Cross References.

Actions to enforce mortgages against the property of a decedent’s estate,§ 15-3-803.

Attorney’s fees in foreclosure,§ 11-402.

Carey Act lands, foreclosure of water contracts on,§§ 42-2025 — 42-2035.

Deficiency judgments, restriction on amount,§ 6-108.

Injury to real property during foreclosure of mortgage, injunction against,§ 6-407.

Joinder of actions for foreclosure with actions to quiet title,§§ 45-1302, 45-1303.

Judgments affecting land to be recorded with deed records,§ 31-2407.

Lien of judgments, recording,§ 10-1110.

Limitation of mortgagor’s action to redeem a mortgage,§ 5-226; partial redemption,§ 5-227.

Lis pendens,§ 5-505.

Mortgages in general,§ 45-901 et seq.

Partition of real estate, application of proceeds of sale when property encumbered,§ 6-520; resort to other securities compelled,§ 6-521; referee may take receipt for lienholder’s interest,§ 6-535.

Party in possession of property, injunction against injury while foreclosure sale pending,§ 6-407; damages for injury pending sale after execution,§ 6-408.

Real estate mortgages,§ 45-901 et seq.

Receivership in foreclosure proceedings,§ 8-601.

Redemption in cases of sales under execution,§ 11-401 et seq.

Sales under execution,§ 11-304.

Unknown owners or heirs as parties,§ 5-326. Venue of foreclosure actions,§ 5-401.

Compiler’s Notes.

The words “and if it appear from the sheriff’s return that the proceeds are insufficient, and a balance still remains due, judgment can then be docketed for such balance against the defendant or defendants personally liable for the debt” in subsection (1), were placed in brackets by the compiler to indicate that this portion of the section probably has been repealed by§ 6-108 herein.

Other words in parentheses so appeared in the law as enacted.

The amendment by S.L. 1967, ch. 272, which removed personal property from the provisions of this section, became effective at midnight, December 31, 1967, and rights acquired prior to such date may be enforced as if such amendment was not made.

Actions Permitted or Prohibited.

Mortgage may be reformed and foreclosed in the same action. Christensen v. Hollingsworth, 6 Idaho 87, 53 P. 211 (1898).

Corporation may confess judgment for sum due under judgment of foreclosure in consideration of the release of the foreclosure judgment. Dahlstrom v. Walker, 33 Idaho 374, 194 P. 847 (1920).

Where taxes were paid before relation of mortgagor and mortgagee existed and were not included in mortgage, they do not come within this section. Eaton v. McCarty, 34 Idaho 747, 202 P. 603 (1921).

Where mortgagor covenants to keep the property fully insured for the benefit of mortgagee, mortgagee’s action to establish equitable lien on proceeds of such insurance is not in conflict with this section. First Nat’l Bank v. Commercial Union Assurance Co., 40 Idaho 236, 232 P. 899 (1925).

This section does not apply to action whose purpose is to recover security in danger of dissipation and place mortgagee as nearly as possible in status quo. First Nat’l Bank v. Commercial Union Assurance Co., 40 Idaho 236, 232 P. 899 (1925).

— Claim and Delivery.

Where chattel mortgagee elects to enforce his rights by foreclosure, that action becomes exclusive and he cannot subsequently bring action of claim and delivery for possession of property. Cederholm v. Loofborrow, 2 Idaho 191, 9 P. 641 (1886).

This section does not preclude a party from maintaining an action of claim and delivery for the recovery of property mortgaged, where same has been wrongfully taken by third party. O’Neill v. Whitcomb, 3 Idaho 624, 32 P. 1133 (1893).

Chattel mortgagee, foreclosing on cattle voluntarily surrendered, could not thereafter maintain a separate action in claim and delivery to recover cattle held by third party under agister’s lien. Portland Cattle Loan Co. v. Biehl, 42 Idaho 39, 245 P. 88 (1925).

A deficiency judgment on mortgage foreclosure determines that mortgage security has been exhausted and mortgagee cannot go behind such judgment in claim and delivery action and maintain that he is entitled to possession of property not disposed of by foreclosure sale. Portland Cattle Loan Co. v. Biehl, 42 Idaho 39, 245 P. 88 (1925).

Claim and delivery is not “one action” to foreclose mortgage and it may be maintained against stranger for possession of mortgaged chattel, where mortgage entitles mortgagee to possession. Forbush v. San Diego Fruit & Produce Co., 46 Idaho 231, 266 P. 659 (1928). Where a claim and delivery action for possession of property sold under a conditional sale contract was held, on appeal, not maintainable because title to the property vested in the vendee by the vendee’s subsequent mortgage to the vendor, cause was remanded to allow plaintiff to amend his complaint and convert action into one of foreclosure. Birkeland v. Clearwater Concentrating Co., 64 Idaho 122, 127 P.2d 1047 (1942).

A claim and delivery action for possession of machinery sold on a conditional sales contract was not maintainable, where such machinery was subsequently mortgaged by the vendee to the vendor, since the taking of the mortgage vested title in the vendee, and the only method of enforcing any right secured by the mortgage was by a foreclosure proceeding. Birkeland v. Clearwater Concentrating Co., 64 Idaho 122, 127 P.2d 1047 (1942).

— Conversion.

Where action was primarily one to foreclose chattel mortgage, it is proper to join in action claim for conversion against parties who have converted certain chattels covered by mortgage. Berg v. Carey, 40 Idaho 278, 232 P. 904 (1925).

Mortgagee may bring action for conversion of mortgaged chattel when it has passed into hands of third party, such action having no connection with the mortgage security as such or with the mortgage debt. Forbush v. San Diego Fruit & Produce Co., 46 Idaho 231, 266 P. 659 (1928).

— Decedent’s Estate, Claims Against.

With reference to its application to enforcement of claim against decedent’s estate, filing of claim with administrator is not action within meaning of section, and gives to claimant no right of action, but leaves selling of property and payment of debts to discretion of administrator in manner prescribed by law. Kendrick State Bank v. Barnum, 31 Idaho 562, 173 P. 1144 (1918); Berry v. Scott, 43 Idaho 789, 255 P. 305 (1927).

A petition by the holder of a mortgage upon real estate to require the administrator of the deceased mortgagor’s estate to sell the mortgaged property “to secure the just rights or interests of the creditors” is not a proceeding to foreclose the mortgage. McKenney v. McNearney, 92 Idaho 1, 435 P.2d 358 (1967).

— Ejectment.

Where contract and deed clearly show that deed was given to secure a debt, creditor cannot maintain ejectment but must foreclose his lien as a mortgage. Dickens v. Heston, 53 Idaho 91, 21 P.2d 905 (1933). To same effect, see Kelley v. Leachman, 3 Idaho 392, 29 P. 849 (1892).

A mortgagor, sued in ejectment but claiming his deed absolute in form to mortgagee was in fact a mortgage, need not tender the amount of the debt in making such claim where the debt was not yet due. Dickens v. Heston, 53 Idaho 91, 21 P.2d 905 (1933).

Attorney’s Fees.

Action to foreclose mortgage given to secure several notes is a separate and distinct action, and but one fee can be allowed in such action; if such fee is stipulated by mortgage to be reasonable, the court has no authority to allow a larger sum. Lewis v. Sutton, 21 Idaho 541, 122 P. 911 (1912).

Collection of Debt Against Mortgagor’s Successor.

To entitle plaintiff in foreclosure proceeding to recover attorney’s fees, where same have been stipulated for in mortgage, plaintiff must tender evidence upon two propositions: First, that plaintiff has agreed to pay his counsel a fixed or reasonable sum for his services; second, reasonableness of the fee. Lewis v. Sutton, 21 Idaho 541, 122 P. 911 (1912). Collection of Debt Against Mortgagor’s Successor.

A mortgagee was not precluded from suing to collect the entire debt secured by a mortgage where the debt was not due and where there was no basis to foreclose the mortgage at the time the property was sold to a third party by the trustee of prior deeds of trust for less than the fair market value of the property. Idaho Power Co. v. Benj. Houseman Co., 123 Idaho 674, 851 P.2d 970 (1993).

Conditional Sales Contract.

This section does not preclude recovery on personal judgment under other provisions of law. Petersen v. Philco Fin. Corp., 91 Idaho 644, 428 P.2d 961 (1967).

Construction and Purpose of Section.

From this section it is evident that legislature intended to do away with multiplicity of suits, as it has fully provided for protection of all rights in one suit. Portland Cattle Loan Co. v. Biehl, 42 Idaho 39, 245 P. 88 (1925); Harshbarger v. Rankin, 50 Idaho 24, 293 P. 327 (1930).

Intention of legislature in enacting this section was to provide exclusive remedy in such cases. Berry v. Scott, 43 Idaho 789, 255 P. 305 (1927).

The liability to pay the mortgage debt rests upon the mortgaged property as well as the mortgagor. Steward v. Nelson, 54 Idaho 437, 32 P.2d 843 (1934).

This section prohibits the sale of mortgaged land, or land deeded to secure a debt, without foreclosure to satisfy the debt secured. Jaussaud v. Samuels, 58 Idaho 191, 71 P.2d 426 (1937).

This section is mandatory and its provisions are to be strictly followed. Brockman v. Caviness, 61 Idaho 254, 100 P.2d 946 (1940).

Construction of Foreclosure Decree.

A foreclosure decree is in rem until after sale. Great Am. Indem. Co. v. Bisbee, 59 Idaho 18, 79 P.2d 1037 (1938).

A mortgage foreclosure decree, providing that the purchaser of mortgaged premises at the foreclosure sale should be let into possession thereof, and should have possession on production of sheriff’s deed, conformed to the statute relating to redemption of realty from mortgage foreclosure sale, and cannot be construed to mean that mortgagee or any other purchaser at such sale was to have possession of the mortgaged property prior to one year from the date of sale or before the issuance of the sheriff’s deed. Eastern Idaho Loan & Trust Co. v. Blomberg, 62 Idaho 497, 113 P.2d 406 (1941).

Death of Mortgagor.

In the event of the death of the mortgagor, if the mortgagee believes that the security is sufficient to pay his mortgage, he may waive all recourse to a deficiency judgment and look alone to the security to pay the mortgage; or, if he does not believe the security to be sufficient to pay the amount of the mortgage, he may present his claim to the executor or administrator and, if it be rejected, he may then bring an action to foreclose without waiving recourse against the other property of the estate. Berry v. Scott, 43 Idaho 789, 255 P. 305 (1927).

Deed Construed as Mortgage.

Where a deed and a separate agreement for a reconveyance on specified conditions are such as to constitute together in legal effect a mortgage, mortgagee’s remedy in case of default of mortgagor is by foreclosure and sale; he cannot maintain ejectment. Kelley v. Leachman, 3 Idaho 392, 29 P. 849 (1892).

A deed absolute on its face and a contemporaneous contract for reconveyance upon payment of the amount due grantee constitutes a mortgage and must be foreclosed. Brown v. Bryan, 5 Idaho 145, 51 P. 995 (1896).

A trust deed executed to secure a given debt, payable at a specific time, is a mortgage and cannot be foreclosed by notice and sale under a power contained in the deed, but only by proceedings under this section. Brown v. Bryan, 5 Idaho 145, 51 P. 995 (1896).

In determining whether a deed, absolute in form, was intended as a mortgage, it is proper to consider previous negotiations of the parties, their agreements, conversations and course of dealings and the value of the property may likewise be considered, together with the necessitous condition of mortgagor in connection with the inadequacy of the consideration. Dickens v. Heston, 53 Idaho 91, 21 P.2d 905 (1933).

Where a deed is absolute in form, but in fact is given as a mortgage, the mortgagee is not deprived of his right of indebtedness nor of his mortgage lien, but he may not protect his rights by an action in ejectment. Dickens v. Heston, 53 Idaho 91, 21 P.2d 905 (1933).

In suit to have deed and contract for reconveyance decreed to constitute a mortgage, complaint alleging that the grantees paid the balance of the purchase price to the vendors of the grantors and that the deed was executed for the purpose of securing repayment of the money and that the grantees were not in default was sufficient on demurrer. Fond v. McCreery, 55 Idaho 144, 39 P.2d 766 (1934).

An agreement by one of the mortgagors, the owners of the first mortgage, and by the second mortgagee which had purchased the property on foreclosure of the second mortgage, under which the second mortgagee deeded the realty to the owners of the first mortgage, the consideration for the deed being paid by the mortgagors, constituted a “mortgage” requiring a foreclosure to satisfy the debt secured, where it was not the intention of the parties to cancel the first mortgage or the debt. Jaussaud v. Samuels, 58 Idaho 191, 71 P.2d 426 (1937).

An instrument absolutely conveying realty stands as the clearly ascertained intention of the parties, which must be enforced unless it is shown by convincing evidence that the instrument, as delivered and accepted, was under a different mutual intention;, and, where one seeks to prove that an instrument which purports on its face to be an absolute conveyance of title is in fact a mortgage, he must do so by clear, satisfactory and convincing proof. Hill v. Daugherty, 63 Idaho 12, 115 P.2d 759 (1941).

A grantor seeking to show that an absolute conveyance is not what it naturally purports to be has the burden of making strict proof of that fact, and slight and indefinite evidence should not be permitted to change the character of the transaction given the form of a bargain and sale. Hill v. Daugherty, 63 Idaho 12, 115 P.2d 759 (1941).

Where the court found defendant’s deeds under which plaintiff claimed title to be mortgages and granted defendant sixty (60) days in which to pay the amount found to be due on such mortgages, it was error to decree that, upon failure of defendant to make such payment, the mortgages should be deemed foreclosed and title quieted in plaintiff. Gem-Valley Ranches, Inc. v. Small, 90 Idaho 354, 411 P.2d 943 (1966).

Deed Not a Mortgage.

Where deed, and the expressed intent of the parties, clearly and unambiguously showed that the deed was not a mortgage, deed should not have been treated as a security instrument under this section and§ 6-104. Kerr Land & Livestock, Inc. v. Glaus, 107 Idaho 767, 692 P.2d 1199 (1984).

Defendant’s Rights.

Where the fair market value of a farm upon which defendants discontinued making mortgage payments exceeded both the first and second mortgages and the defendants had a legal right to insist the plaintiffs first look to their security for payment on the note, and where the defendants had the right to claim the protection of§ 6-108 which prohibits a deficiency judgment if the value of the security is equal to or exceeds the mortgage indebtedness, by insisting on a nonrecourse note and a release of individual liability, the defendants obtained no greater rights than they had by statute under the circumstances then existing, and their insistence on retaining these rights could not form the basis of a claim of economic duress. Isaak v. Idaho First Nat’l Bank, 119 Idaho 988, 812 P.2d 295 (Ct. App. 1990).

Deficiency Judgment.

In connection with the cases set out under the heading, see§ 6-108.

Provision of this section for docketing deficiency judgment against person liable for debt has no application to foreclosure of a chattel mortgage by notice and sale. Advance Thresher Co. v. Whiteside, 3 Idaho 64, 26 P. 660 (1891); South Side Live Stock Loan Co. v. Iverson, 45 Idaho 499, 263 P. 481 (1928).

If, in a suit to foreclose a mortgage, the court should decide that plaintiff is not entitled to foreclosure, yet, nevertheless, the plaintiff should have judgment for any portion of the mortgage debt shown by the pleadings and proof to be due him, against the defendants personally liable therefor. Jaeckel v. Pease, 6 Idaho 131, 53 P. 399 (1898).

Where seller of interest in certain mining claims retains title to buyer’s interest to secure payment of the price, vendor is entitled to foreclose lien so retained on purchaser’s default and to recover deficiency judgment against purchaser on failure of his interest to sell for enough to satisfy debt. Ferguson v. Blood, 152 F. 98 (9th Cir. 1907).

Deficiency judgment is allowable on foreclosure of vendor’s lien. Farnsworth v. Pepper, 27 Idaho 154, 148 P. 48 (1915).

Decree of foreclosure of a mortgage is in no sense a personal judgment, and no personal judgment can be entered until after the foreclosure sale. Perkins v. Bundy, 42 Idaho 560, 247 P. 751 (1926); Great Am. Indem. Co. v. Bisbee, 59 Idaho 18, 79 P.2d 1037 (1938); Donaldson v. Henry, 61 Idaho 634, 105 P.2d 731 (1940).

There is no means of recovering a deficiency except by action against mortgagor. South Side Live Stock Loan Co. v. Iverson, 45 Idaho 499, 263 P. 481 (1928).

Mortgagee, having seized mortgaged chattels without mortgagor’s consent, could not subsequently recover deficiency in suit on mortgage note. Garrett v. Soucie, 46 Idaho 289, 267 P. 1078 (1928).

The debtor is liable to only one action for the recovery of the debt, and this is applicable to a debt secured by mortgage on realty or personalty. Jeppesen v. Rexburg State Bank, 57 Idaho 94, 62 P.2d 1369 (1936).

This section requires that there can be but one action for the recovery of any debt or enforcement of any right secured by mortgage and requires the creditor to proceed for the collection of his debt against the property and to exhaust the security thereof before being allowed to acquire personal judgment against the debtor; and it was intended not to allow the creditor to hold an encumbrance on his debtor’s property and at the same time proceed against him for a personal judgment, either with or without attachment. Jeppesen v. Rexburg State Bank, 57 Idaho 94, 62 P.2d 1369 (1936). The rule that a debtor is subject to but one action for the recovery of a debt secured by mortgage does not apply to and protect an endorser of the note from an independent action against him on his contract of endorsement, where his promise to pay on default of the maker is not likewise secured by a mortgage. Jeppesen v. Rexburg State Bank, 57 Idaho 94, 62 P.2d 1369 (1936).

A decree of foreclosure, originally or after return of sale, must determine who is personally liable for the debt, and without such adjudication, there is no legal basis for a deficiency judgment; a recital in a decree of foreclosure that there is a certain sum owing and unpaid to plaintiff from defendants and ordering a foreclosure of the mortgage is insufficient to justify a deficiency judgment. Donaldson v. Henry, 61 Idaho 634, 105 P.2d 731 (1940).

A foreclosure decree which recited that if the mortgaged premises failed to bring a sufficient amount on a sheriff’s sale to discharge the mortgage debt with costs and expenses of sale, a deficiency judgment should be docketed in conformity with the law and practice of the court was an insufficient determination of a personal liability to warrant an entry of a deficiency judgment. Donaldson v. Henry, 61 Idaho 634, 105 P.2d 731 (1940).

A deficiency judgment entered in a real estate mortgage foreclosure suit was void where the decree of foreclosure, although providing that if the mortgaged premises failed to bring a sufficient amount on sheriff’s sale to discharge the mortgage debt with costs and expenses of sale a deficiency judgment should be docketed, failed to designate any defendant as being personally liable; and the judgment was not aided by the doctrine that all has been determined that should have been. Donaldson v. Henry, 61 Idaho 634, 105 P.2d 731 (1940).

Ex parte orders, which stayed execution on deficiency judgment entered in a real estate mortgage foreclosure suit and, thereafter, vacated order staying execution, were a nullity. Donaldson v. Henry, 61 Idaho 634, 105 P.2d 731 (1940).

The prosecution of an action for recovery of a debt secured by a mortgage in any other manner or form than by foreclosure action is prohibited by this section. Birkeland v. Clearwater Concentrating Co., 64 Idaho 122, 127 P.2d 1047 (1942).

In an action to recover a deficiency judgment, where the realty mortgaged as security is located in another state, this section has no application. American Mut. Bldg. & Loan Co. v. Kesler, 64 Idaho 799, 137 P.2d 960 (1943).

The adoption of S.L. 1937, ch. 190, repealing S.L. 1937, ch. 31, which prohibited any court from entering a deficiency judgment, left§ 6-108 in full force and effect, and the court had the right to enter a deficiency judgment against defendant in a mortgage foreclosure action. Brown v. Deck, 65 Idaho 710, 152 P.2d 587 (1944).

Where beneficiaries of deed of trust opted for judicial foreclosure, rather than foreclosure by advertisement and sale, the court properly determined the amount of the deficiency judgment by proceeding under§ 6-108. Thompson v. Kirsch, 106 Idaho 177, 677 P.2d 490 (Ct. App. 1984).

— Exhaustion of Security.

If the mortgage given as security is defective or has become valueless, the mortgagee, assuming it prevails on the merits, is still entitled to a judgment on the promissory note which is independent of the mortgage security. Gebrueder Heidemann, K.G. v. A.M.R. Corp., 107 Idaho 275, 688 P.2d 1180 (1984). — Exhaustion of Security.

There can be no money judgment in action to foreclose mortgage, either real or chattel, until exhaustion of the mortgage security, after which a money judgment may be entered for any deficiency. Barnes v. Buffalo Pitts Co., 6 Idaho 519, 57 P. 267 (1899); Jeppesen v. Rexburg State Bank, 57 Idaho 94, 62 P.2d 1369 (1936).

Holder of a note secured by mortgage may not maintain action at law, without foreclosing, unless security has become worthless. Clark v. Paddock, 24 Idaho 142, 132 P. 795 (1913); Dighton v. First Exch. Nat’l Bank, 33 Idaho 273, 192 P. 832 (1920); International Mtg. Bank v. Barghoorn, 43 Idaho 24, 248 P. 868 (1926); Berry v. Scott, 43 Idaho 789, 255 P. 305 (1927); Warner v. Bockstahler, 48 Idaho 419, 282 P. 862 (1929).

A bank, which was the payee of a note on which a depositor was an endorser, is entitled to charge the amount due on the note at maturity against the deposit of such endorser without exhausting the security of a mortgage given by the maker of the note subsequent to the execution thereof and the endorsement of same, since the secondary obligation of the endorser was not secured by mortgage. Jeppesen v. Rexburg State Bank, 57 Idaho 94, 62 P.2d 1369 (1936).

This section does not preclude a mortgagee from suing in an independent action on the note for which security was given, where the security has become valueless. Edminster v. Van Eaton, 57 Idaho 115, 63 P.2d 154 (1936).

With regard to a mortgage foreclosure action, a mortgagee must first seek payment of a mortgage debt from the mortgaged property; only if there is a deficiency will the mortgagee be allowed to pursue the other assets of the mortgage debtor. Federal Land Bank v. Parsons, 118 Idaho 324, 796 P.2d 533 (Ct. App. 1990).

— Independent Action.

Where it appears from the return of officer, made in pursuance to this section that there remains a deficiency after applying proceeds of sale upon mortgage debt, mortgagee may maintain action to recover deficiency. Advance Thresher Co. v. Whiteside, 3 Idaho 64, 26 P. 660 (1891).

Notwithstanding this section, where a mortgagee’s security has become valueless, he has a complete and independent action on the note secured by the mortgage, and he may in such action assert his right upon the note independent of the mortgage security. Edminster v. Van Eaton, 57 Idaho 115, 63 P.2d 154 (1936).

— Nature and Sufficiency.

It is essential to validity of decree foreclosing mortgage that it ascertain amount due plaintiff to be realized from sale of the mortgaged property; the decree must be so specific that clerk can issue order of sale thereon without reference to other entries or papers. Vermont Loan & Trust Co. v. McGregor, 5 Idaho 510, 51 P. 104 (1897).

On distribution by federal court of equity in Idaho of assets of an insolvent corporation, trustee of a mortgage in the state is entitled to share as creditor in the unmortgaged assets in hands of receiver on basis of amount of his deficiency judgment only. Westinghouse Elec. & Mfg. Co. v. Idaho Ry., Light & Power Co., 228 F. 972 (D. Idaho 1915).

— Persons Liable.

Water users association members are liable for deficiency judgment on foreclosure sale of association’s assets. Michaelson v. Miller, 53 Idaho 617, 26 P.2d 378 (1933).

On a mortgage foreclosure, where decree was defective as first entered in not naming the defendant personally liable for the payment of the mortgage debt, such decree may be amended at any time by adding a clause designating the defendant who is personally liable, where the record clearly shows who he is. Donaldson v. Henry, 63 Idaho 467, 121 P.2d 445 (1941).

The record showing an execution of a mortgage, entry of the foreclosure decree, and that the mortgagor transferred the mortgaged property, and that by a decree of foreclosure the court adjudged that the transferee “assumed and promised to pay” the mortgage debt clearly disclosed that the transferee was personally liable for the payment of the mortgage debt, so as to authorize an amendment of the foreclosure decree by adding a clause designating the transferee as person personally liable. Donaldson v. Henry, 63 Idaho 467, 121 P.2d 445 (1941).

Existing Law as Part of Mortgage.

Law existing when a mortgage is made enters into and becomes a part of the contract. Steward v. Nelson, 54 Idaho 437, 32 P.2d 843 (1934).

Determining Value.

The correct date for determining the value of real property was the date when the trial court in a foreclosure case determined whether a deficiency judgment should be entered pursuant to§ 6-108. Isaak v. Idaho First Nat’l Bank, 119 Idaho 907, 811 P.2d 832 (1991).

— Pleading and Practice.

In an action on a note secured by a chattel mortgage, the mortgagee is not required to allege that the note was secured by a mortgage originally and then avoid this effect by averment that it had become valueless where this did not appear from the face of the complaint; and in such action the court erred in refusing plaintiff’s proof that the security had become valueless, since plaintiff was not required to reply to the affirmative defense set up in an answer. Edminster v. Van Eaton, 57 Idaho 115, 63 P.2d 154 (1936).

Where the complaint in a suit to foreclose a real estate mortgage merely prayed that the plaintiff have judgment and execution against defendants for any deficiency which might remain, and plaintiff’s motion to set aside a stay of execution theretofore entered did not ask that a personal liability judgment be entered against anyone, plaintiff’s pleadings did not render valid a deficiency judgment which was entered after the decree of foreclosure which failed to designate any defendant as being personally liable. Donaldson v. Henry, 61 Idaho 634, 105 P.2d 731 (1940).

Jurisdiction of Court.

Where court has acquired jurisdiction of mortgagor, it thereby acquired jurisdiction of all parties holding unrecorded conveyances or contracts from the mortgagor, so as to conclude them in foreclosure proceedings. Harding v. Harker, 17 Idaho 341, 105 P. 788 (1909).

In suit to establish trust and foreclosure mortgage in certain county, court has jurisdiction to proceed against mortgage security in that county. Zohos v. Marefolos, 48 Idaho 291, 281 P. 1114 (1929).

Limitations on Application of Section.

This section relates exclusively to mortgages on property in Idaho. Canadian Birkbeck Inv. & Sav. Co. v. Williamson, 32 Idaho 624, 186 P. 916 (1920).

This section is not a limitation upon the power to enter into a contract by which mortgagee may agree to waive or release security of his mortgage. Dahlstrom v. Walker, 33 Idaho 374, 194 P. 847 (1920).

Declared purpose of this section is to protect original debtor against multiplicity of suits and does not extend to actions upon obligations of third persons held by mortgagee as collateral. First Nat’l Bank v. Commercial Union Assurance Co., 40 Idaho 236, 232 P. 899 (1925).

This section applies only to mortgage securities, and one who holds security by way of lien or pledge may sue direct without foreclosure. Mason v. Jansen, 45 Idaho 354, 263 P. 484 (1927).

Proceedings under this section do not apply in cases of foreclosure of chattel mortgage by notice and sale. South Side Live Stock Loan Co. v. Iverson, 45 Idaho 499, 263 P. 481 (1928).

This section has no applicability whatsoever unless action brought against mortgagor directly affects his rights under mortgage contract. Forbush v. San Diego Fruit & Produce Co., 46 Idaho 231, 266 P. 659 (1928).

Mortgage Given Subsequent to Judgment.

This section does not protect an endorser of a note not secured by mortgage at the time he endorsed it by the fact that the maker subsequently gave security. Jeppesen v. Rexburg State Bank, 57 Idaho 94, 62 P.2d 1369 (1936).

One or Several Transactions.

It is error to decree a joint sale of distinct parcels of property mortgaged to secure several different debts, by different mortgages, for the satisfaction of the aggregate amount of all the mortgage debts. Strode v. Miller, 7 Idaho 16, 59 P. 893 (1900).

Action to foreclose a mortgage given to secure several notes is a separate and distinct action. Lewis v. Sutton, 21 Idaho 541, 122 P. 911 (1912).

Where three separate notes secured by three separate mortgages were executed between the same parties, they constituted separate transactions although executed at the same time and could be foreclosed in separate suits. Merchants Trust Co. v. Davis, 49 Idaho 494, 290 P. 383 (1930).

Parties.

One who has purchased mortgaged land and has been in possession of the same and paid taxes thereon for a number of years need not be made a party to foreclosure proceedings where he fails to place his deed on record prior to the commencement of such proceedings. Mills v. Smiley, 9 Idaho 317, 76 P. 783 (1903).

Mortgagor is presumed to represent interests of grantee of unrecorded conveyance in suit to foreclose; and same presumption would arise, where grantee is made a party, that he would represent the interests of a person holding an unrecorded conveyance from such grantee. Harding v. Harker, 17 Idaho 341, 105 P. 788 (1909).

In action to foreclose chattel mortgage, it is always proper and in most instances necessary, to make as parties all who have or claim to have an interest in the property. Bank of Roberts v. Olaveson, 38 Idaho 223, 221 P. 560 (1923). Failure to make holder of unrecorded assignment of lease party to foreclosure of liens against crop did not render judgment invalid as to it. Farm Credit Corp. v. Rigby Nat’l Bank, 49 Idaho 444, 290 P. 211 (1930).

Persons Bound by Proceedings.

Purpose of this section is to regulate enforcement of obligations secured by mortgage, and this section is binding not only on parties to contract but also on subsequent transferees of mortgaged premises with notice. Dighton v. First Exch. Nat’l Bank, 33 Idaho 273, 192 P. 832 (1920).

Person having no other interest in premises than as burying ground is bound by decree of foreclosure. Noble v. Harris, 33 Idaho 401, 195 P. 543 (1921).

Lien of foreclosure judgment held superior to that of holder of unrecorded assignment of unrecorded lease, although he was not made a party to the foreclosure proceedings. Farm Credit Corp. v. Rigby Nat’l Bank, 49 Idaho 444, 290 P. 211 (1930).

Presumption That Conveyance Did Not Extinguish Debt.

The rule that, when a mortgagor has conveyed the mortgaged premises to the mortgagee, the conveyance only operates as a bar to the equity of redemption when it unequivocally appears that both parties so intended, applied where by agreement between one of the mortgagors and the owners of a first mortgage, the land was deeded by the second mortgagee which had acquired the property on a sale under the second mortgage, on the payment of the purchase price by the mortgagors to the owners of the first mortgage, who gave the mortgagor an option to purchase by payment of the mortgage indebtedness. Jaussaud v. Samuels, 58 Idaho 191, 71 P.2d 426 (1937).

Recordation Requirements.

Since a lien against the property in question existed by virtue of the recording of a mortgage, recording a “Judgment and Decree of Foreclosure and Order of Sale” with the county recorder was not required in order to proceed with a sheriff’s sale, or issuance of a sheriff’s certificate of sale and ultimately a sheriff’s deed on foreclosure. Federal Land Bank v. Parsons, 118 Idaho 324, 796 P.2d 533 (Ct. App. 1990).

Remedy Exclusive.

Holder of note, secured by a valid mortgage, has no right to sue on note alone and summon the surety on the note alone, and proceed for a money judgment against him alone, since his proper remedy is to exhaust his rights against the principal on the mortgage first. First Nat’l Bank v. Williams, 2 Idaho 670, 23 P. 552 (1890).

Power of sale given to mortgagee by the mortgage is void and does not authorize the summary foreclosure of the mortgage by mortgagee under such power. Rein v. Callaway, 7 Idaho 634, 65 P. 63 (1901).

Whatever the form of agreement, if it in fact constitutes a mortgage, it can only be enforced by foreclosure. Payette-Boise Water Users’ Ass’n v. Fairchild, 35 Idaho 97, 205 P. 258 (1922).

The “one action” contemplated by this section is action, object of which is to secure personal judgment on original contract of indebtedness against mortgagor and his privy. First Nat’l Bank v. Commercial Union Assurance Co., 40 Idaho 236, 232 P. 899 (1925).

Where a mortgage covenant expressly provided that the mortgagors should “keep the property fully insured for the benefit of the mortgagee, as its interest shall appear,” and the mortgagors had at such time already procured certain insurance thereon in the name of one of them in a less sum than the mortgagee’s interest, the mortgagee, after loss of the property, had an equitable lien upon the proceeds of such policy as against the mortgagors and their assignee for the benefit of creditors made after the fire and where the mortgagee joined the insurance company, the mortgagors and the assignee in an action to establish such equitable lien, such action was not in conflict with this section and did not violate the single action theory enacted in this section. First Nat’l Bank v. Commercial Union Assurance Co., 40 Idaho 236, 232 P. 899 (1925). Action could not be maintained against mortgagor’s co-maker on note, where mortgage was released by plaintiff without foreclosure and security had not become valueless subsequent to giving of mortgage. York v. Roberts, 47 Idaho 312, 274 P. 799 (1929).

An action to foreclose on a mortgage is normally the only action permitted for recovery of any debt secured by a mortgage upon real property. Eastern Idaho Prod. Credit Ass’n v. Placerton, Inc., 100 Idaho 863, 606 P.2d 967 (1980).

This section authorizes a single form of action to collect a debt secured by a mortgage; the mortgage must be foreclosed. A deficiency judgment may be obtained if the foreclosure sale does not satisfy the debt; but the deficiency is limited to the difference between the fair market value of the real property and the amount of the unpaid debt. The creditor may not simply sue on the debt and collect by execution on the judgment. Quintana v. Anthony, 109 Idaho 977, 712 P.2d 678 (Ct. App. 1985).

To collect on a debt secured by a mortgage, the mortgage must be foreclosed; the creditor may not simply sue on the debt and collect by execution on the judgment. Federal Land Bank v. Parsons, 116 Idaho 545, 777 P.2d 1218 (Ct. App. 1989).

Remedy Not Exclusive.

Holders of a promissory note secured by a deed of trust encumbering real property may sue for a money judgment on the note without first exhausting their security by judicial foreclosure or by exercise of the power of sale; Idaho’s single-action statute does not apply to deeds of trust. Frazier v. Neilsen & Co., 115 Idaho 739, 769 P.2d 1111 (1989).

Order of foreclosure did not terminate individual owners’ interests which were not of record when the foreclosure was commenced by the successor in interest to the original developer of a condominium project; the interest asserted by the owners was an equitable interest that had not yet been adjudicated, so there was no mechanism for recording the asserted equitable interest, and this section did not terminate those equitable interests. West Wood Invs. v. Acord, 141 Idaho 75, 106 P.3d 401 (2005).

Right of Redemption.

There is right of redemption from foreclosure sale under this section; from execution sale under§ 11-401, and from other sales under foreclosure of various liens; but the statute nowhere in express terms grants right of redemption from receiver’s sale; and, where sale made is not sale on foreclosure but is sale by court’s receiver, under direct authority and supervision of court, the direction may be that sale be made without right of redemption and that a deed absolute be given; if such decree is made and no appeal is prosecuted from this feature of it, the decree becomes final. Hewitt v. Walters, 21 Idaho 1, 119 P. 705 (1911).

Sale Under Foreclosure.

Where the amount of a senior mortgagee’s lien is less than the judicially determined fair market value of the property, the junior lienholder should be required either to redeem to protect its security or to give credit to the debtor against any deficiency judgment for the difference between the amount realized by the senior mortgagee on the foreclosure sale and the judicially determined fair market value of the property as of the date the junior’s redemption right expired. First Sec. Bank v. Stauffer, 112 Idaho 133, 730 P.2d 1053 (Ct. App. 1986). Sale Under Foreclosure.

It is duty of officer to sell land to highest bidder or, in doubtful cases, to adjourn sale. Federal Land Bank v. Curts, 45 Idaho 414, 262 P. 877 (1927).

As a general rule, mere inadequacy of consideration is not sufficient to set aside sale under foreclosure, but gross inadequacy coupled with slight additional circumstances is sufficient. Federal Land Bank v. Curts, 45 Idaho 414, 262 P. 877 (1927).

It is within power of court to direct how and in what order land shall be sold, or whether it shall be sold in one piece or parcel. Federal Land Bank v. Curts, 45 Idaho 414, 262 P. 877 (1927).

Where decree is silent as to manner or order in which land shall be sold, provisions relating to conduct of sales in execution of judgments apply. Federal Land Bank v. Curts, 45 Idaho 414, 262 P. 877 (1927).

Decree directing that property be sold in manner prescribed by law and practice of court is not direction to sell in any special or particular order, either as whole or in parcels, but is general instruction to sell only in accordance with laws applicable to sales under foreclosure and practice of court, if any, not inconsistent with such statutes. Federal Land Bank v. Curts, 45 Idaho 414, 262 P. 877 (1927).

While practice of acceptance of written bid contained in letter has much to condemn it and should not be encouraged, weight of authority is in favor of validity of such bid, especially where there is no discretion vested in sheriff and amount of bid is definitely fixed. Federal Land Bank v. Curts, 45 Idaho 414, 262 P. 877 (1927).

Simultaneous Foreclosure.

Where acceptable to the mortgagees, there is no impediment to ordering a simultaneous foreclosure; the foreclosure sale would result in each party being reimbursed by priority to the extent of the proceeds, neither would receive a redemption right, and each would receive a deficiency to the extent his or her debt was not satisfied, with appropriate credit being given for the reasonable value of the security. First Sec. Bank v. Stauffer, 112 Idaho 133, 730 P.2d 1053 (Ct. App. 1986).

Single Action Rule.

Seller did not violate the Idaho “single action” rule of this section for judicial foreclosure of a seller’s interest in a land sales contract is an accepted form in Idaho and the state court judgment granted a money judgment and ordered foreclosure on the property through the form of an execution sale. In re Krueger, 127 Bankr. 252 (Bankr. D. Idaho 1991).

Splitting of Actions.

Property owner’s stipulations with the shareholders did not render the owners’ security interest in the farm’s property valueless, because the owners were simply undertaking to collect part of the indebtedness from the shareholders prior to collecting from the farm as the contractual obligations permitted; under the one-action rule, the farm property remained subject to the mortgage securing the promissory notes for the business and land contracts with the owners. Elliott v. Darwin Neibaur Farms, 138 Idaho 774, 69 P.3d 1035, cert. denied, 540 U.S. 1004, 124 S. Ct. 535, 157 L. Ed. 2d 410 (2003). Splitting of Actions.

In foreclosure action where defendants filed cross-complaint alleging failure of plaintiffs to carry out certain agreement and a conspiracy by plaintiffs to ruin defendant’s credit and business so that defendants would have to default, the rule against splitting of actions was not violated by the cross-complaint, all parties interested in the mortgage being before the court. Harshbarger v. Rankin, 50 Idaho 24, 293 P. 327 (1930).

Statute of Limitations.

If remedy upon a note is barred by the statute of limitations, remedy upon a mortgage securing note is also barred. Law v. Spence, 5 Idaho 244, 48 P. 282 (1897).

Where mortgage contract contains an acceleration clause, positive in its terms and without any optional features in it, the statute of limitations as to the whole debt begins to run from a default under such acceleration clause. Canadian Birkbeck Inv. & Sav. Co. v. Williamson, 32 Idaho 624, 186 P. 916 (1920).

Whatever prevents the running of the statute of limitations as to debt also prevents its running as to mortgage lien. Dighton v. First Exch. Nat’l Bank, 33 Idaho 273, 192 P. 832 (1920).

Grantee of mortgagor, although not obligated to pay the debt, who has acquired mortgagor’s interest in the mortgaged premises before foreclosure was barred, cannot plead statute of limitations, if debtor has, by continued absence from the state, suspended period of limitation with respect to the debt. International Mtg. Bank v. Barghoorn, 43 Idaho 24, 248 P. 868 (1926).

Neither this section nor§ 6-108 require a mortgagee to bring a foreclosure action immediately after a default;§ 5-214A permits an action for the foreclosure of a real estate mortgage to be brought within five years of the date of maturity. Isaak v. Idaho First Nat’l Bank, 119 Idaho 907, 811 P.2d 832 (1991).

Title Not Vested in Mortgagee.

The execution of a negotiable note, which was not a title-retaining note and which contained no reference to any conditional sales contract, but was secured by mortgage on real and personal property, was in conflict with the theory that the title to the property, or any part thereof covered by the mortgage, rested in the mortgagee, and the taking of mortgage vested title in the vendee. Birkeland v. Clearwater Concentrating Co., 64 Idaho 122, 127 P.2d 1047 (1942).

Unjust Enrichment.

Where the mortgagee was the purchaser at a foreclosure sale and the bid did not exceed the sums due to the mortgagee under this section, there was no surplus under§ 6-102 from which the occupants could recover the cost of alleged improvements; thus, an unjust enrichment claim against the mortgagee was properly dismissed. Indian Springs L.L.C. v. Andersen, 154 Idaho 708, 302 P.3d 333 (2012).

Vendor’s Liens.

Writ of Assistance.

The legislative policies underlying the mortgage foreclosure statutes should guide the court’s exercise of its equitable powers when enforcing a vendor’s lien; therefore, protections paralleling those given mortgagors are appropriate and may be provided in equity, where sellers of real property assert the existence of vendor’s liens. Quintana v. Anthony, 109 Idaho 977, 712 P.2d 678 (Ct. App. 1985). Writ of Assistance.

Writ of assistance is the appropriate remedy to place in possession the purchaser at a foreclosure sale and may be issued against any and all persons concluded by such judgment. Harding v. Harker, 17 Idaho 341, 105 P. 788 (1909); Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939).

In Idaho the power of the court to issue a writ of assistance does not arise from any statute, but from the practice which obtained at common law. Williams v. Sherman, 35 Idaho 169, 205 P. 259 (1922); Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939).

The power to issue a writ of assistance has always been exercised by courts of equity to place a purchaser of mortgaged premises in possession, after a decree of foreclosure, the expiration of the period of redemption, and the execution and delivery of the sheriff’s deed, where the possession is withheld by any party bound by the decree. Williams v. Sherman, 35 Idaho 169, 205 P. 259 (1922); Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939).

A writ of assistance is a discretionary judicial act and cannot be issued by the clerk of the court on his own authority. Williams v. Sherman, 35 Idaho 169, 205 P. 259 (1922).

A writ of assistance is a form of process issued by a court of equity to transfer the possession of property, and more specifically lands, the title or right to which it has previously adjudicated, as a means of enforcing its decree. Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939).

The sole question to be determined on a motion for a writ of assistance is whether the applicant has a right, as against the party in possession, to use the writ to obtain possession. Eagle Rock Corp. v. Idamont Hotel Co., 60 Idaho 639, 95 P.2d 838 (1939).

Am. Jur. 2d.

55 Am. Jur. 2d, Mortgages, § 573 et seq.

C.J.S.

ALR.

Family allowance from decedent’s estate as exempt from attachment, garnishment, execution, and foreclosure. 27 A.L.R.3d 863.

Right of junior mortgagee, whose mortgage covers only a part of land subject to first mortgage to redeem pro tanto, where he was not bound by foreclosure sale. 46 A.L.R.3d 1362.

Mortgagor’s interference with property subject to order of foreclosure and sale as contempt of court. 54 A.L.R.3d 1242.

Failure to keep up insurance as justifying foreclosure under acceleration provision in mortgage or deed of trust. 69 A.L.R.3d 774.

Necessity of production of original note involved in mortgage foreclosure — Twenty-first century cases. 86 A.L.R.6th 411.

Jurisdiction of Court.

Upon foreclosure of a mortgage against real estate subject to other liens, the trial court had jurisdiction to order the application of funds remaining after payment of the judgment of the mortgage holder to the satisfaction of such junior liens. Credit Bureau v. Sleight, 92 Idaho 210, 440 P.2d 143 (1968).

Unjust Enrichment.

Where the mortgagee was the purchaser at a foreclosure sale and the bid did not exceed the sums due to the mortgagee under§ 6-101, there was no surplus under this section from which the occupants could recover the cost of alleged improvements; thus, an unjust enrichment claim against the mortgagee was properly dismissed. Indian Springs L.L.C. v. Andersen, 154 Idaho 708, 302 P.3d 333 (2012).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Application of Section.

In suit for conversion by mortgagor against holder of chattel mortgage based on sale by sheriff under affidavit of notice and sale prior to alleged default, an instruction in language of this section was erroneous, since this section only authorizes partial sale by order of the court, and hence it does not apply to sale by sheriff under affidavit of notice and sale. Ossmen v. Commercial Credit Corp., 72 Idaho 355, 241 P.2d 351 (1952).

Am. Jur. 2d.

§ 6-104. Mortgage not a conveyance.

A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure sale.

History.

R.S., R.C., & C.L., § 4523; C.S., § 6952; I.C.A.,§ 9-104.

Cross References.

Transfers deemed mortgages,§ 45-904.

Appointment of Receiver.

Construed with§ 8-601, subd. 2, a receiver may, where circumstances justify it, be appointed in foreclosure suit and take possession of property. Westinghouse Elec. & Mfg. Co. v. Idaho Ry., Light & Power Co., 228 F. 972 (D. Idaho 1915).

Deed Not a Mortgage.

Where deed, and the expressed intent of the parties, clearly and unambiguously showed that the deed was not a mortgage, deed should not have been treated as a security instrument under§ 6-101 and this section. Kerr Land & Livestock, Inc. v. Glaus, 107 Idaho 767, 692 P.2d 1199 (1984).

Repossession Without Foreclosure Prohibited.

This section prohibits grantee of deed given to secure a debt from repossessing the property without foreclosure. Fond v. McCreery, 55 Idaho 144, 39 P.2d 766 (1934).

Transaction Construed as Mortgage.

A deed absolute on its face, and a separate agreement by grantee for reconveyance of same tract of land upon payment of consideration named in deed by a specified time, bearing same date as deed, constitute together a mortgage. Kelley v. Leachman, 3 Idaho 392, 29 P. 849 (1892); Brown v. Bryan, 5 Idaho 145, 51 P. 995 (1896).

Trust deed executed upon real estate to secure a given debt, payable at specified time, is a mortgage. Brown v. Bryan, 6 Idaho 1, 51 P. 995 (1898).

Where deed, absolute on its face, has been executed to secure payment of debt, and it is clearly and satisfactorily established that the instrument was intended only as security and that it is, therefore, only a mortgage, title to property remains in grantor. Hannah v. Vensel, 19 Idaho 796, 116 P. 115 (1911). Where transaction in its inception is a mortgage, it will so continue and taking out patent in name of mortgagee will not change nature of transaction. Woodmansee v. Covington, 39 Idaho 749, 230 P. 41 (1924).

On an issue as to whether deed absolute in form was intended as an absolute conveyance or as a mortgage, the test is whether there was a subsisting debt after the conveyance. Dickens v. Heston, 53 Idaho 91, 21 P.2d 905 (1933).

Where defendant’s conveyances were accompanied by promissory notes, the grantee granted the grantor option to repurchase for the amount of his indebtedness, and the total amount received by the grantor was only about one-quarter of the value of the property conveyed, the trial court was justified in concluding the conveyances were mortgages rather than absolute conveyances. Gem-Valley Ranches, Inc. v. Small, 90 Idaho 354, 411 P.2d 943 (1966).

Am. Jur. 2d.

C.J.S.

C.J.S.

§ 6-106. Duty of clerk on return of execution.

Upon the return of such execution by the sheriff, the clerk of the district court issuing the same shall file such execution as in other cases, and as county recorder shall record said execution and return as in other cases of sales of real property. Immediately after such execution and return has been so recorded, as such county recorder he shall prepare a copy of such execution and return and certify the same, which shall be sent by United States mail, postage prepaid, to the county recorder of the other county or counties in which a portion of such real property is situated, and the county recorder of such county or counties shall record such execution and return with the certificate thereto, as in other cases upon the return of executions where real property has been sold.

History.

1909, p. 171, § 2; reen. C.L., § 4525; C.S., § 6954; I.C.A.,§ 9-106.

Cross References.

Filing of duplicate of certificate of sale in the office of county recorder,§ 11-310.

Passage of Title.

Title to real property passes to a foreclosure sale purchaser, under§§ 11-309 and 11-310 and this section, when the purchaser receives the certificate of sale. Indian Springs L.L.C. v. Andersen, 154 Idaho 708, 302 P.3d 333 (2012).

Prerequisite for Issuance.

Since a lien against the property in question existed by virtue of the recording of a mortgage, recording a “Judgment and Decree of Foreclosure and Order of Sale” with the county recorder was not required in order to proceed with a sheriff’s sale, or issuance of a sheriff’s certificate of sale and ultimately a sheriff’s deed on foreclosure. Federal Land Bank v. Parsons, 118 Idaho 324, 796 P.2d 533 (Ct. App. 1990).

Cross References.

Only one action for recovery of debt or enforcement of right permitted,§ 6-101.

Collection of Debt Against Mortgagor’s Successor.

A mortgagee was not precluded from suing to collect the entire debt secured by a mortgage where the debt was not due and where there was no basis to foreclose the mortgage at the time the property was sold to a third party by the trustee of prior deeds of trust for less than the fair market value of the property. Idaho Power Co. v. Benj. Houseman Co., 123 Idaho 674, 851 P.2d 970 (1993).

Computation of Deficiency.

If the fair market value of the mortgaged property is greater than the amount expended by a purchaser at the foreclosure sale (including amounts paid to redeem from prior mortgages) then fair market value will be used to compute the amount of the deficiency; if the total price paid to acquire the property is greater than its fair market value, the cost of acquisition will be used to compute any deficiency. Thompson v. Kirsch, 106 Idaho 177, 677 P.2d 490 (Ct. App. 1984). The fact that foreclosure decree fixes the amount of mortgage indebtedness does not preclude the decree from setting forth a per diem amount of interest which will accrue from the date of the decree to date of sale and does not preclude adding costs of the foreclosure sale in computing the amount of any deficiency judgment. Thompson v. Kirsch, 106 Idaho 177, 677 P.2d 490 (Ct. App. 1984).

Where beneficiaries of deed of trust opted for judicial foreclosure, rather than foreclosure by advertisement and sale, the court properly determined the amount of the deficiency judgment by proceeding under this section, rather than under§ 45-1512. Thompson v. Kirsch, 106 Idaho 177, 677 P.2d 490 (Ct. App. 1984).

The correct date for determining the value of real property was the date when the trial court in a foreclosure case determined whether a deficiency judgment should be entered pursuant to this section. Isaak v. Idaho First Nat’l Bank, 119 Idaho 907, 811 P.2d 832 (1991).

In foreclosure actions, a mortgagee may obtain a deficiency judgment if a foreclosure sale does not satisfy a mortgagor’s debt. The deficiency is limited by this section to the difference between the fair market value of the property and the amount of the unpaid debt. Wash. Fed. v. Hulsey, 162 Idaho 742, 405 P.3d 1 (2017).

Deficiency Judgments Permitted.

The adoption of S.L. 1937, ch. 190, repealing S.L. 1937, ch. 31, which prohibited any court from entering a deficiency judgment, left S.L. 1933, ch. 150, this section, in full force and effect, and the court had the right to enter a deficiency judgment against defendant in a mortgage foreclosure action. Brown v. Deck, 65 Idaho 710, 152 P.2d 587 (1944).

Sufficient evidence in the record existed for the district court to calculate the deficiency where the district court noted that the farm owners admitted that they owed the obligation evidenced by the land contract and promissory note and that the property owners could proceed with the foreclosure on the farm property; following the sale, the proceeds would be applied to the judgment on the promissory notes. Elliott v. Darwin Neibaur Farms, 138 Idaho 774, 69 P.3d 1035, cert. denied, 540 U.S. 1004, 124 S. Ct. 535, 157 L. Ed. 2d 410 (2003).

Holders of Second Deed.

Where the “reasonable value” of the property, as found by the district judge, was the difference between the fair market value and the amount owing on the first deed of trust and the bid by holders of second deed of trust at the sheriff’s sale matched the fair market value, less the amount owing on the first deed of trust, the credit allowed to cosigners of second deed against the mortgage indebtedness secured by the second deed of trust was equal to the property’s “reasonable value” and holders of second deed were entitled to a deficiency judgment. Thompson v. Kirsch, 106 Idaho 177, 677 P.2d 490 (Ct. App. 1984).

Mortgage Indebtedness.

