-65. Payton E.g., v. United 679 F.2d 475 facts, Sterling again ear- these counsel (5th Cir.1982); Doe v. P.2d Arguelles, 716 nestly pro- us to beseeches reconsider (Utah 1985); County v. 279 Acevedo Pima pre- Act. As with the vision the Idaho Department, P.2d Adult Probation 690 ceding opinion, part we first turn of this 38, (Ariz.1984); 40 Mianecki v. Second Ju- itself, language and subsection Court, 93, P.2d dicial Dist. 99 Nev. 658 pre-1971 then to authority federal on the 911, (1983); Silva, 86 478 422 v. Nev. State question. State, (1971); P.2d 591 69 Johnson 6-904(1) provides: I.C. § 240, 782, Cal.Rptr. 447 352 Cal.2d governmental entity employees A and Likewise, we hold that the scope acting within the course and while (Second) of Torts delineated Restatement employment their and without malice exists in Idaho. for shall not be liable or criminal intent Excep- Function Discretionary C. any claim which: tion. any 1. out act or omission Arises governmental enti- employee for its deci As an alternative basis care, in reliance sion, ty exercising ordinary the district court ruled that under performance or the execution or upon construction of “discretion Chandler*s function, 6-904(1), statutory regulatory or ary exception, function” I.C. regulation or or not the statute prison parole system whether and “because valid, or upon the exercise or based traditionally regarded govern been as be have or functions, or the to exercise employ performance failure and its mental Board discretionary or perform a immunity planning enjoy ees would function that the two clauses duty on the part governmental of a enti- demonstrates describe Dalehite, thereof, su- ty employee mutually whether or not conduct. or exclusive (Emphasis 34, 967; the discretion be abused. pra, 73 S.Ct. at added.) Downs, supra, Thus, F.2d 996. “discretionary function” could not in- term Addressing except- first the second clause of, i.e., performance the execution or clude "discretionary arising out of a claims of, statutory regula- implementation duty,” readily guidance find function we tory policy. discretionary dictionary Since functions of discretion as definition decisions,” qualitatively “ability actions different from responsible to make involve judgment.” implementing policy, the former and as “individual choice and since (1st Collegiate Dictionary choice, New Webster’s definition involve the exercise of However, 1977). respon- ed. California Su- ability to make judgment, and the observed, virtually all hu- preme decisions, discretionary then functions sible endeavors, nail, driving even the of a man actually must involve formulation type of discretion as common- involve some policy. Johnson, supra, 447 P.2d at ly defined. Chandler, supra, holding in 104 Ida then, Clearly, “discretionary func- ho at P.2d at that the discre in- does not include functions which tion” exception preserves im tionary functions choice, judgment volve element operational munity planning deci decisions; ability responsible to make oth- sionmaking robs the first of its clause every function would fall within the erwise meaning. The first clause extends immuni Id.; see also Downs United exception. operational decisionmaking ty to Cir.1975) States, 522 F.2d (6th decisionmaking is carried out when that automobile, (even driving an which Con- Further, ordinary exempt care. with act, nondiscretionary gress indicated was operational functions planning both State, Wainscott v. judgment); involves all excepts governmental functions. Be (Alaska 1982) (“Not all action, governmental yond planning involving an element of discre- decisions operation, what else does a putting into tion, however, fall within the gov in its function of government do total quoted approv- exception.”), operational erning? exempt To conduct is al in Chief Justice Donaldson’s dissent keeping general not in with the rules Chandler, supra, 104 Idaho at closely express exceptions be con P.2d at 1332. Kosak, strued, 104 S.Ct. at 1523 n. 6-904(1) The first some clause casts Act construed the Idaho meaning light “discretionary” on the “ “liberally” ‘with a view to accom provides immunity from claims when it purposes, and attаin plishing aims and [its] arising employees’ out of ac- Farber, su justice____’” ing substantial tions “in reliance or the execution or pra, 102 Idaho at P.2d at 689 statutory regulatory of a performance or Keenan, supra, quoting at function,” governmen- only but where the 670. “ordinary care.” employees tal exercised legislative history of the Federal Act The statutory regu- perform a or To execute or supports interpretation that the two (or latory implement to make function is poli distinction between created a statutory clauses policy operational) the involved operational func cymaking functions that regulatory functions. The fact tions, protected by immuniz latter “discretionary with the joined this clause is with due care.8 ing only when carried out disjunctive “or” clause with the function” (a) upon Any an act or omis- discretionary claim based func- The federal version Government, employee exception exer- care” rather tion uses term "due sion an care, "ordinary exception cising a statute The reads: in the execution of than care." due regulation, or or not such statute or whether provisions chapter and section of this The valid, upon regulation based the exer- 1346(b) apply or to— title shall not of this key paragraph A appeared numerous discretionary though acts even negli- times in legislative the federal history stat- gently performed involving an abuse ed that there would liability be no “grow- of discretion. Nor is it desirable or in- ing out of an activity, authorized such as a tended that the constitutionality legis- irrigation flood-control project, or where no lation, or legality regula- of a rule or negligence part Govern- tion should through be tested the medi- agent shown, ment only ground and the um of damage (em- a suit for tort. Id. for suit is the contention that the same phasis added). by conduct a individual would be Thus, involving activities the setting reg tortious, or that the statute regulation or ulation and policy were those intended to authorizing project was invalid.” H.R. fall within the term “discretionary.”9 Rep. Cong., Sess., No. 77th p. 2d interpretation In its of the Federal Act added) quoted Dalehite, su- legislative and its history the United 29, 21, States pra, 346 U.S. at n. 73 S.Ct. at n. recognized and adhered 21. This sentence refers to the first clause, planning/operational explains distinction. immunity would Dalehite, supra, parties injured extend to putting operation actions into Tex policy government, City explosion decisions of alleged of 1947 even if that the policy formed, negligently long negligently so had planned the as the performed actions were non-negli- program produce ammonium nitrate fer gently. tilizer. 346 U.S. at 73 S.Ct. at 967. The specific decisions concerned were those of The next four sentences in the aforemen- the Field Plants, Director of Ammunitions paragraph explain purpose tioned by which the Field Director by established “discretionary function” clause: regulation plants all bagging temp exception] is designed pre- also [The erature, type bagging, the labeling, application clude of the bill to a claim type coating and the to be used on the regulatory agency, such as the fertilizer. Id. S.Ct. at 969. The Federal Trade Commissionor the Securi- Court held that culpa decisions held Exchange Commission, ties “[t]he based responsibly planning ble were all made at upon alleged an discretionary abuse of operational rather than level and authority by an involved employee, officer or important considerations more or less negligence alleged whether or not practicability fer have been involved. To Government’s take another ex- program.” tilizer ample, claims Id. at 73 S.Ct. at 971. allegedly based discretionary Treasury exercise Court held that the func De- partment blacklisting generally tion included freezing “determi powers excepted. are also intended to be nations made executives or administra establishing plans, specifications bill is not intended to tors in authorize a damages operations. suit for to test the validity of or schedules of Where there is provide remedy policy judgment on account of such room for and decision performance liability only negligence cise or the failure to exercise vide for in the case of perform accidents; had, they they function or in automobile if could part agency employ- on the of a federal or an straight- have shorter and more drafted much Government, ee of the whether or not the forward tort claims acts. This Court in Dunbar discretion involved be abused. 28 U.S.C. contemplate "we stated do not un- 2680(a). der the Idaho Tort Claims Act will result damages resulting from automobile acci- example 9. As an of a circumstance in which the 546, 44; Idaho at 602 P.2d at ac- dents.” 100 cord, liable, government potentially would be 181, Hatahley, supra, 76 at 351 U.S. at S.Ct. passage same refers to automobile in accidents (federal agents' plaintiffs’ 752 confiscations of government employee negligent. which a However, was required by horses without notice as law were provision gener- also refers more "wrongful trespasses” scope outside the of the ally Certainly, Congress to "common-law torts.” discretionary exception). function legislature pro- and the Idaho did not mean to

229 Thus, operate lighthouse the decision to there is discretion.” Id. at 73 S.Ct. discretionary in as described the sec- was 963.10 at exception; operation of the ond clause dicta, “It continued: neces- In Court lighthouse imple- itself was but the in sarily that acts of subordinates follows in policy described the first mentation operations carrying out the course, clause, clause. The first re- can- accordance with official directions in immunity quires due care order Id. at 36, at 73 S.Ct. not be actionable.” apply. refers to the immuni- 968. Here Court Subsequent agreement with decisions clause, granted in the first but omits ty Rayonier, Towing supra, Indian 352 are: requirement. care” mention of the “due 318-20, 77 S.Ct. at 376-77 cited U.S. at alleged However, plaintiffs had not Chandler, approval supra 104 bagging regulations were carried (Donaldson, 487, at 660 at 1350 Idaho regu- but rather that the negligently out supra, 351 C.J., dissenting); Hatahley, negligently estab- themselves were lations 181, (analyzes 76 S.Ct. at 752 U.S. at 23, 38-40, Id. at 73 S.Ct. at 969-70. lished. in similar fashion as in Indian two clauses it of the Court made Subsequent decisions Reynolds, supra, Towing); generally see abundantly that “due care” indeed clear 99-104; Comment, Federal Tort Claims at required operational at level. Development Application Act: Exception, Discretionary Function Towing, Indian In as discussed 535, (1982- 13 L.Rev. 541-46 Cumberland opinion, the part of this Court preceding 83). before and after Lower federal courts 1346(b) primarily with 28 U.S.C. dealt §§ plan applied the generally 1971 have rather than with the and 2674 first delineat ning/operational analysis as Nevertheless, exception. function ed in Dalehite subsequently modified activity at the made it known that Court Towing. E.g., Nevin v. United Indian “operational level” was not “discretion- Cir.1983) States, 1229, (9th F.2d 1230 696 ary.” to the two With obvious references 70, 104 S.Ct. 78 cert. denied ex- exception, the Court clauses of States, 84; Driscoll v. United 525 L.Ed.2d plained: (1975); United States F.2d 138 need not undertake The Coast Guard 913, 916 Washington, 351 F.2d State of lighthouse service. But once it exer- States, 302 (9th Cir.1965); Moyer v. United cised its discretion operate light rev’d on (D.Fla.1969), F.Supp. re- engendered Cir.1973); Island and (5th Chandeleur grounds 481 F.2d 585 other States, guidance afforded F.Supp. liance on the v. United Cohen to use due care on other rev’d light, obligated (N.D.Ga.1966), it was 687-88 (5th Cir.1967); Colo light kept ground, certain that the was 389 F.2d 689 make Group, Inc. United rado Insurance order; and, light did good working if (D.Colo.1963); F.Supp. extinguished, the Coast become then 240, 255-58; generally, see A.L.R.Fed. due obligated to was further use Guard 18, 19; 12, 13, plans, lishment of specifications and sched- delinquent was discretionary, negli- but ules where there is room policy judg- gent supervision juvenile not). of that was ment and decision (generally referred to as It is true that difficulty some may be planning activities), (2) activities involv- encountered in drawing the line between implementation of statutory reg- activity which is planning activity ulatory policy (generally referred to op- operational. However, as the Cali- activities), long so erational as those activi- Supreme fornia noted, Court has the exer- performed ties are with due care. cise has advantage affording immu- test, Under reviewing court nity where immunity such is needed and looks actor, not to the status or rank of the desirable: but rather to the nature of the conduct in Admittedly, interpretation our will neces- order to determine whether that conduct decisions; sitate delicate very pro- involved the exercise of Varig, discretion. cess of ascertaining whether an official supra, (citing Dalehite, S.Ct. at 2765 determination rises to the level of insula- Downs, suprа); supra, 522 F.2d at 997; judicial tion from requires review sensi- States, Smith v. United 375 F.2d tivity to the considerations that enter (5th Cir.1967), denied, cert. appreciation into it and an of the limita- 88 S.Ct. 19 L.Ed.2d 106. The court tions on the court’s ability to reexamine then, guided by gener Court’s Despite potential drawbacks, it. these above, al distinctions as set out determines however, approach our possesses the dis- whether the planning opera conduct is positive virtue concentrating on the case, tional. If the former is the granting reasons for immunity to the government is immune even where the governmental entity. requires It us to planning latter, negligent; was if the im find quasi-leg- and isolate those areas of munity contingent upon use due or policy-making islative which are suffi- ordinary example, care. For when the FBI ciently justify sensitive to a blanket rule policy established its dealing with hi that courts will not entertain a tort ac- jackings handbook, in its conducting it was alleging tion that careless conduct con- planning activity involving policy formu lation, tributed to the decision. government for which the was im Johnson, supra, mune P.2d at 360-61 (footnote omitted). clause even if policy negligently set; however, agents when FBI applied that, One commentator noted for all its policy hijacking, to an actual those difficulties, planning/operational test is agents carrying operational were out activi law, soundly based on the statute and case ties, for which the is immune soundly premised purposes exception under the first clause of the so exception: long (or agents ordinary) as the used due planning-operational test is relative- Downs, supra, 997; see care. 522 F.2d at further, ly simplistic; it has considerable also, Cohen, e.g., F.Supp. at 688 support guides provided and definitional (admission prisoner planning occurs at already case law. It is a formula level, protect but prisoner failure to from a purposes achieve the use that can dangerous prisoner op known occurred at exception It which the is needed. will Insurance, level); Colorado su erational “twilight not turn the zone” of the Act pra, (SEC F.Supp. agents’ at 792 ac bright day, permit into it will but plaintiff’s destroy tions to business oc purposes the Act and the basic of both level); operation Sullivan curred on su- Reynolds, to be achieved. United F.Supp. 714-15 pra, Georgetown L.J. at 132. (N.D.Ill.1955) (FBI agent’s negligence in explained, plan pursuit As this commentator operational automobile occurred at level); Arguelles, Doe v. courts ning/operational analysis enables cf. (Utah 1985) (decision parole juvenile second-guessing policy judg to avoid

