Sterling v. Bloom

723 P.2d 755, 111 Idaho 211, 1986 Ida. LEXIS 463

• Court: Idaho Supreme Court
• Decided: May 16, 1986
• Docket: 15875
• Status: Published

Opinions

BISTLINE, Justice.

I.

This case calls on us in compelling fashion to re-examine certain provisions of the Idaho Tort Claims Act, I.C. § 6-901, et seq. A review of the facts illustrates the case’s compelling nature.

The district court decided this case on a motion for judgment on the pleadings. On a motion for judgment on the pleadings pursuant to I.R.C.P. 12(c), the moving party admits all the allegations of the opposing party’s pleadings and concomitantly admits the untruth of its own allegations which its adversary has denied. See, e.g., Davenport v. Burke, 27 Idaho 464, 473, 149 P. 511, 515 (1915). Sterling’s allegations, deemed admitted by the State of Idaho’s motion, are as summarized:

On June 30, 1982, an automobile operated by defendant Bloom turned into and struck the motorcycle operated by appellant Sterling. At the time of the accident Bloom’s blood alcohol content was .23 percent by weight.

The collision caused Sterling extensive injuries, including (1) severe physical, mental and emotional injuries including massive brain trauma, (2) continuing physical pain, mental and emotional anguish, permanent injury and disability including loss of memory, loss of certain brain functions, disfigurement, and humiliation, (3) medical expenses amounting to at least $50,000, (4) future medical expenses in amounts yet to be determined, (5) lost wages of at least $30,000, (6) lost future wages in amounts yet to be determined, and (7) property damage to her motorcycle, helmet, and clothing in the amount of at least $300.

Less than a year prior to the collision, Bloom had pled guilty to a felony charge of operating a motor vehicle while under the influence of intoxicating liquor in violation of I.C. § 49-1102. For this conviction, his third for driving under the influence, on October 21, 1981, Bloom was sentenced to serve a five-year term. Execution of sentence was suspended, and for five years Bloom was placed on probation. Bloom was placed under legal custody and control of the Director of Probation and Parole of the State of Idaho Board of Corrections. A special condition of probation was that for the first year of that probation Bloom was not to drive a motor vehicle except for employment purposes.

On the same day of sentencing, Bloom executed a written Agreement of Probation with the Board. This agreement provided, among other things, that Bloom would “respect and obey all laws,” report on a monthly basis to the probation officer, and would not purchase or operate a motor vehicle without written permission from the Court or Probation Department. Ronald T. Housely, an employee of the Board, became Bloom’s supervisor.

The Board, including but not limited to its employee Housely, acted negligently in its supervision of Bloom in at least the following particulars: (1) allowing Bloom to drive a motor vehicle for nonemployment purposes, contrary to the order of probation; (2) allowing Bloom to operate a motor vehicle without the required written permission, contrary to the agreement of probation, (3) allowing Bloom to operate an uninsured motor vehicle in violation of I.C. § 49-235, contrary to the agreement of probation, (4) allowing Bloom to reside in the same building which housed the Seven Mile Lounge, and to work there as a bartender, (5) failing to require Bloom to report on a regular basis to his supervising probation officer contrary to agreement of probation, and failing to otherwise supervise his activities; (6) failing to initiate proceedings to revoke Bloom’s probation despite the fact that Bloom had failed and/or refused to comply with the order of probation and the agreement of probation on numerous occasions prior to the collision; and (7) failing to act reasonably and prudently under the circumstances despite having knowledge that Bloom had been convicted at least on two prior occasions of operating a motor vehicle while under the influence of intoxicating beverages and hence posed a great threat to the safety of the public unless adequately supervised.

Each and all of those foregoing negligent acts and omissions of the Board were proximate causes of the collision and plaintiff Maude Sterling’s damages.

The district court, in granting the State of Idaho’s motion for judgment on the pleadings, applied the holdings of Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21, (1979), cert. denied 446 U.S. 983, 100 S.Ct. 2963, 64 L.Ed.2d 839 (1980), and Chandler Supply Co., Inc. v. City of Boise, 104 Idaho 480, 660 P.2d 1323 (1983), and held the Board immune from liability under the Idaho Tort Claims Act on the bases that (1) in the private sector there is no “parallel function” to that of the Board; and (2) even if there were, the Board was engaged in a discretionary function. We will review each of these holdings in turn after first setting the stage.

II.

A. Standards of Construction and Review.

The Idaho legislature’s adoption of the Idaho Tort Claims Act (Idaho Act), 1971 Idaho Sess.Laws ch. 150, §§ 1-31, p. 743, has been observed to be patterned largely on the Federal Tort Claims Act (Federal Act), 28 U.S.C. §§ 1346(b), 2671-2680 (1976 & Supp. V. 1981). Dunbar, 100 Idaho at 530, 602 P.2d at 28. “A statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction.” Nixon v. Tribes, 100 Idaho 198, 200, 595 P.2d 1093, 1095 (1979), quoted in Odenwalt v. Zaring, 102 Idaho 1, 5, 624 P.2d 383, 387 (1981); see also Doe v. Durtschi, 110 Idaho 466, 472 n. 2, 716 P.2d 1238, 1244 n. 2 (1986); and Dunbar, supra, 100 Idaho at 530, 602 P.2d . Consequently, we look with particular interest to pre-1971 federal case law in our pursuit of the legislature’s intent.

The Idaho Tort Claims Act provides:

6-903. Liability of governmental entities — Defense of employees. — (a) 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, provided that the governmental entity is subject to liability only for the pro rata share of the total damages awarded in favor of a claimant which is attributable to the negligent or otherwise wrongful acts or omissions of the governmental entity or its employees. (Emphasis added.)

The similar provisions of the Federal Tort Claims Act (the first jurisdictional in nature) in pertinent part are:

28 U.S.C. § 1346 ... (b) Subject to the provisions of chapter 171 of this title, the district courts, ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. (Emphasis added.)

28 U.S.C. § 2674 The United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances____

This case involves the above provisions and the so-called “discretionary function” exceptions to liability. That exception is found in the following sections of the Idaho and Federal Acts:

I.C. § 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.

28 U.S.C. § 2680 The provisions of this chapter and section 1346(b) of this title shall not apply to—

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such 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 federal agency or an employee of the Government, whether or not the discretion involved be abused.

The purpose of both acts is to provide “much-needed relief to those suffering injury from the negligence of government employees.” United States v. Muniz, 374 U.S. 150, 165, 83 S.Ct. 1850, 1859, 10 L.Ed.2d 805 (1963). Idaho’s act is to be construed “liberally” and “ ‘with a view to accomplishing [its] aims and purposes, and attaining substantial justice----’” Farber v. State, 102 Idaho 398, 402, 630 P.2d 685, 689 (1981), quoting Keenan v. Price, 68 Idaho 423, 438, 195 P.2d 662, 670 (1948); see also Idaho Const., art. 1, § 18; I.C. § 73-102(1).

Consistent with such purposes, the Idaho Act makes liability the rule with certain specific exceptions. Durtschi, supra, 110 Idaho at 471, 716 P.2d at 1243; Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 589, 7 L.Ed.2d 492 (1962); Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877, 886 (1984); Jones v. State Highway Comm’n, 557 S.W.2d 225, 230 (Mo.1977); Ramos v. County of Madera, 4 Cal.3d 685, 94 Cal.Rptr. 421, 484 P.2d 93, 98 (Cal.1971). “There is no justification for this Court to read exemptions into the Act beyond those provided by [the legislature].” Rayonier, Inc. v. United States, 352 U.S. 315, 320, 77 S.Ct. 374, 377, 1 L.Ed.2d 354 (1957), quoted in Muniz, supra, 374 U.S. at 166, 83 S.Ct. at 1859. Those exceptions which are expressly stated must be closely construed. Kosak v. United States, 465 U.S. 848, 104 S.Ct. 1519, 1523 n. 9, 79 L.Ed.2d 860 (1984) (“We think that the proper objective of a court attempting to construe one of the subsections of 28 U.S.C. § 2680 [exceptions to the Federal Act] is to identify ‘those circumstances which are within the words and reason of the exception’ — no less and no more. [Quoting Dalehite v. United States, 346 U.S. 15, 31, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953).] [Citations omitted.]”