Any expenses paid after foreclosure decree could not be considered as part of the mortgage indebtedness and expenses could only be considered in computing deficiency judgment if they were bona fide costs of the foreclosure sale. Thompson v. Kirsch, 106 Idaho 177, 677 P.2d 490 (Ct. App. 1984). The district judge erred by including in the mortgage indebtedness those payments and advances made by the holders of second deed of trust after the entry of the decree of foreclosure; this section requires the court to determine the amount of the mortgage indebtedness in the decree of foreclosure and the decree of foreclosure provides the cut off date for fixing the amount of the mortgage indebtedness. Thompson v. Kirsch, 106 Idaho 177, 677 P.2d 490 (Ct. App. 1984).

Prior Liens.

A purchaser at a mortgage foreclosure sale is presumed to have made allowances for prior liens in making his bid and may not recover payments made in reduction of indebtedness on a prior mortgage made after foreclosure sale. Thompson v. Kirsch, 106 Idaho 177, 677 P.2d 490 (Ct. App. 1984).

Where the amount of a senior mortgagee’s lien is less than the judicially determined fair market value of the property, the junior lienholder should be required either to redeem to protect its security or to give credit to the debtor against any deficiency judgment for the difference between the amount realized by the senior mortgagee on the foreclosure sale and the judicially determined fair market value of the property as of the date the junior’s redemption right expired. First Sec. Bank v. Stauffer, 112 Idaho 133, 730 P.2d 1053 (Ct. App. 1986).

Recordation Requirements.

If a deficiency judgment is obtained in due course by a mortgagee pursuant to this section, that deficiency judgment would be subject to the recording provisions of§ 10-1110; in this way, the law protects property not subject to the mortgage, unless the value of the mortgaged property is exhausted. Federal Land Bank v. Parsons, 118 Idaho 324, 796 P.2d 533 (Ct. App. 1990).

Redemption.

Redemption by a junior mortgagee constitutes a satisfaction of the mortgage debt to the extent of the amount by which the value of the mortgaged property exceeds the sums paid for that redemption. Eastern Idaho Prod. Credit Ass’n v. Placerton, Inc., 100 Idaho 863, 606 P.2d 967 (1980).

Remedy Limited.

Section 6-101 authorizes a single form of action to collect a debt secured by a mortgage; the mortgage must be foreclosed. A deficiency judgment may be obtained if the foreclosure sale does not satisfy the debt; but the deficiency is limited to the difference between the fair market value of the real property and the amount of the unpaid debt. The creditor may not simply sue on the debt and collect by execution on the judgment. Quintana v. Anthony, 109 Idaho 977, 712 P.2d 678 (Ct. App. 1985).

Time Limitation.

Neither§ 6-101 nor this section require a mortgagee to bring a foreclosure action immediately after a default;§ 5-214A permits an action for the foreclosure of a real estate mortgage to be brought within five years of the date of maturity. Isaak v. Idaho First Nat’l Bank, 119 Idaho 907, 811 P.2d 832 (1991).

Value of Property Exceeding Mortgage.

Where the fair market value of a farm upon which defendants discontinued making mortgage payments exceeded both the first and second mortgages and the defendants had a legal right to insist the plaintiffs first look to their security for payment on the note, and where the defendants had the right to claim the protection of this section which prohibits a deficiency judgment if the value of the security is equal to or exceeds the mortgage indebtedness, by insisting on a nonrecourse note and a release of individual liability, the defendants obtained no greater rights than they had by statute under the circumstances then existing, and their insistence on retaining these rights could not form the basis of a claim of economic duress. Isaak v. Idaho First Nat’l Bank, 119 Idaho 988, 812 P.2d 295 (Ct. App. 1990).

Vendor’s Liens.

The legislative policies underlying the mortgage foreclosure statutes should guide the court’s exercise of its equitable powers when enforcing a vendor’s lien; therefore, protections paralleling those given mortgagors are appropriate and may be provided in equity, where sellers of real property assert the existence of vendor’s liens. Quintana v. Anthony, 109 Idaho 977, 712 P.2d 678 (Ct. App. 1985).

Am. Jur. 2d.

C.J.S.

ALR.

Effect upon obligation of guarantor or surety of statute forbidding or restricting deficiency judgments. 49 A.L.R.3d 554.

Cross References.

Criminal offense, trespass and malicious injury to real property,§ 18-7001 et seq.

Joinder of causes permitted, Idaho R. Civ. P. 18(a).

Judgments affecting land to be recorded with deed records,§ 31-2407.

Nuisances, action for abatement and damages,§ 52-111.

Restraint of waste pending expiration of period of redemption from execution,§ 11-406.

Venue of actions,§ 5-401.

Construction.

The legislative intent in adopting this section was to require, as a prerequisite to an award of treble damages, a finding that the waste was wilfully, wantonly or maliciously committed. Pearson v. Harper, 87 Idaho 245, 392 P.2d 687 (1964).

In an action for waste where the lessor claimed in its complaint that personal property was missing from the leased premises and that it was trying to recover for the waste that had occurred up to the time of trial, these claims were not premature since the facts giving rise to them had already occurred; thus, the trial court’s dismissal of the waste claim as premature was incorrect. Consolidated AG of Curry, Inc. v. Rangen, Inc., 128 Idaho 228, 912 P.2d 115 (1996).

Although§ 55-311 does not expressly address waste of a lawn, trees and shrubs located on a life estate, the reference to “real property” in this section includes waste of the lawn, trees, and shrubs located on the life estate. Kimbrough v. Reed, 130 Idaho 512, 943 P.2d 1232 (1997).

Injunctive Relief.

Specific Finding.

Where lessee was not farming the leased real property in a good and farmer-like manner as he covenanted in the lease to do, he was committing waste, and the lessor could seek injunctive relief as well as damages. Olson v. Bedke, 97 Idaho 825, 555 P.2d 156 (1976). Specific Finding.

It was questionable whether court’s legal conclusion as to waste constituted a specific finding of wilful, wanton or malicious conduct on the defendant’s part, but, as defendant did not assign error to the court’s failure to make such a specific finding and there was substantial, competent evidence establishing waste, award was upheld. Watts v. Krebs, 131 Idaho 616, 962 P.2d 387 (1998).

Waste Not Shown.

Finding in favor of the lessee in a contract dispute action was appropriate because the lessor’s waste claim failed since the lessee did not unreasonably injure a deposit. Although the mining of the deposit was not generating the profit that the lessor had desired or hoped for, it nonetheless was the activity contemplated by the contract. Independence Lead Mines Co. v. Hecla Mining Co., 143 Idaho 22, 137 P.3d 409 (2006).

Waste Shown.

Defendant did not dispute that he harvested more than his half share of the timber without the knowledge and consent of his cotenant; therefore, the district court correctly concluded that he committed waste. Watts v. Krebs, 131 Idaho 616, 962 P.2d 387 (1998).

Am. Jur. 2d.

C.J.S.

ALR.

§ 6-202. Actions for civil trespass.

1. Definitions. As used in this section:
   1. “Crops” means field crops including, but not limited to, grains, feed crops, legumes, fruits and vegetables.
   2. “Cultivated land” means:
      1. Land whose soil is loosened or broken up for the raising of crops;
      2. Land used for the raising of crops; or
      3. Pasturage that is artificially irrigated.
   3. “Damage” means any injury or damage to real or personal property and includes, but is not limited to, any of the following actions, when conducted without lawful authority, the consent of the landowner or his agent, or a valid license:
      1. Cutting down or carrying off any wood, underbrush, tree or timber, or girdling or otherwise injuring any tree or timber on the land of another;
      2. Severing from the property of another anything attached thereto, or the produce thereof;
      3. Digging, taking or carrying away any earth, soil or stone from the property of another;
      4. Tearing down or otherwise damaging any fence on the land of another, or opening any gate, bar or fence of another and leaving it open, or using the corral or corrals of another;
      5. Dumping trash or covering up in any manner the property of another;
      6. The unprovoked, intentional killing or injuring of a domestic animal of another on his property;
      7. Removing, mutilating, damaging or destroying any “no trespassing” signs or markers of similar meaning;
      8. Going through or driving a motor vehicle, as defined in sections 49-114 and 49-123, Idaho Code, into, upon, over or through any cultivated lands; or
      9. Injuring or killing livestock.
      10. The property is fenced or otherwise enclosed in a manner that a reasonable person would recognize as delineating a private property boundary. Provided, however, if the property adjoins or is contained within public lands, the fence line adjacent to public land is posted with conspicuous “no trespassing” signs or bright orange or fluorescent paint at the corners of the fence adjoining public land and at all navigable streams, roads, gates and rights-of-way entering the private land from the public land, and is posted in a manner that a reasonable person would be put on notice that it is private land; or
      11. The property is unfenced and uncultivated but is posted with conspicuous “no trespassing” signs or bright orange or fluorescent paint at all property corners and boundaries where the property intersects navigable streams, roads, gates and rights-of-way entering the land, and is posted in a manner that a reasonable person would be put on notice that it is private land.
   4. “Enter” or “enters” means going upon or over real property either in person or by causing any object, substance or force to go upon or over real property.
   5. “Navigable streams” shall have the meaning set forth in section 36-1601, Idaho Code.
   6. “Permission” means written authorization from the owner or his agent to enter upon private land, which shall include the signature of the owner or his agent, the name of the person being given permission, the appropriate dates that the permission is valid and a general description of the property; or another form of permission or invitation recognized by law.
   7. “Remains” means to fail to depart from the real property of another immediately when notified to do so by the owner or his agent.
2. 1. Acts constituting civil trespass. Any person who enters or remains upon the real property of another person without permission commits a civil trespass. (2)(a) Acts constituting civil trespass. Any person who enters or remains upon the real property of another person without permission commits a civil trespass.
   2. Acts constituting civil trespass with damage. A person commits a civil trespass with damage when he enters or remains on the real property of another without permission, knowing or with reason to know that his presence is not permitted, and causes damage to real or personal property in excess of one thousand dollars ($1,000). A person has reason to know that his presence is not permitted on real property that meets any of the following descriptions:
   3. The property is reasonably associated with a residence or place of business; (ii) The property is cultivated;
3. Remedies.
   1. Civil trespass. Any person found liable for a civil trespass pursuant to subsection (2)(a) of this section shall be liable for the following damages:
      1. The greater of:
         1. A damage award of five hundred dollars ($500); or
         2. The amount of actual damages caused by the trespass;
      2. Reasonable attorney’s fees, which shall be taxed as costs in any civil action brought to enforce the provisions of this section, if the plaintiff prevails; and
      3. Reasonable costs associated with investigating any trespass, as approved by the court, which shall be taxed as costs in any civil action brought to enforce the provisions of this section, if the plaintiff prevails.
   2. Civil trespass with damage. Any person found liable for a civil trespass with damage pursuant to subsection (2)(b) of this section shall be liable for the following damages and penalties:
      1. Treble the amount of actual damages caused by the trespass;
      2. Reasonable attorney’s fees, which shall be taxed as costs in any civil action brought to enforce the provisions of this section, if the plaintiff prevails; and
      3. Reasonable costs associated with investigating any trespass, as approved by the court, which shall be taxed as costs in any civil action brought to enforce the provisions of this section, if the plaintiff prevails.
   3. If an action for civil trespass or civil trespass with damage is brought without foundation and the defendant prevails, the defendant may be awarded reasonable attorney’s fees, which shall be taxed as costs.
4. All damages and penalties awarded pursuant to this section shall be remitted to the damaged party.
5. Posting of navigable streams shall not prohibit access to navigable streams below the high-water mark pursuant to section 36-1601, Idaho Code.
6. Subject to any rights or authorities described in subsection (7) of this section, a landowner or his agent may revoke permission granted under this section to another to enter or remain upon his property at any time, for any reason, orally, in writing, or by any other form of notice reasonably apparent to the permitted person or persons. (7) A person has not committed the act of civil trespass under this section for entering or remaining upon real property if the person entered or remained on the property pursuant to any of the following rights or authorities:
7. A person has not committed the act of civil trespass under this section for entering or remaining upon real property if the person entered or remained on the property pursuant to any of the following rights or authorities:
   1. An established right of entry or occupancy of the real property in question, including, but not limited to:
      1. An invitation, whether express or implied, to enter or remain on real property including, but not limited to, the right to enter property that is, at the time, open to the public, if the person is in compliance with lawful conditions imposed on access;
      2. A license to enter or remain on real property; or
      3. A lease, easement, contract, privilege or other legal right to enter, remain upon, possess or use the real property;
   2. A lawful authority to enter onto or remain upon the real property in question, including, but not limited to:
      1. Any law enforcement officer during the course and scope of fulfilling his lawful duties;
      2. Any paramedic, firefighter or other emergency personnel during the course and scope of fulfilling his lawful duties; or
      3. Any licensed professional otherwise authorized to enter or remain on the real property during the course and scope of fulfilling his lawful duties; or
   3. Any other person with a legally prescribed right to enter or remain upon the real property in question.
8. Examples of the exclusions in subsection (7) of this section include, but are not limited to, a customer entering and remaining in a store during business hours who has not been asked to depart by the property owner or his agent; a person knocking on a front door of a property that is not posted; a meter reader in the scope and course of his employment; a postal employee delivering mail or packages; power company personnel fixing downed power lines; a bail bondsman arresting a person who is in violation of a bail contract; a tenant in compliance with a valid lease; and the owner or operator of any right-of-way or easement for any ditch, canal or other conduit, acting pursuant to the provisions of chapter 11 or chapter 12, title 42, Idaho Code.
9. The exclusions set forth in this section shall not relieve any person of civil or criminal liability pursuant to other applicable law for causing damage while entering or remaining on the property in question.

Provided however, the owner or operator of any right-of-way or easement for any ditch, canal or other conduit governed by the provisions of chapter 11 or chapter 12, title 42, Idaho Code, or any rail carrier or aircraft who is found in violation of this section shall be liable only for actual damages and not for any treble damages, attorney’s fees or investigation costs otherwise provided for under this subsection.

History.

C.C.P. 1881, § 473; R.S., R.C., & C.L., § 4531; C.S., § 6958; I.C.A.,§ 9-202; am. 1976, ch. 155, § 1, p. 553; am. 2013, ch. 62, § 2, p. 138; am. 2015, ch. 298, § 1, p. 1178; am. 2018, ch. 350, § 2, p. 824.

Cross References.

Amendments.

The 2013 amendment, by ch. 62, inserted “willfully and intentionally” three times.

The 2015 amendment, by ch. 298, added the last sentence.

The 2018 amendment, by ch. 350, rewrote the section to the extent that a detailed comparison is impracticable.

Legislative Intent.

Section 1 of S.L. 2013, ch. 62 provided: “Legislative Intent. The Legislature finds that generally, real and personal property damage caused by forest and range fire is measured by the diminution of fair market value of the real and personal property. In Idaho, restoration damages may be awarded if there is a reason personal to the owner for restoring the forest or range land to its original condition.

“The Legislature further finds that in other jurisdictions, large forest or range land owners have sought and have been awarded double recovery, the diminution of fair market value and restoration costs, for the damage to forest or range land caused by forest or range fires. The awards include intangible environmental damages that are clearly speculative in their nature, and should not be recoverable. This legislation clarifies that for real and personal property damage caused by forest or range fire, recovery is limited to reasonable suppression costs, economic damages and either the diminution of fair market value of the real and personal property, or the actual and tangible costs for restoration, not intangible environmental damages, as a result of the forest or range fire.”

Section 1 of S.L. 2018, ch. 350 provided: “Legislative intent. The Legislature of the State of Idaho makes the following findings and declares the following statement of intent and legislative purpose:

“(1) Under Section 1, Article I, of the Constitution of the State of Idaho, ‘acquiring, possessing and protecting property’ is an inalienable right. The right to own real property and to exclude others from that property according to law is fundamental to our rights as citizens and has been upheld repeatedly by the United States Supreme Court.

“(2) Section 23, Article I of the Idaho Constitution also protects the right to hunt and fish, but that right expressly does not include ‘a right to trespass on private property.’

“(3) The Legislature finds that trespassing on private property has become a serious problem for landowners throughout the state. While many individuals respect private property rights, landowners report a significant number of persons who blatantly disregard the rights of property owners and frequently cause damage to private property, including cut fences, ruined crops, vandalism and theft.

“(4) The trespass laws of the State of Idaho have been insufficient to deter trespassing and have offered inadequate penalties when trespassers are prosecuted.

“(5) Moreover, the existing trespass laws are a confusing, inconsistent and constitutionally suspect patchwork of laws. They impose significant posting burdens on landowners, without reducing trespassing. The poor construction of the laws of trespass hinders the effective arrest and prosecution of trespassers.

Compiler’s Notes.

“(6) It is the intent of the Legislature in passing this act to cultivate a new culture of respect for private property rights and a renewal of the neighborly ways that have been a hallmark of our state.” Compiler’s Notes.

Section 4 of S.L. 2013, ch. 62 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act”

S.L. 2018, Chapter 350 became law without the signature of the governor.

Section 14 of S.L. 2018, ch. 350 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Effective Dates.

Section 5 of S.L. 2013, ch. 62 declared an emergency. Approved March 12, 2013.

Actual Damages.

In an action for timber trespass, the measure of actual damages is based upon the amount of trees taken and the market value of the trees in that area at the time of the taking. Bumgarner v. Bumgarner, 124 Idaho 629, 862 P.2d 321 (Ct. App. 1993).

Application.

This section applies only where the trespass is shown to have been wilfully and intentionally committed. United States v. Chamberlain, 51 F. Supp. 54 (D. Idaho 1943).

This section and§ 6-202A [now repealed], governing trespass, only apply when the trespass is shown to have been wilful and intentional, and the wronged party seeks treble damages therefor; in all other circumstances, the common law principles relating to trespass actions apply. Mock v. Potlatch Corp., 786 F. Supp. 1545 (D. Idaho 1992).

Buyer of the parcel admitted to intentionally logging the sellers’ property, relying on his argument that the deed, which included an ambiguous easement, granted him the right to the timber. Sells v. Robinson, 141 Idaho 767, 118 P.3d 99 (2005).

Evidence was sufficient to support finding of timber trespass, where woman had her son-in-law enter a neighbor’s yard and cut 4 to 6 feet off of multiple arborvitaes. Greenfield v. Wurmlinger, 158 Idaho 591, 349 P.3d 1182 (2015). While this section does not so state in terms, it is clear that it is not intended to apply to cases in which the trespass was committed through an innocent mistake as to the boundary or location of a tract of land claimed by the defendant. Fischer v. Croston, 163 Idaho 331, 413 P.3d 731 (2018).

Award of Fees.

Although this section does not expressly provide for fee awards on appeal, neither does it restrict an award, and in this case the prevailing plaintiff was entitled, under this section, to an award of fees on appeal. Bubak v. Evans, 117 Idaho 510, 788 P.2d 1333 (Ct. App. 1989).

Attorney fees should not be apportioned based upon prevailing theories of recovery, but rather should be awarded based upon application of appropriate standards and factors. Bubak v. Evans, 117 Idaho 510, 788 P.2d 1333 (Ct. App. 1989).

This section mandates the award of a reasonable attorney fee to a plaintiff who prevails in an action brought hereunder, and the amount of the award is to be determined through consideration of the factors articulated in Idaho R. Civ. P. 54(e)(3). Bubak v. Evans, 117 Idaho 510, 788 P.2d 1333 (Ct. App. 1989).

Award allocating one-half of all plaintiff’s attorney fees to the prosecution of successful trespass claim was within the boundaries of court’s discretion. Bumgarner v. Bumgarner, 124 Idaho 629, 862 P.2d 321 (Ct. App. 1993).

In trespass case, reviewing court declined to award the owners attorney fees on appeal because the neighbors had raised valid issues necessitating remand to the district court. Akers v. D. L. White Constr., Inc., 142 Idaho 293, 127 P.3d 196 (2005).

In an easement dispute, attorney’s fees were improperly awarded because the owner was unable to collect treble damages due to a failure to post “No Trespassing” signs and a failure to prove damages for lost timber. Ransom v. Topaz Mktg., L.P., 143 Idaho 641, 152 P.3d 2 (2006).

In an award of attorney fees under this section, the district court must apportion its award to cover only those attorney fees directly related to the trespass, where the case involves multiple issues. Akers v. Mortensen, 156 Idaho 27, 320 P.3d 418 (2014).

District court properly granted attorney fees to property owners for trespass, because the owners were entitled to a reasonable attorney fee for prosecuting the trespass action. The district court limited the award of attorney fees to the trespass issue, noting the primary claim was to quiet title, and the trespass claim was only incidental to that primary claim. Fischer v. Croston, 163 Idaho 331, 413 P.3d 731 (2018).

Common-law Trespass.

Fact that party prays in his complaint for treble damages under this section, and before trial waives his demand that damages be trebled, does not preclude him from recovering judgment for actual damages or entitle defendant to a non-suit. Gumaer v. White Pine Lumber Co., 11 Idaho 591, 83 P. 771 (1905).

If plaintiff alleges facts constituting common-law action for cutting and removing timber, but amends, pleading same facts and claiming treble damages under this section, the amendment does not constitute new cause of action for the statute authorizing treble damages in no way affects cause of action, but merely goes to the relief to be granted. Ecklund v. Lewis Lumber Co., 13 Idaho 581, 92 P. 532 (1907).

Elements of Damage Claim.

Action to recover treble damages under this section where it is not alleged that damage was committed wilfully or intentionally does not come within purview of said section, but is good as action at common law which may entitle plaintiff to recover his actual damages. Menasha Woodenware Co. v. Spokane Int’l R.R., 19 Idaho 586, 115 P. 22 (1911). Elements of Damage Claim.

Two essential elements of plaintiff’s claim for damages, i.e., first, the actual amount of timber claimed to have been taken, and secondly, the market value of the timber in that area at the time of the alleged taking, were not established in plaintiff’s action praying for treble damages for a timber trespass. Mercer v. Shearer, 84 Idaho 536, 374 P.2d 716 (1962).

Intention a Necessary Element.

This section is not applicable where it is not shown that trespass was wilfully and intentionally committed. Menasha Woodenware Co. v. Spokane Int’l R.R., 19 Idaho 586, 115 P. 22 (1911).

For a plaintiff to be entitled to recover statutory treble damages, instead of merely his actual damages, it is necessary to establish the trespass was wilfully and intentionally committed. Earl v. Fordice, 84 Idaho 542, 374 P.2d 713 (1962).

With respect to trespasses on plaintiff’s land, the court concluded that defendant had believed he owned the portion of land in question and that his invasion of plaintiff’s property rights was, therefore, not wilful and intentional, but merely negligent; consequently, the court declined to award treble damages for the trespasses involving that portion of property. Bumgarner v. Bumgarner, 124 Idaho 629, 862 P.2d 321 (Ct. App. 1993).

Mental Trespass.

There is no such thing as a mental trespass. Idaho Power Co. v. Buhl, 62 Idaho 351, 111 P.2d 1088 (1941).

Punitive Damages.

The court granted damages for treble the value of the trees that defendant had intentionally and wilfully removed from adjoining landowner’s lot; however, this award of statutory damages for the act of taking trees did not prevent the trial court from awarding punitive damages for defendant’s conduct in also constructing a road on adjoining landowner’s property. Bumgarner v. Bumgarner, 124 Idaho 629, 862 P.2d 321 (Ct. App. 1993).

When appellant landowners committed timber trespass on respondent neighbors’ property by entering the property and cutting down trees during the pendency of litigation involving a boundary dispute and an action to quiet title, appellants acted willfully and intentionally; therefore, this section’s trebling of damages applied to the trespass claim. Weitz v. Green, 148 Idaho 851, 230 P.3d 743 (2010).

Easement owners’ compensatory damage award in an action for trespass was properly trebled, because, although the owners had posted “No Trespassing” signs on the property, neighbors continued to use the disputed easement, removed the owners’ gates, and excavated the property. Akers v. D.L. White Constr., Inc., 156 Idaho 37, 320 P.3d 428 (2014).

Trespass by Purchaser in Good Faith.

Valuation.

Where timber cut and removed by defendant from government lands was purchased in good faith for a fair consideration from the party in possession of the land who appeared to be, and represented that he was, the owner thereof, the defendant is not, under these circumstances, liable for treble damages under this section. United States v. Chamberlain, 51 F. Supp. 54 (D. Idaho 1943). Valuation.

This section does not preclude an action for diminution in property value brought in conjunction with a timber trespass claim, if there was identifiable loss separate from the removal of the timber. Sells v. Robinson, 141 Idaho 767, 118 P.3d 99 (2005).

Concordia Law Review.

Concordia Law Review. — Jones, Jim (2017) “Civil Justice Reform — An Idaho Imperative,” Concordia Law Review: Vol. 2; No. 1, Article 4.

Am. Jur. 2d.

C.J.S.

ALR.

Forfeiture of life estate for waste. 16 A.L.R.3d 1344.

Award of or pending proceedings for compensation for property condemned as precluding action for damages arising from prior trespasses upon it. 33 A.L.R.3d 1132.

Right of contingent remainderman to maintain action for damages for waste. 56 A.L.R.3d 677.

Legislative Intent.

Section 1 of S.L. 2018, ch. 350 provided: “Legislative intent. The Legislature of the State of Idaho makes the following findings and declares the following statement of intent and legislative purpose:

“(1) Under Section 1, Article I, of the Constitution of the State of Idaho, ‘acquiring, possessing and protecting property’ is an inalienable right. The right to own real property and to exclude others from that property according to law is fundamental to our rights as citizens and has been upheld repeatedly by the United States Supreme Court.

“(2) Section 23, Article I of the Idaho Constitution also protects the right to hunt and fish, but that right expressly does not include ‘a right to trespass on private property.’

“(3) The Legislature finds that trespassing on private property has become a serious problem for landowners throughout the state. While many individuals respect private property rights, landowners report a significant number of persons who blatantly disregard the rights of property owners and frequently cause damage to private property, including cut fences, ruined crops, vandalism and theft.

“(4) The trespass laws of the State of Idaho have been insufficient to deter trespassing and have offered inadequate penalties when trespassers are prosecuted.

“(5) Moreover, the existing trespass laws are a confusing, inconsistent and constitutionally suspect patchwork of laws. They impose significant posting burdens on landowners, without reducing trespassing. The poor construction of the laws of trespass hinders the effective arrest and prosecution of trespassers.

“(6) It is the intent of the Legislature in passing this act to cultivate a new culture of respect for private property rights and a renewal of the neighborly ways that have been a hallmark of our state.”

Compiler’s Notes.

S.L. 2018, Chapter 350 became law without the signature of the governor.

Section 14 of S.L. 2018, ch. 350 provided: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this act.”

Compiler’s Notes.

This section, which comprised C.C.P. 1881, § 474; R.S., R.C., & C.L., § 4532; C.S., § 6959; I.C.A.,§ 9-203, was repealed by S.L. 1976, ch. 155, § 3.

Amendments.

The 2020 amendment, by ch. 82, substituted “chapter 12, title 39, Idaho Code” for “section 39-1211, Idaho Code” near the middle of subsection (4).

Compiler’s Notes.

The bracketed insertion in subsection (4) was added by the compiler to suggest an alternative for an obviously incorrect reference.

Effect of Section.

The effect of this section is to prohibit imposing vicarious liability upon the parents for a child’s negligent conduct. Fuller v. Studer, 122 Idaho 251, 833 P.2d 109 (1992).

Parents’ Duty.

A parent who has knowledge of a minor child’s propensity for a particular type of harmful conduct is under an affirmative duty to guard against the foreseeable consequences of that specific propensity. Thus, this duty requires a two-step analysis. First, the court must look to see whether a parent has knowledge of a minor child’s propensity or proclivity for a specific harmful conduct. If the first step is answered affirmatively, then it must be determined whether the parent took reasonable steps to guard against the foreseeable consequences of the minor child’s propensity for the specific harmful conduct. Fuller v. Studer, 122 Idaho 251, 833 P.2d 109 (1992).

Where plaintiff’s damages exceeded the limits under state law for recovery from a juvenile’s parents in a civil action, the liability of the parents for payment of a restitution award did not constitute a fine, penalty, or forfeiture. Mabey v. Ellis, 224 Bankr. 786 (Bankr. D. Idaho 1998).

Am. Jur. 2d.

§ 6-212. Damages recovered deposited into endowment fund.

Any moneys so recovered shall in each instance be deposited in the endowment fund in which would be deposited the proceeds of the sale of the lands damaged were such lands sold by the State of Idaho.

History.

1949, ch. 105, § 2, p. 194.

Cross References.

Agricultural college permanent endowment fund,§ 33-2193.

Capitol permanent endowment fund,§ 67-1610.

Charitable institutions permanent endowment fund,§ 66-1103.

Mental hospital permanent endowment fund,§ 66-1101.

Normal school permanent endowment fund,§ 33-3301.

Penitentiary permanent endowment fund,§ 20-102.

Public school permanent endowment fund, Idaho Const., Art. IX, § 4,§ 33-902.

Scientific school permanent endowment fund,§ 33-2911.

University permanent endowment fund,§ 33-2909.

Cross References.

Reentry of dispossessed person on real property a contempt,§ 7-602.

Sheriff’s fee for serving writ of possession or restitution, putting person in possession of premises and removing occupant,§ 31-3203.

Unknown owners or heirs as parties,§ 5-326.

Venue of actions,§ 5-401.

Holding Over After Sale.

Where grantor of quitclaim deed to motel remained on premises by paying rent and, upon failure to pay rent for three months, received eviction notice from grantee who subsequently had grantor’s personal effects placed in storage, court held grantee was not liable to grantor for forcible entry. Rowe v. Burrup, 95 Idaho 747, 518 P.2d 1386 (1974).

Joinder with Personal Injury.

Action for forcible entry or detainer can not be joined with cause of action for injury to person or character. Dahlquist v. Mattson, 40 Idaho 378, 233 P. 883 (1925).

Judgment.

In an action for forcible entry and forcible detainer, judgment should be for restitution of premises with damages occasioned by any forcible entry or any forcible detainer. Dahlquist v. Mattson, 40 Idaho 378, 233 P. 883 (1925).

Retaliatory Eviction.

Retaliatory eviction is an affirmative defense available to tenants. A landlord’s request for eviction of a tenant under§§ 6-301 through 6-316 may be defeated by a showing that the primary motive for the eviction is retaliation against the tenant for reporting violations of housing or safety codes to authorities and seeking specific performance of repairs under§ 6-320. The tenant will carry the burden to prove the retaliatory nature of the eviction. Wright v. Brady, 126 Idaho 671, 889 P.2d 105 (Ct. App. 1995).

Trespass Distinguished.

Gist of trespass is injury to possession; forcible entry or forcible detainer is something more than mere trespass. Dahlquist v. Mattson, 40 Idaho 378, 233 P. 883 (1925).

Am. Jur. 2d.

C.J.S.

Amendments.

The 2017 amendment, by ch. 276, rewrote subsection 2., which formerly read: “Who, in the nighttime, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five (5) days, refuses to surrender the same to such former occupant. The occupant of real property, within the meaning of this subdivision, is one who, within five (5) days preceding such unlawful entry, was in the peaceable and undisturbed possession of such land”.

Am. Jur. 2d.

C.J.S.

Cross References.

Lessee may continue lease by payment of judgment in unlawful detainer for non-payment of rent,§ 6-316.

Termination of tenancy at will,§ 55-208.

Amendments.

The 2020 amendment, by ch. 340, added the present second sentence in subsection 2.

Compiler’s Notes.

The Civil Code, referred to at the end of subdivision 1, is the Code of Civil Procedure, a division of the Idaho Code, consisting of Titles 1 through 13.

Agricultural Lands.

This section does not exempt tenants of agricultural lands from unlawful detainer. Johnston v. Schmidt, 76 Idaho 470, 285 P.2d 476 (1955).

Where a tenant under a farm lease was late in paying his rent and the landlord, without demanding timely payment or giving any notice to the tenant, reentered the property, the failure to make a timely rental payment did not work a forfeiture and the tenant retained his rights under the lease including his option to purchase. Schlegel v. Hansen, 98 Idaho 614, 570 P.2d 292 (1977).

Application.

Fact that lease was to expire in two years if plaintiff failed to sub-lease to defendants, shows that extension agreement between landlord and plaintiff for five years was made expressly for defendant’s benefit, and that possession by it during the remaining months of the extended term, was not such possession as to be drawn within the purview of this section. Knight v. Fox Caldwell Theatres Corp., 70 Idaho 148, 212 P.2d 1027 (1949).

As long as a tenant remains in possession of premises and holds over term provided by the lease, which also provides for payment of a fixed sum for each day of holding over, he is still within the purview of the statute allowing him to remove his property “any time during the continuance of his term.” Pearson v. Harper, 87 Idaho 245, 392 P.2d 687 (1964).

Provision in lease requiring payment of $10.00 per day during the time possession is withheld following default and 30 day notice is indicative of tenant’s intent upon holding over; therefore, even though terms of the lease had expired, his possession was not more than a continuance of the original term, and tenant was entitled to remove trade fixtures which had not become an integral part of the premises and which could be removed without injury to the premises. Pearson v. Harper, 87 Idaho 245, 392 P.2d 687 (1964).

Where lease contract contained a clause that the lessors had the right to sell and the lessees had first option to buy during the tenancy and, if lessees failed to exercise the option, the sale of the property would automatically terminate the lease, the lessees were liable for unlawful detainer when they refused to quit the property after demand of possession, notice to quit, and the sale of the property to a third person by the lessors. Willmore v. Christensen, 94 Idaho 262, 486 P.2d 273 (1971).

Attorney’s Fees.

Where finding, that tenant was guilty of unlawful detainer of property under this section, was supported by substantial, competent evidence, the attorney fee award to the landowners under§ 6-324 was proper. Hettinga v. Sybrandy, 126 Idaho 467, 886 P.2d 772 (1994).

Choice of Remedies.

Where a lease agreement contained a very definitive contractual right to terminate the lease upon default of the lessee, the lessor had a choice of pursuing either its contractual or statutory remedy. Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 650 P.2d 657 (1982).

Effect of Contractual Agreement.

A lessor’s contractual right to forfeiture must be clearly stipulated in order to be enforceable but, even absent a contractual forfeiture remedy, the statutory remedy is still available in an unlawful detainer action; absent a clear contractual right to declare forfeiture, a landlord may not, without the express consent of a tenant, repossess his property without resorting to remedies provided in the unlawful detainer statutes. Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 650 P.2d 657 (1982). Effect of Contractual Agreement.

The parties to a real estate lease are entitled to negotiate default, termination and notice provisions affording the tenant greater protection than those prescribed by this section and, when the parties agree to such provisions, their agreement is binding; thus, landlords’ failure to comply with the 30-day notice provision of the lease before evicting tenant was not excused by subdivision 4. of this section. Galindo v. Hibbard, 106 Idaho 302, 678 P.2d 94 (Ct. App. 1984).

Effect of Security.

The fact the landlord has security for his rent does not prevent him from having recourse to the remedy of unlawful detainer for restitution of the premises, even though he has begun foreclosure proceedings to recover the rent due. Swanson v. Olson, 38 Idaho 24, 220 P. 407 (1923).

Effect on Lease.

Service of notice under this section, together with commencement of action for unlawful detainer, based on tenant’s failure to pay rent when due, does not primarily terminate or forfeit lease; but payment of rent due, together with interest, damages and costs at any time within five days after judgment, as provided in§ 6-316, keeps lease alive and saves it from forfeiture. Hunter v. Porter, 10 Idaho 72, 77 P. 434 (1904).

Extension of Lease.

The holding over for more than sixty (60) days by the lessee of agricultural lands operated to extend the lease for another year but did not extend an option to purchase within a certain time contained in the lease. Southern v. Southern, 92 Idaho 180, 438 P.2d 925 (1968).

Failure to Give Notice.

Subdivision 2. of this section requires that a landlord notify, in writing, an individual who is behind in his or her rent before the injured landlord can resort to an action for possession, under§ 6-310, or damages, under§ 6-311E; however, until written notice is given, the nonpaying tenant is not viewed by the law as unlawfully detaining the rented premises. State v. Johnson, 110 Idaho 516, 716 P.2d 1288 (1986).

Where there was no evidence that the defendant’s landlord ever gave the defendant written notice of nonpayment of rent as spelled out by subdivision 2. of this section and§ 6-304, the defendant’s occupancy of the rented premises was legal. State v. Johnson, 110 Idaho 516, 716 P.2d 1288 (1986).

Insufficient Allegation of Lease.

Legality of Foreclosure Proceedings Not Tested.

In an action for restitution of agricultural lands, where defendants were served with a statutory notice to quit within sixty (60) days succeeding the termination of a renewed lease, defendants’ allegation that they continued to remain in possession under the terms of the lease and did work on the land with consent of plaintiffs was insufficient to allege a “lease,” oral or written and failed to state an affirmative defense. Abbl v. Morrison, 64 Idaho 489, 134 P.2d 94 (1943). Legality of Foreclosure Proceedings Not Tested.

The legality of proceedings to foreclose chattel mortgage given as security for rent is not subject to be drawn in question as within the purview of unlawful detainer action. Swanson v. Olsen, 38 Idaho 24, 220 P. 407 (1923).

Misjoinder of Causes.

Complaint which, in addition to unlawful detainer, attempts to state cause of action in equity and for money judgment for breach of sale agreement is defective for misjoinder, and objection may be taken by special demurrer. Coe v. Bennett, 39 Idaho 176, 226 P. 736 (1924).

Nature of Remedy.

Action under this section is summary proceeding and cannot be maintained unless conventional relation of landlord and tenant exists between parties, so that tenant is estopped to deny title. Coe v. Bennett, 39 Idaho 176, 226 P. 736 (1924).

Title is not involved in an unlawful detainer suit, but the sole question involved is right of possession, and no other issues may be injected. Richardson v. King, 51 Idaho 762, 10 P.2d 323 (1932); Loughray v. Weitzel, 94 Idaho 833, 498 P.2d 1306 (1972).

No landlord/tenant relationship existed between the beneficiaries and trustees, so that no basis existed for an unlawful detainer action. Findings by the court regarding the nature of the beneficiaries’ ownership interest were beyond the scope of an unlawful detainer action and should not have been considered. Carter v. Zollinger, 146 Idaho 842, 203 P.3d 1241 (2009).

Purchase Contract.

One in possession of ranch as buyer under a contract of sale which became unenforceable because of failure of a condition precedent did not, thereby, come to have a landlord-tenant relationship with the seller to which could be applied the concept of unlawful detainer, notwithstanding that forfeiture clause in contract provided for this in event of failure of buyer to surrender possession of premises upon default. Mecham v. Nelson, 92 Idaho 783, 451 P.2d 529 (1969).

Right to Resort to Remedy.

Fact that lease reserves to landlord an option to terminate same upon service of a thirty-day notice after breach of covenant by tenant does not preclude landlord from resorting to remedy prescribed by this section in case tenant fails to pay rent when due. Hunter v. Porter, 10 Idaho 72, 77 P. 434 (1904).

When there is no evidence to show relation of landlord and tenant or that delay of petitioner in seeking possession of the land was prejudicial, party cannot claim advantages of this section. Noble v. Harris, 33 Idaho 401, 195 P. 543 (1921).

Landlord having security for his rent may resort to remedy of unlawful detainer, although he has begun foreclosure proceedings to recover rent due. Swanson v. Olsen, 38 Idaho 24, 220 P. 407 (1923).

Party in possession under contract of sale does not, after default in payment, become tenant at will subject to removal in action of unlawful detainer. Coe v. Bennett, 39 Idaho 176, 226 P. 736 (1924).

Sufficiency of Notice.

Failure of tenant to comply with notice to quit results only in forfeiture of lease and does not operate to end relationship of landlord and tenant; there must be surrender by tenant or failure to satisfy judgment of unlawful detainer within five days after its rendition. Hoebel v. Raymond, 46 Idaho 55, 266 P. 433 (1928). Sufficiency of Notice.

Notice directed to tenant signed by his landlord, requiring tenant to pay rent in sum specified for a certain term or to deliver up possession of premises, describing them, and stating that landlord will institute legal proceedings to recover possession with treble rent in case of noncompliance with notice, is sufficient under this section. Hunter v. Porter, 10 Idaho 72, 77 P. 434 (1904).

This section does not require that demand for possession or notice give any stipulated time for surrender of possession. Johnston v. Schmidt, 76 Idaho 470, 285 P.2d 476 (1955).

Where the lessor gave the lessee notice of default on May 20, 1977, for his failure to pay the May, 1977, minimum rent and on June 22, 1977, the lessee had not cured the default, and the lessor sent a notice of termination, the lessee had more than the 30 days permitted in the lease to cure the default; and, since no reentry was attempted by the lessor within three days of the termination notice, the notice requirement of§ 55-210 was met. Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 650 P.2d 657 (1982).

Tenants at Will.

A tenant who holds over after expiration of his lease violates this section and is not a tenant at will. Johnston v. Schmidt, 76 Idaho 470, 285 P.2d 476 (1955).

Waiver of Breach of Lease.

A continuing course of conduct by a lessor which misleads a lessee to his prejudice in regard to the lessor’s intent to strictly enforce the terms of the lease may constitute a waiver. However, a lessor should certainly not be precluded from terminating a lease for the late payment of rent or other obligation simply because he has been lenient on prior occasions in accepting late rent. Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 650 P.2d 657 (1982).

Acceptance of rent accruing subsequent to a breach is a well recognized form of conduct which may establish a lessor’s intent to waive a breach of a lease agreement. However, where the lessor takes definite action to terminate the lease by sending notice of termination and, thereafter, proceeds within a reasonable time to regain possession of the premises, but nevertheless also accepts rent subsequent to the notice of termination, the intent of the lessor to waive the breach by his acceptance of rent is far from clear. Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 650 P.2d 657 (1982).

Waiver of Notice.

Where the landlord sold the farm and the tenant observed the new owner make preparations for farming without objection thereto, advertised his equipment for sale “as we are leaving the farm,” sold much of his equipment, household furniture, and dairy cattle, attempted to buy a farm in Missouri, and made no objection to the new owner’s activities on the property until planting had been started by him, the tenant waived his right to termination notice under this section. Iest v. Gartin, 90 Idaho 246, 409 P.2d 490 (1965).

Am. Jur. 2d.

C.J.S.

ALR.

§ 6-304. Service of notice.

The notices required by the preceding section may be served either:

1. By delivering a copy to the tenant personally; or,
2. If he be absent from his place of residence and from his usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his place of residence; or, if such place of residence and business cannot be ascertained, or a person of suitable age or discretion cannot be found there, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated. Service upon a subtenant may be made in the same manner.

History.

C.C.P. 1881, § 798; R.S., R.C., & C.L., § 5094; C.S., § 7323; I.C.A.,§ 9-304.

Damages for Entry by Landlord.

Where landlord was entitled to a share of crop of apples as rent, his entry to harvest and pack apples involved only a question of what damages, if any, tenant suffered because of such entry. Muegerl v. Hawley, 49 Idaho 790, 292 P. 242 (1930).

Damages can not be litigated under a counterclaim or cross-complaint in an unlawful detainer action. Fry v. Weyen, 58 Idaho 181, 70 P.2d 359 (1937).

Evidence to show damages was not admissible as a defense in an unlawful detainer action. Fry v. Weyen, 58 Idaho 181, 70 P.2d 359 (1937).

Failure to Give Notice.

Where there was no evidence that the defendant’s landlord ever gave the defendant written notice of nonpayment of rent as spelled out by subdivision 2 of§ 6-303 and this section, the defendant’s occupancy of the rented premises was legal. State v. Johnson, 110 Idaho 516, 716 P.2d 1288 (1986).

Substantial Compliance.

Notice by landlord to his tenant, requiring tenant to pay rent due or surrender possession, describing premises and naming amount due, is a substantial compliance with this section. Hunter v. Porter, 10 Idaho 72, 77 P. 434 (1904).

Termination of Relationship.

It was unnecessary to pass upon appellant’s contention that the notice to quit was not served in accordance with statute, where appellant admits and the record shows that he personally received the notice. Fry v. Weyen, 58 Idaho 181, 70 P.2d 359 (1937). Termination of Relationship.

Service of notice to quit, but not complied with by tenant, does not end relationship of landlord and tenant. Hoebel v. Raymond, 46 Idaho 55, 266 P. 433 (1928).

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

These sections, which comprised C.C.P. 1881, §§ 800, 801; R.S., R.C., & C.L., §§ 5096, 5097; C.S., §§ 7325, 7326; I.C.A.,§§ 9-306, 9-307; am. 1967, ch. 31, § 1, p. 55, were repealed by S.L. 1969, ch. 111, §§ 22 and 23, respectively.

Am. Jur. 2d.

C.J.S.

Cross References.

Parties in civil actions, Idaho Civil Procedure Rules 14(a), 14(b), 17(a) to 17(d), 19(a)(1) to 21, 25(a)(1).

Compiler’s Notes.

The words “this code” in this section refer to the Civil Code which is a division of the Idaho Code, consisting of Titles 1 through 13.

Am. Jur. 2d.

C.J.S.

Cross References.

Amendment of complaint,§ 6-315.

Complaint must be verified,§ 6-318.

Summons in district courts, Idaho R. Civ. P. 4.

Prior Laws.

Former§ 6-310, which comprised C.C.P. 1881, § 804; R.S., R.C., & C.L., § 5100; C.S., § 7329; I.C.A.,§ 9-310 regarding complaints and summons, was repealed by S.L. 1973, ch. 261, § 1, p. 259.

Another former§ 6-310, which comprised I.C.,§ 6-310, as added by 1973, ch. 261, § 2, p. 529 regarding complaint and summons in action for possession, was repealed by S.L. 1974, ch. 308, §§ 1 and 2.

Amendments.

The 2006 amendment, by ch. 248, in the introductory paragraph, inserted “or in the event the tenant is a tenant at sufferance pursuant to subsection (11) of section 45-1506, Idaho Code”; and in subsection (4), added the language beginning “or no notice is required.”

The 2017 amendment, by ch. 276, redesignated the subsections; inserted “notice of” near the end of present subsection (2); and added subsections (3) to (5).

The 2018 amendment, by ch. 124, rewrote paragraph (3)(e), which formerly read: “That all notices required by law have been served upon the defendant in the required manner.”

Effective Dates.

Section 4 of S.L. 2006, ch. 248 declared an emergency. Approved March 30, 2006.

Exclusive Claim.

Notice.

Both the unlawful detainer process and the claim and delivery process are statutorily controlled. The claim and delivery statute,§ 8-312, provides that, while such actions generally may be given precedence over other pending civil actions insofar as setting the same for hearing or trial, the statutes relating to claim and delivery process do not require, as does the unlawful detainer action (this section), that the action for recovery of personal property be an “exclusive” claim. Powder Basin Psychiatric Assocs. v. Ullrich, 129 Idaho 658, 931 P.2d 652 (Ct. App. 1996). Notice.

Subdivision 2 of§ 6-303 requires that a landlord notify in writing an individual who is behind in his rent before the injured landlord can resort to an action for possession, under this section, or damages, under§ 6-311E; however, until written notice is given, the nonpaying tenant is not viewed by the law as unlawfully detaining the rented premises. State v. Johnson, 110 Idaho 516, 716 P.2d 1288 (1986).

Am. Jur. 2d.

§ 6-311. Continuance.

In an action exclusively for possession of a tract of land of five (5) acres or less for the nonpayment of rent or if a landlord has alleged that the landlord has reasonable grounds to believe that any person, is or has been, engaged in the unlawful delivery, production, or use of a controlled substance during the term for which the premises are let to the tenant, or if the person is in possession of the property and is a tenant at sufferance pursuant to subsection (11) of section 45-1506, Idaho Code, no continuance shall be granted for a longer period than two (2) days unless the defendant applying therefor gives an undertaking to the adverse party with good and sufficient security, to be approved by the court, conditioned for the payment of the rent that may accrue if judgment is rendered against the defendant.

History.

I.C.,§ 6-311, as added by 1974, ch. 308, § 4, p. 1803; am. 2001, ch. 203, § 3, p. 691; am. 2006, ch. 248, § 2, p. 757.

Prior Laws.

Former§ 6-311, which comprised C.C.P. 1881, § 805; R.S., R.C., & C.L., § 5101; C.S., § 7330; I.C.A.,§ 9-311 regarding the arrest of the defendant, was repealed by S.L. 1971, ch. 119, § 1.

A former§ 6-311, which comprised I.C.,§ 6-311 as added by 1971, ch. 119, § 2, p. 402 regarding writ of restitution and bond, was repealed by S.L. 1973, ch. 261, § 1.

Another former§ 6-311, which comprised I.C.,§ 6-311, as added by 1973, ch. 261, § 3, p. 529 regarding continuances, was repealed by S.L. 1974, ch. 308, §§ 1 and 2.

Amendments.

The 2006 amendment, by ch. 248, inserted “or if the person is in possession of the property and is a tenant at sufferance pursuant to subsection (11) of section 45-1506, Idaho Code” near the middle.

Effective Dates.

Section 4 of S.L. 2006, ch. 248 declared an emergency. Approved March 30, 2006.

Prior Laws.

Former§ 6-311A, which comprised I.C.,§ 6-311A, as added by 1971, ch. 119, § 3, p. 402 regarding service of writ of restitution, was repealed by S.L. 1973, ch. 261, § 1, p. 529.

Another former§ 6-311A, which comprised I.C.,§ 6-311A, as added by 1973, ch. 261, § 4, p. 259 regarding judgment on trial by court, was repealed by S.L. 1974, ch. 308, §§ 1 and 2.

Amendments.

The 2006 amendment, by ch. 248, inserted “or if the tenant is a tenant at sufferance pursuant to subsection (11) or section 45-1506, Idaho Code” near the middle.

The 2017 amendment, inserted “or for forcible detainer” near the end of the first sentence.

Effective Dates.

Section 4 of S.L. 2006, ch. 248 declared an emergency. Approved March 30, 2006.

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 6-311B. Verdict and judgment on trial by jury. [Repealed.]

Compiler’s Notes.

This section, which comprised I.C.,§ 6-311B, as added by 1974, ch. 308, § 6, p. 1803, was repealed by S.L. 1996, ch. 169, § 2.

Amendments.

The 2020 amendment, by ch. 340, rewrote the second paragraph in the form, which formerly read: “In the name of the State of Idaho, you are, therefore, hereby commanded to cause the defendant and his goods and chattels to be forthwith removed from the premises and the plaintiff is to have restitution of the same. In the event the goods and chattels are not promptly removed thereafter by the defendant you are authorized and empowered to cause the same to be removed to a safe place for storage. You are also commanded to levy on the goods and chattels of the defendant, and pay the costs and disbursements, aforesaid, and all accruing costs, and to make legal service and due return of this writ.”

Notice.

Subdivision 2 of§ 6-303 requires that a landlord notify in writing an individual who is behind in his rent before the injured landlord can resort to an action for possession, under§ 6-310, or damages, under this section; however, until written notice is given, the nonpaying tenant is not viewed by the law as unlawfully detaining the rented premises. State v. Johnson, 110 Idaho 516, 716 P.2d 1288 (1986).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The bracketed word “does” was inserted by the compiler.

Nature of Defense.

This section contemplates a simple defense to charge of forcible or unlawful detainer and does not authorize defendant to seek affirmative relief by cross-complaint or counterclaim for unliquidated damages for a breach of covenant by lessor. Hunter v. Porter, 10 Idaho 72, 77 P. 434 (1904).

Am. Jur. 2d.

C.J.S.

Cross References.

Formation of trial juries, Idaho R. Civ. P. 47(a) to 47(m).

Waiver of jury trials, Idaho R. Civ. P. 38(d).

Am. Jur. 2d.

C.J.S.

Appeals.

Where fact that another action involving title of the property was pending did not appear upon the face of the complaint, nor did the demurrer present such issue and neither did the answer, an assignment of error in that regard may not be considered. Snyder v. Blake, 69 Idaho 14, 202 P.2d 394 (1949).

Bar to Recovery.

An action for unlawful entry, based upon the placement of a fence upon the plaintiff’s land, is barred under the forcible detainer statute, if the fence has been in place for more than one year. Loomis v. Union P.R.R., 97 Idaho 341, 544 P.2d 299 (1975).

Burden of Proof.

If plaintiff relies upon title as providing his right of possession, the burden of proof is upon him to show title; and it may be traversed by defendant; i.e., defendant may interpose plea that he is not a tenant and never was; that plaintiff is not his landlord and that, instead of being a tenant, defendant actually owns the property. Snyder v. Blake, 69 Idaho 14, 202 P.2d 394 (1949).

Counterclaim or Cross-Complaint.

Res Judicata.

Proceedings under this chapter are not subject to counterclaim or cross-complaint as ordinary actions. Hunter v. Porter, 10 Idaho 72, 77 P. 434 (1904). Res Judicata.

