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Hunter v. State9/13/2002
should be left to the school districts.
In this case the State argues that the Hunters were allowed to present evidence that the State did not have a policy to send written notification to probationers' employers. The decision to have such a policy, the State argues, is protected by discretionary immunity. However, it is clear that the basis for the Hunters' questioning of Spevak on whether she gave written notice to Mr. Wash does not concern any decisions on whether to have a policy of notifying employers. Spevak consistently testified that she informed Mr. Wash of some aspects of Hood's probation. It is clear that Spevak intended to give some sort of notification to Mr. Wash. The point of the Hunters' evidence was that Spevak could easily have informed Mr. Wash of more details of Hood's conviction. The decisions on which way to notify Mr. Wash and on how much information to give Mr. Wash do not involve consideration of "financial, political, economic, and social effects of a particular plan." The Hunters' evidence goes to the way in which Spevak notified Mr. Wash, which the jury concluded was reckless, willful and wanton. This is not an issue of whether the State should have implemented a policy that was nonexistent at the time. The issue was the way notification took place. The district court decision on this issue is affirmed.
V.
THERE IS NOT SUBSTANTIAL AND COMPETENT EVIDENCE TO SUPPORT THE JURY VERDICT THAT THE STATE WAS RECKLESS, WILLFUL AND WANTON IN ITS SUPERVISION OF COREY HOOD
In its motion for Judgment NOV the State argues that there is not enough evidence in the record to justify the conclusion that it acted in a reckless, willful or wanton manner.
The question is whether the verdict is supported by substantial evidence. The State contends that the evidence in the record does not support the jury's verdict, and that the State's conduct in this case compares favorably to the conduct in the Harris v. State Dep't of Health and Welfare, 123 Idaho 295, 847 P.2d 1156 (1992), in which this Court ruled that as a matter of law that the State was not reckless, willful and wanton in its conduct.
The phrase "reckless, willful and wanton" is defined in Idaho Code ยง 6-904C as present only when a person intentionally and knowingly does nor fails to do an act creating unreasonable risk of harm to another and which involves a high degree or probability that such harm will result.
According to Harris, the key element of this definition is knowledge. Id. at 299, 1160. This element of knowledge implies an element of foreseeability. Id.
The concept of foreseeability, as applied to this case, contemplates more than the mere possibility of aggressive tendencies harbored by the state's ward. The concept of foreseeability is much more narrowly drawn in this circumstance. The specific harm . . . must be manifest or ostensible, and highly likely to occur. To hold otherwise would impose a debilitating burden on the state, requiring it to infer the highest social risk from a ward's minimal antisocial behavior, against which it would have the unequivocal duty to protect the public. Id.
However, " he question of whether a risk of harm is foreseeable is generally a question for the trier of fact." Caldwell v. Idaho Youth Ranch, 132 Idaho 120, 125, 968 P.2d 215, 220 (1998).
In the Harris case the state's ward was a juvenile under the care of the Department of Welfare. The juvenile had records of petit theft and misdemeanor battery. Evaluations done on the juvenile indicated that he might pose an above average sexual threat to his female peers. Harris, 123 Idaho at 297, 847 P.2d at 1158 (emphasis added).
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