ON DENIAL OF PETITION FOR REHEARING
DONALDSON, Chief Justice.
On April 9, 1975, a traffic accident occurred on the Lightning Creek Bridge on Idaho State Highway 200 near Clark Fork, Idaho. While plaintiff-respondent Donald Leliefeld was driving east in his employer's truck, defendant-cross-appellant Johnnie Carnline was driving west in his employer's dump truck pulling a lowboy trailer loaded
A collision occurred on the bridge between the truck driven by Leliefeld and the bulldozer on Carnline's trailer. While the approach roadways were 22' wide, the bridge, which was built in 1937, was 20' wide from curb to curb. On neither the approaches nor the bridge were there warning signs concerning the bridge width. There was conflicting testimony as to which truck first entered the bridge. While crossing the bridge, the bulldozer blade caught on a bridge girder which caused the bulldozer to be displaced into the path of Leliefeld's oncoming truck. During the ensuing collision, Leliefeld was injured. Some time subsequent to the accident, warning signs were erected at this bridge.
The Leliefelds and his employer Nabisco brought suit against Carnline, and his employer Wendell Johnson, d/b/a Panorama Contractors, Inc., a/k/a Panoramic Construction, and the State of Idaho seeking to recover damages. The State answered and filed a cross-complaint against the other defendants Wendell Johnson, Panorama, and Carnline for damages to the bridge and for indemnity and contribution in the event the State was shown to be liable. In turn Carnline, Johnson, and Panorama filed a responsive pleading which counter-claimed against the Leliefelds and Nabisco for property damage and personal injuries to Carnline and cross-claimed against the State for damages and indemnity. Attorney fees were sought by all parties.
Prior to trial several motions in limine were made. Carnline, Johnson and Panorama moved for an order excluding all evidence that at the time of the accident they did not have a wide load permit. This was denied. The State moved for an order excluding all evidence of subsequent alterations made by the State to the bridge or the state highway which passes over it. This was denied. The State also moved for partial summary judgment on the issues of alleged liability of the State as a result of the plan or design for construction of the Lightning Creek Bridge. This motion was granted.
A jury trial was conducted at which evidence consisting of several exhibits and testimony was introduced by Leliefeld that the signing of the bridge was substandard and that bridge design standards had changed over the years. The State objected to the evidence as to design standards as being contrary to the order granting partial summary judgment which objection was overruled. Evidence was admitted over the State's objection that the bridge was signed subsequent to the accident. A police accident report was admitted over objection. After a motion at the close of the evidence, the court dismissed defendant Johnson on grounds that there was insufficient evidence to establish any liability on his part, but denied motions to dismiss the other defendants.
The State requested a jury instruction on the State's discretionary function defense which was refused. However, the court did give, over objection, an instruction that the State may lose its design immunity if conditions change sufficiently to produce a "dangerous condition." Carnline and Panorama requested a jury instruction which would have excluded jury consideration of the fact that no wide load permit had been obtained. This was denied and the court gave, over objections, instructions that a permit was required by statute for vehicles greater than eight feet in width and that violation of such a statute is negligence "unless compliance ... was impossible or something over which the party had no control placed him in a position of violation of the statute or an emergency not of the party's own making caused him to fail to obey the statute."
A special verdict was returned by the jury in which negligence was attributed as follows: Leliefeld (10%), Carnline (65%) and the State (25%). The jury found damages
The first issue presented is whether the placing or nonplacing of signs at the bridge was a discretionary function within the meaning of the Idaho Tort Claims Act [ITCA]. If it was, then the State is immunized from liability. I.C. § 6-904(1) provided at times relevant to this controversy
We have considered this exemption from liability in three other cases — McClure v. Nampa Highway District, 102 Idaho 197, 628 P.2d 228 (1981), Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980), and 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). In McClure and Gavica, we considered the application of the discretionary function exception with regard to actions which alleged negligence on the part of a governmental entity in maintaining or failing to warn of a known dangerous condition in or on a public highway. McClure and Gavica make it clear that the State is not immunized from liability when with respect to a public highway, the State maintains a known dangerous condition on the highway and fails to properly warn motorists of such a condition.
The State responds to McClure and Gavica by asserting that bridges are signed according to statewide standards promulgated by the Idaho Transportation Department. According to the State, the formulation of criteria governing the signing of bridges occurs at the state level and has no parallel in the private sector. The State directs our attention to plaintiffs' exhibit 58, a document delineating certain signs to be placed on various types of bridges. This document was formulated after four to five years of study by the state traffic engineer's office. The State argues that this is evidence that the decision to sign or not sign bridges is made at the state level for all of the bridges in this state and therefore has no parallel in the private sector. This would be cogent to our deliberations, if the theory upon which this case was tried was that these statewide signing and striping standards were inadequate, negligently promulgated or a cause of the accident. In such a case, the discretionary immunity accorded the State by I.C. § 6-904(1) would apply. However, this case was tried upon a different theory that this particular bridge
The State argues that in Dunbar the discretionary immunity afforded by § 6-904(1) was available because the state mine inspector was applying statewide mine safety standards and there was no similar duty imposed in the private sector. Here, the State argues that the responsible state highway engineer simply was implementing statewide standards for the construction and signing of bridges. There are several flaws in this argument. Here, unlike Dunbar, the standards apply only to the State's own highway system; there is no attempt to regulate the conduct of third parties. Second, the individual highway districts within the state can and do go beyond statewide standards when necessary to compensate for dangers unique to a particular portion of the state highway system. While the creation of a governing policy might well be discretionary, nonetheless, a negligent failure in the furtherance of that policy could well be tortious and outside the screen of immunity. Third, the State itself admits that the document which it relies on as proof that the signing of the bridge was a policy matter was not completed until after the accident. In part because it would be anomalous to permit the State to create immunity for itself simply by promulgating a statewide directive after an accident, we decline to bring the State under the aegis of I.C. § 6-904(1).
Finally, the State argues that the Dunbar test should be limited on its facts to the first clause of § 6-904(1) which concerns a statutory or regulatory function. The mine inspector in Dunbar was performing a "regulatory function" and was thus immunized. The State argues that if the Dunbar test were applied to the second clause of § 6-904(1) which relates to a "discretionary function or duty," then the statute contains two clauses which provide the same thing and one would be "mere surplusage." The State would draw from its reading of the statute and Dunbar the conclusions that the "discretionary function" clause provides a broader scope of immunity than the "regulatory function" clause and that the parallel functions test should apply only to the first clause. While we agree with the State that the two clauses represent two separate types of actions which may be immune from liability, we see no reason for applying different tests. In Dunbar, we stated that "our legislature has intended that wherein tort liability would attach to a private person, a governmental entity engaging in the same conduct will be liable." Dunbar, supra at 546, 602 P.2d at 44. We do not construe either clause as "mere surplusage." While fewer parallels may exist where a regulatory action is taken than when a discretionary action is taken, the test remains the same. See McClure, supra; Gavica, supra. I.C. § 6-904(1) does not immunize the State from liability for failing to properly sign the Lightning Creek Bridge under the theory of the suit.
