Chandler Supply Co., Inc. v. City of Boise , 104 Idaho 480 ( 1983 )

BAKES, Justice.

This appeal is brought from a final judgment entered in favor of the respondents, Chandler Supply Co., Inc., and Industrial Indemnity Co. Chandler had brought suit against the appellant, City of Boise, under the Idaho Tort Claims Act, Idaho Code title 6, chapter 9, alleging negligence on the part of Boise’s fire department. The facts appear to be substantially as follows.

On December 22,1976, at about 5:34 p.m., the Boise Fire Department responded to the activation of a building fire alarm. On arrival at the reported location, the firefighters discovered a grass fire of unknown origin burning between a set of railroad tracks and a fence enclosing a warehouse. The firefighters extinguished the fire using burlap bags, shovels, and buckets of water. Before leaving the scene at approximately 5:55 p.m., members of the fire department checked the exterior of the warehouse and found no evidence that the building was involved in the fire. At approximately 6:12 p.m., in response to a telephone report of a building on fire, the fire department returned to the location of the earlier grass fire. The firefighters discovered that the previously checked warehouse was on fire. The fire was fought and extinguished, but resulted in substantial damage to property owned by Chandler. Both Chandler and his insurer filed timely claims with the city. A jury trial was held which resulted in a special verdict finding Boise 75% negligent and Chandler 25% negligent. Total damages amounted to $116,331.31. The city of Boise now appeals.

The primary question¹ raised by appellant is whether the trial court erred in refusing to hold the city of Boise immune from liability under I.C. § 6-904(1), the “discretionary function” exception to the Tort Claims Act. However, respondents initially argue that Boise is barred from raising that defense on appeal because Boise failed to assert immunity as an affirmative defense in its pleadings. I.R.C.P. 15(b) states that “[w]hen issues not raised by the pleading[s] are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” That rule also provides that while the pleadings may be amended to conform the pleadings to the evidence, “failure so to amend does not affect the result of the trial of these issues.” An examination of the record reveals that the issue of governmental immunity pursuant to the discretionary function exception was presented to and tried by the trial court. Consequently, we hold that pursuant to I.R.C.P. 15(b) the issue of governmental immunity was properly presented to this Court on appeal.

I.C. § 6-903(a), as it read in 1976, set forth the basic rule governing the liability of governmental entities in Idaho for tort claims filed against them.

“6-903. LIABILITY OF GOVERNMENTAL ENTITIES — DEFENSE OF EMPLOYEES. — (a) Except as otherwise provided in this act, every governmental entity is subject to liability for money damages arising out of its negligent or otherwise wrongful acts or omissions and those of its employees acting within the course and scope of their employment or duties, whether arising out of a governmental or proprietary function, where the governmental entity if a private person or entity would be liable for money damages under the laws of the state of Idaho.” (Emphasis added.)

I.C. § 6-904 contains several exceptions to the basic rule of governmental liability established under I.C. § 6-903(a). The exception relevant to the present case is the “discretionary function” exception contained in subsection (1) of I.C. § 6-904, which, in 1976, read as follows:

“6-904. EXCEPTIONS TO GOVERNMENTAL LIABILITY. — A governmental entity shall not be liable for any claim which:

“1. Arises out of any act or omission of an employee of the governmental entity exercising due care, in the execution of a statute or regulation, whether or not the statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” (Emphasis added.)

The scope of governmental liability under this scheme was first addressed by this Court in Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21 (1979). In Dunbar, the plaintiffs claimed that the state was liable for the deaths of certain miners arising from the 1972 Sunshine Mine disaster on the grounds that the state “undertook ... to inspect and enforce safety in the aforementioned mine and failed to enforce an elementary accident prevention program.... ” 100 Idaho at 530, 602 P.2d at 28. The district court held that the action in Dunbar was precluded under the discretionary function exception to the Idaho Tort Claims Act, I.C. § 6-904(1).

On appeal, the parties in Dunbar focused their arguments on the interpretation of the discretionary function exception. 100 Idaho at 529, 602 P.2d at 27. Nevertheless, this Court’s holding in Dunbar that the state was not subject to liability under the Tort Claims Act did not rest on an application of that exception; rather, it rested on the provisions of I.C. § 6-903(a). Following an exhaustive review of numerous cases from other jurisdictions which illustrated the great confusion prevailing on the subject of governmental immunity under similar tort claims statutes, this Court stated the following in Dunbar:

“Section 11(7) of that act (now codified as I.C. § 6-903(a)) provides that a governmental entity shall be liable for acts ‘where the governmental entity if a private person or entity would be liable for money damages under the laws of the state of Idaho.’

