Doe v. Durtschi

• Decision Date: 10 February 1986
• Docket Number: 15224,15277,Nos. 15223,15225,B,No. 93,15278 and 15279,93,s. 15223
• Parties: , 60 A.L.R.4th 225, 31 Ed. Law Rep. 1277 John DOE and Jane Doe, for themselves and as natural guardians of Jenny Doe, Rachael Roe and Richard Roe, for themselves and as natural guardians of Ruby Roe, a minor, Jane Smith, for herself and as natural guardian of Sally Smith, a minor, Plaintiffs/Appellants/Cross-Respondents, v. Lawrence R. DURTSCHI, Defendant/Appellant/Cross-Respondent, and Joint School Districtonneville and Bingham Counties, Idaho, Defendant/Respondent/Cross-Appellant.
• Court: Idaho Supreme Court

Page 1238

716 P.2d 1238

110 Idaho 466, 60 A.L.R.4th 225, 31 Ed. Law Rep. 1277

John DOE and Jane Doe, for themselves and as natural guardians of Jenny Doe, Rachael Roe and Richard Roe, for themselves and as natural guardians of Ruby Roe, a minor, Jane Smith, for herself and as natural guardian of Sally Smith, a minor, Plaintiffs/Appellants/Cross-Respondents, v. Lawrence R. DURTSCHI, Defendant/Appellant/Cross-Respondent, and Joint School District No. 93, Bonneville and Bingham Counties, Idaho, Defendant/Respondent/Cross-Appellant.

Nos. 15223, 15224, 15225, 15277, 15278 and 15279.

Supreme Court of Idaho.

Feb. 10, 1986.

Rehearing Denied April 23, 1986.

William P. Combo (argued), and John X. Combo (argued) of the firm Weinpel, Woolf, Just, Combo, and Davis, Idaho Falls, for plaintiffs/appellants/cross-respondents Doe and Smith.

Roger B. Wright (argued), and Kevin B. Homer (argued) of the firm Voshell & Wright, Idaho Falls, for defendant/appellant/cross-respondent Durtschi.

Reginald R. Reeves of the firm Denman & Reeves, Idaho Falls, for plaintiffs/appellants/cross-respondents Roe.

Dennis M. Olsen of the firm Petersen, Moss, Olsen, Meacham & Carr, Idaho Falls, for defendant/respondent/cross-appellant school district.

BISTLINE, Justice.

During the 1979-1980 school year, appellant Lawrence Durtschi was employed as a fourth grade teacher at the Ammon Elementary School. Durtschi transferred to Ammon from Iona Elementary School in the same district. The school district employing Durtschi was School District No. 93 of Bonneville and Bingham Counties, Idaho (hereinafter "the school district"). The minor plaintiffs in the various cases on appeal were all female students in Durtschi's class. These plaintiffs, through their parents as guardians ad litem, alleged in their complaints that Durtschi, during school hours and while conducting or supervising school activities, sexually molested them. They further alleged that (1) the school district knew of Durtschi's acts against the plaintiff children, but nevertheless allowed him to continue as a teacher and to retain the children in his classroom, and (2) the school district knew or should have known that Durtschi had committed such acts against other children on prior occasions at Iona, but nevertheless had transferred him to the school in which the minor plaintiffs were enrolled.

Plaintiffs filed complaints for damages, naming both Durtschi and the school district as defendants. Plaintiffs' action against Durtschi was for lewd and lascivious conduct toward the minor plaintiffs. Their action against the school district sounded in negligence in its hiring and retaining Durtschi, and breach of its duty of care toward the minor plaintiffs. In all three cases, plaintiffs stated that as a result of Durtschi's conduct, the individual minor plaintiffs suffered irreparable physical injury and severe psychological injury with physical manifestations, and that the parents of the minor plaintiffs suffered physical and psychological injuries, as well as incurring the future financial obligations of providing treatment and care for their children. Recognizing that the three cases raised the same questions of law, the district court consolidated them for purposes of determining liability.

Durtschi answered the complaints, admitting some of the conduct alleged. Durtschi then cross-claimed against the school district for indemnification under the Idaho Tort Claims Act, I.C. § 6-901 et seq. (ITCA). The school district answered Durtschi's cross-claim by denying any liability, and cross-claimed itself against Durtschi for indemnification. The school district answered plaintiffs' complaints by denying liability and counter-claiming for attorney's fees.

The school district moved for summary judgment against the plaintiffs' claim for negligence. The district court held that the plaintiffs were precluded from recovery under the assault and battery exception to the ITCA. Judgment was entered accordingly, from which plaintiffs appeal. The district court also denied plaintiffs' motion for reconsideration; plaintiffs appeal that decision as well.

