STATEMENT OF THE CASE
Appellant Ester Harris brought suit against the State of Idaho, Department of Health and Welfare ("Department"), praying for the imposition of vicarious liability for injuries sustained from the tortious acts of an allegedly negligently managed juvenile placed in the care and custody of the Department. The juvenile was convicted of two counts of the infamous crime against nature, one count of rape, one count of grand theft, and one count of
On April 9, 1989, the juvenile assailant, Adrian Barajas, burglarized Harris' apartment and brutally raped and sodomized her. A year later, on April 10, 1990, Barajas pleaded guilty to the crimes outlined above. Prior to the assault on Harris, Barajas's criminal record included four misdemeanors, three involving petit theft and one misdemeanor battery. There were no prior incidents involving sexual misconduct, violent aggression, or any felony. The battery resulted from bloodying the nose of another boy in a fistfight. During the disposition hearing of the most recent crime in this series of misdemeanors, the magistrate entered a decree committing legal custody of Barajas to the Department for out-of-home placement subsequent to four days detention in jail and an order of restitution. The court decree, entered December 22, 1988, adopted almost wholly the recommendations of a Mr. Moulton who had performed a clinical report on Barajas shortly after his arrest. Moulton's report did not evidence any finding or suggestion that Barajas seriously endangered the public safety. Barajas, who had been released Christmas Day to the physical possession of his parents, was still under the legal care and custody of the Department at the time of the commission of the crimes.
Subsequent to Barajas's commitment to the custody of the state, the Department interviewed Barajas and family members, did an intake evaluation, completed a psychological evaluation of Barajas, conducted a staff conference to consider treatment and placement options, and assigned the case to a case manager, consistent with its usual procedure. The evaluations performed on Barajas revealed his angry nature and proclivity to aggression, and diagnosed the possibility that he might pose an above average sexual threat to his "female peers" due to past sexual abuse suffered by Barajas and his consequent need to prove his manliness. The whole intake process was completed by January 4, 1989. Thereafter, the Department lost touch with Barajas and unsuccessfully attempted to regain contact. Barajas had dropped out of school, his family residence had been abandoned, and his mother had quit her job. Barajas momentarily surfaced the afternoon preceding his brutal violation of Harris, at which time he was questioned by an officer in connection with a reported harassment and released.
On April 30, 1991, the Department filed a Motion for Summary Judgment based on the following: (1) plaintiff's failure to timely file a notice of tort claim under I.C. §§ 6-905 and 6-908; (2) governmental immunity based on the "statutory function" exception under I.C. § 6-904A(1); (3) governmental immunity based on the "assault and battery" exception under I.C. § 6-904(3); and (4) governmental immunity based on the "reckless, willful and wanton" conduct exception under I.C. § 6-904A(2). On July 29, 1991, the court entered a Memorandum Opinion and Order granting the motion for part (4) only. Plaintiff now appeals from this order, while the Department seeks a decision affirming summary judgment.
The issues on appeal are:
I. Whether a genuine issue of material fact exists concerning the reckless, willful, or wanton nature of the Department's conduct in supervising its charge, Adrian Barajas.
II. Whether the Department qualifies by definition for immunity under I.C. § 6-904A(2).
III. Whether I.C. § 6-904A(2) is constitutional.
STANDARD OF REVIEW
Rule 56(c) of the Idaho Rules of Civil Procedure states that summary judgment is to be "rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that 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). This Court exercises free review of a constitutional issue because it is purely a question of law. Sun Valley Co. v. City of Sun Valley, 109 Idaho 424, 428, 708 P.2d 147, 151 (1985).
The burden of proving the absence of a material fact rests at all times upon the moving party. McCoy, 120 Idaho at 769, 820 P.2d at 364; Petricevich, 92 Idaho at 868, 452 P.2d at 365. This burden is onerous because even "circumstantial" evidence can create a genuine issue of material fact. McCoy, 120 Idaho at 769, 820 P.2d at 364; Petricevich, 92 Idaho at 868, 452 P.2d at 365. However, the Court will consider only that material contained in affidavits or depositions which is based upon personal knowledge and which would be admissible at trial. Petricevich, 92 Idaho at 869, 452 P.2d at 366. Summary judgment is properly issued when the nonmoving party bearing the burden of proof fails to make a showing sufficient to establish the existence of an element essential to that party's case. Nelson v. Steer, 118 Idaho 409, 410, 797 P.2d 117, 118 (1990); Dekker v. Magic Valley Regional Medical Center, 115 Idaho 332, 333, 766 P.2d 1213, 1214 (1988).