B. The “Parallel Function” Test.

The district court held that the probation officer in charge of Bloom was immune from Sterling’s claim, because no “parallel function” to that of a probation officer existed in the private sector. R., Vol. 2, pp. 117-18; id. at 118 (“Thus the Court holds that the parallel functions test has not been met in the case at bar since there is no private prison and parole system in the state.”). This implied exception first surfaced in Dunbar, supra. Although Dunbar and two succeeding cases appeared to find such an exception within the confines of the so-called “discretionary function” exception to the Idaho Act, I.C. § 6-904(1),¹ the Board argues and this Court, in Chandler, supra, 104 Idaho at 482, 660 P.2d at 1325, has held that the actual source for this implied exception is I.C. § 6-903(a), which we requote for the sake of convenience:

Liability of governmental entities— Defense of employees. — (a) 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, provided that the governmental entity is subject to liability only for the pro rata share of the total damages awarded in favor of a claimant which is attributable to the negligent or otherwise wrongful acts or omissions of the governmental entity or its employees. (Emphasis added.)

However, no opinion from this Court has ever attempted to explain how the parallel function test is derived from the language of this subsection. See Chandler, supra, 104 Idaho at 482, 660 P.2d at 1325 (states only that the test “was an application of 1.C. § 6-903(a) which waives sovereign immunity ‘if a private person or entity would be liable for money damages____”’) (emphasis added); Dunbar, supra, 100 Idaho at 546, 602 P.2d at 44 (test stated without direct reference to any statutory language). Nor has any opinion from this Court previously recognized or examined the pre-1971 federal case law which dealt directly and definitively with similar federal provisions, 28 U.S.C. §§ 1346(b) and 2674,² and with the same purported implied exception. See, e.g., Indian Towing, supra. With great force and persuasiveness, counsel for Sterling earnestly urges that this Court now conduct a considered examination and ascertain if there is any supportable basis for the “parallel function” test.³ We respond to that supplication.

The parallel function test of Dunbar was stated as follows:

[Wjherein tort liability would attach to a private person, a governmental entity engaging in the same conduct will be liable. We do not ascertain an intent to create a new cause of action against a governmental entity for its attempts to govern____

... [Regulatory] functions of the government have traditionally been seen as sacrosanct from invasion by the judicial branch.

Here we are faced with claims against the government related to the governmental function of governing. There are not parallel functions in the private sector. Dunbar, supra, 100 Idaho at 546, 602 P.2d at 44.

As one commentator has pointed out, this construction of I.C. § 6-903(a) created a parallel function requirement where none exists in the plain language of the statute. A. Hall, Sovereign Immunity and Re-emergence of the Govemmental/Proprietary Distinction: A Setback in Idaho’s Governmental Liability Law, 20 Idaho L.Rev. 197, 231-32 (1984) (footnotes omitted). The statute says nothing about a “governmental function of governing,” with automatic immunity attaching to such functions. Nothing in the statute mandates comparison between the underlying roles or functions of the government and roles or functions found in the private sector. Nor does the statute require that private individuals must engage in the same conduct in which the government engages for the government to be potentially liable. The statute says that if a private person would be liable for the misconduct alleged against the government, regardless of whether the private individuals ordinarily fill the same underlying function or role of the government, so will be the government. In other words, if a cause of action would lie against a private individual, it will also lie against the government. A straightforward application of the language of § 6-903(a) to the instant facts would be as follows: the government is potentially liable “if a private person or entity would be liable for money damages under the laws of the state of Idaho” for the negligent supervision of a third person who is or should be known to be dangerous, which negligence foreseeably results in and proximately causes harm to the injured party. I.C. § 6-903(a).

Not only is this the more straightforward application, it is the application made of similar language in the Federal Act by the United States Supreme Court beginning in 1955, in place in 1971, and continuing on up to the present time. Prior to 1955, the Supreme Court had held that the Federal Act did not subject the government to liability “arising from acts of a governmental nature or function.” Dalehite, supra, 346 U.S. at 28, 73 S.Ct. at 964. The Court there read the language of 28 U.S.C. § 2674 — limiting liability to “the same manner and to the same extent as a private individual under like circumstances” — to require an analogous or parallel function between the public and private sectors. Dalehite, supra, 346 U.S. at 43-44, 73 S.Ct. at 972. Relying on language found in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (involved military personnel suing the government), the Court concluded that because the firefighting activities of the Coast Guard had no parallel in the private sector, it followed that the government was immune from claims based on alleged negligence in firefighting. Dalehite, supra, 346 U.S. at 44, 73 S.Ct. at 972.

However, this rationale of Dalehite was specifically overruled in subsequent cases. In Indian Towing, supra, the government conceded that its operation of a lighthouse was not a discretionary function, but argued that the language “imposing liability ‘in the same manner and to the same extent as a private individual under like circumstances * * * ’ must be read as excluding liability in the performance of activities which private persons do not perform. Thus, [the government continued to argue] there would be no liability for negligent performance of ‘uniquely governmental functions.’ ” Indian Towing, supra, 351 U.S. at 64, 76 S.Ct. at 124, cited with approval in Chief Justice Donaldson’s dissent in Chandler, supra, 104 Idaho at 488, 660 P.2d at 1331.

Clearly, there is no difference between this proposed exception to liability for “uniquely governmental functions” and the exception posed in Dunbar for “governmental functions of governing” to which “[t]here are not parallel functions in the private sector.” Dunbar, supra, 100 Idaho at 546, 602 P.2d at 44. The Dunbar holding (as with Dalehite) required lower courts to examine the underlying function or role performed by the governmental agency or employee involved in the alleged misconduct. If that function was sufficiently “governmental” to distinguish it from those found in the private sector, then there could be no liability, regardless of whether “a private person or entity would be liable.” I.C. § 6-903(a).

The Indian Towing Court, per Justice Frankfurter, rejected the “uniquely governmental function” exception:

The Government reads the statute as if it imposed liability to the same extent as would be imposed on a private individual “under the same circumstances.” But the statutory language is “under like circumstances,” and it is hornbook tort law that one who undertakes to warn the public of danger and thereby induces reliance must perform his “good Samaritan” task in a careful manner. Id. 351 U.S. at 64-65, 76 S.Ct. at 124 (emphasis added).

It matters not whether private individuals ordinarily fill this function of the Coast Guard. Under the High Court’s interpretation of this statute, what matters is whether a private individual would be liable if he or she did perform the function and carry out the act of misconduct.⁴ Dunbar’s holding not only conflicted with this holding, it also misunderstood which federal statutes (and inferentially which Idaho statutes) the holding involved.

Dunbar was premised on the misconception that Indian Towing involved the “discretionary function” exception. Dunbar, supra, 100 Idaho at 532, 602 P.2d at 30 (Quotes the language in Indian Towing, describing “distinctions so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation” as referring to the supposed discretionary function exception, whereas in reality that language actually referred to the proposed “uniquely governmental” function exception. See Indian Towing, supra, 350 U.S. at 68, 76 S.Ct. at 126.). Dunbar failed to recognize Indian Towing’s express rejection of the very construction that Dunbar employed. Indian Towing, however, full well comprehended that the language here concerned created government liability for the same causes of action for which private persons would be held liable. See generally O. Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act, 57 Georgetown L.J. 81, 99-100 (1968).

Subsequent cases repeatedly reaffirmed the Supreme Court’s rejection of the “uniquely governmental or parallel function” test. Id. at 102-03. In Hatahley v. United States, 351 U.S. 173, 180, 76 S.Ct. 745, 751, 100 L.Ed. 1065 (1956), the Court read the pertinent language to make the government potentially liable for the illegal acts of its agents enforcing federal range laws, because, “[ujnder the law of Utah an employer is liable to third persons for the willful torts of his employees if the acts are committed in furtherance of the employer’s interests or if the use of force could have been contemplated in the employment.” In Rayonier, supra, the Court left no doubt that the “uniquely governmental” function exception found in Dalehite was “necessarily rejected by Indian Towing.” 352 U.S. at 319, 77 S.Ct. at 377 (holding that government potentially liable for Forest Service’s negligent fire-fighting), cited with approval in Chandler, supra, 104 Idaho at 487, 660 P.2d at 1330 (Donaldson, C.J., dissenting). As it dealt with Indian Towing, Dunbar saw Rayonier as dealing with the “discretionary function” exception, when it actually was utilizing the language of 28 U.S.C. §§ 1346(b) and 2674. Dunbar, supra, 100 Idaho at 532, 602 P.2d at 30. Finally, in Muniz, supra, the Court found the pertinent language no bar to a claim against the federal government in its capacity as the administrator of prisons — a capacity surely constituting a traditional governmental function without a ready parallel in the private sector. 374 U.S. at 153-54, 83 S.Ct. at 1853. Post-Indian Towing lower federal courts are in accord. E.g., Fair v. United States, 234 F.2d 288, 294 (5th Cir.1956); see cases cited in 28 U.S.C.A. § 2680 note 21, supp. note 21 and 36 A.L.R.Fed. 240, 256-57, 280. The confusion perceived by Dunbar resulted from its own confusion over which section of the Federal Act the Supreme Court was addressing in Indian Towing and in Rayonier. As previously noted, we must presume that the 1971 legislature adopted the Supreme Court’s construction of the pertinent language, and thereby rejected any implied parallel/uniquely governmental function exception.