231 government,11 primarily change ment of the and to for in of psychiatric patient status conduct, negligent which courts judge required by deal with before the court order do, (2) precludes act); Acevedo, supra, well-equipped are nondiscretionary was widespread liability by immunizing policy (action probation 690 P.2d at 41 officers Id. impact. at 128. choices of broad contrary to order court cannot be discre tionary); Johnson, supra, 447 P.2d at 356- of the test is potential A weakness (where choice, is 57 an official left with no application judicial test its conduct. The nondiscretionary); that official’s acts are designed to is deal with “the discretion District, Muskopf v. CorningHospital 55 administrator, executive, legislator, an 89, 457, Cal.Rptr. 11 Cal.2d Id. judge.” that 131. In this of a at (1961) (“[T]he 462 may state be liable circumstance, the test must accommodate by agents’ the harm caused violations of important judicial immunity. policy of laws.”). such Indeed the that fact [traffic] decisionmaking judges must fall immunity clause non- first extends exception within the function execution negligent poli in the conduct necessary afford the in order to insulation cy implication carries with it the converse carry judges independently out their immunity is there no where consequences. tasks without the fear of government official was Id.; Acevedo, fail supra, see 690 P.2d at ing to execute policy. particular posed One circumstance problems point be reviewing no courts. When A final of confusion must plaintiff alleges any a government offi addressed. Without reference to au thority, Chandler negligently complying cial has acted in not held that the discretion statute, policy ary exception constituted in a to immunize deci with order, “necessary gov regulation, sionmaking or court then there is no to allow Dalehite, supra, their tra freely immunity. perform at units to ernmental “ governmental ditional 73 S.Ct. at 968 of subordinates [A]cts functions.” Chandler, supra, carrying 104 at 660 operations out original). Noth in accordance with directions can P.2d at 1328 official added.)); (Emphasis actionable.” definition of “discretion” and supra, Hatahley, nothing in the entire framework U.S. 749-52; (the provides pro Act scheme of the Tort Claims itself S.Ct. seizing inkling any possible refer immunity government agents’ vides even func destroying plaintiffs’ horses without ence to “traditional required contrary, affording the notice tions.” To the the exercise Act); making of Birnbaum United Taylor Grazing judgment and the choice and Cir.1978) (2d daily in all responsible place decisions take 588 F.2d Su (“[T]he project human The United States opening CIA’s mail could activities. rejected such ‘discretionary Agency preme specifically if the not be a act’ Airline, supra, derivation. Eastern authority program.”); lacked to conduct such a Varig, ler, explained supra, 538 F.2d at 76 S.Ct. U.S. Sem impor- supra, lay at 2764-65. Most (probation requests failure to 104 S.Ct. officer’s officer). any impairment possibility important policy at the 11. This consideration is level, operationally acting operational minimized planning the officials but far less so at Social, provisions for the political policy in I.C. 6-903 ITCA’s level. economic and pay judgments government operate defend and makers be able to without must scope acting in the course and Spencer v. Or officials interference of law suits. New Cir.1984); Bd., (5th employment leans intent. Levee 737 F.2d and without criminal However, Johnson, supra, P.2d The officials’ Reynolds, supra, at 359. at 121-22. government’s policy possible putting operation, concern for case of an official into again resulting performance negli impact policy compensating and outweighed the gence victims of Act, policy outweighs behind conceivable interference Johnson, ordi probably incentive to use functioning a "wholesome” official. nary (concerning Id. care. at 359-60. at 363 tantly, and as previously illustrated, such a the setting of those conditions pol- involved derivation would convert surplus- to mere icy judgment and thus plan- constituted a age expressly those exceptions ning function, enumerated the implementing those of found in I.C. 6-904 which involve § “tradi- conditions was not a matter policy of governmental tional” Chan- functions. even of probation choice. The officer was dler, supra, 104 Idaho at vested with 660 P.2d at no discretion to permit (Donaldson, C.J., 1331 violation dissenting). conditions, of these We but was re- quired hold that to discretionary “ordinary use excep- function care” supervis- in ing the performance tion does not “execution or immunity extend on the basis of” the conditions set for probation. of certain Bloom’s having functions I.C. 6-904(1). Accordingly, pre-1971 we hold days been that I.C. judicially described 6-904(1) does not stand as a bar of immu- as “traditional.” nity based the facts of this case as import of the federal discretionary presented at this time. exception function subject was the of much holding, so we act in accordance with litigation prior adoption to its in the Idaho all highly of the most applicable cases we Act. revealed, As our review above has examined, have including a number of the United States Court had firm- cases directly point. on Payton, supra, ly established the planning/operational test 679 F.2d at 481-83 (establishing parole for determining the applicability of the ex- guidelines discretionary; application ception. Nothing overcomes the presump- operational); Semler, individual cases is legislature tion that the Idaho adopted this supra, (probation F.2d at 123-27 offi- adoption test with exception. To negligent cer’s lay request failure to contrary, the test well reflects the lan- change probationer’s of status before guage policy of and exception. behind the judge, order, in violation of court was non- Accordingly, general with the rules of con- discretionary Co- subject liability); act to mind, struction for the Idaho Act in we hen, supra, (Failure F.Supp. at 688 hold that the planning/operational test as ordinary exercise supervision care in of described (including above the discussion of prisoner prisoner after had been classified judicial functions conduct in viola- purposes of confinement was nondiscre- policy) applies tion of to the discretionary tionary); Arguelles, supra 716 P.2d at 283 Act, function of the Idaho I.C. (negligent supervision paroled “sexually 6-904(1). See Chief Justice Donaldson’s aggressive” youth raped who stabbed Chandler, supra, 104 Idaho at dissent in plaintiff nondiscretionary subject was (“I 660 P.2d at 1331 believe that Acevedo, supra, liability); at 41 Court should adopt plan- reconsider and (probation permitting probationer officers’ ning-operational appropri- distinction as an age to have contact with children under the ate test of excep- function order, violation court which con- tion.”). Anything in Chandler contrary plaintiff being tact resulted children mo- holding our is overruled. Mianecki, lested, su- nondiscretionary); was A proper application holdings of our pra, 658 P.2d at 424 (negligent transfer purposes this case is not difficult. For probationer, negligence placing appeal, of this defendants have admitted plain- resulted in the sexual assault on probation per officer negligently Silva, child, nondiscretionary); tiff was mitted Bloom to violate certain conditions supra, 478 P.2d at 593 (negligent supervision agreement set in both the probation camp” “operation- of inmates in an “honor (for probation example, court’s order of al”); Johnson, supra, (im- P.2d at allowing Bloom to drive for recreational parole is plementation of standards purposes doing as he was at the time of the Hatahley, also see su- nondiscretionary); accident), 752; pra, 351 U.S. at Mun- and that officer 76 S.Ct. at iz, in enforcing other conditions 374 U.S. at 83 S.Ct. at I, supra. probation. See (prison prevent Part While 1852-53 officials’ failure to changes legislature prisoners injuring plaintiff from re- looked. This decision violent Act; rather, nothing in Jablonski United liability); restores the sults States, legislature (9th Cir.1983) Act to what intended in 712 F.2d 1971. With this case and (failure henceforth government psychiatrist warn should, imposing Act will as it Ber- “operational”); victim was foreseeable government same baseline account- F.Supp. man v. United ability wrongdoing as private for acts (N.D.Ga.1983) (failure govern- 1492-93 bear, individuals while at the same time legally imposed obligation super- ment in sheltering representative govern- vise and evaluate “discretionary” policy decisions as well nondiscretionary). ment is involving as for conduct the other enumer- this is not for us to consider at It liability. exceptions ated probation the offi time contention that separately only I write to answer the actually Bloom “permit” cer did not to vio arguments by the In advanced dissent. probation, and the conditions his late dis- majority opinion, contrast with the the reasonably ordinary and acted care sent’s activist would desired result cast Clearly, supervision of if the Bloom. legislature’s clear ex- aside the intent as care, ordinary probation officer acted with pressed statutory language in the and in func the first clause pre-1971 federal case law favor a immunity may exception afford even tion perceived policy govern- need limit though were the conditions potential ment’s more than the However, negligently as set. we must necessary. government itself considered It contrary purposes sume the for the hardly need be said that this not our judgment pleadings. motion for on the role. to reach result proper order a grant- judgment of the district court law, contravening dis- the dictates of ing judgment the State’s motion for necessity fundamentally miscon- sent of pleadings on the and dismissal reversed 6-903(a) (1) import I.C. and ceives § proceed- remanded the cause for further law, (2) federal case related state and ings herewith. not inconsistent ex- import “discretionary of the function” appellant. Costs to 6-904(1) re- ception in I.C. and of found § (3) law, well-established tort law lated case DONALDSON, HUNTLEY, J., C.J., and concerning (a) alleged an tort-feasor’s McFADDEN, tern, pro concur. J. person with the al- supervise leged special relationship tort-feasor has a HUNTLEY, Justice, concurring. respondeat superior (b) liability, and and (4) for mak- appropriate circumstances INTRODUCTION prospective-only in effect. I ing decisions join in the schol- fully I concur with and arguments in the order these will address thorough opinion majority. arly and of the makes them. the dissent exhaustively opinion That reviewed concurring jus- each and contributed IMMUNITY I. GOVERNMENTAL carefully con- long tice. This Court ” Function Test. A. The “Parallel аrgu- applicable sidered the law and v. United Steelworkers with Dunbar dissenting As ments of counsel and our America, 523, rendering its deci- brother Bakes before 983, denied (1979), 100 S.Ct. cert. mes- U.S. Ultimately, unambiguous sion. 839, the dissent derives lan- 64 L.Ed.2d sage Claims Act’s of the Idaho Tort 6-903(a) liabili from I.C. guage relevant case law com- § “function” sense, underlying role or ty where the this is pelled our decision. In that parallel one without decision; it adheres of the judicially conservative test, private sector. Under legislature closely wrote law the of the disregards the actual conduct court to which it and to the federal case law Feres, express rejection tort-feasor, United States v. alleged purported ex- 135, 142, 153, 157, ception 6-903(a). U.S. I.C. S.Ct. (1950) (quoted infra) dissent, L.Ed. 152 6-903(a) I.C. makes the state liable for (court wronged looks to “status of both the tortious arising conduct “whether out of wrongdoer” rather than to the “cir- proprietary function. cumstances”), disregards the fact that . . .”1 As the majority opinion ex entity individual or po- would be plains, legislature the Idaho followed the tentially alleged liable for the same miscon- Court in Indian Tow Supreme lead of the Id. (no liability alleged duct. miscon- States, Co. v. United 350 U.S. though private duct individuals and entities Rayonier, (1955); S.Ct. 100 L.Ed. 48 undoubtedly “would be held liable” for the Inc. v. United ‍‌​​​‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌‌​‌​‌​‌​‌‌‌​​‌‌​​‌‌​​‌‌‌​​‍77 S.Ct. misconduct). advocacy same The dissent’s 1 L.Ed.2d 354 subsequent (1) only ignores of this test not plain relevant Court and lower federal meaning pertinent language of I.C. See cases cited in court decisions. majority supra, at p. see op., 6-903(a), majority opinion, P.2d at pp. States the United explains, majority p. 762-763. As lan- similar construction Supreme Court’s “governmental immunity for exception to Act which Tort Claims governing” which Dunbar in the Federal guage function[s] also present, but Dunbar, supra, 100 Idaho from 1955 prevailed at enunciated, language noticeably 1. Such absent from the The three state cases which the dissent Florida, jurisdic- contrast, statutes of Ohio and on which support argument; relies fail to his in (The Washington tions the dissent relies. case easily one can find a host of state decisions 2). infra, cited the dissent is discussed n. construing today’s majority. their acts as does distinguishing Even when this critical ignored, factor is See, Hawaii, e.g., First Insurance Co. Ltd. v. the two cases cited the dissent still Co., 185, International Harvester 66 Hawaii 659 are to no avail to it. 64, (1983) (rejects confusing P.2d 67 the distinc Commission, Shelton v. Industrial 51 Ohio governmental proprietary tion between 125, App.2d 367 N.E.2d contains no 51 functions; government holds liable as a exception unique hint of an unparalleled based on the 308, be); State, person Ryan would v. Ariz. 134 government’s nature of the under- 597, (1982) (State argued "gov 598 lying function or role. The Shelton court held immunity ernmental should continue in those just today as this Court holds that the Ohio Act provided instances the services are where “provides remedy existing a duties where the uniquely governmental in nature. This is the previously state was immune from suit a proprietary-governmental old distinction in a private party under similar circumstances would State, bright word-package."); Jennings ” new v. added). N.E.2d 54 Id. at 367 be liable. 1304, (Alaska 1977) (failure 566 P.2d instant and the Shelton between The difference sign although road is actionable a traditional duty on found no court the Shelton case is that function); City Pittsburg governmental v. running plaintiffs. Id. to the part of the state the Commonwealth, 174, 607, 468 Pa. 360 A.2d Here, subsequently, spe- as discussed the state’s (1976) (“This recognized n. 4 Court has the relationship duty cial with created a Bloom difficulty applying governmental-proprie in the foreseeably might injure. those Bloom tary distinction and has abandoned the distinc Hialeah, City Trianon Park v. 468 So.2d 912, decision, dealing liability.'); (Fla.1985), tion in with tort Johnson v. a 4-3 likewise held 782, 240, Act, State, Cal.Rptr. 69 Cal.2d that under the Florida ing "the identical exist- (State (1968) private persons apply govern- potentially duties for liable for 362-63 court, filling mental entities.” As with the Shelton the negligence parole traditional officer— duty function); Trianon Park court found there to be no on governmental see also cases cited in governmental part the entities involved. p. majority op., supra, p. the at 723 P.2d at addition, holding Id. at 919-23. In the court’s 770. grounded its hold- that no existed was rate, acknowledged in Justice Bakes At ing governmental functions involved Durtschi, to Doe his dissent "discretionary.” subsequent were Id. legislature (1986), since the 1971 P.2d 1238 716 largely adopted Willard, So.2d case of Everton Act, Claims we Federal Tort (Fla.1985), (1) explained the Florida court Tria- pre-1971 case federal primarily look to the must functions, involving “discretionary” non Park as message loud and casé law is of that law. The (2) police that in some circumstances held immunity granting exception is no there clear: subject though their officers are even governmental uniquely functions. uniquely governmental. dissent 602 P.2d at and which the same “where language in the section defends, to im exception is the same now private person entity if a munity for the federal money dam- liable for entity would be in Towing again argued Indian Ida- of the state of ages under the laws p. at majority op., supra Rayonier. See ho____” persists in Dunbar’s dissent 217, 723 Court p. Supreme P.2d at to-wit, language, reading of this contorted was, an ill- argument this for what it saw adding requirement of gratuitously alleged attempt to to an founded “resort This private sector. function in the parallel distinction, of munic imported the law regard to dissent does without corporations, ipal between the Govern (1) legis- that the 1971 of construction rules ‘propri it in a negligence ment’s when acts fed- adopted the construction lature etary’ capacity negligence and its when re- (the jurisdiction jurisdiction federal eral governmental’ capacity.” ‘uniquely in a acts construction), jected such Rayonier, supra, beneficent is to be construed Act Court, Supreme at 376. As did S.Ct. purpose mind. legislature to return to declined “ ‘non-governmental’ ‘governmental’ exception There is one federal case — quagmire.” supra, 350 Towing, Indian law, upon which the dissent That seizes. at 124. U.S. 76 S.Ct. plaintiff belongs is where the military. So held doubt, put it legislature To leave no Feres, however, supra. Notably, hold 6-903(a). Significantly, writing in I.C. § that, rela Feres was because “the ac- even nor dissent neither Dunbar tionship military personnel legisla- knowledges the existence of governed exclusively Government has been arising out of language, “whether ture’s law,” juris there was no federal function.” proprietary governmental or federal language 1346(b) evinc- this an The reason is obvious: diction 28 U.S.C. the express legislature’s rejection es the Feres, supra, law. action based on local by Dunbar liability advocated (em 71 S.Ct. 340 U.S. at 157-59 language To read now dissent. the added). Thus, phasis “parallel func unam- Act, language particularly out Id.; language Reynolds, tion” is dicta. O. in- legislature’s biguously expressing Exception Discretionary The Function tent, and intervention- judicial activism Act, George Federal Tort 82 Claims at their utmost. ism (Indian (1968) 81, Towing town L.J. 99 “Feres that the refused extend dictum language of Blithely skipping over this only act had made the Government liable (which by 6-903(a) itself settles 1.C. § liability analogous private was func- where “parallel status of the question of the exception), dissent focuses present____”)2 tion” fact, military personnel plaintiffs. it as In Washington 2. The Court of in dicta been cited at all. appeared adopt immunity Feres’ doctrine of Feres, rate, Edgar language like analogous At for Washington context a member of parallels private referring to in the sector was suing Air National the state. Guard (and pub- 217, 534, no headnote from the State, dicta lisher), received Edgar v. 92 Wash.2d plaintiff as held that the 1077, since the court (1979), 100 538-39 cert. denied 444 U.S. employee would have no action 1026, an "at will" hardly S.Ct. consti 62 L.Ed.2d 760. This being wrongfully suspend- private sector for adoption parallel excep tutes an a function Edgar, supra, employment. his 595 ed from suggests. tion for contexts as other the dissent court, Thus, Edgar like this P.2d at 540. Court, fact, County, King in Chambers-Castanes v. require "a read its tort claims act to 275, 451, (1983), 100 Wash.2d P.2d 669 452 person asserting state a claim Washington Supreme govern a held that complained of constitutes show that conduct entity potentially mental when was liable even done be actionable if it were a tort would enforcement, engaged in a the function of law by private person a private setting." in a Id. at par traditional without function (emphasis added). Edgar 595 539 The allel in sector if ever was one. there conduct, clearly court’s focus was dicta, dicta, Edgar subsequent The like the Feres underlying government. or rule of the ly has not been cited outside the context of the Feres doctrine Regardless, applies L.Ed.2d 911 where its “function” was context, in the and no above other. that of the military, quintessential Shearer, See United States v. 52, 473 U.S. “unique governmental function”? See ma- 3039, 3043, L.Ed.2d 38 105 S.Ct. 218,723 jority op., supra, p. p. P.2d at in Feres based its (“Although the Court parallel There is no function test grounds, deсision on several the last outside the Feres con- jurisdiction ‘[i]n federal Feres seems best analysis, explained by (involving personnel military plain- text as “peculiar special relationship of the tiffs), anyone rudimentary with a famil- superiors, to his the effects of the soldier iarity of the federal case law would know. discipline, maintenance of such suits on and The dissent is unable to cite one case out- might obtain if the extreme results side that limited context. One commenta- Act suits under the Tort Claims were al explained: tor given negli orders lowed of Indian significance Towing’s in the course of mili gent acts committed interpretation of the Act’s sec- ’ Muniz, States v. duty.” United tary If under- tion is clear: the Government 1850, 1858, 150, 162 S.Ct. U.S. [83 required, activity, even one not takes (1963), quoting United States L.Ed.2d 805] it will be held to the same standard Brown, 348 U.S. S.Ct. [75 private person reasonable care as (1954).”); L.Ed. 28 U.S.C.A. 139] be, though private persons would even 26, Military Service Claims 2674 note engage particular seldom in that activi- (Feres doctrine limited to circumstance ty.... suing government). military personnel the Act Any distinction under ... Dalehite v. United majority in proprietary governmental and between 97 L.Ed. 346 U.S. 73 S.Ct. flatly rejected. It had functions (to (1953) attempted expand it further long assumed that when a munici- been function), part firefighting but capacity, en- public it pality acted Towing Indian Dalehite was overruled immunity liability. When it joyed majority op., Rayonier. See however, proprietary capacity, acted 761-762; Varig United States v. pp. immunity unless enjoyed no such Airlines, 797, 104 S.Ct. Towing The Indian granted by statute. (“[T]he holding of L.Ed.2d 660 n. indicated that the distinction rejection of element Rayonier obviously overrules one inter- the Act would be provision of no Dalehite," element judgment in that rejection was including This preted as it. expand parallel the being attempt to the step due as a desirable generally hailed context). beyond the Feres function test confusing applica- conflicting and (not all oth to mention Supreme The Court municipal liabil- the local rules tions of courts) to limit the er federal has continued (em- Reynolds, supra, pp. 99-100 ity. (involving mili facts Feres doctrine to its omitted). added) (footnotes phasis up plaintiffs) to tary personnel as as the Towing was no aberration Indian majority op., supra, See present. pp. at Rayo- asserts; reaffirmed it was dissent 218-219, 723 (discussion pp. P.2d at 762-763 the construction nier and still controls Rayonier, Towing, Hatahley, Indian inwith ourselves language we concern Muniz, Lockheed, Varig, cited in and cases supra, 104 S.Ct. at Varig, See case. this 240). A.L.R.Fed. U.S.C.A. 2680 and 36 2764-65, 2765 n. 10. All of these cases read the language to make Varig “in ef- claim The dissent’s liable for the same causes of government (not Towing to Indian overruled fect” individuals, action as private regardless mentioned cases the other mention all “parallel the existence or nonexistence of a with Indian are consistent which above so, why function.” If this were not did the Varig The court false. Towing) patently government Court hold the liable contradiction actually restated without Corp. Lockheed v. United Aircraft holding, Towing’s Indian thus reaffirmed 190, 198, 1033, 1038, 103 S.Ct. keep place would yet And the dissent rejecting proposed parallel it. thereby equates the func- potentially overruling which exception and a minor a test function (func- Park Service National part Dalehite: tions “unique” in found include those which tions rejected the Towing\ Court [Indian of a operators Dunbar) those of with assertion, it reasoning that Government’s function test parallel park. The animal ‘non-gov- wild “push the courts into would certainty or it guidelines to lend has quagmire that ernmental’-'governmental’ rationality. long plagued municipal law corporations.” 104 S.Ct. at 2764. poten- danger of test that it One this Rayonier’s also reaffirmed liability tially government to exposes 2765 n. effect. Id. at holding to same seg- affecting vast policy decisions mistaken Contradicting 10. the dissent’s long “parallel public, so as a ments of the entirely” based claim that Dalehite “was sec- function” can found reading of 28 Var- U.S.C. Feres’ example, disagreed with tor. For Dunbar part proceeded explain that the main ig to (that government holding the Dalehite relying it on which was dealt of Dalehite immune) on the basis of the existence discretionary exception with the function function, parallel 100 Idaho at of a 2680(a), main while the found in U.S.C. 29; high-level yet at P.2d Dalehite involved dealt part Towing Rayonier of Indiаn inju- resulted in the policyjudgments which Varig, S.Ct. people. ry and deaths hundreds Such part Varig reaffirmed that 2764-65. application parallel function test an dealing with the of Dalehite resulted mammoth would have section ex- exception; function short policy regarding a what was a decision tending the doctrine it left overruled. Feres plants. In the large number of fertilizer utterly Id. The dissent fails acknowl- de- uphold haste to ill-founded dissent’s edge this. cision, up unwittingly opening risks Contrary reading to the dissent’s of Var- government extraordinarily broad lia- ig Towing in relation to Indian arbitrary unpre- on the bility based Judge R. progeny, Fifth parallel Circuit John function dictable results of recently noted: Brown test. not, as

