During the 1979-1980 school year, appellant Lawrence Durtschi was employed as a fourth grade teacher at the Ammon Elementary School. Durtschi transferred to Ammon from Iona Elementary School in the same district. The school district employing Durtschi was School District No. 93 of Bonneville and Bingham Counties, Idaho (hereinafter "the school district"). The minor plaintiffs in the various cases on appeal
Plaintiffs filed complaints for damages, naming both Durtschi and the school district as defendants. Plaintiffs' action against Durtschi was for lewd and lascivious conduct toward the minor plaintiffs. Their action against the school district sounded in negligence in its hiring and retaining Durtschi, and breach of its duty of care toward the minor plaintiffs. In all three cases, plaintiffs stated that as a result of Durtschi's conduct, the individual minor plaintiffs suffered irreparable physical injury and severe psychological injury with physical manifestations, and that the parents of the minor plaintiffs suffered physical and psychological injuries, as well as incurring the future financial obligations of providing treatment and care for their children. Recognizing that the three cases raised the same questions of law, the district court consolidated them for purposes of determining liability.
Durtschi answered the complaints, admitting some of the conduct alleged. Durtschi then cross-claimed against the school district for indemnification under the Idaho Tort Claims Act, I.C. § 6-901 et seq. (ITCA). The school district answered Durtschi's cross-claim by denying any liability, and cross-claimed itself against Durtschi for indemnification. The school district answered plaintiffs' complaints by denying liability and counter-claiming for attorney's fees.
The school district moved for summary judgment against the plaintiffs' claim for negligence. The district court held that the plaintiffs were precluded from recovery under the assault and battery exception to the ITCA. Judgment was entered accordingly, from which plaintiffs appeal. The district court also denied plaintiffs' motion for reconsideration; plaintiffs appeal that decision as well.
Thereafter, the school district moved for summary judgment against Durtschi's cross-claim for indemnification. Ultimately, the district court held that, as a matter of law, Durtschi was precluded from seeking indemnification from school district under the ITCA, because defendant-teacher was not acting within the course and scope of his employment when he committed the lewd sexual acts. Once again, judgment was entered for the school district. Both the plaintiffs and Durtschi appeal from that decision and judgment.
As a preliminary matter we briefly review the law of summary judgment. A motion for summary judgment is proper only when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). When the motion is supported by depositions or affidavits, the adverse party "may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." I.R.C.P. 56(e). The latter requirement, however, does not change the standards applicable to the summary judgment motion. Central Idaho Agency, Inc. v. Turner, 92 Idaho 306, 310, 442 P.2d 442, 446 (1968). Those standards require the district court, and this Court upon review, to liberally construe the facts in the existing record in favor of the nonmoving party, and to draw all reasonable inferences from the record in favor of the nonmoving party. Anderson v. Ethington, 103 Idaho 658, 660, 651 P.2d 923, 925 (1982). In this process the Court must look to the "totality of the motions, affidavits, depositions, pleadings,
With that as background and as explained below, we affirm the district court's summary judgment against Durtschi, though on different grounds. We reverse the summary judgment against plaintiffs. Finally, we reject the school district's suggestion that we uphold the summary judgment against certain of the plaintiffs on the ground that they failed to provide timely notice as required in the ITCA.
I. DEFENDANT DURTSCHI'S CROSS-CLAIM FOR INDEMNIFICATION.
I.C. § 6-903(c) of the ITCA provides:
In support of its motion for summary judgment against Durtschi's cross-claim for indemnification, the school district argued that it was excused from indemnification because Durtschi acted outside the scope of his employment, or alternatively because Durtschi acted with criminal intent. See, e.g., R., Vol. 2, pp. 263-64. The district court tackled the difficult "scope of employment" question, ultimately holding that as a matter of law Durtschi indeed had acted outside the scope of his employment, and thus was due no indemnification. The district court did not reach the question of criminal intent, though it noted:
While we admire the district court's courage and scholarly effort, we believe it chose the more troublesome and less certain of the two alternative routes. Upon reviewing the record in accordance with the standards set out above, we find that Durtschi unquestionably acted with criminal intent in all three cases. Being wary of recrossing the district court's bumpy route, we do not reach the question of scope of employment.
The "criminal intent" provision "is satisfied if it is shown that the defendant knowingly performed the proscribed acts...." State v. Gowin, 97 Idaho 766, 767-68, 554 P.2d 944, 945-46 (1976); see also, e.g., State v. Sisneros, 631 P.2d 856, 858 (Utah 1981) ("A person acts with intent when it is his conscious objective or desire to engage in the conduct or to cause the result."). Ordinarily, criminal intent would be a question for the trier of fact. However, in this case Durtschi has left no doubt that he acted with criminal intent.
Durtschi admitted to performing the lewd and lascivious acts on the minor plaintiffs. R., Deposition of Durtschi, pp. 22-23. He specifically named each of the minor plaintiffs as the objects of his actions. Id. at 32. He expressly stated that he acted intentionally. Id. at 22-23. In the face of the school district's arguments that he acted with criminal intent, Durtschi made no denials. In fact, he pled guilty to related
In light of these facts, pursuant to I.R.C.P. 56(c), summary judgment was appropriate. "[T]here is no genuine issue as to any material fact" that Durtschi acted with criminal intent. Id. In such an event, I.C. § 6-903(c) makes clear that the school district is absolved from indemnifying him as a matter of law. On these grounds, we affirm the district court's granting summary judgment to the school district against Durtschi's cross-claim.
