Hunter v. State, Dept. of Corrections

• Decision Date: 13 September 2002
• Docket Number: No. 26556, No. 26578.
• Court: Idaho Supreme Court
• Parties: Earl Louis HUNTER and Beverly Rae Hunter, husband and wife, natural parents of Wendy Hunter, deceased, Plaintiffs-Respondents-Cross-Appellants, v. STATE of Idaho, DEPARTMENT OF CORRECTIONS, DIVISION OF PROBATION & PAROLE and Division of Field & Community Services, Defendants-Appellants-Cross-Respondents, and James C. Lynch, dba Mr. Gas and Mr. Wash; and John and Jane Does I through V, Defendants.

57 P.3d 755

138 Idaho 44

Earl Louis HUNTER and Beverly Rae Hunter, husband and wife, natural parents of Wendy Hunter, deceased, Plaintiffs-Respondents-Cross-Appellants, v. STATE of Idaho, DEPARTMENT OF CORRECTIONS, DIVISION OF PROBATION & PAROLE and Division of Field & Community Services, Defendants-Appellants-Cross-Respondents, and James C. Lynch, dba Mr. Gas and Mr. Wash; and John and Jane Does I through V, Defendants.

Nos. 26556, 26578.

Supreme Court of Idaho, Twin Falls, November 2001.

September 13, 2002.

Rehearing Denied November 14, 2002.

Alan G. Lance, Attorney General, Boise; Benoit, Alexander, Sinclair, Harwood & High, LLP, Twin Falls; and Michael G. Brady, Boise, for appellants. Thomas B. High and Michael G. Brady argued.

Kenneth L. Pedersen, Twin Falls, and Seiniger Law Offices, Boise, for respondents. Kenneth L. Pedersen and WM. Breck Seiniger, Jr. argued.

SCHROEDER, Justice.

This is a wrongful death action filed by Louis and Beverly Rae Hunter (the Hunters) against the State of Idaho, Department of Corrections (the State) and James Lynch, doing business as Mr. Gas and Mr. Wash (Mr. Wash). The Hunters allege that the State and Lynch negligently failed to supervise Corey Hood, who was on probation for rape. Corey Hood murdered the Hunters' daughter, Wendy Hunter (Hunter).

I. FACTS AND PROCEDURAL HISTORY

Hood was convicted of statutory rape in Minidoka County on August 29, 1994, following an allegation that he had forcibly raped a child under the age of eighteen. Hood pled guilty to statutory rape and was sentenced to the custody of the Board of Correction for a term of three years. The court retained jurisdiction for 180 days, and Hood was sent to the North Idaho Correctional Institute. He was placed on three years probation after completing that program.

The terms of probation required Hood to remain employed, report to his probation officer, and refrain from intimate relations with anyone under eighteen. Officer Kim Spevak (Spevak) supervised Hood's probation. Spevak had also served as the presentence investigator on Hood's statutory rape conviction and was aware that the 1994 rape could have been a forcible rape. This information was contained in victim's statements in the original police report.

Spevak first met with Hood on April 16, 1995, and asked him to execute a "Sexual Offender Contract" which was not ordered by the district court. Spevak also asked Hood to undergo a sexual offender evaluation in order to determine what risk he posed. Hood never underwent the sexual offender evaluation.

Spevak used the State's Risks and Needs assessment to determine the proper level of supervision for Hood. He was rated at the "maximum" level of supervision. Because of this rating, Spevak was required to meet with Hood face to face twice per month and make one home visit each month. Spevak's notes indicate that she met with Hood in excess of the minimum requirements. Spevak testified that she treated Hood as though he were a forcible rapist.

In August of 1995 Hood began working at Mr. Wash, a car wash in Burley. Spevak confirmed Hood's employment by visiting Mr. Wash and meeting with Hood's supervisor. Spevak informed the supervisor that Hood was on probation for a sexual offense and was not to interact with minors. Spevak did not inform the supervisor of the precise nature of Hood's conviction.

There were no complaints about Hood's conduct at Mr. Wash. Hunter, who was seventeen years old at the time of her death, was also an employee at Mr. Wash. There was testimony that the supervisors at Mr. Wash did not know Hunter's age. Employees at Mr. Wash had observed Hunter talking with Hood on several occasions, but no employees were aware of Hood and Hunter seeing each other outside of their employment. Although employees had seen Hunter "flirting" with Hood, employees testified that Hunter flirted with most male employees at Mr. Wash.

On May 16, 1996, Hood raped and murdered Hunter at his home in Burley. Hunter had quit her job at Mr. Wash six weeks before her murder. The Hunters filed a wrongful death action against the State and Mr. Wash for negligence and negligent supervision of Hood during his probation. The case was tried to a jury. The jury returned a verdict of $1.8 million and apportioned negligence as follows: Earl Hunter, 1%; Wendy Hunter, 4%; Mr. Wash, 20%; the State, 35%; and Hood, 40%. The State and Mr. Wash appeal the district court's denial of their motions for summary judgment, judgment not withstanding the verdict, and motions for a new trial.

