Jones v. City of St. Maries, 15745

• Decision Date: 15 October 1986
• Docket Number: No. 15745,15745
• Parties: Verle JONES and Annette Jones, husband and wife, Plaintiffs-Appellants, v. The CITY OF ST. MARIES, a municipal corporation, Defendant-Respondent, and Safeway, Inc., a Maryland corporation, Defendant.
• Court: Idaho Supreme Court

Page 1161

727 P.2d 1161

111 Idaho 733

Verle JONES and Annette Jones, husband and wife, Plaintiffs-Appellants, v. The CITY OF ST. MARIES, a municipal corporation, Defendant-Respondent and Safeway, Inc., a Maryland corporation, Defendant.

No. 15745.

Supreme Court of Idaho Oct. 15, 1986.

[111 Idaho 734] Theodore L. Rupp, Post Falls, for plaintiffs-appellants.

Samuel Eismann, Coeur d'Alene, for defendant-respondent.

DONALDSON, Chief Justice.

Because this case was decided on a motion for judgment on the pleadings, for the purposes of this appeal, we must accept the truth of appellants' allegations. See, e.g., Davenport v. Burke, 27 Idaho 464, 473, 149 P. 511, 515 (1915). The facts as stated by the appellants are as follows:

The appellants, Verle and Annette Jones, were the owners of a residence in St. Maries, Idaho. The residence was located immediately adjacent to the southeast corner of the Tubbs building in St. Maries. On Thursday, July 29, 1982, at 12:34 AM, a small fire was discovered at the loading dock on the north end of the Tubbs building. The fire was quickly extinguished and was declared out by 12:45 AM. At about 3:13 AM, a second alarm was sounded and the fire department arrived to find the entire northwest corner of the building in flames. Efforts to provide water to fight the fire were delayed because of debris plugging the screens in the pumper. The debris apparently had been discharged from the fire hydrant or water system. A second fire hydrant had been turned off and the time expended in turning it back on further delayed efforts to extinguish the fire. As a result, the fire spread to the Jones's residence, which was totally destroyed.

The Joneses filed a claim against the City of St. Maries under the Idaho Tort Claims Act (ITCA) alleging that the city was negligent in maintaining its water mains and fire hydrants. The claim was subsequently denied. The Joneses then initiated this action for damages against the city and against Safeway, Inc., the lessee of the Tubbs building. The city moved to dismiss the counts against it on the grounds that the Joneses had failed to allege a Notice of Tort Claim as required by the ITCA, and that the city was immune from liability pursuant to I.C. § 6-904(1), the discretionary function exception to the ITCA. The district court granted the city's motion holding that the city was immune from liability under § 6-904(1) of the ITCA. The Joneses appeal from that decision.

With the enactment of the ITCA, the state of Idaho has subjected itself to negligence liability.

"6-903. Liability of governmental entities--Defense of employees.--(a) Except as otherwise provided in this act, every governmental entity is subject to liability for money damages arising out of its negligent or otherwise wrongful acts or omissions and those of its employees acting within the course and scope of their employment or duties, whether arising out of a governmental or proprietary function, where the governmental entity if a private person or entity would be liable for money damages under the laws of the state of Idaho, provided that the governmental entity is subject to liability only for the pro rata share of the total damages awarded in favor of a claimant which is attributable to the negligent or otherwise wrongful acts or omissions of the governmental entity or its employees."

In the recent case of Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755, (1986), we comprehensively discussed the standard of construction and review under the ITCA. There we stated that liability is the rule with certain specific exceptions. Sterling, supra, 214-215, 723 P.2d 758-759; see also, Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238, (1986). We further noted that, "Those exceptions which are stated must be closely construed." Sterling, supra, 111 Idaho at 215, 723 P.2d at 759.

The instant case involves the so-called "discretionary function" exception to liability which is contained in I.C. § 6-904(1):

"6-904. Exceptions to governmental liability.--A governmental entity and its employees while acting within the course and scope of their employment and without malice or criminal intent shall not be liable for any claim which:

"(1) Arises out of any act or omission of an employee of the governmental entity exercising ordinary care, in reliance upon or the execution or performance of a statutory or regulatory function, whether or not the statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused."

