This is an appeal from two summary judgments granted in favor of defendants-respondents. Plaintiffs-appellants brought this action for the wrongful death of their parents, who were killed in an automobile accident. In that action plaintiffs-appellants sought punitive damages against certain of the defendants-respondents, and prior to trial summary judgment issued against plaintiffs-appellants prohibiting any consideration of punitive damages. Summary judgment was also granted in favor of the defendant-respondent State of Idaho on the basis that as a matter of law there had been no breach of duty by the State and in any event the asserted negligence of the State was not the proximate cause of the accident. We reverse both summary judgments.
On December 20, 1974, Fermin and Jean Gavica were traveling in their automobile easterly on Highway I-15W. Defendantrespondent Hanson, driving a truck, was also traveling eastward on the same highway some distance behind the Gavicas. On that particular stretch of the highway lay a thick haze which appears to have been caused by certain atmospheric conditions in combination with emissions from the nearby industrial plants of defendants-respondents J.R. Simplot Company and FMC Corporation. Drivers proceeding along the highway should observe the haze approximately two miles prior to entering it.
The Gavicas entered the haze and the driver of another car indicated that thereafter the Gavicas were "going slow or stopped." Hanson indicated that upon entering the haze he reduced his speed from 55 miles per hour to 35 miles per hour. That assertion, however, is questioned since an examination of the truck immediately after the accident revealed that the gear lever was in fourth auxiliary. Hanson denied such, stating that to be in that gear "you'd have to hit at least 70 [MPH]." Hanson testified that the haze cleared slightly and he suddenly came upon the Gavica vehicle which he estimated to be moving at about 5 MPH. The truck struck the Gavica vehicle from the rear and both Gavicas were killed instantly.
Reduced visibility and haze in this particular area has been a continuing but infrequent
Highway I-15W, completed in the late 1960's, is located approximately 150 yards to the north of U.S. Highway 30 and runs roughly parallel to it. In 1971 the State, after receiving complaints about poor visibility, experimented with temporary warning signs along Highway I-15W. That experiment, however, lasted only three months and was declared impractical. It was not until after the Gavicas' death that the State erected permanent warning signs along Highway I-15W to warn motorists of the danger of haze.
Plaintiffs-appellants brought this wrongful death action seeking compensatory and punitive damages from J.R. Simplot Company, FMC Corporation, Harold Hanson, and Hanson's employer, Stephen F. Frost Trucking Company. Plaintiffs-appellants sought compensatory damages from the State of Idaho. Defendants moved for summary judgment forbidding proof and allowance of punitive damages on the basis that such damages were not permissible in a wrongful death action. That summary judgment was granted. The court also granted summary judgment in favor of the State of Idaho on the basis that the State's failure to place warning signs on Highway I-15W was neither the proximate cause of the collision nor the breach of a duty of the State. Plaintiffs-appellants sought and obtained a certification that the issues decided by summary judgment presented controlling matters of law necessary of decision prior to trial and this Court permitted this appeal by certification. I.A.R. 12.
Whether punitive damages should be allowed in wrongful death actions is a case of first impression in Idaho. Our statute, I.C. § 5-311, provides:
The precise issue then to be decided is whether the statutory language "such damages may be given as under all the circumstances of the case may be just" permits proof and allowance of punitive damages. Principles of statutory interpretation require this Court to ascertain and give effect to the legislative intent. Summers v. Dooley, 94 Idaho 87, 481 P.2d 318 (1971); Jorstad v. City of Lewiston, 93 Idaho 122, 456 P.2d 766 (1969). "The intent of the legislature may be implied from the language used, or inferred on grounds of policy or reasonableness." Summers v. Dooley, supra at 89, 481 P.2d at 320. In effectuating the legislative intent behind an ambiguous statute, the Court should, if possible, avoid indulging in a statutory construction which would cause absurd or unduly harsh results. Lawless v. Davis, 98 Idaho 175, 560 P.2d 497 (1977); Hartman v. Meier, 39 Idaho 261, 227 P. 25 (1924). By providing for wrongful death actions, I.C. § 5-311 is in derogation of the common law rule forbidding such actions. Hughes v. Hudelson, 67 Idaho 10, 169 P.2d 712 (1946). I.C. § 73-102 requires that statutes in derogation of the common law "be liberally construed, with a view to effect their objects and to promote justice."
