Ransom v. City of Garden City

743 P.2d 70, 113 Idaho 202, 1987 Ida. LEXIS 340

• Court: Idaho Supreme Court
• Decided: July 24, 1987
• Docket: 16430
• Status: Published

Opinions

DONALDSON, Justice.

The Ransoms appeal a grant of summary judgment in favor of Garden City. The trial court held their action barred by provisions of the Idaho Tort Claims Act.

The pertinent facts are as follows: In the early morning hours of November 9, 1984, a Garden City police officer stopped a vehicle owned and operated by John Bergan. In the vehicle was a passenger, Jim Inama. Bergan was arrested for driving under the influence. Before leaving for the station, Bergan expressed apprehension that his vehicle would be impounded. The officer had concluded that Inama, too, was under the influence, and declared that Inama would not be permitted to operate the motor vehicle. Inama twice attempted to contact friends to retrieve both him and the vehicle, but failed. The officer then removed the vehicle from the roadway to a nearby parking lot. At the request of Bergan, the officer gave the keys to Inama, instructing him not to drive the vehicle, but to pursue calling friends. The police officer departed with Bergan in custody. Later, Inama drove the vehicle in the wrong direction down a one-way boulevard, colliding head-on with the Ransoms. Ransoms brought suit against Bergan, Inama and Garden City; and subsequently, resolved their claims against Inama and Bergan. The action was carried forward against Garden City.

In their complaint, the Ransoms allege that the Garden City police officer was negligent in entrusting the Bergan vehicle keys to Inama. On Garden City’s motion for summary judgment, the court, however, ruled that the city was immune from liability because of the “discretionary function” exception to government tort claim liability as set forth in I.C. § 6-904(1). In reaching its decision that the conduct was entitled to immunity, the trial court relied on I.C. § 49-692 which the court read as allowing an officer the option of either impounding the motor vehicle or allowing the owner to arrange for its custody, where feasible.¹ The trial court reasoned that the choice made by the officer between the two alternatives was a “discretionary function” within the meaning of I.C. § 6-904(1).

The Tort Claims Act subjects the state and its political subdivisions to liability for its negligent or otherwise wrongful acts or omissions. See I.C. § 6-903. However, the Act also provides exceptions to liability in I.C. § 6-904. Garden City relies on the so-called “discretionary function” exception to liability which is contained in the second clause of I.C. § 6-904(1):

“6-904. 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 perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” (Emphasis added.)

The discretionary function exception applies to government decisions entailing planning or policy formation. Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986). In suits brought under the Tort Claims Act, the “planning/operational” test is used to demarcate decisions involving the formation of basic policy, entitled to immunity, from decisions involving the execution or implementation of that policy, not entitled to immunity. Id., at 232, 723 P.2d at 776.

We emphasized in Sterling that the “planning/operational” test does not necessarily turn upon the status or rank of the actor. Id., at 230, 723 P.2d at 774. See also, Jones v. City of St. Maries, 111 Idaho 733, 736, 727 P.2d 1161, 1164 (1986). Of course, greater rank or authority will most likely coincide with greater responsibility for planning or policy formation decisions; but even the acts of those with the highest rank may result in governmental liability if they are operational. Likewise, those with the least authority may, on occasion, make planning decisions which fall within the ambit of the discretionary function exception.

The court below attached great significance to the fact that the police officer had an opportunity to choose between two alternatives in determining what should be done with the Bergan vehicle. From this, the court concluded that the officer, in choosing to give the keys of the vehicle to the intoxicated passenger, had exercised discretion and, thus, that Garden City was immune from suit under the discretionary function exception. For the reasons stated below, we reverse.

Admittedly, the officer possessed authority “to remove or cause to be removed to the nearest garage or other place of safety” the Bergan vehicle. See I.C. § 49-692. Clearly then, the officer could have disposed of the vehicle in any number of ways. However, the discretionary function exception “does not include functions which involve any element of choice, judgment or ability to make responsible decisions; otherwise every function would fall within the exception.” Sterling, supra, 111 Idaho at 227, 723 P.2d at 771 (emphasis in original).

