Harris v. State, Dept. of Health & Welfare

Decision Date31 December 1992
Docket NumberNo. 19514,19514
Citation123 Idaho 295,847 P.2d 1156
CourtIdaho Supreme Court
PartiesEster HARRIS, Plaintiff-Appellant, v. STATE of Idaho, DEPARTMENT OF HEALTH & WELFARE, and John Does I through IV, Defendants-Respondents. Pocatello, September 1992 Term

Holden, Kidwell, Hahn & Crapo, Idaho Falls, for plaintiff-appellant. Marie T. Tyler, argued.

Racine, Olson, Nye, Cooper & Budge, Pocatello, for defendants-respondents. William D. Olson, argued.

McDEVITT, Justice.


Appellant Ester Harris brought suit against the State of Idaho, Department of Health and Welfare ("Department"), praying for the imposition of vicarious liability for injuries sustained from the tortious acts of an allegedly negligently managed juvenile placed in the care and custody of the Department. The juvenile was convicted of two counts of the infamous crime against nature, one count of rape, one count of grand theft, and one count of second degree burglary, all perpetrated against Harris, an elderly widow.

On April 9, 1989, the juvenile assailant, Adrian Barajas, burglarized Harris' apartment and brutally raped and sodomized her. A year later, on April 10, 1990, Barajas pleaded guilty to the crimes outlined above. Prior to the assault on Harris, Barajas's criminal record included four misdemeanors, three involving petit theft and one misdemeanor battery. There were no prior incidents involving sexual misconduct, violent aggression, or any felony. The battery resulted from bloodying the nose of another boy in a fistfight. During the disposition hearing of the most recent crime in this series of misdemeanors, the magistrate entered a decree committing legal custody of Barajas to the Department for out-of-home placement subsequent to four days detention in jail and an order of restitution. The court decree, entered December 22, 1988, adopted almost wholly the recommendations of a Mr. Moulton who had performed a clinical report on Barajas shortly after his arrest. Moulton's report did not evidence any finding or suggestion that Barajas seriously endangered the public safety. Barajas, who had been released Christmas Day to the physical possession of his parents, was still under the legal care and custody of the Department at the time of the commission of the crimes.

Subsequent to Barajas's commitment to the custody of the state, the Department interviewed Barajas and family members, did an intake evaluation, completed a psychological evaluation of Barajas, conducted a staff conference to consider treatment and placement options, and assigned the case to a case manager, consistent with its usual procedure. The evaluations performed on Barajas revealed his angry nature and proclivity to aggression, and diagnosed the possibility that he might pose an above average sexual threat to his "female peers" due to past sexual abuse suffered by Barajas and his consequent need to prove his manliness. The whole intake process was completed by January 4, 1989. Thereafter, the Department lost touch with Barajas and unsuccessfully attempted to regain contact. Barajas had dropped out of school, his family residence had been abandoned, and his mother had quit her job. Barajas momentarily surfaced the afternoon preceding his brutal violation of Harris, at which time he was questioned by an officer in connection with a reported harassment and released.

On April 30, 1991, the Department filed a Motion for Summary Judgment based on the following: (1) plaintiff's failure to timely file a notice of tort claim under I.C. §§ 6-905 and 6-908; (2) governmental immunity based on the "statutory function" exception under I.C. § 6-904A(1); (3) governmental immunity based on the "assault and battery" exception under I.C. § 6-904(3); and (4) governmental immunity based on the "reckless, willful and wanton" conduct exception under I.C. § 6-904A(2). On July 29, 1991, the court entered a Memorandum Opinion and Order granting the motion for part (4) only. Plaintiff now appeals from this order, while the Department seeks a decision affirming summary judgment.

The issues on appeal are:

I. Whether a genuine issue of material fact exists concerning the reckless, willful, or wanton nature of the Department's conduct in supervising its charge, Adrian Barajas.

II. Whether the Department qualifies by definition for immunity under I.C. § 6-904A(2).

III. Whether I.C. § 6-904A(2) is constitutional.


Rule 56(c) of the Idaho Rules of Civil Procedure states that summary judgment is to be "rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that 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). This Court exercises free review of a constitutional issue because it is purely a question of law. Sun Valley Co. v. City of Sun Valley, 109 Idaho 424, 428, 708 P.2d 147, 151 (1985).