“As we have indicated above, there is no uniformity of interpretation of such language by courts nor are there alternative interpretations from which we might select as persuasive that one interpretation most supported by logic and reason.” 100 Idaho at 545, 602 P.2d at 43 (emphasis added).

Then, following further discussion concerning the “melange of decisions” from other jurisdictions, this Court concluded that with regard to the mine inspections by the state “[tjhere are not parallel functions in the private sector.” As a result, it was held that the state was not subject to liability under the Tort Claims Act.

It is clear that the “parallel functions” test was an application of I.C. § 6-903(a) which waives sovereign immunity “if a private person or entity wouid be liable for money damages under the laws of the state of Idaho.” As a consequence of the conclusion in Dunbar that mine inspections performed by the state had no parallel in the private sector, and that sovereign immunity was therefore not waived under the language of I.C. § 6-903(a), it was unnecessary in that case for this Court to interpret or apply the discretionary function exception contained in I.C. § 6-904(1).

Two subsequent opinions by this Court, Gavica v. Hansen, 101 Idaho 58, 608 P.2d 861 (1980), and McClure v. Nampa Highway Dist., 102 Idaho 197, 628 P.2d 228 (1981), may have engendered some confusion concerning the extent of our holding in Dunbar. Both Gavica and McClure concerned the question of governmental liability where there was a failure on the part of the responsible governmental agencies to post signs warning of dangerous highway conditions. In Gavica, this Court approached the question of governmental immunity by recognizing that the state’s primary argument was that the signing of highways constituted a discretionary function under I.C. § 6-904(1). The opinion in Gavica began by reviewing this Court’s decisions in Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), and Dunbar v. United Steelworkers of America, supra. The ruling in Smith had abrogated state immunity for tortious acts done in a governmental unit’s proprietary capacity, 93 Idaho at 802, 473 P.2d at 944. Gavica, however, recognized that the subsequently enacted Tort Claims Act was controlling on the question of governmental immunity. Since I.C. § 6-903(a) established the basic rule governing the tort liability of governmental entities, the proper course in Gavica was to first determine whether failure to sign a dangerous condition on a highway fell within the scope of I.C. § 6-903(a). Consequently, Dunbar was reviewed because it had in fact interpreted I.C. § 6-903(a) and had established the “parallel function” test. See 100 Idaho at 65, 608 P.2d at 868.

In applying the “parallel function” test to the facts in Gavica, this Court concluded that in contrast to the result in Dunbar, where state mining inspections had no parallel function in the private sector, the signing of dangerous conditions on public property in fact did have a parallel in the private sector. Comparison was found in the situation of a private landowner who has a duty to warn others of known dangerous conditions on his property. After concluding that there was a parallel function under the Dunbar rule, this Court also held very summarily that the state’s alleged negligence in Gavica was not immunized under the discretionary function exception of I.C. § 6-904(1). 100 Idaho at 66, 608 P.2d at 869. Despite the brevity of the conclusion in Gavica with regard to the discretionary function exception, that holding was separate and distinct from the parallel function analysis applicable to I.C. § 6-903(a).

Waiver of governmental immunity under the Tort Claims Act, I.C. § 6-903(a) and § 6-904, contemplates a two step process. The first step consists of determining whether the governmental or proprietary function has a parallel in the private sector and if a private person would be liable under the same circumstances. The second step consists of determining whether there are any applicable exceptions to liability. Indeed, if the discretionary function exception were to be measured in terms of “parallel functions in the private sector,” it would add nothing to the legislative plan over that provided under I.C. § 6-903(a), and the discretionary function exception would be mere surplusage and of no effect. A statute, however, must be construed, if possible, so that effect is given to all its provisions. University of Utah Hospital & Medical Center v. Bethke, 101 Idaho 245, 611 P.2d 1030 (1980); Norton v. Dept. of Employment, 94 Idaho 924, 500 P.2d 825 (1972).

In McClure v. Nampa Highway Dist., supra, this Court was faced with another highway signing case, and simply followed the holding in Gavica by quoting the conclusion from the Gavica opinion which referred to both the parallel function and discretionary function tests. Although McClure might be read in such a way as to imply that the discretionary function exception is to be defined in terms of the parallel function test, such a reading would be in conflict with not only our decision in Dunbar but also with the clear intent of the statutory scheme, and thus surpass the intended scope of McClure.

While in Gavica and McClure the Court considered the discretionary function exception as it relates to the signing of highways, we have not as yet set forth any general guidelines for determining the scope of the discretionary function exception. Since there is a great need for some guidance on the subject, we will assume that the firefighting activities of Boise have a parallel function in the private sector under I.C. § 6-903(a), and proceed to a discussion of the discretionary function exception.