Post-1971 Supreme Court decisions have continued this reading of 28 U.S.C. § 2674. Varig, supra, explained and reaffirmed Indian Towing and Rayonier. 104 S.Ct. at 2764-65, 2765 n. 10. In Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 198, 103 S.Ct. 1033, 1038, 74 L.Ed.2d 911 (1983), the Court made absolutely clear that the pertinent language referred to causes of action, not to the governmental role or function:

The Federal Tort Claims Act permits an indemnity action against the United States “in the same manner and to the same extent” that the action would lie against “a private individual under like circumstances.” 28 U.S.C. § 2674; see Stencel Aero Engineering Corp v. United States, 431 U.S. 666, 669-670, 97 S.Ct. 2054, 2056-2057, 52 L.Ed.2d 665 (1977) (citing United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951)). (Emphasis added.)

The capacity in which the government was functioning in Lockheed was none other than the military capacity — the quintessential of all “uniquely governmental” capacities. Lockheed leaves no doubt as to the status of this “test” in the federal courts.

Affirmative evidence that the legislature intended to follow the Supreme Court’s rejection of the parallel function test surfaces upon further examination of the federal case law and the language of I.C. § 6-903(a). Indian Towing branded the government agency’s argument for a “uniquely governmental function” exception as an attempt to return to the “nongovernmental — governmental” or proprietary — governmental distinction of the old law of municipal corporations:

[T]he Government in effect reads the statute as imposing liability in the same manner as if it were a municipal corporation and not as if it were a private person, and it would thus push the courts into the “non-governmental” — “governmental” quagmire that has long plagued the law of municipal corporations. A comparative study of the cases in the forty-eight States will disclose an irreconcilable conflict. More than that, the decisions in each of the States are disharmonious and disclose the inevitable chaos when courts try to apply a rule of law that is inherently unsound. The fact of the matter is that the theory whereby municipalities are made amenable to liability is an endeavor, however awkward and contradictory, to escape from the basic historical doctrine of sovereign immunity. The Federal Tort Claims Act cuts the ground from under that doctrine; it is not self-defeating by covertly embedding the casuistries of municipal liability for torts. Indian Towing, supra, 350 U.S. at 65, 76 S.Ct. at 124 (emphasis added; footnotes omitted).

The Rayonier Court reiterated this criticism:

[The government] argues that the Act only imposes liability on the United States under circumstances where governmental bodies have traditionally been responsible for the misconduct of their employees and that neither the common law nor the law of Washington imposes liability on municipal or other local governments for the negligence of their agents acting in the “uniquely governmental” capacity of public fireman. But as we recently held in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, [100 L.Ed. 48] the test established by the Tort Claims Act for determining the United States’ liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred. We expressly decided in Indian Touring that the United States’ liability is not restricted to the liability of a municipal corporation or other public body and that an injured party cannot be deprived of his rights under the Act by resort to an alleged distinction, imported from the law of municipal corporations, between the Government’s negligence when it acts in a “proprietary” capacity and its negligence when it acts in a “uniquely governmental” capacity. 352 U.S. at 318-19 [77 S.Ct. at 376] (emphasis added) (footnotes omitted); see also Mid-Central Fish Co. v. United States, 112 F.Supp. 792 (W.D.Mo. 1953), aff'd sub nom. National Mfg. Co. v. United States, 210 F.2d 263 (8th Cir. 1954) cert. denied 347 U.S. 967 [74 S.Ct. 778, 98 L.Ed. 1108] (1954).

Presumably aware of the Supreme Court’s having equated the uniquely governmental/parallel function test with the proprietary/governmental distinction, the Idaho legislature inserted the following language into I.C. § 6-903(a): “the governmental entity is subject to liability ... whether arising out of a governmental or proprietary function____” (Emphasis added.) As Indian Towing teaches, uniquely governmental functions are bound to equate with those traditionally viewed as “governmental” functions, while those functions similar to ones performed by private persons and entities would equate with those traditionally viewed as “proprietary.” 350 U.S. at 66-67, 76 S.Ct. at 125; Hall, supra, at 211, 230.⁵ But, whether or not fertile minds are able to concoct a “uniquely governmental function” that was not a “governmental function” under the law of municipal corporations misses the point; what matters is that the Supreme Court unequivocally (1) saw the proposed exception to be the governmental/proprietary distinction in disguise, and (2) rejected it. In using essentially the same language as found in the Supreme Court’s discussions of the provision of the Federal Act analogous to I.C. § 6-903(a), the Idaho legislature also must have equated a proposed “uniquely governmental function” with the proprietary/governmental distinction, which it then expressly rejected. Accord, Hall, supra, at 220-22, 228-35; see also Ryan v. State, 134 Ariz. 308, 656 P.2d 597, 598 (1982) (“Here the appellee-respondents urge that governmental immunity should continue in those instances where the services provided are uniquely governmental in nature. This is the old proprietary-governmental distinction in a bright new word-package.”).

The legislature was not without good reason to reject any continuation of the pre-1971 judicially imposed distinctions between government conduct which is proprietary, and that which is governmental. As the Indian Towing Court explained, whether or not there is a parallel to a governmental function in the private sector is often fortuitous and unrelated to any rational basis for immunity:

[I]f the United States were to permit the operation of private lighthouses — not at all inconceivable — the Government’s basis of differentiation would he gone and the negligence charged in this case would be actionable. Yet there would be no change in the character of the Government’s activity in the places where it operated a lighthouse, and we would be attributing bizarre motives to Congress were we to hold that it was predicating liability on such a completely fortuitous circumstance — the presence of identical private activity. 350 U.S. at 66-67, 76 S.Ct. at 125 (footnote omitted).

Further, the test is so inherently flexible that it offers no predictability. At one extreme, one can say that all governmental activities are distinct from those found in the private sector; at the other, one can always make some analogy between governmental activities and private activities. The Supreme Court explained:

While the area of liability is circumscribed by certain provisions of the Federal Tort Claims Act, see 28 U.S.C. § 2680, 28 U.S.C.A. § 2680, all Government activity is inescapably “uniquely governmental” in that it is performed by the Government. In a case in which the Federal Crop Insurance Corporation, a wholly Government-owned enterprise, was sought to be held liable on a crop-insurance policy on the theory that a private insurance company would be liable in the same situation, this Court stated: “Government is not partly public or partly private, depending upon the governmental pedigree of the type of a particular activity or the manner in which the Government conducts it.’’ Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 383-384, 68 S.Ct. 1, 3, 92 L.Ed. 10. On the other hand, it is hard to think of any governmental activity on the “operational level,” our present concern, which is “uniquely governmental, ” in the sense that its kind has not at one time or another been, or could not conceivably be, privately performed. Indian Towing, supra, 350 U.S. at 67-68, 76 S.Ct. at 126 (emphasis added).

The results of the parallel function test depend largely on whether the court describes the governmental role in specific terms, which enhances distinguishing characteristics, or general terms, which diminishes them. Hall, supra, at 239-40 n. 205. A case in point is Dunbar’s application of the test to the facts of Martin v. United States, 546 F.2d 1355 (9th Cir.1976) cert. denied 432 U.S. 906, 97 S.Ct. 2950, 53 L.Ed.2d 1078 (1977). Dunbar found the administration of Yellowstone National Park to be “not substantially different in its nature than wild animal parks which might be operated by private persons or entities____ Hence, we see no reason not to apply the same standard of care to the government as we would apply to such an enterprise operated by non-government persons.” 100 Idaho at 533, 602 P.2d at 31. This general-term description glosses over the obvious distinguishing factor that, unlike the operators of a wild animal park, the National Park Service fulfills all governmental functions including law enforcement, and provides for and oversees all services within Yellowstone, including lodging, food services, retail sales, and automotive services to name the most prominent. In fact, the Park Service carries out the same sort of public health and safety inspections which Dunbar held to have no parallels in the private sector.⁶ If the National Park Service can be so readily equated to operators of wild animal parks, then, truly, potential parallels exist for all governmental functions.