II. PLAINTIFF'S CLAIM AGAINST THE SCHOOL DISTRICT.
Pursuant to I.C. § 33-512(4), school districts in the state of Idaho are under a statutory duty to protect the morals and health of their students. In the instant case, the plaintiffs have alleged not only that the school district transferred Durtschi with knowledge that he had previously sexually abused students entrusted to his care, but that even after learning of his abuse of the plaintiff children, the school district allowed him to continue teaching, retaining those same children in his classroom. In its arguments and briefing to both the district court and this Court, the school district has not argued that there is no genuine issue of negligence;
With the enactment of the ITCA, the state has subjected itself to liability for its own negligent acts and the negligent acts of its employees. Masters v. State, 105 Idaho 197, 199-200, 668 P.2d 73, 75-76 (1983). The ITCA makes every state governmental entity liable for damages arising out of its own negligent acts or omissions. I.C. § 6-903. Liability is the rule with some specific exceptions. One of those exceptions is that a governmental entity is not liable for any claim which "[a]rises out of assault [or] battery... ." I.C. § 6-904(4). The school district contends that the plaintiffs' action against it for negligent retention arose out of Durtschi's assault and battery on the plaintiff children, and therefore that the school district is immune from liability under § 6-904(4).
There is a distinction between the conduct which forms the basis of a cause of action in negligence and one for assault and battery. A cause of action in negligence requires the breach of a duty which is the proximate cause of the plaintiff's injury. Restatement (Second) of Torts § 328A (1965). A battery, on the other hand, requires intentional bodily contact which is either harmful or offensive. Id. § 13. Under the plaintiffs' allegations, the children's injuries arose out of the basic negligence of the school district. The injuries were the foreseeable consequence of the school district's negligence in retaining Durtschi despite full knowledge of his proclivities.
The fact that the plaintiffs' injuries were caused by a third party does not
It is clearly unsound to afford immunity to a negligent defendant because the intervening force, the very anticipation of which made his conduct negligent, has brought about the expected harm. Gibson v. United States, 457 F.2d 1391, 1395 (3rd Cir.1972). To do so would fly in the face of basic principles of tort law, as recounted in the Restatement:
The fact that the foreseeable danger was from intentional or criminal misconduct is irrelevant; the school district had a statutory duty to make reasonable efforts to protect its students from such a danger. A breach of that duty constitutes negligence. Under the allegations of the present case, Durtschi's actions would not constitute a supervening cause, and the school district's tortious conduct would not arise out of assault and battery. Rather, the roots of the assault and battery would be in the district's own negligence.
The instant appeal presents a question of first impression in Idaho.
The cases barring recovery do so, in large part, in a conclusory fashion without any analysis of the important policy considerations which bear on this issue. See, e.g. Hughes v. United States, 662 F.2d 219 (4th Cir.1981). Many of the cases contain no allegations that the government knew or should have known that one of its employees was likely to commit an intentional tort and are therefore distinguishable from the instant case. See Doe v. United States, 769 F.2d 174 (4th Cir.1985); Naisbitt v. United States, 611 F.2d 1350 (10th Cir.1980); Johnson v. United States, 547 F.2d 688 (D.C. Cir.1976). We do not believe that the Idaho legislature, by creating an exception to governmental liability for actions arising out of assault and battery, thereby intended to relieve state agencies from any duty to safeguard the public from employees whom they know to be dangerous. The factual situation alleged in the present case presents a haunting example. Surely the Idaho legislature could not have intended that school districts could ignore their statutory duty and retain known child molesters in the classroom with total impunity under the ITCA. We can find no justification for such immunity.
Of course, a plaintiff cannot merely point to an assault and battery and then claim, based simply on its occurrence, that the state was negligent in not preventing it. For example, in the present case the school district would clearly not be liable if it had no knowledge of Durtschi's proclivities. In order to withstand dismissal under the intentional tort exception to the ITCA, a plaintiff must allege sufficient facts which, if proven, would demonstrate that the governmental entity should have reasonably anticipated that one of their employees would commit an intentional tort. In the instant case, the plaintiff's allegations, if proven, would permit a court to find that the school district's negligence proximately caused the plaintiff children's injuries. We therefore reverse the district court's award of summary judgment to the school district under I.C. § 6-904(4) of the ITCA.
III. NOTICE OF CLAIM.
The school district urges us to affirm the district court's summary judgment as to plaintiffs Doe and Smith on a basis which the district court itself did not address: that plaintiffs failed to give notice of their claims within the required time period. This argument is without merit. Clearly unresolved questions of fact remain regarding when the adult plaintiffs ought to have given notice of their claim. The minor plaintiffs, on the other hand, gave timely notice as a matter of law.
A. The Adult Plaintiffs.
At the time this action arose, I.C. § 6-906 provided:
To avoid thwarting meritorious claims on nonmeritorious, technical grounds, this Court consistently has taken a "liberal approach to interpreting the notice requirement of the ITCA." Farber v. State of Idaho, 102 Idaho 398, 402, 630 P.2d 685, 689 (1981).