The FTCA is counsel utterly fails refute the The dissent urge, think and confined continue excep- argument express most in- typical fender bender automobile are mere Idaho Act rendered tions postal tersectional collision between parallel surplusage by a truck and a citizen’s child-filled station encompass easily them. See which would wagon. significant, have still the We pp. supra, at majority op., valid, Towing, still decisions in Indian thus im- The dissent pp. 765-766. Eastern Airlines Rayonier and as well. argument pliedly concedes recognized liability in areas tradi- FTCA argument mischaraeterizes The dissent tionally thought govern- some have parallel function an assertion immunity____ activity Collins ment enumerated the with exception “conflicts (5th States, 783 F.2d United 6-904, thus in I.C. exceptions contained § (Brown J., (foot- Cir.1986) concurring) rendering rule general and swallowing the omitted). (which immunity). unqualified are afforded gent failing for to arrest Bloom or revoke his declines the statu- alleged The dissent to examine probation. probationer She did, at all. tory language it would If it supervise properly failed to Bloom and to required care indeed is ordinary find that properly agreement enforce the order and ig- in some The dissent probation. circumstances. of officer could except is ning operational to activities have number of and and should taken have (the op., all governmental Majority arrest revocation activities. steps short of ac- complaint Sterling’s p. 771. If the latter of which at P.2d supra, at p. do). knowledged he had no authority to with discretionary activities equates dissent ordered Bloom not drive He could have functions,” then “traditional purposes, not to drive for recreational discretionary meaning from it derives permission and written a vehicle without there, ig- it is not exception which insurance, regularly. report and to without Court author- States nores United He could have overseen Bloom’s conduct to pro- ignores the contrary, it ity to the Sterling’s allega- violations. prevent these 6-903(a) of I.C. § nouncement this. Her are he did none of tions “gov- liable potentially is neatly allegations the confines fall within Majority op., su- See functions. ernmental” govern- permissible action aof short, In p. 776. at pra, P.2d p. at entity. mental official or was, unsupported it as Chandler remains Sterling’s Naturally, claim would unex- unexplained unsupportable, Supply holding Chandler eminently barred it makes of which plainable —all Boise, Co., City Inc. v. 104 Idaho overrulable. (1983), so then also P.2d 1323 but Surprisingly, the dissent searches gov- every claim brought against a would Varig in United Air support States entity, plan- it involved whether ernmental lines, 2755, 81 104 S.Ct. or activities ning, activities policy-oriented quite That decision is L.Ed.2d Bakes, operational level. Justice on precedent earlier federal line with Chandler, offers no au- still the author of fact, today’s majority opinion. with In holding. thority support unsupported its opinion is the re majority consistent with Chan- holding of explains the His dissent Varig Collins v. application cent dler as follows: States, 783 F.2d 1225 (5th Cir.1986) United (unanimous opinion).3 traditionally This been called accurately explained The Collins court past to draw the dis- decisions Varig: discretionary tinction and minis- context between by governmental terial ties____ action enti- Varig Court in The two cases before the Sup- in Chandler holding consequent in-flight involved fires Boise, ply City Co. v. of aircraft that the FAA destruction nothing more P.2d predecessor had certified under recognition prior than a determi- those program. post-check certification challenged ac- nations of whether fact, meet FAA stan- planes did not tion action will constitutes may inspected been never have dards and mаnner as it has be made same alleged that FAA at all. Plaintiffs always made been this Court. have the defects had would discovered plane-by-plane inspection conducted exactly The dissent does not elaborate respon- delegating the aircraft instead of what the distinction between discretion- FAA sibility satisfying standards ary activity. thing and ministerial One periodic airplane manufacturers certain, activity equate ministerial does encourage spot compliance. checks put- Justice Bakes’ mind with activities Id. at 1228. ting operation, since Chandler policy into negli- did not involve allegations Varig operational planning held that as well Id. gent activities are inspection immunized. aircraft enforcement rather, certification; majority opinion 1328. As the of the conditions of notes, both except plan- challenged Varig plaintiffs the FAA’S decision). Varig passage 3. Since follows in exclusively time the Dalehite Neverthe- Act, persuasive less, it is less as to the prior intent Varig with the case law is consistent legislature in 1971. must look all of We Sterling’s and with claim. pre-1971 (including federal case law but not kite, policy setting decision the conditions 346 U.S. at 36 S.Ct. at If [73 968]. themselves. agency so, an authority has the to do it certification may entrust to a subordinate’s discretion context clear Varig’s makes that when it decisions on the extent or manner unqualified immunity speaks of of the regulations, regu- even mandatory government “regulator,” aas it means the lations, will be enforced where deci- passer regulations government as balancing sion to be made entails consid- Varig, those (in regulations being the certi- social, economic, political erations of inspection requirements fication and of the mean, policy. necessarily This does not Collins types). As the court two aircraft though, employee that the noted: whose conduct challenged being must have made a regulator] to the role as [T]his [reference employee an acts in policy decision: regulatory does not mean that all acts if directions, accordance with Dale- discretionary Following are acts. official 2680(a). conduct is within Id. In Varig, hite we are instructed that cases, 2680(a) 2680(a) applies both because there is discretion under when challenging policy judgment employee’s “there is room for conduct also decision____” exception challenges agency’s therefore discretion to im- (1) comprehends pro- “the initiation of plement particular regulatory scheme. grams and activities” and “determina- Vang, 104 S.Ct. at 2768. 783 F.2d at tions made executives or administra- (emphasis para- 1229-30 added second establishing plans, specifications tors (footnote omitted). graph) operations.” excep- or schedules of Sterling challenged not the Board of Cor- to “acts of subordinates in tion extends policy or the criminal court’s deci- rections operations govern- carrying out the Bloom, im- concerning sions but rather the di- in accordance ment official plementation policy, of that which must be Dalehite, rections.” at 35-36 “in with official di- done accordance added). Com- S.Ct. [73 967] ignores rections.” The dissent the latter Varig plemented learning with the key scope it qualification, but we know that the United States is not ig- immunity under the Federal Act. To damages challenges liable for based on qualification in order to extend nore this necessarily agency’s directed at an dis- regulatory which is immunity to all conduct cretion, exists, determining if be, as the Collins court in nature would regulate or the extent to which it will observed, exten- a radical and unwarranted done, if manner in which this will be even Varig. Id. at 1228. sion of regulations being are man- enforced Collins, plaintiffs alleged that datory. Throughout analysis negligently government had failed officials discretionary function we must de- properly classify dangerous mine purpose excep- be mindful that a regulatory statutory and obli- spite their second-guess- prevent judicial tion is to gation to do so. The Collins court held agency that involve con- decisions outside the ambit negligence to be such social, economic, politi- siderations exception to lia- policy. cal 104 S.Ct. at 2765. bility: challenge to a sub- In the context of a disagree with the We Varig conduct, Dalehite ordinate’s regulatory act questioning con- the subordinate’s demonstrate second- necessаrily judicial involves 2680(a) just be- duct is not within § Determining a deci- guessing. whether regulatory in na- cause the conduct is is not the same policy at all sion involves 2680(a) only dis- protects ture. Section scrutinizing of that the correctness conduct; regulatory all cretionary that an policy decision. To the extent Dis- discretionary conduct. conduct is carry out a manda- employee requires room cretionary conduct refuses one which regulation, tory Dale- statute judgment. policy analysis and position, actually it in the manner its undermine even leaves him discretion Furthermore, enforced, arguments which it be or extent to will further. the the disobeying a employee simply the dissent makes Part II contradict the Id. at 1231 command. record and our of review. standard flat added). pro- similarly alleges Sterling that Bloom’s A. New Causes Action. disobeyed bation officer the commands begins contending The dissent that probation. and agreement the order of majority interpreted has Idaho the the Tort the to do. Ac- he lacked discretion This creating Act as a new cause of Claims cordingly, holdings of Dale- even the negligent pro- supervision of a action—the apart hite viewed from the rest Varig, and This, argues, the the bationer. dissent Act (which case law course we federal the forbids. dissent misconstrues ma- do), Sterling claim for states a should jority opinion. policy carry failure to out the majority does the hold that Nowhere the “in with offi- Bloom’s accordance negligent supervi Act creates the tort of cial directions.” sion, way in no can the Act be viewed to which miscon- The extent the dissent creating this other tort or tort. on the case law the strues say majority opinion the does What about is revealed in the follow- its use of Act, Idaho’s and what the United States ing quote: Supreme Court has about the Federal said plan- In the difficult cases it [the Act, simply that enactment with the only ning/operational will distinction] Acts, legislature these two Idaho example another of a dis- “prove to be govern Congress both intended to make finespun as to capricious tinction ‘so responsible for their con mental entities incapable being held almost circumstances, ” in certain whereas in duct adequate mind formulation.’ past they had immunit enjoyed absolute 246. v. United 375 F.2d at Smith Thus, easy why y.4 it is to understand Dissenting op. Bakes, J., infra. change Supreme this Court found language quoting the Smith court was by Congress unprece law “novel and Unfortunately Towing. Indian dented,” Rayonier, supra, dissent, Towing what the Indian 377, given up the fact that 77 S.Ct. referring plan- Court was was not Act, the enactment the Federal federal distinction, ning-operational but was im government enjoyed entities absolute governmental non- distinction between reasoning applies munity. This same functions, governmental very distinc- legislature’s Act and the Idaho the Idaho holding appears tion which Chandler Clearly, majority has cre intent. elsewhere, Here as when ana- advocate. Act, tort out but ated a new lyzed, authority to the dissent which merely made the liable for same state position cuts rather than resorts private persons are entities. torts as for it. of what characterization The dissent’s point is therefore majority has said on this II. TORT LAW erroneous. authority relies As with the dissent upon I.C. 6- concerning governmental immunity, The dissent’s reliance 903(f) groundless. That section is concerning tort also is cases and commentaries per- relies, straightforward. It support- law states upon which far from clear Thus, agreeing argues interesting argues. should be to note the dissent dissent It is Rayonier says Towing, Supreme matter— supra, on this Indian is the with that immunity step Act the Federal has waived Court case "out of with all of the remainder Inexplicably, decisions." certain however, conduct. of the United States Presumably then, Rayonier Rayonier, dissent a decision later criticizes point. step" "in the dissent decision on that is that which nature, tionships that are custodial in in- part: “[Njothing in tinent this act shall custody who dividual another has a enlarge or adversely otherwise affect the her charge to control his or and “to employee of an or a persons against entity. Any immunity guard dangerous other his other to a bar Prosser, Alas, propensities.” civil lawsuit under or federal law 56.§ support remain in effect.” first shall What the the dissent can derive no from Dean 6-903(f) prohibit sentence of does and Professor Keaton. Prosser creation of of action causes based on the The dissent next cites Jacobson a governmental fact that defendant is McMillan, words, entity. viability other of a support. prior Because this is a dependent upon cause of will not be action Court, years decision of this albeit now 43 is a whether defendant individu- old, a close look is warranted. In Jacob- public entity. al or a The second sentence son, states, as the dissent Dan O’Connor simply makes clear that Idaho’s Act does attempted to his shoot wife. A criminal preempt specific grants not other of immu- complaint was filed and the husband nity. example, specifical- For I.C. 20-231 sheriff, McMillan, arrested defendant a ly immunizes public public entities and em- probate and taken judge before a for a ployees injuries resulting from a from deci- preliminary hearing. The judge ordered prisoner parole either place sion a on O’Connor to the committed Kootenai Coun- prisoner’s grant parole. to revoke ty jail pending charges trial on of assault Thus, 6-903(f), pursuant specific deadly weapon. Although with an infor- grant immunity regardless is valid filed, mation was no trial no was held and scope under the Act. bond was ever furnished for O’Connor’s The what dissent misunderstands both release. The never commitment order was majority and the Court have McMillan, believing rescinded. Sheriff changes wrought by the regarding said suffering from mental de- O’Connorwas acts, respective what tort claims and also fect, transferred O’Connor outside the 903(f) novelty The of the acts states. § 6— county Hospital in to the State Blackfoot they formerly govern- is that made immune There, re- for observation. O’Connor was responsible mental entities for their con- custody hospital Super- to the of the leased duct; unchanged. tort law itself remained intendent, in cus- Cromwell. While still anything unprece- If there be “novel and Cromwell, permitted tody of O’Connorwas issue, solely this dented” relative to it rests go hospital out unattended reasoning process. in the dissent’s result, hospital grounds. As a onto escaped hospital. from the Sev- O’Connor Duty. B. hand, later, shotgun eral months with opinion majority The more than ade- his returned to wife’s residence O’Connor explains duty quately the basis for the her, and, attempting to shoot wounded people officer owed to those specifically hired to who had been Jacobson foreseeably endangered by The Bloom. from O’Connor. protect the wife dissent cases commentaries that the unpersuasive relies or not are either brought suit both Sher- Jacobson I point. address each of them will Superintendent iff McMillan Cromwell turn. sureties. In his com- respective and their injuries alleged that his plaint, Jacobson citing begins analysis by The dissent negli- proximate result of the were the Torts, Keaton, & Prosser Law of gence superintendent and the sheriff (5th 1981). Conveniently un- ed. §§ in direct violation of acts were whose mentioned section from which pp. committing court order O’Connor at pp. majority, un- to dismiss county jail. and which Defendants moved 768-769, extensively quotes, to rela- respect grant- complaint, which the trial court equivocally states escape 3-2 latter appeal, ed. On this Court vote should or be released and appellant found the O’Connor resi- affirmed. hired to risk. dence. He take the Jacobson is not holding in majority’s Appellant knew dangers of em- upon any conclusion that there was based service, ployment, he when entered the plain- Sheriff McMillan to owed did know and while he could Jacobson, tiff dissent asserts. That escape of from cus- foresee the O’Connor majority some Jacobson contains lan- tody, employment, anticipation still his true, guage opinion effect pur- was for exigency, of some such reading majority but is clear pose guarding against just such a opinions language dissenting that the contingency as arose. was mere dicta. urged It may be that of action began analysis by The majority stat- respondents, superintendent, sheriff and ing that of O’Connor’s “af- Jacobson knew escape, permitting to in- O’Connor so Id. insanity.” at fection with homicidal augmented dangers creased or which 357, majority 132 P.2d at The further appellant legal- risked as to render them knowledge, ap- of stated: “Possessed such answer, ly The negligence. liable for employment pellant took [Jacobson] is, however, thаt, suggestion to such a voluntarily placed position, in a himself appellant’s complaint, there would subjecting any attack to that himself danger have no such to been increase O’Connor.” Id. at 357, might by made be appellant had under- augment, added). (emphasis 132 P.2d at 777 The the hazardous task he assumed. taken majority this held that decision to work for 360-61, 132 Id. at (emphasis P.2d at 778 “proximate cause O’Connor’s wife was the added). appellant’s injuries.” Id. (emphasis add- ed). note that Jacobson majority say interesting It is to went on to that once only by to Superintendent Sheriff McMillan Crom- has been cited Court. Loans, way In Weaver v. Finance responsible appel- well “were in no for 94 Pacific 939, presence 345, 347, (1971), lant’s at home of Grace Work 487 941 P.2d directly Chief Justice Donaldson cited Jacobson O’Connor and neither wife] [the indirectly subjected appellant plaintiff’s nor to that in proposition order Id. danger which he from suffered.” allegations recovery, merit the “defend ant’s shown be the conduct [must be] majority concluded acts “[t]he proximate Ja plaintiff’s injury. cause superintendent, sheriff and the McMillan, 351, 132 cobson P.2d permitting escape O’Connor to at added.) (1943).” (Emphasis This is ex 73 large, remote cause compar- a were for, what Jacobson actly stands and no negligence appellant, ison with the more than that. reasonably not have could been fore- 360, Id. anticipated____” seen or at 132 Alameda, 27 Thompson County added). Thus, (emphasis P.2d at 778 70, 614 728 Cal.Rptr. Cal.3d majority’s affirming reason the dis- next the dissent cites. is the case complaint upon missal was based all, It, too, support. no First of provides principles assumption risk and con- Thompson alleged negligent involved the negligence, which, tributory at that time release county juvenile offend- of a comparative negli- and until the advent of continuing supervision er —not the gence operated complete facts, as a bar probationer parolee. Our as the the Court’s decision was recovery; knows, Second, involve the latter. dissent duty. based In upon the absence of Thompson’s ratio- importantly, and more closing, majority stated: holding applicable here. nale for its is not Thompson,