RECKLESS, WILLFUL AND WANTON CONDUCT UNDER I.C. § 6-904A(2) AND § 6-904C(2)
The district court correctly found that no issue of material fact existed as to
According to the strictures of this test, there is no evidence in the record to indicate that the state's employees intentionally and knowingly did or failed to do any act which created an unreasonable risk of harm to Harris. Specifically, no act or omission of the employees involved a high degree of probability that the kind of harm which Harris suffered would result therefrom. Therefore, the state's employees did not act with reckless, willful, and wanton conduct with respect to their handling of Barajas's custody.
The record contains evidence of the Department's efforts to contact, evaluate, and rehabilitate Barajas. These efforts simply were hindered by Barajas's disappearance. Nor can the Department's failure to act with greater dispatch be considered reckless, willful, or wanton because nothing in Barajas's antecedent behavior or present comportment presaged the vicious exploits committed against Harris such that a reasonable person could foresee the need to restrain Barajas from society. The most drastic prediction recorded was that Barajas might be an above average sexual risk to his female peers, which Harris was not.
Harris argues that the Department failed to comply with the statutory provisions of the Youth Rehabilitation Act ("YRA") by not maintaining possession and control of
QUALIFICATION FOR IMMUNITY UNDER THE TERMS OF I.C. 6-904A(2)
The trial court properly interpreted I.C. § 16-1802(n) to find that the Department had custody of Barajas within the meaning of I.C. § 6-904A(2) at the moment it was declared so by the magistrate. Appellant apparently confuses the issue by attempting to draw a distinction between physical and legal custody. A statute is to be construed pursuant to its plain, obvious, and rational meaning. Sherwood v. Carter, 119 Idaho 246, 254, 805 P.2d 452, 460 (1991); Sweeney v. Otter, 119 Idaho 135, 138, 804 P.2d 308, 311 (1990). Accordingly, it is clear that I.C. § 16-1802(n) does not anticipate physical possession and control as a prerequisite to custody. The definition of legal custody confers physical obligations rather than germinates from them. Moreover, it is also clear from the language of I.C. § 6-904A that the legislature intended the protections of I.C. § 6-904A to potentially cloak any type of court-imposed custodial relationship between the state and a tortfeasor, such as the type of situation at bar. This purpose would be frustrated if appellant's narrow construction of "custody" were accepted. Therefore, we find that, upon his release from the detention center, Barajas was still under the legal custody of the state although released to the possession of his parents, and that the state thereby qualifies for the immunity afforded by I.C. § 6-904A.
CONSTITUTIONALITY OF I.C. § 6-904A & § 6-904C
We reject appellant's contention that I.C. § 6-904A denies her due process and equal protection of the laws. When analyzing a constitutional issue, a threshold issue that must be resolved by the court is the proper standard of review to apply, whether it be strict scrutiny, means-focus, or rational basis. Strict scrutiny is inapplicable here because no fundamental right or suspect classification is involved. Neither is the means-focus test applicable, for there is no patent indication of a lack of relationship between the classification and the declared purpose of the statute. See Jones v. State Bd. of Medicine, 97 Idaho 859, 871, 555 P.2d 399, 411 (1976), cert. denied, 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977). The legislative purpose underlying the statute was to reinstate immunities which existed prior to Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986), and to separate existing sections into three different sections. The rational basis test is generally appropriate to use when reviewing statutes impacting on social or economic areas. See Johnson v. Sunshine Mining Co., 106 Idaho 866, 869, 684 P.2d 268, 271 (1984); Leliefeld v. Johnson, 104 Idaho 357, 373-75, 659 P.2d 111, 127-29 (1983).
