Masters v. State

• Decision Date: 25 February 1983
• Docket Number: No. 13357,13357
• Citation: 668 P.2d 73,105 Idaho 197
• Parties: Pamela K. MASTERS, Plaintiff, v. STATE of Idaho, Michael Brink and Jane Doe Brink, husband and wife, Respondents-Defendants and Cross-Plaintiffs, and Roger Griesmer and Lydia Griesmer, husband and wife, Appellants-Defendants and Cross-Defendants.
• Court: Idaho Supreme Court

Page 73

668 P.2d 73

105 Idaho 197

Pamela K. MASTERS, Plaintiff, v. STATE of Idaho, Michael Brink and Jane Doe Brink, husband and wife, Respondents-Defendants and Cross-Plaintiffs, and Roger Griesmer and Lydia Griesmer, husband and wife, Appellants-Defendants and Cross-Defendants.

No. 13357.

Supreme Court of Idaho.

Feb. 25, 1983.

Rehearing Denied Sept. 8, 1983.

Kenneth B. Howard of Hannon, Gabourie & Howard, Coeur d'Alene, for appellants-defendants and cross-defendants.

Robert M. Tyler, Jr. of Elam, Burke, Evans, Boyd & Koontz, Boise, for respondents-defendants and cross-plaintiffs.

SHEPARD, Justice.

This is an appeal by defendants-appellants Griesmer from a judgment awarding contribution against them and in favor of the respondents-defendants State of Idaho and Michael and Jane Doe Brink. We affirm.

The principal action was one for personal injury damages arising from a collision between a motorcycle and an Idaho State police patrol car. Plaintiff Masters was a passenger on the motorcycle owned and driven by Roger Griesmer. Michael Brink was an Idaho State Police Officer and the operator of a state police patrol car. Brink was pursuing the Griesmer-driven motorcycle, which was traveling at a speed of approximately 90 miles per hour. When Brink observed Griesmer make a U-turn, and start back toward him, Brink stopped the patrol car, blocking the highway and the motorcycle collided with the patrol vehicle.

Masters was injured in the accident and filed suit against the Griesmers, the State of Idaho, and the Brinks. Upon trial, the state moved for a directed verdict in its favor on the basis that the acts of Brink fell within "a discretionary function or duty on the part of a governmental entity or an employee thereof" and hence there was no liability on the part of either the state or its employee. See I.C. § 6-904(1). Both plaintiff Masters and defendants Griesmer opposed the motion with extensive briefing and argument. The trial court denied that motion. No appeal was taken from that ruling.

The jury found that the defendant, Griesmer, was negligent and that his negligence proximately caused the collision. Ninety-five percent of the causal negligence was assigned to Griesmer. The jury also found the State of Idaho and its employee Brink were negligent and that their negligence proximately caused the collision. The jury attributed 5% of the causal negligence to the State of Idaho and Brink. The jury found that the plaintiff Masters was not negligent and assessed her damages at approximately $97,000. The trial court entered judgment accordingly, finding all defendants jointly and severally liable. No appeal was taken therefrom by any of the parties.

Thereafter, Griesmers paid $10,000 on the judgment, and the State of Idaho paid the remaining approximately $87,000. The State of Idaho had in its cross-claim asserted that in the event a judgment was entered against it that it in turn would seek contribution from the Griesmers. Since judgment had been entered against the state, it moved for summary judgment for contribution against the Griesmers asserting that the state had paid approximately $82,000 in excess of the state's proportional share of the liability. That motion for summary judgment was granted and the Griesmers appeal therefrom.

Griesmers first argue that the state is not a joint tortfeasor within the meaning of I.C. § 6-803 because it does not share a "common liability" with the Griesmers and hence the state is not entitled to contribution. I.C. § 6-803 provides:

"6-803. Contribution among joint tortfeasors--Declaration of right--Exception--Effect of comparative negligence.--(1) The right of contribution exists among joint tortfeasors, but a joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.

"(2) A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement.

"(3) When there is such a disproportion of fault among joint tortfeasors as to render inequitable an equal distribution among them of the common liability by contribution, the relative degrees of fault of the joint tortfeasors shall be considered in determining their pro rata shares solely for the purpose of determining their rights of contribution among themselves, each remaining severally liable to the injured person for the whole injury as at common law.

"(4) As used herein, 'joint tortfeasor' means one (1) of two (2) or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them."