[A]ppellant complaint) parents sued Alameda Coun- (according his wrongful their five- ty for death of every had reason believe that he son, O’Connor, alleging county had year-old would be attacked if the recklessly releasing custody (b) acted duct OR special relation exists be juvenile delinquent who was known to tween the actor and the other which dangerous propensities have and violent to- gives right protection.” other a children, who, young ward twenty-four Id. Cal.Rptr. 614 P.2d at being hours after released to the custody added). 733-34 mother, plaintiffs’ of his murdered the son. This reasoning here, applicable and ar- Supreme The California rejected gues for the duty existence of a where a plaintiffs’ argument, stating that Alameda special relationship exists between an actor County had no affirmative to warn (such probation officer) as a and a third plaintiffs juvenile delinquent’s person (such proba- need of control as a dangerous tendencies its decision to tioner). juvenile. release the The court reasoned The California Court has contin- known, “plaintiffs’ decedent was not a quote ued to apply from and 315 of the victim, identifiable but rather a member of Restatement. See Peterson v. San Fran- large amorphous public group poten- [a] District, Community cisco College Id. targets.” Cal.Rptr. tial Cal.3d Cal.Rptr. P.2d at 738. (1984); City Davidson v. Thompson. quarrel I have It Westminster, 32 Cal.3d Cal.Rptr. “spe- denied because there was no ” 252, 894, 649 (1982). P.2d 897 relationship cial county between the person committing either the victim or the Thompson The dissent states that (Here there is such a relation- the harm. York, Washington, well as cases from New ship perpetra- between the Board and the Kansas, proposi and Florida stand for the tor.) court, however, Thompson ap- except tion that where there are sufficient provingly quoted applied 315-319 §§ personal police probation contacts or (Second) of the Restatement of Torts. Said particular officers with a individual Thompson court: safety which that individual relies for or Likewise in we were concerned Tarasoff protection, legal there is no action. This is duty therapists, with the after deter simply quote false. As the above mining patient poised that a a serious states, Thompson only duty does a violence, protect threat of the “fore special relationship there a arise where (Tara danger.” seeable victim of that government between a official and the vic 439, soff, p. 17 at 131 Cal.3d [425] tim, duty a also exists where there is a 14, 334.) Cal.Rptr. reaching P.2d In 551 special between the relation therapists the conclusion that the had a person and the third who com official duty endangered par to warn either “the harm.5 mits the ty reasonably can those who be ex duty That is reflected in Restatement (id. 442, him, pected notify p. at ...” Peterson, Thompson, 315, which § 27, 347), Cal.Rptr. p. p. 131 551 P.2d at Davidson quoted applied. all The ma- general we relied on an to the opinion general the same jority establishes duty rule that one owes no to control the duty quotation from Dean Prosser on (Id., 435, p. conduct of another. 131 duty page general “The which arises 25: 14, 334; see Cal.Rptr. P.2d Rest.2d 55 precau- reasonable many relations to take 315-320.) Torts As declared in §§ safety may of others include tions for section 315 of the Restatement such a exercise control over the obligation “(a) special relation duty may arise if persons.” propo- For this conduct of third exists between the actor and the third person Prosser cites in a footnote none imposes duty upon which sition Dean person’s actor to the third con- than control other § foreseeability Megeff v. duty recognized by majority opinion, remains. 5. The element of 467, 251, is, course, Doland, 319, Cal.Rptr. Cal.App.3d 176 as embodied in not neces- 123 § (1981). sarily large. one owed to world at 470

245 Center, Wessner, Inc. v. majority opinion Ga.App. Section which the 161 merely specific spe- adopts, delineates the (1982), 287 S.E.2d 716 250 Ga. aff'd relationship between those charged cial Milano, (1982); 296 S.E.2d 693 McIntosh supervision persons with the with dan- N.J.Super. 403 A.2d 500 gerous propensities charges. and their It Petersen, supra, at 236. argued hardly can be that California has Sorichetti, In the New York Court expressly rejected when it has Appeals jury affirmed a verdict in favor 315, of 319 is adopted but a plaintiff, stating that the facts in the court, subcategory. The like all California “ ‘special relationship’ case showed that date, I recog- of which am aware to others police plain existed between the and [the duty spe- that a of certain nizes arises out jury properly such that the con could tiff] relationships Just persons. cial with third police sider satisfied whether conduct relationship such a existed between Sor owing [plaintiff].” of care probation his Bloom and officer. ichetti, supra, 492 N.Y.S.2d at York The New case cited to the dis- N.E.2d pur at 471. The New York Court York, v. City sent, Sorichetti New ported way in no to restrict N.Y.2d N.Y.S.2d N.E.2d police special relationships between the case, Cham- Washington and the and the victims. It did to deal not need King County, bers-Castanes any special relationship existing be (1983) similarly 669 P.2d 451 Wash.2d police parole tween support it. involved fail Both alle- person doing officer and the the harm be gations police had officers failed to relationship alleged cause no such was properly respond plaintiffs’ call for argued. Consequently, no discussion such case par- neither involved third help; necessary to resolve the issue before addition, ty at all. in Chambers-Cas- it. tanes, Washington court stated that facts, which, plaintiffs alleged the had if Sorichetti Cham reading A fair true, correctly place found be would bers-Castanes, recognized both lia special relationship in po- them a with the bility governmental part conduct the sent for lice and the case back trial. exist, special relationships where reveals Chambers-Castanes, supra, 669 at P.2d 315, and, they are harmonious with § 457. position, the supporting far dissent’s Furthermore, neglects the dissent to cite actually it further. That fact undermine case, Petersen v. 1983 Washington another Washington further Su validated State, 100 230 Wash. preme subsequent adoption Court’s Supreme the Washington Court wherein Petersen, is a of which 319 315 § adopted expressly applied for the subcategory. The same can be said (Second) the Restatement Torts. In cases, v. Wil Everton Kansas and Florida Petersen, psy- the court held that state lard, (Fla.1985), So.2d 936 Dauf diagnosed chiatrist who hаd as schizo- Wichita, 233 Kan. City fenbach phrenic an individual whose vehicle subse- quently injured plaintiff struck at Everton, In the Florida Court duty had a to take reason- an intersection had the issue of “whether before person protect able such precautions is a by making an arrest enforce the law plaintiff might foreseeably as the. who govern- judgmental basic endangered by drug-re- the individual’s suit, mental is immune from problems. lated mental Id. at If 236-37. is made regardless of whether decision support provided further needs to be street, by his ser- by the officer on the virtually acceptance of universal captain, by the sher- geant, lieutenant it, Washington provided citing Everton, supra, Sears, Co., police.” iff or chief of Lipari v. & Roebuck added). Bradley (D.Neb.1980); (emphasis The court So.2d F.Supp. affirmative, law”; rely- today the issue in the answered has created no “new tort Park, ing upon majority opinion Trianon which held on the duty issue of merely application accept- entities are immune universally they exercising concepts are when their discretion- ed of tort law—which are found ary power compliance to enforce with both in Idaho majori- laws. and elsewhere. The ty’s recognition of the tort of Significantly, arriving conclu- supervision application is but the of Durts- sion, additionally the court stated: “if a overwhelming majority chi and the of case special relationship exists between an in- jurisdictions. law from other governmental entity, there dividual be a care owed to the indi- could 14, p. 264, In footnote p. 723 P.2d at added). No vidual.” Id. at 938 argument dissent concludes its on this however, relationship, existed Ever- such point by stating that this rejected Court has police accepted specif- ton: the had not the tort “negligent supervision” in Pe- protection responsibility ic for the digo Rowley, 610 P.2d 560 victim, that the and there was no evidence (1980). This, too, is Pedigo, incorrect. In relationship had custodial State the defendant filed a claim for contribution responsibility other against parent, arguing tort-feasors’ parent’s that the Accordingly, reject- than behavior. rather negligent supervision plaintiff-child (Second) ing Restatement of Torts injuries contributed to the of the child. The application proper Everton is a §§ Court held that parental the doctrine of Furthermore, hold- of those sections. action, immunity barred the not that there grounded in Everton is in discretion- was no such tort. Id. at 610 P.2d at any rejection ary immunity and not negligent supervision. the tort of Furthermore, pointed out at as counsel plaintiff two Dauffenbach, In sued argument, Pedigo oral does not stand police City of Wichita for officers and negligently proposition that where a arresting the excessive use of force supervised against a child commits a tort plaintiff. conclusively show that The facts party, is no action third there “spe- police in the case had no officers Pedigo parent by party. third In relationships” plaintiff. cial with the floating plaintiff-child on an air mat- fact, Sorichetti, supra, and like Chambers- anyone in the lake and did not hurt tress Castanes, party supra, there was no third boat; by a there is when she was run over Accord- involved at all simply allegation that the child hurt Dauffenbach. Everton, ingly, as is the case Sori- negligent super- anyone parent’s due to her Chambers-Castanes, chetti, Thompson, dealing fact Here we with a vision. are Petersen, appli- and is but an negligently supervised pro- pattern where a Dauffenbach upon The cases cation of 315-319. upon §§ physically committed a tort bationer relies, from sustain- which the dissent far Thus, only person. does Pedi- another it, position. ing unequivocably contradict its says it the dissent not stand for what go for, factually analo- it also is not stands argues page dissent next The gous. today cre- majority that the page 807 P.2d at supervision.” negligent of “a new tort ates Cause. C. Proximate notes, this majority As the This is incorrect. recognized Durtschi, supra, proximate arguments Doe v. The dissent’s length. of action for cause could be a not be discussed there cause need

that aof supervision purposes forgotten and that for negligent retention dissent has of on a a tort of later commits State appeal, teacher who the defendant —the school this upon the Re- part relying the acts of its person, third that Idaho—has admitted Torts, is 449. There (Second) negligent and of probation statement officer were both obvious, other belaboring plaintiff’s dam- proximate no benefit cause brief, states: the defendant ages. In its point majority opinion than to out that the Judg- system present parole extent that on a Motion for tort for and “To the law Pleadings, probation system. legislature Defendant ad- ment on The Idaho allegations Plaintiff’s supervision within the made no decision on the of mits Bloom, complaint, agrees question the Defendant with which is the before Board, statement the facts.” Re- for policy Plaintiff’s us. As decisions added). Brief, p. regarding probation In spondent’s parole remain im- “discretionary” brief and in the record before mune under the appellant’s us, alleged probation exception; only been the implementation it has negligence “proximately policy require- admitted decisions carries with it the officer’s short, According- ordinary plaintiff's injuries. ment of care. In far from caused” chaos, purposes creating today there is ly, appeal, majority opinion this cause, proximate brings the dis- order chaos and confusion no issue Chandler, by created discussion on the matter serves that was sent’s Dunbar, far supra; requiring new merely to confuse the issues. from obfuscate legislature legislation, the can be assured within the discussion Contained dissent’s interpretation that the incorrect and emas- cause, however, allega- proximate are Tort perpetrated culation of its Claims Act nothing more than tions that amount by Dunbar and Chandler have been cor- allegation First scare tactics. is the rected, wrongs and the created Chan- opinion today of the majority effect “[t]he dler and Dunbar have been remedied. every probationer any is that who violates arrested, probation his term of must be Scope Employment. D. Course the state will liable tort argument final II The dissent’s Part is subsequent probation- violations which that proba- that the state immune because its may incur.” This untrue. patently er negligent placed him tion officer’s conduct explained, previously Sterling As did not scope employment. outside the his allege required that the state was to arrest irrelevant, Again, argument since this Bloom, merely “ordinary but use care” Sterling’s allegation conceded the Board supervision. If probation in his officer probation acting within that the officer was supervise “ordinary Bloom care” did scope employment. his Aside (which obviously necessarily does in- fact, argument this conclusive the dissent’s arrest), liability. then volve there be no will employer-employee misconstrues law. apparently forgotten The dissent valid, today’s argument hold dissent’s there opinion the result is not to Were the negligent for the allegedly employer the state liable would never be because, case, probation negligent employees, of its but acts of its acts officer definition, depend- by to hold that the state liable the dissent’s those may be place the employee the facts acts would outside determination of short, course, majority opinion, employment. jury. scope inti- of his culpa- argument about to the con- mates no view the defendant’s dissent’s would lead bility. respondeat that the doctrine of su- clusion A wealth of perior is void. review of a equally next The dissent’s assertion is fallacy such views. case law shows parole It is that off-base. respondeat superi- rule of be discre The universal officers will unable to exercise employer negli- managing is that an is liable charges, tion in their and or employee its today’s opinion gent the tort law acts omissions “substitutes scope em- planning his or her system policy decisions committed Payette In no Scrivner v. Boise by legislature.”6 ployment. made the Idaho (1928); 334, Co., P. today’s opinion 46 Idaho 268 19 way does Idaho’s Lumber substitute ‘ totally of a really say poses in violation 6. Does the dissent mean to that the while drunk—all legislature his decided that Bloom should drive order? court pur- uninsured motor vehicle for recreational

248 Thompson, 909, 911, v. Smith Therefore, 103 Idaho arguments could discover. its 116, 118 (Ct.App.1982); see also 655 P.2d point on this are without merit.7 Co., Alyeska Pipeline v. Service Williams (Alaska 1982); State ex rel. 343 650 P.2d III. PROSPECTIVE APPLICATION City Havre v. District Court of Twelfth argument The dissent’s last is that to- County, District in Hill Judicial and for day’s prospec- decision only apply should 181, (1980), 609 187 Mont. P.2d 275 cert. tively, apparently еxcluding even Sterling denied, 875; Nabors v. Harwood appeal. from the benefits of Such her Homes, Inc., 77 N.M. 406, 602 423 P.2d argument controlling contradicts law on (1967). employee test for whether an Watson, In Jones v. this matter. 98 Idaho acting scope employ within the his was 606, 608, 284, (1977), 570 P.2d 286 this when he or she committed a tort is ment stated that “the determination of “right control reserved the em whether an overruling ap- decision will be ployer duties of the over functions and plied retroactively prospectively, is a Fence-Craft, 91 Van Vranken v. agent.” matter left to state courts for determina- 742, 747, 488, (1967); 430 P.2d 493 Idaho case-by-ease Quoting tion on a basis.” Elkins, 50, 57, Koch v. Chance, v. Warwick State ex rel. from 548 (1950). words, In other the doc (Alaska 1976), P.2d the Court con- respondeat superior applicable trine of “ ‘A supreme tinued: state court has during period of unfet- time which tered discretion apply particular rul- right principal has the the em to control purely either prospectively, purely McCauley Ray, v. ployee’s actions. retroactively, partially retroactively, lim- (1968). analy P.2d N.M. This only “by philosophy the juristic ited sis focuses on whether the act or omission law, judges conceptions ... their employee is of a kind that the was hired to origin and nature.” is not The decision do, supposed the act do whether of law but a based matter determination substantially or omission occurred within weighing the demerits of each merits and space. authorized limits time and ” Jones, case.’ 98 Idaho at Laccoarce, 284 Or. Stanfield added). making at 286 In P.2d P.2d 1271 determination, are three criteria con- test, Applying this it is clear that Ster- “1) decision, 2) purpose sidered: that, adequately if ling alleged facts law, 3) prior reliance on the rule of true, neg- place to be Bloom’s found would justice.” upon the effect administration ligence scope within the of his course and 609, 570 P.2d Id. at 287. employment. alleged negligence —a supervise in a reasonable Thompson Hagan, failure Bloom proba- 1365, 1371 conduct way for which this Court noted —involves specifically officer was hired. The retroactivity: tion approaches three different negli- may that this mere fact conduct approach traditional rule The first is the gent does not take it the course outside concept derived which is probation employ- scope officer’s law, pronounce new but courts do ment, as both Idaho law and case law case only discover the true law. Under this jurisdictions point from other out. decisions, new but approach there are no true law which only clarifications of the is clear that the novel view of It dissent’s past superior applicable decision to both respondeat of Ida- makes a is not the law approach I future cases. The second jurisdiction other ho or know, disservice to to raise it now does a 7. As counsel to this case the issue of decision will case, acting parties, whether the was within because this officer and to law of this scope employment authoritatively was the course of his decide Court should have to party, either never briefed never raised fully until it been briefed and the issue has by by party, and either was never discussed argued. party argument. either at oral The dissent’s arising subsequent rule a of prospective days is the rule. Under this action to 60 adjournment Regular in ac- is effective future after the of the First decision Leg- of tions, Forty-First does the rule law Session the Idaho and not affect of State in islature. in case which the new rule is the approach the announced. The third Thus, it is clear that the dissent prospective rule is a which modified one cited not case that would countenance and combination the traditional of proposal apply of apparent declining its prospective rules. the Under modified majority’s holding parties the to the to this rule, ap- prospective new the decision appeal. defies Reason also that which the plies prospectively parties and to the would do. dissent bringing resulting the action First, Smith by the action this Court decision; parties bringing new or to —abolishing judicial doctrine sover of pending and all similar the action actions. eign immunity more dramatic than far—is added.) (Emphasis reinterpretation aright setting and approach, considering After each the Court legislature pro that which the Idaho had Thompson, adopted approach the third Thus, if, vided. circumstances deci- holding ruling the effect of its —a Smith, willing this apply Court was its guest Idaho’s statute sion that was uncon- case, parties to the then result apply parties to the stitutional —would fortiori, willing this Court should be case, pending all actions at the date apply holding today its parties to the decision, arising and all actions Smith, today’s In this case. contrast Id.