Obviously, a claim is not necessarily discovered the instant the injury or damages occur. The claimant only knows of his or her claim against the governmental entity and the 120-day limit only begins to run after the claimant becomes fully apprised of not only the injury or damages, but also of the governmental entity's role. In Trosper v. Raymond, 99 Idaho 54, 577 P.2d 33 (1978), the plaintiff in a wrongful death action learned of Canyon County's interest in the gravel excavation pond in which the decedent drowned and filed notice of the claim against the county over a year after the drowning incident. Id. at 55, 577 P.2d at 34. In a per curiam opinion, we rejected the same argument advanced today — that the claim was too late because over 120 days had passed since the incident. Id. The critical date was not and is not the date of injury, but is the date of reasonable discovery of the claim. We held:
Contrary to the representations of the school district, Ralphs v. City of Spirit Lake, 98 Idaho 225, 560 P.2d 1315 (1977) upholds the rule that the 120-day period runs only after discovery of the claim. In Ralphs, the majority held that as a matter of fact:
The 120-day period began to run because the plaintiff knew of his claim against the city on the date in question, not because the plaintiff was injured on the date in question. The majority held that the plaintiff could not put off the date of discovery to the time when he learned of the greater extent of his injuries. Id. Here, plaintiffs allege they knew nothing of the role of the school district until a point well within the 120-day period preceding their notices.
Surely the school district does not suggest that every wrong-doing by one of its employees raises a presumption that it negligently retained that employee. The instant plaintiffs made no such presumption. They assert that they learned of the negligence of the school district in early August, 1980. At that time, during a presentence investigation of Durtschi, they discovered that the school district had retained Durtschi even after knowing of his illicit tendencies. R., Vol. 3, pp. 12, 17, and 43. They then filed their claims in less than 120 days. R., Vol. 3, pp. 14-15, 17, 20, 46-47. If these facts are established at trial, the plaintiffs hardly could have discovered the negligent retention of the
B. The Minor Plaintiffs.
The determination of reasonable discovery and notice on the part of minor plaintiffs is a different matter which this Court has yet to satisfactorily resolve.
The long-standing policy of Idaho has been to shelter minor plaintiffs from the insensitive ticking of statutory clocks. See Chapin v. Stewart, 71 Idaho 306, 311, 230 P.2d 998, 1001 (1951). At the time of the instant cases, this policy was embodied in I.C. § 5-230(1),
Despite such statutes, some courts have refused to toll the time in which minors must give notice of their claims to governmental entities. These courts reason that the requirement of notice is not a statute of limitation, and that any exception from the notice requirement must come from the legislative branch. See generally 56 Am.Jur.2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 782, 783. The majority in Callister apparently took this approach. Callister, supra, 97 Idaho at 63, 539 P.2d at 991.
Such an approach ignores the fact that whether the requirement is to file notice or to file an action, the policy concerns of the state and the consequences for the minor litigant are the same. In a leading opinion, the Texas Court of Appeals aptly described the state's interests:
Accord, Farber, supra, 102 Idaho at 401, 630 P.2d at 688. The majority in Callister implicitly concedes the similarity between deadlines to file notice and statutes of limitation when it on the one hand denies that the notice of claim requirement is a statute of limitation, then on the other asserts that such "[s]tatutes of limitation in Idaho are not tolled by judicial construction but rather by the expressed language of the statute." Callister, supra, 97 Idaho at 63, 539 P.2d at 991.
The consequences of failing to apply Idaho's tolling statute — I.C. § 5-230 — to notice requirements for the minor litigant are immediate, severe, and incongruous with the policy of § 5-230. Minors lack the judgment, experience, and awareness to protect their rights with appropriate, timely civil action; they also lack the ability to appear in court on their own behalf. I.C. § 5-306. To strictly apply the notice requirement to minors would inevitably result in the elimination of meritorious and justified claims, through no fault of the innocent minors. The notice requirement would accomplish this elimination just as surely and completely as would a running statute of limitation. Thus, it makes no sense to toll a statute of limitation because of the injured party's minority, while at the same time require that party to provide notice of his or her claim within 120 days. See Turner v. Staggs, 89 Nev. 230, 510 P.2d 879, 881 (1973), cert. den. 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486 ("The requirement of giving notice presupposes the existence of an individual capable of giving it."); McCrary, supra, 482 S.W.2d at 153 ("[P]ersons of tender years ... are powerless to comply with such conditions."); Lazich v. Belanger, 111 Mont. 48, 105 P.2d 738, 739 (1940) ("It would be unreasonable to require that to be done which plaintiff was incapable of doing."); cf. Callister, supra, 97 Idaho at 66, 539 P.2d at 994 (Bakes, J., dissenting) ("To hold [that the general tolling statute tolls statute of limitations but not the notice of claim statute] would be to reach the ridiculous conclusion that a 10 year old injured by a governmental entity must file his notice of claim within 120 days of his injury, but then, because I.C. § 5-230 will toll the running of the statute during his minority, may wait the remaining 8 years of his minority before initiating suit in the district court.").