We therefore examine the provisions of I.C. § 5-311 having regard to policies underlying punitive damage awards. The language of I.C. § 5-311 is broad. As stated in Hepp v. Ader, 64 Idaho 240, 130 P.2d 859 (1942),
This Court has permitted awards for loss of companionship and guidance and funeral expenses, but has held that the grief suffered by surviving heirs is not a compensable element of damage under the statute. See Checketts v. Bowman, 70 Idaho 463, 220 P.2d 682 (1950); Hepp v. Ader, supra; Wyland v. Twin Falls Canal Co., 48 Idaho 789, 285 P. 676 (1930). However, the precise boundaries of damages allowable under the statute have never been completely delineated.
Respondents assert and the trial court held that damages allowable under the statute are limited to compensatory damages. However, neither this Court nor the legislature has ever so expressly stated and indeed in Wyland v. Twin Falls Canal Company, supra that question was left open.
Punitive damages are generally not favored under the law and should be awarded only within narrow limits. Jolley v. Puregro Co., 94 Idaho 702, 496 P.2d 939 (1972); Lewiston Pistol Club v. Imthurn, 94 Idaho 264, 486 P.2d 275 (1971). It has been stated that exemplary damages will be awarded only when there is clear evidence that the wrongdoer acted maliciously, fraudulently or with gross negligence. Bradford v. Simpson, 98 Idaho 830, 573 P.2d 149 (1978); Jolley v. Puregro Company, supra. While an award of exemplary damages is a form of punishment, the primary purpose behind such an award is one of deterrence: "the assessment of exemplary damages should be prompted by the court's or jury's desire to assure, to the extent possible via the imposition of a monetary penalty, that similar conduct does not occur in the future." Jolley v. Puregro Company, supra at 709, 496 P.2d at 946. See Cox v. Stolworthy, 94 Idaho 683, 496 P.2d 682 (1972).
As noted in Cox v. Stolworthy, supra:
See also Harrington v. Hadden, 69 Idaho 22, 202 P.2d 236 (1949). Thus, while a wrongdoer may be liable for punitive damages if he injures another, it is argued that punitive damages should nevertheless be withheld if a wrongdoer so injures another as to cause death. We find no logic in such a conclusion. If wrongful conduct is to be deterred by the award of punitive damages, that policy should not be thwarted because the wrongdoer succeeds in killing his victim. To hold otherwise would violate the precept that this Court should avoid a statutory interpretation which produces an absurd result.
As is well stated in 1 Speiser, Recovery for Wrongful Death § 3.4 at 135 (1975):
See also McClelland, Survival of Punitive Damages in Wrongful Death Cases, 8 U.S.F. Law Rev. 585 (1975); Reynolds, Punitive Damages After Death — Can Tort Law Create Heaven and Hell?, 26 Okla.Law Rev. 63 (1973). See generally Hennigan v. Atlantic Refining Co., 282 F.Supp. 667 (E.D. Penn. 1967); Leahy v. Morgan, 275 F.Supp. 424 (N.D.Iowa 1967); Reynolds v. Willis, 209 A.2d 760 (Del. 1965); Atlas Properties, Inc. v. Didich, 226 So.2d 684 (Fla. 1969); State ex rel. Smith v. Greene, 494 S.W.2d 55 (Mo. 1973).