future. change judge-made does not doc decision Olson, 636, 639, In Dawson Idaho trine; it restores a statute to its original 97, 100 (1972), 496 P.2d this Court acknowl apply holding To fail to our at least intent. “plaintiffs’ edged legitimate interest parties prolong to the instant would be to compensation undertaking after the effort legislature’s thwarting will. expense bringing the issue Dawson Court Second, put “Only before it: State, us.” Accord Sims v. by applying plaintiff Idaho at decision Daw P.2d In legitimate bar com could interest [her] son, specifically pensation, we trying appealing stated: after Dawson, issue, have been satisfied.” su area, In the torts an the likelihood that pra, 94 Idaho at 639 n. 496 P.2d at 100 n.

injured party will undertake extended costly litigation hope com- without pensation, simply to establish a doc- new Third, overruling Dunbar trine, slight the injury unless is recur- Chandler hardly can unex- viewed as Smith arose from a ring in nature. sin- ago, pected. year unequivoca- Over one I incident, gle on automobile accident bly stated that Dunbar Chandler did bridge by Department maintained court, quot- majority of this not command a Highways. Only applying the deci- dissenting opinions filed plaintiffs sion to the at bar their could Donaldson and Bist- Chandler Justices legitimate compensation, interest in State, after 20, 27, line. Merritt v. 108 Idaho issue, trying appealing J., have been (1985) (Huntley, dis- 696 P.2d Dawson, supra, satisfied. now, senting). From that date until was 639 n. 100 n. 6 plus all could add two clear those who added). and Dunbar were Chandler both one that terminally ill. State, 795, 808, Smith In case summary, argument on the dissent’s —the hangs argument authority its dissent is without or reason. this matter —this (that applied holding ap the doctrine this issue was raised Because abolished) sovereign immunity It for this peal, should be it was not briefed. parties appeal, majority opinion and to all causes reason that did say, power government address the issue. Suffice it to how rights of and the ever, opinion applies that the least integrity of the is individual. There case, Smith, parties supra. to this as only conceptual slight be- difference Any produce type other would result of process tween the due clause of our state injustice people that the of Idaho have had principle or federal constitution and the opinions to defunct endure under now governmental accountability of its of Dunbar and Chandler8 former, torts. In the citizens as- are sured that the state cannot take from CONCLUSION rights property them their or without Today’s restores balance decision to process, may property due not be system seriously disrupted been that had taken in eminent citi- domain unless the importance and skewed. The of bal- just compensation. zen In the receives principles not ance essential because latter, government agents may its it, require also of fairness but because the injure property citizens their it, very principles democracy demand I of government course of activities without previously close which I have with that affording proper remedy. them a stated: governmental Because the doctrine of seen Recent decades have dramatic immunity in tort is so much involved with body growth in of constitutional law relationship govern of the fundamental protection sought as citizens have citizens, important ment to its rights their and collective individual legislatures give alike careful courts and may through the nation’s courts. This consideration all laws which deal with partly growth be a result judiciary particularly it. should government, great potential determinations, its view conscious of overlook the interests of individuals and light underlying considera them minority groups as it increases size may be at stake is tions stake. What likely It due complexity. is also for, respect and trust the citizens’ increasing an awareness of the relation- Certainly judiciary government. ship government to its citizens. We objectives care to discern the should take continuing recognize need bal- they expressed are people of the govern- ance between the interests of through reрresentatives, their elected ment and the interests individuals. legisla into Where the and enacted law. per- democracy, government problems acted to resolve the ture has governing to assume its role of mitted governmental immunity, judi created only at the and with consent sufferance con should be all the more cial action Thus, governed. of those when the In the words of Justice Cardo sidered. government arbitrarily unfairly acts sovereign exemption zo: “The dealings people, its with the the basic hardship enough from suit involves democracy foundations are weak- We been withheld. where consent has To the extent a ened. rigor by add refinement are permits wrongs its citizens and has been where consent of construction redress, go wrong to without it loses a L. v. John announced.” [Anderson part govern. of its license 140, 147, 153 Co., 248 N.Y. Hayes Const. surprising It is not that recent decades (1926).] N.E. surge develop- have also witnessed a Prologue, Sovereign Immu- Huntley, ments the area liabili- Reemergence nity and Govern- ty law and in tort. Both constitutional A mental/Proprietary Distinction: governmental liability represent law Lia- in Idaho's Governmental attempt to the tension between Setback reconcile case, properly retroactivity with the issue raised proper another 8. The resolution argued. today’s prospectivity opinion is left for better Law, bility 20 Idaho 197-98 applying quoted L.Rev. state. lan- ‍‌​​​‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌‌​‌​‌​‌​‌‌‌​​‌‌​​‌‌​​‌‌‌​​‍the above (1984). guage, Court in Feres stated: shortcoming

“One obvious in these plaintiffs point claims is that can to no BISTLINE, J., concurs. ‘private liability a even individual’ BAKES, Justice, dissenting: remotely analogous they to that which case, present asserting To reach their result in are the United States. majority prior has overturned our case We know of no American which ever law permitted has a interpreting law the Idaho soldier to recover for Tort Claims Act (ITCA). negligence, against superior his either But that is not all. To achieve serving. officers he is result, Government majority their has also had to any liability Nor is there ‘under like cir- changes, make fundamental tort over- law cumstances,’ private for no individual has turning prior creating case our law and power conscript private mobilize which, (negligence supervision) new tort army persons such over authorities prior present opinion, to the was non-exis- as the Government vests echelons of tent Finally, under the laws this state. command. The parallel, nearest even if majority all changes makes these retro- ‘private we to treat were individual’ as actively, language contrary express state, including a would be the relation- prior of the Idaho Tort Claims Act and our ship between the states and their militia. State, case of Smith v. indulge But plaintiffs we if benefit P.2d 937 For all these I reasons comparison, cite claimants us no of state, dissent. none, and we know of which has permitted members of militia to main- I. injuries tain actions tort for suffered in service, and in one at least state the Governmental Immunity contrary been held to be the case. It “parallel A. The function” test. we true that consider relevant if “parallel “parallel function” or liabil- part ignore the circumstances and ity” test enunciated Dunbar v. United wronged both the status America, Steelworkers wrongdoer these cases we analo- find (1979), 602 P.2d 21 contrary majori- to the gous private liability. In the usual ci- ty’s assertion, express is founded on the patient relationship, vilian doctor and wording harmony of the ITCA and is in liability malprac- of course a for there is with the decisions both the federal undoubtedly tice. And a landlord would courts and the courts our sister states liable if an injury be held occurred to a interpreting language similar in their coun- negligently tenant as the result of a terparts to our tort claims act. heating plant. But the maintained lia- bility by the here It was assumed Government the United Supreme States by ‘all Feres, is that created the circumstanc- Court’s decision in United States v. ’es, that which a circum- 340 U.S. 71 S.Ct. 95 L.Ed. 152 few of might par- stances create. We statutory which established that the find liability before, we think no allel language “in the same manner by, new has been created this Act. one same extent under as a individual immunity is to waive from rec- Its effect like circumstances” contained in both ognized causes of action and was not to Federal and the Idaho Tort Acts Claims. visit Government with novel and un- required parallеl liability parallel func- Feres, precedented liabilities.” 340 U.S. analysis. involving tion Feres was a case 71 S.Ct. at 157 claims, three combined two medical added.) malpractice military third doctors and a heating analysis sup- maintenance of a That further Feres was plant Army 2680(j) in an York ported by barracks in New the fact that 28 U.S.C. the Feres case has been reaffirmed sion in

contained “any arising out Tort Claims Act claim United States the combatant activities military to, every including, case since that time dur forces, Guard, or naval Coast pronouncement its most recent unanimous ing time added.) war.” Shearer, (Emphasis (8-0), United States Thus, excepted Congress specifically had 52, 3039, (1985). 105 S.Ct. 87 L.Ed.2d 38 immunity military the waiver of straight wavering The sole in an otherwise forces, activities but for “combatant line of cases the States was United Su Feres during in Indian The case Tow ... time war.” preme 5-4 Court’s decision “non ing, which was critical of from circumstances which were arose earlier case the States, in peace,” and accord v. of Dalehite United combatant activities 15, 346 U.S. question in ingly the in those three conduct 956, 73 S.Ct. 97 L.Ed. 1427 How not fall within ex combined cases did ever, the Dalekite decision was based en ception in the Tort Claims Section tirely prior upon Supreme the Court’s deci Feres, anything, negative the inference Act. If in sion which has been reaffirmed that, (j) the would when subsection by continuously Supreme the United States arising country peace, was claims out through inception its the Court from military the non-combatant activities of the United in Court’s most recent decision the subject would be to tort claims waiver Shearer, supra. Thus, States v. is that Nevertheless, immunity. Supreme the Towing Indian in which is Court’s decision parallel “We find no lia that, held Court step with all of the remainder of the out bility before, has think no new one and we decisions.2 Supreme States Court United by, this Act.” 340 U.S. been created Airlines, Varig In United States v. 142, 157.1 71 S.Ct. at 2755, L.Ed.2d 660 U.S. 104 S.Ct. (1984), reaffirming prior in in decision “parallel liability” “parallel the or

Thus and, effect, substantially Dalekite commenced, in over with analysis not function” Towing, Indian ruling Dunbar in the majority the its decision our Idaho case as Court, referring to asserts, Supreme opinion mistakenly but with the United States Towing, Indian read Fed- stated “the Court’s Supreme analysis first the Court’s admittedly in Feres. ing of Act followed Act The deci- the eral Tort Claims provided by beyond emptions majority special concurring opinions into the act those 1. The and act, [or, liability Congress argue parallel test in case of the Idaho the that the function the short, “implied spe legislature]." majority’s an ex in Feres constitutes the and enunciated ception" "implied Claims arguments Federal and Idaho Tort the ex that cial concurrence's ceptions” and, such, Quoting must be disavowed. Acts be disavowed tort claims acts must Supreme decision the States Court United argument special square that a with their do Rayonier, in 320, Inc. v. United 352 U.S. exemption military the in the arena under exists (1957), the 1 L.Ed.2d 354 77 S.Ct. majori attempt by both the Feres doctrine. justification majority “There is no states: concurring ty opinions to dismiss the ratio exemptions into act be Court to read the i.e., holding, parallel func the Feres nale of [or, provided yond by Congress case those test, suggesting liability by there is an tion or 223, 723 act, legislature].” Ante at military, exception implied contra (as by majority opinion). P.2d at modified dictory unavailing. However, majority's argument contradicts the special in that the concurrence assertion parallel Supreme in Indian Tow- Court's decision 2. The solely is limited test Feres interesting case district because military. an assertion amounts the nothing Such complaint, court had dismissed "implied of an less than the creation affirmed, Appeals based had Court of military exception" where none exists for the Supreme Court of Dalekite cases. Feres and express language As dis express of the statute. equally States first affirmed the United text, supra, is an there cussed court, S.Ct. 575. How- divided ever, exception in the FTCA for claims rehearing, petition granting after exception inapplicable military, but Court, justice getting on the apparently a ninth contend, as do the facts of Feres. Thus decision writ- in a terse 5-4 the Court reversed concurrence, special majority both the Frankfurter, little contains ten Justice military vitality only arena retains Feres analysis Tort Claims Act. read[ing] ex ... to "this Court tantamount line____” United v. States Var strаight exceptions, creating liability on the state Airlines, ig 104 S.Ct. 2764.3 “to the same extent as if it were a person corporation.” Nevertheless, Thus, very from the first United States Edgar Washington, State case of United States v. case, Supreme Court 92 Wash.2d Feres, supra, 595 P.2d 534 to the most recent United Washington Supreme case, applied United States Court Supreme States Shearer, parallel analysis function every case in be- the claim of a of Indian tween, Tow- Washington member of the Air National ing, Guard, the United States Court has who sued damages the state for function, parallel parallel followed the which he claimed to have suffered as a liability analysis of Feres. being suspended result of from certain as- signments with the Air National parallel analysis Neither is the complaint alleged Guard. The mental dis- Dunbar among of aberration state tress, humiliation, harassment and threats interpreting court decisions tort claims by plaintiff’s superior officers, the acts, all via- majority suggests. analy- as the That Washington ble torts under employed by sis has been the law. The other state Washington Court, adopted Supreme noting courts which have the Federal Tort the language, Act including “private person corporation” Claims the language states or Washington, of Ohio and Florida. Washington Act, of the Tort Claims stated the in issue the case to be as follows: “The Washington Act, The Tort Claims similar is, question plaintiff does the seek to hold acts, to the Idaho and federal the waives the State liable ‘to the same extent as if it immunity of the state “to the same extent private person were a corporation’ or private person as if it were a corpora impose upon does he seek to liability it a tion.” Wash.Rev.Code 4.92.090.4 How parallel private which has no sec- ever, Washington the act contains none of tor?” added). exceptions the at 538 to waiver listed in the Feder that, “private al Tort Claims Act at The court held because of 28 U.S.C. 2680 or the the act, Idaho act. Washington person” language The act plaintiff is a total of the state immunity, waiver of listing any without required show “to that the conduct majority special concurring 3. Both the note 12 stated that since its decision was found- opinions Varig sup- upon assert that reaffirmed the ed the function posed holding Rayonier rejecting parallel “unnecessary found it to address these addition- liability If, majority concurring test. The by majority al issues." Id. as asserted opinions language refer concurring opinions, holding in Rayoni- footnote 10 of Varig opinion. parallel liability That footnote does contain er overruled test enunciated following Feres, language: holding Rayoni- surely "The in then the unanimous Court in obviously judg- er Varig govern- overrules one element of the would have closed the door on the Dalehite____" argument concerning parallel liability. ment in ever, 104 S.Ct. at 2765. How- ment’s Indeed, indicates, as the footnote read in whole if the "one element” referred to foot- in test, Rayonier’s "one parallel liability element" referred to was hold- note 10 was the then the liability portion addressing that the parallel FTCAdid not restrict of footnote 12 government municipal corporation liability argument “to that of a would Instead, public body.” Municipal corpora- unnecessary. or other Id. have been the Court’s equivalent parallel addressing tion tort law is not the deliberate action in not this issue liability Varig recog- parallel analysis test. That the Court in indicates that the function is legitimate interpretation nized such a distinction between the two con- indeed a viable and cepts readily apparent “private person is in like from the Court's lan- circumstances” liabil- guage Varig. ity language in found in footnote 12 in In footnote both the federal and Ida- that, apart ho acts. Court noted from the discretion- ary exception, government Varig function immunity also asserted its based on Tortious of state —liabili- "4.92.090. conduct argument “the ty damages. Washington, that conduct of the FAA in The state of certifying governmental acting proprie- aircraft is a core activi- in its whether act, ty tary capacity, damages arising that is not actionable under the because shall be liable for private engages analogous no individual ac- out of its tortious conduct to the same extent as tivity.” private person corporation.” 104 S.Ct. at 2766. The Court in foot- if it were a fix, complained of constitutes a tort which and order such reasonable standards construction, be actionable if it were done repair, would for the and mainte- setting.” private person private places employment nance shall safe____” analyzing After the United P.2d at 539. render them 367 N.E.2d at 52. decision Feres v. States Court’s plaintiff alleged defendants 135, 71 S.Ct. United had breached duties under the their stat- (1950), Washington L.Ed. Su- utes and therefore were liable under the preme applied parallel the Feres Court Court, Claims Act. The Ohio Ohio Tort analysis case to the facts function noting immunity the state’s waiver stated, Feres, no quoting “[T]here appli- rules of was limited “the same law private sector comparable function ...,” private parties cable to suits between law and thus no common action which private held 367 N.E.2d that: “[A] person sim- would be liable under inspect party’s and to enforce safe- 595 P.2d at 538. ilar circumstances.” statute, ty standards not created but Washington upheld court the trial court’s legal some relation- by virtue of other plaintiff’s action based dismissal of and, hence, ship there rule law analysis. This is the parallel making private party liable for a failure ap- analysis very same which this statutory inspection perform duties of held, Dunbar, in lan- plied in where we safety standards which and enforcement Washington guage almost identical health, protect safety were enacted to court, parallel func- are not “[t]here of the citizens of Ohio.” and welfare all the of private in the sector” to duties tions at The then held that 367 N.E.2d 54. Court find- inspector, mine and thus the state “[a] duty a toward the statutes did create liability for of those ‘duties’ ing of breach particular accordingly held person running in the plaintiffs would result private person not recov- since a could we new of action which creation of a cause cause was no new of er on them there contemplated by legisla- our not to be deem against the state. There action created ture, concepts of foreign traditional private being responsibility to a parallel no the law of torts.” Dunbar United imposed upon Industri- to that the party as America, at Steelworkers of Commission, being private no and there al 546, 602 P.2d at 44. statutes, liability duty upon those based prior to deci- years Three our Dunbar liability to the state. found no the Court sion, Supreme applied a the Court also Ohio of Florida in the Finally, dismissing a parallel function rationale Hialeah, 468 City Park v. Trianon of their Industrial Commission case (Fla.1985), dismissal upheld So.2d inspections. safety failure to conduct City against the of Hia- plaintiff’s action of Commission, 51 Shelton v. Industrial units damages condominium as leah for (1976). In App.2d 367 N.E.2d 51 Ohio alleged negligence of the a result Shelton, alleged plaintiff had inspections building in their city inspectors and other Industrial Commission Ohio during construction. of the condominiums per- agencies state "were of Florida framed Supreme Court make duties to statutory formance of their follows: issue as investigations,” 367 inspections and various may entity governmental a “Whether added), as and that N.E.2d at 51 property own- in tort to individual liable plaintiff injured when a boiler result a its build- negligent actions of ers for processing sugar exploded at Ohio provisions enforcing ing inspectors was based plant. Plaintiff’s claim pursuant building code enacted a placed statutory provisions certain governmen- vested in that police powers agencies the af- governmental upon the 914. entity.” So.2d at tal investigate rea- duty to and set firmative analysis, parallel function working Utilizing a for hours sonable standards government was not “ascertain, held that court plants, and to conditions parallel 6-903(a). plaintiff’s and dismissed action. The liable I.C. § court stated: Dunbar v. United Steelworkers Amer- ica, Furthermore, supra. as discussed la- governmental entity, through a “How its ter, employees, there never has a officials exercises its dis- existed cause

