Tomich v. City of Pocatello

• Decision Date: 23 August 1995
• Docket Number: No. 21004,21004
• Citation: Tomich v. City of Pocatello, 127 Idaho 394, 901 P.2d 501 (Idaho 1995)
• Parties: Todd TOMICH, individually, and Max Tomich, individually, Plaintiffs-Respondents-Cross Appellants, v. CITY OF POCATELLO, Defendant-Appellant-Cross Respondent. Pocatello, May 1995 Term
• Court: Idaho Supreme Court

Page 501

901 P.2d 501

127 Idaho 394

Todd TOMICH, individually, and Max Tomich, individually, Plaintiffs-Respondents-Cross Appellants, v.CITY OF POCATELLO, Defendant-Appellant-Cross Respondent.

No. 21004.

Supreme Court of Idaho,

Pocatello, May 1995 Term.

Aug. 23, 1995.

Ward, Maguire & Bybee, Pocatello, for appellant.David H. Maguire argued.

Racine, Olson, Nye, Cooper & Budge, Pocatello, for respondents.Reed W. Larsen argued.

JOHNSON, Justice.

This case concerns the destruction of a small airplane in a wind storm at a municipal airport.We conclude the municipality is not entitled to immunity based on the recreational use statute or the tort claims act.We also affirm the trial court's decisions regarding the admission of evidence and jury instructions characterizing the airplane owner as an invitee.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Todd Tomich(Tomich) and his father Max, both professional pilots, owned a 1967 Citabria7ECA, a small fabric airplane.Upon moving to Pocatello (the city) in 1984, Tomich registered the plane with a fixed base operator (the FBO) at the Pocatello municipal airport (the airport).According to Tomich, at the FBO's instruction he tied down the plane at the airport on property owned by the city, rather than on property leased to the FBO.To park the plane he anchored it to tie-downs, chains embedded in the ground.Unlike some municipal airports, the city did not charge a tie-down fee.

Tomich parked the plane at the airport from 1984 to 1991, periodically flying it for recreational purposes.In March 1991 Tomich made some repairs on the plane, securing it to the tie-downs before leaving.The next day the tie-downs failed in a wind storm, causing the plane to tumble down the runway and be destroyed.Tomich and his father(the owners) sued the city, alleging that the city was negligent in failing to provide and maintain a safe area in which to tie down aircraft.

The city moved for summary judgment on the grounds that a local ordinance stating that everyone used the airport at their own risk provides the city immunity under I.C. § 6-904(1), the "discretionary function" exception (the discretionary function exception) of the tort claims act.The city filed a second motion for summary judgment, arguing that I.C. § 36-1604, the recreational use statute, shields it from liability as a landowner.The trial court denied both motions.

The city later sought a directed verdict, asking the trial court to dismiss the owners' claims of bailment and negligence, and to rule that Tomich was not an invitee.Although the trial court denied the city's entire motion, it only instructed the jury on an invitee and negligence theory.

The jury found the city sixty percent at fault and awarded the owners $7,500 in damages.The city sought a judgment notwithstanding the verdict which the trial court denied.The trial court also refused to grant the owners' request for attorney fees pursuant to I.R.C.P. 37(c).The city appealed the judgment, and the owners cross-appealed the denial of attorney fees.

II.

THE RECREATIONAL USE STATUTE DOES NOT APPLY.

The city asserts that the recreational use statute shields it from liability because Tomich was a recreational user of the airport who did not pay a fee for its use.We disagree.

The recreational use statute limits the liability of public and private landowners to recreational users of the land when the land is made available for recreational purposes and no fee is charged.The statute contains a non-exclusive list of "recreational purposes" which includes activities such as hunting, swimming, camping, and snowmobiling, but not flying.I.C. § 36-1604(b)(3)(1994).

We reject the city's argument that it is entitled to immunity simply because Tomich flew his plane for recreational, rather than business, purposes.The application of the recreational use statute hinges on more than the mere fact that a land user is motivated by personal pleasure.According to the city's interpretation, aircraft owners and pilots who use the airport in identical manners have different rights under the statute based solely on whether they were flying for business or pleasure.Under this reasoning landowners could be liable for injuries to outfitters, and Tomich could have avoided the application of the statute by flying a few business trips over the years.The statute speaks in terms of activities, however, and nowhere suggests dividing land users engaged in identical activities into separate categories based simply on their subjective intent.