The provision in I.C. § 6-907 — that the minor's claim "may be presented and filed on behalf of the claimant by any relative, attorney, or agent representing the claimant" (emphasis added) — does not diminish the harshness of the consequences. As Justice Bakes noted in his dissent to Callister, "[t]he section [6-907] recognizes that others may act to protect a minor's rights, but it does not require them to act in order to preserve the minor's rights." Callister, supra, 97 Idaho at 65, 539 P.2d at 993 (Bakes, J., dissenting) (emphasis added). Minors should not have to rely upon others to protect their rights. The Washington Court of Appeals stated:
A number of courts have held that the enforcement of notice requirements against minor plaintiffs despite their inability to comply with it violated their rights to due process. Tafoya v. Doe, 100 N.M. 328, 670 P.2d 582, 585-86 (1983); Hunter, supra, 529 P.2d at 899-900; Turner, supra, 510 P.2d at 881-82; McCrary, supra, 482 S.W.2d at 154; Lazich, supra, 105 P.2d at 739; McDonald, supra, 120 N.E. at 478. At the very least, such enforcement violates the policy of tolling statutes like I.C. § 5-230.
To bring notice of claim requirements in alignment with due process and with general tolling statutes, many courts have applied the policy of their general tolling statute to the notice statute — in effect applying the tolling statutes by analogy. The Texas Court of Appeals provides an example:
See also Haymes v. Catholic Bishop of Chicago, 33 Ill.2d 425, 211 N.E.2d 690, 692 (1965); Hunter, supra, 529 P.2d at 900; City of Tulsa v. Wells, 79 Okl. 39, 191 P. 186, 194 (Okla. 1920); Webster v. City of Charlotte, 222 N.C. 321, 22 S.E.2d 900, 902 (1942); Girman v. County of Cook, 103 Ill.App.3d 897, 59 Ill. Sec. 534, 431 N.E.2d 1291 (Ill. App. 1981). These courts come within a hair's breadth of applying the tolling statute without quite doing so.
We feel on firmer ground by directly applying the general tolling statute, I.C. § 5-230, to the notice statute, I.C. § 6-906. This is the more straightforward course suggested by Justice Bakes in his dissent to Callister, and taken by several jurisdictions. Besette v. Enderlin School Dist. No. 22, 288 N.W.2d 67, 74-75 (N.D. 1980); City of Barnesville v. Powell, 124 Ga.App. 132, 183 S.E.2d 55, 56 (1971); Barnum v. Martin, 135 Ga.App. 712, 219 S.E.2d 341, 344 (1975), cited with approval in Shoemaker v. Aldmor Mgt., Inc., 249 Ga. 430, 291 S.E.2d 549, 550 (1982). Cf. Goldberg v. Bekins Moving & Storage Co., 423 So.2d 491 (Fla.App. 1982) (Construes notice of claim period as a statute of limitations which was tolled by the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.App. § 525). Indeed, the legislature has compelled us to liberally construe its statutes "with a view to effect their objects and to promote justice." I.C. § 73-102. In this case, any reasonable construction of the general tolling statute results in its application to the ITCA notice provisions.
Both the plain meaning and the policy of I.C. § 5-230 reinforce this approach. Section 5-230 does not toll just the time after which the minor plaintiff must file an action; rather, it tolls the time after which the minor must commence the action. Section 6-906 requires the minor plaintiff to commence the action by filing notice. As Justice Bakes observed in his dissent to Callister, "The filing of the notice of claim is an integral part of the initiation of an action against a governmental entity." Callister, supra, 97 Idaho at 66, 539 P.2d at 994 (Bakes, J., dissenting). It follows that § 5-230 tolls the running of the 120-day period before the minor plaintiffs file notice, which filing would commence their action.
This surely reflects the legislative policy behind these statutes. If it were otherwise, as Justice Bakes noted, even
The obvious intent of I.C. § 5-230 is to preserve the rights of injured minors until they are old enough to take appropriate action. We must construe the statute in harmony with its objective. Local 1494 of Internat'l Assoc. of Firefighters v. City of Coeur d'Alene, 99 Idaho 630, 639, 586 P.2d 1346, 1355 (1978); I.C. § 73-102.
To interpret I.C. §§ 6-906 and 6-907 as somehow placing the notice requirement beyond the reach of the tolling statute would be to read these statutes as impliedly repealing the tolling statute's protection of minors injured through the wrong-doing of the government. According to a well-established rule of statutory construction, we must presume the legislature did not intend to limit the pre-existing general tolling statute by mere implication. Jordan v. Pearce, 91 Idaho 687, 691, 429 P.2d 419, 423 (1967); see also, e.g., American Bank & Trust Co. v. Dallas County, 463 U.S. 855, 103 S.Ct. 3369, 3380, 77 L.Ed.2d 1072 (1983) reh. denied 463 U.S. 1250, 104 S.Ct. 39, 77 L.Ed.2d 1457; see generally, 1A N. Singer, Sutherland Statutory Construction §§ 23.10 (4th ed. 1973) ("[Court] [r]eports abound with decisions reflecting and endorsing a presumption against repeal by implication."), and 22.13 ("Amendments by implication, like repeals by implication, are not favored and will not be upheld in doubtful cases... .") (4th ed. 1985) (footnotes omitted). The reason for this presumption one commentator explained as follows:
The general tolling statute certainly is an important public statute of long standing which the legislature would not amend or repeal without specific mention.