Justice Frankfurter’s summarizing criticism in Indian Towing of the proposed exception for uniquely governmental functions is aptly put: “There is nothing in the Tort Claims Act which shows that Congress intended to draw distinctions so finespun and capricious as to be almost incapable of being held in the mind for adequate formulation.” Indian Towing, supra, 351 U.S. at 68, 76 S.Ct. at 126.

Additional reasons for believing the legislature did not intend I.C. § 6-903(a) as a broad exception to liability come from comparing it to and an examination of I.C. § 6-904. I.C. § 6-903(a) is not designated as an exception to liability; § 6-904 is so designated. Had the legislature conceived of an exception for “uniquely governmental functions without parallels in the private sector,” then § 6-904 was the logical place in which to incorporate it.

More importantly, the specific exceptions set out in I.C. § 6-904 establish that the legislature did consider excepting certain “unique governmental functions,” and did except certain but not all uniquely governmental functions. These exceptions include the following:

[A]ny claim which:

2. Arises out of the assessment or collection of any tax or fee, or the detention of any goods or merchandise by any law enforcement officer.

3. Arises out of the imposition or establishment of a quarantine by a governmental entity, whether such quarantine relates to persons or property.

5. Arises out of the activities of the Idaho national guard when engaged in training or duty under sections 316, 502, 503, 504, 505 or 709, title 32, United States Code, and the claim arising therefrom is payable under the provisions of the National Guard Claims Act (section 715, title 32, United States Code) except that a claimant not compensated in whole or in part under the National Guard Claims Act may assert his claim under this act.

6. Arises out of the activities of the Idaho national guard when engaged in combatant activities during a time of war.

8. Arises out of a plan or design for construction or improvement to the highways, roads, streets, bridges, or other public property where such plan or design is prepared in substantial conformance with engineering or design standards in effect at the time of preparation of the plan or design, approved in advance of the construction or approved by the legislative body of the governmental entity or by some other body or administrative agency, exercising discretion by authority to give such approval. I.C. § 6-904.

Obviously, if there did exist a general exception for unique governmental functions without parallels in the private section in I.C. § 6-903(a), then there would have been no need for the specific exceptions in I.C. § 6-904. To so misconstrue I.C. § 6-903(a) would be in violation of the rule of construction that all provisions of a statute must be given effect, and that no one part should be rendered mere surplusage by the overly broad construction of another. Chandler, supra, 104 Idaho at 488, 660 P.2d at 1331 (Donaldson, C.J., dissenting); University of Utah Hospital and Medical Center v. Bethke, 101 Idaho 245, 248, 611 P.2d 1030, 1033 (1980).

It has been argued that the 1971 Idaho Act was not intended to create new causes of action against the government in its business of governing. If it be the imperative of this argument that the government is liable only for claims related to functions with parallels in the private sector, then the Idaho Act did nothing to change the existing rules of liability delineated in Smith, supra. To the contrary, the Idaho Act, like its federal counterpart, clearly intended to extend liability to some “governmental” functions which were formerly immune. The Supreme Court has explained:

It may be that it is “novel and unprecedented” to hold the United States accountable for the negligence of its firefighters but the very purpose of the Tort Claims Act was to waive the government’s traditional all encompassing immunity from tort actions and to establish novel and unprecedented governmental liability. Rayonier, supra, 352 U.S. at 319, 77 S.Ct. at 377, quoted with approval in Chandler, supra, 104 Idaho 487, 660 P.2d at 28 (Donaldson, C.J., dissenting) (emphasis added).

The implication of the argument could be that the government might be impeded in its policymaking tasks. As discussed in the next part of this opinion, that function is adequately protected by the discretionary function exception. Thus, the legislature made no general exception for uniquely governmental functions partly because there was no need for such an exception. Finally, if this argument is taken as meaning that the legislature did not intend to create new torts, then such is answered by noting the prior existence of the tort of negligent supervision (as will be discussed subsequently, see Restatement (Second) of Torts, § 319 (1965)).

In sum, no support for the existence of the parallel function test exists in the language of the Idaho Act, nor in the federal case law existing prior to the adoption of the Idaho Act in 1971. Nothing whatever overcomes the presumption that the rule of Indian Towing, Rayonier and subsequent decisions was adopted along with the Federal Act. All of those cases rejected an exception for uniquely governmental functions based on language in the Federal Act which is analogous to the Idaho Act. Furthermore, we are obliged to be mindful that under both acts imposition of liability is the rule, with specific exceptions, and the exceptions are to be construed narrowly, thereby fulfilling the beneficient purpose of the Act. These rules of construction

steer us away from creating by implication such a broad exception from the language of I.C. § 6-903(a). The Supreme Court’s words on the very question presented today bear repeating: “There is no justification for this Court to read exemptions into the Act beyond those provided by Congress [or, in the case of the Idaho Act, the legislature], If the Act is to be altered that is a function for the same body that adopted it.” Rayonier, supra, 352 U.S. at 320, 77 S.Ct. at 377, quoted in Muniz, supra, 374 U.S. at 166, 83 S.Ct. at 1859; see also Indian Towing, supra, 350 U.S. at 69, 76 S.Ct. at 126 (The court should not “as self-constituted guardian of the Treasury import immunity back into a statute designed to limit it.”), quoted with approval in Chief Justice Donaldson’s dissent in Chandler, supra, 104 Idaho at 488, 660 P.2d at 1331 (emphasis added).

Accordingly, we hold that I.C. § 6-903(a) means exactly what it says: “every governmental entity is subject to liability for money damages ... 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____” We do not add, “where there are private persons or entities performing parallel functions.” Clearly, then, the language has always stated that if a private person or entity would be liable, so, then, will be the government. The “parallel function” language to the contrary in Dunbar and its progeny is overruled.

The only remaining question is whether a private person would be liable for the misconduct alleged against Bloom’s probation officer. We hold that a private person would be. In the recent case of Doe v. Durtschi, supra, which involved the negligent retention and supervision of a school teacher, we reasoned:

A cause of action in negligence requires the breach of a duty which is the proximate cause of the plaintiff’s injury. Restatement (Second) of Torts § 328A (1965)____ Under the plaintiffs’ allegations, the children’s injuries arose out of the basic negligence of the school district. The injuries were the foreseeable consequence of the school district’s negligence in retaining Durtschi despite full knowledge of his proclivities.

The fact that the plaintiffs’ injuries were caused by a third party does not absolve the school district from liability for its negligence. The concept of supervening causation is inapplicable, under the allegations of the present case. Durtschi’s actions were the foreseeable result of the school district’s alleged failure to exercise due care to protect its students. The very risk which constituted the district’s negligence was the probability that such actions might occur.

It is clearly unsound to afford immunity to a negligent defendant because the intervening force, the very anticipation of which made his conduct negligent, has brought about the expected harm. Gibson v. United States, 457 F.2d 1391, 1395 (3rd Cir.1972). To do so would fly in the face of basic principles of tort law, as recounted in the Restatement:

If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which make the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. Restatement (Second) of Torts § 449. See Smith v. Sharp, 82 Idaho 420, 428, 354 P.2d 172, 176 (1960).

The fact that the foreseeable danger was from intentional or criminal misconduct is irrelevant; the school district had a statutory duty to make reasonable efforts to protect its students from such a danger. A breach of that duty constitutes negligence. Under the allegations of the present case, Durtschi’s actions would not constitute a supervening cause, and the school district’s tortious conduct would not arise out of assault and battery. Rather, the roots of the assault and battery would be in the district’s own negligence. Durtschi, 716 P.2d at 1243-44.

Before there reaching the question of whether the assault and battery exception to liability found in I.C. § 6-904(4) applied, this Court was required to consider whether an injured person had a cause of action against another person or entity for the negligent retention and supervision of a dangerous third person who harms the injured party. The reasoning behind the holding directly applies here.