One who establishes his title makes a case entitling him to possession, however, such determination is binding only in an immediate case and as to the right of possession. Snyder v. Blake, 69 Idaho 14, 202 P.2d 394 (1949).

Am. Jur. 2d.

C.J.S.

Amendments.

The 2020 amendment, by ch. 340, added the subsection “(1)” designator to the existing text and added subsection (2).

Effective Dates.

Section 11 of S.L. 1974, ch. 308 declared an emergency. Approved April 5, 1974.

Abandonment.

Seizure of personal property by sheriff and locking of premises did not constitute an abandonment, surrender, or termination of lease. Brooks v. Coppedge, 71 Idaho 166, 228 P.2d 248 (1951).

Construction.

Provisions of this section are penal in nature and must be strictly construed. Knight v. Fox Caldwell Theatres Corp., 70 Idaho 148, 212 P.2d 1027 (1949).

Effect of Action on Lease.

The service of notice and commencement of action for failure to pay rent when due does not primarily terminate or forfeit the lease; but a payment for the rent together with interest, damages found, and costs, at any time within five days after judgment, keeps the lease alive and saves it from forfeiture. Hunter v. Porter, 10 Idaho 72, 77 P. 434 (1904).

Recovery of Landlord.

In event of breach of lease through failure to pay rent, landlord is entitled to (1) judgment for restitution, (2) judgment for rent due and unpaid, and (3) judgment for any damages alleged and proven in addition to rent found due. Brooks v. Coppedge, 71 Idaho 166, 228 P.2d 248 (1951).

Remedies.

Fact that lease was to expire in two years if plaintiff failed to sub-lease to defendants, shows that extension agreement between landlord and plaintiff for five years was made expressly for defendant’s benefit, and that possession by defendant during the remaining months of the extended term precludes plaintiff from resorting to remedy prescribed by this section. Knight v. Fox Caldwell Theatres Corp., 70 Idaho 148, 212 P.2d 1027 (1949).

A lessor’s contractual right to forfeiture must be clearly stipulated in order to be enforceable but, even absent a contractual forfeiture remedy, the statutory remedy is still available in an unlawful detainer action; absent a clear contractual right to declare forfeiture, a landlord may not, without the express consent of a tenant, repossess his property without resorting to remedies provided in the unlawful detainer statutes. Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 650 P.2d 657 (1982).

Where a lease agreement contained a very definitive contractual right to terminate the lease upon default of the lessee, the lessor had a choice of pursuing either its contractual or statutory remedy. Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 650 P.2d 657 (1982).

Rent Deposits.

It was error for court to order payment of rent due out of deposit covering last six months of lease, where only provisions as to return of deposit was in event of exercise of option or in event of fire. Brooks v. Coppedge, 71 Idaho 166, 228 P.2d 248 (1951).

Rent Not Alleged.

Where no rent was alleged or proved, the court could not find that respondent was in default in the payment of rent, or, as a tenant, obligated to give over possession of the property or any amount due. Richardson v. King, 51 Idaho 762, 10 P.2d 323 (1932).

Treble Damages.

Fact that judgment might be entered for treble damages does not change rule that notice of motion for new trial must be given within ten (10) days after verdict. Hess v. Swanson, 36 Idaho 135, 209 P. 721 (1922).

Only in those cases where tortious act was committed maliciously or wantonly is court warranted in inflicting treble damages. Read v. La Shonse, 45 Idaho 299, 261 P. 773 (1927).

Trial court’s finding that tenant stayed in possession for 18 days after expiration of the lease, without consent, express or implied, was insufficient to justify award of treble damages; and, on remand, trial court will find whether the intent or motives of tenant disclosed malice, wantonness or oppression during time they held over, then enter conclusions of law and judgment to conform to such findings. Pearson v. Harper, 87 Idaho 245, 392 P.2d 687 (1964).

Absent a showing of malice, wantonness, or oppression, treble damages cannot properly be awarded in an action for unlawful detainer. Pearson v. Harper, 87 Idaho 245, 392 P.2d 687 (1964); Mecham v. Nelson, 92 Idaho 783, 451 P.2d 529 (1969).

Unlawful Detention.

In an unlawful detainer action brought by a gas company to regain possession of a bulk plant from the bulk plant operator, the company was restored to possession of the plant and awarded the reasonable rental value of the property for the period of unlawful detention but was denied damages, since expenses the company incurred in establishing a temporary bulk plant did not naturally flow from the operator’s unlawful detainer. Texaco, Inc. v. Johnson, 96 Idaho 935, 539 P.2d 288 (1975).

Purchaser was entitled to rent found due and for lost profits, but the district court was incorrect to award damages based on rental value for the time period the building was vacant after a holdover tenant vacated, because there was no evidence that a lessee terminated its lease with the purchaser. Caldwell Land and Cattle, LLC v. Johnson Thermal Sys., — Idaho —, 452 P.3d 809 (2019).

Am. Jur. 2d.

C.J.S.

Cross References.

Entry for surveying purposes,§ 54-1230.

Amendments.

The 2017 amendment, inserted “or for an action brought against a tenant or in bad faith pursuant to section 6-310(3), Idaho Code” near the end of the section.

Application.

Absent a showing of malice, wantonness, or oppression, treble damages can not properly be awarded in an action for unlawful detainer. Pearson v. Harper, 87 Idaho 245, 392 P.2d 687 (1964).

Construction.

Provisions of this section are penal in nature and must be strictly construed. Knight v. Fox Caldwell Theatres Corp., 70 Idaho 148, 212 P.2d 1027 (1950).

Counter or Cross-claim.

Entry Under Color of Right.

Since a counter cross-claim was improper in an unlawful detainer action filed by a gas company against a bulk distributor operator to recover possession of a bulk plant, dismissal of the operator’s counterclaim alleging that gas company’s action in terminating distributor and consignment agreements interfered with operator’s right to freely sell his business, rather than severance for separate trial as operator requested, was proper. Texaco, Inc. v. Johnson, 96 Idaho 935, 539 P.2d 288 (1975). Entry Under Color of Right.

Where vendors peaceably entered upon premises under what they believed was a correct interpretation of the contract in question, purchaser was not entitled to have as damages treble the amount found due as rent. Read v. La Shonse, 45 Idaho 299, 261 P. 773 (1927).

Treble Damages.

Trial court’s finding that tenant stayed in possession for 18 days after expiration of the lease, without consent, express or implied, was insufficient to justify award of treble damages; on remand, trial court will find whether the intent or motives of tenant disclosed malice, wantonness or oppression during time they held over and enter conclusions of law and judgment to conform to such findings. Pearson v. Harper, 87 Idaho 245, 392 P.2d 687 (1964).

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Prior Laws.

Former§ 6-320, which comprised C.C.P. 1881, § 814; R.S., R.C., & C.L., § 5109; C.S., § 7338; I.C.A.,§ 9-320, was repealed by S.L. 1977, ch. 45, § 3.

Compiler’s Notes.

As enacted the heading of this section read: “Action for damages — Specific performance — Tenant.”

Damages.

While the notice provision in subsection (d) is a condition precedent to bringing a lawsuit against a landlord, under subsection (a) a tenant could recover all damages that would have been recovered for a breach of contract; thus, the damages began when the implied contractual provision was initially breached, not when notice was given to the landlord. Rekow v. Weekes, 158 Idaho 868, 353 P.3d 1102 (Ct. App. 2015).

Forfeiture of Security Deposit.

The record supported the magistrate’s conclusion that the lease was sufficiently clear and unambiguous and that the lessors were entitled to retain the $100 security deposit under a valid and enforceable forfeiture agreement. As a result, the lessee’s right to a refund under§ 6-321 and this section was subject to be offset by the sum to be forfeited as compensation for the lessors’ damages. Fleming v. Hathaway, 107 Idaho 157, 686 P.2d 837 (Ct. App. 1984).

Implied Warranty of Habitability.

In adopting the reasonable care standard for landlords in Stephens v. Stearns , 106 Idaho 249, 678 P.2d 41 (1984), the Idaho supreme court noted that its holding was supported by a statutory version of the implied warranty of habitability. Stevens v. Fleming, 116 Idaho 523, 777 P.2d 1196 (1989). Court erred in instructing jury that, under implied warranty of habitability statute, the jury needed to find that the landlord was negligent in order for the tenant to collect damages for a noxious odor caused by maintenance of the building. Silver Creek Computers, Inc. v. Petra, Inc., 136 Idaho 879, 42 P.3d 672 (2002).

This section is Idaho’s statutory version of the implied warranty of habitability. Rekow v. Weekes, 158 Idaho 868, 353 P.3d 1102 (Ct. App. 2015).

In General.

The supreme court would not expand the common law by imposing an implied obligation on the part of a landlord to keep the premises in a habitable state of repair, where the legislature had already acted in the same area by enacting this statutory version of the implied warranty of habitability theory. Worden v. Ordway, 105 Idaho 719, 672 P.2d 1049 (1983).

Physical Possession Not Required.

Where a landlord wrongfully locks a tenant out of the premises, a tenant would be entitled to bring an action under subdivision (a)(5) of this section for breach of the covenant of quiet enjoyment, after first giving the three days’ notice required by subsection (d) of this section, even though the tenant would have lost actual physical possession of the premises; accordingly, a tenant’s right to sue under this section is not invariably precluded because at the time the three days’ notice was given, the tenant was no longer in physical possession. Worden v. Ordway, 105 Idaho 719, 672 P.2d 1049 (1983).

Retaliatory Eviction.

Retaliatory eviction is an affirmative defense available to tenants. A landlord’s request for eviction of a tenant under§§ 6-301 through 6-316 may be defeated by a showing that the primary motive for the eviction is retaliation against the tenant for reporting violations of housing or safety codes to authorities and seeking specific performance of repairs under this section. The tenant will carry the burden to prove the retaliatory nature of the eviction. Wright v. Brady, 126 Idaho 671, 889 P.2d 105 (Ct. App. 1995).

Return of Security Deposit.

The claim of a tenant to a refund of a security deposit may be subject to an offset for damages allowed to the landlord. Indeed, such a counterclaim — if it arose from the same transaction, i.e., the tenancy agreement, which forms the basis for a dispute over the security deposit — would be a compulsory one which could not be raised in a separate, independent action. Fleming v. Hathaway, 107 Idaho 157, 686 P.2d 837 (Ct. App. 1984).

Tenant’s Counterclaim.

Subsection (d) of this section, which requires a tenant to give specific written notice to the landlord, does not apply to a tenant’s counterclaim in an action by the landlord seeking recovery for unpaid rent and other losses. Young v. Scott, 108 Idaho 506, 700 P.2d 128 (Ct. App. 1985).

Cited

District court erred by reinstating tenants’ third-party complaint against landlord, ruling that it was a counterclaim, because tenants failed to provide three-day notice, which was required regardless of the form in which the claim was brought. Action Collection Serv. v. Haught, 146 Idaho 300, 193 P.3d 460 (Ct. App. 2008). Cited Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984).

Decisions Under Prior Law

Counterclaim or Cross-complaint.

Proceedings under this chapter are not subject to counterclaim or cross-complaint. Hunter v. Porter, 10 Idaho 72, 10 Idaho 86, 77 P. 434 (1904).

Forfeiture.

The record supported the magistrate’s conclusion that the lease was sufficiently clear and unambiguous and that the lessors were entitled to retain the $100 security deposit under a valid and enforceable forfeiture agreement. As a result, the lessee’s right to a refund under§ 6-320 and this section was subject to be offset by the sum to be forfeited as compensation for the lessors’ damages. Fleming v. Hathaway, 107 Idaho 157, 686 P.2d 837 (Ct. App. 1984).

Signed Statement from Landlord.

This section plainly requires that, in the event less than the full amount of a deposit is returned, the landlord must provide the tenant with a “signed statement” itemizing the expenditures made by the landlord and the purpose of those expenditures; the lease agreement, by itself, does not suffice. Accordingly, the magistrate erred in his conclusion that providing oral notice of a forfeiture and a signed copy of the lease constituted compliance with this section. Fleming v. Hathaway, 107 Idaho 157, 686 P.2d 837 (Ct. App. 1984).

Cross References.

Appeals to Supreme Court, see Idaho Appellate Rules.

Rules in civil actions, see Idaho Rules of Civil Procedure.

Compiler’s Notes.

The words “this code” refer to the Code of Civil Procedure, which is a division of the Idaho Code, consisting of Titles 1 through 13.

Am. Jur. 2d.

C.J.S.

Attorney’s Fees.

Where both parties prevailed on appeal; — one by having judgment upheld and the other by getting damages reduced — the court declined to award costs or attorney’s fees to either party on appeal. Caldwell Land and Cattle, LLC v. Johnson Thermal Sys., — Idaho —, 452 P.3d 809 (2019).

Third-party Complaint.

As prevailing party, landlord was entitled to attorney fees on appeal of tenants’ third-party complaint. Action Collection Serv. v. Haught, 146 Idaho 300, 193 P.3d 460 (Ct. App. 2008).

Unlawful Detainer.

Where finding, that tenant was guilty of unlawful detainer of property under§ 6-303, was supported by substantial, competent evidence, the attorney fee award to the landowners under this section was proper. Hettinga v. Sybrandy, 126 Idaho 467, 886 P.2d 772 (1994).

Proper notice was given in the unlawful detainer action and, as the beneficiaries were the prevailing parties, attorney fees and costs were awarded to them. Carter v. Zollinger, 146 Idaho 842, 203 P.3d 1241 (2009).

Cross References.

Actions to correct defective acknowledgments,§ 55-725.

Actions to determine adverse claims to lots under the townsite act,§ 58-811 et seq.

Actions to prove instruments for record,§ 55-726.

Actions to recover property granted with right of reentry,§ 55-212.

Joinder with mortgage foreclosure,§§ 45-1302, 45-1303.

Judgments affecting land to be recorded with deed records,§ 31-2407.

Lis pendens,§ 5-505.

Reentry of dispossessed person on real property a contempt,§ 7-602.

Unknown owners or heirs as parties,§ 5-326.

Venue of actions,§ 5-401.

Effective Dates.

Section 4 of S.L. 1981, ch. 265 declared an emergency. Approved April 4, 1981.

Adverse Parties.

There must be adverse parties to an action or proceeding, whether it be prosecuted under the statute to quiet title or under the declaratory judgment act (see§ 10-1201 et seq.). Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937).

Claim Preclusion.

Where plaintiffs lost suit to quiet title to land on basis of adverse possession, second action by same plaintiffs to quiet title on theory of accretion was barred by claim preclusion, since theory of accretion grew out of same operative facts as theory of adverse possession and could have been raised in first action. Aldape v. Akins, 105 Idaho 254, 668 P.2d 130 (Ct. App. 1983).

When partial decrees for water rights were issued in the Snake River Basin Adjudication (SRBA), it was appropriate later to quiet title to disputed water rights to a landowner in consolidated actions, because the claims of successors in interest were precluded by res judicata, as the same claims were adjudicated in the SRBA. First Sec. Corp. v. Belle Ranch, LLC, — Idaho —, 451 P.3d 446 (2019).

Form of Action.

This section has not prescribed any particular form of action for determining adverse claims to mining locations under the statutes of the United States and does not preclude action in nature of ejectment at law with consequent right to the jury trial in such case. Burke v. McDonald, 2 Idaho 339, 13 P. 351 (1887).

This section does not do away with action of ejectment, or preclude person bringing such action from alleging and proving facts required therein. McMasters v. Torsen, 5 Idaho 536, 51 P. 100 (1897).

Where suit is brought in federal court praying for cancellation of deeds to interests in mining claim, for decree determining adverse claims of defendants to such interests and establishing complainant’s title thereto, and a receiver is prayed for to take control, and an injunction restraining defendants from taking ore therefrom pending suit, the court has jurisdiction to determine entire controversy between parties respecting the mine and ore, and it is the duty of defendants to set up all defenses they may have to complainants’ claim. Hanley v. Beatty, 117 F. 59 (9th Cir. 1902).

Action by party actually in possession of property to quiet title to the leasehold estate is suit in equity and neither party is entitled to jury as matter of right. Shields v. Johnson, 10 Idaho 476, 79 P. 391 (1904).

Action under this section may be equitable or legal depending upon the facts. Stockton v. Oregon Short Line R.R., 170 F. 627 (C.C.D. Idaho 1909).

Fraudulent Transfer.

In General.

One who purchased property at an execution or tax sale received legal title and could bring an action to remove a cloud on the title created by a fraudulent transfer. Therefore, the district court had the equitable power to clear tax sale purchaser’s title by setting aside the tax debtors’ deeds to the family trust, which deeds were void and unenforceable against the tax sale purchaser. Haney v. Molko, 123 Idaho 132, 844 P.2d 1382 (Ct. App. 1992). In General.

Although a quiet title action challenges the title of an adversary, the plaintiff necessarily asserts his own estate in bringing a quiet title action; thus, a party seeking to quiet title against another must succeed on the strength of his own title and may not rely merely upon the weakness of his adversary. Aldape v. Akins, 105 Idaho 254, 668 P.2d 130 (Ct. App. 1983).

Judgment.

In a proper case, the trial court will render and enter judgment enjoining assertion of any right, title, or interest of, in or to the property in dispute, adverse to petitioners. Stewart Mining Co. v. Ontario Mining Co., 23 Idaho 724, 132 P. 787 (1913), aff’d, 237 U.S. 350, 35 S. Ct. 610, 59 L. Ed. 989 (1914).

Jurisdiction.

District court has jurisdiction to hear and determine action to quiet title though the suit involves mental competency of one of the parties to a contract made. Whitney v. Randall, 58 Idaho 49, 70 P.2d 384 (1937).

A decree in a suit to quiet title is subject to collateral attack only on grounds of lack of jurisdiction of parties or of subject-matter. Bruun v. Hanson, 103 F.2d 685 (9th Cir.), cert. denied, 308 U.S. 571, 60 S. Ct. 86, 84 L. Ed. 479 (1939).

The district court had subject matter jurisdiction over suit to quiet title and to recover possession of real property located in Idaho purchased by plaintiffs at tax sale. Gage v. Harris, 119 Idaho 451, 807 P.2d 1289 (Ct. App. 1991).

Where defendant who was a resident of Kootenai County did not challenge the adequacy of service of process personally served in Kootenai County, the district court acquired personal jurisdiction over him in suit to quiet title and recover possession of real property located in Idaho. Gage v. Harris, 119 Idaho 451, 807 P.2d 1289 (Ct. App. 1991).

Jury Trial.

Under this section, an action to determine adverse claims to real or personal property, to quiet title thereto, is in equity and the parties are not entitled to a jury as a matter of right; it is within the discretion of the trial court as to whether it will submit any question of fact to the jury for their finding. Shields v. Johnson, 10 Idaho 476, 79 P. 391 (1904); Fairview Inv. Co. v. Lamberson, 25 Idaho 72, 136 P. 606 (1913).

In an action for quiet title to real property, there is no right to a jury trial. Loomis v. Union P.R.R., 97 Idaho 341, 544 P.2d 299 (1975).

Pleading.

Complaint which shows that plaintiff has an interest or right to possession of land and that defendant, without right, claims an interest or estate in said land adverse to plaintiff is sufficient without setting out what interest defendant claims. Fry v. Summers, 4 Idaho 424, 39 P. 1118 (1895). In action to quiet title where defendant relies upon title in himself, a cross-complaint is not necessary; where defendant seeks to enforce equitable title against plaintiff as holder of the legal title, a cross-complaint is proper. Bacon v. Rice, 14 Idaho 107, 93 P. 511 (1908).

In an action to quiet title, an allegation in ordinary and concise terms of the ultimate fact that plaintiff was the owner of the property was sufficient without setting out probative facts with which to thus establish that ultimate fact. Hammitt v. Virginia Mining Co., 32 Idaho 245, 181 P. 336 (1919); Ihly v. John Deere Plow Co., 35 Idaho 651, 208 P. 838 (1922).

A cross-complaint which described a mining claim as located on the Red Rock Lode mining claims in the Mineral Hill Mining District, Blaine County, Idaho, and recited that the claim was duly located and recorded with the County Recorder of Blaine County on Nov. 18, 1931, “reference to the records of which are hereby made for a more detailed description of said mining claim,” was not a sufficient description to give trial court jurisdiction to enter a decree quieting title to the mining claim in the cross-complaint. Norrie v. Fleming, 62 Idaho 381, 112 P.2d 482 (1941).

Complaint to quiet title which alleged in ordinary and concise language the necessary ultimate facts of ownership, possession, payment of taxes and adverse claim was sufficient to withstand a demurrer. Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006 (1953).

Because a claim of title is a general claim of ownership of the property, a complaint to quiet title is sufficient if it alleges, in ordinary and concise terms, that the plaintiff is the owner of the disputed property, without setting forth the probative facts by which that ultimate fact is to be established. Aldape v. Akins, 105 Idaho 254, 668 P.2d 130 (Ct. App. 1983).

The plaintiff in a quiet title action does not merely claim title by a specific theory, or assert that there is a specific defect in the adversary’s title; rather, the plaintiff claims ownership, and he claims it upon any legal theory or set of probative facts which may be employed to establish such ownership. Aldape v. Akins, 105 Idaho 254, 668 P.2d 130 (Ct. App. 1983).

Property Subject to Action.

This section applies to public lands claimed adversely by individual subject only to paramount title of United States. Crandall v. Gross, 30 Idaho 661, 167 P. 1025 (1917).

Action to ascertain and decree extent and priority of right to use of water partakes of nature of action to quiet title to real estate. Mays v. District Court, 34 Idaho 200, 200 P. 115 (1921).

A houseboat which was not nor was it ever intended to be permanently affixed or appurtenant to the land, either actually or constructively, constituted personalty belonging to appellants and the judgment quieting title to the houseboat which referred to in the judgment as the structure situate on the described lands in the land owners would be reversed. Prudente v. Nechanicky, 84 Idaho 42, 367 P.2d 568 (1961).

Every estate or interest known to the law in real property, whether legal or equitable, may be determined in an action to quiet title. Lewiston Lime Co. v. Barney, 87 Idaho 462, 394 P.2d 323 (1964).

Recitals of Tax Deed.

Deed to land sold for taxes reciting compliance with law in making sale is sufficient to cast burden on defendant to show that law was violated in that notice was not published as required. Shail v. Croxford, 54 Idaho 408, 32 P.2d 777 (1934).

Right to Maintain Action.

Where judgment is recovered against husband and execution is levied on separate property of wife, the wife may bring action under this section to enjoin sale and for vacation of writ of execution as to such property. Young v. First Nat’l Bank, 4 Idaho 323, 39 P. 557 (1895).

One who enters upon land and improves, cultivates, and exercises complete control for period of seventeen (17) years without his title ever being questioned may maintain an action to quiet title under this section, although patent under which he claims vests no title to land in controversy. Johnson v. Hurst, 10 Idaho 308, 77 P. 784 (1904), overruled on other grounds, Callahan v. Price, 26 Idaho 755, 146 P. 732 (1915).

Anyone claiming some right or interest in land may maintain a suit to quiet his title under this section, although he has neither possession nor legal title to such land; thus holder of the equitable title may maintain a suit against holder of the legal title. Coleman v. Jaggers, 12 Idaho 125, 85 P. 894 (1906); Western Loan & Bldg. Co. v. Bandel, 57 Idaho 101, 63 P.2d 159 (1936).

Action may be maintained by remainderman for protection of contingent remainder as against one who claims an estate or interest in property adverse to such remainderman. Wilson v. Linder, 18 Idaho 438, 110 P. 274 (1910).

Provisions of this section are broad and any person, whether in possession or not, whether holding legal or equitable title, may bring action. The Mode, Ltd. v. Myers, 30 Idaho 159, 164 P. 91 (1917); Western Loan & Bldg. Co. v. Bandel, 57 Idaho 101, 63 P.2d 159 (1936).

Interest of mortgagee is an interest adverse to holder of legal title. Pettengill v. Blackman, 30 Idaho 241, 164 P. 358 (1917).

Courts have generally held that in ordinary controversies arising out of questions of title between litigants “every interest or estate in land of which the law takes cognizance” may be considered. Carns v. Idaho-Iowa Lateral & Reservoir Co., 34 Idaho 330, 202 P. 1071 (1921).

Patentee of land over which right of way for a reservoir has been granted, or his successor in interest, is invested with right to institute proceedings to obtain a declaration of forfeiture for breach of condition subsequent and to quiet title in case of abandonment. Hurst v. Idaho-Iowa Lateral & Reservoir Co., 34 Idaho 342, 202 P. 1068 (1921).

Action to quiet title by removal of lien will lie, although lien is seemingly void on its face by virtue of§ 45-510. Roberts v. Harrill, 42 Idaho 555, 247 P. 451 (1926).

In order to prevail in action to quiet title, plaintiff must first show that he has title to quiet. Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052 (1928).

Where mortgagor has failed to redeem mortgaged property within statutory period, he is divested of all title in same and can not bring action to quiet title. Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052 (1928).

In suit to quiet title, one must recover on strength of his own title and not on weakness of that of his adversary. Steinour v. Oakley State Bank, 45 Idaho 472, 262 P. 1052 (1928).

Tax Title Superior to Bondholder’s Rights.

Venue.

Sale by county of land located in the city of Lewiston which had been acquired by the county for delinquent taxes was not invalid as to a holder of bonds of special improvement district encompassing the land, because of the fact that the proportion of assessments for certain years against the land to pay the bonds were unpaid and delinquent at the time of the sale and no notice of the sale was given to the bond holder where the bond holder had not previously filed, in the office of the treasurer, a written request for such notice pursuant to statute. Herbert v. Kester, 62 Idaho 670, 115 P.2d 417 (1941). Venue.

Action to quiet title to real estate must be prosecuted and maintained in the jurisdiction in which res or subject-matter is situated. Taylor v. Hulett, 15 Idaho 265, 97 P. 37 (1908).

Water Rights.

In action for adjudication of priorities in well waters tributary to lake, complaint was not demurrable because of failure to join all users of water from lake as defendants, since users not party to action were not bound by provisions of statute authorizing action and could not be injured by judgment therein, while intervening users had an ample opportunity to protect their rights as if suit had been brought under statute requiring that all water users be made parties. Owsley Canal Co. v. Henninger, 66 Idaho 485, 162 P.2d 389 (1945).

Prior to the 1981 amendments to this section and chapter 14, title 42, Idaho Code, the court, in an action to adjudicate water rights, was not required to name the department of water resources as a party to the action nor to dismiss the action if the department was not made a party. R.T. Nahas Co. v. Hulet, 106 Idaho 37, 674 P.2d 1036 (Ct. App. 1983), modified on other grounds, 114 Idaho 23, 752 P.2d 625 (Ct. App. 1988).

Am. Jur. 2d.

C.J.S.

ALR.

Excessiveness or adequacy of attorneys’ fees in matters involving real estate — modern cases. 10 A.L.R.5th 448.

Community Property.

Where community property is involved, filing of a disclaimer by the husband does not preclude the wife from defending or prosecuting her rights with respect to such property. Aker v. Aker, 52 Idaho 713, 20 P.2d 796, cert. denied, 290 U.S. 587, 54 S. Ct. 80, 78 L. Ed. 518 (1933).

Costs.

No costs should be adjudged against defendants in action to quiet title who fail to appear. Young v. First Nat’l Bank, 4 Idaho 323, 39 P. 557 (1895).

Ordinary action to quiet title is no different in right to recover attorney’s fees than any other litigation in which no such provision is made. Beloit v. Green, 43 Idaho 265, 251 P. 621 (1926).

In a quiet title action, a court properly awarded costs against defendant trust where the trust did not effectively disclaim any interest in the real property; the trust attempted to be on both sides of the fence at the same time — on the one hand stating it had no current interest in the real property, and on the other alleging and seeking to prove that the decedents’ owned the real property at their death, in which case the property would go to the trust. Hogg v. Wolske, 142 Idaho 549, 130 P.3d 1087 (2006).

Am. Jur. 2d.

C.J.S.

C.J.S.

§ 6-405. Order for survey and examination.

Any person having a bona fide claim to the possession, title of, or interest in, any real property or mining claim, including any ledges thereof, which is, or which he has good reason to believe is, in the possession of another, either by surface or underground holdings or workings, and it is necessary for the ascertainment, enforcement or protection of such rights or interests, that an examination or survey of such property be had, and the person so in the possession thereof fails or refuses for three (3) days after demand on him made in writing, to permit such examination or survey to be made, the party desiring the same may apply to the court or the judge thereof, whether he have an action concerning such property pending in such court or not, for an order for such examination and survey.

Such application must be made upon written petition or statement under oath, setting out a description of the property, interest of the party therein, that the premises are in the possession of a party, naming him, the reason why such survey or examination is asked, the demand made for same, and refusal thereof.

The court or judge must appoint a time and place for hearing, of which notice, with a copy of the petition, must be served upon the adverse party at least three (3) days before the hearing and one (1) additional day for each twenty-five (25) miles between the place of service of notice and the hearing, and such hearing must be had and the testimony must be produced in the same manner as provided by section 8-411[, Idaho Code,] for hearings on injunctions.

If upon such hearing the court or judge is satisfied that either party is entitled to any relief or order for examination or survey of any property in the possession of the other, which has, by the papers in the proceedings been put in controversy, an order must be granted for such examination, survey and other privileges as the court or judge may deem just, and the order must specify as nearly as possible what the person in whose favor such order is granted may do.

Thereupon, such person may have free access, with such agents and assistants as may be allowed, to all parts of such property, with right to remove any loose rock, debris or other obstacle, when the same is necessary to the making of a full inspection or survey of such property, but no such removal must be made without the consent of the adverse party or the order of the court or judge permitting the same.

The court or judge may also, upon proper showing with a view of producing such evidence as may be needed to determine the rights of the parties, allow work to be done on such property, but any work so permitted must be allowed only after the same is particularly defined, and must not be allowed in such manner as to interfere with the workings of the adverse party, and then only when the court is satisfied the adverse party is acting in bad faith and is infringing or attempting so to do, upon the rights of the party asking to do such work, and when there is no other reasonable or convenient mode for the production of the evidence necessary to settle the rights of the parties.

History.

C.C.P. 1881, § 480; Act Feb. 10, 1887; R.S., R.C., & C.L., § 4542; C.S., § 6965; I.C.A.,§ 9-405.

Compiler’s Notes.

Section 8-411, referred to in the third paragraph, was repealed by S.L. 1975, ch. 242, § 1. For present provisions relating to injunctions, see Idaho R. Civ. P. 65.

The bracketed insertion, in the third paragraph, was added by the compiler to conform to the statutory citation style.

Grounds for Order.

Complaint alleging that plaintiff is a judgment creditor of defendant and has caused an execution to issue upon such judgment, and levy made upon an interest of defendant in a mining claim, does not entitle plaintiff to an order permitting plaintiff to examine and inspect such property prior to execution sale. Bacon v. Federal Mining & Smelting Co., 19 Idaho 136, 112 P. 1055 (1910).

Plaintiff must allege a state of facts showing necessity for inspection and examination of property before he is entitled to the order. Bacon v. Federal Mining & Smelting Co., 19 Idaho 136, 112 P. 1055 (1910).

“Mining Claim” Defined.

The term “mining claim” as used in this section does not include mining property, title to which is in claimant. Salisbury v. Lane, 7 Idaho 370, 63 P. 383 (1900).

The term “mining claim” as used herein includes patented as well as unpatented mining ground. Salisbury v. Lane, 7 Idaho 370, 63 P. 383 (1900).

Purpose of Section.

This section is merely a legislative declaration of what has been recognized as the general equity powers of the court and is intended to enable any person who claims possession of, title to, or interest in any real property or mining claim to make examination and inspection of the property for the purpose of protecting and preserving such possession, title or interest in such property. Bacon v. Federal Mining & Smelting Co., 19 Idaho 136, 112 P. 1055 (1910).

Since the statute authorizes application for survey order only if necessary to protect or ascertain a property right, the complaint was properly dismissed where it failed to allege necessity for a survey order. Lisher v. Krasselt, 94 Idaho 513, 492 P.2d 52 (1972).

RESEARCH REFERENCES

C.J.S.

§ 6-406. Form and service of order — Rights under.

The order must describe the property, and a copy thereof must be served on the owner or occupant; and thereupon such party may enter upon the property, with necessary surveyors and assistants, and make such survey and measurement, but if any unnecessary injury be done to the property he is liable therefor.

History.

C.C.P 1881, § 481; R.S., R.C., & C.L., § 4543; C.S., § 6966; I.C.A.,§ 9-406.

Cross References.

Court may restrain waste,§ 11-406.

Execution sales,§ 11-301 et seq.

Foreclosure sales,§ 6-101 et seq.

C.J.S.

§ 6-408. Injury pending conveyance after sale — Damages.

When real property has been sold on execution, the purchaser thereof, or any person who may have succeeded to his interest, or any redemptioner, may, after his estate becomes absolute, recover damages for injury to the property by the tenant in possession after sale, and before possession is delivered under the conveyance.

History.

C.C.P. 1881, § 484; R.S., R.C., & C.L., § 4545; C.S., § 6968; I.C.A.,§ 9-408.

Cross References.

Execution sales,§ 11-301 et seq.

Cross References.

Possessory actions for public lands,§ 58-901 et seq.

Cross References.

Limitation of actions,§ 5-201 et seq.

C.J.S.

§ 6-412. Quiet title action — Maintenance against judgment barred by statute of limitations.

An action may be maintained to quiet title to lands against any judgment, the enforcement and collection of which is barred by the Statute of Limitations of the State of Idaho and which, except for the fact that its collection and enforcement is so barred by the Statute of Limitations, would constitute a lien upon said lands.

History.

1951, ch. 117, § 2, p. 272.

Cross References.

Limitation of actions,§ 5-201 et seq.

Am. Jur. 2d.

§ 6-413. Quiet title action — Decree.

The party seeking to maintain such action shall be entitled to a decree quieting title to his lands against the lien of any such judgment or mortgage upon proof that the collection and enforcement of such judgment or mortgage is barred by the Statute of Limitations and without the necessity of proving that any such judgment or the indebtedness secured by any such mortgage has been paid.

History.

1951, ch. 117, § 3, p. 272.

Cross References.

Limitation of actions,§ 5-201 et seq.

Effective Dates.

Section 4 of S.L. 1951, ch. 117 declared an emergency. Approved March 13, 1951.

Compiler’s Notes.

The words “this act” refer to S.L. 1972, ch. 118, compiled as§§ 6-414 to 6-418.

Color of Title.

A writing of some sort, purporting to give title, which on its face professes to pass title, which does not from want of title in the person making it, but not so obviously imperfect as to be apparent to one not skilled in the law that it is not good, is essential to a claim of color of title. Fouser v. Paige, 101 Idaho 294, 612 P.2d 137 (1980).

Good Faith.

Under any definition of good faith, actual notice of another’s interest negates the good faith necessary to recover in restitution. Fouser v. Paige, 101 Idaho 294, 612 P.2d 137 (1980).

Wrongdoer, with knowledge of his wrongdoing and of the rights of the true owner, has no claim to permanent improvements placed upon the property unlawfully in his possession. Therefore, a district court erred when it ordered the payment of restitution to the losing party in a quiet title action after there was a finding of fraud on his part because this undermined a determination of good faith. Bach v. Miller, 144 Idaho 142, 158 P.3d 305 (2007).

Amendments.

The 2020 amendment, by ch. 82, substituted “chapter 5, title 6, Idaho Code” for “chapter 5, title 5, Idaho Code” at the end of the section.

Compiler’s Notes.

The bracketed insertion, near the end of the section, was added by the compiler to correct the reference to chapter 5, title 6, Idaho Code, “Partition of Real Estate.”

Compiler’s Notes.

The words “this act” refer to S.L. 1972, ch. 118, compiled as§§ 6-414 to 6-418.

Good Faith.

Under any definition of good faith, actual notice of another’s interest negates the good faith necessary to recover in restitution. Fouser v. Paige, 101 Idaho 294, 612 P.2d 137 (1980).

Necessity of Writing.

A writing of some sort, purporting to give title, which on its face professes to pass title, which does not from want of title in the person making it, but not so obviously imperfect as to be apparent to one not skilled in the law that it is not good, is essential to a claim of color of title. Fouser v. Paige, 101 Idaho 294, 612 P.2d 137 (1980).

Compiler’s Notes.

The words “this act” refer to S.L. 1972, ch. 118, compiled as§§ 6-414 to 6-418.

Effective Dates.

Section 6 of S.L. 1972, ch. 118 provided the act should take effect on and after July 1, 1972.

Cross References.

Divorce, partition of community property or homestead,§ 32-713.

Judgments affecting land to be recorded with deed records,§ 31-2407.

Lis pendens,§ 5-505.

Partition fences,§§ 35-103 — 35-112.

Partition in probate proceedings,§ 15-3-911.

Record of judgments in partition, to be recorded with deeds,§ 31-2407; decree imparts notice,§ 31-2408.

Unknown owners or heirs as parties,§ 5-326.

Venue of actions,§ 5-401.

Jurisdiction.

The statutory language of this section clearly vests the district court with equitable powers to apportion the proceeds of the sale of jointly held property after the sale: thus, any argument that the court lost jurisdiction when the property was sold was without merit. Troupis v. Summer, 148 Idaho 77, 218 P.3d 1138 (2009).

Rescission.

Valid Partition.

In dispute between cellular phone company and landowners, district court erred when it determined that partition was the sole remedy. The district court failed to balance the equities to determine if rescission was the appropriate remedy. Brewer v. Wash. RSA No. 8, L.P., 145 Idaho 735, 184 P.3d 860 (2008). Valid Partition.

District court’s partitioning of real property, which belonged to tenants in common, in kind, rather than by sale, was not clearly erroneous, because the court’s partitioning of the property into unequal shares was supported by substantial and competent evidence showing the unequal contributions to the property which were made by the cotenants. Pandrea v. Barrett, 160 Idaho 165, 369 P.3d 943 (2016).

Valuation.

Chapter 7 trustee was not permitted to partition co-owned property under this section, because a partition of the property, acreage that partially abutted the Snake River and only accessible from the river, was not practicable — the value of the ownership interests of all undivided interest holders being based on access to the river and the concomitant right to travel on the river free of the permitting restrictions otherwise applicable. Zimmerman v. Spickelmire (In re Spickelmire), 433 B.R. 792 (Bankr. D. Idaho 2010).

Am. Jur. 2d.

C.J.S.

ALR.

Right to partition of overriding royalty interest in oil and gas lease hold. 58 A.L.R.3d 1052.

Judicial partition of land by lot or chance, 32 A.L.R.4th 909.

Homestead right of cotenant as affecting partition. 83 A.L.R.6th 605.

Am. Jur. 2d.

C.J.S.

Mortgages of Record.

This section requires that those holding mortgages of record shall be made parties. McKenzie v. Miller, 35 Idaho 354, 206 P. 505 (1922).

Mortgagee of undivided interest may appear in partition proceeding and object to confirmation of referee’s report on ground that the property allotted to his mortgagor is less than he is entitled to, and less than the amount of his mortgage. McKenzie v. Miller, 35 Idaho 354, 206 P. 505 (1922).

Am. Jur. 2d.

C.J.S.

Cross References.

Lis pendens in general,§ 5-505.

C.J.S.

§ 6-505. Summons — How directed.

The summons must be directed to all the joint tenants and tenants in common, and all persons having any interest in, or any liens of record by mortgage, judgment, or otherwise upon the property, or upon any particular portion thereof; and generally, to all persons unknown, who have or claim any interest in the property.

History.

C.C.P. 1881, § 491; R.S., R.C., & C.L., § 4564; C.S., § 6980; I.C.A.,§ 9-505.

Service of Summons on Mortgagee.

Service of summons on mortgagee gives him right to object and be heard so far as his rights and interests may be injuriously affected. McKenzie v. Miller, 35 Idaho 354, 206 P. 505 (1922).

Am. Jur. 2d.

C.J.S.

Cross References.

Publication of summons,§§ 5-508, 5-509.

Am. Jur. 2d.

C.J.S.

Applicability.

This statute contains nothing requiring setting forth liens against the defendant’s interest in property to be partitioned. Setting forth the nature of any security interest that a party to the petition holds, which secures a lien held by the defendant on the property, is required. Pandrea v. Barrett, 160 Idaho 165, 369 P.3d 943 (2016).

Am. Jur. 2d.

C.J.S.

C.J.S.

§ 6-509. Partial partition.

Whenever from any cause it is, in the opinion of the court, impracticable or highly inconvenient to make a complete partition in the first instance among all the parties in interest, the court may first ascertain and determine the shares or interests respectively held by the original cotenants, and thereupon adjudge and cause a partition to be made as if such original cotenants were the parties and sole parties in interest and the only parties to the action, and thereafter may proceed in like manner to adjudge and make partition separately of each share or portion so ascertained and allotted as between those claiming under the original tenant to whom the same shall have been so set apart, or may allow them to remain tenants in common thereof as they may desire.

History.

C.C.P. 1881, § 495; R.S., R.C., & C.L., § 4568; C.S., § 6984; I.C.A.,§ 9-509.

Partial Partition.

Where it appears in suit for partition that it is impracticable or inconvenient to make complete partition in the first instance among all parties, court may direct a partition among two or more of the parties, and from time to time thereafter may determine rights of the other parties and render judgment accordingly. Richardson v. Ruddy, 10 Idaho 151, 77 P. 972 (1904).

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Cross References.

References and trials by masters generally, Idaho Civil Procedure Rules 53(a)(1) to 53(e)(5).

Cross References.

References and trials by masters generally, Idaho Civil Procedure Rules 53(a)(1) to 53(e)(5).

Effect of Interlocutory Decree.

Interlocutory decree entered in action for partition of real property determines right to partition and fixes respective rights of parties. Richardson v. Ruddy, 15 Idaho 488, 98 P. 842 (1908).

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Report of Referees.

Report of referees appointed to partition real property presents merely the question whether partition was made in accordance with the decree of the court. Richardson v. Ruddy, 15 Idaho 488, 98 P. 842 (1908).

Am. Jur. 2d.

C.J.S.

Contesting of Report.

Party may appear to contest partition embodied in referee’s report on the ground that it is not according to the interlocutory decree or that it is unfair, although the interlocutory decree was entered against such party by default. McKenzie v. Miller, 35 Idaho 354, 206 P. 505 (1922).

Mortgagee of undivided interest may appear in partition proceeding and object to confirmation of referee’s report on the ground that the property allotted to his mortgagor is less than that to which he is entitled, and less than the amount of the mortgage. McKenzie v. Miller, 35 Idaho 354, 206 P. 505 (1922).

Hearing on Report.

Hearing on report of referees appointed to partition real property should be for purpose of ascertaining whether directions of court were carried out, and evidence should be received on this question only, except when fairness of referees is involved. Richardson v. Ruddy, 15 Idaho 488, 98 P. 842 (1908).

Where supreme court was unable to harmonize mistakes of facts and conclusions of law appearing in decree of trial court, it was necessary to reverse judgment and remand same with instructions. Andrews v. Grover, 66 Idaho 742, 168 P.2d 821 (1946).

RESEARCH REFERENCES

Am. Jur. 2d.

C.J.S.

§ 6-516. Effect of judgment on tenants for years.

The judgment does not affect tenants for years less than ten (10) to the whole of the property which is the subject of the partition.

History.

C.C.P. 1881, § 502; R.S., R.C., & C.L., § 4575; C.S., § 6991; I.C.A.,§ 9-516.

C.J.S.

§ 6-517. Allowance of expenses of referees.

The expenses of the referees, including those of a surveyor and his assistants when employed, must be ascertained and allowed by the court, and the amount thereof, together with the fees allowed by the court, in its discretion, to the referees, must be apportioned among the different parties to the action equitably.

History.

C.C.P. 1881, § 503; R.S., R.C., & C.L., § 4576; C.S., § 6992; I.C.A.,§ 9-517.

C.J.S.

§ 6-518. Lien on undivided interest — Charge on share assigned to lienor.

When a lien is on an undivided interest or estate of any of the parties, such lien, if a partition be made, shall thenceforth be a charge only on the share assigned to such party; but such share must first be charged with its just proportion of the costs of the partition, in preference to such lien.

History.

C.C.P. 1881, § 504; R.S., R.C., & C.L., § 4577; C.S., § 6993; I.C.A.,§ 9-518.

Am. Jur. 2d.

C.J.S.

C.J.S.

ALR.

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

C.J.S.

§ 6-524. Conduct of sale — Contents of notice.

All sales of real property made by referees under this chapter must be made at public auction to the highest bidder, upon notice published in the manner required for the sale of real property on execution. The notice must state the terms of sale, and if the property or any part of it is to be subject to a prior estate, charge or lien, that must be stated in the notice.

History.

C.C.P. 1881, § 510; R.S., R.C., & C.L., § 4583; C.S., § 6999; I.C.A.,§ 9-524.

Cross References.

Sales on execution,§§ 11-302, 11-310.

Am. Jur. 2d.

C.J.S.

C.J.S.

§ 6-526. Security for purchase-money.

The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase-money of such parts of the property as are directed by the court to be sold on credit for the shares of any known owner of full age, in the name of such owner; and for the shares of an infant in the name of the guardian of such infant; and for other shares in the name of the clerk of the court and his successors in office.

History.

C.C.P. 1881, § 512; R.S., R.C., & C.L., § 4585; C.S., § 7001; I.C.A.,§ 9-526.

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

C.J.S.

§ 6-532. Purchase by referees and guardians prohibited.

Neither of the referees, nor any person for the benefit of either of them, can be interested in any purchase; nor can a guardian of an infant party be interested in the purchase of any real property being the subject of the action, except for the benefit of the infant. All sales contrary to the provisions of this section are void.

History.

C.C.P. 1881, § 518; R.S., R.C., & C.L., § 4591; C.S., § 7007; I.C.A.,§ 9-532.

Am. Jur. 2d.

C.J.S.

C.J.S.

§ 6-534. Confirmation and order for conveyance.

If the sale be confirmed by the court, an order must be entered directing the referees to execute conveyances and take securities pursuant to such sale, which they are hereby authorized to do. Such order may also give directions to them respecting the disposition of the proceeds of the sale.

History.

C.C.P. 1881, § 520; R.S., R.C., & C.L., § 4593; C.S., § 7009; I.C.A.,§ 9-534.

C.J.S.

§ 6-535. Lienholders as purchasers.

When a party entitled to a share of the property, or an encumbrancer entitled to have his lien paid out of the sale, becomes a purchaser, the referees may take his receipt for so much of the proceeds of the sale as belongs to him.

History.

C.C.P. 1881, § 521; R.S., R.C., & C.L., § 4594; C.S., § 7010; I.C.A.,§ 9-535.

C.J.S.

§ 6-537. Investment of proceeds belonging to unknowns or nonresidents.

When there are proceeds of sale belonging to an unknown owner, or to a person without the state, who has no legal representative within it, the same must be invested in securities at interest for the benefit of the persons entitled thereto.

History.

C.C.P. 1881, § 523; R.S., R.C., & C.L., § 4596; C.S., § 7012; I.C.A.,§ 9-537.

C.J.S.

§ 6-538. Investment — When made in recorder’s name.

When the security of the proceeds of sale is taken, or when an investment of any such proceeds is made, it must be done, except as herein otherwise provided, in the name of the recorder of the county where the papers are filed, and his successors in office, who must hold the same for the use and benefit of the parties interested, subject to the order of the court.

History.

C.C.P. 1881, § 524; R.S., R.C., & C.L., § 4597; C.S., § 7013; I.C.A.,§ 9-538.

C.J.S.

§ 6-539. Investment — When made in parties’ names.

When security is taken by the referees on a sale, and the parties interested in such security, by an instrument in writing, under their hands, delivered to the referee, agree upon the shares and proportions to which they are respectively entitled, or when shares and proportions have been previously adjudged by the court, such securities must be taken in the names of and payable to the parties respectively entitled thereto, and must be delivered to such parties upon their receipt therefor. Such agreement and receipt must be returned and filed with the clerk.

History.

C.C.P. 1881, § 525; R.S., R.C., & C.L., § 4598; C.S., § 7014; I.C.A.,§ 9-539.

C.J.S.

§ 6-540. Duty of recorder taking security or making investment.

The recorder in whose name a security is taken, or by whom an investment is made, and his successors in office, must receive the interest and principal as it becomes due, and apply and invest the same as the court may direct; and must deposit with the county treasurer all securities taken, and keep an account in a book provided and kept for that purpose in the recorder’s office, free for inspection by all persons, of investments in moneys received by him thereon and the disposition thereof.

History.

C.C.P. 1881, § 526; R.S., R.C., & C.L., § 4599; C.S., § 7015; I.C.A.,§ 9-540.

C.J.S.

§ 6-541. Unequal partition — Compensation.

When it appears that partition cannot be made equal between the parties, according to their respective rights, without prejudice to the rights and interests of some of them, and a partition be ordered, the court may adjudge compensation to be made by one party to another on account of the inequality; but such compensation shall not be required to be made to others by owners unknown, nor by an infant, unless it appears that such infant has personal property sufficient for that purpose, and that his interest will be promoted thereby. And in all cases the court has power to make compensatory adjustment between the respective parties according to the ordinary principles of equity.

History.

C.C.P. 1881, § 527; R.S., R.C., & C.L., § 4600; C.S., § 7016; I.C.A.,§ 9-541.

Award Against Minor.

Court may order or award compensation against minor only when it appears that such minor has personal property sufficient for that purpose. Wright v. Atwood, 33 Idaho 455, 195 P. 625 (1921).

A mortgage given by a guardian to secure payment by his ward of compensation awarded on account of inequality in the partition of property set off to said ward was void and the decree authorizing its execution may be collaterally attacked in an action to foreclose such mortgage. Wright v. Atwood, 33 Idaho 455, 195 P. 625 (1921).

Election to Take.

The filing of decree before expiration of time given defendants in partition suit as to which parcel of land they would elect to take was error, in the absence of a waiver of the time limit by defendants, even though there was no evidence that defendants were entitled to an election. Andrews v. Grover, 66 Idaho 742, 168 P.2d 821 (1946).

In partition suit where land was valued at $8,500.00 and house on one portion of land was worth $500.00, the court erred in its conclusion of law that the party electing to take that portion of the land with the house should pay the other party $500.00; the latter party would be required to pay only $250.00. Andrews v. Grover, 66 Idaho 742, 168 P.2d 821 (1946).

Right to Jury Trial.

Cited

Only procedure adapted to such trials is that provided by statutes for civil actions, and in such cases parties are not entitled to trial by jury. People ex rel. Brown v. Burnham, 35 Idaho 522, 207 P. 589 (1922). Cited Troupis v. Summer, 148 Idaho 77, 218 P.3d 1138 (2009).

Am. Jur. 2d.

C.J.S.

Effective Dates.

Section 28 of S.L. 1971, ch. 111, as amended by S.L. 1971, ch. 126, § 2, provided that this section as amended should be in full force and effect on and after July 1, 1972.

Amendments.

The 2011 amendment, by ch. 151, substituted “incapacitated or protected person” for “insane person” in the section heading.

Compiler’s Notes.

The brackets around the language at the end of the section were added by the compiler to indicate that that language was probably intended to be struck by the 1971 amendment of the section.

Effective Dates.

Section 28 of S.L. 1971, ch. 111, as amended by S.L. 1971, ch. 126, § 2, provided that this section as amended should be in full force and effect on and after July 1, 1972.

Amendments.

The 2011 amendment, by ch. 151, substituted “incapacitated or protected person” for “insane person” near the beginning of the section.

Am. Jur. 2d.

§ 6-545. Costs of partition — Apportionment to parties — Lien.

The costs of partition, including reasonable counsel fees, expended by the plaintiff or either of the defendants for the common benefit, fees of referees, and other disbursements, must be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the judgment. In that case they shall be a lien on the several shares, and the judgment may be enforced by execution against such shares and against other property held by the respective parties. When, however, litigation arises between some of the parties only, the court may require the expense of such litigation to be paid by the parties thereto, or any of them.

History.

C.C.P. 1881, § 531; R.S., R.C., & C.L., § 4604; C.S., § 7020; I.C.A.,§ 9-545.

Am. Jur. 2d.

C.J.S.

ALR.

§ 6-546. Appointment of single referee.

The court, with the consent of the parties, may appoint a single referee, instead of three (3) referees, in the proceedings under the provisions of this chapter, and the single referee, when thus appointed, has all the powers and may perform all the duties required of the three (3) referees.