Only when new legislation is irreconcilable with and repugnant to a pre-existing statute may we find an implied repeal. Jordan, supra, 91 Idaho at 691, 429 P.2d at 423; Brady v. Place, 41 Idaho 747, 750, 242 P. 314, 315 (1925); see generally, Singer, supra at § 23.09. Far from being repugnant and irreconcilable, the notice statute and the statute providing for a minor's agent to give notice, I.C. § 6-907, co-exist harmoniously with the general tolling statute, even when the tolling statute is applied to the notice requirement. The effect of the notice statute merely is delayed until the plaintiff reaches the age of majority, or for six years, whichever comes first. The opportunity for an agent to file on behalf of the minor continues, just as the opportunity for a minor's agent to commence any tort continues regardless of the tolling of statutes of limitation. As Justice Bakes said, "I cannot believe it was in the contemplation of the legislature to implicitly repeal I.C. § 5-230 by a sentence in the Idaho Tort Claims Act allowing a minor's adult representative to protect the minor's interest by filing a claim on the minor's behalf." Callister, supra, 97 Idaho at 66, 539 P.2d at 994 (Bakes, J., dissenting). More likely the legislature contemplated that § 5-230 would continue to guard the rights of minors from the ravages of relentless and insensitive deadlines.
A final motive for our applying I.C. § 5-230 itself rather than just its "policy" is that § 5-230 is a qualified tolling
The legislature recently amended the ITCA in a fashion which substantiates our present holding. New § 6-906A makes clear both the legislature's intent to protect minor claimants from the running of the notice time period, and its intent to apply the precise policy of I.C. § 5-230, including the six-year maximum, to notice requirements:
The legislature rejected the holding to the contrary in Callister. It demonstrated that the notice of claim requirement was never meant to be magically exempted from the tolling statute — that the interests of minors who had suffered injury at the hands of the government were never meant to be abandoned.
In sum, we hold that the general tolling provision, I.C. § 5-230, applies to all procedures integral to commencing actions against private or public defendants, including the notice procedure of I.C. § 6-906. Consequently, § 5-230(1) tolled the running of the time within which § 6-906 required the minor plaintiffs to give notice to the school district. Thus, the notice given on their behalf was adequate as a matter of law. To the extent Callister is inconsistent with our holding today, we acknowledge its disapproval by the legislature and acquiesce therein.
The district court's granting of summary judgment against Durtschi's cross-claim is affirmed. The district court's granting of summary judgment against plaintiffs is reversed, and the matter is remanded for trial on the question of the school district's negligence.
The school district's costs related to the cross-claim to be paid by Durtschi; the plaintiff's costs related to their claims to be paid by the school district. No attorney's fees.
DONALDSON, C.J., and HUNTLEY, J., concur.
SHEPARD, Justice, dissenting.
I dissent for two reasons. First, because the majority unnecessarily overturns several years of this Court's decisions on an issue not decided by the district court in its decision on summary judgment. Secondly, because the majority's holding regarding intentional torts cannot survive the analysis of the Bakes, J. dissent.
When the legislature enacted our Tort Claims Act it saw fit to require that a claimant submit a notice of claim to the governmental entity within 120 days from
In 1985 the legislature adopted a more lenient attitude and suspended the effect of the notice of claim until a minor claimant reached majority, or to a maximum period of six years. Such conclusively indicates a change in legislative intent but does not result in a retroapplication of the new statute to a time and circumstance well prior to the 1985 change in statute.
Hence, at the time and circumstances of the instant case, the legislative requirement as to notice, was 120 days from the time the claim arose or reasonably should have been discovered. To hold as does the majority that the 1985 statute somehow controls the notice of claim requirement in the instant case, or that the legislature has overruled Callister, is simple sophistry.
The majority opinion cites Farber v. State of Idaho, 102 Idaho 398, 630 P.2d 685 (1981) in support of its conclusions. I fail to see any support therein. Farber involved damage sustained allegedly as a result of highway construction. There the Court did not question the validity or effectiveness of the 120-day notice requirement from the time the claim arose, but held that the claim did not arise prior to the time that the construction project had been completed and accepted by the governmental entity. The majority opinion further relies on a series of cases from the state of Washington which were considered and rejected in Callister.
Just as the majority opinion slips and slides around the then legislative requirement of a 120-day notice of claim, so the majority evades the clear legislative intent not to waive sovereign immunity in the cases of intentional torts. Hence, I concur in the dissent of Bakes, J. Whether the legislature should have exempted intentional torts from the purview of the Tort Claims Act is not for question by this Court, since the policy reasons for that legislative decision cannot be examined. It is sufficient to say that the broadening of the scope of governmental entity liability has allegedly resulted in such substantial losses that some governmental units in Idaho are no longer able to obtain liability insurance coverage.
While under the strictures of Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), some waiver of sovereign immunity was and is required of our legislature, I see no public policy to be served by requiring Idaho's governmental units to become insurers against every risk that any citizen may encounter in life. I would hold that the Tort Claims Act does not demonstrate any legislative intent that governmental entities in Idaho should be responsible in damages for crimes committed by employees.