By statutory definition, the state here is clearly a "joint tortfeasor" since the action was brought against both the state and Griesmers and judgment thereon was rendered against both, holding them jointly and severally liable in tort for the same injury to Masters. The Griesmers argue, however, that certain limitations statutorily placed upon the liability of the state result in the state standing on a different footing than do the Griesmers and hence the state and the Griesmers do not share a "common liability". We disagree.

To the extent that sovereign immunity has been abrogated by the state, it has subjected itself to liability for its negligent acts and the negligent acts of its employees and to that same extent, the state shares a common liability with third party private tortfeasors. The instant case is an example thereof. Under the federal tort claims act (after which our state tort claims act was evidently patterned) and many state tort claims acts which contain some or all of the exceptions contained in the Idaho tort claims act, it has been held that governmental entities may both sue and be sued for contribution. United States v. Yellow Cab, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951); Anderson v. United States, 118 F.Supp. 498 (W.D.Ky.1953); Di Benedictis v. United States, 103 F.Supp. 462 (W.D.Pa.1952); Petersen v. City and County of Honolulu, 51 Hawaii 484, 462 P.2d 1007 (Hawaii 1970); Nelson v. State, 105 Misc.2d 107, 431 N.Y.S.2d 955 (Ct.Cl.1980).

Contribution is a remedy deeply rooted in the principles of equity, fair play and justice. Aalco Manufacturing Co. v. City of Espanola, 95 N.M. 66, 618 P.2d 1230 (N.M.1980); Larsen v. Minneapolis Gas Co., 282 Minn. 135, 163 N.W.2d 755 (Minn.1968); Panichella v. Pennsylvania Railroad Co., 167 F.Supp. 345 (W.D.Pa.1958), reversed in part on other grounds, 268 F.2d 72 (3d Cir.1959), cert. denied, 361 U.S. 962, 80 S.Ct. 590, 4 L.Ed.2d 543 (1960). We see no equity in the result sought by the Griesmers who would require that the state be held liable for approximately 90% of Masters' damages, 95% of which resulted from the causal negligence of Griesmers. Neither our tort claims act nor our statutes governing contribution among joint tortfeasors contain any indication that the state is prohibited from obtaining contribution from a joint tortfeasor. The clear language of the statute dictates a contrary result.

Griesmers next argue that the state acted as a volunteer in satisfying the judgment in favor of Masters to the extent of $82,000 and therefore the state is not entitled to contribution. Such assertion, of course, flies in the face of the judgment entered in favor of Masters and jointly and severally against the state. The Griesmers, however, argue that Officer Brink was performing a discretionary function of government at the time of the accident, and therefore the state was immune from liability, see I.C. § 6-904(1), and hence any payment made by the state was voluntary and one for which it cannot now seek contribution. The record is clear that the defense of the discretionary function exception to the state's liability was asserted by the state at trial, was resisted by the Griesmers, that the state's position was the subject of an adverse ruling by the trial court, that the ruling of the trial court favored the Greismers, and no appeal from that ruling was taken by any party. The Griesmers may not have their cake in the trial court and then regurgitate it here. A party will not be heard to prevail upon an issue below, and then on appeal, in effect, seek an overruling of the favorable decision. Heckman Ranches, Inc., v. State, 99 Idaho 793, 589 P.2d 540 (1979); Ford v. Lord, 99 Idaho 580, 586 P.2d 270 (1978); Frasier v. Carter, 92 Idaho 79, 437 P.2d 32 (1968).

Although, as found by the trial court, "this entire case was tried by the parties and presented to the jury on the issue of negligence of all of the Defendants and the jury determined the percentage of negligence of each", nevertheless, the Griesmers now seek to inject an issue of an intentional tort on the part of Officer Brink and thereby prohibit an "intentional" tortfeasor from obtaining contribution from a tortfeasor who is merely negligent. The trial court found "such an issue [intentional tort] was never presented in this case, and cannot be raised at this time [motion for summary judgment on the issue of contribution]." The record indicates the finding of the trial court is clearly correct. The parties will be held to the theories upon which a cause was tried in the court below. Heckman Ranches, Inc. v. State, supra; Ford v. Lord, supra; Frasier v. Carter, supra.

The judgment of the trial court is affirmed. Costs to respondents. No attorney's fees on appeal.

DONALDSON, C.J., BAKES, J., and McFADDEN, J. (Ret.), concur. BISTLINE, Justice, dissenting.

I.

Here we have a sequel to Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1980), wherein the split on the Court was three-to-two. By a single vote the lot of tort victims in the State of Idaho was thrown in with that of Wisconsin's tort victims, notwithstanding that the legislature expressed...