A strong line of cases weaves a tight web of authority that strictly defines and preserves the standards of summary judgment. The reviewing court must liberally construe disputed facts in favor of the nonmoving party and make all reasonable inferences in favor of the party resisting the motion. McCoy v. Lyons, 120 Idaho 765, 769, 820 P.2d 360, 364 (1991); G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 517, 808 P.2d 851, 854 (1991); Kline v. Clinton, 103 Idaho 116, 120, 645 P.2d 350, 354 (1982); Petricevich v. Salmon River Canal Co., 92 Idaho 865, 868, 452 P.2d 362, 365 (1969). If the record contains any conflicting inferences upon which reasonable minds might reach different conclusions, summary judgment must be denied. McCoy, 120 Idaho at 769, 820 P.2d at 364; Kline, 103 Idaho at 120, 645 P.2d at 354. Nevertheless, when a party moves for summary judgment, the opposing party's case must not rest on mere speculation because a mere scintilla of evidence is not enough to create a genuine issue of fact. McCoy, 120 Idaho at 769, 820 P.2d at 364; G & M Farms, 119 Idaho at 517, 808 P.2d at 854; Kline, 103 Idaho at 120, 645 P.2d at 354. See generally, Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991); Doe v. Durtschi, 110 Idaho 466, 469, 716 P.2d 1238, 1241 (1986); Anderson v. City of Pocatello, 112 Idaho 176, 731 P.2d 171 (1986); Anderson v. Ethington, 103 Idaho 658, 660, 651 P.2d 923, 925 (1982).

The burden of proving the absence of a material fact rests at all times upon the moving party. McCoy, 120 Idaho at 769, 820 P.2d at 364; Petricevich, 92 Idaho at 868, 452 P.2d at 365. This burden is onerous because even "circumstantial" evidence can create a genuine issue of material fact. McCoy, 120 Idaho at 769, 820 P.2d at 364; Petricevich, 92 Idaho at 868, 452 P.2d at 365. However, the Court will consider only that material contained in affidavits or depositions which is based upon personal knowledge and which would be admissible at trial. Petricevich, 92 Idaho at 869, 452 P.2d at 366. Summary judgment is properly issued when the nonmoving party bearing the burden of proof fails to make a showing sufficient to establish the existence of an element essential to that party's case. Nelson v. Steer, 118 Idaho 409, 410, 797 P.2d 117, 118 (1990); Dekker v. Magic Valley Regional Medical Center, 115 Idaho 332, 333, 766 P.2d 1213, 1214 (1988).



The district court correctly found that no issue of material fact existed as to whether the Department was reckless, willful, and wanton in its supervision of its legal charge Barajas, and consequently that I.C. § 6-904A(2) shielded the Department from liability. The applicable test for "willful, and wanton conduct" can be derived from Jacobsen v. City of Rathdrum, 115 Idaho 266, 270-71, 766 P.2d 736, 740-41 (1988), which construes Idaho's Recreational Use Statute. The Jacobsen court construed the Recreational Use Statute as converting those who use property for recreational purposes to the status of trespassers for purposes of landowner liability. The duty of a landowner to a trespasser is "to refrain from willful or wanton acts which might cause injuries." Huyck v. Hecla Mining Co., 101 Idaho 299, 301, 612 P.2d 142, 144 (1980). The Jacobsen analysis of "willful and wanton" conduct is instructive in this case because the Court embraces a definition of "willful and wanton" that is much the same as the definition found in I.C. § 6-904C for "reckless, willful and wanton" conduct. Jacobsen defines "willful and wanton" conduct as conduct which is present if the person "intentionally does or fails to do an act, knowing or having a reason to know facts which would lead a reasonable man to realize that his conduct not only creates unreasonable risk of harm to another, but involves a high degree of probability that such harm would result." Jacobsen, 115 Idaho at 270, 766 P.2d at 740. According to Jacobsen, the key element in this definition is knowledge. 2 Id., 115 Idaho at 272, 766 P.2d at 742. The type of knowledge envisioned by the Jacobsen Court implies an element of foreseeability in the phrase "having reason to know." This foreseeability, as applied to this case, contemplates more than the mere possibility of aggressive tendencies harbored by the state's ward. The concept of foreseeability is much more narrowly drawn in this circumstance. The specific harm, i.e. violence, particularly of a sexual nature, toward members of the public other than Barajas's peers must be manifest or ostensible, and highly likely to occur. To hold otherwise would impose a debilitating burden on the state, requiring it to infer the highest social risk from a ward's minimal antisocial behavior, against which it would have the unequivocal duty to protect the public. Idaho Code § 6-904A(2) was intended to render the state immune from the unpredictable acts of third persons, including...

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