History.

C.C.P. 1881, § 532; R.S., R.C., & C.L., § 4605; C.S., § 7021; I.C.A.,§ 9-546.

Cross References.

Election contests§ 34-2001 et seq.; legislative and state executive offices,§ 34-2101 et seq.

Recall elections,§ 34-1701 et seq.

Substitute for writ of scire facias,§ 11-105.

Construction of Statute.

Scire facias is abolished but the functions of the writ are served by the provisions of§§ 11-105, 11-312, to which the rules governing the writ apply; the revivor suit is not a new action but merely a proceeding in aid of execution. Evans v. City of Am. Falls, 52 Idaho 7, 11 P.2d 363 (1932); Gertztowt v. Humphrey, 53 Idaho 631, 27 P.2d 64 (1933).

C.J.S.

§ 6-602. Actions for usurpation of office.

An action may be brought in the name of the people of the state against any person who usurps, intrudes into, holds or exercises any office or franchise, real or pretended, within this state, without authority of law. Such action shall be brought by the prosecuting attorney of the proper county, when the office or franchise relates to a county, precinct or city, and when such office or franchise relates to the state, by the attorney general; and it shall be the duty of the proper officer, upon proper showing, to bring such action whenever he has reason to believe that any such office or franchise has been usurped, intruded into, held or exercised without authority of law. Any person rightfully entitled to an office or franchise may bring an action in his own name against the person who has usurped, intruded into, or who holds or exercises the same.

History.

R.S., R.C., & C.L., § 4612; C.S., § 7024; I.C.A.,§ 9-602.

Burden of Proof.

In action to oust incumbent and induct elected successor into office, burden is on latter to establish his right to office and to produce evidence to sustain such burden. Whitten v. Chapman, 45 Idaho 653, 264 P. 871 (1928).

Construction of Statute.

This section supplants the common law writ of quo warranto; it is no longer necessary to file an application for leave to sue nor give defendant opportunity to show cause why proceedings be not commenced. State ex rel. Taylor v. Beneficial Protective Ass’n, 60 Idaho 587, 94 P.2d 787 (1939).

Evidence.

Because there exists a statutory mechanism for removing judges, there is no basis to invoke the superseded common law writ of quo warranto. Parsons v. Beebe, 116 Idaho 551, 777 P.2d 1224 (Ct. App. 1989). Evidence.

It was reversible error not to admit in evidence ballots, ballot boxes, ballot box keys and election returns offered in evidence by appellant where there was nothing to indicate such evidence was not substantially in the same condition as at the time of the election, such evidence having been rejected by the court on the ground that it was not admissible in a quo warranto proceeding to try title to an office, only being admissible in an election contest. Tiegs v. Patterson, 81 Idaho 46, 336 P.2d 687 (1959).

Mootness.

State’s actions for usurpation against members of a board of directors of a county recreation district, based on election irregularities contrary to§§ 31-4305 and 31-4306, were moot, because none of the members remained in office and could not be found to be usurping or unlawfully holding office, and the district court was without power to grant affirmative relief. State v. Keithly, 155 Idaho 464, 314 P.3d 146 (2013).

Nature of Proceeding.

Proceeding in quo warranto is not a civil action but a quasi criminal proceeding; therefore, there can be no intervention in such proceeding. People v. Green, 1 Idaho 235 (1869).

Action of quo warranto to try title to an office is an action at law, and territorial statute authorizing such action to be determined at chambers without intervention of jury was in violation of the federal constitution. People ex rel. Gorman v. Havird, 2 Idaho 531, 25 P. 294 (1889).

One remedy for reaching the ineligibility of person to hold office is by information in nature of quo warranto; the other is by a contest under express provisions of the statute. Toncray v. Budge, 14 Idaho 621, 95 P. 26 (1908).

Writ of quo warranto was a common-law remedy and is now a statutory remedy in this state, being covered by and included in this section and the following sections; district courts of this state have original jurisdiction in proceedings by information in the nature of quo warranto, and the jurisdiction to be exercised falls within the category of cases both at law and in equity. Toncray v. Budge, 14 Idaho 621, 95 P. 26 (1908).

Remedy herein provided for an information in the nature of quo warranto is for protection of the public in its governmental and sovereign capacity, and for benefit of the community or state at large rather than for gratification, satisfaction, or protection of any particular individual, except it be one who is himself entitled to office. Toncray v. Budge, 14 Idaho 621, 95 P. 26 (1908).

Statutory proceedings for removal from office are in the nature of quo warranto and quasi criminal. State v. Gooding, 22 Idaho 128, 124 P. 791 (1912).

This is not quo warranto proceeding at common law; it is usually called proceeding in nature of quo warranto notwithstanding abolition of such proceedings by territorial legislature. People ex rel. Brown v. Burnham, 35 Idaho 522, 207 P. 589 (1922).

No Jury Trial.

It was unnecessary that attorney-general file application to bring quo warranto proceeding to inquire into the authority by which a benefit association exercised its franchise, or that he give the association opportunity to show cause why proceeding should not be commenced, since the common-law proceeding by information in the nature of quo warranto has been abolished in Idaho. State ex rel. Taylor v. Beneficial Protective Ass’n, 60 Idaho 587, 94 P.2d 787 (1939). No Jury Trial.

Defendant is not entitled to determination of his right to the office by a jury. People ex rel. Brown v. Burnham, 35 Idaho 522, 207 P. 589 (1922).

Subject-Matter of Review.

Irregularities in action of the board of county commissioners in establishing a justice precinct cannot be reviewed in action of quo warranto to try title to office of justice in such precinct. Johnston v. Savidge, 11 Idaho 204, 81 P. 616 (1905).

Time for Commencement of Action.

The election contest statute requires an action thereunder to be commenced within twenty days after the votes are canvassed whereas the usurpation of office statute does not have this limitation of time for the commencement of the action. Tiegs v. Patterson, 79 Idaho 365, 318 P.2d 588 (1957).

Where appellant who alleged in his complaint that he had received a majority of the votes cast in an election to choose a director from division of irrigation district, both appellee and appellant having been nominated for such office and their names appearing on the ballot, has brought the action under the usurpation statute and has not in anywise contested the election, the filing of such action later than the twenty (20) day period provided for contesting an election would not be controlling as such limitation period was provided in the election contest statute, even though the secretary of the district had issued a certificate of election. Tiegs v. Patterson, 79 Idaho 365, 318 P.2d 588 (1957).

Who May Prosecute.

It is contrary to the spirit and purpose of the ancient writ of quo warranto, and its modern form of information in the nature of quo warranto, to allow action to be prosecuted promiscuously by any and every elector. Action must be prosecuted in the name of the people of the state against the usurper or intruder and must be brought by or on relation of the district attorney of the proper county or of the attorney-general, except in the single instance where person claims himself to be originally entitled to office, when he may prosecute the action in his own name. Toncray v. Budge, 14 Idaho 621, 95 P. 26 (1908).

If action in nature of quo warranto is not prosecuted by or on relation of the attorney-general or the proper county attorney, it is necessary for plaintiff to show some good cause why the same is not so prosecuted and to obtain permission and consent of court to act as relator himself and prosecute the action. Toncray v. Budge, 14 Idaho 621, 95 P. 26 (1908).

Where a village located in one county passed an ordinance annexing territory in another county, the prosecuting attorney of the county in which the land sought to be annexed was located, who filed an action for a declaratory judgment to determine validity of ordinance was entitled to maintain same as a quo warranto proceeding, though quo warranto was not the exclusive remedy for testing validity of annexation. Potvin v. Chubbuck, 76 Idaho 453, 284 P.2d 414 (1955).

Cited State ex rel. Holcomb v. Inhabitants of Pocatello, 3 Idaho 174, 28 P. 411 (1891); Gowey v. Siggelkow, 85 Idaho 574, 382 P.2d 764 (1963); Clark v. Ada County Bd. of Comm’rs, 98 Idaho 749, 572 P.2d 501 (1977); State ex rel. Roark v. City of Hailey, 102 Idaho 511, 633 P.2d 576 (1981). RESEARCH REFERENCES

Am. Jur. 2d.

65 Am. Jur. 2d, Quo Warranto, § 1 et seq.

C.J.S.

74 C.J.S., Quo Warranto, § 1 et seq.

ALR.

§ 6-603. Statement of private right — Arrest of defendant.

Whenever such action is brought in the name of the people of the state, the prosecuting attorney at the request of the person entitled to the office or franchise, in addition to the cause of action in behalf of the people of the state, may set forth the name of the person so entitled, with a statement of his right thereto, and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of usurpation thereof, an order may be granted by the judge or court wherein the case is pending, for the arrest of such defendant, and holding him to bail, and thereupon he may be arrested and held to bail in the same manner and with the same effect, and subject to the same rights and liabilities as in other civil actions where the defendant is subject to arrest.

History.

C.C.P. 1881, § 536; R.S., R.C., & C.L., § 4613; C.S., § 7025; I.C.A.,§ 9-603.

Cross References.

Arrest in civil cases,§ 8-101 et seq.

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

Executive Immunity.

An action against the governor for damages resulting from usurpation of office of county commissioner was properly dismissed on the basis of executive immunity where he appointed a county commissioner to replace the previously appointed commissioner who was filling vacancy left by the death of reelected incumbent. Bone v. Andrus, 96 Idaho 291, 527 P.2d 783 (1974).

Am. Jur. 2d.

C.J.S.

74 C.J.S., Quo Warranto, §§ 86, 87.

Am. Jur. 2d.

C.J.S.

Mootness.

State’s actions for usurpation against members of a board of directors of a county recreation district were moot, because none of the members remained in office and could not be found to be usurping or unlawfully holding office, and the district court was without power to grant affirmative relief. State v. Keithly, 155 Idaho 464, 314 P.3d 146 (2013).

Am. Jur. 2d.

C.J.S.

74 C.J.S., Quo Warranto, §§ 84, 86, 87.

Cross References.

Abatement of moral nuisances, bond,§ 52-402.

Adjudication of water rights, filing fee,§ 42-1414.

Justification of sureties,§ 12-614.

State, county or city need not give bond,§ 12-615.

Statutory form of undertaking,§ 12-613.

Amended Complaint.

Where county was notified of a claim on February 7, 1989, and suit was filed against it on March 7, 1989, an amendment of the complaint on May 21, 1990, adding a claim under the Tort Claims Act, will not be dismissed as making the original complaint prematurely filed in that the complaint was filed less than 90 days after notice of a claim was given to the county. Farnworth v. Femling, 125 Idaho 283, 869 P.2d 1378, cert. denied, 513 U.S. 816, 115 S. Ct. 73, 130 L. Ed. 2d 28 (1994).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The bracketed comma in subsection (6) was inserted by the compiler.

Actions Against Police Officers.

Where the complaint alleged defendants, at the time acts complained of, were acting as police officers, court was required to assume, for the purpose of determining the applicability of this statute, that the action arose out of and in the course of the performance of the duties of the officers. Monson v. Boyd, 81 Idaho 575, 348 P.2d 93 (1959).

Amended Complaint.

Where county was notified of a claim on February 7, 1989, and suit was filed against it on March 7, 1989, an amendment of the complaint on May 21, 1990, adding a claim under the Tort Claims Act, will not be dismissed as making the original complaint prematurely filed in that the complaint was filed less than 90 days after notice of a claim was given to the county. Farnworth v. Femling, 125 Idaho 283, 869 P.2d 1378, cert. denied, 513 U.S. 816, 115 S. Ct. 73, 130 L. Ed. 2d 28 (1994).

Actions Against State.

Assuming, but not deciding, that the act authorized the commissioner to procure public liability insurance, in the absence of any language expressing a waiver of immunity, the procuring of such insurance would not be sufficient to authorize an action against the state for the negligence of a police officer. Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957), rev’d on other grounds, 85 Idaho 492, 381 P.2d 286 (1963).

Bond for Costs.

The requirement of this section that plaintiff file an undertaking for costs is not jurisdictional and while the undertaking may be weighed by the defendant the statute is mandatory, so that where it is not complied with, the district court must dismiss the action when appropriate objection is timely urged by the defendant officer. Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957), rev’d on other grounds, 85 Idaho 492, 381 P.2d 286 (1963).

In view of the mandatory nature of the act directing public liability insurance on state vehicles, the issue of want of undertaking for costs was properly raised by a motion to strike rather than by demurrer for want of capacity to sue. Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957), rev’d on other grounds, 85 Idaho 492, 381 P.2d 286 (1963). Defense of lack of bond as required by this section was waived when not asserted in responsive pleading. Garren v. Butigan, 95 Idaho 355, 509 P.2d 340 (1973).

In a claim under the Idaho Tort Claims Act,§ 6-901 et seq., the district court properly dismissed the complaint against an Idaho deputy and a Utah sheriff, both of whom had been involved in an automobile pursuit, because the plaintiff did not pay the bond required by this section in a civil suit against law enforcement officers in the scope or performance of their duties and he did not seek relief, as an indigent, from the bond requirement under§ 31-3220. Athay v. Stacey, 146 Idaho 407, 196 P.3d 325 (2008).

A plaintiff who is indigent may request a waiver from the bond requirement in this section. Frost v. Robertson, 2009 U.S. Dist. LEXIS 24006 (D. Idaho 2009).

Plaintiff did not file a bond under this section, but argued that defendants were estopped from raising the issue. The argument lacked merit because defendants raised the issue as an affirmative defense and filed motions to dismiss within the proper deadlines. Pauls v. Green, 816 F. Supp. 2d 961 (D. Idaho 2011).

Free Exercise of Religion.

Requirement to post a security bond as a condition precedent to filing a civil action against a law enforcement officer did not apply to indigent prisoner seeking writ of habeas corpus for violation of his free exercise of religion. Hyde v. Fisher, 143 Idaho 782, 152 P.3d 653 (Ct. App. 2007).

Necessity for Compliance With Statute.

Where the complaint shows on its face, or where it is made to appear by evidence in support of a motion to dismiss, that the action is against peace officers and arises out of or in the course of the performance of the duty of such officers, if this statute has not been complied with, the action must be dismissed. Monson v. Boyd, 81 Idaho 575, 348 P.2d 93 (1959).

Purpose of Section.

The public object sought to be accomplished by this section is within the police power of the state and the limitation upon the rights of plaintiffs having causes of action against police officers is reasonable, that of securing an undertaking for costs; the act has a direct tendency to accomplish the legislative purpose and is not unconstitutional upon any ground urged. Pigg v. Brockman, 79 Idaho 233, 314 P.2d 609 (1957), rev’d on other grounds, 85 Idaho 492, 381 P.2d 286 (1963).

Tort Claim Actions.

Section 34-2020 and this section have been displaced in tort claim actions by the clear language of§ 6-918A; both of them antedate§ 6-918A and neither of them has ever contained express and specific language establishing an exception to the exclusive scope of§ 6-918A. Kent v. Pence, 116 Idaho 22, 773 P.2d 290 (Ct. App. 1989) (But see Beehler v. Fremont County, 145 Idaho 656, 182 P.3d 713 (Ct. App. 2008)).

Written Undertaking.

Sheriff was entitled to dismissal of a suit alleging breach of a settlement agreement and other causes of action because the filing of a bond one day after the lawsuit was initiated did not comply with the requirement that bond be posted as a condition precedent to suit. Allied Bail Bonds, Inc. v. County of Kootenai, 151 Idaho 405, 258 P.3d 340 (2011). Written Undertaking.

Action by taxpayer against the state tax commission and sheriff for trespassing upon his land and unlawfully seizing his property where plaintiff failed to post bond must be dismissed. Greenwade v. Idaho State Tax Comm’n, 119 Idaho 501, 808 P.2d 420 (Ct. App. 1991).

The requirement of this section that a prospective plaintiff in a suit against a law enforcement officer file an undertaking for costs is not jurisdictional and may be waived by the defendant; however, it is mandatory, and where it is not complied with, the district court must dismiss the action when the appropriate objection is timely urged by the defendant. Greenwade v. Idaho State Tax Comm’n, 119 Idaho 501, 808 P.2d 420 (Ct. App. 1991).

Trial court properly dismissed the negligence complaint for failure to file a written undertaking. This section was not superseded by the Idaho tort claims act,§ 6-901 et seq., and applies to all suits against law enforcement officers whether they are brought in tort or as other civil claims. Beehler v. Fremont County, 145 Idaho 656, 182 P.3d 713 (Ct. App. 2008).

Am. Jur. 2d.

C.J.S.

Effective Dates.

Section 30 of S.L. 1995, ch. 116 declared an emergency. Approved March 14, 1995.

Liability in Official Capacity.

Judgment for plaintiff in an action against the former state tax collector and the acting tax collector for refund of taxes paid by plaintiff under protest as to the validity of the taxing statute is against the defendants in their official capacity and not as individuals. American Oil Co. v. Neill, 90 Idaho 333, 414 P.2d 206 (1966), overruled on other grounds, County of Ada v. Red Steer Drive-Ins of Nev., Inc., 101 Idaho 94, 609 P.2d 161 (1980).

Amendments.

The 2011 amendment, by ch. 151, inserted “and television” in the section heading.

Am. Jur. 2d.

ALR.

Cross References.

Criminal actions for libel,§ 18-4801 et seq.

Defamation of insurer,§ 41-1308.

Determination of law and fact by jury in libel cases,§ 19-2130.

False reports about cooperative marketing associations,§ 22-2624.

Indictment for libel,§ 19-1424.

Jury verdict in libel trial,§ 19-2304.

Am. Jur. 2d.

C.J.S.

ALR.

Venue of civil libel action against newspaper or periodical. 15 A.L.R.3d 1249.

Qualified privilege of reply to defamatory publication. 41 A.L.R.3d 1083.

What constitutes “publication” of libel in order to start running of period of limitations. 42 A.L.R.3d 807.

Defamation by radio or television. 50 A.L.R.3d 1311.

Invasion of privacy by radio or television. 56 A.L.R.3d 386.

Publication of address as well as name of person as invasion of privacy. 84 A.L.R.3d 1159.

Invasion of privacy by use of a picture of plaintiff’s property for advertising purposes. 87 A.L.R.3d 1279.

Defamation of class or group as actionable by individual member. 52 A.L.R.4th 618.

Libel or slander: defamation by statement made in jest. 57 A.L.R.4th 520. Liability of newspaper for libel and slander — 21st century cases. 22 A.L.R.6th 553.

Invasion of Privacy by Use of Plaintiff’s Name or Likeness in Advertising — Consent and Waiver. 13 A.L.R.7th 4.

Compiler’s Notes.

The bracketed insertion was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The words “this act” refer to S.L. 1953, ch. 109, which is compiled herein as§§ 6-702 to 6-705.

Compiler’s Notes.

The words “this act” refer to S.L. 1953, ch. 109, which is compiled herein as§§ 6-702 to 6-705.

Effective Dates.

Section 5 of S.L. 1953, ch. 109 provided that the act should not be retroactive as to causes of action existing on its effective date.

Am. Jur. 2d.

ALR.

Am. Jur. 2d.

§ 6-708. Limitations and restrictions upon immunity from liability — Failure to exercise due care.

Nothing in this act contained shall be construed to relieve any person broadcasting over a radio or television station from liability under the law of libel, slander or defamation. Nor shall anything in this act be construed to relieve any person, firm, or corporation owning or operating a radio or television broadcasting station or network from liability under the law of libel, slander or defamation on account of any broadcast prepared or made by any such person, firm, or corporation or by any officer or employee thereof in the course of his employment. In no event, however, shall any such person, firm, or corporation be liable for any damages for any defamatory statement or act published or uttered on or as a part of a visual or sound broadcast unless it shall be alleged and proved by the complaining party that such person, firm, or corporation has failed to exercise due care to prevent the publication or utterance of such statement or act in such broadcast. Bona fide compliance with any federal law or the regulation of any federal regulatory agency shall be deemed to constitute such due care as hereinabove mentioned.

History.

1963, ch. 158, § 3, p. 459.

Compiler’s Notes.

The words “this act” refer to S.L. 1963, ch. 158, which is compiled as§§ 6-706 to 6-714.

Am. Jur. 2d.

C.J.S.

ALR.

Out-of-court communications between attorneys made preparatory to, or in the course of or aftermath of, civil judicial proceedings as privileged. 36 A.L.R.3d 1328.

Relevancy of matter contained in pleading as affecting privilege within law of libel. 38 A.L.R.3d 272.

Privilege of reporting judicial proceedings as extending to proceeding held in secret or as to which record is sealed by court. 43 A.L.R.3d 634.

Employer’s privilege as to communications to news media concerning employees. 52 A.L.R.3d 739.

Privileged nature of statements or utterances by member of school board in course of official proceedings. 85 A.L.R.3d 1137.

Am. Jur. 2d.

C.J.S.

Am. Jur. 2d.

C.J.S.

ALR.

Liability of newspaper for libel and slander — 21st century cases. 22 A.L.R.6th 553.

Private Statements of Police Officers.

Regardless of whether police reports are a public official proceeding, private statements of police officers made to members of the news media are not. Wiemer v. Rankin, 117 Idaho 566, 790 P.2d 347 (1990).

Am. Jur. 2d.

C.J.S.

ALR.

Out-of-court communications between attorneys made preparatory to, or in the course of or aftermath of, civil judicial proceedings as privileged. 36 A.L.R.3d 1328.

Relevancy of matter contained in pleading as affecting privilege within law of libel. 38 A.L.R.3d 272.

Privilege of reporting judicial proceedings as extending to proceeding held in secret or as to which record is sealed by court. 43 A.L.R.3d 634.

Employer’s privilege as to communications to news media concerning employees. 52 A.L.R.3d 739.

Privileged nature of statements or utterances by member of school board in course of official proceedings. 85 A.L.R.3d 1137.

Libel and slander: construction and application of the neutral reportage privilege. 13 A.L.R.6th 111.

Liability of newspaper for libel and slander — 21st century cases. 22 A.L.R.6th 553.

Am. Jur. 2d.

C.J.S.

Cross References.

Assumption of risk by employee,§§ 44-1401, 44-1402.

Death of wrongdoer, survival of personal injury action,§ 5-327.

Negligent homicide, revocation of driver’s license,§ 49-335.

Personal injuries, statute of limitations,§ 5-219.

Effective Dates.

Section 18 of S.L. 1987, ch. 278 read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987. Provided further, that Section 6-1603, Idaho Code, as enacted herein, is hereby repealed and does sunset for causes of action which accrue after June 30, 1992.”

Assumption of Risk.

Assumption of risk shall no longer be available as an absolute bar to recovery in any action; issues should be discussed in terms of contributory negligence, not assumption of risk, and applied accordingly under comparative negligence laws. The one exception involves a situation where a plaintiff, either in writing or orally, expressly assumes the risk involved. Salinas v. Vierstra, 107 Idaho 984, 695 P.2d 369 (1985).

Application of the implied assumption of risk doctrine is untenable in the era of comparative negligence established by this section. Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321 (1989).

Comparative Negligence Claims.

— In General.

Where two drivers collided at an uncontrolled intersection, plaintiff driver was not entitled to recover personal injury damages from defendant driver because each driver was 50 percent negligent for failing to keep a proper lookout. Vaughn v. Porter, 140 Idaho 470, 95 P.3d 88 (Ct. App. 2004).

— Arising Between 1971 and 1989.

The Idaho supreme court has applied Harrison v. Taylor , 115 Idaho 588, 768 P.2d 1321 (1989), applying principle of comparative negligence in negligence actions, retroactively to comparative negligence claims arising after the 1971 enactment of the comparative negligence statute, but before the date of Harrison , which was decided in January of 1989. Phillips v. United States, 801 F. Supp. 337 (D. Idaho 1992), aff’d, 15 F.3d 1088 (9th Cir. 1994).

Construction with Other Law.

Duty of Easement Owner.

This section and§§ 6-802 and 6-803 do not limit apportionment to cases involving contributory negligence. Blome v. Truksa, 130 Idaho 669, 946 P.2d 631 (1997) (decided under 1971 law). Duty of Easement Owner.

Although an easement owner was not required to maintain and repair easement for benefit of servient landowner, the easement owner would be held to the general standard to use ordinary care in the management of easement property; only upon a finding that the easement owner had breached its duty would a determination be made as to the effect of the servient landowner’s contributory negligence. Rehwalt v. American Falls Reservoir Dist. #2, 97 Idaho 634, 550 P.2d 137 (1976).

Imputed Negligence.

Although the court must compare the quantum of negligence of the “person seeking to recover” with that of the defendant, tort and agency law may require that the court charge an individual with the negligence of another, even though that individual has played no active role in bringing about the harm. Adams v. Krueger, 124 Idaho 74, 856 P.2d 864 (1993) (decision under law prior to 1987 amendment).

Inclusion of Nonparties to Lawsuit.

Where court is apportioning negligence under comparative negligence provisions of this section, it may include parties to the transaction which resulted in the injury whether or not they are parties to the lawsuit and this is true even though§ 6-802 uses the term “party”; although the statute requires that parties be included in the special verdict, it does not state that only parties shall be included. Pocatello Indus. Park Co. v. Steel W., Inc., 101 Idaho 783, 621 P.2d 399 (1980).

“Individual” Rule.

Idaho has adopted the “Wisconsin” or “individual” rule, whereby the plaintiff’s negligence is compared to the negligence of each individual defendant so that a plaintiff cannot recover from a defendant found to be as negligent or less negligent than himself, rather than adopting the “unit” rule whereby plaintiff can recover from any negligent defendant, so long as plaintiff’s negligence is less than the combined negligence of all defendants; accordingly, in action for damages caused by automobile collision with cow where plaintiff was 25 percent negligent, defendant cow owner was 10 percent negligent and defendant stockmen’s association was 65 percent negligent, plaintiff could not recover damages from cow owner. Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1980).

The legislature, when it enacted comparative negligence legislation, adopted the “individual” rule which requires that, when comparing percentages of negligence, the negligence of the plaintiff must be compared against each individual defendant in determining whether the plaintiff may recover; a plaintiff must prove that a defendant’s negligence was greater than that of the plaintiff before a judgment can be rendered against that defendant. Ross v. Coleman Co., 114 Idaho 817, 761 P.2d 1169 (1988).

In General.

Under the “individual rule” adopted by the Idaho legislature when it enacted comparative negligence, the negligence of the plaintiff must be compared against each individual defendant in determining whether the plaintiff may recover; in this case, the jury found that plaintiff was not negligent, but that there was negligence on the part of each of the four named defendants which was a proximate cause of any damages suffered by plaintiff; therefore, even if an unnamed party who allegedly removed the lighted barricade from the site of the excavation had been included on the verdict form, all of the named defendants would have been liable to plaintiff/motorcyclist for his injuries. Beitzel v. City of Coeur d’Alene, 121 Idaho 709, 827 P.2d 1160 (1992). In General.

The questions posed under the provisions of this statute narrow and focus the factual determination by requiring a finding as to the quantum of the respective negligence of the plaintiff and defendant. Ryals v. Broadbent Dev. Co., 98 Idaho 392, 565 P.2d 982 (1977).

There is no language in this section requiring the abrogation of the common law remedy of equitable indemnity. Chenery v. Agri-Lines Corp., 115 Idaho 281, 766 P.2d 751 (1988).

There is a legislative mandate that comparative negligence shall apply in all negligence actions. Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321 (1989).

Although the legislature has generally espoused the comparative negligence approach for negligence actions, because it is not precluded from limiting or rejecting the application of that approach in actions arising out of particular circumstances, its enactment of a statutory bar to an action by an intoxicated person against the provider of alcohol was within its constitutional powers. Coghlan v. Beta Theta Pi Fraternity, 133 Idaho 388, 987 P.2d 300 (1999).

As reckless conduct is recognized as a degree of negligence, this section allows reckless conduct by the defendant to be compared with the negligent conduct of the plaintiff. Accordingly, as reckless conduct is within the definition of willful and wanton conduct, willful and wanton conduct may be compared with ordinary negligence. Noel v. City of Rigby, — Idaho —, 462 P.3d 103 (2020).

Joint and Several Liability.

The express language of portions of the comparative negligence act makes clear that the legislature intended to retain the general common law rule of joint and several liability. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

The contention that a negligent tort-feasor’s liability is to be limited solely to his proportionate fault would undermine the fundamental rationale of the joint and several liability doctrine. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Underlying the rejection of limiting damages to proportionate fault is the retention of the concept that each tortfeasor whose negligence is a proximate cause of an indivisible injury should remain individually liable for all compensable damages attributable to that injury. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Jury Instructions.

In plaintiff’s action for recovery of damages for injuries sustained in fall, where plaintiff submitted a proposed jury instruction which was based on this section, plaintiff could not argue on appeal, from verdict denying any recovery, that this section was unconstitutional as a denial of equal protection of the law. Jackson v. Vangas, 97 Idaho 790, 554 P.2d 968 (1976).

Jury Verdict Form.

Though it is not reversible error for the court to inform the jury of the effect of apportioning 50% or more of the negligence to the plaintiff, the trial courts should be given discretion not to so inform the jury in those cases where the issues are so complex or the legal issues so uncertain that such instructions would confuse or mislead the jury. Seppi v. Betty, 99 Idaho 186, 579 P.2d 683 (1978). Jury Verdict Form.

All negligent actors contributing to the causation of any accident or injuries are required to be listed on the jury verdict form, whether or not they are parties to the action. Vannoy v. Uniroyal Tire Co., 111 Idaho 536, 726 P.2d 648 (1985).

Since this section and§ 6-802 envision apportionment where there is negligence attributable to the person recovering and since there was no contention that the plaintiffs were in any way negligent, inclusion on the verdict form of nonparty person whose negligence caused the accident was not required on verdict form. Hickman v. Fraternal Order of Eagles, 114 Idaho 545, 758 P.2d 704 (1988).

Landowner and Invitee.

The obviousness, or an invitee’s knowledge, of a dangerous activity or condition does not excuse the land possessor’s duty of care toward the invitee although such knowledge or the obviousness of the danger may be considered in evaluating the sufficiency of protective measures undertaken by the possessor and may be considered in evaluating a defense of contributory negligence, which may limit the land possessor’s liability. If this defense is raised, the invitee’s negligence in encountering the danger should be compared to the land possessor’s negligence in failing to protect the invitee against it. Keller v. Holiday Inns, Inc., 105 Idaho 649, 671 P.2d 1112 (Ct. App. 1983), rev’d on other grounds, 107 Idaho 593, 691 P.2d 1208 (1984).

Finding in favor of a baseball patron was proper because there was no error in the district court’s refusal to limit the duty owed to spectators injured by foul balls by baseball stadium owners and operators; the Baseball Rule is not adopted in Idaho. Apart from express written and oral consent, assumption of the risk, whether primary or secondary, is not a valid defense in Idaho. Rountree v. Boise Baseball, LLC, 154 Idaho 167, 296 P.3d 373 (2013).

Legislative Intent.

It was the intention of the legislature to extend the comparative negligence rule to those invitees who have been injured since the comparative negligence statute went into effect, and the decision in Harrison v. Taylor , 115 Idaho 588, 768 P.2d 1321 (1989), where the open and obvious danger doctrine was abolished, is to be applied retroactively. Baker v. Shavers, Inc., 117 Idaho 696, 791 P.2d 1275 (1990).

Loss of Consortium.

A spouse’s damages for loss of consortium should be reduced by the percentage of comparative negligence assigned to the injured spouse. Runcorn v. Shearer Lumber Prods., Inc., 107 Idaho 389, 690 P.2d 324 (1984).

Medical Malpractice.

District court properly imputed nurse’s negligence to doctor under the doctrine of respondent superior, where nurse misdiagnosed a severe yeast infection as herpes, and doctor later prescribed ointment for herpes. Adams v. Krueger, 124 Idaho 74, 856 P.2d 864 (1993) (decision under law prior to 1987 amendment).

Natural Accumulations.

Open and Obvious Danger.

This section does not allow an exemption for negligence as to natural accumulations, as to do so would require construing the statute as allowing the application of comparative negligence in some cases but not in others. Robertson v. Magic Valley Regional Medical Ctr., 117 Idaho 979, 793 P.2d 211 (1990). Open and Obvious Danger.

The open and obvious danger doctrine, born in the era of contributory negligence, has been abolished legislatively through the adoption of this section. Harrison v. Taylor, 115 Idaho 588, 768 P.2d 1321 (1989).

Product Liability.

The rationale of comparative negligence was meant to apply in product liability actions so that unforeseeable misuse would not be an absolute bar to recovery; therefore, in a wrongful death action arising out of an airplane crash, where the jury returned a special verdict finding that members of the airplane’s crew were 90% at fault for the crash with airplane manufacturer being responsible for remaining 10% of causation, the doctrine of comparative causation was properly applied. Sun Valley Airlines v. Avco-Lycoming Corp., 411 F. Supp. 598 (D. Idaho 1976).

Proportion of Damages Recoverable.

A jury finding that 50% of the negligence was attributable to the plaintiff would preclude any recovery by the plaintiff. Seppi v. Betty, 99 Idaho 186, 579 P.2d 683 (1978).

In an action for personal injuries, a plaintiff cannot recover when it is proven by the evidence that his negligence was a proximate cause of his injury, and that his negligence was equal to or greater than the negligence of the defendant notwithstanding that the evidence may also show negligence on the part of the defendant, and since in a wrongful death action, decedent’s parents’ claim arises from the same facts, they should not be entitled to recover for losses and damages resulting from their son’s death when he equally contributed to his own death. Bevan v. Vassar Farms, Inc., 117 Idaho 1038, 793 P.2d 711 (1990).

Special Verdict.

In a comparative negligence case, it is prejudicial error if court instructs the jury on the effect that its fact-finding answers, in a special verdict, will have on the outcome of the case. McGinn v. Utah Power & Light Co., 529 P.2d 423 (Utah 1974).

Suicide.

Doctrine of supervening causation was inapplicable to both the wrongful death action, and the parent’s cause of action for negligent infliction of emotional distress and question was more appropriately one of comparative negligence in parent’s tort action against school district and teacher regarding student’s suicide. Brooks v. Logan, 127 Idaho 484, 903 P.2d 73 (1995).

Summary Judgment.

Since the advent of comparative negligence, contributory negligence of the plaintiff is not grounds for granting summary judgment in favor of the defendant but requires the trier of fact to compare the contributory negligence of the plaintiff with that of the defendant. McKinley v. Fanning, 100 Idaho 189, 595 P.2d 1084 (1979).

Where evidence established that plaintiff stopped his motorcycle next to the highway surface for a period of time prior to the accident, there was no obstruction to defendant’s vision as he approached point where plaintiff was stopped, but defendant stated he did not observe plaintiff until immediately before the impact, the facts did not present the rare situation where reasonable minds could not differ on an interpretation of the facts as claimed by the respective parties, so that summary judgment was not proper under this section. Robinson v. Westover, 101 Idaho 766, 620 P.2d 1096 (1980). In determining whether summary judgment can be granted under this section, the issue is not just whether the plaintiff was guilty of contributory negligence but whether as a matter of law, his contributory negligence was equal to or greater than the negligence of the defendant. Robinson v. Westover, 101 Idaho 766, 620 P.2d 1096 (1980).

“Unit” Rule.

The provisions of§ 73-114 cannot be applied to this section in order to imply legislative support of the “unit” rule in Idaho comparative negligence cases since§ 73-114 is to be used only to give effect to legislative intent, not to determine it. Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1980).

Wrongful Death Action.

In a wrongful death action in which plaintiffs alleged that their son died as a result of the reckless and negligent conduct of defendant, who had engaged the decedent to descend into a drill shaft to make repairs to broken equipment, the trial court correctly instructed the jury that the plaintiffs could not recover damages unless the decedent could have recovered for his injuries had he survived. Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976).

Plaintiffs can recover for wrongful death only when the wrongful act would have entitled the person injured to maintain an action if death had not ensued; thus, if the decedent’s negligence was not as great as that of the defendants; then decedent’s heirs would be entitled to recover for their loss reduced by the percentage of decedent’s negligence; however, where the decedent’s negligence is equal to or greater than the defendant’s negligence, then the decedent’s heirs are barred from recovery as would be the injured party had he survived. Bevan v. Vassar Farms, Inc., 117 Idaho 1038, 793 P.2d 711 (1990).

C.J.S.

65A C.J.S., Negligence, § 856.

ALR.

Contributory negligence of child injured while climbing over or through railroad train blocking crossing. 11 A.L.R.3d 1168.

Contributory negligence or assumption of risks of one injured by firearm or air gun discharged by another. 25 A.L.R.3d 518.

Retrospective application of state statute substituting rule of comparative negligence for that of contributory negligence. 37 A.L.R.3d 1438.

Imputation of servant’s or agent’s contributory negligence to master or principle. 53 A.L.R.3d 664.

Imputation of contributory negligence of servant or agent to master or principle in action by master or principle against another servant or agent for negligence in connection with duties. 57 A.L.R.3d 1226.

Permitting child to walk to school unattended as contributory negligence of parents in action for injury or death of child. 62 A.L.R.3d 541.

Modern development of comparative negligence doctrine having applicability to negligence actions generally. 78 A.L.R.3d 339.

Judicial adoption of comparative negligence doctrine as applicable retrospectively. 78 A.L.R.3d 421.

Choice of law as to application of comparative negligence doctrine. 86 A.L.R.3d 1206.

Automobile occupant’s failure to use seat belt as contributory negligence. 92 A.L.R.3d 9.

Modern trends as to contributory negligence of children. 32 A.L.R.4th 56.

Motorcyclist’s failure to wear helmet or other protective equipment as affecting recovery for personal injury or death. 85 A.L.R.4th 365.

Comparative negligence, contributory negligence and assumption of risk in action against owner of store, office, or similar place of business by invitee falling on tracked-in water or snow. 83 A.L.R.5th 589.

Contributory negligence or comparative negligence based on failure of patient to follow instructions as defense in action against physician or surgeon for medical malpractice. 84 A.L.R.5th 619.

Construction and application of contact sports exception to negligence. 75 A.L.R.6th 109.

Effective Dates.

Section 18 of S.L. 1987, ch. 278 read: “The provision of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987. Provided further, that Section 6-1603, Idaho Code, as enacted herein, is hereby repealed and does sunset for causes of action which accrue after June 30, 1992.”

Construction with other law.

Contributory Negligence.

Sections 6-801, 6-803 and this section, do not limit apportionment to cases involving contributory negligence. Blome v. Truksa, 130 Idaho 669, 946 P.2d 631 (1997) (decided under 1971 law). Contributory Negligence.

Since the advent of comparative negligence, contributory negligence of the plaintiff is not grounds for granting summary judgment in favor of the defendant, but requires the trier of fact to compare the contributory negligence of the plaintiff with that of the defendant. McKinley v. Fanning, 100 Idaho 189, 595 P.2d 1084 (1979).

Discretion of Court.

Where the sole issue at trial was whether defendants’ uncontested negligence proximately caused plaintiffs’ alleged injuries, and issues material to the comparative negligence scheme were not raised at trial, the trial judge’s discretion was not displaced by a statutory duty to use a special interrogatory verdict form. Preuss v. Thomson, 112 Idaho 169, 730 P.2d 1089 (Ct. App. 1986).

Imputed Negligence.

Although the court must compare the quantum of negligence of the “person seeking to recover” with that of the defendant, tort and agency law may require that the court charge an individual with the negligence of another, even though that individual has played no active role in bringing about the harm. Adams v. Krueger, 124 Idaho 74, 856 P.2d 864 (1993) (decision under law prior to 1987 amendment).

“Individual” Rule.

The legislature, when it enacted comparative negligence legislation, adopted the “individual” rule which requires that, when comparing percentages of negligence, the negligence of the plaintiff must be compared against each individual defendant in determining whether the plaintiff may recover; a plaintiff must prove that a defendant’s negligence was greater than that of the plaintiff before a judgment can be rendered against that defendant. Ross v. Coleman Co., 114 Idaho 817, 761 P.2d 1169 (1988).

Under the “individual rule” adopted by the Idaho legislature when it enacted comparative negligence, the negligence of the plaintiff must be compared against each individual defendant in determining whether the plaintiff may recover; in this case, the jury found that plaintiff was not negligent, but that there was negligence on the part of each of the four named defendants which was a proximate cause of any damages suffered by plaintiff; therefore, even if an unnamed party who allegedly removed the lighted barricade from the site of the excavation had been included on the verdict form, all of the named defendants would have been liable to plaintiff/motorcyclist for his injuries. Beitzel v. City of Coeur d’Alene, 121 Idaho 709, 827 P.2d 1160 (1992).

Joint Tortfeasors.

Sections 6-801, 6-803 and this section authorize apportionment in joint and several liability cases. Blome v. Truksa, 130 Idaho 669, 946 P.2d 631 (1997) (decided under 1971 law).

Jury Instructions.

Jury Verdict Form.

Though it is not reversible error for the court to inform the jury of the effect of apportioning 50% or more of the negligence to the plaintiff, the trial courts should be given discretion not to so inform the jury in those cases where the issues are so complex or the legal issues so uncertain that such instructions would confuse or mislead the jury. Seppi v. Betty, 99 Idaho 186, 579 P.2d 683 (1978). Jury Verdict Form.

Since§ 6-801 and this section envision apportionment where there is negligence attributable to the person recovering and since there was no contention that the plaintiffs were in any way negligent, inclusion on the verdict form of nonparty person whose negligence caused the accident was not required on verdict form. Hickman v. Fraternal Order of Eagles, 114 Idaho 545, 758 P.2d 704 (1988).

This section has been interpreted to allow not only that the parties be included in the special verdict, but may also include parties to the transaction which resulted in the injury whether or not they are parties to the lawsuit; the justification for placing nonparties on a jury verdict was that true apportionment could not be achieved unless it included all tortfeasors guilty of causal negligence either causing or contributing to the occurrence in question, whether or not they were parties to the case. Van Brunt v. Stoddard, 136 Idaho 681, 39 P.3d 621 (2001).

In a medical malpractice and wrongful death case, where a cell saver technician left a surgery and allowed a reinfusion blood bag to empty, causing a fatal air embolism, the hospital where the surgery took place, the anesthesiology practice attending the surgery, and the manufacturer of the cell saver machine were properly excluded from the special verdict form, under this section, because no expert testimony was produced demonstrating that any of the entities’ actions fell below the applicable community standard of care. Jones v. Crawforth, 147 Idaho 11, 205 P.3d 660 (2009).

Mandatory Apportionment.

Although special verdict form prefaced apportionment of fault as “advisory,” according to the plain language of this section, such an apportionment was mandatory. “Advisory” language to the contrary, once respondent requested the jury to find separate special verdicts determining percentages of negligence attributable to each, the jury was required to and did apportion fault. Blome v. Truksa, 130 Idaho 669, 946 P.2d 631 (1997) (decided under 1971 law).

Party.

Where court is apportioning negligence under comparative negligence provisions of§ 6-801, it may include parties to the transaction which resulted in the injury whether or not they are parties to the lawsuit and this is true even though this section uses the term “party,” since, although this section requires that parties be included in the special verdict, it does not state that only parties shall be included. Pocatello Indus. Park Co. v. Steel W., Inc., 101 Idaho 783, 621 P.2d 399 (1980).

Proportion of Damages Recoverable.

A jury finding that 50% of the negligence was attributable to the plaintiff would preclude any recovery by the plaintiff. Seppi v. Betty, 99 Idaho 186, 579 P.2d 683 (1978).

Wrongful Death Action.

Plaintiffs can recover for wrongful death only when the wrongful act would have entitled the person injured to maintain an action if death had not ensued; thus, if the decedent’s negligence was not as great as that of the defendants, then decedent’s heirs would be entitled to recover for their loss reduced by the percentage of decedent’s negligence; however, where the decedent’s negligence is equal to or greater than the defendant’s negligence, then the decedent’s heirs are barred from recovery as would be the injured party had he survived. Bevan v. Vassar Farms, Inc., 117 Idaho 1038, 793 P.2d 711 (1990). In an action for personal injuries, a plaintiff cannot recover when it is proven by the evidence that his negligence was a proximate cause of his injury, and that his negligence was equal to or greater than the negligence of the defendant notwithstanding that the evidence may also show negligence on the part of the defendant; and since in a wrongful death action, decedent’s parents’ claim arises from the same facts, they should not be entitled to recover for losses and damages resulting from their son’s death when he equally contributed to his own death. Bevan v. Vassar Farms, Inc., 117 Idaho 1038, 793 P.2d 711 (1990).

ALR.

Construction and application of contact sports exception to negligence. 75 A.L.R.6th 109.

Compiler’s Notes.

Section 5 of S.L. 2003, ch. 122 provides: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 18 of S.L. 1987, ch. 278 read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987. Provided further, that Section 6-1603, Idaho Code, as enacted herein, is hereby repealed and does sunset for causes of action which accrue after June 30, 1992.” Section 6 of S.L. 2003, ch. 122 provides: “This act shall be in full force and effect on and after July 1, 2003. Sections 1 through 3 of this act shall apply to all causes of action which accrue thereafter. Section 4 of this act shall apply to all cases in which an appeal is filed thereafter.”

Agents.

Hospital could be found vicariously liable for the negligence of an independently contracted cell saver technician under Idaho’s doctrine of apparent agency. The extension of apparent agency to medical malpractice claims is consistent with Idaho’s Medical Malpractice Act,§ 6-1001 et seq.; the term “agent” as used in this section encompasses express agents, implied agents, and apparent agents under Idaho law. Jones v. Healthsouth Treasure Valley Hosp., 147 Idaho 109, 206 P.3d 473 (2009).

Common Liability.

Where a woman passenger in an automobile signed an agreement specifically releasing the plaintiff-driver from liability for her injuries suffered in a collision with the defendant’s vehicle and where the defendant discharged its liability to the passenger by way of settlement, the defendant was entitled to proceed under this section for contribution from the plaintiff-driver, but could not recover unless he established that such driver shared a common liability for the passenger’s injuries. Brockman Mobile Home Sales v. Lee, 98 Idaho 530, 567 P.2d 1281 (1977).

Where the defendant made no showing that the plaintiff-driver acted in gross negligence, intentionally or while intoxicated, and thereby shared a common liability with the defendant for injuries suffered by the plaintiff’s passenger in an automobile collision, the defendant could not hold the plaintiff for contribution. Brockman Mobile Home Sales v. Lee, 98 Idaho 530, 567 P.2d 1281 (1977). Underlying the rejection of limiting damages to proportionate fault is the retention of the concept that each tortfeasor whose negligence is a proximate cause of an indivisible injury should remain individually liable for all compensable damages attributable to that injury. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Construction With Other Law.

Sections 6-801, 6-802 and this section do not limit apportionment to cases involving contributory negligence. Blome v. Truksa, 130 Idaho 669, 946 P.2d 631 (1997) (decided under 1971 law).

Contract Specification Defense.

A public or private contractor following plans and specifications prepared by another party is not liable in negligence where defects in the plans and specifications cause injuries, so long as the contractor should not have reasonably known about the defects. Factual questions such as whether the defects should have been known by the contractor, or whether a particular set of plans was sufficient such that a reasonable contractor would have relied on them, are best left for resolution by the fact finder. Craig Johnson Constr., L.L.C. v. Floyd Town Architects, P.A., 142 Idaho 797, 134 P.3d 648 (2006).

Discharge from Liability.

Neither a covenant not to sue nor a release can operate to discharge joint tort-feasors from liability, thus allowing contribution to be recovered, unless the agreement contains specific language to that effect. Brockman Mobile Home Sales v. Lee, 98 Idaho 530, 567 P.2d 1281 (1977).

Chapter 13 debtor failed to show there were grounds under§ 6-805 and this section for denying a claim in the amount of $279,807, which a judgment creditor filed against his bankruptcy estate. The claim was based on a judgment in the amount of $120,117 which an Idaho court entered against the debtor and another person who assaulted the creditor. Although the state court ordered a third person, who hired the debtor and the other person to assault the creditor, to pay the creditor $300,000, the judgments were separate obligations and a satisfaction of judgment the creditor filed after the $300,000 judgment was paid did not release the debtor from his separate obligation. In re Monroe, 578 B.R. 834 (Bankr. D. Idaho 2017).

Effect of Contribution.

While there may be an equitable readjustment by contribution among multiple tortfeasors, such has no effect on the total liability of any individual tortfeasors to the injured plaintiff. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Guest Statute.

The decision in Thompson v. Hagan , 96 Idaho 19, 523 P.2d 1365 (1974), declaring the guest statute (now§ 49-2415) unconstitutional, applies only to negligence actions brought by passengers against host-drivers. Brockman Mobile Home Sales v. Lee, 98 Idaho 530, 567 P.2d 1281 (1977).

“Individual” Rule.

The legislature, when it enacted comparative negligence legislation, adopted the “individual” rule which requires that, when comparing percentages of negligence, the negligence of the plaintiff must be compared against each individual defendant in determining whether the plaintiff may recover; a plaintiff must prove that a defendant’s negligence was greater than that of the plaintiff before a judgment can be rendered against that defendant. Ross v. Coleman Co., 114 Idaho 817, 761 P.2d 1169 (1988).

Under the “individual rule” adopted by the Idaho legislature when it enacted comparative negligence, the negligence of the plaintiff must be compared against each individual defendant in determining whether the plaintiff may recover; in this case, the jury found that plaintiff was not negligent, but that there was negligence on the part of each of the four named defendants which was a proximate cause of any damages suffered by plaintiff; therefore, even if an unnamed party who allegedly removed the lighted barricade from the site of the excavation had been included on the verdict form, all of the named defendants would have been liable to plaintiff/motorcyclist for his injuries. Beitzel v. City of Coeur d’Alene, 121 Idaho 709, 827 P.2d 1160 (1992).

Intentional Torts.

Even if the co-worker’s conduct could be properly characterized as intentional rather than negligent, his name could be included on the special verdict form for purposes of apportionment of responsibility. Rausch v. Pocatello Lumber Co., 135 Idaho 80, 14 P.3d 1074 (Ct. App. 2000).

Joint Tortfeasors.

Sections 6-801, 6-802 and this section authorize apportionment in joint and several liability cases. Blome v. Truksa, 130 Idaho 669, 946 P.2d 631 (1997) (decided under 1971 law).

With the limitation of joint and several liability as a result of the 1987 amendment to this section, the failure to include a nonparty tortfeasor on the verdict form will affect the outcome even in cases in which there is no negligence attributable to the plaintiff(s), except where it is undisputed that the defendant is jointly and severally liable with all nonparty tortfeasors under subsection (5). Dep’t of Labor v. Sunset Marts, Inc., 140 Idaho 207, 91 P.3d 1111 (2004).

In an Idaho Tort Claims Act,§ 6-901 et seq., a Utah sheriff, who was pursuing a fleeing motorist, and the motorist, who was attempting to evade arrest, were not pursuing a common plan or design; thus, the district court was correct in holding that the sheriff and the motorist were not acting in concert and could not be held jointly and severally liable for injuries to a third person. The defendant county in Utah could only be liable for a pro rata share of the total damages awarded to the injured party, based on the reckless disregard of its employee, the sheriff. Athay v. Stacey, 146 Idaho 407, 196 P.3d 325 (2008).

Liability of State.

To the extent that sovereign immunity has been abrogated by the state, it has subjected itself to liability for its negligent acts and the negligent acts of its employees; to that same extent, the state shares a common liability with third party private tortfeasors. Masters v. State, 105 Idaho 197, 668 P.2d 73 (1983).

Right to Contribution.

The state was a “joint tortfeasor” where personal injury action was brought against both the state and motorcyclist and his wife and judgment thereon was rendered against both, holding them jointly and severally liable in tort for the same injury. Masters v. State, 105 Idaho 197, 668 P.2d 73 (1983). Right to Contribution.

Neither the tort claims act nor statutes governing contribution among joint tort-feasors contain any indication that the state is prohibited from obtaining contribution from a joint tortfeasor. Masters v. State, 105 Idaho 197, 668 P.2d 73 (1983).

Liability to Original Party.

Contribution may only be obtained among defendants who would have been liable to the original injured party. Hydraulic & Air Equip. Co. v. Mobil Oil Corp., 117 Idaho 130, 785 P.2d 947 (1989) (decided under 1982 version of this section).

Master and Servant.

Evidence of the existence of a master and servant relationship is sufficient to establish that master and servant are joint tortfeasors within the meaning of subsection (4). Holve v. Draper, 95 Idaho 193, 505 P.2d 1265 (1973).

Proof.

