SHEPARD, Justice.
This is an appeal from an order dismissing a complaint filed by plaintiff-appellant Dana Ralphs against defendant-respondent city of Spirit Lake and defendant Dean Newton. We affirm.
Upon appeal in the circumstances presented here, the allegations of and the fair inferences arising from plaintiff’s complaint must be taken as established and viewed most favorably from the standpoint of the plaintiff. Idaho Comm’n on Human Rights v. Campbell, 95 Idaho 215, 506 P.2d 112 (1973).
The complaint and amended complaint of Ralphs allege in substance: Ralphs was in the city of Spirit Lake on or about the 25th or 26th day of May 1974, and was criminally attacked, assaulted, battered and beaten by third persons; at that time Dean Newton was the Chief of Police of Spirit Lake and was physically present at the scene when Ralphs was attacked. Newton allegedly failed to protect plaintiff from the attack and from additional attack after Ralphs was rendered helpless; at that time' Newton was acting within the scope of his employment as Chief of Police of Spirit Lake; Newton was negligent in failing to protect Ralphs from further injury from the at[227]*227tackers after Ralphs was rendered helpless; as a proximate result of the negligence of Newton, Ralphs suffered injuries. He suffered additional injuries or damage from the attack which did not become known to Ralphs until August 10, 1975. Newton was incompetent and dangerous and the city of Spirit Lake knew or in the exercise of reasonable care should have known of these facts regarding Newton and was negligent in hiring Newton or in failing to discharge Newton. Such negligence of the city of Spirit Lake was the proximate cause of plaintiff’s injuries.
Ralphs further alleged that he had filed a notice of claim on the fifth day of November 1975 and that such claim had been denied by the city of Spirit Lake. Plaintiff’s original complaint was filed February 2, 1976. Upon motion therefore the complaint as against the City of Spirit Lake was dismissed with prejudice. From that order this appeal is taken. As to the complaint against Newton, that action was dismissed without prejudice and with leave to refile. The record does not demonstrate that such complaint against Newton was refiled, no assignment of error nor argument is directed toward that portion of the district court’s order of dismissal and we do not deem such to be before the Court on this appeal.
Although several grounds for dismissal of the complaint were raised below, only one need be discussed herein since it is dispositive of the action. We hold that Ralphs failed to file a notice of claim with the city within the 120-day period of time mandated by the Idaho Tort Claims Act. That statute, I.C. § 6-906, provides:
“All claims against a political subdivision arising under the provisions of this act and all claims against an employee of a political subdivision for any act or any omission of the employee within the course or scope of his employment shall be presented to and filed with the clerk or secretary of the political subdivision within one hundred twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later.” (Emphasis supplied.)
It is the principal argument of Ralphs that some of the injuries and damages resulting from the attack and assault and battery were not discovered by him until long after the expiration of the 120-day mandated time period, to wit, on or about the tenth day of August 1975. Ralphs therefore argues that a question of fact exists as to whether the alleged additional injuries and damages reasonably should have been discovered prior to the period of 120 days preceding August 10, 1975. We disagree. Ralphs argues that the explicit reference in I.C. § 6-906 relating to reasonable discovery thereby extends the discovery rule of professional malpractice cases into the area of governmental torts. This we need not decide. Where there is a coincidence of a negligent act and the occurrence of damages a “wrongful act” has been committed for which a legal remedy in damages is generally available. Therefore the applicable statutes begin to run from the occurrence of the wrongful act albeit the full extent of the damages may be unknown or unpredictable at that initial time. Little v. Emmett Irr. Dist., 45 Idaho 485, 495, 263 P. 40 (1928); Beech v. United States, 345 F.2d 872, 874 (5th Cir. 1965); Tinkoff v. United States, 211 F.2d 890 (7th Cir. 1954); Sonbergh v. MacQuarrie, 112 Cal.App.2d 771, 247 P.2d 133 (1952). See also, Independent School Dist. of Boise City v. Callister, 97 Idaho 59, 539 P.2d 987 (1975).