We are cited to certain cases holding that punitive damages may not be awarded under wrongful death statutes. Many of those cases involve statutes containing language substantially different than I.C. § 5-311 and we thus deem them inapplicable to the case at bar. Doak v. Superior Court for County of Los Angeles, 257 Cal.App.2d 825, 65 Cal.Rptr. 193 (1968); Downs v. Sulphur Springs Valley Electric Company, 80 Ariz. 286, 297 P.2d 339 (Ariz. 1956), and Wilson v. Whittaker, 207 Va. 1032, 154 S.E.2d 124 (Va. 1967), all involve wrongful death statutes containing language substantially similar to I.C. § 5-311. Doak involved a wrongful death statute allowing damages as "may be just" while Downs involved a statute allowing such damages as may be "fair and just." In both cases punitive damage awards in wrongful death actions were denied because of the legislative history of those wrongful death statutes. In both cases the wrongful death statutes had at a prior time expressly allowed punitive damages, but later that language was removed by the legislature. The courts in Doak and Downs reasoned that the removal of the punitive damage language from the wrongful death statutes manifested a legislative intent to deny such damages. I.C. § 5-311 has no comparable legislative history, and thus Doak and Downs are distinguishable from the present case. We further note that since the decision in Downs the Arizona Legislature has again amended the wrongful death statute, and it has now been interpreted to allow the imposition of punitive damages. Boies v. Cole, 99 Ariz. 198, 407 P.2d 917 (Ariz. 1965).
Wilson v. Whittaker, supra, held that punitive damages were not to be awarded under a wrongful death statute permitting such damages as may be "fair and just." That court found the legislative intent behind that statute was not to punish the wrongdoer. We find no evidence of a similar legislative intent behind I.C. § 5-311. Therefore, we decline to follow the reasoning of Wilson.
It is argued that the allowance of punitive damages in wrongful death actions brought under I.C. § 5-311 will result in a large increase in the number and amount of punitive damage awards. We do not necessarily agree. A plaintiff must still prove the requisite elements in order to be entitled to punitive damages and they are not favored at law. Jolley v. Puregro Company, supra. Although we cannot foretell the future, we are confident that the necessary elements and standards to be met will continue to inhibit the award of punitive damages except in the most unusual circumstances.
Appellants have urged as an alternative rationale the allowance of punitive damages in death actions under either a common law or statutory survival action theory. See Koppinger v. Cullen-Schiltz, 513 F.2d 901 (8th Cir.1975); Reynolds v. Willis, 209 A.2d 760 (Del. 1965); Smith v. Gray Concrete Pipe Company, 267 Md. 149, 297 A.2d 721 (Md. App. 1972); Pratt v. Duck, 28 Tenn. App. 502, 191 S.W.2d 562 (Tenn. 1945); Worrie v. Boze, 198 Va. 891, 96 S.E.2d 799 (Va. 1957). A survival action is
Although this Court has previously indicated its dissatisfaction with the rule of non-survivability, Doggett v. Boiler Engineering and Supply Co., 93 Idaho 888, 477 P.2d 511 (1970), we find it unnecessary to employ a survival action theory in the present case. The majority of cases allowing punitive damages in survival actions involved wrongful death statutes that either expressly or as interpreted did not permit punitive damage awards. We face no such barrier in the present case; our wrongful death statute, as interpreted, allows for punitive damage awards.
We turn now to appellants' contention that the trial court erred in the entry of summary judgment in favor of defendant-respondent State of Idaho. We review this summary judgment in accordance with the well established principles that summary judgment should be granted only if the pleadings, depositions and affidavits show there is no genuine issue as to any material fact, Casey v. Highlands Insurance Company, 100 Idaho 505, 600 P.2d 1387 (1979); I.R.C.P. 56(c), and the record and all reasonable inferences arising therefrom must be construed in favor of the party against whom summary judgment is sought. Palmer v. Idaho Bank & Trust of Kooskia, 100 Idaho 642, 603 P.2d 597 (1979).
The trial court first held that the State's failure to place warning signs on the highway was not a proximate cause of the collision, reasoning that because Hanson could see the haze long before he entered it, warning signs "would not have provided more notice of the fog or smog than did the actual and obvious presence of the fog itself." The trial court relied upon Munson v. State Department of Highways, 96 Idaho 529, 531 P.2d 1174 (1975). In Munson the decedent died when his vehicle collided with a truck which had been stopped on the highway by a flagman for a highway repair crew. There were other assorted vehicles, a flagman and a red stop sign at the site of the accident. Summary judgment therein was granted and affirmed by this Court on the basis that "the driver of an automobile is held to have notice of that which is plainly visible on the highway before him." Id. at 531-32, 531 P.2d at 1176-1177. There, as here, appellants had contended that the state was negligent in failing to erect warning signs in advance of the repair site. This Court held that "all this was clearly visible from a considerable distance." Id. at 532, 531 P.2d at 1177.