It has been argued that the duty to the plaintiffs in Durtschi arose solely out of the defendant school district’s statutory duty to protect the health and morals of its students. This does not alter the reasoning of the passage quoted above, which supports the existence of a duty to persons foreseeably endangered by the negligently supervised third person. Here, the negligent supervision of Bloom foreseeably endangered any and all motorists Bloom might encounter.

Moreover, the Board has a statutory duty to supervise probationers and, where appropriate, to investigate and report violations of probation conditions for the purpose of revoking probation:

20-219. Probation and parole supervision. — The state board of correction shall be charged with the duty of supervising all persons placed on probation or released from the state penitentiary on parole, and all persons released on parole or probation from other states and residing in the state of Idaho; of making such investigations as may be necessary; of reporting alleged violations of parole or probation in specific cases to the commission or the courts to aid in determining whether the parole or probation should be continued or revoked and of preparing a case history record of the prisoners to assist the commission or the courts in determining if they should be paroled or should be released on probation. (Emphasis added.)

While the statute does not purport to identify by name or class those to whom that assigned duty is owed, in the instant circumstances, obvious to the utmost, the motorists foreseeably endangered by the negligent supervision of Bloom are within the class protected.⁷ See, e.g., Beck v. Kansas University Foundation, 580 F.Supp. 527, 534 (D.Kansas 1984) (Kansas Adult authority owed duty to protect those present at a university medical center from foreseeable danger posed by released prisoner); see generally Prosser and Keeton, The Law of Torts § 53 (5th ed. 1984) (hereinafter “Prosser’’).

While the question of a “duty” may oftentimes be a difficult question, Prosser § 53, it generally is not so considered in the context of a person charged with and empowered to control the conduct of a third person. Dean Prosser explains:

The general duty which arises in many relations to take reasonable precautions for the safety of others may include the obligation to exercise control over the conduct of third persons____

... [Some] relationships are custodial by nature, requiring the defendant to control his charge and to guard other persons against his dangerous propensities. Thus the owner of an automobile is in such a position to control the conduct of one who is driving it in his presence that he is required to act reasonably to prevent negligent driving. A tavern keeper must act reasonably to prevent intoxicated patrons from injuring others. An employer must prevent his employees from throwing objects from his factory windows, and this had been extended quite generally to include an obligation on the part of any occupier of premises to exercise reasonable care to control the conduct of any one upon them, for the protection of those outside. A franchiser may be liable for negligently permitting its franchisee to cheat the customers. The physician in charge of an operation may be liable for failure to prevent the negligence of his assistants. A hospital may be liable for permitting an unqualified doctor to treat a patient on its premises. The same rule has been applied to hospitals and psychotherapists who have charge of dangerous mental patients, and to those who have charge of dangerous criminals. A common application of the principle is found in the liability of parents for failure to exercise proper control over their children, which is considered in the chapter on domestic relations. Yet, in the absence of the requisite relationship, there generally is no duty to protect others against harm from third persons. Prosser, § 56, pp. 383-85 (emphasis added, footnotes omitted).

The duty to control a dangerous charge “and to guard other persons against his dangerous propensities” which Dean Prosser describes is acknowledged in the Restatement (Second) of Torts:

§ 319. Duty of Those in Charge of Person Having Dangerous Propensities. One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

As the Restatement and Dean Prosser’s observations both indicate, the key to this duty is not the supervising individual’s direct relationship with the endangered person or persons, but rather is the relationship to the supervised individual. The duty extends to the protection and safety of “others” . foreseeably endangered. Where the duty is borne by governmental officials, it is a duty more specific than one to the general public; instead, it is a duty to those foreseeably endangered. See DeHoney v. Hernandez, 122 Ariz. 367, 595 P.2d 159, 164-65 (1979) (Though under Arizona case law the duty of police protection is owed only to the general public (a rule since abandoned, see Ryan, supra, 656 P.2d at 599), there is the special and narrower duty to control persons with dangerous tendencies.)

Clearly a duty can be owed to more than single individuals known to the tort-feasor. In a case like the instant one, the duty is owed to a class rather than a single individual. With a drunk driver on the highways, it is strictly a matter of chance who may become his victim. For certain, however, potential victims include those persons in the class of motorists on the same highway. The negligent conduct here involved and alleged obviously endangered more than the single victim, Maude Sterling. As Dean Prosser noted, “liability in tort is based upon the relations of persons with others; and those relations may arise generally, with large groups or classes of persons, or singly, with an individual.” Prosser, § 1, p. 5. Here, the admitted negligent supervision of Bloom by the probation officer foreseeably created a potential for harm to those motorists whom Bloom would encounter on the state’s highways. The probation officer owed those motorists a duty.

This duty has been recognized by many courts in many jurisdictions. See generally Restatement (Second) of Torts Appendix § 319, pp. 138-52 (1986). In fact, a considerable number of courts have recognized the duty in the instant context. For example, in Semler v. Psychiatric Institute of Washington, D.C., 538 F.2d 121, 123-24 (4th Cir.1976), cert. denied 429 U.S. 827, 97 S.Ct. 83, 50 L.Ed.2d 90, a probation officer, along with a psychiatric institute, failed to enforce a court order that the probationer, a person known to be dangerous to young girls, be confined and supervised as a day care patient in the institution. Sterling has made similar allegations of disregard of court orders. The probationer killed the plaintiff’s daughter, a person with whom the probation officer and the institute had no direct relationship or connection. Id. The court held that the defendants owed a duty to the plaintiff and decedent:

It is apparent [from the court order] that the decision to release Gilreath was not to be simply a medical judgment based on the state of his mental health. The decision would also entail a judgment by the court as to whether his release would be in the best interest of the community. The special relationship created by the probation order, therefore, imposed a duty on the appellants to protect the public from the reasonably foreseeable risk of harm at Gilreath’s hands that the state judge had already recognized.

Section 319 of Restatement (Second) of Torts (1965) is close to the point____ The Restatement measures a custodian’s duty by the standard of reasonable care. Here, that standard has been delineated by the precise language of the court order. The appellants were to retain custody over Gilreath until he was released from the Institute by order of the court. No lesser measure of care would suffice. Id. at 125 (emphasis added).

Other courts have found the same duty on the part of probation and parole officers. E.g., Payton v. United States, 679 F.2d 475 (5th Cir.1982); Doe v. Arguelles, 716 P.2d 279 (Utah 1985); Acevedo v. Pima County Adult Probation Department, 690 P.2d 38, 40 (Ariz.1984); Mianecki v. Second Judicial Dist. Court, 99 Nev. 93, 658 P.2d 422 (1983); State v. Silva, 86 Nev. 911, 478 P.2d 591 (1971); Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968). Likewise, we hold that the duty delineated in Restatement (Second) of Torts § 319 (1965) exists in Idaho.

C. The Discretionary Function Exception.

As an alternative basis for its decision, the district court ruled that under Chandler*s construction of the “discretionary function” exception, I.C. § 6-904(1), “because the prison and parole system have traditionally been regarded as governmental functions, the Board and its employees would enjoy immunity for planning and operations decisions made in their supervision of parolees.” R., Vol. 2, p. 118. Chandler’s holding to which the district court referred states:

In our view, the purpose behind the discretionary function-exception is to preserve governmental immunity from tort liability for the consequences which arise from the planning and operational decision-making necessary to allow governmental units to freely perform their traditional governmental functions. Chandler, supra, 104 Idaho at 485, 660 P.2d at 1328 (emphasis original).

Chandler suggests no support for this construction of I.C. § 6-904(1) from the language of § 6-904(1) itself. In addition, Chandler declined to consider the federal case law on this provision, relying solely on the review of such eases made in Dunbar. As already explained, Dunbar failed to comprehend which provision of the Federal Act certain key federal cases were addressing. As the Supreme Court recently explained in Varig, supra, and as earlier discussed, there is no unresolved inconsistency between such cases as Indian Towing, Rayonier, and Eastern Airlines and Dalehite. 104 S.Ct. at 2763-65. In light of these facts, counsel for Sterling again earnestly beseeches us to reconsider this provision of the Idaho Act. As with the preceding part of this opinion, we first turn to the language of the subsection itself, and then to pre-1971 federal authority on the question.

I.C. § 6-904(1) provides:

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.)