In order to prove a contribution claim against two joint tortfeasors, plaintiff must have discharged a common liability which plaintiff and the joint tortfeasors had to the original injured party. To prove such a liability, plaintiff must show that it, and its joint tortfeasors, were more at fault than the original injured party. Hydraulic & Air Equip. Co. v. Mobil Oil Corp., 117 Idaho 130, 785 P.2d 947 (1989) (decided under 1982 version of this section).

Required Proof.

Hemophiliac who was infected with human immunodeficiency virus was required to prove which of the two providers of the clotting agent Factor VIII caused the injury in order to recover under negligence theory. Doe v. Cutter Biological, 852 F. Supp. 909 (D. Idaho 1994), appeal dismissed, 89 F.3d 844 (9th Cir. 1996).

Am. Jur. 2d.

ALR.

Comparative negligence rule where misconduct of three or more persons is involved. 8 A.L.R.3d 722.

Right of third person to recover contribution from host-driver for injuries or death of guest, where host is not liable to guest under guests statute. 26 A.L.R.3d 1283.

Right of manufacturer or seller to contribution or indemnity from user of product causing injury or damage to third person, and vice versa. 28 A.L.R.3d 943.

Right of one liable under Civil Damage Act to contribution or indemnity from intoxicated person, or vice versa. 31 A.L.R.3d 438. Tort-feasor’s general release of co-tort-feasor as affecting former’s right to contribution against co-tort-feasor. 34 A.L.R.3d 1374.

Contribution of or indemnity between joint tort-feasors on basis of relative fault. 53 A.L.R.3d 184.

Contribution or indemnity between joint tort-feasors on basis of relative fault. 53 A.L.R.3d 184.

When statute of limitations commences to run against claim for contribution or indemnity based on tort. 57 A.L.R.3d 867.

What statute of limitations applies to action for contribution against joint tort-feasor. 57 A.L.R.3d 927.

Right of tort-feasor to contribution from joint tort-feasor who is spouse or otherwise in close familial relationship to injured party. 25 A.L.R.4th 1120.

Right of tort-feasor initially causing injury to recover indemnity or contribution from medical attendant causing new injury or aggravating injury in course of treatment. 72 A.L.R.4th 231.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 186, compiled as§§ 6-801 to 6-806.

Effective Dates.

Section 18 of S.L. 1987, ch. 278 read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987. Provided further, that Section 6-1603, Idaho Code, as enacted herein, is hereby repealed and does sunset for causes of action which accrue after June 30, 1992.”

Indemnity.

An attorney who was sued by a client for failing to commence an action in a timely manner did not have an equitable right to indemnity from the party or parties against whom the action was to be brought. Mitchell v. Valerio, 124 Idaho 283, 858 P.2d 822 (Ct. App. 1993).

Joint and Several Liability.

The express language of portions of the comparative negligence act make clear that the legislature intended to retain the general common law rule of joint and several liability. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

The contention that a negligent tort-feasor’s liability is to be limited solely to his proportionate fault would undermine the fundamental rationale of the joint and several liability doctrine. Tucker v. Union Oil Co., 100 Idaho 590, 603 P.2d 156 (1979).

Respondeat Superior.

Where negligence of nurse was imputed to doctor under doctrine of respondeat superior, comparative negligence law did not affect doctor’s common-law right to indemnification from nurse. Adams v. Krueger, 124 Idaho 97, 856 P.2d 887 (Ct. App. 1993).

C.J.S.

§ 6-805. Effect of release of one tortfeasor on liability of others.

1. A release by the injured person of one (1) joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides, but, unless otherwise provided in subsection (2) of this section, reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if such amount or proportion is greater than the consideration paid.
2. A release by the injured person of one (1) or more tortfeasors who are not jointly and severally liable to the injured person, whether before or after judgment, does not discharge another tortfeasor or reduce the claim against another tortfeasor unless the release so provides and the negligence or comparative responsibility of the tortfeasor receiving the release is presented to and considered by the finder of fact, whether or not the finder of fact apportions responsibility to the tortfeasor receiving the release.

History.

1971, ch. 186, § 5, p. 862; am. 1991, ch. 249, § 1, p. 617.

Credit of Settlement Against Verdict.

Under this section, the amount a plaintiff receives in settlement from a party should be deducted from the plaintiff’s judgment even though the settling party was never judicially determined technically to be a joint tort-feasor. Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986).

In an action for personal injuries arising from an automobile accident, the amount of the plaintiff’s settlements with other parties in the action could be credited against his total verdict whether or not they were found to be liable to him. Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986).

Determination of Joint Tortfeasors.

The trial court’s determination whether a settling party is a joint tortfeasor must be based on the pleadings and not the jury’s apportionment of liability. Quick v. Crane, 111 Idaho 759, 727 P.2d 1187 (1986).

Discharge from Liability.

Store that had entered into a settlement with a family and a manufacturer, against whom a wrongful death action was brought, were not jointly and severally liable for the damage award because they were not “acting in concert” with one another and neither acted “as an agent or servant” for the other. The store’s settlement agreement simply protected the store against any claim for contribution or indemnity by other tortfeasors, but in no way discharged or reduced the claim against any other tortfeasors. Horner v. Sani-Top, Inc., 143 Idaho 230, 141 P.3d 1099 (2006). Discharge from Liability.

Under this section and§ 6-806 neither a covenant not to sue nor a release can operate to discharge other tort-feasors from liability unless the agreement contains specific language to that effect. Holve v. Draper, 95 Idaho 193, 505 P.2d 1265 (1973).

The trial court erred in ruling as a matter of law that the department of transportation was not released by agreement between accident victim and driver of car, where department argued that by using the term “persons” in the agreement the parties intended to release the government. Esterbrook v. State, 124 Idaho 680, 863 P.2d 349 (1993).

Chapter 13 debtor failed to show there were grounds under§ 6-803 and this section for denying a claim in the amount of $279,807, which a judgment creditor filed against his bankruptcy estate. The claim was based on a judgment in the amount of $120,117 which an Idaho court entered against the debtor and another person who assaulted the creditor. Although the state court ordered a third person, who hired the debtor and the other person to assault the creditor, to pay the creditor $300,000, the judgments were separate obligations and a satisfaction of judgment the creditor filed after the $300,000 judgment was paid did not release the debtor from his separate obligation. In re Monroe, 578 B.R. 834 (Bankr. D. Idaho 2017).

Offset Not Appropriate.

Trial court did not err in holding that payments for medical and funeral expenses were simply part of a store’s overall settlement with a family and, therefore, the judgment against a manufacturer in a wrongful death action resulting from the same events was not improper because of the court’s denial to the manufacturer of an offset of the amount of those payments. Horner v. Sani-Top, Inc., 143 Idaho 230, 141 P.3d 1099 (2006).

Retroactive Application.

The 1991 amendment, making this section consistent with prior elimination of joint and several liability, was remedial, and it could be applied retroactively. Tuttle v. Wayment Farms, Inc., 131 Idaho 105, 952 P.2d 1241 (1998).

Am. Jur. 2d.

ALR.

Liability of governmental immunity or public officer for personal injury or damages arising out of vehicular accident due to negligent or defective design of highway. 45 A.L.R.3d 875; 58 A.L.R.4th 559.

Release of one negligently treating injury as affecting liability of one originally responsible for injury. 64 A.L.R.3d 839. Validity and effect of “Mary Carter” or similar agreement setting maximum liability of one cotortfeasor and providing for reduction or extinguishment thereof relative to recovery against non-agreeing co-tort-feasor. 22 A.L.R.5th 483.

Release of, or covenant not to sue, one primarily liable for tort, but expressly reserving rights against one secondarily liable, as bar to recovery against latter. 24 A.L.R.4th 547.

Discharge of Liability.

Under this section and§ 6-805 neither a covenant not to sue nor a release can operate to discharge other tortfeasors from liability unless the agreement contains specific language to that effect. Holve v. Draper, 95 Idaho 193, 505 P.2d 1265 (1973).

ALR.

§ 6-807. Limitation on the recovery of damages — Reducing or increasing an award.

1. In all civil actions in which there has been an award of damages as herein defined, the trial judge may, in his discretion, and after considering all of the evidence, alter such portion of the award representing damages if the amount awarded; (a) is unsupported or unjustified by the clear weight of the evidence; or (b) is so unreasonably disproportionate to the loss or damage suffered or to be suffered as to be unconscionable or so as to shock the conscience of the court; or (c) is the product of a legal error or mistake during the presentation of the evidence or submission of the case to the trier of fact; or (d) is demonstrated to be more likely than not the product of passion or prejudice on the part of the trier of fact.
2. If the court finds that the award of damages is unreasonably great or small by reason of any one or more of the factors set forth above, then the district court may exercise its discretion to reduce or increase such award in order to make the same consistent with the losses as shown by the evidence. In the event that the court shall enter any such order, it shall make detailed findings of fact and conclusions of law explaining the reason for its action, the amount of any increase or reduction, and the basis therefore.

History.

I.C.,§ 6-807, as added by 1987, ch. 278, § 6, p. 571; am. 1992, ch. 86, § 1, p. 270.

Compiler’s Notes.

Section 19 of S.L. 1987, ch. 278 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 18 of S.L. 1987, ch. 278 read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987. Provided further, that Section 6-1603, Idaho Code, as enacted herein, is hereby repealed and does sunset for causes of action which accrue after June 30, 1992.”

Section 2 of S.L. 1992, ch. 86 declared an emergency. Approved March 26, 1992.

Motion Properly Denied.

Motion for a new trial or additur by high school girl who had consensual affair with her coach/teacher was properly denied. Because a reasonable jury could have concluded that plaintiffs failed to prove their damages, the jury did not err by failing to award monetary compensation after it found the school district liable for negligent supervision and a proximate cause of the damages, especially since the student offered no evidence of her past medical, counseling, or therapy costs, or of economic loss. Hei v. Holzer, 145 Idaho 563, 181 P.3d 489 (2008).

The trial court did not abuse its discretion in denying defendants’ motion for a new trial or remittitur, because it weighed the evidence and found the jury’s non-economic damages award was not unconscionable and that a retrial would not produce a different result. Litke v. Munkhoff, 163 Idaho 627, 417 P.3d 224 (2018).

Cross References.

Comparative negligence,§ 6-801 et seq.

Death, resignation, removal, or retirement of public officer, effect of cause of action,§ 5-319.

Immunity of public officer,§ 6-611.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Disaster Relief.

There is no basis to infer that the Idaho Tort Claims Act applies to the National Guard while engaged in disaster relief activities. The Tort Claims Act does not serve to frustrate the purpose or eliminate the effect of the State Disaster Preparedness Act (see§ 46-1001 et seq.) by any stretch of the imagination. Baca v. State, 119 Idaho 782, 810 P.2d 720 (1991).

Inapplicable to Breach of Contract.

Because city’s suit against other city, with which it had a contract to have its wastewater treated, was based on other city’s breach of a contractual obligation, rather than negligent or wrongful conduct, the Idaho Tort Claims Act was inapplicable and did not bar city’s cause of action for breach of contract or render other city immune. City of Chubbuck v. City of Pocatello, 127 Idaho 198, 899 P.2d 411 (1995).

Inapplicable to Nonexistent Torts.

Liability of Police.

The Idaho Tort Claims Act subjects government entities to liability for negligent or wrongful acts committed by the entity or its employees where a private person would also be liable, but there is no cause of action for negligent investigation in Idaho. Hagy v. State, 137 Idaho 618, 51 P.3d 432 (Ct. App. 2002). Liability of Police.

There is no duty on a police officer to arrest an intoxicated person who possessed the keys to a vehicle the person might drive, and who had not committed some other crime for which the officer might arrest the person, and police officer not liable in tort to a third person injured when driver attempted to drive himself in the vehicle after officer had returned his keys to him and departed. Olguin v. City of Burley, 119 Idaho 721, 810 P.2d 255 (1991).

State Immunity.

The Tort Claims Act is not a waiver of eleventh amendment immunity. Mazur v. Hymas, 678 F. Supp. 1473 (D. Idaho 1988).

The federal district court did not err when it concluded that the eleventh amendment of the United States Constitution precluded it from asserting jurisdiction over the inmates’ claims against the prison officials in their official capacities. Leer v. Murphy, 844 F.2d 628 (9th Cir. 1988).

The immunity granted in§ 20-231 is not affected by the tort claims act. Pritchard v. State, 115 Idaho 111, 765 P.2d 136 (1988).

The Idaho Tort Claims Act abrogates the doctrine of sovereign immunity and renders a governmental entity liable for damages arising out of its negligent acts or omissions. However, it preserves the traditional rule of immunity in certain specific situations. Lawton v. City of Pocatello, 126 Idaho 454, 886 P.2d 330 (1994).

C.J.S.

ALR.

Common-law liability for injury caused by fireworks or firecracker. 21 A.L.R.6th 81.

Legislative Intent.

Section 1 of S.L. 1976, ch. 309 read: “The legislature of the state of Idaho hereby finds and declares that exposure of public employees to claims and civil lawsuits for acts or omissions within the course or scope of their employment has a chilling effect upon the performance of their employment duties and is an obstacle to the discharge of public business. It is the declared intention of the state of Idaho to relieve public employees from all necessary legal fees and expenses and judgments arising from such claims and civil lawsuits unless the act or omission complained of includes malice or criminal intent. The legislature further declares that the expenditure of public moneys to this end is for a public purpose.” Section 1 of S.L. 1986, ch. 214 read: “The legislature of the state of Idaho declares that it was the intention of the legislature in the original enactment of the Idaho tort claims act to include within the definition of ‘political subdivision’ agencies and entities, including hospitals and attached nursing homes, whether or not separately incorporated, established by counties and cities to provide for the public health of its citizens. The employees of such facilities, including elected or appointed board members, are entitled to the same protection and subject to the same standards as other employees of governmental entities. The expenditure of public moneys to this end is for a public purpose.”

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Effective Dates.

Section 3 of S.L. 1982, ch. 132 declared an emergency. Approved March 22, 1982.

Claim.

The primary function of notice under the Tort Claims Act is to put the governmental entity on notice that a claim against it is being prosecuted, and notice serving that function would not be insufficient unless the governmental entity was misled to its injury. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

Where written estimate given irrigation district by plaintiff did not contain a statement of demand, but the district was clearly apprised of the fact that a claim was being prosecuted against it and of the amount thereof, as confirmed by the activities of both district employee and district’s insurance carrier subsequent to plaintiff’s delivery of notice, and where there was no evidence that district was misled to its injury by any deficiency in notice, notice of claim was sufficient under the Tort Claims Act. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

A letter from the insurance company representing wrongful death defendants to the city, notifying the city of the claim against the defendants and stating that the city appeared to be responsible, did not constitute notice of a claim by the plaintiffs against the city. Stevens v. Fleming, 116 Idaho 523, 777 P.2d 1196 (1989).

The term “claim,” as used in the Idaho Tort Claims Act, describes claims for damages arising from tortious conduct; therefore, plaintiff’s claim for the return of property erroneously or illegally seized for the payment of taxes does not appear to fit the definition of a claim for tort damages and is not barred by§ 6-904A. Greenwade v. Idaho State Tax Comm’n, 119 Idaho 501, 808 P.2d 420 (Ct. App. 1991). Where the plaintiff alleged that she had a right to recover damages against the state transportation department because it had “negligently or intentionally secreted, destroyed, lost or mislaid” evidence, her claim for spoliation was a “claim,” as defined by the tort claim statute, and her failure to file a notice of tort claim properly resulted in dismissal of her claim. Cook v. State, DOT, 133 Idaho 288, 985 P.2d 1150 (1999).

Employees.

County court clerk, deputy clerk and bailiffs were state employees for the purpose of imposing liability for the alleged negligent destruction of evidence under the Idaho Tort Claims Act, where an administrative judge of the district court, rather than any county official, was the supervisor and controlled the deputy clerks of the court, evidence officer, and bailiffs while performing their judicial clerical functions in the handling and destruction of exhibits. Blankenship v. Kootenai County, 125 Idaho 101, 867 P.2d 975 (1994).

Where there is no evidence that a sheriff from Utah was an employee of an Idaho county in which a third party was injured in an automobile accident during a police chase, the county should be dismissed from the suit, as its liability is only for the actions of its employees. Athay v. Stacey, 146 Idaho 407, 196 P.3d 325 (2008).

Irrigation Districts.

This act was not intended to apply to irrigation districts which operate irrigation systems as a business enterprise for the benefit of shareholders rather than for the welfare of the general public. Brizendine v. Nampa Meridian Irrigation Dist., 97 Idaho 580, 548 P.2d 80 (1976).

Political Subdivision.

A county highway district is a political subdivision entitled to the notice required by§ 6-906; thus, the court was correct in granting summary judgment in favor of county highway district in tort action, where plaintiff gave no timely notice of a claim, but merely notified county highway superintendent after the accident that she had not been seriously injured. Curl v. Indian Springs Natatorium, Inc., 97 Idaho 637, 550 P.2d 140 (1976).

School District.

When plaintiffs’ school age son was injured after another student pushed him and hit him on the head, the Idaho Tort Claims Act applied to plaintiffs’ claims against the school district because it was a governmental entity under this section. The evidence did not create a genuine issue of material fact as to whether the conduct of any school employee was reckless, willful, and wanton, because there was no evidence that the student who hit plaintiffs’ son had ever harmed another student. Mareci v. Coeur d’Alene Sch. Dist. No. 271, 150 Idaho 740, 250 P.3d 791 (2011).

A.L.R.

A.L.R. — When is federal agency employee independent contractor, creating exception to United States waiver of immunity under Federal Tort Claims Act (28 U.S.C.A. § 2671). 166 A.L.R. Fed. 187.

Prior Laws.

Former§ 6-903, which comprised S.L. 1971, ch. 150, § 3, p. 743, was repealed by S.L. 1976, ch. 309, § 3.

Amendments.

The 2011 amendment, by ch. 197, redesignated the subsections numerically and added the last sentence in subsection (1).

Compiler’s Notes.

The term “this act” in subsections (1), (5), and (6) refers to S.L. 1976, Chapter 309, which is compiled as§§ 6-902, 6-903, 6-905, 6-906, 6-908 to 6-911, 6-915, 6-916, 6-918, and 6-924. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Section 2 of S. L. 1980, ch. 218 read: “This act shall apply to all claims under this act for money damages which accrue or which arise out of any negligent or otherwise wrongful acts or omissions of any governmental entity or its employees occurring on or after July 1, 1980.”

Action Against City.

Summary judgment was appropriate as the city owed no legal duty to plaintiff to protect him from illegal fireworks while attending city’s fireworks display. Lundgren v. City of McCall, 120 Idaho 556, 817 P.2d 1080 (1991).

Because city’s suit against other city, with which it had a contract to have its wastewater treated, was based on other city’s breach of a contractual obligation, rather than negligent or wrongful conduct, the Idaho Tort Claims Act was inapplicable and did not bar city’s cause of action for breach of contract or render other city immune to suit. City of Chubbuck v. City of Pocatello, 127 Idaho 198, 899 P.2d 411 (1995).

Under subsection (1), there was sufficient evidence in the record to support a finding that a municipal pool patron was an invitee, and that the city owed her a duty to keep the premises in a reasonably safe condition. Ball v. City of Blackfoot, 152 Idaho 673, 273 P.3d 1266 (2012).

Action Against Probation Officer.

Where a motorcyclist was injured in a collision with a drunk driver who was on probation for driving under the influence of alcohol, the motorcyclist had a cause of action against the driver’s probation officer whose negligent supervision of the driver foreseeably created a potential for harm to those motorists whom the driver would encounter on the state’s highways. Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986).

Criminal Intent.

Dismissal.

There was no doubt that the defendant teacher, accused of lewd and lascivious acts with his minor students, acted with criminal intent where he admitted to performing the lewd and lascivious acts, he specifically named each of the minor plaintiffs as the objects of his actions, he expressly stated that he acted intentionally, and he pled guilty to related criminal charges of lewd and lascivious conduct. Therefore, the school district was absolved from indemnifying the defendant as a matter of law. Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986). Dismissal.

District court properly dismissed a negligence complaint against the board of professional discipline of the Idaho state board of medicine, because the claimants failed to serve the summons and complaint upon the Idaho secretary of state as well as the Idaho attorney general within six months after filing the complaint and did not show good cause for their failure to do so. Harrison v. Bd. of Prof’l Discipline of the Idaho State Bd. of Med., 145 Idaho 179, 177 P.3d 393 (2008).

Employee.

A Utah sheriff, pursuing an automobile into Idaho with the reasonable belief that the driver had committed a felony in Utah, does not become an employee of the state of Idaho, nor of one of its counties, by the mere fact that law enforcement officers from Idaho joined in the pursuit within the state. Because of the vicarious liability that a governmental entity can have for the acts of its employees, a person cannot become the employee of a governmental entity without its agreement. Athay v. Stacey, 146 Idaho 407, 196 P.3d 325 (2008).

Exceptions.

The Idaho Tort Claims Act is structured in three tiers: The general rule is that governmental entities are liable for damages arising out of their own negligent or otherwise wrongful acts and for those of their employees who were acting within the course and scope of their employment. Section 6-904 then sets out certain exceptions to liability, including an exception for acts such as battery and false imprisonment commonly known as intentional torts. The third tier is also established by§ 6-904. It states that the exceptions to liability do not apply if the acts were committed with malice or criminal intent. Grant v. City of Twin Falls, 120 Idaho 69, 813 P.2d 880 (1991).

Irrigation Districts.

This act was not intended to apply to irrigation districts which operate irrigation systems as a business enterprise for the benefit of shareholders rather than for the welfare of the general public. Brizendine v. Nampa Meridian Irrigation Dist., 97 Idaho 580, 548 P.2d 80 (1976).

Liberal Construction.

The Idaho Tort Claims Act is to be construed liberally and with a view to accomplishing its aims and purposes, and attaining substantial justice. Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986).

Malice.

Where automobile driver’s amended complaint alleged that arresting municipal police officers acted with malice, as a matter of law, the driver could not recover from the city, as this section specifically exempts governmental entities from liability where the employees act with malice. Sprague v. City of Burley, 109 Idaho 656, 710 P.2d 566 (1985).

Trial court erred in refusing to dismiss plaintiff’s tort claims against a police officer where plaintiff failed to satisfy the burden, under subsection (e), of showing that the officer, who was acting during the course and scope of employment when ordering an involuntary catheterization after plaintiff was arrested for DUI, acted maliciously or with criminal intent. Miller v. Idaho State Patrol, 150 Idaho 856, 252 P.3d 1274 (2011). Where, in an action against governmental entities for violation of the plaintiff’s civil rights stemming from his arrest, incarceration, and physical treatment in the county jail, the amended complaint alleged that the officers acted with malice, the plaintiff could not recover from the city, the county, or the state as a matter of law because the Tort Claims Act exempts entities from liability where the employees act with malice. Herrera v. Conner, 111 Idaho 1012, 729 P.2d 1075 (Ct. App. 1986).

Motion for Summary Judgment of Dismissal.

In considering a motion for summary judgment requesting dismissal of a complaint against a governmental entity and its employees under the Idaho Tort Claims Act, the trial court must answer whether tort recovery is allowed under the laws of Idaho; and, if so, whether an exception to liability found in the tort claims act shields the alleged misconduct from liability; and, if no exception applies, whether the merits of the claim as presented for consideration on the motion for summary judgment entitle the moving party to dismissal. Harris v. State, Dep’t of Health & Welfare, 123 Idaho 295, 847 P.2d 1156 (1993).

Negligent Investigations.

Plaintiffs cited no cases from Idaho or any other jurisdiction recognizing the tort of negligent investigation of a crime. Therefore, the summary judgment dismissing plaintiffs’ claims of negligent investigation and negligent training of fish and game officers was proper. Wimer v. State, 122 Idaho 923, 841 P.2d 453 (Ct. App. 1992).

Negligent Supervision of Juveniles.

Where there was no evidence to indicate that state employees intentionally and knowingly did or failed to do any act which created an unreasonable risk of harm to victim, as neither juvenile’s antecedent behavior nor present comportment presaged the vicious exploits he committed such that a reasonable person could foresee the need to restrain him from society, the department of health and welfare’s conduct in supervising the juvenile did not rise to the level of creating an unreasonable risk of harm to the public and, therefore, was not reckless, willful, and wanton. Harris v. State, Dep’t of Health & Welfare, 123 Idaho 295, 847 P.2d 1156 (1993).

Notice Requirement.

Since§ 6-908 requires the filing of a notice of claim, as a prerequisite to a suit against a governmental employee acting within the course and scope of his employment, and no such claim was filed, the trial court properly dismissed the cause of action against defendants in their individual capacities on the basis of plaintiff’s failure to file a notice of claim. Overman v. Klein, 103 Idaho 795, 654 P.2d 888 (1982).

Powers over County Roads.

Release from Liability.

The powers and duties over county roads granted to county by the legislature satisfy the threshold requirement of subsection (a) of this section. Bingham v. Franklin County, 118 Idaho 318, 796 P.2d 527 (1990). Release from Liability.

The trial court erred, in ruling as a matter of law, that the department of transportation was not released by agreement between accident victim and driver of car, where department argued that by using the term “persons” in the agreement the parties intended to release the government. Esterbrook v. State, 124 Idaho 680, 863 P.2d 349 (1993).

State Employees Sued as Individuals.

Regardless of plaintiff’s contention that defendants were sued as individuals, where complaint was brought against defendants for actions performed by them in their capacity as members of the tax commission, the defendants were sued as state employees for acts or omissions committed within the course and scope of their employment, and pursuant to this section the state had an affirmative duty to furnish legal counsel for the defendants. Conley v. Looney, 117 Idaho 627, 790 P.2d 920 (Ct. App. 1989) (see 2005 amendment of section).

Because the complaint and record contained no evidence, nor allegations, that the defendants acted outside the scope or course of their employment they could not be sued in their individual capacities. Pounds v. Denison, 120 Idaho 425, 816 P.2d 982 (1991) (see 2005 amendment of section).

In an action arising from the allegedly wrongful termination of a deputy fire chief, city employees were entitled to dismissal of the fire chief’s claims against them in their personal capacities; the fire chief did not rebut the presumption that the employees acted within the course and scope of their employment, rather than in their personal capacities. Brown v. City of Caldwell, 769 F. Supp. 2d 1256 (D. Idaho 2011).

State Immunity.

The Idaho Tort Claims Act does not constitute a waiver of state immunity. Union Pac. R.R. v. Idaho, 654 F. Supp. 1236 (D. Idaho 1987); Union Pac. R.R. v. Idaho, 663 F. Supp. 75 (D. Idaho 1987).

The Tort Claims Act is not a waiver of eleventh amendment immunity. Mazur v. Hymas, 678 F. Supp. 1473 (D. Idaho 1988).

Tort Claims Authorized.

The Idaho Tort Claims Act authorizes tort claims against governmental entities and employees for their negligence or wrongful acts or omissions when engaged in activities for which an individual could be held liable. Gordon v. Noble, 109 Idaho 1048, 712 P.2d 749 (Ct. App. 1986).

Trespass Action.

An action for trespass to either chattels or land is a tort, as is an action for trover and conversion. When these torts are allegedly committed by a government employee acting within the course or scope of his employment, they fall within the purview of the Idaho Tort Claims Act. Greenwade v. Idaho State Tax Comm’n, 119 Idaho 501, 808 P.2d 420 (Ct. App. 1991).

Trover Action.

Cited

Since conversion is a tortious act, and in the case at issue such act was allegedly committed by a police officer acting within the course or scope of his employment, plaintiff’s claim against the officer in trover was within the purview of the Idaho Tort Claims Act. Gordon v. Noble, 109 Idaho 1048, 712 P.2d 749 (Ct. App. 1986). Cited Haeg v. City of Pocatello, 98 Idaho 315, 563 P.2d 39 (1977); Rogers v. State, 98 Idaho 742, 572 P.2d 176 (1977); Elce v. State, 110 Idaho 361, 716 P.2d 505 (1986); Jones v. City of St. Maries, 111 Idaho 733, 727 P.2d 1161 (1986); Barringer v. State, 111 Idaho 794, 727 P.2d 1222 (1986); Walker v. Shoshone County, 112 Idaho 991, 739 P.2d 290 (1987); Ransom v. City of Garden City, 113 Idaho 202, 743 P.2d 70 (1987); County of Kootenai v. Western Cas. & Sur. Co., 113 Idaho 908, 750 P.2d 87 (1988); Udell v. Idaho State Bd. of Land Comm’rs ex rel. Idaho Att’y Gen., 119 Idaho 1018, 812 P.2d 325 (Ct. App. 1991); Thompson v. City of Idaho Falls, 126 Idaho 587, 887 P.2d 1094 (Ct. App. 1994); Feld v. Idaho Crop Imp. Ass’n, 126 Idaho 1014, 895 P.2d 1207 (1995); Crown v. State, Dep’t of Agric., 127 Idaho 188, 898 P.2d 1099 (Ct. App. 1994); Brooks v. Logan, 127 Idaho 484, 903 P.2d 73 (1995); Sherer v. Pocatello Sch. Dist. # 25, 143 Idaho 486, 148 P.3d 1232 (2006).

Decisions Under Prior Law

Notice Requirement.

A city’s actual notice of plaintiff’s damages which resulted from the city’s alleged failure to properly operate its municipal water system did not take plaintiff’s complaint out of the notice of claim requirements. Calkins v. Fruitland, 97 Idaho 263, 543 P.2d 166 (1975).

Am. Jur. 2d.

C.J.S.

63 C.J.S., Municipal Corporations, §§ 661, 666 to 873.

78A C.J.S, Schools and School Districts, § 674.

81A C.J.S., States, § 467 et seq.

ALR.

Liability of municipal corporation for negligent performance of building inspector’s duties. 24 A.L.R.5th 200.

Liability of water supplier for damages resulting from furnishing impure water. 54 A.L.R.3d 936.

Validity and construction of statute authorizing or requiring governmental unit to indemnify public officer or employee for liability arising out of performance of public duties. 71 A.L.R.3d 90.

Liability of municipal corporation for shooting of bystander by law enforcement officer attempting to enforce law. 76 A.L.R.3d 1176. State or municipal liability for invasion of privacy. 87 A.L.R.3d 145.

Hospital, immunity of state or governmental unit or agency from liability for damages in tort in operating. 18 A.L.R.4th 858.

Immunity of county from liability for damages in tort in operating hospital. 18 A.L.R.4th 858.

Liability for wrongful autopsy. 18 A.L.R.4th 858.

Governmental liability for failure to reduce vegetation obscuring view at railroad crossing or at street or highway intersection. 22 A.L.R.4th 624.

Tort liability of public schools and institutions of higher learning for accident involving motor vehicle operated by student. 85 A.L.R.5th 301.

Liability for spread of fire intentionally set for lawful purpose. 25 A.L.R.5th 391.

Comment note: Governmental liability for failure to reduce vegetation obscuring view at railroad crossing or at street or highway intersection. 50 A.L.R.6th 95.

Municipal liability for damage resulting from obstruction or clogging of drain or sewer. 54 A.L.R.6th 201.

Effective Dates.

Section 2 of S.L. 1974, ch. 167 declared an emergency. Approved March 30, 1974.

Section 5 of S.L. 1987, ch. 361 read: “Section 1 of this act shall be in full force and effect on and after July 1, 1988, except for the obligation of the Idaho Transportation Department to promulgate rules and regulations. Sections 2, 3 and 4 of this act shall be in full force and effect on and after July 1, 1987.”

Abuse of Process.

The essential elements of abuse of process are: (1) an ulterior, improper purpose; and (2) a wilful act in the use of the process not proper in the regular conduct of the proceeding. Beco Constr. Co. v. City of Idaho Falls, 123 Idaho 516, 865 P.2d 950 (1993).

Action Against Probation Officer.

Where a motorcyclist was injured in a collision with a drunk driver who was on probation for driving under the influence of alcohol, the motorcyclist had a cause of action against the driver’s probation officer whose negligent supervision of the driver foreseeably created a potential for harm to those motorists whom the driver would encounter on the state’s highways. Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986) (see§ 6-904A).

Application.

The applicability of the Tort Claims Act turns on whether an alleged governmental employee committed a tortious act within the course and scope of his or her employment and whether that employee so acted without malice or criminal intent. Madsen v. Idaho Dep’t of Health & Welfare, 114 Idaho 624, 759 P.2d 915 (Ct. App. 1988). The discretionary function exemption to liability under the Idaho Tort Claimant Act applies only to government decisions entailing planning or policy formation and 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. Czaplicki v. Gooding Joint Sch. Dist. No. 231, 116 Idaho 326, 775 P.2d 640 (1989).

In considering a motion for summary judgment requesting dismissal of a complaint against a governmental entity and its employees under the Idaho Tort Claims Act, the trial court has three questions to answer: 1. Is recovery sought on the basis of an alleged tort that exists under the laws of Idaho? 2. If so, as a matter of law, does an exception to liability found in the Tort Claims Act shield the alleged misconduct from liability? 3. If no exception applies, do the merits of the claim as presented for consideration on the motion for summary judgment entitle the moving party to dismissal? Olguin v. City of Burley, 119 Idaho 721, 810 P.2d 255 (1991).

Assault and Battery.

Where, in a tort action against the city for assault and battery committed by police officers, the plaintiff alleged nothing in his affidavit, nor did he testify to anything at his criminal trial, from which one could reasonably infer any ill will on the part of the officers, the district court properly granted the motion for summary judgment as to the assault and battery claim pursuant to subdivision 3 of this section. Anderson v. City of Pocatello, 112 Idaho 176, 731 P.2d 171 (1986).

Compliance with Engineering Standards.

The decision to comply or not to comply with engineering standards is not a discretionary act available to the state. Therefore, as to the walkways at a highway rest area which the district court found were covered by engineering standards, the state was not provided immunity under subdivision 1 of this section, and the district court was required upon remand to perform the analysis required under subdivision 8 (now subdivision 7) of this section. Estate of Wellard v. State, Dep’t of Transp., 118 Idaho 852, 801 P.2d 561 (1990).

The decision to comply with engineering standards is not a discretionary act. Engineering standards must be followed to ensure the safety of the citizens of this state. Burgess v. Salmon River Canal Co., 119 Idaho 299, 805 P.2d 1223 (1991).

Condition of Highway.

In action brought against state by driver injured in accident on narrow bridge, the admission of evidence of design standards adopted after construction of such bridge, and the giving of an instruction indicating that immunity of a public entity may disappear if changed post-conviction conditions create a dangerous condition, were contrary to subdivision 8 (now subdivision 7) of this section and constituted reversible error. Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983).

Subdivision 1 of this section did not immunize the state from liability for failing to place warning signs on a narrow bridge on which accident occurred. Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983).

The state is not immunized from liability when, with respect to a public highway, the state maintains a known dangerous condition on the highway and fails to properly warn motorists of such a condition. Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983). In an action against the state for wrongful death, injuries, and property damage resulting from an accident on a temporary construction detour, the trial court did not err in concluding that the plan or design of the detour was in substantial conformance with engineering or design standards in effect at the time of the preparation of the plan or design, and any defect in the plan or design was not a proximate cause of the decedent’s truck turning over; therefore, the trial court did not err in granting the state’s motion for a directed verdict. Elce v. State, 110 Idaho 361, 716 P.2d 505 (1986).

In an action against the Idaho department of transportation brought by parents of a boy killed when hit by a truck along a highway, the department was improperly granted summary judgment and was not immune from liability with regard to the plan or design of the highway, where the questions of fact concerning the advance approval of the design of the highway and conformance to engineering standards were not addressed by the court; if the two requirements of subdivision 8 (now 7) of this section were not met, immunity from liability for the plan and design of the highway will not be available to the department. Bingham v. Idaho Dep’t of Transp., 117 Idaho 147, 786 P.2d 538 (1989) (decision prior to 1988 amendment).

The court erroneously determined that it was discretionary for the transportation department to determine the speed limit and place traffic signs and other signals along a highway where a child was hit and killed by a truck; the department is not engaged in activities necessarily immune from liability when it maintains or places pedestrian and vehicle traffic signs and signals along a state highway, because such activities are not a statement of policy to be followed in the future, but the implementation of policy and regulations that have already been determined sometime in the past. Bingham v. Idaho Dep’t of Transp., 117 Idaho 147, 786 P.2d 538 (1989) (decision prior to 1988 amendment).

Trial court erred in granting summary judgment to highway district on the question of the district’s immunity from liability for flood damage caused when a culvert under the highway collapsed after water was released from an upstream dam; affidavits from two expert witnesses differed as to amount of water the culvert should have been able to carry and there was no evidence as to what the applicable engineering standard was at the time the culvert was built. Burgess v. Salmon River Canal Co., 119 Idaho 299, 805 P.2d 1223 (1991).

Where there was a disputed question of fact over whether or not the escape ramps had been maintained, summary judgment should not have been granted based upon the breach of a duty to maintain them. Freeman v. Juker, 119 Idaho 555, 808 P.2d 1300 (1991).

Department of Transportation.

The state department of transportation has an express statutory duty with respect to erecting and maintaining signs at its highways’ intersections; the legislature in no way qualified this duty by the condition that the sign-placing or maintenance activities occur exclusively within boundaries of the state highway system; thus, contrary to the department’s position that it was without “jurisdiction” to place and maintain signs outside of its right-of-way, the department had both the authority and an express statutory duty to do so. Roberts v. Reed, 121 Idaho 727, 827 P.2d 1178 (Ct. App. 1991).

Design Immunity.

Under former subdivision 8 of this section (see now subdivision 7), two elements must be satisfied before the governmental entity can avail itself of the design immunity defense: the design of plan had to be in substantial conformance with then existing engineering standards and the plan of design must also have been approved in advance of the construction. Morgan v. State, 124 Idaho 658, 862 P.2d 1080 (1993). The addition by the legislature of the word “or” to subsection 7 by the 1988 amendment clearly indicates that immunity is available under the provision if the governmental entity shows substantial conformance or advance approval. Therefore, under subsection 7 of this section, as amended, the city was required to establish (1) the existence of a plan or design that was (2) either prepared in substantial conformance with existing engineering or design standards or approved in advance of construction by the legislative or administrative authority. Lawton v. City of Pocatello, 126 Idaho 454, 886 P.2d 330 (1994).

In personal injury action on theory that city was negligent in its design of intersection where accident occurred and that such negligence was a cause of the accident, where after it became clear that the federal funding for implementing certain safety measures was unavailable, changes actually made to the intersection were not incorporated into a written plan but city engineer was directed to proceed with cost-effective improvements to the intersection, such directions would constitute “a plan or design for improvement to the streets,” and where there was evidence that the modifications made were in compliance with Manual on Traffic Control Devices, there was sufficient evidence to raise factual questions regarding immunity under subsection 7 of this section and to preclude a directed verdict. Lawton v. City of Pocatello, 126 Idaho 454, 886 P.2d 330 (1994).

Where the homeowner alleged that her home was flooded as the result of a road reconstruction project performed by the city, her claims against the city for nuisance and inverse condemnation were properly dismissed upon summary judgment; the city enjoyed plan or design immunity under subsection (7) of this section. Brown v. City of Pocatello, 148 Idaho 802, 229 P.3d 1164 (2010).

The approval required under paragraph 7 to trigger the protection of this section’s design exception provision is more than blanket approval to proceed with a project. Rather, it plainly requires meaningful review of the actual plan or design. Further, the plan or design must be sufficiently detailed that, by using it, one could accomplish the intended construction or improvement. Grabicki ex rel. Thompson v. City of Lewiston, 154 Idaho 686, 302 P.3d 26 (2013).

A city is not entitled to summary judgment on the ground of immunity under the design exception in this section, where genuine issues of material fact exist regarding whether the city’s plan conformed to the proper engineering standards. Grabicki ex rel. Thompson v. City of Lewiston, 154 Idaho 686, 302 P.3d 26 (2013).

Discretionary Acts.

In applying the discretionary function exception to governmental liability, the reviewing court looks to the nature of the conduct in order to determine whether that 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. Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986).

The discretionary function exception provides immunity to activities which involve the establishment of plans, specifications and schedules where there is room for policy judgment and decision (generally referred to as planning activities), and 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. Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986). A court must look at the particular conduct alleged in order to determine whether that conduct involved the exercise of discretion. Jones v. City of St. Maries, 111 Idaho 733, 727 P.2d 1161 (1986).

Since the Administrative Procedure Act (see§ 67-5201 et seq.) mandates that a state brand inspector shall not accept a fresh brand as proof of ownership absent a certificate or bill of sale covering older brands, there is no room for discretion in implementing this policy directive; accordingly, where the deputy brand board inspector testified that the brands he encountered were “fresh,” but he nevertheless did not require further proof of ownership of the cattle, the trial court erred, as a matter of law in dismissing the complaint on the basis of the “discretionary function” exemption of subdivision 1 of this section. Oppenheimer Indus., Inc. v. Johnson Cattle Co., 112 Idaho 423, 732 P.2d 661 (1986).

Discretionary or planning functions of government are exempt from liability in tort, whereas operational functions conducted without “ordinary care” give rise to no governmental immunity; decisions made under statutes and regulations which leave room for policy judgment in their execution are discretionary. Oppenheimer Indus., Inc. v. Johnson Cattle Co., 112 Idaho 423, 732 P.2d 661 (1986).

Wrongful death action against a county for death of an inmate was remanded to determine whether actions by the county employees involved planning or operational decisions and whether the county was entitled to immunity under the discretionary function exception to subdivision 1 of this section. Walker v. Shoshone County, 112 Idaho 991, 739 P.2d 290 (1987).

The discretionary function exception applies to government decisions entailing planning or policy formation. 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. Ransom v. City of Garden City, 113 Idaho 202, 743 P.2d 70 (1987).

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. Second, the policies underlying the discretionary function exception must be considered. Ransom v. City of Garden City, 113 Idaho 202, 743 P.2d 70 (1987).

The steps for determining the applicability of discretionary function immunity are as follows: first, the nature and quality of the challenged actions must be examined; routine, everyday matters not requiring evaluation of broad policy factors will more likely than not be “operational”, while 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; second, the policies underlying the discretionary function exception must be considered, and 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. Bingham v. Franklin County, 118 Idaho 318, 796 P.2d 527 (1990).

Where the record did not contain a sufficient factual basis to determine whether the district’s alleged failure to maintain the escape ramps along steep grade was a discretionary function it seemed likely that the decision of whether or not to build the ramps in the first instance was probably the result of a deliberate decision bound up with the formulation of policy and therefore immune from liability; however, even though there was evidence in the record that some form of maintenance on the ramps was underway just prior to the accident, these facts, without more, were too sparse to enable court to accurately ascertain whether such maintenance, or lack thereof, was a discretionary function. Freeman v. Juker, 119 Idaho 555, 808 P.2d 1300 (1991). The state department of transportation’s determinations whether to place signs warning of the approaching intersection, and its determination whether to erect an enlarged stop sign at the intersection, involved the implementation of the department’s policies as set forth in the Manual on Uniform Traffic Control Devices and were not “discretionary” within the meaning of subdivision 1 of this section; accordingly, the department may be held liable if plaintiff can show at trial that it failed to exercise ordinary care. Roberts v. Reed, 121 Idaho 727, 827 P.2d 1178 (Ct. App. 1991).

Where a city’s decision when to commence the condemnation of property for street right-of-way was discretionary, the city was immune from tort liability for its negligent failure to acquire landowner’s property with reasonable promptness. City of Lewiston v. Lindsey, 123 Idaho 841, 853 P.2d 596 (Ct. App. 1993).

Under subdivision (1) of this section, in determining whether an action is discretionary or optional, the court will first look at the nature of the challenged conduct. Routine matters not requiring evaluation of broad policy factors will likely be “operational,” whereas decisions involving a consideration of the financial, political, economic, and social effects of a particular plan are likely “discretionary” and will be accorded immunity. The court will evaluate the challenged conduct in light of the dual policies served by the discretionary function exception: to permit those who govern to do so without being unduly inhibited by the threat of liability and to limit judicial second-guessing of basic policy decisions entrusted to other branches of government. Lawton v. City of Pocatello, 126 Idaho 454, 886 P.2d 330 (1994).

In action against city for injuries resulting from auto accident caused by city’s negligent design of intersection, decision to adopt the Traffic Operations Program to Increase Capacity and Safety (TOPICS) report was a discretionary function, as was the decision to recognize and utilize the Manual on Uniform Traffic Control Devices (MUTCD). These decisions, involving a consideration of broad policy factors, were clearly legislative in nature. However, the challenged conduct was the decision not to use a raised median at the site of the accident. This determination involved the routine implementation of the city’s pre-determined policies as established by the 1972 TOPICS report or the MUTCD. Since it did not involve basic policy considerations, the decision was not a discretionary function within the meaning of subdivision 1 of this section. Lawton v. City of Pocatello, 126 Idaho 454, 886 P.2d 330 (1994).

Growers’ two claims against department of agriculture for failure to disclose shortfall of inspected bean warehouse and for negligent failure to revoke the warehouse’s license were properly rejected by the district court under the discretionary function exemption to governmental liability of subdivision 1 of this section and due to the permissive language of§§ 69-227 and 69-228. Crown v. State, 127 Idaho 175, 898 P.2d 1086 (1995).

Whether or not a city ordinance embodies a discretionary planning decision, the city cannot avoid the tort claims act simply by enacting general disclaimers of liability. Municipalities can decide whether or not to undertake particular responsibilities; they cannot define through ordinances the legal consequences of these decisions. To hold otherwise would render the discretionary function exception meaningless. Tomich v. City of Pocatello, 127 Idaho 394, 901 P.2d 501 (1995). District was immune from liability based upon the discretionary function exception for any failure to implement a suicide prevention program or to train its staff in such prevention. Brooks v. Logan, 127 Idaho 484, 903 P.2d 73 (1995).

The discretionary function exception has dual policy to permit those who govern to do so without being unduly inhibited by the threat of liability and to limit judicial second-guessing of basic policy decisions entrusted to other branches of government. Brooks v. Logan, 127 Idaho 484, 903 P.2d 73 (1995).

Routine matters not requiring evaluation of broad policy factors will likely be “operational,” and not subject to immunity, whereas decisions involving a consideration of the financial, political, economic, and social effects of a particular plan are likely “discretionary” and will be accorded immunity under exception of Idaho Tort Claims Act. Brooks v. Logan, 127 Idaho 484, 903 P.2d 73 (1995).

Teacher’s alleged failure to warn the parents or school authorities about student’s journal entries was a decision made solely by the teacher and did not require an evaluation of financial, political, economic and social effects and was an operational decision. Brooks v. Logan, 127 Idaho 484, 903 P.2d 73 (1995).

Where the county issued a permit to allow the owners to build a cabin according to certain plan specifications that were approved by the county building inspector, neither the county nor the building inspector was liable for negligence when it was later determined that the cabin structure did not meet snow load requirements since this section provided the county and the building inspector immunity for negligent acts arising from issuing a permit, and the owners failed to demonstrate that the county or building inspector acted with malice, criminal intent, with gross negligence or with reckless, willful and wanton conduct. Nelson v. Anderson Lumber Co., 140 Idaho 702, 99 P.3d 1092 (Ct. App. 2004).

City had immunity from an apartment building owner’s negligence claim for damages caused when sewage flooded his building’s basement, since the sewer department supervisor’s decision to flush the sewer lines annually was not an operational, every day decision that simply carried out existing policy, but was rather a discretionary function. Dorea Enters. v. City of Blackfoot, 144 Idaho 422, 163 P.3d 211 (2007).

When police were sued when a police dog bit an individual mistakenly believed to be a burglar, the police could not be held liable for the police department’s decision to use a certain dog training method, as this was a discretionary decision for which liability could not be imposed. James v. City of Boise, 160 Idaho 466, 376 P.3d 33 (2016).

District court did not err in holding that the city was immune from suit pursuant to the discretionary function exception set forth in subsection (1), where its decision to adopt the water facility plan was not an operational, everyday decision that carried out an existing policy. Rather, the city sought to create and adopt a policy based on the existing infrastructure of the city and its current financial resources. Lamont Bair Enters. v. City of Idaho Falls, — Idaho —, 454 P.3d 572 (2019).

Public defenders were not entitled to immunity under subsection (1) as their review of judgments and orders is operational, rather than discretionary. Shubert v. Ada County, — Idaho —, 461 P.3d 740 (2020).

Evidence.

Exercise of Ordinary Care.

In action by decedent’s wife alleging violations of the tort claims act, where conflicting inferences could be drawn from the evidence concerning whether the director, the superintendent and the captain should have reasonably anticipated that the crisis response team would shoot the decedent as a result of the plan and the execution of the plan, and a reasonable person could conclude they should have, court incorrectly granted summary judgment dismissing negligent supervision claim. Kessler v. Barowsky, 129 Idaho 647, 931 P.2d 641 (1997). Exercise of Ordinary Care.

Where the plaintiffs alleged that the county and county commissioners acted unlawfully when, following adoption of the emergency ordinance, the county and county commissioners entered upon the plaintiffs’ property, appropriated the same to the use of the county, and exceeded the authority granted by said ordinance by damaging and destroying the plaintiffs’ property, the county and the county commissioners failed to act with ordinary care in the implementation of the local ordinance, and such activity was not subject to immunity under subdivision 1 of this section. Union Pac. R.R. v. Idaho, 654 F. Supp. 1236 (D. Idaho 1987) Union Pac. R.R. v. Idaho, 663 F. Supp. 75 (D. Idaho 1987).

In wrongful death action, by father of child who was murdered by his mother’s boyfriend, against department of health and welfare and social worker who had investigated previous child abuse claims made by father, found them to be unfounded, and returned child to mother, neither department nor social worker had immunity because questions of fact existed as to whether they exercised due care. Rees v. State, 143 Idaho 10, 137 P.3d 397 (2006).

Fire Inspections.

Under the “planning/operational test,” the city’s failure to provide regular fire inspections could only be viewed as the result of governmental decisionmaking and exempt from liability pursuant to subdivision 1 of this section. Lewis v. Estate of Smith, 111 Idaho 755, 727 P.2d 1183 (1986).

Flood Control Districts.

Flood control district was immune from liability to owners of flooded farmland in a negligence suit where their actions, which consisted of shoring up dikes, diverting water and failing to account for incoming flood water from upstream diversions, were characterized as “planning” by the court. Marty v. State, 117 Idaho 133, 786 P.2d 524 (1989).

Impoundment of Vehicle.

Where plaintiff was twice arrested for operating unlicensed motor vehicles and was unable to show proof of ownership to police officer before vehicle was impounded against his will, the jury in an action for damages against the police officer could have concluded that the officer was authorized by§ 49-692 (now§ 49-662) to impound the vehicle or that, in any event, this section provided him immunity from liability for a wrongful impounding. Gordon v. Noble, 109 Idaho 1048, 712 P.2d 749 (Ct. App. 1986).

In General.

Prior to the abrogation of the sovereign immunity doctrine, generally no right of recovery against the state existed; the right to recover from the state is statutory. Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983).

In ruling on a motion for summary judgment based upon an immunity defense under the Idaho Tort Claims Act (ITCA), a trial judge should first determine whether the plaintiffs’ allegations and supporting record generally state a cause of action for which a private person or entity would be liable for money damages under the laws of the state of Idaho; the court must then determine whether an exception to liability under the ITCA shields the alleged misconduct from liability. Czaplicki v. Gooding Joint Sch. Dist. No. 231, 116 Idaho 326, 775 P.2d 640 (1989). The Idaho Tort Claims Act is structured in three tiers: The general rule is that governmental entities are liable for damages arising out of their own negligent or otherwise wrongful acts and for those of their employees who were acting within the course and scope of their employment. This section then sets out certain exceptions to liability, including an exception for acts such as battery and false imprisonment commonly known as intentional torts. The third tier states that the exceptions to liability do not apply if the acts were committed with malice or criminal intent. Grant v. City of Twin Falls, 120 Idaho 69, 813 P.2d 880 (1991).

Where, in personal injury action on theory city was negligent in design of intersection where accident occurred, if jury concluded that no plan or design existed and thus city was entitled to immunity under subdivision 7, it would be required to determine if city was entitled to immunity under subdivision 1, under the discretionary function prong of which city was entitled to absolute immunity regarding claims arising from the performance of a discretionary function or the operational prong under which city can be liable if it fails to exercise ordinary care in implementing a pre-established policy. Lawton v. City of Pocatello, 126 Idaho 454, 886 P.2d 330 (1994).

