Smith v. State

Decision Date05 August 1970
Docket NumberNos. 10285,10290,10315 and 10388,s. 10285
Citation93 Idaho 795,473 P.2d 937
PartiesElwyn SHITH and Morrie Smith, Randy Smith and Kelly Smith, Minors, through their Guardian ad litem, Kathleen Prentice, Plaintiffs, v. The STATE of Idaho, Defendant. Elwyn SMITH and Morrie Smith, Randy Smith and Kelly Smith, Minors, through their Guardian ad litem, Kathleen Prentice, Plaintiffs-Appellants, v. DUFFY REED CONSTRUCTION CO., an Idaho Corporation, John Doe, Jack Doe, and Jane Doe, Defendants, and The State of Idaho, Defendant-Respondent. James W. HOPPER, surviving husband of Stella M. Hopper. Deceased, individually, and as Guardian of the Estates of Rachel Jane Hopper and Rebecca Estelle Hopper, the surviving minor children of Stella M. Hopper, Deceased, Plaintiffs-Appellants, v. The IDAHO BOARD OF HIGHWAY DIRECTORS and Doyle Symms, C. Ed Flandro and Ernest F. Gaffney, the members of the Idaho Board of Highway Directors, Defendant- Respondent. Maurice MURPHY and Zelda Murphy, husband and wife, and Maurice Murphy as Guardian ad litem for Thomas Murphy, a minor, Plaintiffs-Appellants, v. The DEPARTMENT OF HIGHWAYS, a civil department of the State of Idaho, Doyle Symms, Ernest F. Gaffney and C. Ed Flandro as the Board of Directors for the Department of Highways, Blaine Sessions, Doyle Symms, Ernest F. Gaffney and C. Ed Flandro, Individually, Defendants-Respondents, and Melrose Burgess and Jane Doe Burgess, husband and wife, Defendants.
CourtIdaho Supreme Court

Kramer, Plankey & Meehl, Twin Falls, for plaintiffs and appellants in Nos. 10285 and 10290.

McClenahan & Greenfield, Boise, for plaintiffs and appellants in No. 10315.

Rayborn, Rayborn, Webb & Pike, Twin Falls, for plaintiffs and appellants in No. 10388.

Faber F. Tway, Boise, for defendants and respondents.

The previous opinion regarding these cases is withdrawn and this opinion is hereby substituted therefor.


These cases involve claims for wrongful death and personal injury against the State of Idaho, based on alleged negligent acts of employees of the State Highway Department. In all of the cases, except Case No. 10285, the state moved for summary judgment or dismissal in the district court on the basis of the state's sovereign immunity. In each case the motions were granted by the district court and the plaintiffs have appealed. Case No. 10285 involved the same parties and facts as Case No. 10290 and was originally filed in the Idaho Supreme Court. In Case No. 10285 the state filed a motion to dismiss and that original action is still pending in the Supreme Court. Cases 10285, 10290, and 10315 were consolidated by Order of this Court, January 3, 1969. Case No. 10388 was consolidated by Order of this Court on June 20, 1969. The facts of each case are as follows:

Smith, et al. v. State of Idaho-Nos. 10285, 10290.

In regard to this claim, two causes of action were initiated: No. 10290, originally commenced in the District Court of the Fifth Judicial District, Twin Falls County, Honorable Theron W. Ward, District Judge, and No. 10285, an original action filed before the Supreme Court pursuant to Article 5, § 10 of the Idaho Constitution. 1

These suits arose out of an accident occurring at 6:20 A.M., April 5, 1967, on State Highway 30 approximately 3/4 of a mile north of Hagerman, Idaho. Elwyn Smith's automobile skidded off the road, then rolled and turned over, resulting in the death of Shirley Jean Smith, his wife, and causing injuries to his three minor daughters, all passengers in the automobile.

Plaintiffs claim that the portion of the highway where their vehicle skidded was of relatively new construction and that the Duffy Reed Construction Company which constructed the highway used a certain composition which rendered the highway dangerous and unusually slippery when wet. Plaintiffs further allege that the construction company did not construct the roadway where the accident occurred in accordance with good engineering practices, since there was a bend or turn at that point tending to throw cars traveling in a southerly direction off the highway and on to the shoulder of the highway. Plaintiffs allege that since the construction company was operating pursuant to contract specifications and directions of the State of Idaho, the state was negligent for the same reasons as the construction company. In addition the state was negligent in failing to erect warning signs along said road warning motorists traveling thereon of the dangerous conditions then existing.