Under the rational basis test, a statute is constitutional unless it is not rationally related to a legitimate governmental end. Because the law of sovereign immunity can be traced to statutory origins, I.C. § 6-904A cannot be construed as unconstitutional simply because it reflects the legislature's choice to reverse the liberal trend embodied in Sterling. In an earlier case this Court rejected a similar argument, holding that although the courts are free to modify or abrogate governmental immunity, the legislature has the constitutional authority to reimpose it. Haeg v. City of Pocatello, 98 Idaho 315, 317, 563 P.2d 39, 41 (1977). See also Olsen v. J.A. Freeman Co., 117 Idaho 706, 717, 791 P.2d 1285, 1296 (1990); Jones v. State Bd. of Medicine, 97 Idaho 859, 555 P.2d 399 (1976). In this instance, the legislature has limited liability after finding that the courts were taking it too far in the other direction. The legislature is not acting beyond the common law purpose of the statute, i.e. to define the scope of sovereign immunity. The legislature is merely attempting to protect the fiscal integrity of the state. This Court has previously determined such protection to be a legitimate governmental objective. See Leliefeld, 104 Idaho at 374, 659 P.2d at 128. Moreover, the exception provided in I.C. § 6-904A(2) furthers this purpose. The statute protects against ordinary negligence claims which would significantly impair effective governmental process, yet allows fair compensation for egregious wrongs. It reflects a deliberately chosen policy choice to overrule Sterling, as Judge Wood aptly noted.
No costs on appeal.
BAKES, C.J., and TROUT, J., concur.
BISTLINE, Justice, concurring and dissenting separately, and concurring in full in the opinion of Justice JOHNSON:
Although I am in agreement with the content of both paragraphs of Justice Johnson's opinion, because no other member of the Court has written to flesh out the facts of this controversy, I will endeavor to do so. The public has a right to know.
Idaho Code § 6-904, enacted in 1988, spells out seven (7) differing sets of circumstances relative to a governmental entity and its employees being named as defendants in a filed tort claim based on allegations of negligence, but specifically provides for government immunity as to certain acts or conduct:
Idaho Code § 6-904(A) of the same 1988 legislative enactment expands upon the opening sentence above, by adding the following conditions: "without malice or criminal intent and without reckless, willful and wanton conduct as defined in section 6-904C, Idaho Code." Idaho Code § 6-904C(2) spells out the legislature's definition for ascertaining the presence of reckless, willful and wanton conduct:
PART I: THE FACTS
At the outset it need be understood and remembered that the record is devoid of evidence that any employee of the state of Idaho had any involvement in the brutal assault administered to Ester Harris in her home. It does involve conduct on the part of the Department and some of its employees which raises a question of fact as to whether such conduct was reckless, willful, and wanton as defined by the legislature.
Almost four months before the assault on Harris, Barajas was brought into juvenile court, having been charged with petit larceny. Evidence relating to the juvenile's past history was assembled by Department personnel trained in evaluating and dealing with delinquency in order to aid the juvenile court in fashioning an appropriate disposition. After absorbing the then-recent history of the juvenile and resorting to their collective educational and experiential backgrounds, the Department presented a prognosis as to what might be expected of the sixteen year old Barajas in the future.
Richard Moulton of Court and Clinical Services, Idaho Falls, Idaho, testified at the December 21, 1988, hearing conducted by Judge McClure. The transcript of testimony is as follows:
Also placed in evidence at the December 21 hearing was the report of Kerry Denney, staff psychologist for the Department of Health and Welfare. Denney had earlier performed an exhaustive, ten page psychological evaluation of Barajas relative to the prospect of Barajas being committed to the custody of the Department:
After considering the evidence before it, the court issued a written order:
Judge McClure's order to the Department was not fulfilled as directed. The Department did transport him from Idaho Falls to St. Anthony where he was incarcerated for four days, after which it is not clear whether the Department returned him to his parents or whether Barajas returned to the family residence of his own volition on being released from confinement.
The court's order contained the clear requirement of "out of home" placement. The Department of Health and Welfare took upon itself the liberty of ignoring the court's order. In a form document with blanks for appropriate names to be filled in, the Department, the judicially appointed custodian of Barajas, returned him into the exact environment from which the court had just ordered him removed:
(Emphasis added.) The document is signed by the Department's regional service manager, whose signature is illegible. That order in and of itself is significant evidence of reckless, willful, and wanton conduct. It directly contravenes the express order of the court, which vested custody in the Department
What happened after his placement back at home was readily predictable. As the majority admits: "The Department lost touch with Barajas and unsuccessfully attempted to regain contact. Barajas ... dropped out of school, his family residence [was] abandoned, and his mother ... quit her job." At 297, 847 P.2d at 1158.
