DeMoss v. City of Coeur D'Alene

• Decision Date: 30 July 1990
• Docket Number: No. 17507,17507
• Citation: 118 Idaho 176,795 P.2d 875
• Parties: James DeMOSS, Robert D. Ligeza, Tim Stockton and Michael R. Price, Plaintiff-Appellants, v. CITY OF COEUR D'ALENE, a municipal corporation; Eugene McAdams, Tom Wells, Arnold Halpern, Les Hutchinson and Doug Eastwood, Defendant-Respondents.
• Court: Idaho Supreme Court

Page 875

795 P.2d 875

118 Idaho 176

James DeMOSS, Robert D. Ligeza, Tim Stockton and Michael R. Price, Plaintiff-Appellants, v. CITY OF COEUR D'ALENE, a municipal corporation; Eugene McAdams, Tom Wells, Arnold Halpern, Les Hutchinson and Doug Eastwood, Defendant-Respondents.

No. 17507.

Supreme Court of Idaho.

July 30, 1990.

Michael J. Verbillis, Coeur d'Alene, for plaintiff-appellants.

Evans, Craven & Lackie, Coeur d'Alene, and Phillip J. Van de Veer, (argued), Spokane, Wash., for defendant-respondents.

BAKES, Chief Justice.

Plaintiff appellants (DeMoss et al.) brought suit in district court against defendant respondents (City of Coeur d'Alene et al.), seeking recovery for mental anguish resulting from exposure to asbestos. The district court granted summary judgment in favor of the city on the following grounds: (1) that the worker's compensation exclusivity provisions barred any tort recovery; (2) that, in the alternative, the statute of limitations barred any tort recovery; and (3) that plaintiffs could not maintain an action under 42 U.S.C. § 1983 because the city was not acting under color of state law. Plaintiffs appeal this ruling. We affirm for the reasons set out below.

The four appellants in this action--DeMoss, Ligeza, Stockton and Price--were all employees of the City of Coeur d'Alene. The defendants are the City of Coeur d'Alene; McAdams, the city administrator; Wells, the head of the public works department; Halpern, the head of the parks, recreation and cemetery department; Hutchinson, the assistant director of the parks, recreation and cemetery department; and Eastwood, the foreman assigned to workmen under the parks and recreation department.

The City of Coeur d'Alene owned and maintained a community center which consisted of two old school buildings constructed in the early 1900's. In the fall of 1982, the furnace and boiler in the community center were found to be leaking. A city welder, John Austin, was called upon to repair the boiler if possible. The boiler was found to be beyond repair, so the city determined to cut the boiler up and remove it, as it was too large to be removed in one whole piece. John Austin testified in his deposition that he would not cut the boiler up until certain material insulating the boiler was removed because he suspected the material to be asbestos. Austin told the defendant Eastwood of this suspicion, but no effort was taken by Eastwood to verify that suspicion.

Around September, 1982, Eastwood directed appellants Ligeza, DeMoss and Price to remove the insulation material from the boiler. Ligeza stated in his deposition that Austin had told him that the material might be asbestos. Ligeza also stated he did not know at the time that asbestos was considered a health hazard, and that he, Ligeza, told Eastwood about the fact that the material might be asbestos but that Eastwood replied that nobody knew for sure what the material was and that there was a minimal risk. Ligeza testified also that he did not know for sure that the material was asbestos until November, 1984.

Around October, 1982, after completing removal of a portion of the insulation material, Eastwood and Hutchinson took some samples of the insulation material and sent those samples to a laboratory for testing in January, 1983. Eastwood claimed at this time that he refused to perform any additional work on the insulation removal until he had seen the test results of the samples taken earlier. On approximately February 3 or 4, 1983, Mr. Hutchinson and the City of Coeur d'Alene received a report from the laboratories which contained in it a statement that the material submitted for testing contained "20-30% chrysotile asbestos." The record discloses evidence that Hutchinson told Eastwood that the material was chrysotile, that it was harmless, and that no hazard would be presented by its removal. Thereafter, appellants Price and Stockton were directed by Eastwood to remove the remaining material from the gymnasium in the community center. These appellants were provided with paper masks and paper coveralls.

In his deposition, Eastwood testified that he learned for the first time in the latter part of 1985 that the material was in fact asbestos. Mr. Eastwood also testified that in his opinion there would have been no way for the employees who had actually been working with the material to discover its true composition before he had himself learned of its composition.