The State next argues that it was error for the court to admit evidence of its signing of the bridge which occurred approximately one year after the accident.
Idaho adheres to the general rule that evidence of post-accident repairs or alterations to show antecedent negligence is inadmissible. E.g., Alsup v. Saratoga Hotel, Inc., 71 Idaho 229, 236-37, 229 P.2d 985, 990 (1951); see also Mann v. Safeway Stores, Inc., 95 Idaho 732, 739, 518 P.2d 1194, 1201 (1974); G. Bell, Handbook of Evidence for the Idaho Lawyer 79-80 (2d ed. 1972); E. Cleary, McCormick's Handbook of the Law of Evidence § 275 (2d ed. 1972); G. Lilly, An Introduction to the Law of Evidence § 48 (1978); 2 Wigmore, Evidence § 283 (Chadbourn rev. 1979); Annot., 64 A.L.R.2d 1296 (1959). While in most cases the courts which follow this rule have not expressed the foundation for the rule,
In denying the State's motion in limine, the trial court relied upon Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965) and Zenier v. Spokane International Railroad Co., 78 Idaho 196, 300 P.2d 494 (1956). In Otts, this Court considered an appeal from a grant of summary judgment. Plaintiff Otts had fallen through an opening in a floor at a construction site and later that opening was barricaded. The Otts Court expressed that
This proposition was supported by citation to Zenier v. Spokane International Railroad Co., supra. In Zenier, suit was brought to recover damages for the loss of two horses. The Zenier Court considered the admissibility of evidence that a fence was built after the loss occurred and stated that "such evidence was material, not for the purpose of showing antecedent negligence on appellant's part, but as evidence of appellant's recognition of a defect which it was bound to remedy... ." Id. at 203, 300 P.2d at 498-99 (citations omitted). These cases do not persuade us that the evidence of post-accident signing of the Lightning Creek Bridge was permissible. Further, Zenier involved a statute which created strict liability for failure to guard against a defect. The evidence of the erection of the fence was material to whether a defect existed and there was no issue as to negligence involved. Otts and Zenier address exceptions to the general rule of inadmissibility and are not apposite here.
The rule was originally devised by courts which felt that such evidence was irrelevant to antecedent negligence. One of the first cases to address the issue was Hart v. Lancashire & Yorkshire Ry. Co., 21 L.T.R.(n.s.) 261 (1869) (Bramwell, B.). There it was stated:
In analyzing the relevancy ground for exclusion, it is helpful to consider factors which mitigate the argument that under a liberal scheme of relevancy such evidence is admissible. Such a factor is the equal probability of an inference contrary to negligence being drawn from a subsequent remedial measure viz. a particularly prudent, circumspect and fastidious individual doing
In Wigmore, it is stated:
There are at least four other instances where otherwise relevant evidence may be rendered inadmissible — where the probative value is overshadowed by (1) the danger that it may unduly arouse the jury's emotions, (2) the likelihood that it may distract the jury from the main issues, (3) the inordinate consumption of time during its presentation, and (4) the danger of unfair surprise. E. Cleary, McCormick's Handbook of the Law of Evidence § 185, at 439-40 (2d ed. 1972).
At the turn of the century, an alternative ground for exclusion, which the State now advances, began to supplant the lack of relevancy as a basis for exclusion. This alternative is the social policy to encourage people to take action after an incident to further safety without the fear that such action could later be used to show their negligence. See, e.g., City of Niceville v. Hardy, 160 So.2d 535 (Fla. Dist. Ct. App. 1964); City of Newport v. Maytum, 342 S.W.2d 703 (Ky. 1961); Lea v. Baumann Surgical Supplies, Inc., 321 So.2d 844 (La. App. 1975), cert. denied, 325 So.2d 279 (La. 1976); Hull v. Enger Construction Co., 15 Wn.App. 511, 550 P.2d 692, 697 (1976); see generally E. Cleary, McCormick's Handbook of the Law of Evidence § 275 (2d ed. 1972); G. Lilly, An Introduction to the Law of Evidence § 48 (1978); 2 Wigmore, Evidence § 283 (Chadbourn rev. 1979); Annot., 64 A.L.R.2d 1296 (1959). While we have never expressly embraced this rationale, neither have we rejected it. We continue to perceive a real or potential benefit as flowing from the rule which excludes evidence of subsequent remedial measures with respect to the issue of antecedent negligence.
From our review of the record and the law, we conclude that the admission of this evidence of post-accident signing of the Lightning Creek Bridge constitutes reversible error.
The next issue presented is whether the court erred in admitting evidence of bridge construction standards promulgated after Lightning Creek Bridge was constructed. It is uncontested that the bridge was constructed in conformance with the standards applicable in 1937. The trial court granted the State's motion for partial summary judgment and excluded "the plan or design for construction of the Lightning Creek Bridge" as an issue in the case. This ruling was based on I.C. § 6-904(8).
The State argues that the admission of evidence of post-construction standards and the giving of the following quoted instruction are contrary to I.C. § 6-904(8) and constitute reversible error. We agree.
During the trial, the plaintiffs were allowed, over the State's objection, to introduce evidence of subsequently promulgated bridge design standards and evidence that the Lightning Creek Bridge did not conform to these standards. Plaintiffs presented expert testimony that the bridge was substandard when compared to these later promulgated design standards and that it deviated from these standards in that it was narrower than the width that
Under I.C. § 6-904(8), infra note 7, the question becomes whether § 6-904(8) was intended by the legislature to perpetually immunize the State from liability arising out of plans or designs for, among other things, bridges. This case presents the first occasion for judicial construction of I.C. § 6-904(8).
In construing a statute, this Court attempts to discern and implement the intent of the legislature. In performing this function, courts variously seek edification from the statute's legislative history, examine the statute's evolution through a number of amendments, and perhaps seek enlightenment in the decisions of sister courts which have resolved the same or similar issues. See, e.g., Odenwalt v. Zaring, 102 Idaho 1, 5, 624 P.2d 383, 387 (1980); Nixon v. Triber, 100 Idaho 198, 595 P.2d 1093 (1979). Another method, we have employed is to examine the purposes of the act and its structure as a whole in an attempt to discern the legislative intent behind the statute. See Janss Corporation v. Board of Equalization of Blaine County, 93 Idaho 928, 478 P.2d 878 (1970); Jackson v. Jackson, 87 Idaho 330, 393 P.2d 28 (1964).
In part, because a legislative history of this provision is nonexistent and the evolution of the statute is unrevealing, we will consider decisions rendered by courts of other jurisdictions which have encountered similar questions.