Determining the applicability of the discretionary function exception is a two-step process. First, one must examine the nature and quality of the challenged actions. Id., at 230, 723 P.2d at 774. Routine, everyday matters not requiring evaluation of broad policy factors will more likely than not be “operational.” Decisions and actions which involve a consideration of the financial, political, economic and social effects of a given plan or policy will generally be “planning” and fall within the discretionary function exception. See, e.g., Julius Rothschild & Co. v. State, 66 Hawaii 76, 655 P.2d 877, 880-81 (1982) (replacement of major bridge involved evaluation of broad policy factors and was thus within discretionary function exception).

Second, the policies underlying the discretionary function exception must be considered. The policies are twofold: (1) to permit those who govern to do so without being unduly inhibited in the performance of that function by the threat of liability for tortious conduct; and (2) to limit judicial re-examination of basic policy decisions properly entrusted to other branches of government. Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, 358-60 (1968). The Alaska Supreme Court has aptly explained this latter policy:

“The courts will refrain from second-guessing the legislative and executive branches on issues of basic policy. Under our system of separation of powers, such decisions are vested in the politically responsive coordinate branches. Thus, in applying the test for discretionary function immunity ... we will ‘isolate those decisions sufficiently sensitive so as to justify judicial abstention.’

“In addition, courts must not intrudé into realms of policy exceeding their institutional competence. The judicial branch lacks the fact-finding ability of the legislature, and the special expertise of the executive departments____ [Courts] should not attempt to balance the detailed and competing elements of legislative or executive decisions.” Industrial Indem. Co. v. State, 669 P.2d 561, 563 (Alaska 1983) (citations omitted). See also, Julius Rothschild & Co., supra, 655 P.2d at 881.

We turn now to the facts at hand and apply the foregoing two-step process. The activity in question, entrustment of the keys to a motor vehicle to an obviously intoxicated person, was performed by a police officer after a routine stop of a motor vehicle in Garden City. The officer’s decision regarding the disposal of the vehicle is one that is undoubtedly made by other officers in the field all the time. It is an everyday matter. The decision is rooted in practicality, and does not require an evaluation of financial, political, economic and social effects. The activity appears to be “operational.”

Next, we consider whether officers in the field will be unduly inhibited in disposing of vehicles by the threat of liability for using less than ordinary care. Not insignificantly, the legislature has provided that the defense of public employees shall be undertaken by the governmental entity if the challenged act or omission of the employee is within the course and scope of employment and does not involve malice or criminal intent. I.C. § 6-903(c). Also, when the act or omission is within the scope of employment and does not involve malice or criminal intent, the “governmental entity shall not be entitled to contribution or indemnification, or reimbursement for legal fees and expenses from its employee ...” I.C. § 6-903(d). Finally, there “shall be a rebuttable presumption that any act or omission of an employee within the time and at the place of his employment is within the course and scope of his employment and without malice or criminal intent.” I.C. § 6-903(e). These legislative provisions should alleviate any fears that officers might have of being held personally liable for removing a motor vehicle from the public highways to a place of safety pursuant to I.C. § 49-692. We do not believe police officers in the field will be unduly inhibited by the prospect that the governmental entity might eventually bear the financial responsibility for compensating those who have been injured by the negligent acts of officers. “The need for compensation to citizens injured by the torts of government employees outweighs whatever slight effect vicarious government liability might have on law enforcement efforts.” Downs v. United States, 522 F.2d 990, 998 (6th Cir.1975). See also, Johnson, supra, 447 P.2d at 358-60.

Last, we consider the policy against “placing] the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government.” Id., 447 P.2d at 360. The instant case presents no such danger. It is true that police officers, as part of the executive branch, are entrusted with the enforcement of the laws of the state; but the officer’s decision here, to give the car keys to the passenger, was not a basic policy decision. Providing the plaintiffs here with a forum in which to seek redress for their injuries will not result in judicial second-guessing of policies promulgated by other coordinate branches of government and will not involve the courts with matters outside their institutional competence.

Accordingly, we hold that the actions of the officer in providing for the removal of a motor vehicle from the public highways did not fall within the discretionary function exception of I.C. § 6-904(1). Any reading of Gordon v. Noble, 109 Idaho 1048, 712 P.2d 749 (Ct.App.1986), a preSterling case, to the contrary is hereby rejected. The decision of the trial court granting summary judgment to Garden City is reversed.