Because of the Department's reckless, willful, and wanton actions, Barajas was wholly on the loose at the time of the assault on Ester Harris. Although the Department had been awarded physical custody of him for the very purpose of attending to his rehabilitation, it clearly forsook custodial trust of Barajas, an unconscionable dereliction of duty. Not only would the betrayal of that trust result in the assault and near murder of Ester Harris, but, bluntly, it was the end of the road for Adrian Barajas, who is no longer in the custody of the Department of Health and Welfare for purpose of rehabilitation which never took place, but rather committed to another state agency, the Board of Corrections.
Worse yet, the Department did precious little to locate and apprehend Barajas. Only by chance was he ever apprehended, but not until after he had vented his rage and frustrations on an unwarned and unsuspecting Ester Harris. Moreover, no action by the Department brought about his apprehension. The Department expended little meaningful effort in that direction.
Had the Department taken productive efforts, it is more than likely that Barajas would have been apprehended long before the assault on Harris occurred. One need only turn to the affidavit of Terry Ray Foster, found in the appeal record at p. 83, to ascertain that the Department's inactions, in not giving any general warning that Barajas was dangerous and on the loose, precluded the apprehension of Barajas on the morning of the very day Ester Harris was assaulted. This affidavit, although not executed until June 7, 1991 (in preparing the Harris case for trial), was applicable to events taking place in Bonneville County on April 8, 1989, and April 9, 1989, being respectively the date on which Barajas could have been taken into custody, and the following day when he was taken into custody — only after the terrible assault on Harris.
The sworn affidavit of Terry Ray Foster states in relevant part:
PART II: RECKLESS, WILLFUL, AND WANTON CONDUCT
The district court in considering the motion for summary judgment had before it the 1988 statute which was then recently enacted, namely, I.C. § 6-904(A)(2).
At this point it becomes necessary to differ from the views of the district court. The written decision, which was predicated on the above bare-bones analysis of I.C. § 6-904A(2), then concluded: "Therefore, the State's employees did not act with reckless, willful and wanton conduct with respect to their handling of Barajas' custody."
Further, there very well might be nine or more jurors who would conclude that the Department's failure to take any measures to warn the people of that area, including Ester Harris, that Adrian Barajas was a menace among them, was reckless, willful and wanton conduct on the part of the Department. The dereliction in duty attributable to the defendants flowed from a pattern of complete indifference that a jury could see as rising to the level of reckless, willful and wanton conduct chargeable to the Department.
PART III: THE WRITTEN ORDER
An issue raised tangentially by the Department, and one on which it then placed great reliance, is a supposed discrepancy between the disposition which Judge McClure verbalized at the hearing on December 21, and the content of the order which she issued on the following day. From the Department's brief:
PART IV: THE FORESEEABLE CLASS OF RAPE VICTIMS
Although I do not disagree that foreseeability ought to be narrowly drawn, there are statements in the majority opinion which raise considerable concern, most notable of which is: "The specific harm, i.e., sexual violence toward the particular class of plaintiff must be manifest or ostensible." At ___, 847 P.2d at 1160 (emphasis supplied.) A later statement adds that "[t]he most drastic prediction recorded was that Barajas might be an above average sexual risk to his female peers, which Harris was not." Reasonable minds could readily conclude that the Department of Health and Welfare acted with reckless, willful and wanton conduct in turning Barajas loose in the community wherein his delinquent conduct had been documented at the time the order of commitment was entered. Although Ester Harris was his victim, the class put at risk of rape or brutality by the release of Barajas was the entire female population. In such a scenario, it matters little, if any, how old or young the victim is, other than to the extent that a fact-finding judge or jury might readily and properly be influenced not only by the intensity of the criminal act but also by the tender years of a victim, or by the victim's far advanced age and attendant debility, as was the case here.
The majority definition of the foreseeable class of plaintiff under the facts is not only too narrow but is unnecessary to the holding, in view of the majority conclusion that the actual risk of harm to any woman was evaluated as fairly low. If the appropriate class of plaintiff need be mentioned at all, perhaps it should be redrawn to include all women, as suggested in the proceeding paragraph.