Design immunity statutes are relatively rare among the various state tort claims acts. Thus, most of the cases focus instead on state liability for design defects under the discretionary immunity statute. See, e.g., Johnson v. State, 636 P.2d 47 (Alaska 1981). Idaho became one of the few states with a design immunity statute when the legislature in 1971 enacted what is currently I.C. § 6-904(8).
California in 1963 appears to have been the first state to enact a design immunity statute (current version Cal. Gov't. Code § 830.6 (West 1980)) based upon the standards
In 1965, Illinois became the next state to adopt some sort of specific design immunity when it enacted Chapter 85, § 3-103. This section expressly provides that the immunity shall not continue if the condition turns out to be unsafe.
On March 20, 1971, our legislature enacted the next design immunity statute. 1971 Idaho Sess. Laws, ch. 150, § 4(7), p. 743, 746 (current version at I.C. § 6-904(8)).
The construction we place upon § 6-904(8) does not preclude a finding of liability founded upon a failure to warn of a dangerous condition. McClure, supra; Gavica, supra.
Any evidence of what subsequent design standards called for in mandating bridge widths is at odds with the clear language of I.C. § 6-904(8) and cannot be properly admitted. In view of our holding that § 6-904(8) provides for perpetual immunity, the instruction given was error.
Respondents cross-appellants Johnnie Carnline and Panoramic Contractors, Inc. argue that the trial court erred in admitting into evidence the investigating officer's report of the accident. Relevant to this issue is I.C. § 49-1511, which provides:
The trial court, in admitting the officer's report, relied in part on Bell v. O'Connor Transport Limited, 94 Idaho 406, 489 P.2d 439 (1971). In Bell without addressing I.C. § 49-1511, this Court held that such reports were admissible as "official reports" under I.C. § 9-316. Here, none of the parties directed the trial court's attention to I.C. § 49-1511. Subsequent to the trial in the instant case, we overruled Bell. Owen v. Burcham, 100 Idaho 441, 599 P.2d 1012 (1979). "[T]he intent of our legislature in the enactment of I.C. § 49-1511 was to restrict the utilization of reports of investigating officers following motor vehicle accidents." Id. at 444, 599 P.2d at 1015. We noted several reasons for excluding such reports — that they may contain extensive hearsay, conclusions and speculations of the officer, criminal charges made, and other materials otherwise inadmissible. Id. at 445, 599 P.2d at 1016.
While the trial court did not have the benefit of Owen, if it had been presented with a proper objection based upon I.C. § 49-1511, the trial court would have erred by admitting the officer's report into evidence. In the particular setting of this case, the admission of the report was not reversible error as to the appellants Carnline and Panoramic. The appellants have the burden of demonstrating that prejudicial error occurred, see Obray v. Mitchell, 98 Idaho 533, 567 P.2d 1284 (1977); I.R.C.P. 61, and that burden has not been met. Officer Bruce testified prior to the admission of the report and his testimony covered virtually every aspect of the report. No objection
We turn next to the contention of Carnline and Panoramic that the trial court erred in admitting evidence that Carnline had not obtained a wide load permit from the state pursuant to I.C. § 49-913 prior to transporting the bulldozer involved in the accident.
"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." Schaefer v. Elswood Trailer Sales, 95 Idaho 654, 656, 516 P.2d 1168, 1170 (1973). Recognizing this rule, Carnline and Johnson correctly cast their argument in terms of sufficiency of the evidence; they argue that plaintiffs offered no evidence
Plaintiffs submitted evidence that wide loads such as Carnline's are commonly flagged, that a permit would probably have required flagging, but that no flagging was present on the bulldozer at the time of the accident.
Evidence of the statutory violation was cumulative on the negligence issue. The jury was properly instructed on proximate cause and was fully aware that proof of causality is a prerequisite to recovery. We find no reversible error in the admittance of evidence that no permit was obtained.
The State, and Carnline and Panoramic, each advance additional arguments that the evidence clearly shows that the sole cause of the accident was the negligence of a party or parties other than itself. The resolution of questions of negligence and proximate cause made by the trier of fact, if supported by substantial and competent evidence, will not be set aside on appeal. Mann v. Gonzales, 100 Idaho 769, 770, 605 P.2d 947, 948 (1980). We have carefully reviewed the record and are convinced that the jury could properly draw the conclusions which it did from the evidence presented.
Carnline and Panoramic next argue that the trial court's admission into evidence of Leliefeld's prosthetic leg and photographs of his injuries was error. They argue that this evidence was intended solely to inflame the passions of the jury and had no probative value. The admission of prosthetic devices and photographs of injuries is in the first instance a matter for the discretion of the trial judge. See 29 Am.Jur.2d Evidence § 772 (1967); Annot., 83 A.L.R.2d 1271, 1272 (1962).
It is evident from the record that the trial court felt that the prosthesis and the photographs were relevant to the claims of plaintiffs and would aid the jury in understanding the nature, extent, and enduring consequences of the injuries suffered. We find no abuse of discretion in admitting this evidence.
Carnline and Panoramic also argue that references to a dollar value of the general damages claimed by Leliefeld during his counsel's closing argument were contrary to I.C. § 10-111
Donald Leliefeld argues that the trial court erred in reducing the amount of damages for which the State was liable to him from $360,010.96 to $100,000. Leliefeld argues that the statute under which the court acted, I.C. § 6-926, violates the equal protection clause of the fourteenth amendment to the United States Constitution
I.C. § 6-926 was enacted in 1971 as part of the Idaho Tort Claims Act, 1971 Idaho Sess. Laws ch. 150, p. 743. At that time it provided in part:
Subsequently the section was amended in 1976 and repealed and replaced by a new provision in 1978.
When the constitutionality of a statute is challenged on grounds that it denies equal protection, the first question to address is what standard of review is to be applied. Three standards of equal protection analysis have been recognized in Idaho: strict scrutiny, means-focus, and rational basis. Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977). If the classification involves either a fundamental right or a suspect class, then it is subjected to "strict scrutiny" — to justify the classification the state bears the heavy burden to demonstrate a "compelling state interest." Here, "strict scrutiny" is inapplicable as the alleged discrimination neither affects a fundamental right nor creates a suspect class. The next standard, "means-focus" examines the means specified in the legislation and searches for a "fair and substantial relation" between the means selected and the articulated and otherwise legitimate purpose of the legislation. This is less stringent than "strict scrutiny," but more stringent than the traditional "rational basis" test under which "a state statute is to be upheld against equal protection attack if it is rationally related to the achievement of legitimate governmental ends." G.D. Searle & Co. v. Cohn, 455 U.S. 404, 408, 102 S.Ct. 1137, 1141, 71 L.Ed.2d 250 (1982); Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981). A party who assails the constitutionality of a statute bears the burden of showing its invalidity and must overcome a strong presumption of validity. E.g., Standlee v. State, 96 Idaho 849, 538 P.2d 778 (1975); Western Beverage, Inc. v. State, 96 Idaho 588, 532 P.2d 930 (1974). The invalidity must be clearly shown. Stucki v. Loveland, 94 Idaho 621, 495 P.2d 571 (1972).