Since the discretionary function exception does not apply, Garden City will be liable if the acts of the officer, though authorized by statute, were performed without ordinary care. I.C. §§ 6-903(a) and 6-904(1). Ordinary care presupposes the existence of a legal duty. Liability may only attach “where [Garden City] if a private person or entity would be liable for money damages under the laws of the state of Idaho.” I.C. § 6-903(a). We consider now the question whether the officer, if he were a private person, may have breached a duty of ordinary care under the facts of the case at bar.

Plaintiffs’ claim against Garden City is predicated upon negligent entrustment of an automobile. See Kinney v. Smith, 95 Idaho 328, 331 n. 1, 508 P.2d 1234, 1237 n. 1 (1973) (tort of negligent entrustment recognized).

“The ‘negligent entrustment’ tort approved in Kinney is a recognition of the risk of injury which exists when two ingredients are combined[:] the automobile and an incompetent or incapacitated driver. In Kinney, we said that a party may be liable for providing an intoxicated individual with an automobile.” Alegria v. Payonk, 101 Idaho 617, 620, 619 P.2d 135, 138 (1980).

In Alegria, supra, we held that liquor vendors who knowingly dispense alcoholic beverages to obviously intoxicated minors may be liable for injuries proximately caused by their conduct. Id. We recognized a general duty of care: “[O]ne owes the duty to every person in our society to use reasonable care to avoid injury to the other person in any situation in which it could be reasonably anticipated or foreseen that a failure to use such care might result in such injury.” Id., at 619, 619 P.2d at 137 (emphasis in original), quoting from Kirby v. Sonville, 286 Or. 339, 594 P.2d 818, 821 (1979).

The tort of negligent entrustment is described in the Restatement (Second) of Torts, § 308 (1965):

“Permitting Improper Persons to Use Things or Engage in Activities.

“It is negligence to permit a third person to use a thing or engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.” (Emphasis added.)

The comments explain that the rule is most frequently applied “where the person is a member of a class which is notoriously likely to misuse the thing which the actor permits him to use.” Restatement (Second) of Torts § 308 comment b (1965). The rule may also apply “if the third person’s known character or the peculiar circumstances of the case are such as to give the actor good reason to believe that the third person may misuse it.” Id. See also, Restatement (Second) of Torts § 308 illustration 2 (1965) (“A lends his car to B, whom he knows to be intoxicated. B’s intoxicated condition leads him to cause harm to C. A is negligent toward C.”).

The most common factual scenarios to which the negligent entrustment rule is applied are those where a loaded firearm is entrusted to a minor or where an automobile is entrusted to an obviously intoxicated person. Garden City argues that the rule is inapposite because the police officer here did not “own or control” the vehicle in question, or because there was no “entrustment” since the third party operated the vehicle despite instructions from the officer to the contrary.

Garden City’s first argument is untenable. The officer seized control of the vehicle when he arrested its driver and retained the keys. As discussed earlier, he possessed statutory authority to dispose of the vehicle. If the driver or the passenger had requested the keys, the officer was not bound to comply. He was not a bailee as was the defendant in Mills v. Continental Parking Corporation, 86 Nev. 724, 475 P.2d 673 (1970), who was duty bound to surrender a vehicle to its bailor. When Bergan was arrested, the officer was the only person who had control over Bergan’s vehicle. It is the legal right to “control” the thing entrusted which gives rise to the duty in negligent entrustment cases, Restatement (Second) of Torts, § 308 (1965), and this right to “control” is not limited to those who hold absolute title. Here, the officer had a right to “control” the vehicle by virtue of I.C. § 49-692(3).

Garden City also asserts that, as a matter of law, the giving of keys to an automobile to an obviously intoxicated person when coupled with an instruction not to drive the vehicle is not an “entrustment.” We are not persuaded.

In cases involving entrustment of firearms, a plaintiff need not show that the defendant physically placed a firearm in the hands of a child. It is enough if the facts show that the defendant in exercising control over a firearm, acted in such a manner that it became likely a child would come into possession of it and use it in such a manner as to create an unreasonable risk of harm to others. See Teter v. Clemens, 131 Ill.App.3d 434, 86 Ill.Dec. 684, 687-88, 475 N.E.2d 1063, 1066-67 (1985) (“Prima facie negligence is established by showing that defendant permitted an inexperienced or irresponsible infant to have a dangerous gun or that he left such a gun where he should have foreseen it would come into the hands of such a child.”), aff'd in part, rev’d in part, 112 Ill.2d 252, 97 Ill.Dec. 467, 492 N.E.2d 1340 (Ill.1986) (complaint failed to allege sufficient facts); Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957) (defendant had duty to keep firearm away from his young grandchildren and breached such duty by storing firearm in unlocked dresser drawer in an unlocked bedroom where he knew the children played).