Here, the complaint shows on its face that any legal remedy he may have had existed immediately following the attack on that day in May of 1974 when Newton’s alleged negligence allowed Ralphs to be attacked and battered and thus initially injured. The 120-day period of time mandated for notice to the governmental entity began immediately thereon.
A clear distinction exists between the “discovery rule” in professional malpractice cases as contrasted with the instant action. In those cases the “discovery” in question was based on the plaintiff’s lack of knowledge of the defendant’s actions or omissions [228]*228which established tort liability and that he thereby had a cause of action. The rationale for such discovery rule in professional malpractice cases is that the client or patient generally lacks the expertise to evaluate or the opportunity to see or understand the defendant’s performance of health care. Hence, it was determined to be grossly unfair to deprive a patient or client of the opportunity to recover for such negligence prior to the time that he knew of such negligence. See, Johnson v. Stoddard, 96 Idaho 230, 526 P.2d 835 (1974); Cook v. Soltman, 96 Idaho 187, 525 P.2d 969, 972 (1974); Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1970); Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964).
Here, it is clear that on the date of the incident plaintiff Ralphs was aware that he had been attacked, assaulted and battered, that the Chief of Police was allegedly negligent in permitting the attack and that the city of Spirit Lake was negligent in employing a man of Newton’s alleged characteristics and in failing to discharge him. The fact that plaintiff Ralphs became at a later time aware of additional injuries or damages is not sufficient to excuse his earlier knowledge of the alleged wrongful act of the physical assault upon him caused by the then existing alleged negligence of Newton and the city of Spirit Lake.
The order of the district court is affirmed. Costs to respondent.
McFADDEN, C. J., and DONALDSON, JJ., concur. Free access — add to your briefcase to read the full text and ask questions with AI
SHEPARD, Justice.
This is an appeal from an order dismissing a complaint filed by plaintiff-appellant Dana Ralphs against defendant-respondent city of Spirit Lake and defendant Dean Newton. We affirm.
Upon appeal in the circumstances presented here, the allegations of and the fair inferences arising from plaintiff’s complaint must be taken as established and viewed most favorably from the standpoint of the plaintiff. Idaho Comm’n on Human Rights v. Campbell, 95 Idaho 215, 506 P.2d 112 (1973).
The complaint and amended complaint of Ralphs allege in substance: Ralphs was in the city of Spirit Lake on or about the 25th or 26th day of May 1974, and was criminally attacked, assaulted, battered and beaten by third persons; at that time Dean Newton was the Chief of Police of Spirit Lake and was physically present at the scene when Ralphs was attacked. Newton allegedly failed to protect plaintiff from the attack and from additional attack after Ralphs was rendered helpless; at that time' Newton was acting within the scope of his employment as Chief of Police of Spirit Lake; Newton was negligent in failing to protect Ralphs from further injury from the at[227]*227tackers after Ralphs was rendered helpless; as a proximate result of the negligence of Newton, Ralphs suffered injuries. He suffered additional injuries or damage from the attack which did not become known to Ralphs until August 10, 1975. Newton was incompetent and dangerous and the city of Spirit Lake knew or in the exercise of reasonable care should have known of these facts regarding Newton and was negligent in hiring Newton or in failing to discharge Newton. Such negligence of the city of Spirit Lake was the proximate cause of plaintiff’s injuries.
Ralphs further alleged that he had filed a notice of claim on the fifth day of November 1975 and that such claim had been denied by the city of Spirit Lake. Plaintiff’s original complaint was filed February 2, 1976. Upon motion therefore the complaint as against the City of Spirit Lake was dismissed with prejudice. From that order this appeal is taken. As to the complaint against Newton, that action was dismissed without prejudice and with leave to refile. The record does not demonstrate that such complaint against Newton was refiled, no assignment of error nor argument is directed toward that portion of the district court’s order of dismissal and we do not deem such to be before the Court on this appeal.