In choosing between the "means-focus" and "rational basis" tests, we find continuing merit in the following language from Jones:
The opinion in Jones explains that the "means-focus" standard is to be applied when a two-part trigger has been satisfied. The statute must be discriminatory on its face and there must be "a patent indication of a lack of relationship between the classification and the declared purpose of the statute... ." Id. at 871, 555 P.2d at 411. The State has articulated that the purpose of the recovery limitation is the protection of the public treasury which purpose was recognized by the trial court. It is argued that the limitations are an integral and central part of the comprehensive risk management program devised by the State to avoid excess liability and thereby preserve the public treasury. The enactment of the limitation provision is an attempt to balance the competing interests of a tort plaintiff to recover fully against the public interest in maintaining fiscal integrity. Without deciding the discriminatory effect of the recovery limitation, we hold that there exists a valid relationship between the limitation and the avowed purpose of the statute which is to protect the public coffers. Therefore, we decline to apply the "means-focus" standard and will utilize the "rational basis" test in our equal protection analysis. See, e.g., Twin Falls Clinic & Hospital Building Corporation v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982); Heese v. A & T Trucking, 102 Idaho 598, 635 P.2d 962 (1981); LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980).
Under the "rational basis" test which is generally appropriate to use when reviewing statutes which impact social or economic areas,
Leliefeld additionally argues that the passage of the Idaho Tort Claims Act affected an existing right. We disagree. Prior to our decision in Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), sovereign immunity was the rule as part of the common law. Smith announced that its holding which abrogated sovereign immunity would "govern all future causes of action arising on or after 60 days subsequent to the adjournment of the First Regular Session of the Forty-First Idaho State Legislature unless legislation is enacted at that session with respect to the abolition of the sovereign immunity of the state." Id. at 808, 473 P.2d at 950. The legislature responded to Smith with the passage of the comprehensive Idaho Tort Claims Act in 1971 and therefore the ITCA and not the prior judicial decision abrogated the doctrine of sovereign immunity. Haeg v. City of Pocatello, 98 Idaho 315, 563 P.2d 39 (1977); Newlan v. State, 96 Idaho 711, 535 P.2d 1348 (1975). Prior to the abrogation of the sovereign
So long as the statute is constitutional, we have no intrinsic ability to review its inherent wisdom or, if it seems unwise, the power to change it. Whenever lines are drawn by legislation, some may seem unwise, but the responsibility for drawing these lines rests with the legislature and judicial review is limited.
Leliefeld argues that I.C. § 6-926
All plaintiffs assign as error the failure of the trial court to award them attorney fees and certain costs. Since we are reversing and remanding for retrial on the issue of liability, these assignments need not be addressed.
The quantum of damages awarded by the jury is adequately supported by the record. Because we find no reversible error with respect to the determination of damages and we consider the damages severable from the liability issue, we affirm that determination. Ferbrache v. Dillon, 100 Idaho 317, 319-20, 597 P.2d 40, 42-43 (1979); I.R.C.P. 59(a); see also Kitto v. Gilbert, 39 Colo. App. 374, 570 P.2d 544 (Colo. App. 1977); Smith v. Lumbermen's Mutual Casualty Co., 360 So.2d 1098 (Fla. App. 1978); Annot., 34 A.L.R.2d 988 (1954).
No costs allowed.
We affirm in part and reverse in part and remand for further proceedings in accordance with this opinion.
BAKES, Justice, concurring in part and concurring in the result in part:
I concur in all of the majority opinion except Part I in which I concur only in the result. The results reached in Part I of the majority opinion necessarily follows from our decisions in McClure v. Nampa Highway Dist., 102 Idaho 197, 628 P.2d 228 (1981), and Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980), in which the Court held that the failure to post a warning sign did not fall within the discretionary function exception set out in I.C. § 6-904(1).
BISTLINE, Justice, dissenting in parts II, III, and VII.
I have no trouble with the statement of the underlying facts and I have readily concurred in parts I, IV, V, and VI of the opinion of the Court. I am unable to concur in parts II, III, and VII, and will address each separately.
Part II. Post-Accident Signing
The resolution of this issue of law is important to future personal injury actions, but in my view is far overemphasized by the defendants, and in turn the Court, as applied to this case. Were the Court to merely assume that the evidence of post-accident signing was improperly admitted, it could then in a cleared atmosphere consider whether the error is reversible — a conclusion to which it jumps without discussion. The sign said only this:
Just how the introduction into evidence of this sign is supposed to have prejudiced the jury escapes me, and yet the State, in pushing its in limine motion, saw something in the act of signing which it wanted to keep from the jury. Now, in that regard, the State would just as well have tried to keep from the jury whether it is or is not daylight at high noon. Just as most people in Bonner County, Idaho, know that it is, one may be certain that jurors in Bonner County were well aware of the erection of the particular sign on the particular bridge on a main highway between Sandpoint and Clark Fork, the trial taking place a considerable time after the collision.
Any error in allowing such evidence to go before the jury, and I see none, does not rise to such prejudicial heights as to necessitate a reversal, other substantial evidence clearly entitling the jury to find liability on the part of the State. The Court nevertheless addresses the issue, and champions the archaic and illogical view that that which in actuality is cogent evidence on the issue should be kept from the jury.
Whatever happened to the doctrine of cure by jury verdict in Archer v. Shields Lumber Co., 91 Idaho 861, 434 P.2d 79 (1967), in which this Court reaffirmed?
Looking toward a distant date, the importance of the question justifies the presentation of what some may find a better view.
Admittedly the general rule governing evidence of post-accident repairs or alterations, which for ease of reference will be referred to as the "repair rule," is that such evidence is inadmissible. Two theories have been advanced in support of this rule. The first, exclusively relied on in Idaho cases applying the rule, is that evidence of subsequent alterations or repairs is irrelevant to the question of antecedent negligence. See Alsup v. Saratoga Hotel, 71 Idaho 229, 229 P.2d 985 (1951); Giffin v. Lewiston, 6 Idaho 231, 55 P. 545 (1898). The second theory, which Idaho has never embraced, is that to admit such evidence will discourage subsequent repairs, thereby engendering further danger from a situation which has already produced one accident. See McCormick's Handbook of the Law of Evidence, § 275 at 666 (2d ed. 1972); Hull v. Enger Construction Co., 15 Wn.App. 511, 550 P.2d 692, 697 (1976).