The cases illustrate that the negligent entrustment rule is nothing more than a particularized application of general tort principles. See Hartford Acc. & Indem. Co. v. Abdallah, 94 Cal.App.3d 81, 90-92, 156 Cal.Rptr. 254, 260 (Ct.App.1979) (The rule “is more properly resolved by general principles of negligence.”).

“The duty to take precautions against the negligence of others thus involves merely the usual process of multiplying the probability that such negligence will occur by the magnitude of the harm likely to result if it does, and weighing the result against the burden upon the defendant of exercising such care. The duty arises, in other words, only where a reasonable person would recognize the existence of an unreasonable risk of harm to others through the intervention of such negligence. It becomes most obvious when the actor has reason to know that he is dealing with persons whose characteristics make it especially likely that they will do unreasonable things. The actor may be required to guard an insane patient to prevent him from jumping from the hospital window, or to refrain from putting an intoxicated person off of a train into a railroad yard, or letting him have an automobile, or more liquor.” Prosser and Keeton, The Law of Torts § 33, at 199 (5th ed. 1984) (footnotes omitted) (emphasis added).

Where a person has a right to control a vehicle, he must exercise ordinary care and not permit another to use it in circumstances where he knows or should foreseeably know that such use may create an unreasonable risk of harm to others. See Denby v. Davis, 212 Va. 836, 188 S.E.2d 226 (1972) (car owner may be liable where, through “a pattern of conduct from which permissive use may be implied,” he allows an unlicensed individual with impaired vision to use his vehicle); Hartford Acc. & Indem. Co., supra, (used car dealer may be liable for entrusting vehicle to unlicensed driver). This duty applies to police officers as well. They may be held liable

“for acts.of affirmative negligence, for which anyone — police or civilian — would be liable: negligent handling of an attack dog, negligent operation of a motor vehicle, and negligent use of a firearm. Those acts of ordinary negligence do not change in character because they happen to have been committed by a police officer in the course of his duties____ A person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people, but neither does he assume any greater obligation to others individually.” Warren v. District of Columbia, 444 A.2d 1, 7-8 (D.C.1981).

In addition, like Snyder v. City of Rochester, 124 A.D.2d 1019, 508 N.Y.S.2d 863 (1986), the instant case “is not a police protection case. Plaintiff[s] claim[] essentially that the police negligently entrusted the vehicle ... and that this negligence was a proximate cause of [their] accident and injuries. Liability may be imposed upon a municipality where such voluntary acts are a substantial factor in causing the accident and the occurrence of an accident was reasonably foreseeable [citations].” Id., at 864.

We have held that the discretionary function exception, I.C. § 6-904(1), does not shield the city from the negligence, if any, of the police officer here. Private persons may be liable for negligent entrustment under the laws of this state. Thus, I.C. § 6-903(a) has been satisfied. We have determined that the officer owed plaintiffs a duty, which is a question of law. Prosser & Keeton, The Law of Torts, § 37, at 236 (5th ed. 1984). The duty is to act reasonably in the face of a foreseeable risk of harm to others, not to always be right. The duty is not a special duty, applicable only to police officers: rather, it is a general duty which applies across the board to all members of society. It remains for the trier of fact to determine whether the duty was breached and, if so, whether the breach proximately caused injury to the plaintiffs.

Reversed and remanded for further proceedings not inconsistent with this opinion.

Costs to appellant.

BISTLINE and HUNTLEY, JJ., concur.

1 . I.C. § 49-692 reads in part:

"49-692. Officers authorized to remove vehicles.—

"(3) Any police officer is hereby authorized to remove or cause to be removed to the nearest garage or other place of safety any vehicle found upon a highway when:

"(b) The person or persons in charge of such vehicle are unable to provide for its custody or removal, or

"(c) When the person driving or in control of such vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before a proper magistrate without unnecessary delay."