We deem the case at bar distinguishable on the facts from Munson. Munson involved a clear danger, highly visible on the road before it was encountered. All of the evidence presented was to that effect. The absence of any contrary evidence resulted from the death of all occupants of the decedent's vehicle. It is apparent that one of the main issues in the instant case is the extent of the danger presented by the haze and whether that danger could be fully realized prior to or only after entry into it. The record indicates that Hanson may have been familiar with the haze condition on that particular section of highway but also indicates no familiarity on the part of the Gavicas. There is testimony that the Gavicas appeared to be lost in the haze and that they were traveling at a very slow rate of speed just prior to the collision. The record also demonstrates controversy as to whether the depth and the thickness of the haze could be appreciated by the driver of an approaching vehicle. Here, as in contrast with Munson, the assistance which warning signs might or might not have
The respondents argue nevertheless that the actions of Hanson constituted a superseding, intervening cause of the accident. An intervening cause can become the proximate cause of an injury when the intervening cause was an extraordinary action and was neither anticipated nor a probable consequence of the original negligence. See Joyner v. Jones, 97 Idaho 647, 551 P.2d 602 (1976); Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960). We deem it clear that there is a material issue of fact as to whether Hanson's actions constituted a superseding, intervening cause of the collision since there is conflict regarding the speed of the truck driven by Hanson when he entered the haze and at the time of impact, and further conflict regarding the density of the haze. (Testimony indicated that the haze's density ranged from clear to almost opaque.) Hence we do not agree that Hanson's actions constituted a superseding, intervening cause of the accident as a matter of law.
We deem the record to demonstrate the existence of material issues of fact as to whether the State's failure to erect warning signs was or was not the proximate cause of the accident. There is evidence from which reasonable minds could draw different conclusions, and as stated in Schaefer v. Elswood Trailer Sales, 95 Idaho 654, 516 P.2d 1168 (1973), "Proximate cause is generally an issue for the jury unless the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way." Id. at 656, 516 P.2d at 1170. See Smith v. City of Preston, 97 Idaho 295, 543 P.2d 848 (1975). Hence, summary judgment in favor of the State of Idaho on the basis of a lack of proximate cause as a matter of law was erroneous.
The second ground upon which the trial court based its summary judgment in favor of the State was that there existed no duty to warn Hanson of the haze since, as demonstrated by the record, Hanson knew of the existence of the haze and he knew or should have known of the possibility of colliding with other vehicles while driving through it. The trial court cited Joyner v. Jones, supra, which held that a landowner has no duty to warn invitees or licensees of a danger either known by them or so obvious and apparent as to charge them with knowledge of it.
In Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), it was held that the State owed a duty to motorists on its highways similar to the duty owed by a possessor or owner of land to an invitee. It was there held that the State had a duty to warn of or make safe dangerous conditions on the highways when the following elements were present: (1) the State knew or by the presence of reasonable care would discover the dangerous condition; (2) the State realized that the condition involved an unreasonable risk of harm to those using the highways; (3) the State expected that persons using the highway would not discover or realize the danger; and (4) the persons using the highway did not know or have reason to know of the condition and the attendant risks.
The trial court was undoubtedly correct in its finding that Hanson was familiar with the haze and the dangers it presented. However, there are unresolved material issues of fact as to the Gavicas' knowledge. The record before us indicates knowledge on the part of the State relative to the haze and to the dangerous conditions that existed therefrom. The record is devoid of any indication that the Gavicas were familiar with the haze condition, that they appreciated the hazards that it presented, or that motorists not familiar with the conditions on that portion of the highway could gauge the depth, thickness or impairment of sight problems presented by the haze. We also note that at the time of the accident, the Idaho Department of Highways possessed statistics showing the number of accidents on that highway which were related to the haze. Based on all of the above, we hold that summary judgment in favor of the State of Idaho on the ground that it had no duty to erect warning signs was erroneous.
