Lewis v. Estate of Smith, 15964

• Decision Date: 15 October 1986
• Docket Number: No. 15964,15964
• Citation: 111 Idaho 755,727 P.2d 1183
• Parties: Thomas K. LEWIS, and Karen L. Lewis, husband and wife, Individually and as Guardians Ad Litem for Sabrina Lewis, Plaintiffs-Appellants, v. ESTATE OF Robert SMITH, Alvin Harward and Howard Lein, d/b/a Star-Lite Apartments, Defendants, and City of Blackfoot, a municipal corporation of the State of Idaho, Defendant- Respondent.
• Court: Idaho Supreme Court

Page 1183

727 P.2d 1183

111 Idaho 755

Thomas K. LEWIS, and Karen L. Lewis, husband and wife, Individually and as Guardians Ad Litem for Sabrina Lewis, Plaintiffs-Appellants, v. ESTATE OF Robert SMITH, Alvin Harward and Howard Lein, d/b/a Star-Lite Apartments, Defendants, and City of Blackfoot, a municipal corporation of the State of Idaho, Defendant- Respondent.

No. 15964.

Supreme Court of Idaho.

Oct. 15, 1986.

Donald J. Chisholm and John A. Bradley, Burley, for plaintiffs-appellants.

Charles Johnson, III, Pocatello, for defendant-respondent.

HUNTLEY, Justice.

This appeal arises out of a grant of summary judgment for the City of Blackfoot on grounds that the Lewises' complaint against the city is barred by provisions of the Idaho Tort Claims Act and fails to state a cause of action under the Uniform Fire Code. The Lewises appeal from that grant.

The Lewises' claim for damages alleges two distinct breaches of duty by the City of Blackfoot. First, that the city failed to adequately and regularly inspect and follow up on the inspection of the Star-Lite Apartments, as required by the city's adoption of the Uniform Fire Code and Life Safety Code. Secondly, the Lewises contend that the city's failure to abate or correct known fire code violations in the Star-Lite Apartments, was an affirmative breach of its duty to the occupants of the Star-Lite Apartments, rendering the city liable in tort for the Lewises' injuries in a subsequent fire.

The pertinent facts are as follows: On December 16, 1983, appellants Thomas K. Lewis and Karen L. Lewis, husband and wife, and their child, Sabrina Lewis, suffered injuries as a result of a fire at the Star-Lite Apartments in which they lived. Previously, on December 25, 1980, the city had conducted a fire hazard inspection of the Star-Lite Apartments, at the request of one of the owners of the complex. At that time, thirteen violations were found. The city did not act to correct the violations. Moreover, the city had ceased to regularly inspect for fire hazards absent specific requests from members of the public, as a result of a cut back in local funding, occasioned by the passage of the One-percent Initiative.

In their complaint, the Lewises contend that regular inspections of the Star-Lite Apartments and corrections of the known violations there would have prevented the injuries incurred during the fire of December 16, 1983. The Lewises further contend that the City of Blackfoot was obligated, after its adoption of the Uniform Fire Code and the Life Safety Code, and all subsequent additions and/or supplements to those codes, in Ordinance No. 835, dated September 5, 1978, to enforce those codes regardless of economic hardship. We deal with each of the Lewises' contentions in turn.

Since this case comes to us on appeal from summary judgment, we must accept as true the non-moving party's (i.e. appellants/Lewises') factual contentions. See, e.g., Davenport v. Burke, 27 Idaho 464, 473, 149 P. 511, 515 (1915).

I. THE CITY'S FAILURE TO CONDUCT REGULAR INSPECTIONS

The trial court found that the city's determination as to when and how to conduct fire inspections fell within the ambit of unique, governmental decision-making. The trial court then applied I.C. § 6-904(1), which provides an exception from liability to governmental entities engaged in "discretionary functions or duties." I.C. § 6-904(1) specifically provides:

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.

This court recently articulated the "planning/operational analysis" for determining whether a particular governmental action is discretionary. Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986). Under this test, discretionary governmental policy-making or planning activities are exempt from liability under I.C. § 6-904(1), while, "operational activities--activities involving the implementation of discretionary statutory and regulatory policy--are not immunized and, accordingly, must be performed with due [ordinary] care." Jones v. City of St. Maries, 111 Idaho 733, 727 P.2d 1161 (1986).

Under the "planning/operational test," the city's failure to provide regular fire inspections can still only be viewed as the result of governmental decision-making and exempt from liability pursuant to I.C. § 6-904(1). The Lewises have made no allegation that the inspection, itself, was performed negligently. Rather, the Lewises contend that the infrequency of inspections and failure to perform follow up inspections were proximate causes of their injuries. The city admitted that, as a result of the One-percent Initiative, cutbacks in the fire inspection program were instituted. Specifically, inspections were made only after a public request for such had been received, and follow up inspections (other than "letters of recommended action") were eliminated.

In explaining the exemption from liability for discretionary activity provided by § 2680(a) of the Federal Tort Claims Act, a section analogous to I.C. § 6-904(1), the U.S. Supreme Court stated:

When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind. Decisions as to the manner of enforcing regulations directly affect the feasibility and practicality of the government's regulatory program; such decisions require the agency to establish priorities for the accomplishment of its policy...