Appellants DeMoss and Ligeza filed a worker's compensation claim with the employer's surety after they had learned that the material they had been exposed to was asbestos. Those claims described their injuries as "possible asbestos contamination," and additionally that their "lungs may be affected by breathing the dust and fibers while removing asbestos covers." The claims did not assert allegations of mental or emotional injury. Appellants Stockton and Price did not file a worker's compensation claim. DeMoss and Ligeza subsequently received notice from the Idaho State Insurance Fund, the city's compensation carrier, that their claims were denied. No application for hearing was filed by the claimants with the Industrial Commission within the time provided in I.C. § 72-706.

On February 6, 1986, appellants filed this action in the district court alleging that the defendants were liable for (1) assault and battery (or unprovoked physical aggression under I.C. § 72-209(3)), and (2) deprivation of civil rights under 42 U.S.C. § 1983 and Article I, § 18, of the Idaho Constitution. At the time the complaint was filed, and up to the time that summary judgment was granted against them, none of the appellants made any claim or showing that they were suffering from asbestosis. The defendant City of Coeur d'Alene filed a motion for dismissal and/or summary judgment. The district court entered a memorandum opinion granting summary judgment in favor of the defendants on the grounds that the tort claims were (1) barred by the exclusive remedy provisions of I.C. § 72-209; (2) barred by the statute of limitations; and (3) that the claims under 42 U.S.C. § 1983, and Article I, § 18, of the Idaho Constitution were also barred. The plaintiffs appealed this ruling.

The following issues have been raised on appeal: (1) did the district court err in holding that I.C. § 72-209(3) precluded recovery in tort; (2) did the district court err in denying appellants' constitutional claims under 42 U.S.C. § 1983, and Article I, § 18, of the Idaho Constitution; and (3) did the district court err in holding that plaintiffs' tort claims are barred by the statute of limitations, I.C. § 5-219(4)?

We first consider whether I.C. § 72-209(3) precludes appellants from any recovery on the state law tort claims. I.C. § 72-209(3) provides that an employee's remedies under the worker's compensation statutes are exclusive. Employers and their other employees and agents are exempt from tort liability for industrial accidents under the worker's compensation statutes, "provided that such exemptions from liability shall not apply in any case where the injury or death is proximately caused by the willful or unprovoked physical aggression of the employer." I.C. § 72-209(3); Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988); Wilder v. Redd, 111 Idaho 141, 721 P.2d 1240 (1986); Yeend v. United Parcel Service, Inc., 104 Idaho 333, 659 P.2d 87 (1983). Appellants recognize that the statute, I.C. § 72-209, generally exempts the employer and its agents from liability. Appellants claim, however, that the employer--in this case, the City of Coeur d'Alene--and the other employee defendants are guilty of "unprovoked physical aggression" under I.C. § 72-209(3), and thus are not exempt.

We considered the implications of I.C. § 72-209(3) in Kearney v. Denker, and stated that "[t]o prove aggression there must be evidence of some offensive action or hostile attack. It is not sufficient to prove that the alleged aggressor committed negligent acts that made it substantially certain that injury would occur." 114 Idaho at 757, 760 P.2d at 1173.

Appellants argue that the various defendants in this action knew that the material they requested the appellants to remove was asbestos; that the defendants "lied" to the appellants by not telling them it was asbestos; and that the defendants failed to provide adequate protective gear to the appellants, all of which was tantamount to an "offensive action or hostile attack." The trial court rejected appellants' argument and concluded that, "There is no showing herein of any hostility of any of the defendants toward any of the plaintiffs," and thus no showing of unprovoked physical aggression, as required by I.C. § 72-209(3). After thoroughly reviewing the affidavits, depositions and other pleadings, the district court stated:

The city and its supervisory employees may have been negligent, even grossly negligent, in not recognizing the danger but there is simply no evidence herein that any of the supervisors or the higher city officials ever willfully or intentionally wanted to cause injury to the plaintiffs.... The plaintiffs themselves have all testified that they had no reason to suspect that any of the defendants wanted to cause them any injury.... There is no showing herein of any hostility of any of the defendants toward any of the plaintiffs.

The record discloses, as noted by the district court, that the plaintiffs all acknowledged that they had no reason to believe any of the defendants harbored ill feelings toward them or wanted to cause them injury in any manner. The record shows further that John Austin, the city welder, told defendant Eastwood that he thought the material might be asbestos. The record does not show that Eastwood or any of the defendants actually knew that it was asbestos until the test results from the laboratory were received. These test results were received after the appellants' first exposure to the asbestos...