Sterling v. Bloom

Decision Date16 May 1986
Docket NumberNo. 15875,15875
Citation723 P.2d 755,111 Idaho 211
PartiesMaud STERLING, Plaintiff-Appellant, v. Fred William BLOOM; Dale E. Martin; Elbert Shrum, dba Seven Mile Lounge; XYZ Business Entities; and Richard L. Lash, dba N.J.L., Defendants, and State of Idaho, Board of Corrections, Defendant-Respondent.
CourtIdaho Supreme Court

Manweiler, Bevis & Cameron, Boise, for appellant; Mark H. Manweiler argued.

Quane, Smith, Howard & Hull, Boise, for respondent; William A. McCurdy appeared; John N. Crawford argued.

BISTLINE, Justice.


This case calls on us in compelling fashion to re-examine certain provisions of the Idaho Tort Claims Act, I.C. § 6-901, et seq. A review of the facts illustrates the case's compelling nature.

The district court decided this case on a motion for judgment on the pleadings. On a motion for judgment on the pleadings pursuant to I.R.C.P. 12(c), the moving party admits all the allegations of the opposing party's pleadings and concomitantly admits the untruth of its own allegations which its adversary has denied. See, e.g., Davenport v. Burke, 27 Idaho 464, 473, 149 P. 511, 515 (1915). Sterling's allegations, deemed admitted by the State of Idaho's motion, are as summarized:

On June 30, 1982, an automobile operated by defendant Bloom turned into and struck the motorcycle operated by appellant Sterling. At the time of the accident Bloom's blood alcohol content was .23 percent by weight.

The collision caused Sterling extensive injuries, including (1) severe physical, mental and emotional injuries including massive brain trauma, (2) continuing physical pain, mental and emotional anguish, permanent injury and disability including loss of memory, loss of certain brain functions, disfigurement, and humiliation, (3) medical expenses amounting to at least $50,000, (4) future medical expenses in amounts yet to be determined, (5) lost wages of at least $30,000, (6) lost future wages in amounts yet to be determined, and (7) property damage to her motorcycle, helmet, and clothing in the amount of at least $300.

Less than a year prior to the collision, Bloom had pled guilty to a felony charge of operating a motor vehicle while under the influence of intoxicating liquor in violation of I.C. § 49-1102. For this conviction his third for driving under the influence, on October 21, 1981, Bloom was sentenced to serve a five-year term. Execution of sentence was suspended, and for five years Bloom was placed on probation. Bloom was placed under legal custody and control of the Director of Probation and Parole of the State of Idaho Board of Corrections. A special condition of probation was that for the first year of that probation Bloom was not to drive a motor vehicle except for employment purposes.

On the same day of sentencing, Bloom executed a written Agreement of Probation with the Board. This agreement provided, among other things, that Bloom would "respect and obey all laws," report on a monthly basis to the probation officer, and would not purchase or operate a motor vehicle without written permission from the Court or Probation Department. Ronald T. Housely, an employee of the Board, became Bloom's supervisor.

The Board, including but not limited to its employee Housely, acted negligently in its supervision of Bloom in at least the following particulars: (1) allowing Bloom to drive a motor vehicle for nonemployment purposes, contrary to the order of probation; (2) allowing Bloom to operate a motor vehicle without the required written permission, contrary to the agreement of probation, (3) allowing Bloom to operate an uninsured motor vehicle in violation of I.C. § 49-235, contrary to the agreement of probation, (4) allowing Bloom to reside in the same building which housed the Seven Mile Lounge, and to work there as a bartender, (5) failing to require Bloom to report on a regular basis to his supervising probation officer contrary to agreement of probation, and failing to otherwise supervise his activities; (6) failing to initiate proceedings to revoke Bloom's probation despite the fact that Bloom had failed and/or refused to comply with the order of probation and the agreement of probation on numerous occasions prior to the collision; and (7) failing to act reasonably and prudently under the circumstances despite having knowledge that Bloom had been convicted at least on two prior occasions of operating a motor vehicle while under the influence of intoxicating beverages and hence posed a great threat to the safety of the public unless adequately supervised.

Each and all of those foregoing negligent acts and omissions of the Board were proximate causes of the collision and plaintiff Maude Sterling's damages.

The district court, in granting the State of Idaho's motion for judgment on the pleadings, applied the holdings of Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21, (1979), cert. denied 446 U.S. 983, 100 S.Ct. 2963, 64 L.Ed.2d 839 (1980), and Chandler Supply Co., Inc. v. City of Boise, 104 Idaho 480, 660 P.2d 1323 (1983), and held the Board immune from liability under the Idaho Tort Claims Act on the bases that (1) in the private sector there is no "parallel function" to that of the Board; and (2) even if there were, the Board was engaged in a discretionary function. We will review each of these holdings in turn after first setting the stage.

A. Standards of Construction and Review.

The Idaho legislature's adoption of the Idaho Tort Claims Act (Idaho Act), 1971 Idaho Sess.Laws ch. 150, §§ 1-31, p. 743, has been observed to be patterned largely on the Federal Tort Claims Act (Federal Act), 28 U.S.C. §§ 1346(b), 2671-2680 (1976 & Supp. V. 1981). Dunbar, 100 Idaho at 530, 602 P.2d at 28. "A statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction." Nixon v. Tribes, 100 Idaho 198, 200, 595 P.2d 1093, 1095 (1979), quoted in Odenwalt v. Zaring, 102 Idaho 1, 5, 624 P.2d 383, 387 (1981); see also Doe v. Durtschi, 110 Idaho 466, 472 n. 2, 716 P.2d 1238, 1244 n. 2 (1986); and Dunbar, supra, 100 Idaho at 530, 602 P.2d [111 Idaho 214] at 28. Consequently, we look with particular interest to pre-1971 federal case law in our pursuit of the legislature's intent.

The Idaho Tort Claims Act provides:

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. (Emphasis added.)

The similar provisions of the Federal Tort Claims Act (the first jurisdictional in nature) in pertinent part are:

28 U.S.C. § 1346 ... (b) Subject to the provisions of chapter 171 of this title, the district courts, ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. (Emphasis added.)

28 U.S.C. § 2674 The United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances....

This case involves the above provisions and the so-called "discretionary function" exceptions to liability. That exception is found in the following sections of the Idaho and Federal Acts:

I.C. § 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.

28 U.S.C. § 2680 The provisions of this chapter and section 1346(b) of this title shall not apply to--

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such 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 federal agency or an employee of the Government, whether or not the discretion involved be abused.

The purpose of both acts is to provide "much-needed relief to those suffering injury from the negligence of government employees." United States v. Muniz, 374 U.S. 150, 165, 83 S.Ct. 1850, 1859, 10 L.Ed.2d 805 (1963). Idaho's act is to be construed "liberally" and " 'with a view to accomplishing [its] aims and purposes, and attaining substantial justice....' " Farber v. State, 102 Idaho 398, 402, 630 P.2d 685, 689 (1981), quoting ...

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