Although the Tort Claims Act which our legislature enacted is very similar to that passed by Congress and many other states, our review in Dunbar of the “melange of decisions” interpreting such acts yields the conclusion that the decisions from other jurisdictions provide little guidance for defining the scope of governmental liability under our own Tort Claims Act. As stated in Dunbar, “[Although we may derive some scintilla of intent from legislative language, we are left with the task of determining and enunciating policy.” 100 Idaho at 546, 602 P.2d at 44. We therefore undertake an independent analysis of the discretionary function exception as contained in I.C. § 6-904(1).

Interpretation of the discretionary function exception must begin with a review of the status of sovereign immunity in Idaho immediately preceding the enactment of the Tort Claims Act. In Smith v. State, 93 Idaho 795, 802, 473 P.2d 937, 944 (1970), this Court held the following:

“[W]e hereby hold that the doctrine of sovereign immunity is no longer a valid defense in actions based upon tortious acts of the state or any of its departments, political subdivisions, counties, or cities, where the governmental unit has acted in a proprietary as distinguished from a governmental capacity.” (Emphasis added.)²

The Court in Smith also invited the legislature to exercise its own prerogative in the area of sovereign immunity and therefore delayed the effect of the Smith decision until “60 days subsequent to the adjournment of the First Regular Session of the Forty-First Idaho State Legislature .... ” 93 Idaho at 808, 473 P.2d at 950.

The significance of the Smith decision in the present case is the fact that while this Court abolished its prior court made rule of sovereign immunity for proprietary functions of a governmental unit, that abolition did not extend to traditional governmental functions. The forty-first legislature, however, subsequently waived sovereign immunity for tortious acts with respect to not only proprietary but also to governmental functions of a governmental unit which have a parallel in the private sector. 1971 Idaho Sess.Laws ch. 150, § 3; 1976 Idaho Sess.Laws ch. 309, § 4; I.C. § 6-903(a). Thus, the legislature was more expansive in allowing relief from governmental torts than was this Court in Smith. Of course, the legislature enacted certain exceptions to governmental liability, including the discretionary function exception. 1971 Idaho Sess. Laws ch. 150, § 4. The question is, what was the intent behind establishing those exceptions, particularly the discretionary function exception.

In abolishing its prior rule of sovereign immunity for tortious acts arising from proprietary functions of the state, this Court in Smith did not provide for any exceptions to such immunity.³ The unstated but obvious reason underlying such unrestricted tort liability arising from a governmental unit’s proprietary functions was that such liability does not impinge upon the ability of the government to supply the services for which it has traditionally been responsible. This concept appears to have been carried over in the legislature’s formulation of exceptions to governmental tort liability under I.C. § 6-904.⁴ Only subsection (8) clearly defines an exception which is applicable to proprietary functions. Even that subsection, however, is not a true exception to liability. It merely sets forth the standard that any design or plan for the construction or improvement of public property be judged in accordance with engineering and design standards prevailing at the time of preparation of the design or plan. Exceptions under subsections (2), (3), (5) and (6) clearly apply to traditional governmental functions, and exceptions under subsections (4) and (7) focus on activities properly attributable to individuals alone rather than to the government. It seems apparent that a basic purpose behind the legislature’s creation of a list of exceptions to governmental liability was to limit the effect of its waiver of sovereign immunity with respect to governmental functions. Such is particularly true with reference to the discretionary function exception under I.C. § 6-904(1). In our view, the purpose behind the discretionary function exception is to preserve governmental immunity from tort liability for the consequences which arise from the planning and operational decision-making necessary to allow governmental units to freely perform their traditional governmental functions. A review of this Court’s decision in Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589 (1958), helps to illustrate this principle.

In Ford, a young boy was injured when he was visiting the city of Caldwell’s fire station. The boy was in the ready room on an upper floor of the fire station. He had with him a rocket toy which he showed to two firemen who were present. While the two firemen played with the toy, the boy fell through the hole in the floor of the ready room onto the concrete floor below and was seriously injured. Suit was brought against the city, but the trial court dismissed it. On appeal, this Court affirmed the dismissal. This Court stated that in the absence of a statute providing otherwise, a municipality was “not liable for the torts of its officers and employees occurring in the exercise of a governmental function .... ” 79 Idaho at 505, 321 P.2d at 593. It was then held that the maintenance of a fire department by a municipal corporation is a governmental function, and that the city was therefore immune from suit for the negligence of the firemen.