cretionary power action at compliance to enforce common law in favor this state duly by laws govern- with the enacted of a citizen failure of a law body governance, mental is a matter quasi-judicial agency enforcement or such for which there never has been a com- per- as Board of defendant Corrections to duty mon law of care. form its statutory supervising pro-

bationers placed custody by its court McMillan, order. Jacobson v. Idaho find that “We the enactment of statute (1943); Witt, 132 P.2d 773 Worden giving entity power P. 1114 compliance enforce law does not, itself, give in and of individuals a right of previously

new action that never exception. discretionary B. The function existed.” 468 So.2d case, court, as present In the trial Thus, not, parallel liability test did action, dismissing the one of reasons for by the “first majority, asserted surface in discretionary Dunbar.” function ex Ante at found at 759. 6-904(1) major parallel applied. Nor is the ception, function test an I.C. “implied exception” conjured application ity’s regarding up by analysis a “self-constitut guardian ed found treasury,” as the [state] majority opinion 6-904(1) it fails is flawed because at I.C. intimates.5 Ante on the conduct asserted properly P.2d at 767. focus Furthermore, as indicate, plaintiff the above cases derivation as the basis claim of her such be more test from the Board. As will language against defendant of the ITCA is a le II.A(2), gitimate once the interpretation fully in Part discussed express word allegations utilized legislature. dross is removed Liability of a it clear that plaintiff’s complaint becomes entity under the ITCA ex alleged con private ists “if a person the essence or entity would (an supervision” ex “negligent be liable ... under is the laws of the duct state of term), tremely imprecise Idaho” and then as discussed only if none of the enumer rather, alleged to exceptions ated the conduct majority; contained in I.C. 6-904 § plaintiff’s injuries apply.6 caused proximately have defendant (1) to arrest failure is either: abundantly at once clear there It is that of his of the terms Bloom for violation parallel is no in the sector to de- Bloom’s (2) to cause failure probation; or (Board). Board fendant of Corrections revoked.7 probation to be being parallel, There no such there can be concurring special opin- recognized 7.As 5. See footnote ante at 723 P.2d at 796. ion, plaintiffs allegations are that the board agree- properly failed “to order 6-903(a) qualified general a enforce § 6. I.C. sets forth probation.” ment of Ante at 723 P.2d However, liability. any general rule of rule, as with However, added). (emphasis proper focus bring plaintiff failure of her claim a authority given be must on the means or purview pre- or within the of the rule statute Board of Corrections to “enforce" such an order addressing application court cludes a from even probation. recognized it end must be excep- (including any of the statute enumerated board, any that no less than law enforcement tions) plain- a would merits of such be law, agency, authority exercises its to enforce Thus, hardly argued claim. can be tiffs orders, power. including via its arrest court qualification statutory express an rule of suggestion proba- special The concurrence's 6-903(a) liability imposed by § I.C. somehow Housley ordered should "have tion officer exceptions with the enumerated con- conflicts purposes, Bloom to drive for recreational swallowing general tained in 6-904 thus per- vehicle written and not to drive a without nullity. rendering majority’s rule and it a insurance, report and to mission and without regard analytically in this assertion unsound. already regularly," merely duplicated the orders concerned, plain- driver the second is drunk who is later Insofar as involved in colli clearly complaint fatalities); states no cause producing tiff’s Parker v. Sher sion defendant Board. The Board man, action (Mo.1970) (failure 456 S.W.2d 577 authority simply without of Corrections police non-gambling to enforce statute not probation. Revoca- to revoke an order Pierce, actionable); Tomlinson v. 178 Cal. probation purely is a tion of (1960) (no App.2d Cal.Rptr. 700 liabil courts, entirely to the function entrusted ity police for failure of officer arrest discretionary func- and such I.C. § though even knew individual he the individ I.C. 6- falls the ambit of tion within ual was intoxicated and intended to drive 904(1). automobile); Annot., 41 generally see failure to arrest Bloom Insofar as the ALR 3d 700. The rationale for a such rule concerned, offi- Board its non-liability adequately expressed authority engage such cers do have v. United States by the Fifth Circuit However, proba- 20-227. action. I.C. § Faneca, (5th Cir.1964), F.2d 872 authority is of that tion officer’s exercise (5th Smith United 375 F.2d 243 wording discretionary. express purely Cir.1967). indicаtes that use statute carrying “Just as the tasks of out the permis- power therein is arrest conferred among ... are orders this Court mandatory. “Any parole sive rather than [particular responsibilities of the law en- may parolee probation officer arrest agencies] so choice forcement ... is the ... probationer without warrant [if] performing pe- tasks of means these judg- has, parolee probationer culiarly within their discretion.” Faneca probation officer, ment said parole or F.2d at pro- parole or the conditions of his violated added). 20-227 bation.” I.C. Smith, plaintiff had stated in where And as part alleged negligence on the of the Unit- Furthermore, en- non-liability of law prosecute arrest for failure “to ed States arrest a agencies forcement for failure to injuring his business.” Smith persons the laws lawbreaker or otherwise enforce (which in- given perforce F.2d at 244. jurisdiction of a orders) accepted court is a rule law clude decisions con- government’s “The federal ad- nearly have jurisdictions all its stat- cerning enforcement of criminal City dressed issue. Dauffenbach comprise part pursuit of its utes Wichita, Kan. government could policy. national If the (police immunity from have to enforce its held liable for [failure performance or non- arising on claims in this could choices area ... laws] general duty to enforce performance of by such a quite conceivably be affected Zinser, state); Mich. Zavala laws of Thus, the feder- policy decision of suit. (1983) (no liabili- App. N.W.2d 278 by a might be influenced al fight ty for officer’s failure intervene responsi- governmental plaintiff ultimately gunshot resulted in a which bility. Hall, Crouch v. plaintiff); wound (Ind.App.1980) (police officers N.E.2d 303 holding than non-liabili- “Another [other investigate properly not liable failure to government’s con- ty] could diffuse later rapist who week apprehend one irrationally con- policies over ... trol daughter); plaintiff's raped and murdered responsibility in fortui- political Willard, (Fla. centrate Everton v. 468 So.2d 1985) (no tous lawsuits. liability failure to arrest require would constant by occur is diffi- But for

given the court. It defendant Bloom probation would need to be supervision, court’s that would add to the cult to see how sug- leg- probation. only policy relationship, means The other order one-on-one Housley gested overseen “could have rejected reasons. for obvious fiscal has islature prevent violations." Bloom’s these conduct adequately discharged discretionary else this function in the “Whatever [the func- do, exception] may pre- past “planning-opera- tion without the of a ... aid [it] test, and I why vents this tional” fail to see such a diffusion of ” test power entirely is now called for. It seems into hands. Smith 375 added). legislature reasonable to me that when the F.2d at 247-48 utilized the term “discretion” in 6- I.C. § Apart my objections majori- 904(1) presumed that the term would be ty’s properly alleged failure to focus on the interpreted applied in the same manner purposes conduct involved for traditionally that this Court has made the analyzing applicability of the discretion- activity determination of whether or not ary exception, I function believe the Court discretionary. holding The in Chan- adopting “planning-op- errs in the so-called Boise, dler Supply City Co. v. 104 Ida- Answering ques- erational” distinction. ho nothing 660 P.2d 1323 regarding applicability tions dis- recognition prior more than a de- those cretionary exception admittedly function challenged terminations of whether or not process. process a difficult This difficult discretionary action constitutes action will “planning-opera- will be aided be made in the same manner as it distinction, tional” standard. Such a always been made this Court. The ma- practical application, prove will to be illu- jority’s recognize import failure to sive, specious. if not There is no discerni- holding our in Chandler has worked a ble line of demarcation between where case, great present namely disservice planning stops And, operations begin. adoption “planning-op- of the so-called as the Supreme United States Court stated erational” test. Airlines, Varig United States v. “ majority opinion finds this Court’s “discretionary duty” function or ‘[T]he interpretation discretionary function that cannot form a basis for suit under 6-904(1), exception contained in I.C. § the Tort Act Claims includеs more than Chandler, step set forth in to be out of programs the initiation of ties____ and activi interpreting with federal case law policy Where there is room for equivalent provision in Tort the Federal judgment and decision there is discretion. Claims Act. I believe that conclusion is necessarily It follows that acts of subor majority correctly “First, it is the nature of the spun capricious incapa- and as to be almost actor, rather than the status of the being adequate ble of in held the mind for discretionary governs whether the func- ” States, formulation.’ Smith v. United case____ exception applies given in a tion 375 F.2d at 246. Thus, inquiry concerning the the basic traditionally discretionary This Court has been called application of the function upon past in exception challenged decisions to draw the distinc- whether the acts discretionary employee tion between ministerial and of a Government —whatever and by governmental action entities. We have his or her rank —are of the nature Congress quality that intended to shield of “acting Corrections was in its role not liability. regulator from tort private as a of conduct “Second, supervision proba individuals.” If the of the discretionary whatever else regulation include, tioners does not constitute the exception may plainly it function individuals, private encompass of the conduct of then was intended to the discre- nothing tionary acting of in does.8 acts the Government regulator role a of the conduct of its as II 813-14, individuals.” U.S. Analysis Tort Law 2765. 104 S.Ct. at overturning Additionally, majority’s in the earliest deci The Dunbar and Court’s regarding prevent the to dis- sions function Chandler is not sufficient very po present in exception, expressly plaintiff’s it refuted the of action the missal more, complaint interpretation by majori plaintiff’s or taken the sition case. Without case, i.e., ty present subject the failure to to dismissal for still policy enough applies only planning to the for action. It is not to state a cause of governmental activity stages mation of to prove that state has consented be the “operational” aspects immunity of such sued, i.e., not to suit. In to waived stated, quoting Varig nothing activities. The Court waiving immunity, the ITCA does hold, Dalehite, enough “It we immunity to to the state’s more than waive do, ‘discretionary duty’ that the function action; not a cause of action it does create a under the that cannot form basis suit I.C. 6- previously none existed. where Claims Act includes more than the Tort 903(f) part, “Nothing in in this act states activities____ programs initiation adversely affect otherwise enlarge or shall of judgment policy there is room Where govern- a employee an of It neces is discretion. decision there immunity Any or other entity. mental in that acts of subordinates sarily follows Idaho or a lawsuit under bar to civil operations government of carrying out The in law shall remain effect.” federal cannot with official directions in accordance ignore this directive of majority chooses v. United Dalehite be actionable.” stating, “It has been legislature, the Idaho 73 S.Ct. 346 U.S. was not the 1971 act argued that approval in United States quoted with causes of action to create new intended 797, 811, 104 Airlines, S.Ct. Varig its business governing.” Ante at 723 P.2d at 766. short, case, Responding argument, majority to that In under the facts of this opinion, quoting from the United State hardly argued defendant Board Su- can be duty imposed Varig Contrary is not unlike the argument special 8. con- case, currence, allegations present Varig present In did involve case. facts negligence against government in its role as duty order of conform with court’s Ante, 239,723 "passer regulations.” P.2d at primarily probationer with the probation lies Varig allegations negligence cen- instance, of Correc- while the Board the first regulations, implementation tered on compli- policing acts role enforce tions regulations on decisions of whether to enact the powers, with order via its enforcement ance Furthermore, analogy important involved. Also, i.e., power. primarily both Var- the arrest Varig present exists between the case case present ig involve enforcement case Varig the United States before this Court. In mandatory Varig In that law was in the law. Supreme found that the FAAcertification present mandatory regulations. In form (the process by process which manufacturers In court order. both it is in the form of a case required comply with the aircraft were government power present Varig case the enforce- and the safety regulations) founded was permis- premised (policing power) ment relatively simple notion: regulations. discretionary statutes and sive comply safe- insure conformance or to power by policing Varig held that the Court primarily ty regulations manufac- lies with the exempt. Under the same discre- the FAA be tionary aircraft, merely acts while FAA turer probation polic- exception, the policing agency. 104 S.Ct. at in the role of exempt. function should Court’s characterization 2766-67. opinion Rayonier, Inc. majori- and the Board of Corrections. The preme Court’s 315, 319, 77 S.Ct. ty’s analysis regarding aspect plain- this of United states, (1957), 374, 377, ignores prior then 1 L.Ed.2d tiff’s case our case law. Tort Claims very purpose plaintiff Since the seeks to hold the board “But the negligence tradi- government’s of to waive liable Act was immunity from tort all-encompassing agent/employee (probation officer Hous- tional unprec- and to establish novel ley), imputed negligence actions the doctrine liability.” respondeat superior Ante clearly implicated. is edented doctrine, plaintiff this P.2d at 766. To succeed (1) agent/employ- that the must establish: However, 6-903(a) specifically re- I.C. § negli- ee’s conduct constituted actionable Rayonier unprece- jects this “novel and i.e., gence, practical purposes plain- for all liability” doctrine. There no com- dented is tiff must make out cause of action for parable provision in the Federal Tort 6-903(f), negligence against Housley; and rejects Claims Act I.C. § negligent agent/employee’s acts were Rayonier’s unprecedented “novel and lia- doctrine, “within the course majori- scope employ- bility” and therefore the 6-903(a); (Sec- Rayonier upon the decision of ty’s reliance ment.” I.C. Restatement § Supreme ond) Court to the Agency the United States 243. § very purpose “the of the Tort effect that Act was to ... establish novel and Claims A.

unprecedent governmental liability” is con- Turning first to the cause of action for trary express Idaho to the directive of the negligence against agent/employee, 6-903(f). legislature in I.C. The basic by allegation that the now axiomatic premise motivating majority in this plaintiffs complaint, order to state having expressly rejected by the case been negligence, cause of action for must set 6-903(f), legislature in the en- I.C. § following “concepts fundamental forth the analysis majority opinion tire tort breach, any negligence duty, action: majority thus flawed. Because the errone- Blake v. damages.” proximate cause and ously approaches aspect the tort law Cruz, 253, 257, 108 Idaho from the doctrine case borrowed from (1985). analysis plaintiff’s com- Careful Rayonier case that the purpose of the Tort it is deficient to two plaint reveals that Act was to Claims establish “novel elements, namely, of the four fundamental unprecedented liability,” Thus, plaintiff duty proximate cause. legislature when in fact the Idaho stated negli- a cause of action for has not stated “[njothing enlarge this act shall ... and, gence against employee Housley employee govern- of an or a therefore, cause action states no entity,” approach mental whole basic defendant State Board Corrections. majority opinion wrong. If the ma- jority opinion were true to the directive of Duty 6-903(f), and it followed the doctrine I.C. § primary element in a cause of action tort law cases of Worden v. existing of our duty negligence is the existence of Witt, (1895), 4 Idaho 39 P. 1114 particular plain- owed defendant to the McMillan, ‍‌​​​‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌‌​‌​‌​‌​‌‌‌​​‌‌​​‌‌​​‌‌‌​​‍Jacobson Keeton, Torts, (1984). & tiff. Prosser be com- P.2d 773 Court would Thus, may the de- while “it be said pelled today to affirm the district court may not fendant was ... be] plaintiff’s complaint. [he Once the dismiss duty he under no removed, liable because immunity shield of to suit is to be.” Id. question of plaintiff not plaintiff affirmatively must still establish particular under the existence of a governmental entity, “if a that the question law for of the case is a facts person entity, would be liable ... under Keeton, Torts, Prosser & prior to a the courts. the laws of the State of Idaho” As finding liability as to the of Idaho stated State 260 gal duty by in a act the