Although immunity under paragraph 7 is broad and long lasting, it does not absolutely bar negligence claims related to the plan or design of a state highway, where the plaintiff can point to a specific failure to warn or to a specific statute or a mandatory provision of the Manual on Uniform Traffic Control Devices that has been violated. Woodworth v. State, 154 Idaho 362, 298 P.3d 1066 (2013).

Instrumentality of the State.

District court erred in finding Idaho crop improvement association (ICIA) was an instrumentality of the state and immune from liability for negligent misrepresentation under subdivision 3, because the state did not exercise a great deal of control over ICIA’s day-to-day operations which were managed by an executive secretary employed by its board, all but one of its directors were chosen by its members, state did not supervise its internal employment decisions, ICIA received no appropriations from the state and its revenues were not state’s, it conducted activities in addition to and separate from its certification program, and had procured its own liability insurance. Duffin v. Idaho Crop Imp. Ass’n, 126 Idaho 1002, 895 P.2d 1195 (1995); Feld v. Idaho Crop Imp. Ass’n, 126 Idaho 1014, 895 P.2d 1207 (1995) (decisions prior to enactment of§ 22-1508).

Intentional Tort Exception.

In an action against a school district for negligent retention of a teacher known to be a child molester, the school district was not immune from liability under subdivision 4 of this section; the legislature, by creating an exception to governmental liability for actions arising out of assault and battery, did not intend to relieve state agencies from any duty to safeguard the public from people whom they know to be dangerous. Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986).

In order to withstand dismissal under the intentional tort exception to the Tort Claims Act, a plaintiff must allege sufficient facts which, if proven, would demonstrate that the governmental entity should have reasonably anticipated that one of their employees would commit an intentional tort. Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986). The owner of a trailer park sued the city for interference with contract and defamation after the city terminated electrical service to the trailer park due to the owner’s failure to make required upgrades to the electrical system. Dismissal of the owner’s claims was proper because the city was exempt from liability for intentional torts. Hoffer v. City of Boise, 151 Idaho 400, 257 P.3d 1226 (2011).

Police who were sued for assault, battery, false arrest, and wrongful imprisonment, when a police dog bit an individual mistakenly believed to be a burglar, could not be held liable because (1) the “criminal intent” required under this section means intentionally committing what a person knew to be a crime, and (2) nothing showed such intent on the part of police. James v. City of Boise, 160 Idaho 466, 376 P.3d 33 (2016).

Joint Tort Liability.

To the extent that sovereign immunity has been abrogated by the state, it has subjected itself to liability for its negligent acts and the negligent acts of its employees, and to that same extent, the state shares a common liability with third party private tortfeasors. Masters v. State, 105 Idaho 197, 668 P.2d 73 (1983).

Neither the tort claims act nor statutes governing contribution among joint tortfeasors contain any indication that the state is prohibited from obtaining contribution from a joint tortfeasor. Masters v. State, 105 Idaho 197, 668 P.2d 73 (1983).

Where, in personal injury action against state and other defendants, the record showed that the defense of the discretionary function exception to the state’s liability was asserted by the state at trial and was resisted by the other defendants, that the ruling of the trial court favored the other defendants, and that no appeal from that ruling was taken by any party, defendants could not argue that state was immune from liability and had acted as volunteer in satisfying judgment and was not, therefore, entitled to contribution. Masters v. State, 105 Idaho 197, 668 P.2d 73 (1983).

Judicial Immunity.

The decision-making 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. Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986).

Jury Instructions.

The trial court erred in instructing the jury that violations of certain traffic manual provisions, some of which were not mandatory, were negligence as a matter of law. Esterbrook v. State, 124 Idaho 680, 863 P.2d 349 (1993).

In personal injury action on theory that city was negligent in design of intersection where accident occurred, where jury was instructed that city would be liable if it were negligent in making improvement to intersection area and if such negligence were a proximate cause of the accident, such instruction was the correct instruction with regard to subdivision 1 of this section. Lawton v. City of Pocatello, 126 Idaho 454, 886 P.2d 330 (1994).

Legislative Authority.

Although the court abrogated the common-law doctrine of governmental tort immunity, the legislature had the constitutional authority to reimpose governmental tort immunity. Haeg v. City of Pocatello, 98 Idaho 315, 563 P.2d 39 (1977).

Legislative Intent.

A basic purpose behind the legislature’s creation of a list of exceptions to governmental liability was to limit the effect of its waiver of sovereign immunity with respect to governmental functions. Chandler Supply Co. v. City of Boise, 104 Idaho 480, 660 P.2d 1323 (1983), overruled in part, Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986).

Malice.

The term “malice” as used in this section means actual malice, which is defined as the intentional commission of a wrongful or unlawful act, without legal justification or excuse and with ill will, whether or not injury was intended. Anderson v. City of Pocatello, 112 Idaho 176, 731 P.2d 171 (1986).

“Malice” within the definition of the Tort Claims Act means actual malice and requires a wrongful act without justification combined with ill will; in an action where it was alleged that sheriff’s deputies assaulted and battered plaintiff, the district court properly determined that the deputies had immunity under subdivision 3 of this section, where the record before the district court at the time the summary judgment was granted contained no evidence that the defendants acted with the requisite malice or criminal intent to circumvent the exceptions to liability contained in subdivision 3 of this section. Evans v. Twin Falls County, 118 Idaho 210, 796 P.2d 87 (1990), cert. denied, 498 U.S. 1086, 111 S. Ct. 960, 112 L. Ed. 2d 1048 (1991).

Trial court erred in refusing to dismiss plaintiff’s tort claims against a police officer because plaintiff failed to satisfy the burden, under subsection (3), of showing that the officer, who was acting during the course and scope of employment when ordering an involuntary catheterization after plaintiff was arrested for DUI, acted maliciously or with criminal intent. Miller v. Idaho State Patrol, 150 Idaho 856, 252 P.3d 1274 (2011).

Subsection (3) does not provide immunity to a governmental entity when that entity’s employee acts with malice and/or criminal intent. Pauls v. Green, 2011 U.S. Dist. LEXIS 131170 (D. Idaho Nov. 14, 2011).

Malicious Prosecution.

Tort claims against a county hospital, including malicious prosecution, libel, and harassment, set out in a counterclaim, could be dismissed as a matter of law. Harms Mem. Hosp. v. Morton, 112 Idaho 129, 730 P.2d 1049 (Ct. App. 1986).

A local government official was entitled to summary judgment in an action for malicious prosecution where the court concluded as a matter of law that his actions at issue fell within the scope of his employment and that the claim against him was therefore barred by the statute. Butler v. Elle, 281 F.3d 1014 (9th Cir. 2002).

Misrepresentation.

Where the state brand board made no misrepresentation to the plaintiff, the misrepresentation exception to the Tort Claims Act did not apply. Oppenheimer Indus., Inc. v. Johnson Cattle Co., 112 Idaho 423, 732 P.2d 661 (1986).

National Guard.

Order of lower court dismissing negligent misrepresentation action filed pursuant to subdivision 3 of this section and against the Idaho crop improvement association (ICIA), a private, nonprofit corporation which had been delegated the responsibility for administering a seed certification program, was affirmed because, except in the narrow confines of a professional relationship involving an accountant, the tort of negligent misrepresentation is not recognized in Idaho. Duffin v. Idaho Crop Imp. Ass’n, 126 Idaho 1002, 895 P.2d 1195 (1995); Feld v. Idaho Crop Imp. Ass’n, 126 Idaho 1014, 895 P.2d 1207 (1995). National Guard.

In an action arising out of an automobile accident that occurred when a National Guard member was traveling home at the end of weekend training, the member was not immune from suit pursuant to this section, because, at the time of the accident, she was not engaged in active duty training, but she was participating in inactive duty training, which does not include travel to and from such training. Teurlings v. Larson, 156 Idaho 65, 320 P.3d 1224 (2014).

Negligent Investigations.

Plaintiffs cited no cases from Idaho or any other jurisdiction recognizing the tort of negligent investigation of a crime. Therefore, the summary judgment dismissing plaintiffs’ claims of negligent investigation and negligent training of fish and game officers was proper. Wimer v. State, 122 Idaho 923, 841 P.2d 453 (Ct. App. 1992).

Negligent Performance of Required Function.

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, there is no immunity under the discretionary function exception. Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986).

Arrestee’s negligent infliction of emotional distress claim was not barred by the intentional tort exception to the Idaho Tort Claims Act where the complaint, when viewed in context, alleged that the county not only engaged in deliberately indifferent supervision, but was negligent in allowing an attack upon her while in jail. Pauls v. Green, 2011 U.S. Dist. LEXIS 131170 (D. Idaho Nov. 14, 2011).

Parallel Functions Test.

While regulatory functions clause and the discretionary functions clause of subdivision 1 of this section represent two separate types of actions which may be immune from liability, the “parallel functions” test, i.e., that wherein tort liability would attach to a private person, a governmental entity engaging in the same conduct will be liable, applies to both and neither clause is “mere surplusage.” While fewer parallels may exist where a regulatory action is taken than when a discretionary action is taken, the test remains the same. Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983).

There does not exist a “parallel function” exception to liability for unique governmental functions without parallels in the private section under subsection (a) of§ 6-903; therefore, if a private person would be liable for the misconduct alleged against the government, so will the government, regardless of whether private individuals ordinarily fill the same underlying function or role of the government. Sterling v. Bloom, 111 Idaho 211, 723 P.2d 755 (1986).

Pleadings.

Where the plaintiff’s pleadings alleged that the city was negligent in inspecting and maintaining fire hydrants and water mains, the pleadings alone failed to establish whether the city’s conduct was “planning” or “operational”; accordingly, the judgment of the district court granting the state’s motion for dismissal on the pleadings was reversed. Jones v. City of St. Maries, 111 Idaho 733, 727 P.2d 1161 (1986).

Policy Decisions.

The county and county commissioners could not be held liable for the decision to enact an ordinance providing for an escape route from the dam, nor can they be held liable for their decision to wait to enact such an ordinance, even if such policy decisions were negligently made. Union Pac. R.R. v. Idaho, 654 F. Supp. 1236 (D. Idaho 1987); Union Pac. R.R. v. Idaho, 663 F. Supp. 75 (D. Idaho 1987).

Removal of Vehicle from Highway.

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 subdivision 1 of this section. Ransom v. City of Garden City, 113 Idaho 202, 743 P.2d 70 (1987).

Tests to Determine Exceptions.

The planning/operational test provides immunity for planning activities — activities which involve the establishment of plans, specifications and schedules where there is room for policy judgment and decisions. Operational activities — activities involving the implementation of statutory and regulatory policy are not immunized and, accordingly, must be performed with ordinary care. Jones v. City of St. Maries, 111 Idaho 733, 727 P.2d 1161 (1986).

Under the planning/operational test, discretionary governmental policy-making or planning activities are exempt from liability under subdivision 1 of this section, while, operational activities — activities involving the implementation of discretionary statutory and regulatory policy — are not immunized and, accordingly, must be performed with ordinary care. Lewis v. Estate of Smith, 111 Idaho 755, 727 P.2d 1183 (1986).

If, in reliance upon or in the execution or performance of the powers and duties entrusted to it by the state legislature, a county promulgated a policy or plan of road repair and implemented or carried out that plan exercising ordinary care, then operational prong of subdivision 1 of this section would provide immunity to the county. Bingham v. Franklin County, 118 Idaho 318, 796 P.2d 527 (1990).

ALR.

Liability of municipality or other governmental unit for failure to provide police protection from crime. 90 A.L.R.5th 273.

Claims arising from governmental conduct causing damage to plaintiff’s real property as within discretionary function exception of Federal Tort Claims Act (28 U.S.C.S. § 2680(a)). 167 A.L.R. Fed. 1.

Liability of United States for failure to warn of danger or hazard not directly created by act or omission of federal government and not in national parks as affected by “discretionary function or duty” exception to Federal Tort Claims Act. 169 A.L.R. Fed. 421.

Liability of United States for failure to warn of danger or hazard resulting from governmental act or omission as affected by “discretionary function or duty” exception to Federal Tort Claims Act (28 U.S.C.S. § 2680(a)). 170 A.L.R. Fed. 365.

Liability of United States for failure to warn local police or individuals of discharge, release, or escape of person who is deemed dangerous to public as affected by “discretionary act or duty” exception to Federal Tort Claims Act. 171 A.L.R. Fed. 655.

Claims arising from conduct of governmental employer in administering or failing to administer medical care as within discretionary function exception of Federal Tort Claims Act (28 U.S.C.S. § 2680(a)). 172 A.L.R. Fed. 407.

Liability of United States, under Federal Tort Claims Act (28 U.S.C.S. §§ 1346, 2680), for damages caused by ingestion or administration of government-approved drugs, vaccines, and medications. 173 A.L.R. Fed. 431.

Construction and application of Federal Tort Claims Act (FTCA) exception in 28 U.S.C.S. § 3680(c), concerning claims arising in respect of assessment or collection of any tax or customs duty, or detention of goods or merchandise by any officer of customs or excise or any other law-enforcement officer. 173 A.L.R. Fed. 465.

Effective Dates.

Section 3 of S.L. 2004, ch. 227 declared an emergency. Approved March 23, 2004.

Application.

While both this section and§ 63-3074 deal with lawsuits against governmental entities; the Idaho Tort Claims Act (ITCA) (this section) governs procedural issues in tort claims against the state, and there is no reason the ITCA should be applied to limit a taxation statute which allows a cause of action that does not sound in tort. Greenwade v. Idaho State Tax Comm’n, 119 Idaho 501, 808 P.2d 420 (Ct. App. 1991). Where a probationer raped and killed a young woman whom he met while both worked at a car wash, and the victim’s parents sued the state and the car wash for negligence, the parents were not required to show that the state’s employee, the probation officer, acted without malice or criminal intent and with reckless, willful, and wanton conduct under§ 6-904A. Hunter v. State, 138 Idaho 44, 57 P.3d 755 (2002).

Subsection (2) immunizes a governmental entity and its employees for any claim arising out of injuries sustained by a probationer. Nothing in the section, however, immunizes a governmental entity against a claim for injuries sustained as a result of being held on probation illegally. Shubert v. Ada County, — Idaho —, 461 P.3d 740 (2020).

Basis of Immunity.

Immunity under this section arises from the status of the person causing the injury, not the status of the person injured. Coonse v. Boise Sch. Dist., 132 Idaho 803, 979 P.2d 1161 (1999).

Constitutionality.

This section is constitutional as it is rationally related to a legitimate governmental end; it protects against ordinary negligence claims which would significantly impair effective governmental process, yet allows fair compensation for egregious wrongs. Harris v. State, Dep’t of Health & Welfare, 123 Idaho 295, 847 P.2d 1156 (1993).

Employment Status of Inmates.

Whether inmates are state employees is not dispositive with respect to an analysis under this section, since this section is an immunity provision and does not restrict the state’s liability to only those circumstances where an inmate is injured by the acts or omissions of a state employee. Smith v. Board of Cors., 133 Idaho 519, 988 P.2d 1193 (1999).

Foreseeability.

Because the record was devoid of any evidence that the inmate had ever been physically aggressive toward another inmate, the second inmate failed to show how the inmate’s attack on him could have been foreseeable to the county, at least at the level of foreseeability contemplated by this section. Farnworth v. Ratliff, 134 Idaho 237, 999 P.2d 892 (2000).

Juvenile’s Release From Custody.

Upon his release from the detention center, juvenile was still under the legal custody of the state although released to the possession of his parents, and the state thereby qualified for the immunity afforded by this section. Harris v. State, Dep’t of Health & Welfare, 123 Idaho 295, 847 P.2d 1156 (1993).

Motion for Summary Judgment.

In considering a motion for summary judgment requesting dismissal of a complaint against a governmental entity and its employees under the Idaho Tort Claims Act, the trial court must answer whether tort recovery is allowed under the laws of Idaho; and, if so, whether an exception to liability found in the tort claims act shields the alleged misconduct from liability; and, if no exception applies, whether the merits of the claim as presented for consideration on the motion for summary judgment entitle the moving party to dismissal. Harris v. State, Dep’t of Health & Welfare, 123 Idaho 295, 847 P.2d 1156 (1993). Summary judgment was proper where the inmate failed to raise a genuine issue as to the statutory immunity provided to the county officers and, therefore, failed to show he could have succeeded on the underlying action. Farnworth v. Ratliff, 134 Idaho 237, 999 P.2d 892 (2000).

Negligent Supervision.

Summary judgment was improperly granted to school district in case involving injuries sustained by student while participating in activity run by contractor hired by district. While school was immune from damages occurring as a result of ordinary negligence in their supervision of student, this immunity did not extend to damages which may have occurred as a result of district’s negligent supervision of the contractor. Sherer v. Pocatello Sch. Dist. # 25, 143 Idaho 486, 148 P.3d 1232 (2006).

Negligent Supervision of Juveniles.

Where there was no evidence to indicate that state employees intentionally and knowingly did or failed to do any act which created an unreasonable risk of harm to victim, as neither juvenile’s antecedent behavior nor present comportment presaged the vicious exploits he committed such that a reasonable person could foresee the need to restrain him from society, the department of health and welfare’s conduct in supervising the juvenile did not rise to the level of creating an unreasonable risk of harm to the public and, therefore, was not reckless, willful, and wanton. Harris v. State, Dep’t of Health & Welfare, 123 Idaho 295, 847 P.2d 1156 (1993).

Injured student’s argument that§ 33-512(4) provided some right of relief different from this section failed when the court examined what student claimed the school defendants failed to do in order to fulfill their obligations under that section; student maintained that the school defendants failed to provide adequate hallway monitoring, an indisputably supervisory activity. Mickelsen v. School Dist. No. 25, 127 Idaho 401, 901 P.2d 508 (1995).

This section, which insulates governmental entities and employees from liability arising out of injuries “by a person under supervision, custody or care of a governmental entity,” barred the injured student’s claim against high school. Mickelsen v. School Dist. No. 25, 127 Idaho 401, 901 P.2d 508 (1995).

Where it was undisputed that the persons who injured the plaintiffs’ daughter were students under the supervision of the school district, the allegation of negligent supervision of the injured student, rather than her attackers, did not overcome the immunity afforded by this section, and plaintiff’s claim was barred. Coonse v. Boise Sch. Dist., 132 Idaho 803, 979 P.2d 1161 (1999).

No supervisory relationship existed, pursuant to this section, between a school district and a teacher who entered into a consensual sexual relationship with an 18-year-old student so that the school district was not immune from a claim by the student of negligent supervision of the teacher, if the student could point to facts supporting such a claim. However, the school district was shielded by this section from the student’s claims against the school district of negligent supervision of the student. Hei v. Holzer, 139 Idaho 81, 73 P.3d 94 (2003).

Property Erroneously or Illegally Seized.

Purpose.

The term “claim,” as used in the Idaho Tort Claims Act, see (§ 6-902(7)), describes claims for damages arising from tortious conduct; therefore, plaintiff’s claim for the return of property erroneously or illegally seized for the payment of taxes does not appear to fit the definition of a claim for tort damages and, thus, would not be barred by this section. Greenwade v. Idaho State Tax Comm’n, 119 Idaho 501, 808 P.2d 420 (Ct. App. 1991). Purpose.

The purpose of this section is to limit the liability of governmental entities for injuries caused by those under their supervision, custody, or care. Coonse v. Boise Sch. Dist., 132 Idaho 803, 979 P.2d 1161 (1999).

This section was intended to provide immunity to the state from the unpredictable acts of third persons who are under the custody, supervision and care of the state. Smith v. Board of Cors., 133 Idaho 519, 988 P.2d 1193 (1999).

Student Suicide.

The duty of teacher and school district is simply a duty to exercise reasonable care in supervising students while they are attending school. Therefore, under this section, each was entitled to immunity protection in action brought by parents of high school student who committed suicide. Brooks v. Logan, 130 Idaho 574, 944 P.2d 709 (1997).

Taxes Erroneously or Illegally Collected.

Section 63-3074 does not provide a tort remedy, but provides for the refund of taxes illegally or erroneously collected or for the return of personal property illegally or erroneously seized to satisfy a tax obligation; therefore, an action under§ 63-3074 is not impliedly or expressly prohibited by this section. Greenwade v. Idaho State Tax Comm’n, 119 Idaho 501, 808 P.2d 420 (Ct. App. 1991).

Unpredictable Acts of Third Persons.

Subdivision 2 of this section was intended to render the state immune from the unpredictable acts of third persons, including parolees, persons receiving mental counseling or care, or persons under the state’s custody, supervision, or care. Harris v. State, Dep’t of Health & Welfare, 123 Idaho 295, 847 P.2d 1156 (1993).

School district could only be held liable for an injury caused by a person under its supervision if its employee acted with malice or criminal intent or if the employee’s conduct was reckless, willful, and wanton. The evidence did not create a genuine issue of material fact as to whether the conduct of any school employee was reckless, willful, and wanton, because there was no evidence that the student who hit plaintiffs’ son had ever harmed another student. Mareci v. Coeur d’Alene Sch. Dist. No. 271, 150 Idaho 740, 250 P.3d 791 (2011).

ALR.

Liability of Public or Private Schools or Institutions of Higher Learning, or Personnel Thereof, in Connection with Suicide of Student. 100 A.L.R.6th 563.

Claims arising from governmental conduct causing damage to plaintiff’s real property as within discretionary function exception of Federal Tort Claims Act (28 U.S.C.S. § 2680(a)). 167 A.L.R. Fed. 1. Liability of United States for failure to warn of danger or hazard not directly created by act or omission of federal government and not in national parks as affected by “discretionary function or duty” exception to Federal Tort Claims Act. 169 A.L.R. Fed. 421.

Liability of United States for failure to warn of danger or hazard resulting from governmental act or omission as affected by “discretionary function or duty” exception to Federal Tort Claims Act (28 U.S.C.S. § 2680(a)). 170 A.L.R. Fed. 365.

Liability of United States for failure to warn local police or individuals of discharge, release, or escape of person who is deemed dangerous to public as affected by “discretionary act or duty” exception to Federal Tort Claims Act. 171 A.L.R. Fed. 655.

Claims arising from conduct of governmental employer in administering or failing to administer medical care as within discretionary function exception of Federal Tort Claims Act (28 U.S.C.S. § 2680(a)). 172 A.L.R. Fed. 407.

Liability of United States, under Federal Tort Claims Act (28 U.S.C.S. §§ 1346, 2680), for damages caused by ingestion or administration of government-approved drugs, vaccines, and medications. 173 A.L.R. Fed. 431.

Construction and application of Federal Tort Claims Act (FTCA) exception in 28 U.S.C.S. § 3680(c), concerning claims arising in respect of assessment or collection of any tax or customs duty, or detention of goods or merchandise by any officer of customs or excise or any other law-enforcement officer. 173 A.L.R. Fed. 465.

Cross References.

Commission of pardons and parole,§ 20-210.

Department of correction,§ 20-201.

State board of correction,§ 20-201A.

Amendments.

The 2009 amendment, by ch. 195, added subsection (8).

CASE NOTES

Application.

Evidence presented by growers that department of agriculture (DOA) inspector acted negligently in his inspection of bean warehouse was sufficient to reverse district court’s ruling granting summary judgment in favor of DOA, but only as it related to losses incurred prior to July 1, 1988, the effective date of this section and§ 6-904C; summary judgment regarding losses incurred after effective date of new sections was proper. Crown v. State, 127 Idaho 175, 898 P.2d 1086 (1995).

Gross Negligence.

Because applicant, who was denied securities license, had failed to disclose the existence of a tax lien against her property, although she did not have actual notice of the lien, and the Idaho department of finance denied her application in the belief that the lien indicated she was insolvent and that she had obtained personal loans from clients in violation of national standards, the department’s conduct in denying her application was not “grossly negligent” under the standard of care set forth under this section and§ 6-904C. Rincover v. State, Dep’t of Fin., 128 Idaho 653, 917 P.2d 1293 (1996).

Under this section, the city had immunity from a property owner’s claims that the it was negligent in failing to notify the owner of a prior landslide, where there was no evidence that the city was deliberately indifferent to the harmful consequences to others. Block v. City of Lewiston, 156 Idaho 484, 328 P.3d 464 (2014).

Negligent Inspection.

Summary judgment was not appropriate on claims that a school district failed to adequately inspect activities provided to students by an independent contractor because the grant of immunity for negligent inspection claims did not apply to claims relating to negligent supervision. Sherer v. Pocatello Sch. Dist. # 25, 143 Idaho 486, 148 P.3d 1232 (2006).

— Immunity.

City had immunity from the claims that it was negligent with respect to allowing the owner’s property to be subdivided and developed, because the claims arose from a failure to inspect, a failure to provide information during the administrative process, or failure to require certain actions as a condition of issuing building permits. Block v. City of Lewiston, 156 Idaho 484, 328 P.3d 464 (2014).

ALR.

Claims arising from governmental conduct causing damage to plaintiff’s real property as within discretionary function exception of federal tort claims act (28 U.S.C.S. § 2680(a)). 167 A.L.R. Fed. 1. Liability of United States for failure to warn of danger or hazard not directly created by act or omission of federal government and not in national parks as affected by “discretionary function or duty” exception to Federal Tort Claims Act. 169 A.L.R. Fed. 421.

Liability of United States for failure to warn of danger or hazard resulting from governmental act or omission as affected by “discretionary function or duty” exception to Federal Tort Claims Act (28 U.S.C.S. § 2680(a)). 170 A.L.R. Fed. 365.

Liability of United States for failure to warn local police or individuals of discharge, release, or escape of person who is deemed dangerous to public as affected by “discretionary act or duty” exception to Federal Tort Claims Act. 171 A.L.R. Fed. 655.

Claims arising from conduct of governmental employer in administering or failing to administer medical care as within discretionary function exception of Federal Tort Claims Act (28 U.S.C.S. § 2680(a)). 172 A.L.R. Fed. 407.

Liability of United States, under Federal Tort Claims Act (28 U.S.C.S. §§ 1346, 2680), for damages caused by ingestion or administration of government-approved drugs, vaccines, and medications. 173 A.L.R. Fed. 431.

Construction and application of Federal Tort Claims Act (FTCA) exception in 28 U.S.C.S. § 3680(c), concerning claims arising in respect of assessment or collection of any tax or customs duty, or detention of goods or merchandise by any officer of customs or excise or any other law-enforcement officer. 173 A.L.R. Fed. 465.

Gross Negligence.

Evidence presented by growers that department of agriculture (DOA) inspector acted negligently in his inspection of bean warehouse was sufficient to reverse district court’s ruling granting summary judgment in favor of DOA, but only as it related to losses incurred prior to July 1, 1988, the effective date of§ 6-904B and this section. Crown v. State, 127 Idaho 175, 898 P.2d 1086 (1995).

Because applicant, who was denied securities license, had failed to disclose the existence of a tax lien against her property, although she did not have actual notice of the lien, and the Idaho department of finance denied her application in the belief that the lien indicated she was insolvent and that she had obtained personal loans from clients in violation of national standards, the department’s conduct in denying her application was not “grossly negligent” under the standard of care set forth under this section and§ 6-904B. Rincover v. State, Dep’t of Fin., 128 Idaho 653, 917 P.2d 1293 (1996).

Genuine issues of material fact precluded summary judgment on an injured passenger’s claim that the Idaho division of motor vehicle services was grossly negligent in reinstating the drunk driver’s unrestricted license, because a reasonable jury could find that a person with seven DUI convictions was a habitual drunkard and that he would be harmful to the public if allowed to drive. Cafferty v. State, 144 Idaho 324, 160 P.3d 763 (2007).

Pleadings.

Reckless, Willful and Wanton Conduct.

Idaho law does not equate recklessness with gross negligence. Thus, a complaint need not include allegations of deliberate or intentional indifference to harmful consequences so long as it plausibly suggest that defendants acted with a very high degree of negligence. FDIC v. Coleman, 2015 U.S. Dist. LEXIS 14485 (D. Idaho Feb. 5, 2015). Reckless, Willful and Wanton Conduct.

Where there was no evidence to indicate that state employees intentionally and knowingly did or failed to do any act which created an unreasonable risk of harm to victim, as neither juvenile’s antecedent behavior nor present comportment presaged the vicious exploits he committed such that a reasonable person could foresee the need to restrain him from society, the department of health and welfare’s conduct in supervising the juvenile did not rise to the level of creating an unreasonable risk of harm to the public and, therefore, was not reckless, willful, and wanton. Harris v. State, Dep’t of Health & Welfare, 123 Idaho 295, 847 P.2d 1156 (1993).

Although affidavits of inmates were deficient in several respects, where portions of those affidavits were based on personal knowledge and established that the inmates worked in a shop with a civilian supervisor who was a state employee, a reasonable inference could be drawn that the supervisor knew of the removal of safety guards from saws and that sufficient admissible evidence existed from which a jury could find that the state’s conduct was reckless, willful and wanton. Smith v. Board of Cors., 133 Idaho 519, 988 P.2d 1193 (1999).

Compiler’s Notes.

This section, which comprised I.C.,§ 6-904D, as added by 1998, ch. 159, § 1, p. 544, was repealed by S.L. 1999, ch. 261, § 1, p. 667, effective July 1, 1999.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Actual Notice.

Where the state had investigated an accident but had no reason to suspect it might be subject to tort claims arising from the accident, the state did not have actual notice of subsequent tort claims against it which rendered literal compliance with notice provisions unnecessary; thus, plaintiffs were required to give timely notice in order to maintain a suit on their claims. Newlan v. State, 96 Idaho 711, 535 P.2d 1348, appeal dismissed, 423 U.S. 993, 96 S. Ct. 419, 46 L. Ed. 2d 367 (1975).

Claim Barred.

Claim against officers who investigated shooting by police officer was precluded by the plaintiff’s failure to file a timely notice of claim with the state of Idaho as required by this section. Hopper v. Hayes, 573 F. Supp. 1368 (D. Idaho 1983). Trial court did not err when it granted summary judgment to the director of the department of correction where a defamation suit was brought against him by an ex-employee who, inter alia, had not first given the necessary notice under the tort claims act. Anderson v. Spalding, 137 Idaho 509, 50 P.3d 1004 (2002).

Business owner’s notice of tort claim to the state department of agriculture was untimely because he had knowledge of facts by October 17, 2007, that would put a reasonably prudent person on notice that a possession permit for tigers would not be granted without satisfaction of the conditions stated in the October 17, 2007, letter, including that the tigers be spayed and neutered; since he did not file the notice of tort claim until May 14, 2008, his notice was clearly not timely. Renzo v. Idaho State Dep’t of Agric., 149 Idaho 777, 241 P.3d 950 (2010).

Compliance.

The fact that parents, whose son died as a result of an automobile accident allegedly caused by the state’s use of inappropriate paving materials, were not aware that they had a cause of action against the state until they consulted with their lawyer did not render unnecessary their compliance with the requirement that the tort claim be filed within 120 days (now 180 days) from the date the claim arose, since the parents had knowledge of the facts on the day of the accident. Newlan v. State, 96 Idaho 711, 535 P.2d 1348, appeal dismissed, 423 U.S. 993, 96 S. Ct. 419, 46 L. Ed. 2d 367 (1975).

Where plaintiffs failed to present claim against the state to secretary of state within 120 days (now 180 days) after their alleged cause of action arose, the district court properly dismissed the action under authority of§ 6-908. Jacaway v. State, 97 Idaho 694, 551 P.2d 1330 (1976).

Computation of Filing Time.

For purposes of calculating the 120-day (now 180-day) filing limit under this section, the claim against the state in cases of continuing tort is deemed to arise when all of the acts performed pursuant to the contract have been completed, since otherwise it would be difficult for the state to determine the nature or extent of its liability or prepare a defense to any claim, and settlements would either be based on pre-completion, speculative damages or would have to await the completion of the project. Farber v. State, 102 Idaho 398, 630 P.2d 685 (1981).

Plaintiff’s argument that she was illiterate in the English language did not change the analysis under this section, and a letter from the insurance adjuster advising plaintiff of the necessity of filing a notice of tort claim, even if plaintiff was unable to read it, was sufficient to put plaintiff on inquiry notice as to the contents of the letter and, under a reasonableness standard, started the running of the statutory notice period. Avila v. Wahlquist, 126 Idaho 745, 890 P.2d 331 (1995).

Constitutionality.

Construction.

Statutory requirement that tort claims against the state be filed within 120 days (now 180 days) from the day the claim arose or reasonably should have been discovered, though providing for a shorter period than allowed for filing claims against private tortfeasors, does not establish a suspect classification and is not unconstitutionally discriminatory in view of state’s legitimate interest in receiving timely notice so that it may investigate the claim. Newlan v. State, 96 Idaho 711, 535 P.2d 1348, appeal dismissed, 423 U.S. 993, 96 S. Ct. 419, 46 L. Ed. 2d 367 (1975); Curl v. Indian Springs Natatorium, Inc., 97 Idaho 637, 550 P.2d 140 (1976). Construction.

The 120-day (now 180-day) notice provision of this section is not itself a statute of limitation since a separate section,§ 6-911, provides for limitation of actions under the Idaho Tort Claims Act; consequently, while rules of construction governing statutes of limitations may prove instructive, they are not determinative of the construction of this section. Farber v. State, 102 Idaho 398, 630 P.2d 685 (1981).

Continuing Torts.

In applying this section to cases of continuing torts caused by projects undertaken pursuant to a contract with the state, the date upon which the project is approved and the contract accepted by the state is the time when the “act” referred to in this section is complete and the 120 days (now 180 days) available for giving notice of a claim begins to run; accordingly, in an action to recover damages for the negligent planning, construction and design of a street reconstruction project, a notice of claim filed 105 days after the date on which construction was completed and the project approved by the state was timely. Farber v. State, 102 Idaho 398, 630 P.2d 685 (1981).

Equitable Tolling.

Even if it were assumed that potential claimant should not have reasonably discovered the basis for his claim prior to July 2006 and that the Idaho Tort Claims Act,§ 6-901 et seq., allowed for the tolling of the statute of limitations on the basis of claimant’s imprisonment and lack of access to legal materials, applying equitable tolling in this circumstance would not have rendered plaintiff’s claim timely. Although plaintiff had access to his legal documents and sufficient Idaho law to begin work on his complaint in September 2007, plaintiff did not file the requisite 180-day notice of a tort claim with the secretary of state until approximately eight months later, in May 2008. Driggers v. Grafe, 148 Idaho 295, 221 P.3d 521 (Ct. App. 2009).

Notice Requirement.

A complaint asserting tort claims against employees of the state department of health and welfare in their official capacities was, in essence, a suit against the state and was properly dismissed for failure to comply with the notice requirements mandated by this section and§ 6-908. Overman v. Klein, 103 Idaho 795, 654 P.2d 888 (1982).

The notice of claim requirement of this section serves the purposes of providing an opportunity for parties to resolve their dispute through settlement without resort to the courts, allowing authorities to conduct a timely investigation of the claimant’s cause of action to determine the extent of the state’s liability, if any, and allowing the state to prepare its defenses. Overman v. Klein, 103 Idaho 795, 654 P.2d 888 (1982).

The language of this section is mandatory and, when it is read together with§ 6-908, it is clear that failure to comply with the notice requirement bars a suit. Greenwade v. Idaho State Tax Comm’n, 119 Idaho 501, 808 P.2d 420 (Ct. App. 1991).

Appellant’s filing of her grievance did not provide adequate notice of a tort claim against the state; it provided notice that she had a grievance, but did not provide notice that she intended to go a step farther by bringing a tort claim. Pounds v. Denison, 120 Idaho 425, 816 P.2d 982 (1991). An insurance company’s awareness of an accident or medical expenses does not relieve a claimant of the burden to file a timely notice of tort claim under§ 6-908 and this section with the appropriate governmental entity in accordance with the provisions of§ 6-907. Avila v. Wahlquist, 126 Idaho 745, 890 P.2d 331 (1995).

Where the plaintiff alleged that she had a right to recover damages against the state transportation department because it had “negligently or intentionally secreted, destroyed, lost or mislaid” evidence, her claim for spoliation was a “claim” as defined by the tort claim statute, and her failure to file a notice of tort claim properly resulted in dismissal of her claim. Cook v. State, DOT, 133 Idaho 288, 985 P.2d 1150 (1999).

District court improperly dismissed as untimely prisoner’s pro se civil complaint, because document that he submitted within the limitations period sufficed as a complaint, in that it: (1) alleged the essential facts to state a claim that he was entitled to relief; (2) explicitly stated that he had already complied with the notice requirements; and (3) while captioned as a “tort claim,” characterized the attached filing as a “complaint/claim,” in part employing language commonly used to signal the intended commencement of a civil complaint. Hauschulz v. State, 143 Idaho 462, 147 P.3d 94 (Ct. App. 2006).

Purpose.

The purposes of this section are to (1) save needless expense and litigation by providing an opportunity for the amicable resolution of the differences between parties, (2) allow authorities to conduct a full investigation into the cause of the injury in order to determine the extent of the state’s liability, if any, and (3) allow the state to prepare defenses. Farber v. State, 102 Idaho 398, 630 P.2d 685 (1981).

State Insurance Fund.

Where the plaintiffs conceded that the state insurance fund was a state agency when they filed their notice of tort claim, it was inconsistent for them then to argue that it was not a state agency for the purpose of a claim against the state. Kelso v. Lance, 134 Idaho 373, 3 P.3d 51 (2000).

C.J.S.

§ 6-906. Filing claims against political subdivision or employee — Time.

All claims against a political subdivison [subdivision] arising under the provisions of this act and all claims against an employee of a political subdivision for any act or omission of the employee within the course or scope of his employment shall be presented to and filed with the clerk or secretary of the political subdivision within one hundred eighty (180) days from the date the claim arose or reasonably should have been discovered, whichever is later.

History.

1971, ch. 150, § 5, p. 743; am. 1976, ch. 309, § 6, p. 1062; am. 1985, ch. 136, § 2, p. 372.

Cross References.

Damage claim against city,§ 50-219.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

The bracketed word “subdivision” was inserted by the compiler.

Accrual of Cause of Action.

Knowledge of facts which would put a reasonably prudent person on inquiry is the equivalent to knowledge of the wrongful act and will start the running of the 120-day (now 180-day) period. McQuillen v. City of Ammon, 113 Idaho 719, 747 P.2d 741 (1987).

The statutory period within which all claims against a political subdivision must be filed begins to run from the occurrence of the wrongful act, even though the full extent of damages may be unknown or unpredictable at that time. McQuillen v. City of Ammon, 113 Idaho 719, 747 P.2d 741 (1987).

A claimant “discovers” his claim against the governmental entity only when he becomes fully apprised of the injury or damage and of the governmental entity’s role. The question of when the claimant reasonably should have discovered the governmental entity’s role is a question of material fact which, if genuinely disputed, is inappropriate for determination on a motion for summary judgment. Carman v. Carman, 114 Idaho 551, 758 P.2d 710 (Ct. App. 1988).

Action Against County.

In wrongful death action, material issue of fact existed as to whether claim against county filed more than 120 days (now 180 days) after date of accident was filed within 120 days (now 180 days) from date claim reasonably should have been discovered which rendered issue inappropriate for determination on a motion for summary judgment. Trosper v. Raymond, 99 Idaho 54, 577 P.2d 33 (1978).

Where appellant, injured due to lack of a warning sign when he crossed the border from one county into another and the paved road turned to gravel, failed to file a notice of tort claim against the proper county within the 180 day time frame specified by this section and§ 6-908, his claim was prohibited. Kramer v. Central Hwy. Dist., 126 Idaho 722, 889 P.2d 1112 (1995).

Appellant’s contention that the tort claim notices sent to two neighboring counties should have served to put the county at issue on notice that a claim against it was being prosecuted, since the attorney for Idaho county reciprocal management program (ICRMP), which was the liability insurer for all three counties involved, was agent of the county at issue was held by the supreme court to be without merit as the county at issue cannot be charged with notice of a claim against it merely because the attorney for the ICRMP became aware of claims asserted against neighboring counties. Kramer v. Central Hwy. Dist., 126 Idaho 722, 889 P.2d 1112 (1995).

Action Against Highway District.

Action Against Minor.

A county highway district is a political subdivision entitled to the notice required by this section; thus the district court was correct in granting summary judgment in favor of county highway district in tort action, where plaintiff gave no timely notice of a claim but merely notified county highway superintendent after the accident that she had not been seriously injured. Curl v. Indian Springs Natatorium, Inc., 97 Idaho 637, 550 P.2d 140 (1976). Action Against Minor.

Section 5-230, providing for tolling of statutes of limitation against minors, serves to toll the time for filing a notice of claim under this section. Gailey v. Jerome County, 113 Idaho 430, 745 P.2d 1051 (1987) (see§ 6-906A).

Action Against Municipality.

Where plaintiff was fully aware of his claim against defendant-municipality on the date he was attacked and injured within its boundaries and its chief of police failed to come to his assistance, the 120-day (now 180-day) limitation period began to run on that date, even though additional injuries were discovered after the limitation period had expired. Ralphs v. City of Spirit Lake, 98 Idaho 225, 560 P.2d 1315 (1977).

District court properly granted a city summary judgment, in connection with a property owner’s action against it because the owner failed to file notice of its claim within 180 days of learning of the claim, which was when the city sent the owner a letter in which it refused to pay for work the owner completed; the court refused to consider the owner’s issue of whether§ 50-219 applied to the owner’s equitable claims because the issue was not properly raised in the lower court, but the court noted that it had construed§ 50-219 to require a claimant to file notice of all claims for damages against a governmental entity, tort or otherwise, as directed by the Idaho Tort Claims Act. Magnuson Props. P’ship v. City of Coeur d’Alene, 138 Idaho 166, 59 P.3d 971 (2002).

Where developer did not file notice of a claim of unjust enrichment against a city, regarding construction of a water supply line to a new subdivision, until almost one year after he had completed the construction, his claim was not timely under§ 50-219 and this section. Scott Beckstead Real Estate Co. v. City of Preston, 147 Idaho 852, 216 P.3d 141 (2009).

Action Against School District.

The notice of claims required by the tort claims act applies to actions brought against an independent school district which operates by virtue of a charter from the legislature. Independent Sch. Dist. v. Callister, 97 Idaho 59, 539 P.2d 987 (1975), disapproved on other grounds, Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

Amended Complaint.

An Idaho Tort Claims Act claim that was contained in an amended complaint was incorrectly ruled to relate back to original complaint and should not have been denied as premature. Farnworth v. Femling, 125 Idaho 283, 869 P.2d 1378, cert. denied, 513 U.S. 816, 115 S. Ct. 73, 130 L. Ed. 2d 28 (1994).

Applicability.

City was not entitled to dismissal of a former deputy fire chief’s claim alleging wrongful discharge in violation of the Idaho Whistleblower Act, where the claim was filed within the statute of limitations under§ 6-2105(2). The notice requirements under this section and§ 50-219 do not apply to state law claims for damages under the Idaho Whistleblower Act. Brown v. City of Caldwell, 769 F. Supp. 2d 1256 (D. Idaho 2011).

Civil Rights Actions.

Knowledge of facts which would put a reasonably prudent person on inquiry is the equivalent to knowledge of a wrongful act and will start the running of the 180 days period of this section. The statutory period begins to run from the occurrence of the wrongful act, even if the full extent of damages is not known at that time. Alpine Vill. Co. v. City of McCall, 154 Idaho 930, 303 P.3d 617 (2013). Civil Rights Actions.

A state’s notice-of-claim statute which provides that no action may be brought or maintained against a state government subdivision unless claimant provides written notice within a certain period of time is preempted when a federal civil rights action is brought in state court. Sweitzer v. Dean, 118 Idaho 568, 798 P.2d 27 (1990).

Condition Precedent.

Suit seeking monetary damages brought by property owner challenging denial of conditional use permit to operate an adult bookstore and theater in area zoned “commercial central” by city council was correctly dismissed where plaintiff did not meet condition precedent by presenting his claims against the city within 120 days (now 180 days) after his cause of action arose. Tovar v. Billmeyer, 98 Idaho 891, 575 P.2d 489 (1978).

Compliance with the tort claims act’s notice requirements is a condition precedent to bringing a suit under that act. Smith v. City of Preston, 99 Idaho 618, 586 P.2d 1062 (1978).

Effect of 1985 Amendment.

The 1985 amendment of this section extending the time for filing claims under the Tort Claims Act did not apply retroactively. Gailey v. Jerome County, 113 Idaho 430, 745 P.2d 1051 (1987).

Excusing Incapacity.

Giving of notice within a reasonable time, not exceeding 120 days (now 180 days) after removal of an incapacity is compliance with the statutory requirement. Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

Where a claimant is unconscious or hospitalized the entire statutory period, whether or not such incapacity is sufficient to be considered as an “excusing incapacity,” thus excusing her from compliance with the 120 day (now 180 day) filing requirement, should be determined first by the jury on a case by case basis to ascertain if the incapacity was sufficient to excuse compliance and secondly to ascertain how long the claimant’s physical and mental capacity served to toll the beginning of the 120 day (now 180 day) statutory period for filing notice. Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

Section 6-907 provides an alternative method of complying with the time limitations of this section but does not impose an additional burden on claimant to prove he was too incapacitated to communicate with those around him or was totally isolated from and bereft of any supporting friends and relatives. Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

Failure to File Claim.

Where, in an action to recover damages resulting from a condemnation proceeding, the claims against the defendants were based on their official actions as employees of the city, and the plaintiffs did not file a tort claim with the city, the plaintiffs were barred from pursuing a cause of action against the defendants. Anderton v. Herrington, 113 Idaho 73, 741 P.2d 360 (Ct. App. 1987). Where plaintiff failed to file his claim against the county within the time limits proscribed by the act, supreme court held that the fact that appellant had photographs of the accident scene which picture a sign stating “Entering Nez Perce County,” as well as the fact that plaintiff or his representatives could have determined within minimal effort that part of the road in question was in Nez Perce county was sufficient to show that plaintiff knew or reasonably should have known within the first seven months of the accident what counties were potentially involved in his tort claim. Kramer v. Central Hwy. Dist., 126 Idaho 722, 889 P.2d 1112 (1995).

The plaintiff did not file a notice of tort claim because he believed he was negotiating with the defendant hospital and that it was not necessary, but this was not a sufficient basis under the doctrine of promissory estoppel for failing to file the required notice, and, therefore, promissory estoppel did not waive the requirement of filing a notice of tort claim with the defendant hospital on or before the 180-day deadline. Mitchell v. Bingham Mem. Hosp., 130 Idaho 420, 942 P.2d 544 (1997).

In General.

Statement to city housing authority by claimant’s son-in-law that he believed authority was responsible for claimant’s injuries caused when she fell on ice in authority’s parking lot neither contained the information required for valid and sufficient notice under§ 6-907, nor constituted a claim filed under the provisions of this section. Friel v. Boise City Hous. Auth., 126 Idaho 484, 887 P.2d 29 (1994).

The medical malpractice prelitigation statutes do not preempt application of the Idaho Tort Claims Act because both statutes are specific and serve different purposes. Mitchell v. Bingham Mem. Hosp., 130 Idaho 420, 942 P.2d 544 (1997).

In an action for additional fees, the time limit in this section began to run, not when the construction performance manager performed his additional services, but when the city denied the manager’s fee request for those services. City of Meridian v. Petra Inc., 154 Idaho 425, 299 P.3d 232 (2013).

No Exemption From Compliance.

In actions against governmental entities, plaintiffs are not exempt from the notice of claim requirements because of minority, substantial actual notice having been given, or because of the relative size of the governmental units. Independent Sch. Dist. v. Callister, 97 Idaho 59, 539 P.2d 987 (1975), disapproved on other grounds, Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

Though minors and those suffering incapacities were not intended to be exempted from notice of claim requirements, minority and incapacitation are factors which may be considered in deciding whether a claim reasonably should have been discovered. Independent Sch. Dist. v. Callister, 97 Idaho 59, 539 P.2d 987 (1975), disapproved on other grounds, Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

The language of§ 50-219 requires that a claimant must file a notice of claim for all damage claims, tort or otherwise, as directed by the filing procedures set forth in this section. Sweitzer v. Dean, 118 Idaho 568, 798 P.2d 27 (1990).

Notice.

The plaintiffs were aware of the overdose and respiratory arrest on the day the overdose occurred and the facts available to the plaintiffs were sufficient to cause a reasonably prudent person to inquire further into the surrounding circumstances, and the 180-day period under this section began to run on the day of the overdose, even though the plaintiffs did not know the extent of the injury and damages or the extent to which the defendant was responsible. Mitchell v. Bingham Mem. Hosp., 130 Idaho 420, 942 P.2d 544 (1997). Notice.

While a claim against an irrigation district must be filed with the clerk or secretary of the district, this section does not require that notice of the claim must be served on the clerk or secretary. Service on the district’s attorney, who then forwarded the claim to the clerk, was sufficient. CNW, LLC v. New Sweden Irrigation Dist., 161 Idaho 89, 383 P.3d 1259 (2016).

Dismissal of a tort claim alleging wrongful conduct against a police department and police officers — relating to an alleged wrongful arrest — was appropriate, because the arrestee failed to comply with the statutory notice requirements of this section and§ 6-908. Service of the complaint was not sufficient notification of the suit. Dodge v. Bonners Ferry Police Dep’t, — Idaho —, 450 P.3d 298 (2019).

Idaho department of juvenile corrections and its employees were entitled to summary judgment as to child abuse claims brought by former inmates, because (1) under the plain language of the Idaho Tort Claims Act (ITCA), the ITCA governed those claims, (2) the ITCA, pursuant to§ 6-908 and this section, requires advance notice of the claims, and (3) it was undisputed that no such notice was given. D.A.F. v. Lieteau, — Idaho —, 456 P.3d 193 (2019).

— Actual.

A city’s actual notice of plaintiff’s damages which resulted from the city’s alleged failure to properly operate its municipal water system did not take plaintiff’s complaint out of the notice of claim requirements. Calkins v. Fruitland, 97 Idaho 263, 543 P.2d 166 (1975).

In actions against governmental entities, plaintiffs are not exempt from the notice of claim requirements because of substantial actual notice having been given. McQuillen v. City of Ammon, 113 Idaho 719, 747 P.2d 741 (1987).

— Exclusion.

In excluding the use of the tort claim notices as prior inconsistent statements, the trial court’s reasoning that, because the purpose of a tort claim notice is merely to give notice not to assert liability, it carries even less evidentiary weight than the pleadings of a complaint, and its conclusion that the probative value of the tort claim notices was substantially outweighed by their potential to confuse or mislead the jury, properly called for exercise of trial court’s discretion. Burgess v. Salmon River Canal Co., 127 Idaho 565, 903 P.2d 730 (1995).

— In General.

In plaintiff’s suit against an independent school district for damages resulting from personal injuries suffered during school hours, plaintiff’s argument that the statutory notice of claim is not required when recovery is sought from the liability carrier of the governmental entity was without merit. Independent Sch. Dist. v. Callister, 97 Idaho 59, 539 P.2d 987 (1975), disapproved on other grounds, Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

Since an insurer’s subrogation claim is derived from and dependent upon successful prosecution of the insured’s claim, notice by a motorist’s insurance carrier of a subrogation claim was therefore necessarily also notice of the motorist’s claim upon which the subrogation request was founded. Smith v. City of Preston, 99 Idaho 618, 586 P.2d 1062 (1978). The supreme court has consistently taken a liberal approach to interpreting the notice requirement of the Tort Claims Act. Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986).

Compliance with the Tort Claims Act’s notice requirement is a mandatory condition precedent to bringing suit, the failure of which is fatal to a claim, no matter how legitimate. McQuillen v. City of Ammon, 113 Idaho 719, 747 P.2d 741 (1987).

The 120-day (now 180-day) notice provision of the Tort Claims Act is not itself a statute of limitations;§ 6-911 provides for the limitation of actions thereunder. The notice requirement is in addition to the applicable statute of limitations. McQuillen v. City of Ammon, 113 Idaho 719, 747 P.2d 741 (1987).

District court erred in dismissing negligence claim against hospital on the basis that plaintiff’s notice of claim was untimely without identifying the specific alleged wrongful act or omission on the part of the hospital. The alleged negligence or wrongful act or omission must be identified before the court can determine when the claim reasonably should have been discovered. Steele v. Kootenai Med. Ctr., 142 Idaho 919, 136 P.3d 905 (2006).