Addressing first the second clause excepting claims arising out of a "discretionary function or duty,” we readily find guidance in the dictionary definition of discretion as the “ability to make responsible decisions,” and as “individual choice or judgment.” Webster’s New Collegiate Dictionary (1st ed. 1977). However, as the California Supreme Court has observed, virtually all human endeavors, even the driving of a nail, involve some type of discretion as commonly defined. Johnson, supra, 447 P.2d at 357. Clearly, then, “discretionary function” 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. Id.; see also Downs v. United States, 522 F.2d 990, 995 (6th Cir.1975) (even driving an automobile, which Congress indicated was a nondiscretionary act, involves judgment); Wainscott v. State, 642 P.2d 1355, 1356 (Alaska 1982) (“Not all decisions involving an element of discretion, however, fall within the discretionary function exception.”), quoted with approval in Chief Justice Donaldson’s dissent in Chandler, supra, 104 Idaho at 489, 660 P.2d at 1332.

The first clause in § 6-904(1) casts some light on the meaning of “discretionary” when it provides for immunity from claims arising out of governmental employees’ actions “in reliance upon or the execution or performance of a statutory or regulatory function,” but only where the governmental employees exercised “ordinary care.” To execute or perform a statutory or regulatory function is to implement (or make operational) the policy involved in statutory and regulatory functions. The fact that this clause is joined to the “discretionary function” clause with the disjunctive “or” demonstrates that the two clauses describe mutually exclusive conduct. Dalehite, supra, 346 U.S. at 34, 73 S.Ct. at 967; Downs, supra, 522 F.2d at 996. Thus, the term “discretionary function” could not include the execution or performance of, i.e., the implementation of, statutory or regulatory policy. Since discretionary functions involve actions qualitatively different from implementing policy, and since the former by definition involve the exercise of choice, judgment, and the ability to make responsible decisions, then discretionary functions must actually involve the formulation of policy.

The holding in Chandler, supra, 104 Idaho at 485, 660 P.2d at 1328, that the discretionary functions exception preserves immunity for planning and operational decisionmaking robs the first clause of its meaning. The first clause extends immunity to operational decisionmaking only when that decisionmaking is carried out with ordinary care. Further, to exempt both planning and operational functions excepts all governmental functions. Beyond planning a governmental action, and putting it into operation, what else does a government do in its total function of governing? To exempt operational conduct is not in keeping with the general rules that the express exceptions be closely construed, Kosak, supra, 104 S.Ct. at 1523 n. 9, and that the Idaho Act be construed “liberally” and “ ‘with a view to accomplishing [its] aims and purposes, and attaining substantial justice____’” Farber, supra, 102 Idaho at 402, 630 P.2d at 689 quoting Keenan, supra, 68 Idaho at 438, 195 P.2d at 670.

The legislative history of the Federal Act supports the interpretation that the two clauses created a distinction between policymaking functions and operational functions, with the latter protected by immunizing only when carried out with due care.⁸ A key paragraph which appeared numerous times in the federal legislative history stated that there would be no liability “growing out of an authorized activity, such as a flood-control or irrigation project, where no negligence on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid.” H.R. Rep. No. 2245, 77th Cong., 2d Sess., p. 10 (emphasis added) quoted in Dalehite, supra, 346 U.S. at 29, n. 21, 73 S.Ct. at 964, n. 21. This sentence refers to the first clause, and explains that immunity would extend to actions putting into operation the policy decisions of the government, even if that policy was negligently formed, so long as the actions were performed non-negligently.

The next four sentences in the aforementioned paragraph explain the purpose of the “discretionary function” clause:

[The exception] is also designed to preclude application of the bill to a claim against a regulatory agency, such as the Federal Trade Commission or the Securities and Exchange Commission, based upon an alleged abuse of discretionary authority by an officer or employee, whether or not negligence is alleged to have been involved. To take another example, claims based upon an allegedly negligent exercise by the Treasury Department of the blacklisting or freezing powers are also intended to be excepted. The bill is not intended to authorize a suit for damages to test the validity of or provide a remedy on account of such discretionary acts even though negligently performed and involving an abuse of discretion. Nor is it desirable or intended that the constitutionality of legislation, or the legality of a rule or regulation should be tested through the medium of a damage suit for tort. Id. (emphasis added).

Thus, activities involving the setting of regulation and policy were those intended to fall within the term “discretionary.”⁹

In its interpretation of the Federal Act and its legislative history the United States Supreme Court recognized and adhered to this planning/operational distinction. In Dalehite, supra, parties injured in the Texas City explosion of 1947 alleged that the government had negligently planned the program to produce ammonium nitrate fertilizer. 346 U.S. at 35, 73 S.Ct. at 967. The specific decisions concerned were those of the Field Director of Ammunitions Plants, by which the Field Director established by regulation for all plants the bagging temperature, the type of bagging, the labeling, and the type of coating to be used on the fertilizer. Id. at 39, 73 S.Ct. at 969. The Court held that “[t]he decisions held culpable were all responsibly made at a planning rather than operational level and involved considerations more or less important to the practicability of the Government’s fertilizer program.” Id. at 42, 73 S.Ct. at 971. The Court held that the discretionary function exception included generally “determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion.” Id. at 35-36, 73 S.Ct. at 963.¹⁰

In dicta, the Court continued: “It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.” Id. at 36, 73 S.Ct. at 968. Here the Court refers to the immunity granted in the first clause, but omits any mention of the “due care” requirement. However, the plaintiffs had not alleged that the bagging regulations were carried out negligently but rather that the regulations themselves were negligently established. Id. at 23, 38-40, 73 S.Ct. at 969-70. Subsequent decisions of the Court made it abundantly clear that “due care” is indeed required at the operational level.

In Indian Towing, as discussed in the preceding part of this opinion, the Court dealt primarily with 28 U.S.C. §§ 1346(b) and 2674 rather than with the discretionary function exception. Nevertheless, the Court made it known that activity at the “operational level” was not “discretionary.” With obvious references to the two clauses of the exception, the Court explained:

The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act. Indian Towing, supra, 350 U.S. at 69, 76 S.Ct. at 126 (emphasis added).

Thus, the decision to operate the lighthouse was discretionary as described in the second clause of the exception; the operation of the lighthouse itself was but the implementation of policy as described in the first clause. The first clause, of course, requires due care in order for immunity to apply.

Subsequent decisions in agreement with Indian Towing are: Rayonier, supra, 352 U.S. at 318-20, 77 S.Ct. at 376-77 cited with approval in Chandler, supra 104 Idaho at 487, 660 P.2d at 1350 (Donaldson, C.J., dissenting); Hatahley, supra, 351 U.S. at 181, 76 S.Ct. at 752 (analyzes the two clauses in similar fashion as in Indian Towing); see generally Reynolds, supra, at 99-104; Comment, Federal Tort Claims Act: The Development and Application of the Discretionary Function Exception, 13 Cumberland L.Rev. 535, 541-46 (1982-83). Lower federal courts before and after 1971 generally have applied the planning/operational analysis as first delineated in Dalehite and subsequently modified in Indian Towing. E.g., Nevin v. United States, 696 F.2d 1229, 1230 (9th Cir.1983) cert. denied 464 U.S. 815, 104 S.Ct. 70, 78 L.Ed.2d 84; Driscoll v. United States, 525 F.2d 136, 138 (1975); United States v. State of Washington, 351 F.2d 913, 916 (9th Cir.1965); Moyer v. United States, 302 F.Supp. 1235, 1237 (D.Fla.1969), rev’d on other grounds 481 F.2d 585 (5th Cir.1973); Cohen v. United States, 252 F.Supp. 679, 687-88 (N.D.Ga.1966), rev’d on other ground, 389 F.2d 689 (5th Cir.1967); Colorado Insurance Group, Inc. v. United States, 216 F.Supp. 787, 793 (D.Colo.1963); see generally, 36 A.L.R.Fed. 240, 255-58; 28 U.S.C.A. § 2680 notes 12, 13, 18, 19; Hall, supra, at 231; Comment, supra, at 541-553.

In short, prior to the adoption of the Idaho Act, the United States Supreme Court had established that the discretionary function exception provided immunity to (1) activities which involved the establishment of plans, specifications and schedules where there is room for policy judgment and decision (generally referred to as planning activities), and (2) activities involving the implementation of statutory or regulatory policy (generally referred to as operational activities), so long as those activities are performed with due care.

