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Hunter v. State9/13/2002
f injury to a person . . . under supervision, custody, or care of a governmental entity. I.C. § 9-604C (emphasis added).
The district court ruled at summary judgment that the Hunters were not required to prove both malice or criminal intent and reckless, willful and wanton conduct.
The State argues that the word 'and' in the statute requires a plaintiff to prove both factors - malice or criminal intent and reckless conduct. However, the statue requires that the employee act without malice or criminal intent and without reckless, willful and wanton conduct in order to avoid liability - it does not state a plaintiff must show both factors in order to prove liability. Both elements must be absent to avoid liability. It follows, therefore, if it only one element is missing, the State may be liable. In order to avoid liability, the State employee must be acting without malice or criminal intent and without reckless, willful, and wanton conduct.
A plaintiff, therefore, may prove liability by showing either that the State acted with malice or criminal intent or that the State's action was reckless, willful and wanton. The district court ruled correctly on this issue.
IV.
THE STATE IS NOT IMMUNE FROM LIABILITY IN THIS CASE BECAUSE OF DISCRETIONARY FUNCTION IMMUNITY
The State argues that the Hunters' theory of negligence changed during the course of the trial in that they offered evidence that the State lacked a standard procedure for informing employers about the nature of a probationer's conviction. The State maintains that a decision to implement such a procedure is discretionary on the State's part and that the State is entitled to discretionary immunity.
The Hunters offered evidence that the State was reckless in several respects - by not obtaining a sexual offender evaluation and by not adequately informing Hood's employer of the nature of his conviction. Spevak testified that she intended to notify Mr. Wash of some aspects of Hood's probation. Therefore, the existence of a policy was not at issue - it was whether notification was recklessly carried out. This was an issue raised in the State's motion judgment notwithstanding the verdict. I.C. § 6-904 provides in part:
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.
"The test for determining the applicability of discretionary function immunity looks at the nature of the conduct." Brooks v. Logan, 127 Idaho 484, 488, 903 P.2d 73, 77 (1995). Routine matters not requiring broad policy factors will likely be 'operational,' whereas decisions involving a consideration of the financial, political, economic, and social effects of a particular plan are likely 'discretionary' and will be accorded immunity." Id.
In Brooks the plaintiffs argued that a school district could be liable in wrongful death for failing to institute a suicide prevention program. Id. This Court held that "the decision to implement a suicide prevention program" was a discretionary function entitled to immunity and concluded that the decision on whether or not to implement such a plan
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