In malpractice suit, trial court properly denied patient’s motion to reconsider grant of summary judgment in favor of hospital. Newly-discovered evidence that showed hospital had received copy of patient’s letter informing the Idaho state board of medicine (ISBM) of his malpractice claim did not constitute adequate notice and would not have changed the trial court’s summary judgment ruling. The patient could not rely on the ISBM’s forwarding of his letter to the hospital to establish notice where he had no special relationship with the ISBM. Foster v. Kootenai Med. Ctr., 143 Idaho 425, 146 P.3d 691 (Ct. App. 2006).

Defendant sheriff, deputy sheriff, prosecutor, and deputy prosecutor were entitled to summary judgment on plaintiff’s malicious prosecution claims because the plaintiff had not provided a formal, written notice of claim as required by this section. Frost v. Robertson, 2009 U.S. Dist. LEXIS 24006 (D. Idaho 2009).

Fire chief’s claim for breach of contract was dismissed because that claim was subject to the notice requirement under§ 50-219; neither the fire chief’s demand letters providing written notice of his whistleblower claim nor his initial complaint met the notice requirements of this section and§ 50-219. Brown v. City of Caldwell, 769 F. Supp. 2d 1256 (D. Idaho 2011).

— Sufficiency.

The primary function of notice under the Tort Claims Act is to put the governmental entity on notice that a claim against it is being prosecuted, and notice serving that function would not be insufficient unless the governmental entity was misled to its injury. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

Where written estimate given irrigation district by plaintiff did not contain a statement of demand, but the district was clearly apprised of the fact that a claim was being prosecuted against it and of the amount thereof, as confirmed by the activities of both district employee and district’s insurance carrier subsequent to plaintiff’s delivery of notice, and where there was no evidence that district was misled to its injury by any deficiency in notice, notice of claim was sufficient under the Tort Claims Act. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

As long as the notice is delivered to the secretary’s office, it is sufficient. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

Notice to an insurer of a public entity can in certain circumstances constitute substantial compliance with a Tort Claims Act notice requirement. Sysco Intermountain Food Serv. v. City of Twin Falls, 109 Idaho 88, 705 P.2d 548 (Ct. App. 1985). Court improperly granted city’s motion for summary judgment on ground that plaintiff had failed to timely file a written tort claim notice with the city within 120 days’ (now 180 days’) limit where plaintiff, immediately after the collision between plaintiff’s and defendant city’s vehicles, orally had notified city’s insurance agent of a claim and the agent accepted the claim and referred it to the city’s insurance carrier who investigated the claim and denied it by means of a telephone call to the plaintiff. Sysco Intermountain Food Serv. v. City of Twin Falls, 109 Idaho 88, 705 P.2d 548 (Ct. App. 1985).

A letter from the insurance company representing wrongful death defendants to the city, notifying the city of the claim against the defendants and stating that the city appeared to be responsible, did not constitute notice of a claim by the plaintiffs against the city. Stevens v. Fleming, 116 Idaho 523, 777 P.2d 1196 (1989).

Claimant’s oral notice to city housing authority of a potential insurance claim was not adequate notice under this section and§ 6-907 of a tort claim. Friel v. Boise City Hous. Auth., 126 Idaho 484, 887 P.2d 29 (1994).

Where the plaintiff did not file a formal written notice of tort claim with a hospital, his written communication of his damages to the hospital’s insurance adjuster did not constitute substitution of direct notice to the governmental entity, since the insurance carrier concerned was the hospital’s, not the plaintiff’s, and there was no special relationship between that insurance carrier and the plaintiff. Blass v. County of Twin Falls, 132 Idaho 451, 974 P.2d 503 (1999).

— Timely.

The general tolling provision,§ 5-230, applies to all procedures integral to commencing actions against private or public defendants, including the notice procedure of this section. Consequently, subdivision 1 of§ 5-230 tolled the running of the time within which this section required the minor plaintiffs to give notice to the school district, and the notice given on their behalf was adequate as a matter of law. Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986) (see§ 6-906A).

The 120-day (now 180-day) limit begins to run after the claimant becomes fully apprised of not only the injury or damages, but also the governmental entity’s role. Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986) (decision prior to 1985 amendment).

Where, in an action against a school district for negligent retention of a teacher known to be a child molester, the plaintiffs asserted that during a pre-sentence investigation of the teacher, they discovered that the school district had retained the teacher even after knowing of his illicit tendencies and they then filed their claims in less than 120 days (now 180 days), notice for the adult plaintiffs’ claims was entirely adequate. Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986) (decision prior to 1985 amendment).

In an action for damages caused by the city’s wrongful issuance of stop-work orders and a temporary injunction against the plaintiff’s continued construction of its apartment complex, the wrongs occasioned by the city were of a continuing nature, but ceased when the temporary injunction and stop-work orders were lifted by the court order; therefore, the plaintiff’s filing of its notice of claim was not timely where it was filed more than 120 days after the court order was issued. Intermountain W., Inc. v. Boise City, 111 Idaho 878, 728 P.2d 767 (1986) (decision prior to 1985 amendment).

Nuisance Claim.

Beginning October 15, 2008, when another state is a defendant in a tort action brought in an Idaho court, once the proper choice of law is made, based upon the “most significant relation” test, the deadline for filing notice of a claim with a state or political subdivision will be governed by that jurisdiction’s laws. Athay v. Stacey, 146 Idaho 407, 196 P.3d 325 (2008). Nuisance Claim.

Trial court improperly granted a city’s motion to dismiss a suit brought by property owners alleging tort claims arising out of problems associated with an adjacent, unpaved road; the speeding cars and the dust caused by the road were continuous so the limitations period provided in the Idaho Tort Claims Act (ITCA) was not applicable, and the property owners should have been allowed to amend their complaint to include a claim for nuisance, which was not governed by the ITCA. Cobbley v. City of Challis, 138 Idaho 154, 59 P.3d 959 (2002).

Purpose.

The purpose of the Tort Claims Act is to (1) save needless expense and litigation by providing an opportunity for amicable resolution of the differences between parties, (2) allow authorities to conduct a full investigation into the cause of the injury in order to determine the extent of the state’s liability, if any, and (3) allow the state to prepare defenses. Friel v. Boise City Hous. Auth., 126 Idaho 484, 887 P.2d 29 (1994).

Idaho Law Review.

Idaho Law Review. — Choice of Law in Idaho: A Survey and Critique of Idaho Cases, Andrew S. Jorgensen. 49 Idaho L. Rev. 547 (2013).

Am. Jur. 2d.

C.J.S.

Applicability.

This section, not§ 6-1701, the statute of limitations for filing tort actions in child abuse cases, applied to a sexual abuse claim brought by a minor against a school district and teacher. Osborn v. Salinas, 131 Idaho 456, 958 P.2d 1142 (1998).

Failure to File Timely Notice.

Failure to file a notice of tort claim was fatal to a suit against the University of Idaho which arose from injuries sustained by a minor who fell from a catwalk in a university gymnasium; the suit was filed eight years after the accident and 18 months after the minor became an adult. Banks v. University of Idaho, 118 Idaho 607, 798 P.2d 452 (1990).

Purpose.

This section makes clear both the legislature’s intent to protect minor claimants from the running of the notice time period, and its intent to apply the precise policy of§ 5-230, including the six-year maximum, to notice requirements. Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986).

Adequacy of Complaint.

Although the contents of a letter did not comply with all the requirements enumerated in this section, the contents of the letter were adequate where there was nothing in the record to suggest that the city was “misled to its injury” by any deficiencies in the contents of the letter. Smith v. City of Preston, 99 Idaho 618, 586 P.2d 1062 (1978).

Compliance.

The plaintiff’s demand letter failed to serve as notice of a claim pursuant to the Tort Claims Act, since it failed to state the names and addresses of the claimants, the amounts of claimed damages and the nature of the injury claimed. Wickstrom v. North Idaho College, 111 Idaho 450, 725 P.2d 155 (1986). Compliance.

The oral statements made by the plaintiff’s attorney to the defendant hospital’s administrator did not constitute the filing of a claim under the ITCA, because a written demand is plainly required by this section. Mitchell v. Bingham Mem. Hosp., 130 Idaho 420, 942 P.2d 544 (1997).

Filing by Person Other than Claimant.

The fact that this section specifically permits someone to file a claim on behalf of the claimant, if the claimant is a minor, incapacitated or a nonresident and absent from the state, does not mean that the claim in all other cases must be filed personally by the claimant. Smith v. City of Preston, 99 Idaho 618, 586 P.2d 1062 (1978).

In General.

Statement to city housing authority by claimant’s son-in-law that he believed authority was responsible for claimant’s injuries caused when she fell on ice in authority’s parking lot neither contained the information required for valid and sufficient notice under this section, nor constituted a claim filed under the provisions of this section. Friel v. Boise City Hous. Auth., 126 Idaho 484, 887 P.2d 29 (1994).

Jury Issue.

Question as to whether a claimant’s incapacity excused her from the time requirements of§ 6-906 is one for the jury, which must determine first, if the incapacity is sufficient to excuse compliance, and second, how long the claimant’s physical and mental incapacity served to toll the beginning of the statutory period for filing notice. Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

Notice.

Since an insurer’s subrogation claim is derived from and dependent upon successful prosecution of the insured’s claim, notice by a motorist’s insurance carrier of a subrogation claim was, therefore, necessarily also notice of the motorist’s claim upon which the subrogation request was founded. Smith v. City of Preston, 99 Idaho 618, 586 P.2d 1062 (1978).

The primary function of notice under the Tort Claims Act is to put the governmental entity on notice that a claim against it is being prosecuted, and notice serving that function would not be insufficient unless the governmental entity was misled to its injury. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

Where written estimate given irrigation district by plaintiff did not contain a statement of demand, but the district was clearly apprised of the fact that a claim was being prosecuted against it and of the amount thereof, as confirmed by the activities of both district employee and district’s insurance carrier subsequent to plaintiff’s delivery of notice, and where there was no evidence that district was misled to its injury by any deficiency in notice, notice of claim was sufficient under the Tort Claims Act. Huff v. Uhl, 103 Idaho 274, 647 P.2d 730 (1982).

A letter to the city from the insurance company of defendants in wrongful death action notifying the city of the claim against the defendants and stating that the city appeared to be responsible, did not constitute notice of a claim by the plaintiffs against the city. Stevens v. Fleming, 116 Idaho 523, 777 P.2d 1196 (1989). A notice of a potential claim, which does not strictly comply with all of the requirements of this section, may nonetheless satisfy the ITCA notice requirements. Friel v. Boise City Hous. Auth., 126 Idaho 484, 887 P.2d 29 (1994).

Claimant’s oral notice to city housing authority of a potential insurance claim was not adequate notice under this section and§ 6-906 of a tort claim. Friel v. Boise City Hous. Auth., 126 Idaho 484, 887 P.2d 29 (1994).

An insurance company’s awareness of an accident or medical expenses does not relieve a claimant of the burden to file a timely notice of tort claim under§§ 6-908 and 6-905 with the appropriate governmental entity in accordance with the provisions of this section. Avila v. Wahlquist, 126 Idaho 745, 890 P.2d 331 (1995).

Letters and billing statements sent by lessors to a city/lessee were sufficient “claims” to preclude summary judgment on the basis of the notice requirements of Idaho Code§ 50-219 and the Idaho Tort Claims Act. Counsel’s letter demanded payment pursuant to the lease, described the conduct and circumstances which brought about the claimed injury in monetary terms, included relevant dates, and specifically demanded payment of a specific amount with interest due; annual billing statements also identified the lease by number, the parties to the lease, and tracked by date the imposition of rent, the accrual of interest, and payments. Cox v. City of Sandpoint, 140 Idaho 127, 90 P.3d 352 (Ct. App. 2003).

In malpractice suit, trial court properly denied patient’s motion to reconsider grant of summary judgment in favor of hospital. Newly-discovered evidence that showed hospital had received copy of patient’s letter informing the Idaho state board of medicine (ISBM) of his malpractice claim did not constitute adequate notice and would not have changed the trial court’s summary judgment ruling. The patient could not rely on the ISBM’s forwarding of his letter to the hospital to establish notice where he had no special relationship with the ISBM. Foster v. Kootenai Med. Ctr., 143 Idaho 425, 146 P.3d 691 (Ct. App. 2006).

Purpose.

The purpose of the Tort Claims Act is to (1) save needless expense and litigation by providing an opportunity for amicable resolution of the differences between parties, (2) allow authorities to conduct a full investigation into the cause of the injury in order to determine the extent of the state’s liability, if any, and (3) allow the state to prepare defenses. Friel v. Boise City Hous. Auth., 126 Idaho 484, 887 P.2d 29 (1994).

Am. Jur. 2d.

C.J.S.

ALR.

§ 6-908. Restriction on allowance of claims.

No claim or action shall be allowed against a governmental entity or its employee unless the claim has been presented and filed within the time limits prescribed by this act.

History.

1971, ch. 150, § 8, p. 743; am. 1976, ch. 309, § 7, p. 1062.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Action Against School District.

The notice of claims required by the tort claims act applies to actions brought against an independent school district which operates by virtue of a charter from the legislature. Independent Sch. Dist. v. Callister, 97 Idaho 59, 539 P.2d 987 (1975), disapproved on other grounds, Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

Actual Notice.

Where the state had investigated an accident but had no reason to suspect it might be subject to tort claims arising from the accident, the state did not have sufficient notice of subsequent tort claims against it which would have rendered literal compliance with notice provisions unnecessary and, thus, plaintiffs were required to give timely notice in order to maintain suit on their claims. Newlan v. State, 96 Idaho 711, 535 P.2d 1348, appeal dismissed, 423 U.S. 993, 96 S. Ct. 419, 46 L. Ed. 2d 367 (1975).

A city’s actual notice of plaintiff’s damages which resulted from the city’s alleged failure to properly operate its municipal water system did not take plaintiff’s complaint out of the notice of claim requirements. Calkins v. Fruitland, 97 Idaho 263, 543 P.2d 166 (1975). Appellant’s contention that the tort claim notices sent to two neighboring counties should have served to put the county at issue on notice that a claim against it was being prosecuted, since the attorney for Idaho county reciprocal management program (ICRMP), which was the liability insurer for all three counties involved, was agent of the county at issue was held by the supreme court to be without merit as the county at issue cannot be charged with notice of a claim against it merely because the attorney for the ICRMP became aware of claims asserted against neighboring counties. Kramer v. Central Hwy. Dist., 126 Idaho 722, 889 P.2d 1112 (1995).

An insurance company’s awareness of an accident or medical expenses does not relieve a claimant of the burden to file a timely notice of tort claim under this section and§ 6-905 with the appropriate governmental entity in accordance with the provisions of§ 6-907. Avila v. Wahlquist, 126 Idaho 745, 890 P.2d 331 (1995).

Compliance.

Compliance with notice of claim requirement is mandatory and without such compliance a suit against the state may not be maintained. Newlan v. State, 96 Idaho 711, 535 P.2d 1348, appeal dismissed, 423 U.S. 993, 96 S. Ct. 419, 46 L. Ed. 2d 367 (1975).

Where plaintiffs failed to present claim against the state to secretary of state within 120 [now 180 days] days after their alleged cause of action arose, the district court properly dismissed the action under authority of this section. Jacaway v. State, 97 Idaho 694, 551 P.2d 1330 (1976).

Question as to whether a claimant’s incapacity excused her from the time requirements of§ 6-906 is one for the jury, which must determine first, if the incapacity is sufficient to excuse compliance, and second, how long the claimant’s physical and mental incapacity served to toll the beginning of the statutory period for filing notice. Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

Where, in an action to recover damages resulting from a condemnation proceeding, the claims against the defendants were based on their official actions as employees of the city, and the plaintiffs did not file a tort claim with the city, the plaintiffs were barred from pursuing a cause of action against the defendants. Anderton v. Herrington, 113 Idaho 73, 741 P.2d 360 (Ct. App. 1987).

It is well settled that compliance with the Tort Claims Act’s notice requirement is a mandatory condition precedent to bringing suit, the failure of which is fatal to a claim, no matter how legitimate. Udell v. Idaho State Bd. of Land Comm’rs ex rel. Idaho Att’y Gen., 119 Idaho 1018, 812 P.2d 325 (Ct. App. 1991).

Equitable Tolling.

Even if it were assumed that potential claimant should not have reasonably discovered the basis for his claim prior to July 2006 and that the Idaho Tort Claims Act,§ 6-901 et seq., allowed for the tolling of the statute of limitations on the basis of claimant’s imprisonment and lack of access to legal materials, applying equitable tolling in this circumstance would not have rendered plaintiff’s claim timely. Although plaintiff had access to his legal documents and sufficient Idaho law to begin work on his complaint in September 2007, plaintiff did not file the requisite 180-day notice of a tort claim with the secretary of state until approximately eight months later, in May 2008. Driggers v. Grafe, 148 Idaho 295, 221 P.3d 521 (Ct. App. 2009).

In General.

Knowledge of facts which would put a reasonably prudent person on inquiry is the equivalent to knowledge of a wrongful act and will start the running of the 180 days period of§ 6-906. The statutory period begins to run from the occurrence of the wrongful act, even if the full extent of damages is not known at that time. Alpine Vill. Co. v. City of McCall, 154 Idaho 930, 303 P.3d 617 (2013).

No Exemptions.

The fact that parents, whose son died as a result of an automobile accident allegedly caused by the state’s use of inappropriate paving materials, were not aware that they had a cause of action against the state until they consulted with their lawyer did not render unnecessary their compliance with the requirement that the tort claim be filed within 120 days [now 180 days] from the date the claim arose, since the parents had knowledge of the facts the day of the accident. Newlan v. State, 96 Idaho 711, 535 P.2d 1348, appeal dismissed, 423 U.S. 993, 96 S. Ct. 419, 46 L. Ed. 2d 367 (1975).

In actions against governmental entities, plaintiffs are not exempt from the notice of claim requirements because of minority, substantial actual notice having been given, or because of the relative size of the governmental units. Independent Sch. Dist. v. Callister, 97 Idaho 59, 539 P.2d 987 (1975), disapproved on other grounds, Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

Though minors and those suffering incapacities were not intended to be exempted from notice of claim requirements, minority and incapacitation are factors which may be considered in deciding whether a claim reasonably should have been discovered. Independent Sch. Dist. v. Callister, 97 Idaho 59, 539 P.2d 987 (1975), disapproved on other grounds, Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978) (see§ 6-906A).

Noncompliance.

Bail bond company’s claim under Idaho Const., Art. VIII, § 4, challenging a sheriff’s acceptance of bail bond payments by credit card, which equated to a cause of action for tortious interference with a business relationship, sounded in tort and, therefore, was properly dismissed for lack of timely notice of the claim. Allied Bail Bonds, Inc. v. County of Kootenai, 151 Idaho 405, 258 P.3d 340 (2011).

Notice Requirements.

Compliance with the notice of claim requirement is a mandatory condition precedent to bringing suit against the state or its employee. Overman v. Klein, 103 Idaho 795, 654 P.2d 888 (1982).

Where the complaint affirmatively alleged that defendant state employees were acting within the scope and course of their employment, since this section requires the filing of a notice of claim, as a prerequisite to a suit against a governmental employee acting within the course and scope of his employment, and since no such claim was filed, the trial court properly dismissed the cause of action against defendants in their individual capacities on the basis of plaintiff’s failure to file a notice of claim. Overman v. Klein, 103 Idaho 795, 654 P.2d 888 (1982).

A complaint asserting tort claims against employees of the state department of health and welfare in their official capacities was, in essence, a suit against the state and was properly dismissed for failure to comply with the notice requirements mandated by§ 6-905 and this section. Overman v. Klein, 103 Idaho 795, 654 P.2d 888 (1982). Compliance with the Idaho Tort Claims Act’s notice requirement is a mandatory condition precedent to bringing suit, the failure of which is fatal to a claim, no matter how legitimate. McQuillen v. City of Ammon, 113 Idaho 719, 747 P.2d 741 (1987).

The language of this section — that no claim or action shall be “allowed” — has consistently been interpreted to mean that compliance with the notice requirement of the Tort Claims Act is a mandatory condition precedent to bringing an action under the act. Madsen v. Idaho Dep’t of Health & Welfare, 116 Idaho 758, 779 P.2d 433 (Ct. App. 1989).

Failure to file a notice of tort claim was fatal to a suit against the University of Idaho which arose from injuries sustained by a minor who fell from a catwalk in a university gymnasium; the suit was filed eight years after the accident and 18 months after the minor became an adult. Banks v. University of Idaho, 118 Idaho 607, 798 P.2d 452 (1990).

The language of§ 6-905 is mandatory and, when it is read together with this section, it is clear that failure to comply with the notice requirement bars a suit. Greenwade v. Idaho State Tax Comm’n, 119 Idaho 501, 808 P.2d 420 (Ct. App. 1991).

Where appellant, injured due to lack of a warning sign when he crossed the border from one county into another and the paved road turned to gravel, failed to file a notice of tort claim against the proper county within the 180 day time frame specified by§ 6-906 and this section, his claim was prohibited. Kramer v. Central Hwy. Dist., 126 Idaho 722, 889 P.2d 1112 (1995).

Dismissal of a tort claim alleging wrongful conduct against a police department and police officers — relating to an alleged wrongful arrest — was appropriate, because the arrestee failed to comply with the statutory notice requirements of this section and§ 6-906. Service of the complaint was not sufficient notification of the suit. Dodge v. Bonners Ferry Police Dep’t, — Idaho —, 450 P.3d 298 (2019).

Idaho department of juvenile corrections and its employees were entitled to summary judgment as to child abuse claims brought by former inmates, because (1) under the plain language of the Idaho Tort Claims Act (ITCA), the ITCA governed those claims, (2) the ITCA, pursuant to§ 6-906 and this section, requires advance notice of the claims, and (3) it was undisputed that no such notice was given. D.A.F. v. Lieteau, — Idaho —, 456 P.3d 193 (2019).

Notice to Liability Carrier.

In plaintiff’s suit against an independent school district for damages resulting from personal injuries suffered during school hours, where no insurance company was a party to the action, plaintiff’s argument that the statutory notice of claim is not required when recovery is sought from the liability carrier of the governmental entity was without merit. Independent Sch. Dist. v. Callister, 97 Idaho 59, 539 P.2d 987 (1975), disapproved on other grounds, Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

Nuisance Claim.

Trial court improperly granted a city’s motion to dismiss a suit brought by property owners alleging tort claims arising out of problems associated with an adjacent, unpaved road; the speeding cars and the dust caused by the road were continuous so the limitations period provided in the Idaho Tort Claims Act (ITCA) was not applicable, and the property owners should have been allowed to amend their complaint to include a claim for nuisance, which was not governed by the ITCA. Cobbley v. City of Challis, 138 Idaho 154, 59 P.3d 959 (2002).

Cited Trosper v. Raymond, 99 Idaho 54, 577 P.2d 33 (1978); Madsen v. Idaho Dep’t of Health & Welfare, 114 Idaho 624, 759 P.2d 915 (Ct. App. 1988); Pounds v. Denison, 120 Idaho 425, 816 P.2d 982 (1991); Frost v. Robertson, 2009 U.S. Dist. LEXIS 24006 (D. Idaho 2009). RESEARCH REFERENCES

C.J.S.

81A C.J.S., States, § 467 et seq.

ALR.

§ 6-909. Time for allowance or denial of claims — Effect of failure to act.

Within ninety (90) days after the filing of the claim against the governmental entity or its employee, the governmental entity shall act thereon and notify the claimant in writing of its approval or denial. A claim shall be deemed to have been denied if at the end of the ninety (90) day period the governmental entity has failed to approve or deny the claim.

History.

1971, ch. 150, § 9, p. 743; am. 1976, ch. 309, § 8, p. 1062; am. 1978, ch. 272, § 4, p. 630.

Am. Jur. 2d.

§ 6-910. Suit on denied claims permitted.

If the claim is denied, a claimant may institute an action in the district court against the governmental entity or its employee in those circumstances where an action is permitted by this act.

History.

1971, ch. 150, § 10, p. 743; am. 1976, ch. 309, § 9, p. 1062.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Application.

This is the applicable statute of limitation under the Idaho Tort Claims Act. No other statute of limitation applies. Carman v. Carman, 114 Idaho 551, 758 P.2d 710 (Ct. App. 1988).

Claim arose when plaintiff was injured in car accident on highway, and not earlier when department of transportation had worked on highway, because before the accident plaintiff had not sustained any damage as a result of the condition of highway and was not in a position to sue. Esterbrook v. State, 124 Idaho 680, 863 P.2d 349 (1993).

Discovery of Claim.

Where a question of material fact existed concerning whether plaintiff reasonably should have discovered her claim against the county prior to 1984, the limitation period should not have been applied but the issue should have been determined by the jury. Carman v. Carman, 114 Idaho 551, 758 P.2d 710 (Ct. App. 1988).

In General.

Since the tort claims act has an express statute of limitations which begins to run commencing with the filing of the notice of claim, the notice of claim requirement is not a statute of limitations. Independent Sch. Dist. v. Callister, 97 Idaho 59, 539 P.2d 987 (1975), disapproved on other grounds, Larson v. Emmett Joint Sch. Dist. No. 221, 99 Idaho 120, 577 P.2d 1168 (1978).

Where plaintiff and state stipulated to a dismissal of an action originally filed in a federal court, the provisions of 28 U.S.C.S. § 1367(d) did not toll the statute of limitations. Thus, an action subsequently filed in state court, two years and nine months after the date of the alleged damages, is violative of this section. Noak v. Idaho Dep’t of Corr., 152 Idaho 305, 271 P.3d 703 (2012).

Notice Requirement.

The 120-day (now 180-day) notice provision of§ 6-906 is not itself a statute of limitations; this section provides for the limitation of actions thereunder. The notice requirement is in addition to the applicable statute of limitations. McQuillen v. City of Ammon, 113 Idaho 719, 747 P.2d 741 (1987).

Time Claim Filed.

Where notice of claim was filed against the defendant on September 10, 1984, and the action was filed on September 5, 1986, less than two years after notice of claim was filed, the claim was not barred because, at the time the cause of action arose, this section provided that claim against a governmental entity was barred unless an action was brought within two years after a claim was filed with the governmental entity. Union Pac. R.R. v. Idaho, 654 F. Supp. 1236 (D. Idaho 1987) (decision prior to 1985 amendment); Union Pac. R.R. v. Idaho, 663 F. Supp. 75 (D. Idaho 1987).

District court improperly dismissed, as untimely, prisoner’s pro se civil complaint, because document that he submitted within the limitations period sufficed as a complaint, in that it: (1) alleged the essential facts to state a claim that he was entitled to relief; (2) explicitly stated that he had already complied with the notice requirements; and (3) while captioned as a “tort claim,” characterized the attached filing as a “complaint/claim,” in part employing language commonly used to signal the intended commencement of a civil complaint. Hauschulz v. State, 143 Idaho 462, 147 P.3d 94 (Ct. App. 2006).

Wrongful Death Action.

Where the wrongful death action against the county was grounded in tort, the more specific statute of limitations, the two-year bar of this section, controlled rather than the six-month bar of§ 5-221. Walker v. Shoshone County, 112 Idaho 991, 739 P.2d 290 (1987).

C.J.S.

81A C.J.S., States, § 467 et seq.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Am. Jur. 2d.

57 Am. Jur. 2d, Municipal, School, and State Tort Liability, § 270.

C.J.S.

81A C.J.S., States, § 564 et seq.

Am. Jur. 2d.

57 Am. Jur. 2d, Municipal, County, School, and State Tort Liability, §§ 607, 608.

C.J.S.

81A C.J.S., States, § 564 et seq.

Compiler’s Notes.

The words “this act”, in the first paragraph, refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

The words “this act”, in the second paragraph, refer to S.L. 1978, ch. 272, which is compiled as§§ 6-903, 6-904, 6-909, 6-916, and 6-918A. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Action Dismissed.

District court properly dismissed a negligence complaint against the board of professional discipline of the Idaho state board of medicine, because the claimants failed to serve the summons and complaint upon the Idaho secretary of state as well as the Idaho attorney general within six months after filing the complaint and did not show good cause for their failure to do so. Harrison v. Bd. of Prof’l Discipline of the Idaho State Bd. of Med., 145 Idaho 179, 177 P.3d 393 (2008).

Am. Jur. 2d.

C.J.S.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Application.

Plaintiff’s claim for punitive damages in suit against state tax commission and sheriff for trespassing upon his property and unlawfully seizing his property could not be maintained because it is proscribed by this section. Greenwade v. Idaho State Tax Comm’n, 119 Idaho 501, 808 P.2d 420 (Ct. App. 1991).

In the absence of language in the Idaho human rights act (IHRA) limiting liability against the state, the more specific imposition of liability under IHRA controls over the more general immunity contained in this section; therefore, court found that, in an action under IHRA, this section did not preclude the entry of a punitive damages award against the state. Paterson v. State, 128 Idaho 494, 915 P.2d 724 (1996).

ALR.

§ 6-918A. Attorneys’ fees.

At the time and in the manner provided for fixing costs in civil actions, and at the discretion of the trial court, appropriate and reasonable attorney fees may be awarded to the claimant, the governmental entity or the employee of such governmental entity, as costs, in actions under this act, upon petition therefor and a showing, by clear and convincing evidence, that the party against whom or which such award is sought was guilty of bad faith in the commencement, conduct, maintenance or defense of the action. In no case shall such attorney fee award or any combination or total of such awards, together with other costs and money judgment or judgments for damages exceed, in the aggregate, the limitations on liability fixed by section 6-926, Idaho Code. The right to recover attorney fees in legal actions for money damages that come within the purview of this act shall be governed exclusively by the provisions of this act and not by any other statute or rule of court, except as may be hereafter expressly and specifically provided or authorized by duly enacted statute of the state of Idaho.

History.

I.C.,§ 6-918A, as added by 1978, ch. 272, § 6, p. 630.

Compiler’s Notes.

The words “this act” refer to S.L. 1978, ch. 272, which is compiled as§§ 6-903, 6-904, 6-909, 6-916, and 6-918A. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Application.

Section 12-121, which broadly authorizes a discretionary award of attorney fees “in any civil case,” could not be applied to case brought under the Tort Claims Act since such case was governed by this section, which specifically relates to tort claims. Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct. App. 1983).

To the extent of any conflict between§ 12-121 and this section, the court applies this section. It is not only the later statute, but also a more specific statement of the legislature’s intent about the award of attorney fees in tort claims cases. Tomich v. City of Pocatello, 127 Idaho 394, 901 P.2d 501 (1995). Section§ 12-117 does not provide an exception to the exclusive scope of this section. Block v. City of Lewiston, 156 Idaho 484, 328 P.3d 464 (2014).

Fees Not Awarded.

Attorney fees would not be awarded on appeal of tort claim case where appeal was free of bad faith and judgment from which both sides appealed was upheld in its entirety. Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct. App. 1983).

Contention that this section, when viewed in contrast to§ 12-121, discriminates impermissibly against those tort plaintiffs whose claims lie against a governmental entity rather than against private parties would not be addressed by court where attorney fees in particular case could not have been awarded under either statute because of failure to show that case was defended frivolously or without foundation. Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct. App. 1983).

Although the appeal was taken on dubious grounds, it did not warrant a fee award under this section. Bissett v. Unnamed Members of Political Compact, 111 Idaho 863, 727 P.2d 1291 (Ct. App. 1986).

Because there was no indication that an appeal was pursued frivolously, in bad faith, or without foundation, there was no basis for an award of fees. Jensen v. State, 139 Idaho 57, 72 P.3d 897 (2003).

Where the owners of a cabin sued the county and a county inspector after the owners were issued a building permit from the county indicating that the county building inspector had completed a plan review check sheet, only to find out later that the cabin structure did not meet the snow load requirements, the county and the county inspector were not entitled to recover attorney fees on appeal since there was no evidence that the owners pursued the appeal in bad faith. Nelson v. Anderson Lumber Co., 140 Idaho 702, 99 P.3d 1092 (Ct. App. 2004).

Because there was no indication that the guardians were guilty of bad faith in the commencement, conduct, or maintenance of their action against the county, and indeed, prevailed twice on appeal, there was no basis for an award of attorney fees to the county. O’Guin v. Bingham County, 142 Idaho 49, 122 P.3d 308 (2005).

In corrections officers’ suit based on the disclosure of personal information, where defendants were granted summary judgment, attorney fees were denied on appeal to the officers and defendants because there was no evidence that either party commenced, conducted, maintained, or defended the action in bad faith. Nation v. State, 144 Idaho 177, 158 P.3d 953 (2007).

School district’s request for attorney fees was denied where it could not be said that the teacher pursued the appeal against the district in bad faith. Cordova v. Bonneville County Joint Sch. Dist. No. 93, 144 Idaho 637, 167 P.3d 774 (2007).

In a personal injury action, the student’s parents were not entitled to attorney fees on appeal under this section because there was no showing that the school acted in bad faith, as much of their argument centered around its claim that Idaho law supported a different standard for recklessness than the district court applied, and its argument was not frivolous before the trial court. Hennefer v. Blaine County Sch. Dist. #61, 158 Idaho 242, 346 P.3d 259 (2015).

While a property owner was entitled to costs on appeal as the prevailing party in an action against an irrigation district, it was not entitled to attorney fees, because the owner did not claim attorney fees under this section, which controls the award of attorney’s fees under the Idaho tort claims act. CNW, LLC v. New Sweden Irrigation Dist., 161 Idaho 89, 383 P.3d 1259 (2016). Denial of a request by a police department and police officers for an award of attorneys fees was appropriate, because the police department and the officers did not show by clear and convincing evidence that the claimants acted with bad faith on appeal. Dodge v. Bonners Ferry Police Dep’t, — Idaho —, 450 P.3d 298 (2019).

Not to Displace Idaho R. Civ. P. 11(a)(1).

Not to Displace Idaho R. Civ. P. 11(a)(1).

Idaho R. Civ. P. 11(a)(1) is not a broad compensatory law. It is a court management tool, and the power to impose sanctions under that rule is exercised narrowly, focusing on discrete pleading abuses or other types of litigative misconduct within the overall course of lawsuit; it is not the type of “rule of court” the legislature intended to displace with this section. Kent v. Pence, 116 Idaho 22, 773 P.2d 290 (Ct. App. 1989).

Idaho Law Review.

Idaho Law Review. — Attorney Fee Awards in Idaho: A Handbook, Comment. 52 Idaho L. Rev. 583 (2016).

Am. Jur. 2d.

C.J.S.

81A C.J.S., States, § 564 et seq.

Compiler’s Notes.

The bracketed insertions in the section heading and in the first sentence were added by the compiler to correct the referenced agency’s name. See https://adm.idaho.gov/insurance-and-internal-support/risk-management-program .

ALR.

§ 6-920. Liability insurance for state procured by division of insurance management [office of insurance management].

No state agency or institution other than the administrator of the division of insurance management [office of insurance management] in the department of administration may procure liability insurance under this act. All state agencies and institutions shall comply with this act and the comprehensive liability plan developed by the administrator of the division.

History.

1971, ch. 150, § 20, p. 743; am. 1974, ch. 34, § 10, p. 988; am. 1974, ch. 252, § 8, p. 1674; am. 1976, ch. 310, § 2, p. 1069; am. 1980, ch. 106, § 2, p. 231.

Compiler’s Notes.

The bracketed insertions in the section heading and in the first sentence were added by the compiler to correct the referenced agency’s name. See https://adm.idaho.gov/insurance-and-internal-support/risk-management-program .

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Insurance for Federal Government.

Absent the consent of the director of the department of administration and the purchase of private liability insurance by the division of insurance management, the Idaho department of fish and game is not authorized to provide a private policy of insurance for the benefit of the United States.OAG 2019-1.

Compiler’s Notes.

The bracketed insertion in the text was added by the compiler to correct the referenced agency’s name. See https://adm.idaho.gov/insurance-and-internal-support/risk-management-program .

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Effective Dates.

Section 15 of S.L. 1974, ch. 34 provided that the act should be in full force and effect on and after July 1, 1974.

Section 15 of S.L. 1974, ch. 252 provided the act should be in full force and effect on and after July 2, 1974.

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

State’s Right to Subrogation.

The state did not pay state university’s debt to plaintiffs in a lawsuit as a mere volunteer, but in order to protect the state’s assets in the state general fund; thus, the district court did not err in concluding that the state was entitled to equitable subrogation against university’s insurer. State & Idaho State Univ. v. Continental Cas. Co., 126 Idaho 178, 879 P.2d 1111 (1994).

Am. Jur. 2d.

C.J.S.

ALR.

Validity and construction of statute authorizing or requiring governmental unit to procure liability insurance covering public officers or employees for liability arising out of performance of public duties. 71 A.L.R.3d 6.

Scope of provision in liability policy issued to municipal corporation or similar governmental body limiting coverage to injuries arising out of construction, maintenance, or repair work. 30 A.L.R.5th 699.

Effective Dates.

Section 4 of S.L. 1984, ch. 96 read: “This act shall be in full force and effect on and after October 1, 1984, and shall apply to all claims under the Idaho tort claims act which arise out of any accident occurring or any negligent or wrongful act or omission of any governmental entity or its employee committed on and after October 1, 1984.”

No Bearing on Maximum Liability.

Since this section did not set out a maximum liability limit, but rather a minimum threshold, insurance policy which referred to this section in its liability limit clause was not bound to use the amount as it’s maximum liability, but rather the liability amount actually purchased. Ferguson v. Coregis Ins. Co., 527 F.3d 930 (9th Cir. 2008).

Compiler’s Notes.

Pursuant to§ 41-203, the reference to the insurance commissioner in the last sentence should be construed to mean the director of the department of insurance.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Prior Laws.

Former§ 6-926 which comprised S.L. 1971, ch. 150, § 26, p. 743; am. 1976, ch. 309, § 15, p. 1062; am. 1976, ch. 310, § 6, p. 1069, was repealed by S.L. 1978, ch. 272, § 1.

Another former§ 6-926, which comprised I.C.,§ 6-926, as added by 1978, ch. 272, § 7, p. 630, was repealed by S.L. 1984, ch. 96, § 2, effective October 1, 1984.

Amendments.

The 2011 amendment, by ch. 197, added the subsection designations and added the present second sentence in subsection (2).

Compiler’s Notes.

The words “this act” in subsection (5) refer to S.L. 1984, ch. 96, which is compiled as§§ 6-924 and 6-926. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Effective Dates.

Section 4 of S.L. 1984, ch. 96 read: “This act shall be in full force and effect on and after October 1, 1984, and shall apply to all claims under the Idaho tort claims act which arise out of any accident occurring or any negligent or wrongful act or omission of any governmental entity or its employee committed on and after October 1, 1984.”

Applicability.

In suit involving injuries received in Idaho by a third party pursuant to a high speed chase initiated in Utah, Idaho liability limits applied to Utah sheriff and the Utah county that employed him, since he was acting as a servant of Idaho at the time the injuries occurred. Athay v. Stacey, 142 Idaho 360, 128 P.3d 897 (2005).

Constitutionality.

The $100,000 recovery limitation under the Idaho Tort Claims Act was not unconstitutional on its face or as applied to recovery by parents of child killed by school bus since fair and substantial relationship existed between the limitation, upon which the school district based its insurance coverage, and the legislative objective of conserving public funds. Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct. App. 1983) (recovery limit now $500,000).

In General.

Prior to the abrogation of the sovereign immunity doctrine, generally no right of recovery against the state existed; the right to recover from the state is statutory. Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983).

Legislative Intent.

Since the legislative history of former similar statute indicated that the legislature was aware that it was establishing a classification and did so deliberately and not as a result of accident or ignorance, it was logical to infer from the legislative intent to enact the recovery limitation and the state’s purported objective to protect the public coffers, which was a reasonably conceived objective, that the recovery limitation had a rational basis and the recovery limitations of the section were not unconstitutional. Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983).

The language of the 1978 amendments to former section, which was not a response to judicial interpretation and appeared to reflect the then existing practice, seemed to clearly reveal that legislative intent at all times was simply to place a cap on the state’s liability rather than to prevent a plaintiff from demonstrating all items and amounts of damage which may have been suffered. Barringer v. State, 111 Idaho 794, 727 P.2d 1222 (1986).

Recovery Limitation.

Former similar provision did not permit a recovery of up to $300,000 to any one person where more than one person was making a claim. From the language of the statute and its legislative history, it was clear that the legislature intended to limit recovery to one person arising from personal injury or death to $100,000 unless the governmental entity had secured insurance coverage in excess of that amount. Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983) (recovery limit now $500,000).

Under former similar statute there existed a valid relationship between the limitation on recoveries against the state and the avowed purpose of the statute which was to protect the public coffers. Leliefeld v. Johnson, 104 Idaho 357, 659 P.2d 111 (1983).

The recovery limitation under the Idaho Tort Claims Act may reflect two legislative purposes: (a) providing for effective risk management by public entities and their insurers, and (b) protecting the public coffers; these are legitimate, important state objectives. The first objective — risk management — does not favor any particular recovery limitation, but rather, it simply requires that recovery be restricted at some finite level so that risk exposure can be projected and informed underwriting decisions can be made; however, the second objective — conserving public funds — appears on its face to be directly related to the recovery limitation level selected since the greater the maximum allowable recovery, the greater annual expenditure must be made upon insurance premiums by the state and those political subdivisions which are not self-insured. Packard v. Joint Sch. Dist. No. 171, 104 Idaho 604, 661 P.2d 770 (Ct. App. 1983). The $100,000 limitation in former law for “personal injury or death of any person” referred to the person injured or killed, and not the person claiming compensation as an heir; therefore, the limit of liability of the state as a result of any wrongful death of the decedent was $100,000, and that $100,000 limitation was not increased or altered by the fact the decedent left surviving him more than one person entitled to make claim therefor. Barringer v. State, 111 Idaho 794, 727 P.2d 1222 (1986) (recovery limit now $500,000).

Compiler’s Notes.

The words “this act” refer to S.L. 1971, ch. 150, which is compiled as§§ 6-901, 6-902, 6-904, 6-905, 6-906, 6-907 to 6-918, 6-919 to 6-925, 6-927, and 6-928. Probably, the reference should be to “this chapter,” being chapter 9, title 6, Idaho Code.

Cross References.

Medical Practice Act,§ 54-1801 et seq.

State board of medicine,§ 54-1805.

Amendments.

The 2015 amendment, by ch. 141, substituted “chapter 1, title 74” for “chapter 3, title 9” in the next-to-last sentence.

Legislative Intent.

Section 1 of S.L. 1976, ch. 278, read: “It is the declaration of the legislature that appropriate measures are required in the public interest to assure that a liability insurance market be available to physicians and hospitals in this state and that the same be available at reasonable cost, thus assuring the availability of such health care providers for the provision of care to persons in this state. It is, therefore, further declared to be in the public interest to encourage nonlitigation resolution of claims against physicians and hospitals by providing for prelitigation screening of such claims by a hearing panel as provided in this act.”

Compiler’s Notes.

The words “this act” in the next-to-last sentence refer to S.L. 1976, ch. 278, compiled as§§ 6-1001 to 6-1011.

Filing.

While filing with the prelitigation screening panel pursuant to this section is a condition precedent to proceeding with district court litigation, such as filing interrogatories or setting trial dates, it is not a condition precedent to filing an action in order to toll the statute of limitations; therefore, there was no error in the district court’s decision to stay the proceedings pursuant to§ 6-1006 instead of dismissing where the plaintiff’s malpractice complaint was filed within the two year limitation period, but her request for a prelitigation screening panel was filed after the running of the limitation period. Moss v. Bjornson, 115 Idaho 165, 765 P.2d 676 (1988).

Limitations Period.

Family’s medical malpractice suit against a hospital and doctors was properly dismissed as they failed to seek a stay until the prelitigation screening panel rendered its opinion and failed to effect service within six months pursuant to Idaho R. Civ. P. 4(a)(2). Rudd v. Merritt (In re Estate of Rudd), 138 Idaho 526, 66 P.3d 230 (2003).

Preemption.

The medical malpractice prelitigation statutes do not preempt application of the Idaho Tort Claims Act because both statutes are specific and serve different purposes. Mitchell v. Bingham Mem. Hosp., 130 Idaho 420, 942 P.2d 544 (1997).

Am. Jur. 2d.

ALR.

Medical Malpractice in Diagnosis and Treatment of Cancer of Female Reproductive System. 93 A.L.R.6th 123.

Medical Malpractice in Diagnosis and Treatment of Lung Cancer. 94 A.L.R.6th 431.

Medical Malpractice in Diagnosis and Treatment of Colorectal Cancer. 95 A.L.R.6th 541.

Medical Malpractice in Diagnosis and Treatment of Cancer of Male Reproductive System. 96 A.L.R.6th 503.

Cross References.

Board of commissioners of Idaho state bar,§ 3-401 et seq.

Cross References.

Malpractice, statute of limitations,§ 5-219.

Compiler’s Notes.

The bracketed word “be” was inserted by the compiler.

Action Barred.

Family’s medical malpractice suit against a hospital and doctors was properly dismissed as they failed to seek a stay until the prelitigation screening panel rendered its opinion and failed to effect service within six months pursuant to Idaho R. Civ. P. 4(a)(2). Rudd v. Merritt (In re Estate of Rudd), 138 Idaho 526, 66 P.3d 230 (2003).

Action Not Barred.

The plaintiff’s medical malpractice action was not time barred, where the panel held hearings within 90 days from the date the claim was filed with the state board of medicine, but the panel did not reach a decision within 90 days, there was no evidence that the panel was unable to decide the issues before it or that the panel ever summarily concluded the proceedings, and the plaintiff filed her claim in district court within 30 days of the filing of the panel’s decision. James v. Buck, 111 Idaho 708, 727 P.2d 1136 (1986).

Additional 30-Day Limitation.

The date of filing of the panel’s decision and recommendations with the state board of medicine establishes the start of the additional 30-day tolling of the statute of limitations contemplated by the legislative scheme; if the panel is unable to decide the issues before it within 90 days, and it summarily concludes the proceedings, the date of filing a summary conclusion so advising the board of medicine and the parties shall be the date from which the additional 30 days of tolling will begin to run. James v. Buck, 111 Idaho 708, 727 P.2d 1136 (1986).

Action Barred.

Family’s medical malpractice suit against a hospital and doctors was properly dismissed as they failed to seek a stay until the prelitigation screening panel rendered its opinion and failed to effect service within six months pursuant to Idaho R. Civ. P. 4(a)(2). Rudd v. Merritt (In re Estate of Rudd), 138 Idaho 526, 66 P.3d 230 (2003).

Filing.

While filing with the prelitigation screening panel pursuant to§ 6-1001 is a condition precedent to proceeding with district court litigation, such as filing interrogatories or setting trial dates, it is not a condition precedent to filing an action in order to toll the statute of limitations; therefore, there was no error in the district court’s decision to stay the proceedings, pursuant to this section instead of dismissing where the plaintiff’s malpractice complaint was filed within the two year limitation period, but her request for a prelitigation screening panel was filed after the running of the limitation period. Moss v. Bjornson, 115 Idaho 165, 765 P.2d 676 (1988).

This section only provides for a stay of court proceedings while the matter is pending before the prelitigation screening panel and for thirty days thereafter: it does not prevent a party from accomplishing service of process during that period. Taylor v. Chamberlain, 154 Idaho 695, 302 P.3d 35 (2013).

Amendments.

The 2015 amendment, by ch. 141, substituted “chapter 1, title 74” for “chapter 3, title 9” in the first sentence.

Amendments.

The 2015 amendment, by ch. 141, substituted “chapter 1, title 74” for “chapter 3, title 9” in the last sentence.

Effective Dates.

Section 111 of S.L. 1990, ch. 213 as amended by § 16 of S.L. 1991, ch. 329 provided that §§ 3 through 45 and 48 through 110 of the act should take effect July 1, 1993 and that §§ 1, 2, 46 and 47 should take effect July 1, 1990.

Action Not Barred.

The plaintiff’s medical malpractice action was not time-barred, where the panel held hearings within 90 days from the date the claim was filed with the state board of medicine, but the panel did not reach a decision within 90 days, there was no evidence that the panel was unable to decide the issues before it or that the panel ever summarily concluded the proceedings, and the plaintiff filed her claim in district court within 30 days of the filing of the panel’s decision. James v. Buck, 111 Idaho 708, 727 P.2d 1136 (1986).

Additional 30-Day Limitation.

The date of filing of the panel’s decision and recommendations with the state board of medicine establishes the start of the additional 30-day tolling of the statute of limitations contemplated by the legislative scheme; if the panel is unable to decide the issues before it within 90 days, and it summarily concludes the proceedings, the date of filing a summary conclusion so advising the board of medicine and the parties shall be the date from which the additional 30 days of tolling will begin to run. James v. Buck, 111 Idaho 708, 727 P.2d 1136 (1986).

Commencement of Proceedings.

Termination of Jurisdiction.

The term “commencement of proceedings” in the second sentence of this section refers to the filing of a claim by an injured party. James v. Buck, 111 Idaho 708, 727 P.2d 1136 (1986). Termination of Jurisdiction.

In order for the panel’s jurisdiction to be terminated, the panel file a report or it must find itself unable to decide the issues before it and summarily conclude the proceedings. James v. Buck, 111 Idaho 708, 727 P.2d 1136 (1986).

Legislative Intent.

Compiler’s Notes.

The words “this act” refer to S.L. 1976, ch. 277, compiled as§§ 6-1012 and 6-1013.

Attorney Fees on Appeal.

Where evidence suggested strongly that plaintiff herself believed the accident was covered by this section and it was not until she was left without an expert to support her position that she developed the theory — a theory which goes against the clear and unambiguous language of the statute and a theory for which plaintiff cannot find support for in any language in the statute, its legislative history, or Idaho case law — that she now presents on appeal, the court found such appeal frivolous, unreasonable and without foundation and awarded reasonable attorney fees to the respondents. Hough v. Fry, 131 Idaho 230, 953 P.2d 980 (1998).

Burden on Claimants.

Even assuming that utilization of res ipsa loquitur is now precluded by the statutory language of this section which states that in a claim for damages in a medical malpractice action, the “plaintiff must, as an essential part of his or her case in chief, affirmatively prove by direct expert testimony . . .,” this section did not retroactively change the burden on plaintiffs in a malpractice action involving an unsuccessful inner ear operation since the doctrine of res ipsa loquitur would not apply to such case even under the prior case law. LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980).

Under this section, plaintiff suing for malpractice had to affirmatively prove by direct expert testimony and by a preponderance of all the competent evidence that the defendant physician negligently failed to meet the applicable standard of health care practice of the community in which the care was provided at the time that care was given. Bolen v. United States, 727 F. Supp. 1346 (D. Idaho 1989).

This section requires a plaintiff bringing a medical malpractice claim to prove, by direct, competent expert testimony and by a preponderance of the evidence, that the defendant negligently failed to meet the applicable standard of health care practice. Ballard v. Kerr, 160 Idaho 674, 378 P.3d 464 (2016).

Causation.

Unlike the elements of duty and breach of duty, there is no statutory requirement explicitly stating that proximate cause in medical malpractice cases must be shown by direct expert testimony; therefore, testimony admissible to show proximate cause in a medical malpractice case, like any other case, is governed by the rules of evidence regarding opinion testimony by lay witnesses and experts under Idaho Evid. R. 701 and 702. Sheridan v. Saint Luke’s Reg’l Med. Ctr., 135 Idaho 775, 25 P.3d 88 (2001).

Although expert testimony is not expressly required to establish causation in medical malpractice cases, such testimony is often necessary given the nature of the cases. Expert testimony is generally required because the causative factors are not ordinarily within the knowledge or experience of laymen composing the jury. Easterling v. Kendall, 159 Idaho 902, 367 P.3d 1214 (2016).

Community.

The term “community” refers to that geographical area ordinarily served by the licensed general hospital at or nearest to which such care was, or allegedly should have been, provided. Ballard v. Kerr, 160 Idaho 674, 378 P.3d 464 (2016).

Rather than choosing to define community by means of distance from the nearest licensed general hospital, in this section, the legislature chose to define community by reference to the locations from which the patient base of the hospital is derived. Ballard v. Kerr, 160 Idaho 674, 378 P.3d 464 (2016).

Constitutionality.

This section and§ 6-1013, in establishing a standard of medical care based on the local community, do not create a classification which rests on grounds wholly irrelevant to the achievement of the state’s objective and, therefore, such statutes do not violate the equal protection clause of either the United States Constitution or the Idaho Constitution. LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980). This section and§ 6-1013 did not retroactively establish a different burden of proof that must be met to sustain an action for medical malpractice, thereby violating Idaho Const., Art. XI, § 12, by providing: (1) that the standard of practice and the failure of the medical person to meet the standard must be established by expert testimony and (2) that the standard of care shall be that of the local community, since both were the standards before the enactment of the statutes; the legislature merely codified already existing case law. LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980).