Under this test, the reviewing court looks not to the status or rank of the actor, but rather to the nature of the conduct in order to determine whether that conduct involved the exercise of discretion. Varig, supra, 104 S.Ct. at 2765 (citing Dalehite, supra); Downs, supra, 522 F.2d at 997; Smith v. United States, 375 F.2d 243, 246 (5th Cir.1967), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106. The court then, guided by the Supreme Court’s general distinctions as set out above, determines whether the conduct is planning or operational. If the former is the case, the government is immune even where the planning was negligent; if the latter, immunity is contingent upon the use of due or ordinary care. For example, when the FBI established its policy for dealing with hijackings in its handbook, it was conducting a planning activity involving policy formulation, for which the government was immune under the discretionary function clause even if its policy was negligently set; however, when FBI agents applied that policy to an actual hijacking, those agents were carrying out operational activities, for which the government is immune under the first clause of the exception so long as the agents used due (or ordinary) care. Downs, supra, 522 F.2d at 997; see also, e.g., Cohen, supra, 252 F.Supp. at 688 (admission of prisoner occurs at planning level, but failure to protect prisoner from a known dangerous prisoner occurred at operational level); Colorado Insurance, supra, 216 F.Supp. at 792 (SEC agents’ actions to destroy plaintiff’s business occurred on operation level); Sullivan v. United States, 129 F.Supp. 713, 714-15 (N.D.Ill.1955) (FBI agent’s negligence in automobile pursuit occurred at operational level); cf. Doe v. Arguelles, 716 P.2d 279, 283 (Utah 1985) (decision to parole juvenile delinquent was discretionary, but the negligent supervision of that juvenile was not).

It is true that some difficulty may be encountered in drawing the line between activity which is planning and activity which is operational. However, as the California Supreme Court has noted, the exercise has the advantage of affording immunity where such immunity is needed and desirable:

Admittedly, our interpretation will necessitate delicate decisions; the very process of ascertaining whether an official determination rises to the level of insulation from judicial review requires sensitivity to the considerations that enter into it and an appreciation of the limitations on the court’s ability to reexamine it. Despite these potential drawbacks, however, our approach possesses the dis-positive virtue of concentrating on the reasons for granting immunity to the governmental entity. It requires us to find and isolate those areas of quasi-legislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision. Johnson, supra, 447 P.2d at 360-61 (footnote omitted).

One commentator noted that, for all its difficulties, the planning/operational test is soundly based on the statute and case law, and soundly premised on the purposes of the exception:

The planning-operational test is relatively simplistic; further, it has considerable support and definitional guides provided by case law. It is a formula already in use that can achieve the purposes for which the exception is needed. It will not turn the “twilight zone” of the Act into bright day, but it will permit the basic purposes of both the Act and the exception to be achieved. Reynolds, supra, 57 Georgetown L.J. at 132.

As this commentator explained, the planning/operational analysis (1) enables courts to avoid second-guessing the policy judgment of the government,¹¹ and to primarily deal with negligent conduct, which courts are well-equipped to do, and (2) precludes widespread liability by immunizing policy choices of broad impact. Id. at 128.

A potential weakness of the test is its application to judicial conduct. The test is designed to deal with “the discretion of an executive, legislator, or administrator, not that of a judge.” Id. at 131. In this circumstance, the test must accommodate the important policy of judicial immunity. The decisionmaking of judges must fall within the discretionary function exception in order to afford the insulation necessary for judges to independently carry out their tasks without the fear of consequences. Id.; see Acevedo, supra, 690 P.2d at 40.

One circumstance in particular has posed no problems to reviewing courts. When the plaintiff alleges that a government official has negligently acted in not complying with the policy constituted in a statute, regulation, or court order, then there is no immunity. Dalehite, supra, 346 U.S. at 36, 73 S.Ct. at 968 “ [A]cts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.” (Emphasis added.)); Hatahley, supra, 351 U.S. at 177-81, 76 S.Ct. at 749-52; (the exception provides no immunity for government agents’ seizing and destroying plaintiffs’ horses without affording the notice required under the Taylor Grazing Act); Birnbaum v. United States, 588 F.2d 319, 330 (2d Cir.1978) (“[T]he CIA’s mail opening project could not be a ‘discretionary act’ if the Agency lacked authority to conduct such a program.”); Semler, supra, 538 F.2d at 127 (probation officer’s failure to lay requests for change in status of psychiatric patient before the judge as required by court order was nondiscretionary act); Acevedo, supra, 690 P.2d at 41 (action of probation officers contrary to court order cannot be discretionary); Johnson, supra, 447 P.2d at 356-57 (where an official is left with no choice, that official’s acts are nondiscretionary); Muskopf v. Corning Hospital District, 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, 462 (1961) (“[T]he state may be liable for the harm caused by its agents’ violations of such [traffic] laws.”). Indeed the fact that the first clause extends immunity to non-negligent conduct in the execution of policy carries with it the converse implication that there is no immunity where the government official was negligent in failing to execute that policy.

A final point of confusion must be addressed. Without any reference to authority, Chandler held that the discretionary function exception to immunize decisionmaking was “necessary to allow governmental units to freely perform their traditional governmental functions.” Chandler, supra, 104 Idaho at 485, 660 P.2d at 1328 (emphasis in original). Nothing in the definition of “discretion” and nothing in the entire framework and scheme of the Tort Claims Act itself provides even an inkling of any possible reference to “traditional governmental functions.” To the contrary, the exercise of choice and judgment and the making of responsible decisions take place daily in all human activities. The United States Supreme Court specifically rejected such a derivation. Eastern Airline, supra, 350 U.S. 907, 76 S.Ct. 192, explained in Varig, supra, 104 S.Ct. at 2764-65. Most importantly, and as previously illustrated, such a derivation would convert to mere surplus-age those expressly enumerated exceptions found in I.C. § 6-904 which involve “traditional” governmental functions. Chandler, supra, 104 Idaho at 488, 660 P.2d at 1331 (Donaldson, C.J., dissenting). We hold that the discretionary function exception does not extend immunity on the basis of certain governmental functions having been in pre-1971 days judicially described as “traditional.”

The import of the federal discretionary function exception was the subject of much litigation prior to its adoption in the Idaho Act. As our review above has revealed, the United States Supreme Court had firmly established the planning/operational test for determining the applicability of the exception. Nothing overcomes the presumption that the Idaho legislature adopted this test with its adoption of the exception. To the contrary, the test well reflects the language of and policy behind the exception. Accordingly, with the general rules of construction for the Idaho Act in mind, we hold that the planning/operational test as described above (including the discussion of judicial functions and of conduct in violation of policy) applies to the discretionary function exception of the Idaho Act, I.C. § 6-904(1). See Chief Justice Donaldson’s dissent in Chandler, supra, 104 Idaho at 488, 660 P.2d at 1331 (“I believe that the Court should reconsider and adopt the planning-operational distinction as an appropriate test of the discretionary function exception.”). Anything in Chandler contrary to our holding is overruled.

A proper application of our holdings to this case is not difficult. For purposes of this appeal, defendants have admitted that the probation officer negligently permitted Bloom to violate certain conditions set in both the agreement of probation and the court’s order of probation (for example, in allowing Bloom to drive for recreational purposes as he was doing at the time of the accident), and that the probation officer was negligent in enforcing other conditions of probation. See Part I, supra. While the setting of those conditions involved policy judgment and thus constituted a planning function, the implementing of those conditions was not a matter of policy or even of choice. The probation officer was vested with no discretion to permit the violation of these conditions, but was required to use “ordinary care” in supervising the “execution or performance of” the conditions set for Bloom’s probation. I.C. § 6-904(1). Accordingly, we hold that I.C. § 6-904(1) does not stand as a bar of immunity based upon the facts of this case as presented at this time.