It is readily agreed that the Department's employees did nothing which created any foreseeable probability that it would be Ester Harris who was singled out to suffer the savage, disabling and in fact, life threatening attack in her own home on April 9, 1989, administered by Adrian Barajas. As is readily observed by a perusal of the record, there is not a bare scintilla of any evidence that either the elderly Mrs. Harris and Barajas had ever even heard of each other. There was, however, a readily foreseeable probability that one or more persons in community would suffer mightily at the hands of Adrian Barajas when, as earlier predicted by knowledgeable Department personnel, a time would arrive when Barajas in attempting to prove his "manliness" would be a menace to "females" — not necessarily only to his female peers, who in a public setting individually or collectively might best him, but to any defenseless elderly woman alone in her own home.
PART V: CONCLUSION
The dereliction in duty attributable to the defendants flowed from a pattern of complete indifference which a rational trier of fact could find to rise to the level of reckless, willful and wanton conduct chargeable to the Department. Such a finding could be predicated on two facts: one, the Department disobeyed an express order of the court, and two, it made no meaningful efforts to either recapture Barajas or warn the public that he was at large.
Had he robbed a bank and been captured on film by a video surveillance camera, we would be seeing a totally different scenario. We all know that to be so simply from reading and listening to televised and printed
The Department of Health and Welfare for the reasons herein should be caused to defend its actions and inactions in a public forum, whereat it might find a jury which would not hold it liable and accountable in damages to Ester Harris. Exactly as stated by Justice Johnson, she is entitled to a jury trial to decide whether the terrible harm which befell her was attributable in whole or in part to the Department's actions. It will be a sad day for Idaho justice if this controversy is not brought to its conclusion at a jury trial. This is not to say that Judge Wood would not be a fair finder of the fact, because he is known to be just that. It is to say that where a jury trial has been demanded, as here, it is the American way to put the issue before a jury. In that manner, the public confidence in the judicial system is bolstered rather than weakened.
JOHNSON, Justice, concurring and dissenting.
I concur in parts II and III of the Court's opinion, but respectfully dissent from part I.
In my view, Jacobsen v. City of Rathdrum, 115 Idaho 266, 766 P.2d 736 (1988), and G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 808 P.2d 851 (1991), dictate that we vacate the trial court's summary judgment. As I read the record, applying the standards in Jacobsen and G & M Farms, we should hold that there is a genuine issue of material fact whether the Department was reckless, willful, and wanton in its supervision of Barajas. I believe the Court's opinion incorrectly requires that Harris meet an elevated standard of proof to avoid summary judgment.
In my view, in construing the evidence in the record most favorably to Harris, and giving Harris the benefit of all favorable inferences which may be drawn therefrom, there is evidence to support each element of the prima facie case necessary for the theory of reckless, willful, and wanton conduct. Cf. G & M Farms, 119 Idaho at 526, 808 P.2d at 526; Jacobsen, 115 Idaho at 272, 766 P.2d at 742.
Where a court must construe facts in a light most favorable to the party opposing the motion, the trial court naturally and properly assumed that a private party in the same shoes as the Department would be liable under state law, thus clearing the first statutory hurdle. I.C. § 6-904A(2) limits the government's potential liability under section 6-903, providing that:
This Court has construed the statutory scheme excerpted above to outline a three-step process that a court must apply in deciding whether to invoke governmental immunity. See Olguin v. City of Burley, 119 Idaho 721, 723, 810 P.2d 255, 257 (1991); Czaplicki v. Gooding Joint School Dist., 116 Idaho 326, 330, 775 P.2d 640, 644 (1989). In considering a motion for summary judgment requesting dismissal of a complaint against a governmental entity and its employees under the Idaho Tort Claims Act, the trial court must answer whether tort recovery is allowed under the laws of Idaho; and, if so, whether an exception to liability found in the tort claims act shields the alleged misconduct from liability; and, if no exception applies, whether the merits of the claim as presented for consideration on the motion for summary judgment entitle the moving party to dismissal.
I.C. § 16-1834. The record reflects that the Department satisfied these mandates.
I.C. § 16-1833 (1963).
I.C. § 16-1801.
It is manifestly clear from the record which we review that Barajas was on neither probation nor parole, nor any work release program, and that neither Barajas nor Ester Harris were being serviced by a mental health center, hospital or similar facility. Barajas had been committed to the Department of Health and Welfare solely for purpose of relocating him in an environment favorable to the rehabilitation program in which the Department's experienced personnel wanted to place him.