The proper question for us to ask is whether the flight activities pursued by Tomich at the airport fall within the scope of the recreational use statute.The relationship contemplated by the statute is that of landowner and land user where the landowner must refrain only from willful and wanton conduct.SeeJacobsen v. City of Rathdrum, 115 Idaho 266, 270, 766 P.2d 736, 740(1988)(holding recreational users entitled to same protection as trespassers).There is no immunization from liability, however, when the recreational user enjoys a "special relationship" with the landowner, such as when the owner is under a statutory duty to provide for the safety of people coming onto the property.Bauer v. Minidoka Sch. Dist. No. 331, 116 Idaho 586, 778 P.2d 336(1989)(holding recreational use statute did not apply where student was injured on playground prior to start of classes because of special relationship between schools and students).

Tomich's activities at the airport do not fall within the scope of the recreational use statute.Private pilots and aircraft owners--both recreational and business users--have a "special relationship" with the city.As one indication of this special relationship, both the airport and Tomich's use of it are extensively regulated.While the city is not under a specific statutorily imposed duty to provide for the safety of people using the airport, the airport is governed by extensive state statutes and regulations whose purpose is to provide for "the protection and promotion of safety in aeronautics."I.C. § 21-102(a)(1995).Further, Tomich was subject to detailed local ordinances and regulations governing his use of the airport.For example, a local ordinance required the use of tie-downs.

Additionally, the city implicitly recognizes the special character of its relationship with aircraft owners and pilots in its differing treatment of the general public.The airplanes stored at the airport are parked in a secure fenced area and "no trespassing" signs are posted around the perimeter to keep out the general public.In contrast to the general public, Tomich was not merely permitted to trespass on the city's land, but encouraged to patronize the airport.The state airport directory informs pilots that tie-down facilities are available at the Pocatello airport.The city also contracts with FBOs to provide services for pilots and aircraft owners.

III.

THE CITY IS NOT IMMUNE UNDER THE DISCRETIONARY FUNCTION EXCEPTION.

The city asserts that the discretionary function exception shields it from liability because it passed an ordinance embodying a policy decision not to maintain the airport's tie-downs because of budget constraints.We disagree.

A governmental entity is not liable for any claim which is "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."I.C. § 6-904(1)(1990).To determine if a governmental action qualifies as a discretionary function, the Court uses the "planning/operational" test first adopted in Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755(1986).Under this standard, "[r]outine matters not requiring evaluation of broad policy factors will likely be 'operational,' whereas decisions involving a consideration of the financial, political, economic, and social effects of a particular plan are likely 'discretionary' and will be accorded immunity."Lawton v. City of Pocatello and Garcia, 126 Idaho 454, 460, 886 P.2d 330, 336(1994).

In January 1991, the Pocatello city council adopted an ordinance pursuant to I.C. § 50-321 which authorizes cities to promulgate regulations necessary for the operation and maintenance of aviation facilities.The ordinance contains a general disclaimer of liability which states that "[p]ersons visiting or using the airport and its facilities shall do so at their own risk ... and shall save and hold harmless and defend the city from liability for any loss...."A more specific provision governing the securing of aircraft states that "[o]wners shall assume the risk of damage to their own aircraft...."These provisions are not dispositive because whether or not the ordinance embodies a discretionary planning decision, the city cannot avoid the tort claims act simply by enacting general disclaimers of liability.Municipalities can decide whether or not to undertake particular responsibilities.They cannot define through ordinances the legal consequences of these decisions.To hold otherwise would render the discretionary function exception meaningless.

The question remains whether the city made a discretionary planning decision not to maintain the tie-downs at the airport.In Lewis v. Estate of Smith, 111 Idaho 755, 757-58, 727 P.2d 1183, 1185-87(1986), the Court held that liability could not be imposed upon a city which decided not to provide regular fire inspections due to lack of funds.Similarly, in Jones v. City of St. Maries, 111 Idaho 733, 736-37, 727 P.2d 1161, 1164-65(1986), the Court remanded for a determination of whether the city had assumed responsibility for the inspection of water mains and fire hydrants or whether it had made a policy decision to forgo such inspections because of budgetary concerns.

The record does not support the proposition that the city made a planning...