Thereafter, the school district moved for summary judgment against Durtschi's cross-claim for indemnification. Ultimately, the district court held that, as a matter of law, Durtschi was precluded from seeking indemnification from school district under the ITCA, because defendant-teacher was not acting within the course and scope of his employment when he committed the lewd sexual acts. Once again, judgment was entered for the school district. Both the plaintiffs and Durtschi appeal from that decision and judgment.

As a preliminary matter we briefly review the law of summary judgment. A motion for summary judgment is proper only when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). When the motion is supported by depositions or affidavits, the adverse party "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." I.R.C.P. 56(e). The latter requirement, however, does not change the standards applicable to the summary judgment motion. Central Idaho Agency, Inc. v. Turner, 92 Idaho 306, 310, 442 P.2d 442, 446 (1968). Those standards require the district court, and this Court upon review, to liberally construe the facts in the existing record in favor of the nonmoving party, and to draw all reasonable inferences from the record in favor of the nonmoving party. Anderson v. Ethington, 103 Idaho 658, 660, 651 P.2d 923, 925 (1982). In this process the Court must look to the "totality of the motions, affidavits, depositions, pleadings and attached exhibits," not merely to portions of the record in isolation. Central Idaho Agency, supra, 92 Idaho at 310, 442 P.2d at 446. Circumstantial evidence can create a genuine issue of material fact. Petricevich v. Salmon River Canal Co., 92 Idaho 865, 868-69, 452 P.2d 362, 365-66 (1969). "[A]ll doubts are to be resolved against the moving party." Ashby v. Hubbard, 100 Idaho 67, 69, 593 P.2d 402, 404 (1979). The motion must be denied "if the evidence is such that conflicting inferences can be drawn therefrom and if reasonable [people] might reach different conclusions." Id.

With that as background and as explained below, we affirm the district court's summary judgment against Durtschi, though on different grounds. We reverse the summary judgment against plaintiffs. Finally, we reject the school district's suggestion that we uphold the summary judgment against certain of the plaintiffs on the ground that they failed to provide timely notice as required in the ITCA.

I. DEFENDANT DURTSCHI'S CROSS-CLAIM FOR INDEMNIFICATION.

I.C. § 6-903(c) of the ITCA provides:

The defense of its employee by the governmental entity shall be undertaken whether the claim and civil lawsuit is brought in Idaho district court under Idaho law or is brought in a United States court under federal law. The governmental entity may refuse a defense or disavow and refuse to pay any judgment for its employee if it is determined that the act or omission of the employee was not within the course and scope of his employment or included malice or criminal intent. (Emphasis added.)

In support of its motion for summary judgment against Durtschi's cross-claim for indemnification, the school district argued that it was excused from indemnification because Durtschi acted outside the scope of his employment, or alternatively because Durtschi acted with criminal intent. See, e.g., R., Vol. 2, pp. 263-64. The district court tackled the difficult "scope of employment" question, ultimately holding that as a matter of law Durtschi indeed had acted outside the scope of his employment, and thus was due no indemnification. The district court did not reach the question of criminal intent, though it noted:

[A]t least in Case No. 29,029 [Doe], Durtschi admitted performing the acts alleged, [and] thus the Court can conclude that a battery occurred. The only affirmative defense raised by the defendant is that he is protected by provisions of the Idaho Tort Claims Act. R., Vol. 3, p. 174.

While we admire the district court's courage and scholarly effort, we believe it chose the more troublesome and less certain of the two alternative routes. Upon reviewing the record in accordance with the standards set out above, we find that Durtschi unquestionably acted with criminal intent in all three cases. Being wary of recrossing the district court's bumpy route, we do not reach the question of scope of employment.

The "criminal intent" provision "is satisfied if it is shown that the defendant knowingly performed the proscribed acts...." State v. Gowin, 97 Idaho 766, 767-68, 554 P.2d 944, 945-46 (1976); see also, e.g., State v. Sisneros, 631 P.2d 856, 858 (Utah 1981) ("A person acts with intent when it is his conscious objective or desire to engage in the conduct or to cause the result."). Ordinarily, criminal intent would be a question for the trier of fact. However, in this case Durtschi has left no doubt that he acted with criminal intent.

Durtschi admitted to performing the lewd and lascivious acts on the minor plaintiffs. R., Deposition of Durtschi, pp. 22-23. He specifically named each of the minor plaintiffs as the objects of his actions. Id. at 32. He expressly stated that he acted intentionally. Id. at 22-23. In the face of the school district's arguments that he acted with criminal intent, Durtschi made no denials. In fact, he pled guilty to related criminal charges of lewd and lascivious conduct. R., Vol. 2, p. 250. Every indication points to Durtschi knowingly and consciously performing criminal acts. We find nothing from which we can infer at all, much less reasonably infer, that Durtschi acted in any way...