II. STANDARD OF REVIEW

Several orders of the district court are being appealed in this case. The first is the district court's denial of summary judgment. An order denying a motion for summary judgment is not an appealable order itself, nor is it reviewable on appeal from a final judgment. See, for example, Idaho Power Co. v. Cogeneration Inc., 134 Idaho 738, 743, 9 P.3d 1204, 1209 (2000):

Cogeneration asks this Court to determine whether the district court erroneously denied its motion for partial summary judgment. However, an order denying a motion for summary judgment is not a final order and a direct appeal cannot be taken from it. Moreover, an order denying a motion for summary judgment is not to be reviewed on appeal from a final judgment. See Bowles v. Pro Indiviso, Inc., 132 Idaho 371, 376, 973 P.2d 142, 147 (1999); Watson v. Idaho Falls Consol. Hospitals, 111 Idaho 44, 46, 720 P.2d 632, 634 (1986); Evans v. Jensen, 103 Idaho 937, 941, 655 P.2d 454, 458 (Ct.App.1982). The final judgment in a case can therefore be tested upon the record made at trial, not the record made at the time summary judgment was denied. See Evans, 103 Idaho at 942,655 P.2d at 459.

When presented with a judgment notwithstanding the verdict, the district court must uphold the jury verdict if "the court finds that the evidence is of sufficient quantity and probative value that reasonable minds could have reached the same conclusion as did the jury." Hudson v. Cobbs, 118 Idaho 474, 478, 797 P.2d 1322, 1326 (1990). The district court must view the facts as if the moving party had admitted the truth of all the non-moving party's evidence, id., and draw every legitimate inference in favor of the non-moving party. Jones v. Panhandle Distributors, Inc., 117 Idaho 750, 752, 792 P.2d 315, 317 (1990). This Court draws all inferences in favor of the nonmoving party to determine if the result is supported by substantial evidence. Highland Enterprises, Inc. v. Barker, 133 Idaho 330, 339, 986 P.2d 996, 1005 (1999).

The grant or denial of a new trial is within the discretion of the district court. Lanham v. Idaho Power Co., 130 Idaho 486, 497-98, 943 P.2d 912, 923-24 (1997). Because the grant or denial of the motion is discretionary, the district court must (1) act within the outer boundaries of its discretion, consistent with the applicable legal standards; and (2) reach its decision through the exercise of reason. Lanham, 130 Idaho at 498, 943 P.2d at 924. This Court reviews a district's court's ruling on a motion for a new trial under the abuse of discretion standard. Id.

III. THE PLAINTIFFS WERE NOT REQUIRED TO SHOW THAT THE STATE'S EMPLOYEE ACTED WITHOUT MALICE OR CRIMINAL INTENT AND WITH RECKLESS, WILLFUL, AND WANTON CONDUCT UNDER I.C. § 6-904A

The State argues that the Hunters were required to prove that the State acted with malice or criminal intent and with reckless, willful, and wanton conduct under I.C. § 6-904A in order to establish liability. The district court denied the State's motion for summary judgment on this issue and instructed the jury that the Hunters were required to prove that the State acted either with malice or criminal intent or with reckless, willful and wanton conduct.

Idaho Code § 6-904A states in relevant part that:

A governmental entity and its employees while acting within the course and scope of their employment and without malice or criminal intent and without reckless, willful and wanton conduct as defined in § 6-904C, Idaho Code, shall not be liable for any claim which . . . (2) arises out of injury to a person . . . under supervision, custody, or care of a governmental entity.

I.C. § 9-604C (emphasis added).

The district court ruled at summary judgment that the Hunters were not required to prove both malice or criminal intent and reckless, willful and wanton conduct.

The State argues that the word `and' in the statute requires a plaintiff to prove both factors—malice or criminal intent and reckless conduct. However, the statute requires that the employee act without malice or criminal intent and without reckless, willful and wanton conduct in order to avoid liability—it does not state a plaintiff must show both factors in order to prove liability. Both elements must be absent to avoid liability. It follows, therefore, if it only one element is missing, the State may be liable. In order to avoid liability, the State employee must be acting without malice or criminal intent and without reckless, willful, and wanton conduct.

A plaintiff, therefore, may prove liability by showing either that the State acted with malice or criminal intent or that the State's action was reckless, willful and wanton. The district court ruled correctly on this issue.

IV. THE STATE IS NOT IMMUNE FROM LIABILITY IN THIS CASE BECAUSE OF DISCRETIONARY FUNCTION IMMUNITY

The State argues that the Hunters' theory of negligence changed during the course of the trial in that they offered evidence that the State lacked a standard procedure for informing employers about the nature of a probationer's conviction. The State maintains that a decision to implement such a procedure is discretionary on the State's part and that the State is entitled to discretionary immunity.

The Hunters offered evidence that the State was reckless in several respects—by not obtaining a sexual offender evaluation and by not adequately informing Hood's employer of the...