The trial court, in denying the State's motion in limine and admitting the evidence of post-accident signing of Lightning Creek Bridge, relied upon two cases: Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965), and Zenier v. Spokane International Railroad Co., 78 Idaho 196, 300 P.2d 494 (1956). These cases, set forth as an exception to the rule, considered the admission of evidence of subsequent repairs for the purpose of showing a defendant's "recognition of a defect which he was duty bound to remedy." Otts, supra 90 Idaho at 135, 409 P.2d at 101. The question in Otts, however, was who had the duty to correct a particular dangerous condition, i.e., who had control over the area where the accident occurred, a well settled exception to the repair rule — that "evidence of subsequent repairs or changes [may be] admitted as evidence of the defendant's ownership or control of the premises or his duty to repair where these are disputed... ." McCormick's Handbook of the Law of Evidence, supra, § 275 at 667 (footnotes omitted). The statement in Zenier was merely dicta, since the Court there had already held that appellant waived the right to raise the issue on appeal by failing to object below. The trial court in the instant case may have read the language in Otts and Zenier reflecting this exception too broadly where here there was no dispute as to the fact that the State controlled this bridge. But, that is not to say that the ruling was in error, and certainly not reversible error.
As noted, the sole reason heretofore recognized by this Court for excluding evidence of subsequent repairs is that such evidence is irrelevant to proving antecedent negligence. Alsup v. Saratoga Hotel, supra, Giffin v. Lewiston, supra. After careful consideration it can be seen that the reason has no basis in fact or logic. The "irrelevancy" rationale for excluding evidence of post-accident repairs has been almost universally discarded by modern courts. See McCormick's Handbook of the Law of Evidence § 275 at 666 (2d ed. 1972). See generally Schwartz, The Exclusionary Rule on Subsequent Repairs — A Rule in Need of Repair, 7 Forum, 1, 2-3 (1971); Soo Hoo & Soo Hoo, Evidence of Subsequent Repairs: Yesterday, Today and Tomorrow, 9 U.Cal.Davis L.Rev. 421, 422 (1976); Note, The Repair Rule: Maine Rule of Evidence 407(a) and the Admissibility of Subsequent Remedial Measures in Proving Negligence, 27 Me.L.Rev. 225, 228-32 (1975); Note, An Exception to the Exceptions: The Subsequent Repair Rule in Montana, 42 Mont.L. Rev. 143, 145-46 (1981). The repair rule evolved at a time when "legal relevance" rather than "logical relevance" prevailed in determining whether evidence would be admissible. As one commentator explains:
The instant case demonstrates the fallacy of such a formalistic approach in determining relevance. The fact that the State, through a careful and prolonged study,
The State argues that Idaho should adopt the reasoning applied in other jurisdictions to exclude evidence of subsequent alterations or repairs. These jurisdictions exclude such evidence on public policy grounds; the asserted policy is that if such evidence is admissible, people will be discouraged from undertaking necessary repairs. See Niceville v. Hardy, 160 So.2d 535 (Fla.App. 1964) (allowing evidence of alterations would discourage improvements after accident); City of Newport v. Maytum, 342 S.W.2d 703 (Ky. 1961) (offers inducement to omit repairs and improvements calculated
I begin by noting that the evidence excluded by what has come to be known as the "repair rule" is otherwise entirely reliable, trustworthy and relevant. In short, the evidence is a valuable aid to factfinders in discerning the truth of the matter at issue, and it necessarily follows that exclusion of this evidence decreases the probability that a jury will arrive at an accurate assessment of the facts. Since the State is asking us to develop an obstacle to the factfinding process, it bears the burden of demonstrating (1) that a genuine need for the rule exists, and (2) that the rule will meet this need. This it has failed to do.
An exhaustive independent review of cases applying the repair rule fails to reveal any empirical data to support the rule's primary public policy assumption — that if evidence of subsequent repairs is admitted, people will be discouraged from making repairs. The rule was originally devised by courts who — like previous Idaho courts — felt that such evidence was irrelevant to antecedent negligence. The rule apparently originated, or at least was first clearly articulated, in Hart v. Lancashire & Y. Ry. Co., 21 L.T.R. (N.S.) 261 (Ex. 1869), in which Baron Bromwell made the oft-quoted statement that the law rejects the idea that "because the world gets wiser as it gets older, therefore it was foolish before." Id. at 263. This "relevancy" reason for the rule survived until the turn of the century, when the alternative public policy grounds which the State today urges upon us began to supplant relevancy grounds as a basis for excluding such evidence. See Note, The Repair Rule: Maine Rule of Evidence 407(a) and the Admissibility of Subsequent Remedial Measures in Proving Negligence, 27 Me.L.Rev. 225, 226-28 (1975):
Thus it appears that the public policy reason for the repair rule evolved from judicial hypothesizing as to the effect of the rule's abolition, and not from any empirical data concerning the rule's effect on tortfeasors. See Schwartz, The Exclusionary Rule on Subsequent Repairs — A Rule in Need of Repair, 7 Forum 1, 6 (1971) ("Throughout the rather long and tortuous history of the rule excluding [evidence of] repairs, no court or writer has produced any empirical data showing that the rule has resulted in a single repair or that its absence would discourage repair activity.").
I am unpersuaded by the naked, unsupported assertion that repairs will not take place if evidence of such repairs is admissible. A number of reasons discount the logic of such an assertion. First, the repair rule has become riddled with so many exceptions that there is practically no basis, even with the existence of the rule, for assuming that evidence of subsequent repairs will not in fact be admitted. For example, such evidence may be introduced to show control over an area, Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965); to show conditions at the time of the accident, Polster v. Griff's of America, Inc., 184 Colo. 418, 520 P.2d 745 (1974); to show a specific duty attributable to one of the parties, Baldwin Contracting Co. v. Winston Steel Works, Inc., 236 Cal.App.2d 565,
The second reason weighing against adopting the public policy rationale for the repair rule is that the underlying premise — that repairs will not be made if evidence of those repairs is admissible in a subsequent suit — ignores the fact that liability for dangerous conditions will not only continue, but increase, following an accident.
Finally, I note that the public policy reason asserted by the State in support of the repair rule assumes that a rather callous economic weighing process occurs in every tortfeasor's mind following an accident, and that such tortfeasors are aware of such things as the repair rule. I doubt that there is such a total absence of compassion and concern among the general public. Even were I to assume that the general public would not repair dangerous conditions out of a fear of liability, certainly such an assumption would not apply to the State, which is politically responsible to its citizens, and which must fulfill the trust obligation which every government has towards those whom it serves. The common sense of the common man or woman, and certainly the dutiful state employee, should dictate that when faced with a dangerous condition which has caused an accident, the better course of action is to repair the condition. For all of these reasons, I would uphold the trial court's ruling which allowed the jury the benefit of evidence, the
Plainly put, I am both bewildered and concerned with the Court's "choice" "to construe our statute as the California statute was construed at the time our legislature acted." That it is purely a matter of "choice," I have no doubt, as I see nothing of any substance in the Court's opinion to support that choice.