BAKES, Justice, dissenting:
Interpreting the allegations of plaintiffs' complaint as stating a cause of action for negligence, the majority, in Part II, fails to recognize that the essence of plaintiffs' cause of action "arises out of" an assault and battery, and thus the school district is exempt under the Idaho Tort Claims Act (ITCA). It is beyond dispute that Durtschi's lewd and unconsented touching of the minor plaintiffs constituted a battery. Nevertheless, the majority concludes that plaintiffs' cause of action "arises out of" or has its roots in negligence, rather than arising out of a battery. This conclusion ignores the express language of the ITCA.
I.C. § 6-904 does not merely exclude liability for assaults and batteries; rather, it states that the governmental entity "shall not be liable for any claim which arises out
The majority's argument effectively removes from the statute the words "arising out of." This the majority does without evidence from any extrinsic source indicative of legislative intent to support such a reading of the statute. The logical interpretation of the phrase "arising out of" would employ a common sense meaning, i.e., "based upon" an assault or battery, or "having its roots in" an assault or battery.
The Idaho Tort Claims Act, I.C. §§ 6-901 et seq., was based upon the Federal Tort Claims Act, and the exception here in question, the assault and battery exception, is identical to that of the Federal Tort Claims Act. In Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1980), this Court held that when the Idaho legislature adopted a statute from another jurisdiction it "will be presumed that the legislature adopted the statute with the prior construction placed upon it by the courts of the other jurisdiction." Odenwalt v. Zaring, supra at 5, 624 P.2d at 387. Hardly a month ago in Leliefeld v. Panorama Contractors, Inc., Idaho, (filed January 16, 1986), (rehearing granted March 26, 1986) we reiterated and described that rule as "a time honored principle to which this Court has faithfully adhered," repeating the following quotation from Odenwalt:
As Leliefeld instructs, our analysis of the Idaho Tort Claims Act in this case should commence with an analysis of the federal cases interpreting the Federal Tort Claims Act as of 1971, the date when Idaho adopted the federal act.
The Idaho Tort Claims Act passed in 1971 was modeled after the Federal Tort Claims Act, and the "exceptions to governmental liability" set out in I.C. § 6-904, subsection (4), which are involved in this case, are identical to the exceptions set out in Section 2680(h) of the Federal Tort Claims Act. That subsection exempts from the waiver of immunity any claim which:
Prior to the adoption of the exception set out in I.C. § 6-904(4), the federal courts had unanimously held that the "exception to governmental liability" contained in 2680(h) of the Federal Tort Claims Act, from which I.C. § 6-904(4) was copied, covered cases in which negligence underlies the claims. The United States Supreme Court first addressed that issue in United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), a case involving a claim for misrepresentation under 2680(h), wherein the court stated:
The United States Supreme Court in United States v. Shearer, ___ U.S. ___, 105 S.Ct. 3039, 3042, 87 L.Ed.2d 38 (1985), acknowledged that United States v. Neustadt, supra, had held that "the exception in Section 2680(h) [the intentional tort exception clause] for claims `arising out of ... misrepresentation' covers cases in which negligence underlies the inaccurate representation."
Moos v. United States, 225 F.2d 705 (8th Cir.1955), was an even earlier case where a plaintiff brought suit on a negligence theory, based upon an unconsented operation on his right leg, which the court held constituted a battery. The court held that the mere existence of what might be referred to as a separate claim based upon negligence does not negate the existence of the assault and battery, and therefore the claim was barred under the Tort Claims Act. The 8th Circuit Court in Moos adopted the reasoning of "the district court, which we think has clearly demonstrated that the plaintiff's claim against the government is, under applicable law, one arising out of an assault and battery, of which the court had no jurisdiction under the Tort Claims Act." The district court in its opinion stated:
The facts of Moos are substantially similar to those in this case. In Moos, the unauthorized operation [touching] constituted an assault and battery, as did the unauthorized touching of the plaintiffs in this case. Also, in Moos the plaintiff was arguing about "the negligent transfer of the site of the operation," and in this case the plaintiffs are alleging the negligent transfer of Durtschi.
Prior to 1971, one other federal circuit court had addressed this issue. In Panella v. United States, 216 F.2d 622 (2nd Cir.1954), the plaintiff, Panella, was an inmate at a federal hospital and was assaulted by another inmate. He sued the United States "claiming that the assault was caused by the negligence of employees of the United States in failing to provide adequate guards and otherwise properly supervise those confined in the institution." Panella at 623. The United States moved to dismiss on grounds that Panella's suit was barred by the assault and battery exception to the Tort Claims Act. The Second Circuit, speaking through Judge John Harlan (who only four months later was appointed to the United States Supreme Court), rejected the government's argument on the grounds that the assault and battery exception did not extend to assaults and batteries committed by non-governmental employees. However, the Court nevertheless made it clear that, had the assault in Panella been committed by a government employee, Panella's action, though framed in the terms of negligence, would have been barred. The Second Circuit's distinction between assaults committed by government employees as opposed to non-government employees was based on its reasoning that, in the latter instance, "a negligent action is not merely an alternative form of remedy to an action for assault but negligence is rather the essence of the plaintiff's claim." Panella v. United States, supra at 624. The Court reasoned with regard to government employees that an assault committed by such an employee
Prior to 1971 a federal district court case, Collins v. United States, 259 F.Supp. 363 (E.D.Penn. 1966), addressed this issue. In Collins, the plaintiff's complaint alleged that on November 15, 1963, an employee of the Post Office, one Brosz, acting in the scope of his employment "pushed, hit and struck" the plaintiff. The complaint further alleged that the United States was negligent in hiring and retaining Brosz in its employ when it knew or should have known of his "violent, vicious and malicious propensities." The defendant moved to dismiss, claiming that the plaintiff's complaint of negligent employment fell within the exception of Section 2680(h) of the Tort Claims Act, i.e., "any claim arising out of assault, battery... ."