The district court, in granting the city's motion for judgment on the pleadings, apparently felt that our construction of the discretionary function exception in Chandler Supply Co. Inc. v. Boise, 104 Idaho 480, 660 P.2d 1323 (1983), was controlling.

In Chandler, the plaintiff, Chandler Supply Company, brought suit against the city of Boise alleging that the Boise Fire Department was negligent in failing to completely extinguish a fire which ultimately spread to the plaintiff's property, resulting in substantial damage thereto. The trial court refused to hold the city immune from liability under the discretionary function exception to the ITCA and the jury returned a special verdict finding the city 75% negligent. On appeal, this Court reversed holding that,

"The discretionary function exception in I.C. § 6-904(1) shields governmental units from tort liability for the consequences arising from the planning and operational decision-making necessary to the performance of traditional governmental functions. Since the action in the present case is based upon a claim of negligence with regard to the operational decisions of city firemen in fighting a fire, a traditional governmental function, the action is barred under I.C. § 6-904(1)." Chandler, supra at 486, 660 P.2d at 1329. (Emphasis in original.)

The trial court felt the circumstances of the instant case were indistinguishable from those in Chandler and granted the city's motion to dismiss on that basis.

"I have a very difficult time in my mind distinguishing this case from the Chandler case or the Dunbar case for that matter, when you are talking about the actual maintenance of the firefighting apparatus, which I would think the hydrant system would be. Clearly to me the maintenance of a hydrant system is done for the same purpose as maintenance of a fire truck, or maintenance of anything else that goes along with it, I surely think it all falls into the scope of a governmental function. And, likewise, I think that probably the inspection and duties that go along with enforcement of ordinances, or codes, or whatever you might have involved, is certainly governmental function, I simply can't distinguish that.

....

"To me whether we are talking about maintenance of the hydrant system, maintenance of a fire truck, method of fighting the fire, response time, whatever might be involved, or the method of protecting against the fire in the first place by imposing inspections under rules and ordinances and code, and thereafter in enforcing them, all fall within the same governmental function.

"I simply can't distinguish in my mind between those. So on that ground, I think I have no choice but to--accepting all of the allegations in the complaint as true--to grant the Motion to Dismiss."

The trial court was, of course, acting without the benefit of our recent decision in Sterling v. Bloom, supra, in which we adopted the "planning/operational test" for determining whether a particular governmental action is discretionary and therefore immune under I.C. § 6-904(1). The planning/operational test provides immunity for planning activities--activities which Sterling specifically rejected the "traditional governmental function" analysis employed in Chandler.

[111 Idaho 736] involve the establishment of plans, specifications and schedules where there is room for policy judgment and decisions. Operational activities--activities involving the implementation of statutory and regulatory policy--are not immunized and, accordingly, must be performed with ordinary care. Sterling, supra 111 Idaho at 229-30, 723 P.2d at 773-74.

"Without any reference to authority, Chandler held that the discretionary function exception to immunize decisionmaking was 'necessary to allow governmental units to freely perform their traditional governmental functions.' Chandler, supra, 104 Idaho at 485, 660 P.2d at 1328 (emphasis in original). Nothing in the definition of 'discretion' and nothing in the entire framework and scheme of the Tort Claims Act itself provides even an inkling of any possible reference to 'traditional governmental functions.' To the contrary, the exercise of choice and judgment and the making of responsible decisions take place daily in all human activities. The United States Supreme Court specifically rejected such a derivation. [Union Trust Co. v.] Eastern Airline, supra, 350 U.S. 907, [76 S.Ct. 192, 100 L.Ed. 796 (1955) ] explained in [United States v.] Varig [Airlines], supra, 104 S.Ct. [2755] at 2764-65 [81 L.Ed.2d 660 (1984) ]. Most importantly, and as previously illustrated, such a derivation would convert to mere surplusage those expressly enumerated exceptions found in I.C. § 6-904 which involve 'traditional' governmental functions. Chandler, supra, 104 Idaho at 488, 660 P.2d at 1331 (Donaldson, C.J., dissenting). We hold that the discretionary function exception does not extend immunity on the basis of certain governmental functions having been in pre-1971 days judicially described as 'traditional.' " Sterling, supra at 231, 723 P.2d at 775. (Emphasis in original.)

The trial court, acting without the benefit of Sterling, concluded that the maintenance of the water mains and fire hydrants at issue in the present case was part of the traditional governmental function of...