Harris v. State, Dept. of Health , 123 Idaho 295 ( 1992 )

McDEVITT, Justice.

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 second degree burglary, all perpetrated against Harris, an elderly widow.

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, Ba-rajas’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(l); (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).

A strong line of cases weaves a tight web of authority that strictly defines and preserves the standards of summary judgment. The reviewing court must liberally construe disputed facts in favor of the nonmoving party and make all reasonable inferences in favor of the party resisting the motion. McCoy v. Lyons, 120 Idaho 765, 769, 820 P.2d 360, 364 (1991); G & M Farms v. Funk Irrigation Co., 119 Idaho 514, 517, 808 P.2d 851, 854 (1991); Kline v. Clinton, 103 Idaho 116, 120, 645 P.2d 350, 354 (1982); Petricevich v. Salmon River Canal Co., 92 Idaho 865, 868, 452 P.2d 362, 365 (1969). If the record contains any conflicting inferences upon which reasonable minds might reach different conclusions, summary judgment must be denied. McCoy, 120 Idaho at 769, 820 P.2d at 364; Kline, 103 Idaho at 120, 645 P.2d at 354. Nevertheless, when a party moves for summary judgment, the opposing party’s case must not rest on mere speculation because a mere scintilla of evidence is not enough to create a genuine issue of fact. McCoy, 120 Idaho at 769, 820 P.2d at 364; G & M Farms, 119 Idaho at 517, 808 P.2d at 854; Kline, 103 Idaho at 120, 645 P.2d at 354. See generally, Loomis v. City of Hailey, 119 Idaho 434, 807 P.2d 1272 (1991); Doe v. Durtschi, 110 Idaho 466, 469, 716 P.2d 1238, 1241 (1986); Anderson v. City of Pocatello, 112 Idaho 176, 731 P.2d 171 (1986); Anderson v. Ethington,

103 Idaho 658, 660, 651 P.2d 923, 925 (1982).

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).

I.

RECKLESS, WILLFUL AND WANTON CONDUCT UNDER I.C. § 6-904A(2) AND § 6-904C(2)¹

The district court correctly found that no issue of material fact existed as to whether the Department was reckless, willful, and wanton in its supervision of its legal charge Barajas, and consequently that I.C. § 6-904A(2) shielded the Department from liability. The applicable test for “willful, and wanton conduct” can be derived from Jacobsen v. City of Rathdrum, 115 Idaho 266, 270-71, 766 P.2d 736, 740-41 (1988), which construes Idaho’s Recreational Use Statute. The Jacobsen court construed the Recreational Use Statute as converting those who use property for recreational purposes to the status of trespassers for purposes of landowner liability. The duty of a landowner to a trespasser is “to refrain from willful or wanton acts which might cause injuries.” Huyck v. Hecla Mining Co., 101 Idaho 299, 301, 612 P.2d 142, 144 (1980). The Jacobsen analysis of “willful and wanton” conduct is instructive in this case because the Court embraces a definition of “willful and wanton” that is much the same as the definition found in I.C. § 6-904C for “reckless, willful and wanton” conduct. Jacobsen defines “willful and wanton” conduct as conduct which is present if the person “intentionally does or fails to do an act, knowing or having a reason to know facts which would lead a reasonable man to realize that his conduct not only creates unreasonable risk of harm to another, but involves a high degree of probability that such harm would result.” Jacobsen, 115 Idaho at 270, 766 P.2d at 740. According to Jacobsen, the key element in this definition is knowledge.² Id., 115 Idaho at 272, 766 P.2d at 742. The type of knowledge envisioned by the Jacobsen Court implies an element of foreseeability in the phrase “having reason to know.” This 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, i.e. violence, particularly of a sexual nature, toward members of the public other than Barajas’s peers 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. Idaho Code § 6-904A(2) was intended to render the state immune from the unpredictable acts of third persons, including parolees, persons receiving mental counseling or care, or persons under the state’s custody, supervision, or care.

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 Barajas. Under the court order and the Youth Rehabilitation Act the Department had alternative placement options.³ It could place Barajas out of the home or treat Barajas out of the home.⁴ The caseworker, Mr. Hinton, chose to do the latter. Moreover, “out of home” is not equivalent to secure detention. It could be foster care, a group youth home, or Job Corps, none of which would have prevented Barajas’s opportunity for crime. However, the YRA provisions would not have authorized long-term secure detention because no felony had been committed. In addition, the primary purpose of the YRA is rehabilitation in the least restrictive setting necessary.⁵ There was no finding by the magistrate or Barajas’s evaluators that Barajas posed a danger to the community requiring isolation. In short, the Department’s conduct did not rise to the level of creating an unreasonable risk of harm to the public, and therefore was not reckless, willful, and wanton.

II.

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.

III.

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.

1 . The authority by which an aggrieved plaintiff may ingress governmental immunity is I.C. § 6-903(a) providing that:

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____

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: A governmental entity and its employees while acting within the course and scope of their employment and without malice or criminal intent and without reckless, willful and wanton conduct as defined in section 6-904C, Idaho Code, shall not be liable for any claim which ... [a]rises out of injury to a person or property by a person under the supervision, custody or care of a governmental entity____

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 tin 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.

2 . I.C. 6-904C(2) defines "reckless, willful, and wanton” as conduct which:

[I]s present only when a person intentionally and knowingly does or fails to do an act creating unreasonable risk of harm to another, and which involves a high degree of probability that such harm will result.

3 . When a child has been committed to the board, the board is to “examine and study him and investigate all the pertinent circumstances of his life and the antecedents of the acts for which he was committed”. I.C. § 16-1822. In addition, “[t]he board shall make periodic reexamination of all persons committed to it for the purpose of determining whether existing orders and dispositions in individual cases should be modified or continued in force____” I.C. § 16-1823. Moreover, the:

Case management staff shall develop treatment programs for each youth offender in the community, provide appropriate services and monitor individual progress. Progress reports shall be filed at least every three (3) months with the committing court for each youth offender committed to the department for out-of-home placement____

I.C. § 16-1834. The record reflects that the Department satisfied these mandates.

4 . It is not mandatory that the department keep the child physically confined or even constantly monitored. Rather:

When a person has been committed to the board it may: (a) Permit him his liberty under supervision and upon such conditions as it believes conducive to satisfactory conduct; (b) Order his confinement under such conditions as it believes best designed for the interest of the individual and protection of the public; ... (e) Discharge him from control when it is satisfied that such discharge is consistent with the protection of the public____

I.C. § 16-1833 (1963).

5 .I.C. § 16-1801 provides that:

[The underlying policy of this act is] to divert the child into a program of treatment, counseling, rehabilitation and restitution prior to court action where the interests of the child and the community would best be served by such diversion; and to consider the needs and best interests of the child as well as the need for protection of the community and to achieve the foregoing purposes in the least restrictive setting necessary, with a preference at all times for the family home and the integration of parental responsibility for the child into the treatment and counseling program.

I.C. § 16-1801.