Respondents point out that the Idaho Tort Claims Act, which was enacted in response to this Court's decision in Smith v. State, supra, while removing the State of Idaho's otherwise immunity for tort liability, does contain certain exceptions. I.C. § 6-904(1) provides:
It is the contention of the respondent State of Idaho that the State's decision not to place signs in advance of this particular area of the highway which would warn motorists that they were approaching a haze area was a discretionary decision and thus the State continued to be immune from liability.
The circumstances presented here are virtually identical to those of Smith v. State, supra. In Smith this Court held that the sovereign immunity of the State of Idaho from tort liability would no longer constitute a valid defense, and found that under the circumstances of that case, the State had failed to adequately warn approaching motorists of a known dangerous condition on the highway. To that extent, Smith is virtually identical to the claim in the case at bar. However, it was only after the decision in Smith that the legislature enacted the Idaho Tort Claims Act which continued the immunity status of the State when the actions of it or its employees fell within the purview of a discretionary function.
It was only after the briefing and argument of the case at bar that this Court issued its opinion in Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21 (1979) wherein the "discretionary function or duty" language of I.C. § 6-904(1) was at issue. Dunbar was an action by the survivors of miners killed in a fire in a mine. That action was brought in part against the State on the theory that the State and its officials had negligently conducted mine inspection programs. In Dunbar we noted that that action was essentially concerned with the abilities of officials, the enactment of regulations, and the alleged lack of enforcement of statutes, regulations and standards. We further noted that such governmental activities having to do with the enforcement of standards and regulations had no parallel in the private sector. Therein Smith was distinguished on the basis that the actions of the State in Smith (and in the case at bar) do have a parallel to the private sector and can be analogized to a landowner's failure to warn of known dangerous conditions on his property.
If a private person or business negligently allowed a dangerous condition to exist in a stairway or elevator and thereby caused injury, we would find the breach of a duty. No less so should we find a breach of a duty on the part of the state or a county which negligently maintained a dangerous condition on a stairway or elevator of a statehouse, courthouse, or other government operated building. We see no distinction between those situations and the negligent maintenance of a known dangerous condition of a highway, owned, operated and maintained by the State and upon which the public is invited to travel. Thus, unlike Dunbar, the State's action in the case at bar has a parallel in the private sector,
The summary judgment in favor of the State of Idaho is reversed and the cause is remanded for further proceedings consistent herewith. Costs to appellants.
DONALDSON, C.J., and McFADDEN and BISTLINE, JJ., concur.
BAKES, Justice, concurring in Part I and dissenting in Part II:
I am compelled to dissent from Part II of the Court's opinion. The district court properly entered summary judgment in favor of the defendant respondent State of Idaho. The record before the court on the defendant state's motion for summary judgment indicates plainly that the state's failure to erect signs on I-15W warning drivers of low visibility conditions existing adjacent to the J.R. Simplot Co. and FMC Corporation facilities was, even if negligent, not a proximate cause of the collision which caused the Gavicas' deaths.
Where the record before the trial court shows no genuine issue of material fact, entry of summary judgment is proper. Although the pleadings, depositions and affidavits must be construed most favorably to the party opposing the motion for summary judgment, Farmers Insurance Co. v. Brown, 97 Idaho 380, 544 P.2d 1150 (1976), a mere scintilla of evidence will not create a genuine issue of fact. Jephson v. Ambuel, 93 Idaho 790, 473 P.2d 932 (1970). The record before the trial court on motion for summary judgment supports his conclusion that the failure of the state to post warning signs in the area adjacent to the two manufacturing plants was not a contributing factor to the collision.
Defendant Hansen, the truck driver, testified in his deposition that he had traveled the section of highway upon which the accident occurred more than fifty times and that he was very familiar with that piece of road. Hansen testified that he had in the past encountered fog conditions on I-15W in the area of the Simplot and FMC manufacturing plants, although those conditions were not as severe as those which existed on December 22, 1974. More important for purposes of considering the state's motion for summary judgment, Hansen testified that he observed the smog or fog bank lying across the highway on December 22, 1974, well before entering into it. Under questioning by the attorneys for the various parties in the case at his deposition, Hansen presented the following testimony:
The record indicates that the distance between the Exit 58 overpass and the point of impact was approximately 400 yards.