Although several grounds for dismissal of the complaint were raised below, only one need be discussed herein since it is dispositive of the action. We hold that Ralphs failed to file a notice of claim with the city within the 120-day period of time mandated by the Idaho Tort Claims Act. That statute, I.C. § 6-906, provides:
“All claims against a political subdivision arising under the provisions of this act and all claims against an employee of a political subdivision for any act or any omission of the employee within the course or scope of his employment shall be presented to and filed with the clerk or secretary of the political subdivision within one hundred twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later.” (Emphasis supplied.)
It is the principal argument of Ralphs that some of the injuries and damages resulting from the attack and assault and battery were not discovered by him until long after the expiration of the 120-day mandated time period, to wit, on or about the tenth day of August 1975. Ralphs therefore argues that a question of fact exists as to whether the alleged additional injuries and damages reasonably should have been discovered prior to the period of 120 days preceding August 10, 1975. We disagree. Ralphs argues that the explicit reference in I.C. § 6-906 relating to reasonable discovery thereby extends the discovery rule of professional malpractice cases into the area of governmental torts. This we need not decide. Where there is a coincidence of a negligent act and the occurrence of damages a “wrongful act” has been committed for which a legal remedy in damages is generally available. Therefore the applicable statutes begin to run from the occurrence of the wrongful act albeit the full extent of the damages may be unknown or unpredictable at that initial time. Little v. Emmett Irr. Dist., 45 Idaho 485, 495, 263 P. 40 (1928); Beech v. United States, 345 F.2d 872, 874 (5th Cir. 1965); Tinkoff v. United States, 211 F.2d 890 (7th Cir. 1954); Sonbergh v. MacQuarrie, 112 Cal.App.2d 771, 247 P.2d 133 (1952). See also, Independent School Dist. of Boise City v. Callister, 97 Idaho 59, 539 P.2d 987 (1975).
Here, the complaint shows on its face that any legal remedy he may have had existed immediately following the attack on that day in May of 1974 when Newton’s alleged negligence allowed Ralphs to be attacked and battered and thus initially injured. The 120-day period of time mandated for notice to the governmental entity began immediately thereon.
A clear distinction exists between the “discovery rule” in professional malpractice cases as contrasted with the instant action. In those cases the “discovery” in question was based on the plaintiff’s lack of knowledge of the defendant’s actions or omissions [228]*228which established tort liability and that he thereby had a cause of action. The rationale for such discovery rule in professional malpractice cases is that the client or patient generally lacks the expertise to evaluate or the opportunity to see or understand the defendant’s performance of health care. Hence, it was determined to be grossly unfair to deprive a patient or client of the opportunity to recover for such negligence prior to the time that he knew of such negligence. See, Johnson v. Stoddard, 96 Idaho 230, 526 P.2d 835 (1974); Cook v. Soltman, 96 Idaho 187, 525 P.2d 969, 972 (1974); Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1970); Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964).
Here, it is clear that on the date of the incident plaintiff Ralphs was aware that he had been attacked, assaulted and battered, that the Chief of Police was allegedly negligent in permitting the attack and that the city of Spirit Lake was negligent in employing a man of Newton’s alleged characteristics and in failing to discharge him. The fact that plaintiff Ralphs became at a later time aware of additional injuries or damages is not sufficient to excuse his earlier knowledge of the alleged wrongful act of the physical assault upon him caused by the then existing alleged negligence of Newton and the city of Spirit Lake.
The order of the district court is affirmed. Costs to respondent.
McFADDEN, C. J., and DONALDSON, JJ., concur.
BAKES, Justice,
dissenting:
I cannot agree with the decision of the majority that the plaintiff’s claim is barred by the 120 day notice provision of the Idaho Tort Claims Act, I.C. § 6 — 906. In the first place, the trial judge never based his dismissal as to the city upon that -section. Rather, the trial court held that “. the liability of the city is barred by the provisions of I.C. § 6-904, subsections (4) and (7).” 1
I think it is unfortunate that the majority has disposed of this case on a legal issue which was not the basis for the district court’s ruling. The Court should have addressed the issues that were presented to it, i. e., was this cause of action barred by I.C. § 6-904(4) and -(7).