The Collins court in its opinion, after noting that the plaintiff was arguing that his claim is not founded on the assault and battery, but rather on the negligence of the government in employing who it knew or should have known had "violent, vicious and malicious propensities," stated:
Thus, at the time that Idaho adopted the Federal Tort Claims Act in 1971, and particularly Section 2680(h) as I.C. § 6-904(4), the federal cases interpreting that act had held that the exemption for intentional torts set out in 2680(h) included not only the intentional tort itself, but any negligence which underlies the intentional tort. Accordingly, if we are to follow the "time honored principle" described in Leliefeld "that a statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction," Leliefeld, then we should uphold the district court's conclusion that plaintiffs' claim "arises out of assault [and] battery." I.C. § 6-904(4).
The federal cases which have been decided subsequent to 1971, the year Idaho adopted the Tort Claims Act from the federal act, have continued the same interpretation as those decided before 1971. The most recent, and of course the final and ultimate authority is the recent decision of the United States Supreme Court in United States v. Shearer, ___ U.S. ___, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). In that case, the United States Supreme Court was asked to review a wrongful death judgment, on two grounds, one of which was that the claim was barred by the assault and battery exception of the Federal Tort Claims Act. In Shearer, the mother of an Army private, Vernon Shearer, brought an action against the Army alleging that the Army's negligence caused her son's death. Private Shearer, while off duty and away from the military base, was kidnapped and murdered by another serviceman, Private Andrew Heard. Mrs. Shearer alleged that the Army knew that Private Herd was dangerous; he had been convicted by a German court of manslaughter and sentenced to a 4-year prison term while assigned to an Army base in Germany in 1977. As in the present case, Mrs. Shearer alleged that in spite of such knowledge the Army transferred Private Heard to the military base where her son was subsequently
The Court of Appeals had held that Mrs. Shearer's suit was not precluded by the assault and battery exception to the Federal Tort Claims Act. The Court of Appeals reasoned, similar to the majority in the present case, that Mrs. Shearer's complaint alleged negligence and that "if an assault and battery occurred as a `natural result' of the government's failure to exercise due care, the assault and battery may be deemed to have its roots in negligence and therefore it is within the scope of the FTCA." Shearer v. United States, 723 F.2d 1102, 1107 (3rd Cir.1983). Additionally, the Court of Appeals ruled that Mrs. Shearer's claim was not precluded by the Feres doctrine which holds that military command judgments are exempt from the waiver of immunity under the Tort Claims Act and are therefore not actionable. The United States Supreme Court in Shearer reversed the decision of the Court of Appeals.
The Supreme Court found further support for its reading of the exception in the legislative history of the act and from its cases interpreting other exceptions to the act. The Court noted that there was no indication that Congress distinguished between "negligent supervision" claims and respondeat superior claims, with only the latter excluded under the act. And regarding interpretation of similar exceptions, the Court stated:
Seven United States Courts of Appeals have addressed the assault and battery exception, and all have held that the government
In a case factually similar to the one before us, Hughes v. United States, 662 F.2d 219 (4th Cir.1981), the Fourth Circuit held that a claim against the government based upon illegal sexual conduct was barred under the assault and battery exception even though the complaint was framed in the terms of negligence. In the Hughes case, a postal employee had taken indecent sexual liberties with two minor female children. Plaintiffs sued the postal service alleging that it negligently retained the individual in its employ, despite his having been arrested and charged with a similar offense five years prior to the occurrence of the alleged conduct in the present case. The district court rejected plaintiffs' claim on grounds that it was barred by the assault and battery exception. The court noted, "There would have been no assault except for the separate and independent acts [of the employee]. Without his independent assault, there would be no cause of action. It is to this action the statute does not waive immunity." Hughes v. Sullivan, 514 F.Supp. 667, 670 (E.D.Va. 1980). The Fourth Circuit affirmed (per curiam), finding no error of law in the district court's reasoning.
The Tenth Circuit has likewise held that a claim against the government for its antecedent negligence in retaining or supervising its employees may be barred by the assault and battery exception if the underlying facts indicate that the theory of negligence is but an alternative theory utilized by a plaintiff to circumvent the Tort Claims Act's exceptions. In Naisbitt v. United States, 611 F.2d 1350 (10th Cir.1980), the court upheld a district court's dismissal of plaintiff's action against the government based upon the trial court's reasoning that "[h]ere ... government liability is possible only because government employees committed the intentional act. Thus, although plaintiff's complaint is drawn in terms of negligence, the essence of the cause of action is an assault and battery committed by two individuals who were government employees at the time of the wrongful acts. The claim arises only because of the intentional wrong committed by employees of the sovereign and is, therefore, a claim `arising out of' an assault and battery and is within the scope of [the] exception. Plaintiff's negligence theory
The District of Columbia Circuit has likewise held that "a litigant cannot circumvent the [Tort Claims Act] by the simple expedient of drafting in terms of negligence a complaint that in reality is a claim as to which the United States remains immunized." Johnson v. United States, 547 F.2d 688, 691-92 (D.C. Cir.1976).