California tort claims owed her of defendant State of State California: (through Idaho Board of Corrections its Indeed, face, agent Housley). plain- a on its ‘duty’ question “The existence of is of complaint (Citations omitted.) entirely specifically fails ‘[L]egal law. duties tiff’s to nature, allege duty. the any are facts of but existence of Plain- not discoverable that, expressions in conclusory complaint allegations merely tiff’s does contain of liability type, particular earlier, negligence, a cases of but as stated imposed damage.’ should be Tarasoff allegations negligence will not flow from of University Regents allegations absent that show that defend- of v. of Califor 14, nia, 425, Cal.Rptr. 131 551 Cal.3d duty [17 ant was under a not to be (1976).]” Thompson County P.2d 334 v. plaintiff. toward 741, Alameda, Cal.Rptr. 27 167 Cal.3d of Drawing reasonable inferences from the 70, 74, 728, (1980). P.2d 732 614 allegations plaintiff’s complaint, pos- it is Essentially question the of of existence glean to of sible therefrom existence duty legal involves a determination that a possible duty imposed three sources of relationship de- some exists between the (and agent defendant board therefore plaintiff gives rise fendant and the (1) Housley): probation; of the court order partic- obligation an of toward a to conduct (2) probation agreement between the person “[D]uty ular in the first instance. Bloom; board defendant is question of the defendant whether investigate, statutory duty supervise, obligation any under benefit probation. report violations of Keeton, particular plaintiff.” Prosser & However, beyond question under it is supra at prior decisions of this the statutes and Furthermore, exist- a determination arising any these duty particular in a case involves ence of a an may not form the basis of three sources factors, including of several consideration action tort. following: category, The second de extent of the burden to the “[T]he violation, quickly agreement answered to the commu consequences fendant and cases, culminating long by a line of Idaho nity imposing duty to care exercise v. our recent decision Carroll with most breach, resulting liability for with America, 107 Ida Steelworkers United cost, prevalence availability, 717, (1984), 361 wherein we ho the risk involved--- insurance for stated: agencies are addi public When involved that an Idaho law it is settled “Under tional elements include extent of perform a alleged contractual failure upon powers, imposed role agency’s tort____ obligation is not actionable imposed it and the limitations law Herbold, Idaho Taylor In v. City budget.” it Davidson stated, (1971), ‘To we found P.2d 664 Westminster, 197, 185 Cal. 32 Cal.3d of Rptr. tort, there must be breach action (1982), quot non-performance duty apart from ing approval Rowland v. Chris nonfeasance, even a contract.’ ... Mere tian, Cal.Rptr. 69 Cal.2d neglect per- it amounts Thompson v. Coun P.2d 561 willful if contract, to es- Alameda, 741, 167 Cal. ty 27 Cal.3d insufficient form duty in Carroll tort.” tablish (1980). Rptr. P.2d 728 America, 107 Steelworkers United case, constru- present even when 717, 719, 692 P.2d allegations the facts and contained deciding, proba that a Assuming, without in- complaint plaintiff’s and all reasonable contract, is an enforceable agreement tion light favor- therefrom in a most ferences Taylor v. Her case and she has Carroll plaintiff, able is clear that bold, supra, of the Board Corree- any le- failure failed establish existence of case, present in In Jacobson perform the contract would not case. tions in support an action tort. one Dan O’Connor had been arrested and charged deadly weapon with assault awith categories, As to the other two attempt as the result of an to shoot his probation and the board’s court’s order being wife. After bound over on the as- 20-219,9 duty in statutory contained I.C. § charge, sault O’Connor was committed assertion, majority’s contrary to the custody of the Kootenai County sheriff. arising from these duty two sources is specifical- The court’s order of commitment large public to the at and not in favor owed ly required that the individual involved be an individual member thereof.10 custody County in in the retained Kootenai in is that duties established law Idaho such charges jail pending trial on of assault with running in imposed public on officials and deadly weapon. a The court’s order was general public of the do not inure to favor parallel rescinded. The particular mem never between of individual or thе benefit Worden Jacobson general public. in the case and the facts in of the facts bers Witt, (1895) (“[I]f P. 1114 point 4 Idaho are obvious. In the this case to this authority impos duty the official present case the defendant was convicted duty public, is a to the es an officer DUI, felony legal custody and his was it, perform inadequate or an or failure to probation committed to the officer Hous- performance, public, erroneous must be pro- ley, although released nevertheless on individual, injury, and must be re not bation, in under the strict terms as outlined all, dressed, public in if at some form of Housley majority opinion. Officer 406-07); Jacob prosecution.” failing accused of to enforce the court’s McMillan, son v. 64 Idaho violating probation, order of thus it. Sim- case, in the present ilar to the the sheriff case, acting in Jacobson was accused McMillan, Jacobson In and the direct contravention of the order (1943), 132 P.2d 773 this Court was faced by 20- statutory duty imposed then I.C. substantially facts the same as those (another obviously foreseeably parole supervi- endan- ans class "20-219. Probation 9. drivers) certainly brings gered by sion.—The state board of corrections shall be charged within drunk duty supervising persons gen- with the all enough members to constitute the the class placed probation short, on or released from the state "foreseeably public. endan- In eral penitentiary parole, persons on released and all standard, applied statutory duty gered" to the parole probation from other states and on nothing proof by imposed but I.C. Idaho; making residing in the state of such duty duty merely general that the may necessary; reporting investigations as be large. public at alleged spe- parole violations of fact, majori- very by the In rationale utilized or the courts to cific cases to the commission recently ty present opinion been determining parole proba- whether the aid tion should be continued or revoked preparing by rejected expressly the California courts. and of Oxnard, Cal.App.3d City Lehto v. history prisoners of the a case record alleged, plaintiffs Cal.Rptr. had sim- or the courts in deter- to assist the commission case, present allegations ilar to the mining they paroled or should be if should failure to arrest law enforcement officer’s probation. released on he knew to be an individual whom intoxicated majority's attempt to circumscribe duty to members of of a owed was in violation duty supervision investigation plaintiff reasonably general public foresee- who were Indeed, unavailing. present in the majority’s case is driver, namely, victims of the intoxicated able doing, plaintiff basis for so motoring public. The court in members foreseeably endangered vio- within the class rejected expressly this characterization Lehto duty, undoing of the lation of the majority’s is itself the plaintiff police. duty "The fact that owed are not the rationale. Motorists motoring might public have as a member of foreseeably public en- class of members of the dangered by victim, by reasonably itself is foreseeable been a driver, "obvious to a drunk as is relationship enough special to establish a class itself as the utmost." If "motorist” is not impose duty them a on with the officers (for only opera- general public broad as the Cal.Rptr. at 454. use due care." therein, also of vehicles are included but tors their pedestri- passengers), then the addition of 604,11by removing the committed individu complaint. appeal dismissed the Plaintiff jail prior from the county al to trial and ed. This Court affirmed the trial court releasing custody hospital him the (1) two alternative bases: lack of superintendent hospital the state plaintiff by defendants, owed to Through alleged negligence Blackfoot. lack of proximate cause.13 hospital failing superintendent Court, Ailshie, Writing for the Justice individual, supervise the committed he was dismissal, affirming the applied traditional freely permitted to wander around the hos analysis tort law and held that there exist- pital grounds guard and a result without duty plain- ed no between defendants and hospital. escaped from the state Subse tiff. quent escape, hospital to his neither the officer, “The superintendent county peace duties of a nor the sheriff at who escaped tempted apprehend two-fold, (1) to the individu custody prisоner, of a to are again al. Several months later O’Connor the to public prisoner____ the attempted process to and in kill his wife the duty no more to one member owes [H]e trying pro two were to assaulted men who public of than to the another. her, killing wounding the oth tect one sheriff, “Any part on the of the violation brought Suit was both the er. duty keep prisoner charged of his to hospital superintendent by sheriff and the crime, public; with a is answerable to the Jacobson, the in the individual wounded subject he is ... removal complaint, In al assault. his Jacobson wilful, office, of violátion case, leged, plaintiff similar to the however, right, duty. such That does proximate injuries his the result that were not inure to individuals. It rests negligence the sheriff and the of the of public by the the and must be exercised were in direct superintendent whose acts proper of prosecutor party or a on behalf committing the violation of the court order P.2d at the 64 Idaho at 132 state.” county jail.12 individual Defendants omitted). (citations 777 superintendent of McMillan and the Sheriff holding, Ailshie reaching this Justice hospital complaint moved dismiss language from specifically relied on the alleged grounds that facts of Witt, supra. v. Jacobson Worden v. did a cause action. complaint not state of McMillan, at granted The trial court the motion opinion majority actually to the both in the con- assertion 11. “20-604. Prisoners must county jail prisoner concurring opinion that an special fined.—A committed and in the examination, proxi- allegation alleged or for conviction for trial is the that the conduct offense, actually public must be confined injuries for in the admitted for must be mate cause of jail legally discharged; and if until he is purposes a demurrer. motion to dismiss or of a jail, permitted go large out issue, he is of usually An- cause is a factual Proximate process, legal except order or it is virtue of a Schutte, P.2d 1095 nau v. added.) escape.” (Emphasis ‘duty’ is a of a “the existence while County Thompson question law.” v. of of special concurring opinion suggests that 12. The Alameda, Accordingly, demurrer supra. if the dicta, analysis duty in Jacobson was the lack of allega- case admitted filed in the Jacobson asserting in Jacobson decided the that the Court cause, alleging proximate complaint tions in proximate cause rather than on the lack of case sustaining of the for the then real basis any duty complaint assert failure legal question of was the in Jacobson However, demurrer against the in the Jacob- defendants. duty, the ratio which became existence sustained a demurrer son case trial court allegations case. decidendi in the all of the which admitted complaint purposes plaintiffs the demur- rer, including allegation basis, com- in Jacobson’s Court held second 13.As to this proximate injuries plaint his "a result were protect plaintiff, primarily to O'Connor’s hired negligence violation the order being him, the risk of had assumed wife from [by commitment the defendant]..." Jacobson v. Thus, although the by O'Connor. assaulted McMillan, 64 Idaho at 132 P.2d at 775. cause, really proximate it was Court discussed on the The insistence that Jacobson decided assumption of risk. applying the doctrine cause, duty proximate and that the basis of dicta, contrary directly analysis in that case 773. The rationale of Jacobson likely releasing that no therewith were a result liability accrues in of an individual community.’ County favor him into the also alleged public, on an member of based knew that James had ‘indicated he general duty public, is in breach of a would, released, young if the life of a take majority jurisdictions accord with the residing neighborhood.’ child ... See, e.g., have addressed the issue. temporary County released James on Alameda, Thompson County leave into his custody mother’s at her 70, 80, Cal.Rptr. Cal.3d home____” Thompson County (Cal.1980) (absent special rela- Alameda, Cal.Rptr. 614 P.2d at tionship between the authorities added). present As in the victim, proba- is owed case, plaintiffs in Thompson had al- to a is other- tion authorities victim who leged special relationship the existence of a single large amor- wise a “member of a county juvenile between the and the of- group potential targets”); phous public juvenile fender. The offender was commit- Willard, 468 So.2d 936 (Fla. Everton v. county pursuant ted to a institution to 1985) (“The offense, of a criminal victim just court order as defendant Bloom the might prevented through have been present case was committed to action, law enforcement does reasonable juvenile under a court order. The offender duty not establish a common of care the law Thompson parole the time of was on at resulting liabili- individual citizen and tort relationship the incident. There existed a victim.”); ty, special duty to the absent county juvenile and of- between the Wichita, City v. 233 Kan. Dauffenbach parolor parolee. fender of Neverthe- (1983) (failure 1028, per- 667 P.2d 380 to less, the California Court held duty general public form owned to does not that, special relationship between absent Sorichetti v. give liability); rise to tort i.e., county plaintiff-victim, and the York, City 461, New 65 N.Y.2d 492 by showing by plaintiff that the state 591, 595, 70, 74 N.Y.S.2d 482 N.E.2d specific plaintiff placed its conduct (absent special relationship, municipality “a danger, position clearly foreseeable duty does not owe a to its citizens in the county. imposed on the could be functions”); performance Thompson Contrasting facts in with its King County, v. Chambers-Castanes 100 State, Johnson v. holding in 69 earlier 275, 451, (1983) (duty Wash.2d 669 P.2d 457 P.2d 352 Cal.Rptr. 73 447 Cal.2d agencies protect of law enforcement (1968), danger focused where the risk public duty public is a “owed to the specific plaintiff, the court precisely on a large individu- unenforceable as to [is] County Thompson that Alameda held in generally, See public”). al members of the relation- special and continuous “bore no Annot., (1985). 38 A.L.R.4th 1194 specific plaintiffs nor did the ship with the Thompson supra, presents case, specific plain- county knowingly place the substantially present facts similar to the foreseeably danger- into a tiffs’ decedent Thompson, plaintiffs sought case. In Thompson position.” The court ous County Alameda liable for hold defendant distinguished prior decision likewise following release the death of their son California, Regents Univ. offender, Tarasoff dangerous juvenile James. of a again the victim where plaintiffs alleged that complaint In their specifically foreseea- “was the known juvenile “had been in the cus- offender victim of the ble and [mental] county tody under the control of identifiable Cal.Rptr. at patient’s threats.” county institution confined in a had been Applying the rationale P.2d at 734. court order. County knew that case, Thompson present holding ‘latent, dangerous extremely had James de- likewise hold that majority should young propensities regarding and violent may not be of Corrections fendant Board children and that sexual assaults by plain- injuries sustained held liable for young and violence connected children single tiff Chandler, since no owed to a mem Dunbar and majority again “large amorphous pub (indeed, ber of otherwise creates law a new tort of potential group targets.” supervision) lic 167 Cal. where none existed before and Rptr. legislates at 738. Section 319 of the Restatement (Second) into the law State of Idah plaintiff’s allegation of inadequate o.14 supervision” “negligent nothing abut thinly claim of failure of a en- veiled law 2. Proximate cause agency protect her forcement In question proxi most instances the harm. claims uniformly Such have been mate cause is an fact for issue of the trier Sorichetti, rejected by supra; the courts. Schutte, of fact. Annau v. Chambers-Castanes, supra; Shore However, 535 P.2d 1095 as with 147, Stonington, 187 Conn. A.2d 1379 fact, any if issue of reasonable could minds (1982) (lack showing of imminent harm differ as to existence or non-exist to identifiable victim failed to turn officer’s issue, ence of an then the issue becomes public into legal duty generally special one of law and is the court to decide. individual; therefore, duty to town was not Co., Palsgraf v. Long RR. N.Y. Island plaintiffs liable to whose decedent was (N.Y.1928); 162 N.E. 99 Annau v. who, approxi- killed intoxicated driver Schutte, supra. the context this case mately prior accident, hour one (motion posture in its present plead on the stopped and warned but arrested ings), set if under conceivable of facts officer); generally see Annot. A.L.R.3d cause, plaintiff proximate fails establish (1972 3, 4, Supp.1985). The & §§ complaint may properly then suit only exception general rule of non-li- be dismissed. ability is protect for failure to where a “special relationship” has been established cause defined as cause Proximate is a governmental entity between the which, sequence in natural and continuous special relationship victim. No such intervening by unbroken efficient alleged present shown in been case. cause, (injuries) produces the result Indeed, of Corrections defendant Board which the result would not have without particular completely was unaware of the Sharp, occurred. Idaho Smith v. prior plaintiff case to the accident in in this (1960); v. Pocatel Chatterton question. (1950); Post, 223 P.2d 389 lo State, 107 Ida Irrig. accord Challis Co. opinion majority makes mention (Ct.App.1984). P.2d 230 Even ho general case its rules of Jacobson concurring alleged a if a to be cause non-liability perform gen for failure to injury, proxi must be a it still cause of large, public eral owed to the duties right. Irrig. mate cause in its own Challis present a case instead creates State, supra; Miller v. Northern Co. v. (Second) by adopting the Restatement Co., P. 845 Ry. 24 Idaho Pacific Torts, However, Re 319. the so-called (1913); 176- Negligence, 57 Am.Jur.2d §§ restating the law of Idaho statement is (1971). is, indeed, reversal of the complete a , allegations of a Careful examination prior law in this state. Not decisional nothing that complaint reveals majority sup plaintiff’s single cited case is failing physically restrain 319 is the short port of its assertion that Section i.e., him from Bloom, physically preventing overturning As law in Idaho. it did "negligent supervision” of A fact, alleged the child. only prior of “negligent court In case majority for such addressing specific allegations of su- of this court held Pedigo Rowley, pervision" supervision” exist "negligent did not defendant, Pedigo party 610 P.2d 560 the third this state and dismissed laws of claim, party sought parent to hold a a third “negligent super- urged had such a which claim contributory negligence) (on claim of liable a claim. vision” arising parent’s injuries to his child from supervision” subsequently driving “adequate a ve- is far too broad a drinking and support finding hicle, characterization can be said to constitute conduct Instead, (and only aspect proximate cause. part of the Board of Corrections “supervision” which does lend itself to proximately agent/employee) which physically finding proximate cause is is, injuries. only That plaintiffs caused preventing operating a motor Bloom part such conduct on board vehicle in contravention of his order the result would not that “without which my probation probation agreement.16 In plain- allegations have occurred.” estimation, ways two authorized constitute the sine complaint tiffs a task are either: accomplishing such qua non plaintiffs cause of action are (1) arresting Bloom for violation proba of his as follows: 20-227 agreement pursuant to I.C. tion “(a) a motor Allowing ... Bloom to drive (and only acquires in this ease such action non-employment purposes ... vehicle for probation offi meaning from a claim that ... the Order Probation contrary to knowledge pri- Housley cer had actual occurred); or initiate or violations had “(b) Allowing operate a ... Bloom to (this probation proceedings to revoke his permission written motor vehicle without (i)). allegation the essence of probation department from the court or give 20-227 does offi- I.C. § contrary Agreement Pro- ... authority parolee to arrest a cer the ...; bation of his violation of the terms and conditions gives probation, but the statute parole or “(i) Failing to re- proceedings to initiate determining discretion wheth- the officer probation despite the voke ... Bloom’s Thus, an arrest. er or not to make such Bloom had failed and/or fact ... states, proba- “Any parole or the statute pro- comply the order of refused to parolee proba- may arrest a tion officer agreement proba- ... and the bation warrant, may deputize tioner without prior to tion ... on numerous occasions power of arrest to do any other officer with question]; of the accident date [the set- so, by giving him a written statement Failing reasonably pru- “(j) to act and probationer parolee or ting forth that despite dently the circumstances judgment has, parole said knowledge that Bloom had been ... officer, the conditions of probation violated [driving convicted twice of while intoxi- Whether or parole probation.” his prior of the accident to date cated] [the alleged to have person who is to arrest a likely questiоn] Bloom was and that ... always been a discre- the law has violated great bodily harm to members to cause common law. Everton tionary decision at public large if not adequately of (no (Fla.1985) Willard, 468 So.2d 936 v. supervised.” discretionary decision distinction between individu- whether to arrest “adequate supervi police officer Allegation (j), lack of comp discretionary deci- sion,” an offense and plaintiff’s al for is the essence prose- to of whether However, prosecutor of a apparent, lack of sion as is laint.15 supervisory only meaningful aspect of conduct interesting to note it is 15. In this connection present that which would have case is by allegation inference raised that a reasonable probation order prevented the violations (j) have been on that Bloom never should is Again, by clearly impli- agreement place, defendant Bloom. probation which and nothing in the first restraining physically Bloom judicial short of cates a function. operating vehicle in violation of a motor Indeed, special concur- the assertion in the agreement probation probation and order of his probation "could have officer rence plaintiff injuries prevented the to would have prevent these viola- Bloom’s conduct to overseen physical be an Sterling. restraint would Such " tions, ante at P.2d at 782 arrest. added), recognition of the fact that the reveals individual; judgmental partial cute an both are up failure to live to the conditions of enforcing probations, by decisions are their “pa- which inherent and the fact that Quarles, state); probation role Watson the laws of the authorities far be [will] (the likely less release proba- to authorize (Mich.App.1985) 381 N.W.2d 811 deter [on given the substantial drain on their type mination tion] of what of action to take in [today’s might resources which conduct, e.g., decision] face unlawful make an require. public policy favoring A stated arrest, immediate deci programs innovative release [will] Hilden immunity); sional act entitled Thompson County thwarted.” Cox, (Iowa 1985) brand v. 369 N.W.2d 411 Alameda, Cal.Rptr. 27 Cal.3d (decision by police whether to take in person custody permissive into toxicated mandatory). rather than Under I.C. 20- prisons in The the State Idaho are discretionary. expressly it is made huge cope unable with the numbers today majority opinion effect of the is that prisoners through matriculating crimi- every probationer any who violates term of justice system, many nal and other- who arrested, probation or the his must be state wise would be incarcerated have been subject will be to a claim of in tort already proba- forced into the over-taxed any subsequent violations which that system. parole pa- tion Probation and may probationer commit. role officers are forced to work case- extremely loads are which difficult allega- is true with the second same manage. These caseloads are the result of tion that the State Board of Corrections policy legisla- decisions made the Idaho proceedings initiated should have revoke decisions, you if planning will—con- ture — course, probation. Bloom’s Of re- cerning the allocation of limited state probation, can his court revoke even justice system, and sources to the criminal opinion majority under the such a revoca- particularly the available for incar- funds by the tion decision court falls under proba- available for ceration and funds discretionary function I.C. parole. Today’s tion decision substi- 6-904(1). However, the decision of planning law for the system tutes the tort proceedings not to whether or initiate made the Idaho policy decisions just probation, revoke decision fund- legislature. present At level of prosecute in the first whether or not to ing, funding which level of instance, just judgment as much involves given reasonably in the future foreseeable as does the court’s decision discretion Idaho, economy the state of finally to deciding whether or not revoke system will be unable parole decision, today’s probation. As a result of supervision standards meet probation officers will the courts and the through the imposes upon it today’s opinion cope the monumental never be able to with result, predict, I will system. The tort law arresting initiating proceеdings of task major Either there will be a be chaos. probationer probation every revoke for of in the number individuals reduction comply term or who fails to with some “a stat- probation parole, and placed on probation. condition his The tort law of favoring release public policy innovative ed supervise system was never intended v. Thompson thwarted,” be programs [will] probation parole management of the Alameda, 167 27 Cal.3d County of However, will system. that what result 614 P.2d 737 Cal.Rptr. opinion. majority’s of subjected to a flood or the state will impossible fis- place Today’s “jeopardize will rehabili- which will decision tort claims Only legislatures. eliminating by any dis- cal future tative efforts” both burdens immediate attention by legislature’s in probation officers have cretion which today’s decision creates problems which and their dealing released offenders with