However, the Court having chosen to base its decision upon the 120 day time period provided for in I.C. § 6-906, I do not believe that it can be said as a matter of law that the plaintiff Dana Ralphs can prove no set of facts in support of his claim which would entitle him to relief, and therefore a Rule 12(b)(6) dismissal is improper.
First, the complaint in this case alleges a claim against the chief of police and the city of Spirit Lake grounded in negligence. As to these defendants, there is no issue of a battery, or any intentional tort. The defendant police chief allegedly breached his duty to this plaintiff by failing to stop the criminal assault on the plaintiff on the 25th or 26th of May, 1974. The claim against the city was based upon negligence, both vicarious and independent. The “additional injuries” which were the basis of plaintiff’s complaint were not discovered until August 10, 1975.
While the victim of an intentional tort has a right of action for nominal damages from the time of the wrongful act, this is not the case in negligence actions. Professor Prosser states that a necessary element to a cause of action for negligence is
“[ajctual loss or damage resulting to the interests of another. Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damage was an essential part of plaintiff’s case. Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no [229]*229actual loss has occurred.” Prosser, Law of Torts, 4th Ed. (1971), p. 143.
He then observes:
“It follows that the statute of limitations does not begin to run against a negligence action until some damage has occurred.” Id., at 144.
See also the discussion of the actual damage requirement in United States v. Reid, 251 F.2d 691 (5th Cir. 1958), cited by the majority and Justice Bistline. It is possible that this plaintiff did not sustain any injuries as would support an action in negligence on the date of the assault and battery, but that the injuries discovered on August 10, 1975, were the first indications that he had suffered actionable damages from the incident. If that were the case, I believe that he did not have a cause of action against the city or the chief of police until that date.
Even if the plaintiff had suffered some identifiable injuries on the date of the incident, I believe that it is possible that the 120 day notice of claim period for his cause of action against the city may not have commenced running on that date. The complaint does not reveal whether the plaintiff was aware that the chief of police was standing by and failing to act while he was being assaulted, and it is possible that he did not discover that the chief of police had been present until sometime later. If that were the case, he could not have known that he had a cause of action for the negligence of the chief of police or the city until that date. The language in I.C. § 6-906 which provides that the notice of claim must be filed “. . . within one hundred twenty (120) days from the date the claim arose or reasonably should have been discovered, whichever is later” applies to such a situation, and at the least requires a factual resolution of when the claim reasonably could have been discovered. In Independent School Dist. of Boise City v. Callister, 97 Idaho 59, 539 P.2d 987 (1975), this Court held that while the notice period was not tolled for infancy or incapacity, those conditions could be factors in the determination of when the claim reasonably could have been discovered, and that this language “requires a resolution of fact for the court below.” 539 P.2d at 991. I would hold that the possibility of the plaintiff’s lack of knowledge that the sheriff had been present also requires a resolution of fact for the court below.
I agree with Justice Bistline that I.C. § 6-906 and § 6-907, which set forth when the 120 day notice of claim period begins to run and what information must be included in the notice, appear to establish a different kind of standard than that governing when the statute of limitations begins to run for personal injury claims against private individuals. Cf. I.C. § 5-219(4). The legislature has specifically rejected the discovery rule for the running of the statute of limitations in most personal injury actions under I.C. § 5-219(4), but it has clearly adopted a discovery rule in I.C. § 6-906 for claims against a political subdivision. Also, since this Court held in Callister that the 120 day notice of claim period was not a statute of limitations, an opinion in which I did not join, it should not feel constrained to apply statute of limitations rules regarding when the notice of claim period begins to run.
Finally, I believe that this issue should not be disposed of under a Rule 12(b)(6) motion to dismiss, but should be raised in the answer as required under Rule 8 for the reasons stated in my specially concurring opinion in Dumas v. Ropp, 98 Idaho -, 558 P.2d 632 (1977), and my dissenting opinion in Myers v. City of Pocatello, 98 Idaho -, 559 P.2d 1136 (1977). See also Singleton v. Foster, 98 Idaho -, 559 P.2d 765 (1977); Duff v. Draper, 96 Idaho 299, 527 P.2d 1257 (1974).