Murphy, et al. v. Department of Highways-No. 10388.

Appeal from the District Court of the Fifth Judicial District, Twin Falls, County. Honorable Theron W. Ward, District Judge.

This is a negligence action to recover for the personal injuries suffered by a minor who was a passenger in an auto which skidded into a bridge on State Highway 25 one-half mile west of Paul, Idaho. The accident accurred at about 8:00 A.M., on December 22, 1965.

The complaint alleges that the Idaho Department of Highways maintained a bridge 'on State Highway 25 which created an unusual hazard in that the bridge spanned sewer water which because of its warm temperature, caused ice to collect and build up on the pavement immediately surrounding the bridge.' Plaintiffs allege the defendant's negligence or gross negligence was their failure to remedy or to correct the dangerous condition and their failure to post adequate warnings of the icy condition of the bridge.

The minor's parents (appellants herein) are suing in their own right for medical expenses incurred for the treatment of their son, Thomas Murphy, and as guardians ad litem seek general damages for the pain, suffering, and injuries sustained by him. Appellants do not argue on appeal that they are entitled to sue in their own right and acknowledge that their right is barred by the statute of limitations, I.C. §§ 5-201, 5-219.

Hopper v. State of Idaho-No. 10315.

Appeal from the District Court of the Fourth Judicial District, Ada County. Honorable J. Ray Durtschi, District Judge. This negligence action arose from an accident occurring on U. S. Highway 20-26 between Gooding and Bliss, Idaho, July 20, 1965.

The decedent, wife of James W. Hopper, appellant, and her minor children were proceeding in a westerly direction in an automobile on U. S. Highway 20-26. The auto was struck by a bus then being operated in an easterly direction on the wrong side of the highway. As a result of the collision, the wife of the appellant died and the minor children sustained injuries.

On the day of the accident the Idaho Department of Highways was applying a 'sealer coat' to the road surface of the eastbound lane of a six mile portion of U. S. 20-26 between Gooding and Bliss. The complaint alleges that flagmen had been stationed at each end of the project to warn motorists that both east and westbound traffic was being channelled into the westbound lane of the highway. During the afternoon of July 20, 1967, the flagman stationed at the easterly point of this project left his post. Upon his departure there was no flagman, nor any signal device, nor sign at this point to warn the deceased that the eastbound traffic was also proceeding in the westbound lane.

Appellants allege in their complaint that the defendants were negligent in the construction, supervision and maintenance of that portion of the highway under repair by failing to construct and erect warning signals or signs. The appellants also allege that the defendants were negligent in failing to have the flagman, at the easterly end of the project, remain on duty to warn westbound traffic of approaching traffic from the west.

Each of the three cases now before this Court presents an identical question; viz., whether or not the doctrine of sovereign immunity with regard to the tort liability of the State of Idaho is to be abolished.

'An immunity * * * avoids liability in tort under all circumstances * * * it is conferred, not because of the particular facts, but because of the status or position of the favored defendant; and it does not deny the tort, but the resulting liability.' W. L. Prosser, Law of Torts, 996 (3d ed. 1964). (Emphasis supplied).

The doctrine of sovereign immunity has its roots in the ancient common law which theorized that the king can do no wrong. 2 But it was acknowledged that the king as the fountain of justice and equity, could not refuse to redress wrongs when petitioned to do so by his subjects. 3

It was well recognized in the thirteenth century and later that while the king was not directly subject to the law, and that though ordinary writs did not lie against him in his court, he was morally bound to do the same justice to his subjects as they could be compelled to do to one another. In fact the Court of Exchequer had jurisdiction of equitable claims against the king. 4 Concerning the history and effect of the doctrine of sovereign immunity, the California Supreme Court speaking through Chief Justice Traynor in the case of Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961), had this to say:

'* * * At the earliest common law the doctrine of 'sovereign immunity' did not produce the harsh results it does today. It was a rule that allowed substantial relief. It began as the personal prerogative of the king, gained impetus from sixteenth century metaphysical concepts, may have been based on the misreading of an ancient maxim, and only rarely had the effect of completely denying compensation. How it became in the United States the basis for a rule that federal and state governments did not have to answer for their torts has been called 'one of the mysteries of legal evolution.' * * *.' 55 Cal.2d 211 at 214, 11 Cal.Rptr. 89 at 90-91, 359 P.2d 457 at 458, 459 (1961).

Nevertheless the rule in the majority of the states of the United States has been one of absolute sovereign immunity with regard to...

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