The declared hypothesis upon which the Court makes its choice is the unfounded premise that the 1971 Idaho legislature also made the choice "to enact a version more like the California statute," which is said to be based upon "the striking similarity of language between the Idaho and California statutes." It is also said that California in 1963 appears to have been the first state to enact a design immunity statute, and as it is also said, Becker v. Johnston, 67 Cal.2d 163, 60 Cal.Rptr. 485, 430 P.2d 43 and Cabell v. State, 67 Cal.2d 150, 60 Cal.Rptr. 476, 430 P.2d 34, companion 1967 cases, construed that California design immunity statute, from which it is said to follow that Idaho litigants shall be forever bound by those cases, notwithstanding their total rejection by the California court a short five years later — which is fast action in the appellate court business. The sum total of this Court's choices and conclusions of today is that Idaho litigants are plagued now and henceforth with overruled California case law which is not visited upon Californians, that is, unless they are foolish enough to travel across bridges in Idaho.
The Court, I fear, is on thin ice and acts without concern for its public image. No precedent is cited for the proposition that the courts of any state are to be forever bound by an overruled case from another jurisdiction — wherein it has been thoroughly discredited as well as overruled. I would prefer to see our Court take a more in-depth look into the muddy waters below before tarrying too long on ice so thin as this.
The Cabell and Becker holdings were suspect even as they were issued, and long before the later case of Baldwin v. State, 6 Cal.3d 424, 99 Cal.Rptr. 145, 491 P.2d 1121 (1972), interred them (other than in Idaho) forever.
The New York Court of Claims Act clearly came earlier than California's 1963 Tort Claims Act, the New York Act having been passed in 1960. By the year 1963 New York courts had had occasion to make many interpretations and applications of the New York Act, and one of these had to do with design immunity. That case was Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960), decided by that state's highest appellate court, the Court of Appeals of New York. Therein the highest New York court explained its decision in Eastman v. State of New York, 303 N.Y. 691, 103 N.E.2d 56 (1951), of which it said that:
Significantly, and obviously something the Court here must have overlooked in its reach to overruled cases as supporting authority is the opening paragraph in the dissenting opinion of Justice Peters in Cabell, and repeated in Becker:
Justice Peters, in a footnote, and generally citing the same rules of statutory construction, mentioned in Justice Donaldson's opinion of the Court, points out clearly the irresponsible violation of those rules by the majority in Cabell:
Instead, and notwithstanding, the clear caution of Justice Peters that the Cabell majority was engaged in gross appellate malpractice, this Court today follows the suit of the Cabell majority, relying on Cabell as the
The issue presented is whether the court erred in admitting evidence of bridge construction standards promulgated after Lightning Creek Bridge was constructed. It is uncontested that Lightning Creek Bridge was constructed in conformance with the standards applicable in 1937. The trial court granted a motion in limine by the State excluding "the plan or design for construction of the bridge" as an issue in the case. This ruling was based on I.C. § 6-904(8), which provided at all relevant time that:
During the trial, the plaintiffs were allowed to introduce evidence that the bridge did not conform to subsequently promulgated design standards. Plaintiffs' expert witness, Gerald Cysewski, testified that the bridge was substandard when compared to these later promulgated design standards and that it deviated from those standards in that it was narrower than the width that those standards dictated. After the parties presented their cases, the court instructed the jury that:
The State argues that the admission of evidence of post-construction standards, and the giving of the above quoted instruction, are contrary to I.C. § 6-904(8) and constitute reversible error. Even without California's Baldwin and New York's Weiss v. Fote, I would disagree — and with those cases, I strongly disagree. The instruction given by the trial court, the Honorable Dar Cogswell, is beyond question a correct statement of the law. Judge Cogswell's judicial ability is well-recognized, and without question his statement of the law is in accord with the views of the Baldwin court — some of those justices candidly recanting their participation in Cabell and Becker — never an easy thing to do.
I.C. § 6-904(8) was intended to immunize the State from suits challenging the sufficiency of plans or designs for certain public projects (including bridges) so long as those plans and designs are in substantial conformance with standards applicable at the time of construction. The policy behind the statute is clearly to prevent juries from second-guessing the judgment of state planners and engineers who make detailed and careful studies prior to the construction of public roads and bridges. See, e.g., Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167 N.E.2d 63 (1960). The statute does not by its terms absolve nor even purport to absolve the State from liability for failing to react to dangerous conditions caused by changed circumstances of which it has become aware with time in which to have taken appropriate action.
Plaintiffs were allowed, over the State's objection, to put on evidence of subsequently promulgated bridge design standards and other evidence that Lightning Creek Bridge did not meet these standards. However, this evidence was used solely for the purpose of proving that the State knew, or should have known, that Lightning Creek Bridge was potentially hazardous in light of changing traffic conditions. The evidence of the changed standards was presented in conjunction with other evidence indicating that there had been a substantial increase in the amount, speed and type of traffic using the bridge since it was first constructed; that there had been several other accidents and frequent collision damage to this particular bridge; that the State was aware of these accidents and the frequency of collisions with the bridge; and that the bridge had been placed on priority "A" for replacement due in part to "vertical clearance restriction and width." In short, plaintiffs' theory below was that the change in traffic conditions on Lightning Creek Bridge since 1937 made what may once have been a safe bridge unsafe, and that the State was put on notice of the hazardous nature of the bridge by (1) its knowledge of changing standards for such bridges, (2) its knowledge of changes in traffic flow conditions, and (3) its knowledge of accidents and frequent collisions with the bridge at Lightning Creek Bridge itself. The instruction given by the trial court to the jury on this issue correctly reflects the plaintiffs' theory of the case.
The proper framing of the question presented by the State, then, is whether I.C. § 6-904(8) was intended by the legislature to perpetually immunize the State from liability arising out of plans or designs for, among other things, bridges, despite changes in conditions that create a hazard which was unforeseen at the time of construction but of which the State becomes currently aware. As I have noted, the statute does not provide such immunity on its face, and not one scintilla of evidence is before the Court to show that the legislature intended such a result.
There is a dearth of legislative history in Idaho on most statutes, including the statute currently at issue. Legislative intent can occasionally be gleaned from examining the evolution of a statute through a number of amendments; such is not the case here. There is no indication that the Idaho Tort Claims Act in general, or this subsection of the act in particular was drawn from the act of another state. However, a fact is that Idaho attorneys were familiar with the
I.C. § 6-903(a) provides in part that "[e]xcept as otherwise provided in this act, every governmental entity is subject to liability for ... damages arising out of its negligent or otherwise wrongful acts or omissions... ." It is clear from this section that the Act intended to make liability on the part of the State the general rule, and to cloak the State with immunity only under a limited set of circumstances. Since the express purpose of the act is to establish liability, the exceptions to that liability, such as I.C. § 6-904(8), should be interpreted narrowly. It would be contrary to the fundamental purpose of the Tort Claims Act to hold that the design immunity afforded by I.C. § 6-904(8) was also intended to remove any duty on the part of the State to react to known dangerous conditions which develop after a project has been constructed, when such an exception does not appear in the plain language of the statute.