Ford illustrates the type of result that the legislature most likely intended to change when it waived governmental tort immunity for governmental as well as proprietary functions. Although the firemen in Ford were working within the scope of a traditional governmental function, i.e., a publicly maintained fire department, they were not engaged in the planning and operational decision-making necessary to the fulfillment of the primary function of the fire department, i.e., fighting fires and providing emergency assistance. Planning and operational decision-making, as it relates to a fire department’s primary function of fighting fires, is an example of the sort of decision-making we believe was intended by the legislature to remain protected under the cloak of governmental immunity through the enactment of the discretionary function exception. To hold otherwise would be to open the door to such governmental liability as that evidenced in Downs v. United States, 522 F.2d 990 (6th Cir. 1975).

In Downs, the federal government was found to be potentially liable under the federal tort claims act for murders perpetrated by a skyjacker when FBI agents shot out one of the aircraft’s engines to prevent a takeoff. The court there held that the FBI agents’ actions did not constitute a discretionary function because the “agents were not involved in formulating governmental policy.” 522 F.2d at 997. This Court clearly disapproved of Downs in Dunbar, 100 Idaho at 535-36, 545-46, 602 P.2d at 33-34, 43-44, and certainly our legislature did not intend such a narrow interpretation to be placed upon the term “discretionary function.” Public officers engaged in preserving the peace and safety of a community are called upon to exercise their judgment in a manner which often means life or death to themselves and others. Decisions in such areas as law enforcement and firefighting must often be made in an instant. Surely, by enacting the discretionary function exception, the legislature recognized that discretion in making such judgments is entitled to deference at least' equal to that given to legislators and judges who have the luxury of time, debate and a comparatively safe and comfortable place to ponder and decide the ways in which governmental business should be conducted.

We therefore hold that the discretionary function exception in I.C. § 6-904(1) shields governmental units from tort liability for the consequences arising from the planning and operational decision-making necessary to the performance of traditional governmental functions. Since the action in the present case is based upon a claim of negligence with regard to the operational decisions of city firemen in fighting a fire, a traditional governmental function, the action is barred under I.C. § 6-904(1). The judgment is reversed. Costs to appellants.

SHEPARD, J., and McFADDEN, J. (Ret.), concur.

1 . Appellants raise several issues on appeal. However, since we reverse on the basis that the Boise Fire Department was not subject to liability under the Tort Claims Act, we do not reach the other issues presented.

2 . The holding in Smith did not in fact effect such a significant change in the law as the language might indicate with regard to political subdivisions and cities. In the prior case of Ford v. City of Caldwell, 79 Idaho 499, 505, 321 P.2d 589, 593, (1958), the following was stated:

“It is well established in this jurisdiction that a municipality in the absence of a statute imposing liability is not liable for the torts of its officers and employees occurring in the exercise of a governmental function; it is liable only when acting in a proprietary capacity." (Emphasis added.)

See generally, Note, Sovereign Immunity in Idaho, 7 Idaho L.Rev. 267 (1970).

3 . Smith clearly held that the maintenance of highways is a proprietary function, as opposed to a governmental function of the state. The signing problems in Gavica and McClure likewise concerned proprietary functions of the state. Consequently, as discussed below, the activities involved in Gavica and McClure were clearly beyond the scope of the discretionary function exception, and no extended discussion of that exception was necessary in those cases.

4 .“6 — 904. EXCEPTIONS TO GOVERNMENTAL LIABILITY. — A governmental entity and its employees while acting within the course and scope of their employment and without malice or criminal intent shall not be liable for any claim which:

“1. Arises out of any act or omission of an employee of the governmental entity exercising ordinary care, in reliance upon or the execution or performance of a statutory or regulatory function, whether or not the statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.

“2. Arises out of the assessment or collection of any tax or fee, or the detention of any goods or merchandise by any law enforcement officer.

“3. Arises out of the imposition or establishment of a quarantine by a governmental entity, whether such quarantine relates to persons or property.

“4. Arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

“5. Arises out of the activities of the Idaho national guard when engaged in training or duty under sections 316, 502, 503, 504, 505 or 709, title 32, United States Code, and the claim arising therefrom is payable under the provisions of the National Guard Claims Act (section 715, title 32, United States Code) except that a claimant not compensated in whole or in part under the National Guard Claims Act may assert his claim under this act.

“6. Arises out of the activities of the Idaho national guard when engaged in combatant activities during a time of war.

“7. Arises out of or results from riots, unlawful assemblies, public demonstrations, mob violence or civil disturbances.

“8. Arises out of a plan or design for construction or improvement to the highways, roads, streets, bridges, or other public property where such plan or design is prepared in substantial conformance with engineering or design standards in effect at the time of preparation of the plan or design, approved in advance of the construction or approved by the legislative body of the governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval.”