267 Co., ern undoubtedly Ry. can the chaos which will result 9 Idaho 74 P. Pacific (acts from it be averted. (1903) servants which are expressly may not forbidden serve as basis master); ac- imposition liability on of B. Stations, Curtis, v. Inc. cord Orbit majority sustaining plain- Since (Nev.1984) (acts of Nev. P.2d action, necessary tiff’s cause of it becomes princi- agent imputable not unauthorized scope employment to address the of issue. acquiescence prin- consent or pal absent plaintiff negli- if Even established Maldonado, Kidd v. cipal); gence part agent/em- on the of the board’s 1984) (absent (Utah by principal, ratification Housley, plaintiff’s ployee, claim that agent impose does of unauthorized act Housley em- scope was within the of his allega- Reg- National Cash ployment principal); is inconsistent with those concerning alleged tions his acts which are v. Lightner, ister Co. Colo. claimed to the basis her cause of form of (1964) (principal for un- P.2d liable action. agent authorized acts of absent consent of allegations principal “apparent other of allegation complaint, in

Plaintiff’s her authority” agent). of Housley agent/employee that the board’s acting scope was at all times within the employment, in his direct contravention Ill plaintiff’s allegation very this clear, authority holding I

agent/employee was also without As Parts and II make effect, disobey or, ignore majority present the terms of repre case probation agree- the order of major sents a shift the decisional law If, alleged by plaintiff, proba- ment. regarding state both the Idaho Tort authority officer to en- tion was without Act To Claims and traditional tort law. gage very alleged conduct to be the day’s opinion imposes unprece new and plaintiff’s right recovery, basis of then retroactively. law At the time the dented plaintiff’s of action dis- cause must be against of action accrued the Board cause missed fail- the State of Idaho for Corrections, even at the time of oral ing to allege establish argument, law the State of agent/employee’s acts were committed part existed Idaho was that no on the employment. scope within the Absent Board of which inured to Corrections by plaintiff allegations additional member direct benefit of individual Board of was aware of its Corrections Witt, supra; v. Worden Jacob society. agent/employee’s regard conduct in this McMillan, supra. Furthermore, un son such, thereby acquiesced in is a decisions, and Chandler der our Dunbar general agent/employ- rule law that an and the Board of Correc the State Idaho ee’s unauthorized conduct constitutes ultra immune from suit at the time tions were vires principal/employ- action which the short, complained of. there the acts Texas Co. may held liable. er not be no law in the State Peacock, 408, 293 have rendered the Board of Correc would if (no “apparent authority” agent exists alleged acts tions liable person authority of asserting it is known to Thus, by any reasonable present case. that, fact, authority agent he is without opinion in the current standard Court’s act); principal of complained to do major in represents case a shift present 643, v. Waybright, Manion 59 86 Idaho governmental immuni tort and established (1938) (presumption acts com- P.2d 181 that major in this Even under the ty law state. during employment time of are mitted Durtschi, reading of Doe v. ity’s strained scope employment within servant’s did supra, negligent suрervision tort of may upon showing that such be rebutted best, until, in unauthorized); the decision v. North- exist at Axtell acts were not 268

Durtschi was handed down. ing operative The tort of effect of the [current] negligent supervision as embodied in decision Re ... since the fact that [is based] 319, (Second) Torts, gov- statement had never and other § [Board Corrections] agencies adopted by any ernmental have been decision this relied Court sovereign immunity doctrine of set prior to this decision in present Court’s [as Indeed, Durts decision in forth in the Court’s the Idaho Tort Claims Act and as case. interpreted or utilizes chi by prior never once mentions decisions of this does supervision,”17 nor “negligent Court Dunbar Chandler phrase quite in it is ] opinion Durtschi in cite to the the Court’s possible they that will suffer undue hard- Torts, only (Second) 319. It is Restatement ship [parallel if the abolition of the function test excep- and the (Second) Torts, statement 319. It is and Chan- tion as in Dunbar established proposed majority opinion in the in the dler immediately.” effect to take is] present case this that Court the first State, Smith 808, v. 93 Idaho P.2d at 473 time asserts that the tort of su Furthermore, by as stated as in pervision, set forth the Restatement Smith, “limiting Court in a decision which (Second) Torts, 319, exists in the State of precedent overrules an established so that Idaho. prospective application only, it has does State, 795, Smith Idaho 93 473 (em- Id. principles.” violate constitutional (1970), specifically provided 937 this Court added, omitted). phasis citations regarding govern- since that its decision present A to render case decision represented a immunity major mental shift prospective application soundly in in the the state up decisional law of to that grounded public policy. in There can be point, the the decision effect of would be question parole consti- prospective given application only, to a necessary parts tute fundamental days “60 subsequent adjourn- time However, system. just justice our criminal Regular ment of the First Session of perfect system as the as a whole Legislature.” Forty-First State Idaho time, may also the fail from time so P.2d 937. The same Idaho parole components, adminis- probation and rationale exists in this case as existed overworked, through un- they tered are as Smith holding that the decision derpaid, beings, human are like- imperfect given prospective application case would be con- An inevitable subject wise to failure. present only. major case makes two system is sequence such failure in the prior of this shifts decisional law society will suf- members innocent major It state. overrules the two decisions harm, through prose- failure to fer be it dealing of this Court cute, or mur- rapist and confine convict Chandler, thereby Dunbar immunity, derer, fel- revoke a convicted or failure to major admittedly establishing a shift in the recognized Cali- probation. As on’s regarding this Court law enunciated Court the cases fornia Act. actions under Idaho Tort Claims Alameda, Thompson County opinion major rever- Today’s also makes Cal.Rptr. P.2d 728 Cal.3d effect, by, overrul- sal Idaho tort law California, v. State (1980), and Johnson McMillan, Jacobson v. Cal.Rptr. 69 Cal.2d Witt, and Worden v. (1943), 132 P.2d 773 general member of the “Each P. 1114 come in contact with public who chances risk parolee probationer] bears language by the Paraphrasing used [or fail----” State, effort will “Postpon- that the rehabilitative Smith v. simply place. were no There allegations negli- lewd took conduct in Durtschi were of 17. The "negligent supervision.” transferring allegations gence Durts- on the district’s school prior the one chi from a school to where Alameda, Thompson County discretion, 167 Cal. involves while the other does of 735; Johnson v. Rptr. Clearly, at 614 P.2d at not. the administration of both California, Cal.Rptr. components State entails both and non-discretionary 447 P.2d at 364. The United States Su ministerial functions. majority explain fails effort to preme recognized Court has likewise that why component enjoys one of the system repeat risk “the basic offenses [or immunity, while the other does not. probation parole] may violations of occur short, it conceded must be the same always present any parole system.” “important policy” reasons im supporting California, Martinez v. State munity prosecutorial judicial for the and 62 L.Ed.2d 481 S.Ct. supports immunity functions also for the (1980). Nevertheless, despite and this obvi probation parole proba and functions. The parole proba risk of ous failure and function, prosecutorial tion no less than the programs, legislature tion our seen fit functions, judicial requires “the insula programs though continue these even respective necessary tion for [the officials] by such risks of harm must be borne the carry independently out with their tasks does public. law cannot and not at the Ante consequences.” out fear of tempt society. create a risk-free Neither proper immunity, 775. Without such the the law ameliorate does seek to all harm functioning justice system of the criminal Indeed, by recog occasioned such risks. impeded complete as a whole will be if not goals sought the nition of to be achieved ly hamstrung.18 justice system, our criminal both the courts legislature sought authority and the have shield Under our decision State, Smith we should defer the officials involved adminis today’s effective until “60 tering system opinion date for their adjournment days subsequent to the of the (Court-created administrative acts. doc Legis- Session of the ... Idaho State immunity involving [next] trines official both lature,” body legis- can express so that prosecutors judiciary and members question lative will on the whether to- Nevertheless, example.) are one the cur accurately policy day’s reflects the decision opinion majority ignores important rent Act, set out in the Idaho Tort Claims probation parole position compo changes necessary make to ensure justice system. In nent of our criminal viability func- probation continued deed, opinion majority’s current on its tion. magnanimously only recognizes the face importance of prosecutorial judicial

component justice system of our criminal holding the those are functions probation by immunity;

shielded while parole functions are not. What why

majority explain prose fails judicial

cutorial or function is a more essen component justice sys criminal

tial to the

tem, worthy apparently and thus more

immunity, component probation than the system. The distinction cannot arguments component that one

based If, majority, argued by majority’s justice system. clearly implicit, reason- 18.- It is construction, given judicial ing granting immunity the act to be liberal func- tion, express language of the recognizes there is no basis in that it that tort action is elevating judicial proper above inappropriate act for to assure function- vehicle parole judicial function. component criminal notes The statute munity private person entity ‘if a would “governmental govern about a function of (em damages____”’) money be liable ing,” immunity attaching to with automatic added); Dunbar, phasis supra, 100 Idaho Nothing such functions. in the statute (test 602 P.2d at 44 stated without underly comparison mandates between the any statutory lan direct reference government roles functions of the opinion guage). Nor has from this private in the roles functions found recognized previously or examined require sector. Nor does the statute pre-1971 federal case law which dealt engage private must individuals definitively with similar feder directly and government in which the en same conduct 1346(b) provisions, 28 al U.S.C. §§ potentially gages for the 2674,2 purported implied and with same says liable. statute See, exception. e.g., Towing, su Indian if

Notes

notes 28 U.S.C.A. § repair care to discover this fact and to Comment, Hall, supra, at 231; supra, warning light give that was 541-553. functioning. If the Coast Guard failed damage thereby caused short, adoption prior Act, is liable petitioners, the United States States the United Idaho Tow- discretion- the Tort Claims Act. Indian had established immunity exception ‍‌​​​‌‌‌‌‌​​‌‌​‌​​‌​‌‌‌‌​‌​‌​‌​‌‌‌​​‌‌​​‌‌​​‌‌‌​​‍provided ary ing, supra, 350 U.S. at S.Ct. at the estab- which involved (1) activities added). focus was not Dunbar, at 44. Dalehite’s mistakenly interpreted Dale- on the the decision as the level of immunity "solely so much on affording because hite as decision, planning or whether nature operational. which a deci- official level at endanger made to others.” sion was

notes opinion goes majority The nullity.” it a parallel contrary. The et to the important Towing quite reason Indian An func- with the does not exception is its parallel function test rejected al. the tion “conflict” (along with them it unworkability flexibility exceptions; to swallows inherent For liability) whole. eliminating any predictability. rule point general the the Idaho not the activities example, are majority 218-219, op., pp. See at 723 P.2d at governmental func- unique Guard pp. National 763-765. Presumably the dissent con- sector? parallel in without tions point, cedes since it respond fails legisla- why did the they are. So majority’s the fed- course nores the discussion of Of li- exception to 6-904(6) an thus, at legislative history; impliedly include eral it ture Na- concerning the activities ability history supports concedes that that test function Guard, parallel when the planning-operational distinction. The dis- tional li- such 6-903(a) already eliminated ignores opinion’s discus- majority sent of § even obvious must be pre-1971 The answer ability? of all case law with sion federal ears —be- Dalehite, supra; unreceptive set single exception most exception. 6-903(a) such thus, no impliedly pre- creates it concedes that cause § from Dalehite federal case law aside 6-903(a) Certainly, “qualified I.C. is a (which majority opinion case the well ex- general liability” rule of as the dissent supra, 228-229, pp. at 723 P.2d at plains, explains, plaintiff extent that a must 772-773) planning-opera- pp. establishes the state a claim under which the (1) dissent Finally, distinction. tional potentially private person is liable as “a long list of ignores majority opinion’s liable____” However, entity would be offi- holding probation/parole that a cases just explained, “qualification” posed supervision probationer/parolee of a cer’s Dunbar and now the dissent is so broad ordinary thereby operational, requiring express excep- it would render those care, on-point case to one fails to cite dealing governmen- with tions “traditional thus, impliedly concedes contrary; it redundant, unnecessary, functions” tal every on-point there to be case holds surplusage. “analytical” Any mere diffi- immunity under the discretion- unqualified understanding implications culties in exception. ary function purported parallel exception lie with the dissent. The cases the dissent does cite are con- siderably off-point. As the annotation it reality, question of the existence explains, generally refers those cases “parallel exception easily of a function” personal, deal “with the of a civil The answered. federal case law states sheriff, policeman, peace or some other Act, that there is none in the Federal officer, bond, his injury damage 6-903(a) says I.C. there shall be person suffered a third because majority opin- none in the Idaho Act. officer’s failure to enforce the law or arrest acquiesces simply reality. ion Annot., a lawbreaker.” 41 A.L.R.3d (footnotes omitted). Obviously, Discretionary Excep- B. Function none eases involve offi- tion. of these charged per- the supervision cial of a The dissent’s of the discretion- discussion dangerous propensities. of known As son exception ary function is more notable notes, pp. opinion majority it what it fails address than for what 769-770, a multi- pp. P.2d at ignores address. The the ma- does dissent govern- have decisions held that tude of opinion’s analysis jority plain mean- instant con- potentially liable ment exception; thus, impliedly con- text. cedes that the two clauses of the operational a distinction establish between attempts The dissent to construe Ster- “in activities —those reliance or the allegations ling’s to accommodate its au- performance statutory execution or of” thority. A review of allegations as sum- (which im- regulatory policy majority are afforded supra, opinion, p. marized in the munity p. when out with “ordi- carried 723 P.2d at belies the dissent’s care”), nary planning activities —those Sterling simply effort. did not Procrustean involving decision policy judgment allege negli- that the officer was

erroneous. The notes carrying dinates in operations out the inconsistency that there is no unresolved government in accordance with official among Supreme the line of United States directions cannot be actionable.’ [Dale interpreting discretionary cases hite v. United 346 U.S. at] Ante, exception. function 35-36, 73 S.Ct. at 968.” United States position at 770. That consistent of the Unit- Airlines, 797, 811, Varig 467 U.S. ed States recently Court was reaf- (1984). S.Ct. firmed in the case Varig of United States v. utility “planning-operational” Airlines, 104 S.Ct. distinction will arise in cases where it L.Ed.2d 660 In that case the court needed, i.e., easy is not cases where it applying stated undoubtedly makeweight. will be used as following princi- two “prove In the difficult it will only cases to ples must be followed: example be another of a distinction ‘so fine- conduct,

Case Details

Case Name: Sterling v. Bloom

Court Name: Idaho Supreme Court

Date Published: May 16, 1986

Citation: 723 P.2d 755

Docket Number: 15875

Court Abbreviation: Idaho