I.C. § 6-903 also provides that "every governmental entity is subject to liability ... where the governmental entity if a private person or entity would be liable... ." Thus, in determining whether the legislature intended the State to be liable for failing to respond to changing conditions after initially designing and constructing a presumptively safe bridge, some measure of insight can be gleaned from analogous situations in the private sector.
It is evident that if a private party had constructed a safe bridge, which subsequently became hazardous due to changed conditions, and the party was aware of its hazardous condition, but did nothing to correct it, that party could be liable to third parties injured by the hazardous condition. The landowner would not be immunized simply because at an earlier time the bridge was safe, and therefore the landowner would not have been subject to liability.
The Restatement of the Law, Second, Torts § 314(A) (1965), states: "Special Relations Giving Rise to Duty to Aid or Protect... (3) A possessor of land who holds it open to the public is under a [duty to protect against unreasonable risk of harm] to members of the public who enter in response to his invitation." Comment d to this section explains:
This section does no more than succinctly state the law as it has always been in Idaho. As this Court held in Mann v. Safeway Stores, Inc., 95 Idaho 732, 738, 518 P.2d 1194, 1200 (1974), in regard to invitees,
Finally, I note that policy considerations dictate such a result. As one commentator put it:
I agree. I.C. § 6-904(8) was not intended, and should not be read, to provide immunity for anything other than the designs or standards in effect at the time a bridge was constructed and, if thereafter, only for so long as the public entity was not put on notice of changed conditions which produced the potential of injury and damages.
THE TAKING AWAY OF PLAINTIFFS DAMAGES
At the outset, I apprehend that the trial bench and bar will wonder why the Court addresses the issue of the constitutionality of I.C. § 6-926, having vitiated the verdict of the jury by its disposition of the issues presented in parts II and III. "It is a well established principle ... that this Court `will not pass upon questions of constitutionality until [they are] presented in a cause demanding rulings thereon.'" State
Leliefeld argues that the trial court erred in reducing the amount of damages for which the State was liable to him from $360,010.96 to $100,000. He contends that the statute under which the court acted, I.C. § 6-926, violates the equal protection clause of the fourteenth amendment to the United States Constitution and article I, section 2 of the Idaho Constitution by discriminating against a class of severely injured tort victims. We also have the benefit of an amicus curiae brief submitted by the Idaho Trial Lawyers Association discussing the constitutionality of I.C. § 6-926.
I.C. § 6-926 provides in part:
The first question to be considered is the standard of review to be applied. Three standards of review are available. They are, in order of depth of analysis involved, (1) strict scrutiny, (2) means-focus, and (3) rational basis. Leliefeld urges that the standard applied in Jones v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977), is applicable to the limitation in this case. Jones employed what has come to be known as the "means-focus" standard for reviewing constitutionality. In applying this middle-tier standard, this Court searches for a "fair and substantial
The State argues that the traditional "rational basis" standard of review should be applied in determining the constitutionality of I.C. § 6-926. This is the standard which this Court applied in upholding the 120-day notice requirement of the Tort Claims Act, I.C. § 6-905, against an attack based on the equal protection clause in Newlan v. State, 96 Idaho 711, 535 P.2d 1348 (1975), upon which the State relies in this case. Under this standard, this Court looks only to whether the classification is "wholly irrelevant to the achievement of the State's objective." Newlan, supra at 714, 535 P.2d at 1351 (quoting McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1104-05, 6 L.Ed.2d 393 (1961)). In Newlan, this Court found no "suspect" classification or denial of a fundamental right such as would trigger strict scrutiny (the third, and most demanding standard of review). See Newlan, supra 96 Idaho at 713-14, 535 P.2d at 1350-51. Without discussing the middle-level standard of review set forth in Reed v. Reed and later applied in Jones v. State Board of Medicine, the Newlan Court found several valid reasons for requiring that 120 days' notice be given to a governmental entity prior to filing a suit against that entity, and therefore upheld the requirement. The Court quoted with approval a Washington Supreme Court decision upholding the constitutionality of that state's notice requirement and observing:
This language from Cook is dicta as to the constitutionality of the notice provisions of the Washington Tort Claims Act. Although the timely notice provisions of the Act were not met by the claimant in Cook, the court ruled in favor of the claimant because she came within one of the exceptions to the timely notice requirement. Approximately one year later, in Hunter v. North Mason High School, 85 Wn.2d 810, 539 P.2d 845 (1975), the Washington court squarely faced the issue of the constitutionality of the timely notice provision and found it to be unconstitutional, even under a "rational basis" approach to determining constitutionality. The court specifically rejected the dicta as to constitutionality in Cook, which dicta was cited by this Court in Newlan and is relied upon by the State in this appeal. Id. 539 P.2d at 850-51. It is this same invalidated reasoning which the State urges should be applicable to the limitations on recovery contained in I.C. § 6-926, and upon which the State bases its contention that its unique character as a tortfeasor mandates application of the lesser (rational basis) standard of review. I disagree. The State's position is illogical, and I hesitate to apply a Newlan holding which is predicated on dicta, and overruled dicta at that. In that regard the validity of the Newlan holding is much akin to the validity of part III of the Court's opinion.
Other than that the party benefited by the limitation on liability involved in this case is the State rather than a group of medical doctors, it is impossible to substantively differentiate between I.C. § 6-926 and the statute struck down in Jones, supra. At the time our opinion issued in Jones, I believed that the Court which overthrew a legislative set ceiling of recovery in medical malpractice cases would be the Court that would apply those same principles when the same issue arose again under the Tort Claims Act. I was, perhaps, a bit naive, or perhaps do not fully understand our Jones opinion, but I find it difficult to distinguish the two sets of circumstances.
I.C. § 6-926 meets both of the requirements set forth by Jones for triggering the means-focus standard of review; the discriminatory nature of the legislation is apparent on the face of I.C. § 6-926
Having determined that our decision in Jones v. State Board of Medicine, 96 Idaho 859, 555 P.2d 399 (1976), the fourteenth amendment of the United States Constitution and article I, section 2 of the Idaho Constitution require application of the means-focus standard of review to I.C. § 6-926, I turn to an examination of the statute itself.