In the record before the district court on the summary judgment motions was also a deposition by Richard Alexander who was driving on I-15W in the area of the accident just prior to the collision. Alexander overtook and passed the Gavica automobile in the fog bank and shortly thereafter observed the Gavica automobile emerging from the cloud and being pushed off the road by defendant Hansen's semi-truck. With respect to his ability to observe the fog bank prior to entering it, Alexander testified as follows:
In another deposition before the court, David Terry, a detective for the Bannock County sheriff's office in Pocatello and the first law enforcement officer to arrive at the accident scene, testified that at the time he arrived at the scene the west edge of the fog bank began rather abruptly near the Portneuf River and was clearly visible from the Exit 58 interchange, from which Terry entered the interstate highway, several hundred yards from the reduced visibility area.
Terry's deposition reflects also the very dense character of the fog which lay across the roadway.
The district court properly concluded that, as a matter of law, the defendant State of Idaho's failure to erect signals warning motorists of reduced visibility was not a proximate cause of the accident. The fog or smog bank was clearly visible to approaching drivers from a distance sufficient to enable them to slow to a safe speed prior to entering into the bank. Defendant Hansen's deposition indicates that he in fact did see the dense cloud of vapor enveloping the roadway some several hundred yards before the site of his collision with the Gavica automobile. Munson v. State Dept. of Highways, 96 Idaho 529, 531 P.2d 1174 (1975), is not distinguishable on any relevant basis, as the majority asserts, and amply supports the district court's summary judgment granted in the defendant State of Idaho's favor. This Court held in Munson that "[t]he driver of an automobile is held to have notice of that which is plainly visible on the highway before him." 96 Idaho at 531, 531 P.2d at 1176-77. As in Munson, signs on I-15W would not have proven more visible than the danger on the road itself.
The majority apparently concedes that the presence of warning markers would not have provided Hansen with any greater awareness of the hazard than he did have. The majority, however, ante at 866, somehow finds it significant that the record evidences no familiarity with the road on the part of the Gavicas. The majority posits that warning signs may have aided the Gavicas in coping with the fog enshrouded highway. The evidence, however, is clear that the Gavicas were traveling through the fog very slowly in their own lane of traffic, exactly what one would have expected them to do if they had received advance warning of the road hazard. Officer Terry, who was very familiar with I-15W at the point of the collision, testified that he passed through the fog at ten to fifteen miles per hour while using the guardrails on the right of the roadway to locate the traffic lane. Alexander testified that he "either stopped or [was] going very slowly" upon entering the fog and that he proceeded at speeds he estimated at ten to fifteen miles an hour through the fog area after passing the Gavica automobile. It is uncontested that visibility in the fog bank was extremely limited. Defendant Hansen stated that he had almost no forward vision and that he guided his semi-truck on the roadway by watching the white painted line down the side of the highway.
I.C. § 49-701(a), in effect in 1974 at the time of the collision, provided as follows:
Certainly, where the uncontradicted testimony was that there was virtually no visibility in the fog bank, the Gavicas could not have been expected to do other than they did, i.e., drive very slowly through the fog, even if the state had posted signs warning traffic of the fog area.
The majority appears to place some weight on Mr. Alexander's testimony that in his opinion the Gavicas "appeared to be lost" while they were traveling through the fog just prior to the collision. In ruling on a motion for summary judgment, the district court must consider only facts which would be admissible at a trial and not opinions or conclusions as to the significance of the evidence. Yribar v. Fitzpatrick, 87 Idaho 366, 393 P.2d 588 (1964). Alexander's opinion that the Gavicas "appeared to be lost" was not competent evidence to consider
I would affirm the district court's summary judgment entered in the defendant respondent State of Idaho's favor.
The district court on remand will have to consider the effect of this statute.