Finally, the Fifth Circuit, in a recently released opinion, has held that a claim alleging negligence in the supervision of a governmental employee is nonetheless barred by the Tort Claims Act when the substance of the claim is grounded on the underlying illegal sexual conduct committed by said employee. In Garcia v. United States, 776 F.2d 116 (5th Cir.1985), the court, noting the Supreme Court's decision in Shearer, held plaintiff's claim alleging negligence in the supervision of a military recruiter who allegedly engaged in sex acts with plaintiff, was barred by the assault and battery exception to the FTCA. The court held that the "arising out of" language in its context was straightforward, and that "even if there were ambiguity or uncertainty of application inherent in the language of the proviso, it would not alter the result. The government's waiver of sovereign immunity is to be narrowly read. That principle requires that in reading this proviso to the sovereign's consent to suit any ambiguity is to be resolved against consent." 776 F.2d at 118 (emphasis added.) Based on this reasoning, the court concluded that the government had not consented to suit under the facts of the case before it.
Of the cases relied upon in the majority opinion in support of their interpretation of I.C. § 6-904(4), none of them were decided prior to 1971, the year that Idaho adopted the analogous provision from the Federal Tort Claims Act. Accordingly, under our recent decision in Leliefeld, they are not to be considered in determining what the interpretation of the federal act was at the time that our legislature adopted it. Furthermore, of the cases cited in the majority opinion, only three are federal cases. Two of them, Liuzzo v. United States, 508 F.Supp. 923 (E.D.Mich. 1981), and Loritts v. United States, 489 F.Supp. 1030 (D.Mass. 1980), are district court cases, which, because of subsequent decisions in their circuits are of questionable value. The circuit court of appeals for both those courts have adopted reasoning which seriously undercuts the rationale of the Loritts and Liuzzo courts. In Jimenez-Nieves v. United States, 682 F.2d 1 (1982), the First Circuit, in addressing a claim against the government based on negligent acts committed by employees of the Social Security Administration, stated, "In examining a complaint we are bound to look beyond the literal meaning of the language used to ascertain the real cause of the complaint." Id. at 6 (emphasis added), citing Fitch v. United States, 513 F.2d 1013 (6th Cir.1975). In construing the cause of action before it, the Jimenez court found plaintiff's complaint to state causes of action based on defamation (libel or slander). As such, the court noted, "Plaintiff's claim fits `the traditional and commonly understood legal definition of the tort of defamation,'" 682 F.2d at 6, and as such it was barred by the intentional tort exception of the Federal Tort Claims Act. The First Circuit expressly declined to follow contrary authority
In Fitch v. United States, 513 F.2d 1013 (6th Cir.1975), the Sixth Circuit likewise held, "Although [plaintiffs] cast their complaint in the guise of a negligence action, this does not automatically take the case outside the [intentional tort] exception. Courts must look beyond the literal meaning of the language to ascertain the real cause of complaint." 513 F.2d at 1015. This language from the Sixth Circuit seriously undercuts the rationale of the district court in Liuzzo.
The third case, Gibson v. United States, 457 F.2d 1391 (3rd Cir.1972), involved an assault and battery by a non-governmental employee, and thus the analysis of the 2nd Circuit Court of Appeals in Panella, supra, would be applicable. In any event, none of those cases was in existence at the time that Idaho adopted the Federal Tort Claims Act in 1971, and therefore, as we pointed out in Leliefeld, they are not involved in our determining the legislative interpretation of I.C. § 6-904(4). Furthermore, they have all been displaced by the plurality opinion of the United States Supreme Court in United States v. Shearer, supra. As recently observed by the Fifth Circuit Court of Appeals in Garcia v. United States, 776 F.2d 116 (1985),
Thus, it is clear that, both prior to and after 1971, the interpretation placed upon the language "arises out of assault, battery, ...," in Section 2680(h) of the Federal Tort Claims Act refers not only to the intentional torts listed in that subsection, i.e., "assault, battery, false imprisonment, ... misrepresentation," etc., but also to any underlying negligence which may occasion those intentional torts. Accordingly, the "time honored principle" to which we have just paid "unwaivering adherence" in Leliefeld, supra, "that a statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction," should be applied in this case also, and the district court should be affirmed. As was recently stated by the United States District Court for South Carolina:
In this case the district court was correct in its conclusion that the plaintiffs' claims arise out of the battery committed by Durtschi and, accordingly, the defendant school district was not liable for those claims. The district court's order awarding summary judgment on that basis was correct and should be affirmed.
SHEPARD, J., concurs.
The Third Circuit held that neither Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) — which held that a soldier may not recover under the FTCA for injuries that "arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. at 159 — nor the assault and battery exception to the FTCA barred recovery. The Supreme Court reversed on the ground that recovery was barred under the Feres doctrine. Chief Justice Burger, writing for himself and three other justices, also expressed his view that the action was barred under the assault and battery exception to the FTCA. 105 S.Ct. at 3042-44.
The only Court of Appeals which has adopted an interpretation in favor of appellants is the Third Circuit which decided the Shearer case which, as discussed above, was reversed by the Supreme Court.