It is clear that the primary purpose of the Tort Claims Act was to allow tort victims injured at the hands of the State to recover for their injuries. Limitations were placed on the State's waiver of sovereign immunity statute for various reasons. For example, as has been stated, the 120-day notice provision of I.C. § 6-905 was intended to facilitate the assessment of damages, settling of claims, and preparation of defenses by the State. See Farber v. State, 102 Idaho 398, 401, 630 P.2d 685, 688 (1981); Newlan v. State, supra. The design immunity provided by I.C. § 6-904(8) was included to prevent juries from second-guessing the engineering judgment of those who promulgate standards for the construction or improvement of highways, bridges, and other public property. See section on Perpetual Immunity, supra. The Act contains numerous other exceptions to liability, most if not all of which are grounded upon some attribute unique to the sovereign character of the State. The only purpose of the limitation on liability contained in I.C. § 6-926 and under consideration in this case is obvious and recognized by the parties — to protect the public coffers by setting a maximum amount for which the State may be liable and thereby (presumably) reducing insurance premiums. The State argues (1) that this is a legitimate public purpose, and (2) that, even under the means-focus standard of review, the $100,000 limitation is fairly and substantially related to the economic goal of the statute. While I agree with the first assertion, I cannot agree with the second.
Leliefeld concedes that protecting the public coffers is a legitimate end to be sought by legislation, and, as I have indicated, I agree. No other purpose is advanced by the State in defense of this statute and it therefore must be assumed that this is in fact the single, and legitimate, goal of I.C. § 6-926. Focusing on the means which the legislature has chosen to effect its purpose, requires a search for a "fair and substantial relationship" between the means and the end. See Jones, 97 Idaho at 870-71, 555 P.2d at 410-11; Reed v. Reed, supra 404 U.S. at 76, 92 S.Ct. at 254.
In Jones, we held that:
As in Jones and American Bank & Trust, the legislature here has created an under-inclusive class. The benefit of fully recovering for injuries suffered at the hands of the State accrues only to less severely injured tort victims, while the burden of supporting whatever fiscal benefits the State receives via lower insurance premiums is borne by the more severely injured tort victims. Given the facially discriminatory nature of I.C. § 6-926, the burden falls to the State to provide some evidentiary basis to demonstrate that there is a "fair and substantial relationship" between its goal of protecting the public coffers and the creation of this particular limitation on liability. See Jones, 97 Idaho at 872, 555 P.2d at 412. See also Reed v. Reed, 404 U.S. at 76, 92 S.Ct. at 254; Kerr v. Department of Employment, 97 Idaho 385, 545 P.2d 473 (1976). This the State has not done; the record is devoid of any evidence that the limitations on liability set by I.C. § 6-926 are substantially related to preserving the fiscal integrity of the governmental entities covered by the Tort Claims Act.
In Jones, we found that an affidavit from the Director of the State Department of Insurance was insufficient to establish that there was a medical malpractice insurance "crisis." In this case, there is nothing more than a bare assertion by the State that the limitations contained in I.C. § 6-926 are substantially related to preserving fiscal integrity. A report by the Legislative Council is attached as an affidavit to the State's brief, apparently in an attempt to provide some evidentiary basis for the State's position. The report, however, states only that "Liability on the part of a governmental entity shall be limited to $100,000 per person, $300,000 per incident, and $100,000 property damage per incident. The committee felt that these limits were realistic for the purposes of insurance while at the same time did not too severely limit a right to recover." This is not evidence of a fiscal
The $100,000 limitation was enacted in 1971 and has not been changed since that time.
I am not unaware that four other states have upheld similar limitations in their tort claims acts. See Seifert v. Standard Paving Co., 64 Ill.2d 109, 355 N.E.2d 537 (1976) (upholding $100,000 limitation on recovery against the state); State v. Silva, 86 Nev. 911, 478 P.2d 591 (1970) (upholding $25,000 limitation on tort recoveries against the state); Estate of Cargill v. City of Rochester, 119 N.H. 661, 406 A.2d 704 (1979), appeal dismissed, 445 U.S. 921, 100 S.Ct. 1304, 63 L.Ed.2d 754 (1980) (upholding $50,000 limitation on tort recoveries against municipalities); Stanhope v. Brown County, 90 Wis.2d 823, 280 N.W.2d 711 (1979) (upholding $25,000 limitation on recovery against towns and counties). One state has upheld the constitutionality of a legislative reinstatement of sovereign immunity following judicial abolition of the doctrine. See Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 (1976). However, none of the cases upholding specific limitations applied the means-focus test which we adopted in Jones; all relied upon a rational basis approach. Furthermore, the New Hampshire court has subsequently reconsidered the propriety of applying the rational basis approach to this type of limitation. That court candidly stated in Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 830-31 (1980), in striking down New Hampshire's medical malpractice limitation act, that:
Cases relying on the minimal rational basis standard of review are of little guidance in applying the standard with which we are today concerned.
Finally, the State argues that, since it has the right to recreate sovereign immunity and abolish liability altogether, it must have the right to place limits on that liability. Although I agree that the State has the power to place limits on its liability, the State's attempt to apply this generalization to the facts of this case misconceives the nature of the evil present in I.C. § 6-926 and purpose of the means-focus standard of review. The wrong created by the statute is not the limitation on liability per se, but rather its effect when applied to tort victims as a class.
The means-focus standard of review mandates that where discrimination requiring application of the standard is present, the burden falls on the State to demonstrate a "fair and substantial relationship" between the purposes of the statute and the (admittedly discriminatory) means. This the State has not done.
The judgment on the verdict should be affirmed in its entirety and the order of the district court modifying the judgment should be set aside. In short, plaintiffs are entitled to prevail on their appeal and prevail also as respondents on all cross-appeals.
Even if applicable, this amendment would not affect our decision.
The operative language remains unchanged from that first enacted in 1971. 1971 Idaho Sess. Laws ch. 150, § 4(7), p. 743, 746.
I.C. § 49-1007(c) (as effective at the time of the accident) provided in part:
I.C. § 49-905 at the time of the accident and of the trial provided:
Since no party raised an objection to the use and the error is not fundamental, we consider this error to have been waived.
We also note that the Department's Special Permit Regulations § 914.5 state that "[f]lagmen shall be required at particular locations on a route of travel where a hazard to traffic will be created by the overlegal vehicle or load, such as: ... Overwidth — When crossing narrow bridges."
For purposes of this decision, the amendments and the current I.C. § 6-926 are substantively equivalent. We are concerned with whether the State may limit its tort liability.
See also Arneson v. Olson, 270 N.W.2d 125, 133, 135-36 (N.D. 1978) (means-focus test); Simon v. St. Elizabeth Medical Center, 355 N.E.2d 903, 911 (Ohio Ct.C.P. 1976); Graley v. Satayatham, 343 N.E.2d 832, 837-38 (Ohio Ct. C.P. 1976) (both Ohio cases applying a strict scrutiny test). Taken together with the facially discriminatory nature of the statute challenged in this case, the importance of the right to recover for severe personal injuries suffered at the hands of the State places beyond peradventure the need for a more detailed analysis than that involved in applying a rational basis standard.