McClure v. Nampa Highway District , 102 Idaho 197 ( 1981 )

BISTLINE, Justice.

In August 1977 at 12:30 a. m., when McClure’s motorcycle went off the road at a curve on Robinson Road in Canyon County, McClure struck a fence and was severely injured. The road was built and maintained by the defendant-respondent Nampa Highway District. There were no warning signs indicating an impending curve. The posted speed limit for that section of Robinson Road was 50 mph.

After filing an answer to McClure’s complaint, the highway district moved for summary judgment of dismissal and McClure moved for summary judgment decreeing that the highway district was negligent per se in having failed to post any warning sign on the curve. At the ensuing hearing the court granted the highway district’s motion, denied McClure’s motion,¹ and entered judgment of dismissal with prejudice. The court held that the highway district was immune from suit on the basis of the “discretionary function or duty” exception in the Idaho Tort Claims Act, I.C. § 6-904, which provides:

“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 perforin a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” (Emphasis added.)

Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21 (1979), and Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980), had not then been decided. Dunbar held that in determining when discretionary immunity would attach to an act of the state, “wherein tort liability would attach to a private person, a governmental entity engaging in the same conduct will be liable.” 100 Idaho at 546, 602 P.2d at 44. Subsequently, in Gavica, where the claim against the state was premised on its failure to place warning signs on a highway where industrial haze and fog regularly reduced visibility and created a hazard, we held:

“If a private person or business negligently allowed a dangerous condition to exist in a stairway or elevator and thereby caused injury, we would find the breach of a duty. No less so should we find a breach of a duty on the part of the state or a county which negligently maintained a dangerous condition on a stairway or elevator of a statehouse, courthouse, or other government operated building. We see no distinction between those situations and the negligent maintenance of a known dangerous condition of a highway, owned, operated and maintained by the State and upon which the public is invited to travel. Thus, unlike Dunbar, the State’s action in the case at bar has a parallel in the private sector, and the State, under the Idaho Tort Claims Act, bears the same duty as does a private landholder. Hence, we hold that the State’s alleged negligence is not immunized by the ‘discretionary function or duty’ exception to governmental liability found in I.C. § 6-904(1).” 101 Idaho at 65-66, 608 P.2d at 868-69.

Gavica is dispositive of the issue before us, and we accordingly reverse and remand for further proceedings.

Costs to appellant.

McFADDEN and DONALDSON, JJ., concur.

BAKES, Chief Justice,

concurring specially:

The trial court’s decision dismissing the plaintiff’s complaint was based on the discretionary function or duty exception in the Idaho Tort Claims Act, I.C. § 6-904(1). Our subsequent decision in the case of Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980), necessitates the reversal of the trial court’s summary judgment in favor of the state based upon the discretionary function or duty exception. In my view the Court’s opinion today should not be read as suggesting either that the claim is meritorious or that it may not subsequently be subject to dismissal on another ground.

1 . McClure on his cross-appeal contends that the district court erred in denying his motion for summary judgment. The district court may have denied McClure’s motion on the basis of the highway district’s immunity, or perhaps on the basis that it was not a proper motion. In any event, the order denying the motion is not appealable. See Twin Falls County v. Knievel, 98 Idaho 321, 563 P.2d 45 (1977). McClure’s motion does not seek a summary judgment of the defendant’s liability, but merely asks the trial court for an in limine order — better called a ruling — that failure to post the curve was negligence per se. That would be but one of the elements going to defendant’s liability.