In so holding, we act in accordance with all of the most highly applicable cases we have examined, including a number of cases directly on point. Payton, supra, 679 F.2d at 481-83 (establishing parole guidelines is discretionary; application in individual cases is operational); Semler, supra, 538 F.2d at 123-27 (probation officer’s negligent failure to lay request for change of probationer’s status before judge, in violation of court order, was non-discretionary act subject to liability); Cohen, supra, 252 F.Supp. at 688 (Failure to exercise ordinary care in supervision of prisoner after prisoner had been classified for purposes of confinement was nondiscretionary); Arguelles, supra 716 P.2d at 283 (negligent supervision of paroled “sexually aggressive” youth who stabbed and raped plaintiff was nondiscretionary and subject to liability); Acevedo, supra, 690 P.2d at 41 (probation officers’ permitting probationer to have contact with children under the age of 15 in violation of court order, which contact resulted in plaintiff children being molested, was nondiscretionary); Mianecki, supra, 658 P.2d at 424 (negligent transfer and placing of probationer, which negligence resulted in the sexual assault on plaintiff child, was nondiscretionary); Silva, supra, 478 P.2d at 593 (negligent supervision of inmates in an “honor camp” is “operational”); Johnson, supra, 447 P.2d at 362 (implementation of standards for parole is nondiscretionary); see also Hatahley, supra, 351 U.S. at 181, 76 S.Ct. at 752; Muniz, supra, 374 U.S. at 152-53, 83 S.Ct. at 1852-53 (prison officials’ failure to prevent violent prisoners from injuring plaintiff results in liability); Jablonski v. United States, 712 F.2d 391, 396 (9th Cir.1983) (failure of government psychiatrist to warn foreseeable victim was “operational”); Berman v. United States, 572 F.Supp. 1486, 1492-93 (N.D.Ga.1983) (failure of government in legally imposed obligation to supervise and evaluate representative of government is nondiscretionary).

It is not for us to consider at this time any contention that the probation officer did not actually “permit” Bloom to violate the conditions of his probation, and acted reasonably and with ordinary care in the supervision of Bloom. Clearly, if the probation officer acted with ordinary care, the first clause of the discretionary function exception may afford immunity even though the conditions of probation were negligently set. However, we must assume the contrary for the purposes of the motion for judgment on the pleadings.

The judgment of the district court granting the State’s motion for judgment of dismissal on the pleadings is reversed and the cause remanded for further proceedings not inconsistent herewith.

Costs to appellant.

DONALDSON, C.J., HUNTLEY, J., and McFADDEN, J. pro tern, concur.

1 . Dunbar purported to review the discretionary. function exception to the Idaho Act. Dunbar, supra, 100 Idaho at 529-30, 602 P.2d at 27-28. Dunbar proceeded to review various cases asserted to deal with this exception, although several, including Indian Towing Co. v. United States, 350 U.S. 61, 63-65, 76 S.Ct. 122, 123-25, 100 L.Ed. 48 (1955), and Rayonier, supra, did not deal with the discretionary function found in 28 U.S.C. § 2680(a), but actually dealt with 28 U.S.C. §§ 1346(b) and 2674. Dunbar, supra, 100 Idaho at 532, 602 P.2d at 30. While Dunbar cited to I.C. § 6-903(a) before reaching its holding based on "such language,” it at that point had returned to a discussion of the language of the discretionary function exception. Id. at 545-46, 602 P.2d at 43-44 (refers back to cases interpreting “such language” of the discretionary function exception, including Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953)). In two subsequent decisions, this Court cited the discretionary function exception as the source for the "parallel functions” test. McClure v. Nampa Highway Dist., 102 Idaho 197, 198-99, 628 P.2d 228, 229-30 (1981); Gavica v. Hansen, 101 Idaho 58, 65, 608 P.2d 861, 868 (1980).

As explained in the next part of this opinion, there is nothing in the discretionary function exception that in any rational way can be said to create such a parallel function test. The term "discretion" in no way implicates uniquely governmental functions without parallel in the private sector. See I.C. § 6-904(1). In addition, prior to 1971 the United States Supreme Court had rejected such an argument based on the Federal Act’s discretionary function exception. Eastern Airlines, Inc. v. Union Trust Co., 221 F.2d 62, aff'd per curiam sub nom. United States v. Union Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796 (1955), explained in United States v. Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660 (1984).

This Court has correctly concluded that the only conceivable source for this implied exception is I.C. § 6-903(a). Chandler Supply Co., Inc. v. City of Boise, 104 Idaho 480, 482-83, 660 P.2d 1323, 1325-26 (1983).

2 . Quoted in Part II.A., supra at p. 214, 723 P.2d at p. 758.

3 . Counsel for Sterling also argued that parallel functions to that of a probation officer supervising a probationer do exist in the private sector, in the functions of a parent supervising a child and a mental institution supervising a patient. Because of our holding today we need not reach these arguments.

4 . Indian Towing focused primarily on 28 U.S.C. § 2674, which differs somewhat in form though not in substance from the pertinent language in I.C. § 6-903(a) (see quotations supra part IIA). Both statutes define the government's potential for liability as that which private individuals bear. Accordingly, the presumption that the legislature adopted the Supreme Court’s construction still pertains. If anything, the language of 28 U.S.C. § 2674 lends itself more readily to a "uniquely governmental function” exception, with its reference to governmental liability under “like circumstances” as private individuals. Nevertheless, Indian Towing and subsequent cases found there to be no such exception.

Perhaps more importantly, the Indian Towing Court had before it 28 U.S.C. § 1346(b), which contains language nearly identical to I.C. § 6-903(a) making the government liable "where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Neither in Indian Towing nor in any subsequent decision has the Supreme Court found a "uniquely governmental" or “parallel" function exception lurking in this language.

5 . Further evidence that the parallel function test is a recasting of the governmental/proprietary test is found in Gavica, supra. That case explained that the governmental/proprietary distinction found in Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), was consistent with the parallel function test of Dunbar. Gavica, supra, 101 Idaho at 65, 608 P.2d at 868. With the advent of a legislative creation of governmental liability, Smith no longer had any viability.

6 . This only states the key distinctions between national parks and wild animal parks. National parks also differ in that they preserve the native flora, fauna, and all other natural features. They also preserve and maintain natural processes related to reproductivity and mortality in the biota, and to changes in the physical environment. None of this characterizes wild animal parks.

7 . Significantly, the legislature immunized governmental entities and employees from liability for negligently paroling or releasing a prisoner or failing to revoke the parole or release, but not for negligently supervising probationers or failing to revoke a probation. I.C. § 20-231. If the legislature had believed that such immunity ought to extend to the latter actions, it naturally would have included them in § 20-231. Their decision to omit supervision of probationers from the grant of immunity implies that the legislature intended, that its requirement set forth in § 20-219 was in no way abrogated or modified.

8 . The federal version of the discretionary function exception uses the term "due care” rather than "ordinary care." The exception reads:

The provisions of this chapter and section 1346(b) of this title shall not apply to—

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such 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 federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a).

9 . As an example of a circumstance in which the government would be potentially liable, this same passage refers to automobile accidents in which a government employee was negligent. However, the provision also refers more generally to "common-law torts.” Certainly, Congress and the Idaho legislature did not mean to provide for liability only in the case of negligence in automobile accidents; if they had, they could have drafted much shorter and more straightforward tort claims acts. This Court in Dunbar stated "we do not contemplate that liability under the Idaho Tort Claims Act will result only from damages resulting from automobile accidents.” 100 Idaho at 546, 602 P.2d at 44; accord, Hatahley, supra, 351 U.S. at 181, 76 S.Ct. at 752 (federal agents' confiscations of plaintiffs’ horses without notice as required by law were "wrongful trespasses” outside the scope of the discretionary function exception).

10 . Dunbar, supra, mistakenly interpreted Dalehite as affording immunity "solely because of the governmental official level at which a decision was made to endanger others.” 100 Idaho at 546, 602 P.2d at 44. Dalehite’s focus was not so much on the level of the decision as on the nature of the decision, whether planning or operational.

11 . This policy consideration is important at the planning level, but far less so at the operational level. Social, economic and political policy makers must be able to operate without the interference of law suits. Spencer v. New Orleans Levee Bd., 737 F.2d 435, 437 (5th Cir.1984); Reynolds, supra, at 121-22. However, in the case of an official putting policy into operation, the policy of compensating victims of negligence outweighs any conceivable interference with the functioning of the official. Johnson, supra, 447 P.2d at 363 (concerning probation officer). The possibility of any impairment of the officials acting operationally is minimized by the ITCA’s provisions in I.C. § 6-903 for the government to defend and pay the judgments against officials acting in the course and scope of employment and without criminal intent. Johnson, supra, 447 P.2d at 359. The officials’ possible concern for the government’s liability and resulting impact on performance is again outweighed by the policy behind the Act, and is probably a "wholesome” incentive to use ordinary care. Id. at 359-60.