Requiring that medical malpractice plaintiffs establish a violation of the local standard of medical care as part of their prima facie case does not violate the due process requirements of either the Idaho or United States constitutions. Gubler ex rel. Gubler v. Brydon, 125 Idaho 107, 867 P.2d 981 (1994).

Discovery Documents.

The foundational requirements of§ 6-1013 and this section apply to the admissibility of expert witness testimony for trial, not to disclosures in the discovery stages of a case. Lepper v. E. Idaho Health Servs., 160 Idaho 104, 369 P.3d 882 (2016).

Doctrine of Informed Consent.

To establish a claim based on the doctrine of informed consent, a patient must prove three basic elements: nondisclosure, causation and injury. In order to show causation, the patient must prove that if he had been informed of the material risks, he would not have consented to the procedure, and that he had been injured as a result of submitting to the medical procedure. Sherwood v. Carter, 119 Idaho 246, 805 P.2d 452 (1991), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., — Idaho —, — P.3d —, 2011 Ida. LEXIS 149 (Nov. 9, 2011).

Effect of § 39-1391c.

By enacting§ 39-1391c the legislature was simply trying to encourage doctors of all specialties and trainings to render emergency medical care and first aid services; it was not attempting to affect or change the standard of care of liability of physicians in the ordinary doctor/patient relationship, which is governed by§ 6-1013 and this section. Eby ex rel. Eby v. Newcombe, 116 Idaho 838, 780 P.2d 589 (1989).

Evidence.

Under this section and§ 6-1013 there must be evidence not only on the standard of care, but also on the technology and medical resources available in a particular community. Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985), overruled on other grounds, Samples v. Hanson, — Idaho —, 384 P.3d 943 (2016).

Where in opposition to defendants’ motions for summary judgment in a medical malpractice action plaintiffs submitted two affidavits of physicians, both practicing outside the state that the surgery should have been postponed and that it was a departure from optimal patient care to not postpone an elective surgery under such circumstances, neither affidavit demonstrated any knowledge of the applicable standard of care in the local community and was wholly insufficient to satisfy the burden of plaintiffs at the summary judgment juncture in a medical malpractice action. Dekker v. Magic Valley Regional Medical Ctr., 115 Idaho 332, 766 P.2d 1213 (1988).

This section requires as an essential part of plaintiffs’ case, affirmative proof that defendant failed to meet the applicable standard of health care practice in the community in which the care was, or should have been, provided. Health care providers are to be judged in comparison with similarly trained and qualified providers of the same class in the same community. Dekker v. Magic Valley Regional Medical Ctr., 115 Idaho 332, 766 P.2d 1213 (1988). Summary judgment in a medical malpractice suit was properly granted in favor of the defendant hospital where the record established that, during thoracic surgery, hospital personnel met the applicable standard of care for measuring urinary output when a nurse measured the output every one-quarter hour during the critical cross-clamping phase of the surgery and verbally announced the measurements every time they registered zero and where the plaintiffs were only able to put into the record that the surgeons did not remember the audible announcement. Sparks v. St. Luke’s Regional Medical Ctr., Ltd., 115 Idaho 505, 768 P.2d 768 (1988).

Summary judgment in a medical malpractice suit was properly granted in favor of defendant hospital where the record established that the standard of care applicable to hospital personnel regarding a ventilator extubation was simply to follow the attending physician’s orders and that the standard was met, and where plaintiffs’ primary witness recognized that the standard of care was met but criticized the staff for not going beyond their authority by questioning the attending doctor’s orders. Sparks v. St. Luke’s Regional Medical Ctr., Ltd., 115 Idaho 505, 768 P.2d 768 (1988).

Subsection (7) of§ 54-1814 is not unconstitutionally vague on its face, even though the board of professional discipline has not promulgated any regulations to further define or explain it. The language is similar to the well-accepted definition of medical malpractice contained in this section and is a codification of existing case law and, therefore, was sufficient to notify medical practitioners that they could be disciplined for failure to conform to the community standards; moreover, finding that physician had violated existing community standards came directly from the board which is comprised of members of the medical community who possess the expertise born of personal knowledge and experience, the utilization of which in the evaluation of evidence is specifically permitted by§ 67-5251. Krueger v. Board of Professional Discipline, 122 Idaho 577, 836 P.2d 523 (1992), cert. denied, 507 U.S. 918, 113 S. Ct. 1277, 122 L. Ed. 2d 672 (1993).

In malpractice suit against optometrist, testimony of ophthalmologist that was insufficient to comply with this section and§ 6-1013 since ophthalmologist professed to have no knowledge of the community standard of care with respect to the practice of optometry. Evans v. Griswold, 129 Idaho 902, 935 P.2d 165 (1997).

In medical malpractice action, where local doctor testified as to the standard of care in the relevant community at the time of defendant’s alleged malpractice and, thus, the local standard of care was determinable, court did not err in not allowing plaintiff to establish the standard of care by reference to the standard in similar communities. Morris ex rel. Morris v. Thomson, 130 Idaho 138, 937 P.2d 1212 (1997).

Section 6-1013 did not modify the portion of this section which permits plaintiffs to refer to the standard of care in similar communities when the standard of care in the same community is indeterminable. Morris ex rel. Morris v. Thomson, 130 Idaho 138, 937 P.2d 1212 (1997).

Expert Witness.

Although this section requires a plaintiff, as part of his case in chief, to obtain an expert to testify as to the standard of health care, obtaining this expert is not a prerequisite to the filing of an action. It is only in the plaintiff’s case in chief, or in opposition to a summary judgment motion, if one is filed, that the plaintiff must produce such expert. Badell v. Beeks, 115 Idaho 101, 765 P.2d 126 (1988). Since§ 6-1013 requires an expert witness to possess professional knowledge and expertise coupled with actual knowledge of the applicable community standard, and because the phrase “coupled with” denotes a contemporaneous relationship, awareness of the standard must exist when the expert testimony is given; if contemporaneous awareness is not demonstrated, the expert’s testimony is subject to being excluded or stricken at trial, and such evidence is not entitled to evidentiary weight in summary judgment proceedings. Kunz v. Miciak, 118 Idaho 130, 795 P.2d 24 (Ct. App. 1990).

It was not established through the plaintiff’s expert testimony or the defendant/physician that defendant was aware of the bladder infection or that it was a violation of the standard of care for him not to be aware of these facts under the circumstances. Gubler v. Boe, 120 Idaho 294, 815 P.2d 1034 (1991).

There was no basis for a claim that the district court abused its discretion in denying the plaintiffs’ motion for a continuance where the plaintiffs had ample time prior to trial to prepare their witness regarding the local community standard of care, the trial court allowed one limited continuance, and plaintiffs had additional opportunity during recesses to contact other doctors to qualify their expert during the course of the trial. Gubler v. Boe, 120 Idaho 294, 815 P.2d 1034 (1991).

The district court erred by striking plaintiff’s expert’s testimony that the local standard of care was violated when doctor failed to determine that fetus was a macrosomic baby which could have been accomplished by the use of ultrasound or biophysical testing. Kozlowski v. Rush, 121 Idaho 825, 828 P.2d 854 (1992).

Expert witness physician’s affidavits did not comply with this rule because they did not affirmatively show that he possessed the professional knowledge and expertise to testify to the hospital’s standard of care, as affidavits did not state he was trained as hospital administrator or experienced in hospital management. Dunlap ex rel. Dunlap v. Garner, 127 Idaho 599, 903 P.2d 1296 (1995).

It is sufficient for out-of-state expert to gain the requisite familiarity with the standards of the community by conferring with local authorized personnel and stating that the standard did not deviate from the national standard. Dunlap ex rel. Dunlap v. Garner, 127 Idaho 599, 903 P.2d 1296 (1995).

The sworn statements of expert witness physician taken as true were sufficient to qualify him to express an expert opinion relative to the local area standard of care that was applicable and whether it was or was not adhered to by treating physician for purposes of summary judgment and the district court determination that expert witness physician’s testimony was not admissible for purposes of summary judgment was in error. Dunlap ex rel. Dunlap v. Garner, 127 Idaho 599, 903 P.2d 1296 (1995).

This section should not be read to require expert testimony every time a provider of medical care is sued for negligence. There are circumstances where the alleged act of negligence is so far removed or unrelated to provision of medical care that this section would not apply. Hough v. Fry, 131 Idaho 230, 953 P.2d 980 (1998).

Summary judgment on the issue of causation in the patient’s medical malpractice claim was improperly granted to doctors where the plaintiff’s expert’s affidavit created a genuine issue of material fact regarding negligent performance of surgery. Anderson v. Hollingsworth, 136 Idaho 800, 41 P.3d 228 (2001). Court properly found that patient had not laid adequate foundation for testimony of a medical expert in a malpractice action against an emergency room doctor where the patient’s expert did not know the appropriate standard of care for emergency room doctors. Dulaney v. St. Alphonsus Reg’l Med. Ctr., 137 Idaho 160, 45 P.3d 816 (2002).

This section required that direct expert testimony was necessary to establish the community standard of health care in a medical or dental malpractice action, and the affidavits of a patient’s expert should have been admitted because they met the requirements of Idaho R. Civ. P. 56(e). Grover v. Smith, 137 Idaho 247, 46 P.3d 1105 (2002).

In medical malpractice action, summary judgment was improperly granted to doctor. Trial court improperly disregarded plaintiff’s expert’s supplemental affidavit regarding his familiarity with the local standard of care even though affidavit possibly conflicted with his earlier deposition testimony. Mains v. Cach, 143 Idaho 221, 141 P.3d 1090 (2006).

The admissibility of expert testimony is a matter committed to the discretion of the trial court, and the court’s ruling will not be overturned absent an abuse of that discretion. The sequence of inquiry to determine if there has been an abuse of discretion is: (1) whether the court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the applicable legal standards; and (3) whether the court reached its decision by an exercise of reason. Jones v. Crawforth, 147 Idaho 11, 205 P.3d 660 (2009).

Opinions of expert witnesses are allowable when it is the community standard of care that is the focus of their testimony. The district court properly allowed two experts to testify as to what conduct they would characterize as reaching a level of negligence that they saw as reckless. This testimony was permissible because (1) the experts had acquainted themselves adequately with the community standard for health care providers, and (2) their opinions as to the level of negligence of specific actions of a health care provider were not conclusions that the average juror would be qualified to draw. Jones v. Crawforth, 147 Idaho 11, 205 P.3d 660 (2009).

In a medical malpractice action, an expert witness must show that he or she is familiar with the local standard of care for the relevant timeframe and specialty and must also state how he or she became familiar with that standard of care. Suhadolnik v. Pressman, 151 Idaho 110, 254 P.3d 11 (2011).

Award of exceptional expert witness fees was not proper where the only reason given by the court to justify exceptional fees was that the case required experts on the vasuclar system to travel and testify. Such specialized knowledge and expert testimony of the witnesses was of a type required in every malpractice case. Nightengale v. Timmel, 151 Idaho 347, 256 P.3d 755 (2011).

Summary judgment was properly awarded to a chiropractor in a patient’s medical malpractice action because the patient’s expert, who was from California, could not testify that the expert knew the local standard of care in Idaho; throughout the expert’s deposition, the expert repeatedly illustrated a lack of knowledge regarding the applicable standard of care. Arregui v. Gallegos-Main, 153 Idaho 801, 291 P.3d 1000 (2012).

Patient’s expert’s affidavit lacked proper foundation and failed to satisfy the requirements of§ 6-1013 and this section, because the affidavit failed to demonstrate the witness’ familiarity with the community standard of care at the time of the incident about which he was to testify. Hall v. Rocky Mt. Emergency Physicians, LLC, 155 Idaho 322, 312 P.3d 313 (2013). District court did not abuse its discretion in a negligence action by refusing to admit the expert testimony of the claimants’ out-of-area doctor as to the local community standard of care in the administration of anesthesia services because: (1) the doctor’s conversation with the associate director of the Idaho state board of nursing was not sufficient to show that the doctor had acquired actual knowledge of the local standard of care; and (2) the statewide and national standards cited by the doctor had not replaced the local standard of care. Navo v. Bingham Mem’l Hosp., 160 Idaho 363, 373 P.3d 681 (2016).

District court erred in holding that a patient was shielded from disclosing the identity of a non-testifying medical expert (who had been consulted by a testifying expert to familiarize the testifying expert with the applicable local standard of care), because, while nothing in§ 6-1013 or this section required the disclosure of the identity of the non-testifying expert as part of the foundation for the testifying expert’s testimony, the identity of the non-testifying expert was discoverable under Idaho Civil Rule 26. The doctor had a legitimate interest in knowing who the non-testifying expert was so that he could prepare his defense, and secreting the identity of the non-testifying expert is incompatible with Idaho’s system of justice. Quigley v. Kemp, 162 Idaho 408, 398 P.3d 141 (2017).

District court abused its discretion by striking plaintiffs’ out-of-area expert testimony, where the expert demonstrated the requisite actual knowledge of the local standard of care after being familiarized with such by two local psychiatrists. Phillips v. E. Idaho Health Servs., — Idaho —, 463 P.3d 365 (2020).

Health Care Provider.

A cell saver technician is a health care provider under this section and, therefore, her liability must be based upon the community health care standard provided for in this section. Jones v. Crawforth, 147 Idaho 11, 205 P.3d 660 (2009).

Hospital Liability.

The hospital could not be liable for any malpractice of the physician unless the physician acted as an employee and could be negligent only for acts or omissions of its agents and employees. Keyser v. St. Mary’s Hosp., 662 F. Supp. 191 (D. Idaho 1987).

Hospital could be found vicariously liable for the negligence of an independently contracted cell saver technician under Idaho’s doctrine of apparent agency. The extension of apparent agency to medical malpractice claims is consistent with the provision for vicarious liability set forth in this section. Jones v. Healthsouth Treasure Valley Hosp., 147 Idaho 109, 206 P.3d 473 (2009).

Indeterminable Standard.

In General.

Because defendant doctor was one of only six cardiovascular surgeons in the state of Idaho and all six of these cardiovascular surgeons practiced together in Boise as a professional association, the standard of health care practice in the community ordinarily served by hospital was indeterminable and no “similar Idaho communities” existed about which plaintiff could have presented evidence of the standard of practice for a cardiovascular surgeon performing patent ductus arteriosus surgery; therefore, this section and§ 6-1013 did not provide a means of establishing the applicable standard of practice in this case; in resolving whether out-of-state doctor qualified as an expert witness to testify on plaintiff’s behalf, the court turned to decisions predating the enactment of this section and§ 6-1013. Hoene v. Barnes, 121 Idaho 752, 828 P.2d 315 (1992). In General.

There is nothing in the Idaho Medical Malpractice Act,§§ 6-1001 to 6-1014, that suggests that the common-law causes of action that predated passage would be eliminated. There is nothing in the act itself to suggest various causes of action were being eliminated or merged into a single cause of action for malpractice. The difference between negligence and malpractice is a matter of degree. If an individual, through carelessness or disregard, commits or omits to perform a certain act or duty upon or directed towards another, he is said to be negligent. When the negligence arises out of a relationship between a layman and a professional and is directly attributable to the professional care, treatment, advice, representation, services, or conduct, negligence is transmuted into malpractice. Eldridge v. West, — Idaho —, 458 P.3d 172 (2020).

The medical malpractice act does not categorically supplant all common-law causes of action. Instead, the analysis should be whether the cause of action alleges damages that arise out of the “account of the provision of or failure to provide health care.” If so, the plaintiff must comply with the expert testimony requirements stated in§ 6-1013 and this section. Eldridge v. West, — Idaho —, 458 P.3d 172 (2020).

This section only applies to claims that sound in negligence. The elements of a cause of action for intentional infliction of emotional distress are significantly different from a case of ordinary negligence. For example, it requires proof that the conduct was “intentional or reckless” and “extreme and outrageous.” Eldridge v. West, — Idaho —, 458 P.3d 172 (2020).

Instructions.

In a medical malpractice action, the instruction which stated that the performance of a board-certified specialist physician is to be measured against the local community standard was not erroneous. Grimes v. Green, 113 Idaho 519, 746 P.2d 978 (1987).

The combination of instructions on negligence was proper, where it sufficiently informed the jury of the legal standard contained in this section. Smallwood v. Dick, 114 Idaho 860, 761 P.2d 1212 (1988).

The given instructions in a medical malpractice action were based upon the legislative standards set forth in this section, and, accordingly, there was no error committed by the trial court in the instructions given or in refusing appellants’ requested negligence instructions. Robertson v. Richards, 115 Idaho 628, 769 P.2d 505 (1989).

The fact that the instructions did not follow the exact language of this section and erroneously defined “community” for the purpose of determining whether the physician’s disclosures were adequate did not result in prejudice to plaintiff, and although not technically correct, the instructions did not constitute reversible error. Sherwood v. Carter, 119 Idaho 246, 805 P.2d 452 (1991), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., — Idaho —, — P.3d —, 2011 Ida. LEXIS 149 (Nov. 9, 2011).

A former Idaho Jury Instruction 230 correctly stated the proper proximate cause instruction under the circumstances of this case; therefore, in an action for medical malpractice when there is evidence of two or more causes that contributed to the damage suffered, for only one of which the doctor is responsible, the proper proximate cause instruction should instruct the jury that any negligence of the doctor was a proximate cause of the injury if it was a substantial factor in bringing about the damage, and the supreme court specifically rejected the inclusion of an instruction under these circumstances requiring the claimant to prove that the injury would not have occurred “but for” the doctor’s negligence. Fussell v. St. Clair, 120 Idaho 591, 818 P.2d 295 (1991). By enacting this section, the legislature replaced the applicable standard of care then in effect with a new standard and, pursuant to this new standard, the jury instruction given by the court inaccurately stated the applicable Idaho Law by incorporating “best judgment” in the standard of care for medical malpractice. Leazer v. Kiefer, 120 Idaho 902, 821 P.2d 957 (1991).

In malpractice action, district court properly instructed the jury regarding the standard of care in medical malpractice cases where the language of the instruction mirrored the language of this section and the portion of the instruction limiting the consideration of the standard of care in similar communities to situations in which the local standard within the community is indeterminable was correct. Morris ex rel. Morris v. Thomson, 130 Idaho 138, 937 P.2d 1212 (1997).

The wording “all competent evidence” is a legally sufficient instruction in a medical malpractice claim. Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 995 P.2d 816 (2000).

In medical malpractice action, district court did not err in refusing defendant doctor’s proferred standard of care instruction; reviewing court declined to address whether proferred instruction was erroneous, since instructions actually given by trial court adequately covered the requisite elements. Puckett v. Verska, 144 Idaho 161, 158 P.3d 937 (2007).

In a medical malpractice action, the trial court did not err in declining to give plaintiffs’ proposed instruction on negligence per se because the instruction was an erroneous statement of law; the instruction that the trial court gave properly and adequately stated the statutory requirements for proving negligence. Schmechel v. Dille, 148 Idaho 176, 219 P.3d 1192 (2009).

Knowledge of Community Standard.

Because there was no indication that expert inquired of a local doctor, and plaintiff did not state that the local standard of care was the same as the national standard, there was not sufficient foundation in expert’s affidavit to show that expert had actual knowledge of the applicable community standard. Rhodehouse v. Stutts, 125 Idaho 208, 868 P.2d 1224 (1994).

While it may be acceptable for an expert to demonstrate knowledge of a local standard of care by reviewing deposition testimony, that testimony must clearly articulate the local standard for the particular time, place and specialty at issue in order to meet the foundational requirements of§ 6-1013. Suhadolnik v. Pressman, 151 Idaho 110, 254 P.3d 11 (2011).

District court abused its discretion in holding that a patient and wife did not lay an adequate foundation to admit an expert surgeon’s testimony, where the surgeon’s affidavit established that he had replaced another doctor as general surgeon at the medical facility a mere 22 months after the incident at issue, had fully reviewed the files regarding the care provided to the patient, and had familiarized himself with the applicable, community standard of care. Samples v. Hanson, 161 Idaho 179, 384 P.3d 943 (2016).

Medical Texts.

Overlapping references by defendant-physician and by plaintiff’s out-of-state medical expert to a common medical text did not necessarily demonstrate a complete alignment of views on the applicable community medical standard. Kunz v. Miciak, 118 Idaho 130, 795 P.2d 24 (Ct. App. 1990).

National Standard of Care.

In a medical malpractice action, the argument that there is but one national standard of care for board-certified specialists and that any community standard is superfluous is not without merit, however, it flies in the face of§ 6-1013 and has been rejected by the Idaho Supreme Court. Kunz v. Miciak, 118 Idaho 130, 795 P.2d 24 (Ct. App. 1990).

A national standard of care is not automatically implicated simply because the federal government has created a general regulatory scheme for a given area of medicine; thus, in a medical malpractice action, the testimony of the plaintiffs’ expert witness was properly excluded, where he failed to establish that he had actual knowledge of the applicable community standard of care. McDaniel v. Inland Northwest Renal Care Group-Idaho, L.L.C., 144 Idaho 219, 159 P.3d 856 (2007).

Nationally Board-Certified Specialists.

The legislature intended that nationally board-certified specialists can testify regarding the standard of care against other nationally board-certified specialists practicing in the same area of medicine; the residence of a board-certified physician should not be a basis for precluding his testimony. Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985), overruled on other grounds, Samples v. Hanson, — Idaho —, 384 P.3d 943 (2016).

An out-of-state, board-certified orthopedic surgeon’s naked assertion that because he was familiar with the national standard of care he was also familiar with what was expected of an instate board-certified orthopedic surgeon was totally insufficient to render him competent to testify concerning the applicable standard of care in a medical malpractice suit against an instate surgeon. Strode v. Lenzi, 116 Idaho 214, 775 P.2d 106 (1989).

An expert from outside the state must demonstrate that he possesses knowledge of the local community standard. If he is board-certified in the same specialty, he must, at a minimum, inquire of a local specialist to determine whether the local community standard varies from the national standard for that board-certified specialty. Strode v. Lenzi, 116 Idaho 214, 775 P.2d 106 (1989).

Non-Certified Physician.

To fulfill the requirement of presenting expert testimony in a medical malpractice case against a board-certified specialist, plaintiff may offer the testimony of a physician who is not board-certified in the same specialty as the defendant physician, so long as the testimony complies with the requirements of this section and§ 6-1013. Pearson v. Parsons, 114 Idaho 334, 757 P.2d 197 (1988).

In a medical malpractice action against a board-certified pediatrician and a board-certified surgeon, the affidavit of a doctor who was not board-certified in either pediatrics or surgery was sufficient to raise a genuine issue of material fact and to defeat the motion for summary judgment of the defendants where he demonstrated that he was judging the defendants in comparison with similarly trained and qualified physicians in the same community, taking into account their training, experience, and fields of medical specialization, he was a knowledgeable, competent expert witness, he actually held an opinion about the applicable standard of practice and the failure of the defendants to meet the standard, his opinion was rendered with reasonable medical certainty, and he possessed professional knowledge and expertise coupled with actual knowledge of the applicable community standard to which his expert opinion testimony was addressed. Pearson v. Parsons, 114 Idaho 334, 757 P.2d 197 (1988).

Person.

Although a hospital is not a natural person, it generally falls under the definition of “person” set forth in this section as an entity that is recognized by law as having the rights and duties as a human being. Jones v. Healthsouth Treasure Valley Hosp., 147 Idaho 109, 206 P.3d 473 (2009).

Provision of Health Care.

This section requires plaintiffs to provide expert testimony in any action arising on account of the provision or failure to provide health care. The language of this section clearly treats the provision of health care as a single act and not a series of steps, each of which must be analyzed to determine if it involved professional judgment. Hough v. Fry, 131 Idaho 230, 953 P.2d 980 (1998).

Language of the statute treats the provision of health care as a single act and not a series of steps, each of which must be analyzed to determine if it involved professional judgment. Hoover v. Hunter, 150 Idaho 658, 249 P.3d 851 (2011).

Res Ipsa Loquitur Inapplicable.

The doctrine of res ipsa loquitur may not be used to prove negligence in a medical malpractice action in Idaho, given this section’s requirement of direct expert testimony. Kolln v. Saint Luke’s Reg’l Med. Ctr., 130 Idaho 323, 940 P.2d 1142 (1997).

Standard of Care.

Physician treating a patient in a nursing facility is not free to adopt a standard of care lower than that required of the nursing home in which the provider works. If the physician is functioning both as treating physician and as medical director of the facility, his standard of care includes the minimum standards set by applicable state and federal law. Hayward v. Jack’s Pharm., Inc., 141 Idaho 622, 115 P.3d 713 (2005).

Summary judgment for physicians in a medical malpractice case was proper when a patient’s survivor called an expert witness who was from outside of the state, but the survivor failed to establish if the expert was familiar with the standard of care for the community. Ramos v. Dixon, 144 Idaho 32, 156 P.3d 533 (2007).

Summary judgment was properly awarded to physicians in a medical malpractice action because plaintiffs failed to comply with the requirements of this section; even assuming the deceased patient’s husband, a retired EMT, was competent to testify to the standard of care of a gastroenterologist in an emergency situation, he had not adequately alleged familiarity with the local standard of care and did not provide a basis for concluding that the standard of emergency care would have been a single national standard that did not vary from procedure to procedure. Hoover v. Hunter, 150 Idaho 658, 249 P.3d 851 (2011).

The standard of care required in a medical malpractice claim is specific to the time and place of the alleged negligence and the class of health care provider that such defendant then and there belonged to. The defendant’s care is judged against similarly trained and qualified providers of the same class in the same community, taking into account his or her training, experience, and fields of medical specialization, if any. Ballard v. Kerr, 160 Idaho 674, 378 P.3d 464 (2016).

Summary Judgment.

There were no facts presented as to a doctor’s negligence such as to withstand a motion for summary judgment in a malpractice suit, where affidavits indicated that the doctor had performed an inner ear operation within the standard of care of the community, and where nothing was offered to refute this testimony other than the facts that a bone fragment was dropped into the ear and that the operation was not a success. LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980).

Where defendant doctor stated to plaintiff’s husband that he had “obviously messed up” laparoscopic tubal ligation surgical procedure and did not bill plaintiff for additional surgery to correct hole burned in plaintiff’s small intestine, this was not sufficient evidence that defendant failed to meet the applicable standard of health care practice in the community under this section and§ 6-1013, thus summary judgment for defendants was not precluded. Maxwell v. Women’s Clinic P.A., 102 Idaho 53, 625 P.2d 407 (1981).

In support of the motion for summary judgment in a medical malpractice action, the affidavits of the expert witnesses offered in support of the motion for summary judgment were devoid of statements indicating actual knowledge of the standard of practice in the community; therefore, the burden never shifted to the plaintiffs to show that there was a genuine issue for trial. Pearson v. Parsons, 114 Idaho 334, 757 P.2d 197 (1988).

In granting summary judgment in favor of dentist in an action by patient for medical malpractice, trial court erred in rejecting affidavit of patient’s expert witness, which stated the witness had familiarized himself with the local community standard of care and which provided a factual background to support his familiarization; trial court erroneously involved itself in weighing conflicting evidence rather than in determining whether, for purposes of surviving summary judgment, the affidavit had offered sufficient evidence. Watts v. Lynn, 125 Idaho 341, 870 P.2d 1300 (1994).

District court erred by striking the patient’s experts’ affidavits and granting summary judgment to the physician; because one expert’s significant amount of experience demonstrated the requisite personal knowledge of the relevant standard of care in the area at the time of the patient’s surgery, his affidavit was admissible, and the other expert’s fourth affidavit was admissible, as it satisfied the requirement that an out-of-area expert obtain knowledge of the local standard of care by consulting with a doctor familiar with the local standard of care. Shane v. Blair, 139 Idaho 126, 75 P.3d 180 (2003).

In a medical malpractice case, a court erred by granting summary judgment to a hospital where statements indicating that plaintiff’s expert familiarized himself with local standard of care by contacting a local pharmacist and statements that there was a national standard of care were sufficient to lay the foundation for the expert’s testimony. Additionally, the hospital’s expert stated that: “many of the statements made by plaintiff’s experts regarding the local standard of care for Gentamicin use in 2000 are incorrect;” that statement alone showed that there was a genuine issue of material fact regarding the standard of care for the hospital in 2000. Edmunds v. Kraner, 142 Idaho 867, 136 P.3d 338 (2006).

Vicarious Liability.

Although the term “vicarious liability” is not defined under Idaho’s Medical Malpractice Act,§ 6-1001 et seq., it is defined generally as liability that a supervisory party bears for the actionable conduct of a subordinate or associate based on the relationship between the two parties. Jones v. Healthsouth Treasure Valley Hosp., 147 Idaho 109, 206 P.3d 473 (2009).

When Applicable.

There is nothing in this section or the legislative intent behind it to indicate that the type of negligence, ordinary or professional, has anything to do with the application of this section. Rather, by its plain and unambiguous language, this section applies when the damages complained of result from providing or failing to provide health care. Thus, to determine if this section applies, courts need only look to see if the injury occurred on account of the provision of, or failure to provide, health care. Hough v. Fry, 131 Idaho 230, 953 P.2d 980 (1998); Jones v. Crawforth, — Idaho —, 206 P.3d 660 (2009).

Am. Jur. 2d.

C.J.S.

ALR.

Standard of care owed to patient by medical specialist as determined by local, “like community,” state, national, or other standards. 18 A.L.R.4th 603.

Liability of dentist for extraction of teeth — Lack of informed consent. 125 A.L.R.5th 403.

Medical Malpractice in Diagnosis and Treatment of Breast Cancer. 92 A.L.R.6th 379.

Medical Malpractice in Diagnosis and Treatment of Cancer of Female Reproductive System. 93 A.L.R.6th 123.

Medical Malpractice in Diagnosis and Treatment of Lung Cancer. 94 A.L.R.6th 431.

Medical Malpractice in Diagnosis and Treatment of Colorectal Cancer. 95 A.L.R.6th 541.

Medical Malpractice in Diagnosis and Treatment of Cancer of Male Reproductive System. 96 A.L.R.6th 503.

Compiler’s Notes.

The words “a particular” in the proviso were enclosed in parentheses as surplusage.

Section 4 of S.L. 1976, ch. 277, read: “This act shall apply retroactively as respects all claims heretofore accrued and also to acts, errors or omissions heretofore or hereafter occurring.”

Effective Dates.

Section 5 of S.L. 1976, ch. 277 declared an emergency. Approved March 31, 1976.

Apparent Agency.

Extension of apparent agency to medical malpractice claims does not change the standard for establishing negligence on the part of a healthcare provider; rather, it provides an additional basis from which the hospital’s liability can arise. When a hospital is being sued in its capacity as an individual healthcare provider, the plaintiff is still required to prove that the hospital breached the applicable standard of care. Jones v. Healthsouth Treasure Valley Hosp., 147 Idaho 109, 206 P.3d 473 (2009).

Causation.

Although expert testimony is not expressly required to establish causation in medical malpractice cases, such testimony is often necessary given the nature of the cases. Expert testimony is generally required because the causative factors are not ordinarily within the knowledge or experience of laymen composing the jury. Easterling v. Kendall, 159 Idaho 902, 367 P.3d 1214 (2016).

Constitutionality.

Section 6-1012 and this section, in establishing a standard of medical care based on the local community, do not create a classification which rests on grounds wholly irrelevant to the achievement of the state’s objective and, therefore, such statutes do not violate the equal protection clause of either the United States Constitution or the Idaho Constitution. LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980).

Section 6-1012 and this section did not retroactively establish a different burden of proof that must be met to sustain an action for medical malpractice, thereby violating Idaho Const., Art. XI, § 12, by providing: (1) that the standard of practice and the failure of the medical person to meet the standard must be established by expert testimony and (2) that the standard of care shall be that of the local community; both were the standards before the enactment of the statutes, and the legislature merely codified already existing case law. LePelley v. Grefenson, 101 Idaho 422, 614 P.2d 962 (1980).

Construction With Other Law.

Discovery Documents.

This section does not modify the portion of§ 6-1012 which permits plaintiffs to refer to the standard of care in similar communities when the standard of care in the same community is indeterminable. Morris ex rel. Morris v. Thomson, 130 Idaho 138, 937 P.2d 1212 (1997). Discovery Documents.

The foundational requirements of§ 6-1012 and this section apply to the admissibility of expert witness testimony for trial, not to disclosures in the discovery stages of a case. Lepper v. E. Idaho Health Servs., 160 Idaho 104, 369 P.3d 882 (2016).

Discretion of Court.

The admissibility of expert testimony is a matter committed to the discretion of the trial court, and the court’s ruling will not be overturned absent an abuse of that discretion. The sequence of inquiry to determine if there has been an abuse of discretion is: (1) whether the court correctly perceived the issue as one of discretion; (2) whether the court acted within the outer boundaries of its discretion and consistently with the applicable legal standards; and (3) whether the court reached its decision by an exercise of reason. Jones v. Crawforth, 147 Idaho 11, 205 P.3d 660 (2009).

Effect of § 39-1391c.

By enacting§ 39-1391c the legislature was simply trying to encourage doctors of all specialties and trainings to render emergency medical care and first aid services; it was not attempting to affect or change the standard of care of liability of physicians in the ordinary doctor/patient relationship, which is governed by§ 6-1012 and this section. Eby ex rel. Eby v. Newcombe, 116 Idaho 838, 780 P.2d 589 (1989).

Evidence of Resources Available.

Under§ 6-1012 and this section, there must be evidence not only on the standard of care, but also on the technology and medical resources available in a particular community. Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985), overruled on other grounds, Samples v. Hanson, — Idaho —, 384 P.3d 943 (2016).

Expert Qualified.

Expert was qualified to testify as an expert regarding the standard of a certified registered nurse anesthetist because he was licensed as such, had administered anesthesia before, and had done so for dentists; he was aware of the standard of care. Grover v. Isom, 137 Idaho 770, 53 P.3d 821 (2002).

District court abused its discretion by striking plaintiffs’ out-of-area expert testimony, where the expert demonstrated the requisite actual knowledge of the local standard of care after being familiarized with such by two local psychiatrists. Phillips v. E. Idaho Health Servs., — Idaho —, 463 P.3d 365 (2020).

Expert Unqualified.

Expert witness physician’s affidavits did not comply with this rule because they did not affirmatively show that he possessed the professional knowledge and expertise to testify to the hospital’s standard of care as affidavits did not state he was trained as hospital administrator or experienced in hospital management. Dunlap ex rel. Dunlap v. Garner, 127 Idaho 599, 903 P.2d 1296 (1995).

Familiarity with Local Standards.

Where doctor rendered an opinion on blood recycling system, but had no personal experience with that machine or any related equipment, where he testified about decisions made in intensive care, an area that comprised less than 1% of his 12 years of practice that ended over 18 years ago, and where finally, he was prepared to critique decisions made about removing a patient from a respirator despite his very limited personal experience, doctor had developed no “expertise” in the procedures he examined. He, therefore, could not qualify as an expert witness under this section. Hollingsworth v. United States, 928 F. Supp. 1023 (D. Idaho 1996). Familiarity with Local Standards.

Summary judgment for the defendant was affirmed in a medical malpractice action, where deposition testimony of the plaintiff’s expert failed to establish his familiarity with local standards of care. Frank v. East Shoshone Hosp., 114 Idaho 480, 757 P.2d 1199 (1988).

Where, in opposition to defendants’ motions for summary judgment in a medical malpractice action, plaintiffs submitted two affidavits of physicians, both practicing outside the state, that the surgery should have been postponed and that it was a departure from optimal patient care to not postpone an elective surgery under such circumstances, neither affidavit demonstrated any knowledge of the applicable standard of care in the local community and they were wholly insufficient to satisfy the burden of plaintiffs at the summary judgment juncture. Dekker v. Magic Valley Regional Medical Ctr., 115 Idaho 332, 766 P.2d 1213 (1988).

An expert from outside the state must demonstrate that he possesses knowledge of the local community standard. If he is board-certified in the same specialty, he must, at a minimum, inquire of a local specialist to determine whether the local community standard varies from the national standard for that board-certified specialty. Strode v. Lenzi, 116 Idaho 214, 775 P.2d 106 (1989).

Expert’s affidavit did not present sufficient facts admissible in evidence to demonstrate affirmatively that expert was familiar with the local standard of care; because the trial court found expert’s affidavit was not admissible evidence under Idaho R. Civ. P. 65(e), the Supreme Court of Idaho did not reach the requirements imposed by this section. Rhodehouse v. Stutts, 125 Idaho 208, 868 P.2d 1224 (1994).

It is sufficient for the out-of-state expert to gain the requisite familiarity with the standards of the community by conferring with local authorized personnel and stating that the standard did not deviate from the national standard. Dunlap ex rel. Dunlap v. Garner, 127 Idaho 599, 903 P.2d 1296 (1995).

The sworn statements of expert witness physician taken as true were sufficient to qualify him to express an expert opinion relative to the local area standard of care that was applicable and whether it was or was not adhered to by treating physician for purposes of summary judgment Dunlap ex rel. Dunlap v. Garner, 127 Idaho 599, 903 P.2d 1296 (1995).

Even where no national standard applied, an out-of-area physician may satisfy the foundational criteria of this section by obtaining information about the local standard of practice through consultations with one or more qualified local physicians. Keyser v. Garner, 129 Idaho 112, 922 P.2d 409 (Ct. App. 1996).

In malpractice suit against optometrist, testimony of ophthalmologist was insufficient to comply with§ 6-1012 and this section since ophthalmologist professed to have no knowledge of the community standard of care with respect to the practice of optometry. Evans v. Griswold, 129 Idaho 902, 935 P.2d 165 (1997).

Since an ophthalmologist is a medical practitioner of a different class than an optometrist, as an ophthalmologist is a physician and an optometrist is not, in a malpractice action in order for testimony of ophthalmologist to withstand summary judgment under§ 6-1012 and this section he must testify that he is familiar with the optometry standard care applicable to the time period and locality in question. Evans v. Griswold, 129 Idaho 902, 935 P.2d 165 (1997). This section requires that an expert must show that he actually holds the opinion offered, that it is held with a reasonable degree of medical certainty, and that he or she is not only an expert but has actual knowledge of the applicable community standards. Kolln v. Saint Luke’s Reg’l Med. Ctr., 130 Idaho 323, 940 P.2d 1142 (1997).

This section required that an expert in a malpractice action must show that he actually held the opinion, that it was held with a reasonable degree of medical certainty, and that he was not only an expert but had actual knowledge of the applicable community standard. Grover v. Smith, 137 Idaho 247, 46 P.3d 1105 (2002).

Expert witness had to possess actual knowledge of the standard of care, but it is not required that such actual knowledge had in all cases to be obtained by explicitly asking a specialist in the relevant field to explain the local standard of care. Newberry v. Martens, 142 Idaho 284, 127 P.3d 187 (2005).

Summary judgment for physicians in a medical malpractice case was proper when a patient’s survivor called an expert witness who was from outside of the state, but the survivor failed to establish if the expert was familiar with the standard of care for the community. Ramos v. Dixon, 144 Idaho 32, 156 P.3d 533 (2007).

The district court properly allowed two experts to testify as to what conduct they would characterize as reaching a level of negligence that they saw as reckless. This testimony was permissible because (1) the experts had acquainted themselves adequately with the community standard for health care providers, and (2) their opinions as to the level of negligence of specific actions of a health care provider were not conclusions that the average juror would be qualified to draw. Jones v. Crawforth, 147 Idaho 11, 205 P.3d 660 (2009).

District court did not abuse its discretion in a negligence action by refusing to admit the expert testimony of the claimants’ out-of-area doctor as to the local community standard of care in the administration of anesthesia services because: (1) the doctor’s conversation with the associate director of the Idaho state board of nursing was not sufficient to show that the doctor had acquired actual knowledge of the local standard of care; and (2) the statewide and national standards cited by the doctor had not replaced the local standard of care. Navo v. Bingham Mem’l Hosp., 160 Idaho 363, 373 P.3d 681 (2016).

To be considered competent, a medical expert must show that he or she is familiar with the standard of health care practice for the relevant medical specialty, during the relevant timeframe, and in the community where the care was provided and must explain how he or she became familiar with that standard of care. Ballard v. Kerr, 160 Idaho 674, 378 P.3d 464 (2016).

District court abused its discretion in holding that a patient and wife did not lay an adequate foundation to admit an expert surgeon’s testimony, where the surgeon’s affidavit established that he had replaced another doctor as general surgeon at the medical facility a mere 22 months after the incident at issue, had fully reviewed the files regarding the care provided to the patient, and had familiarized himself with the applicable, community standard of care. Samples v. Hanson, 161 Idaho 179, 384 P.3d 943 (2016).

Foundation.

District court erred in holding that a patient was shielded from disclosing the identity of a non-testifying medical expert (who had been consulted by a testifying expert to familiarize the testifying expert with the applicable local standard of care), because, while nothing in§ 6-1012 or this section required the disclosure of the identity of the non-testifying expert as part of the foundation for the testifying expert’s testimony, the identity of the non-testifying expert was discoverable under Idaho Civil Rule 26. The doctor had a legitimate interest in knowing who the non-testifying expert was so that he could prepare his defense, and secreting the identity of the non-testifying expert is incompatible with Idaho’s system of justice. Quigley v. Kemp, 162 Idaho 408, 398 P.3d 141 (2017). Foundation.

Since this section requires an expert witness to possess professional knowledge and expertise coupled with actual knowledge of the applicable community standard, and because the phrase “coupled with” denotes a contemporaneous relationship, awareness of the standard must exist when the expert testimony is given; if contemporaneous awareness is not demonstrated, the expert’s testimony is subject to being excluded or stricken at trial, and such evidence is not entitled to evidentiary weight in summary judgment proceedings. Kunz v. Miciak, 118 Idaho 130, 795 P.2d 24 (Ct. App. 1990).

Because there was no indication that expert inquired of a local doctor, and plaintiff did not state that the local standard of care was the same as the national standard, there was not sufficient foundation in expert’s affidavit to show that expert had actual knowledge of the applicable community standard. Rhodehouse v. Stutts, 125 Idaho 208, 868 P.2d 1224 (1994).

This section requires that the expert have not only “knowledge,” but also “expertise.” When the two terms are read together with their common definitions in mind, they mean that an expert must possess a combination of learning and experience. Hollingsworth v. United States, 928 F. Supp. 1023 (D. Idaho 1996).

In a medical malpractice action, an expert witness must show that he or she is familiar with the local standard of care for the relevant timeframe and specialty and must also state how he or she became familiar with that standard of care. Suhadolnik v. Pressman, 151 Idaho 110, 254 P.3d 11 (2011).

Where an expert demonstrates that a local standard of care has been replaced by a statewide or national standard of care, and further demonstrates that he or she is familiar with the statewide or national standard, the foundational requirements of this section have been met. Suhadolnik v. Pressman, 151 Idaho 110, 254 P.3d 11 (2011).

While it may be acceptable for an expert to demonstrate knowledge of a local standard of care by reviewing deposition testimony, that testimony must clearly articulate the local standard for the particular time, place and specialty at issue in order to meet the foundational requirements of this section. Suhadolnik v. Pressman, 151 Idaho 110, 254 P.3d 11 (2011).

Indeterminable Standard.

In General.

Because defendant doctor was one of only six cardiovascular surgeons in the state of Idaho and all six of these cardiovascular surgeons practiced together in Boise as a professional association, the standard of health care practice in the community ordinarily served by hospital was indeterminable and no “similar Idaho communities” existed about which plaintiff could have presented evidence of the standard of practice for a cardiovascular surgeon performing patent ductus arteriosus surgery; therefore,§ 6-1012 and this section did not provide a means of establishing the applicable standard of practice in this case and, in resolving whether out-of-state doctor qualified as an expert witness to testify on plaintiff’s behalf, the court turned to decisions predating the enactment of§ 6-1012 and this section. Hoene v. Barnes, 121 Idaho 752, 828 P.2d 315 (1992). In General.

The medical malpractice act does not categorically supplant all common-law causes of action. Instead, the analysis should be whether the cause of action alleges damages that arise out of the “account of the provision of or failure to provide health care.” If so, the plaintiff must comply with the expert testimony requirements stated in§ 6-1012 and this section. Eldridge v. West, — Idaho —, 458 P.3d 172 (2020).

Instructions.

The wording “all competent evidence” is a legally sufficient instruction in a medical malpractice claim. Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 995 P.2d 816 (2000).

In a medical malpractice action, the trial court did not err in declining to give plaintiffs’ proposed instruction on negligence per se because the instruction was an erroneous statement of law; the instruction that the trial court gave properly and adequately stated the statutory requirements for proving negligence. Schmechel v. Dille, 148 Idaho 176, 219 P.3d 1192 (2009).

Medical Texts.

Overlapping references by defendant-physician and by plaintiff’s out-of-state medical expert, to a common medical text, did not necessarily demonstrate a complete alignment of views on the applicable community medical standard. Kunz v. Miciak, 118 Idaho 130, 795 P.2d 24 (Ct. App. 1990).

National Standard of Care.

In a medical malpractice action the argument that there is but one national standard of care for board-certified specialists and that any community standard is superfluous is not without merit, however, it flies in the face of this section and has been rejected by the Idaho Supreme Court. Kunz v. Miciak, 118 Idaho 130, 795 P.2d 24 (Ct. App. 1990).

A national standard of care is not automatically implicated simply because the federal government has created a general regulatory scheme for a given area of medicine; thus, in a medical malpractice action, the testimony of the plaintiffs’ expert witness was properly excluded, where he failed to establish that he had actual knowledge of the applicable community standard of care. McDaniel v. Inland Northwest Renal Care Group-Idaho, L.L.C., 144 Idaho 219, 159 P.3d 856 (2007).

Nationally Board-Certified Specialists.

The legislature intended that nationally board-certified specialists can testify regarding the standard of care against other nationally board-certified specialists practicing in the same area of medicine; the residence of a board-certified physician should not be a basis for precluding his or her testimony. Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985), overruled on other grounds, Samples v. Hanson, — Idaho —, 384 P.3d 943 (2016).

In order to meet the requirement of showing adequate familiarization under clause (c) of this section, a nationally board-certified specialist must demonstrate two elements: First, that he is board-certified in the same specialty as that of the defendant-physician; this demonstrates knowledge of the appropriate standard of care of board-certified physicians practicing in the specialty in question. Second, an out-of-the-area doctor must inquire of the local standard in order to insure there are no local deviations from the national standard under which the defendant-physician and witness-physician were trained. Buck v. St. Clair, 108 Idaho 743, 702 P.2d 781 (1985), overruled on other grounds, Samples v. Hanson, — Idaho —, 384 P.3d 943 (2016). An out-of-state, board-certified orthopedic surgeon’s naked assertion, that because he was familiar with the national standard of care he was also familiar with what was expected of an instate board-certified orthopedic surgeon, was totally insufficient to render him competent to testify concerning the applicable standard of care in a medical malpractice suit against an instate surgeon. Strode v. Lenzi, 116 Idaho 214, 775 P.2d 106 (1989).

Non-Certified Physician.

In a medical malpractice action against a board-certified pediatrician and a board-certified surgeon, the affidavit of a doctor who was not board-certified in either pediatrics or surgery was sufficient to raise a genuine issue of material fact and to defeat the motion for summary judgment of the defendants where he demonstrated that he was judging the defendants in comparison with similarly trained and qualified physicians in the same community, taking into account their training, experience, and fields of medical specialization, he was a knowledgeable, competent expert witness, he actually held an opinion about the applicable standard of practice and the failure of the defendants to meet the standard, his opinion was rendered with reasonable medical certainty, and he possessed professional knowledge and expertise coupled with actual knowledge of the applicable community standard to which his expert opinion testimony was addressed. Pearson v. Parsons, 114 Idaho 334, 757 P.2d 197 (1988).

Standard of Care.

Physician treating a patient in a nursing facility is not free to adopt a standard of care lower than that required of the nursing home in which the provider works. If the physician is functioning both as treating physician and as medical director of the facility, his standard of care includes the minimum standards set by applicable state and federal law. Hayward v. Jack’s Pharm., Inc., 141 Idaho 622, 115 P.3d 713 (2005).

Summary judgment was properly awarded to physicians in a medical malpractice action because plaintiffs failed to comply with the requirements of this section; even assuming the deceased patient’s husband, a retired EMT, was competent to testify to the standard of care of a gastroenterologist in an emergency situation, he had not adequately alleged familiarity with the local standard of care and did not provide a basis for concluding that the standard of emergency care would have been a single national standard that did not vary from procedure to procedure. Hoover v. Hunter, 150 Idaho 658, 249 P.3d 851 (2011).

Summary judgment was properly awarded to a chiropractor in a patient’s medical malpractice action because the patient’s expert, who was from California, could not testify that the expert knew the local standard of care in Idaho; throughout the expert’s deposition, the expert repeatedly illustrated a lack of knowledge regarding the applicable standard of care. Arregui v. Gallegos-Main, 153 Idaho 801, 291 P.3d 1000 (2012).

Patient’s expert’s affidavit lacked proper foundation and failed to satisfy the requirements of§ 6-1012 and this section, because the affidavit failed to demonstrate the witness’ familiarity with the community standard of care at the time of the incident about which he was to testify. Hall v. Rocky Mt. Emergency Physicians, LLC, 155 Idaho 322, 312 P.3d 313 (2013).

Statements by Defendant Doctor.

Where defendant doctor stated to plaintiff’s husband that he had “obviously messed up” laparoscopic tubal ligation surgical procedure and did not bill plaintiff for additional surgery to correct hole burned in plaintiff’s small intestine, this was not sufficient evidence that defendant failed to meet the applicable standard of health care practice in the community under§ 6-1012 and this section. Maxwell v. Women’s Clinic P.A., 102 Idaho 53, 625 P.2d 407 (1981).

Stricken Testimony.

The district court erred by striking plaintiff’s expert’s testimony that the local standard of care was violated when doctor failed to determine that fetus was a macrosomic baby which could have been accomplished by the use of ultrasound or biophysical testing. Kozlowski v. Rush, 121 Idaho 825, 828 P.2d 854 (1992).

Summary Judgment.

In support of the motion for summary judgment in a medical malpractice action, the affidavits of the expert witnesses offered in support of the motion for summary judgment were devoid of statements indicating actual knowledge of the standard of practice in the community; therefore, the burden never shifted to the plaintiffs to show that there was a genuine issue for trial. Pearson v. Parsons, 114 Idaho 334, 757 P.2d 197 (1988).

In granting summary judgment in favor of dentist in an action by patient for medical malpractice, trial court erred in rejecting affidavit of patient’s expert witness, which stated the witness had familiarized himself with the local community standard of care and which provided a factual background to support his familiarization; trial court erroneously involved itself in weighing conflicting evidence rather than in determining whether, for purposes of surviving summary judgment, the affidavit had offered sufficient evidence. Watts v. Lynn, 125 Idaho 341, 870 P.2d 1300 (1994).

District court erred by striking the patient’s experts’ affidavits and granting summary judgment to the physician; because one expert’s significant amount of experience demonstrated the requisite personal knowledge of the relevant standard of care in the area at the time of the patient’s surgery, his affidavit was admissible, and the other expert’s fourth affidavit was admissible, as it satisfied the requirement that an out-of-area expert obtain knowledge of the local standard of care by consulting with a doctor familiar with the local standard of care. Shane v. Blair, 139 Idaho 126, 75 P.3d 180 (2003).

Am. Jur. 2d.

ALR.

Locality rule as governing hospital’s standard of care to patient and expert’s competency to testify thereto. 36 A.L.R.3d 440. Competency of physician or surgeon from one locality to testify, in malpractice case, as to standard of care required of defendant practicing in another locality. 37 A.L.R.3d 420.

Medical negligence in extraction of tooth, established through expert testimony. 18 A.L.R.6th 325.

Compiler’s Notes.

The abbreviation enclosed in parentheses so appeared in the law as enacted.

Applicability.

This section was expressly enacted to prevent quality metrics adopted in the Affordable Care Act (Act March 23, 2010, P. L. 111-148), or by insurers, from being used to establish the standard of health care practice in Idaho. This statute does not apply to guidelines established by the Center for Disease Control, the Idaho department of health and welfare, or manufacturers of medical equipment. Ballard v. Kerr, 160 Idaho 674, 378 P.3d 464 (2016).

Constitutionality.

When the legislature stated the legislative purpose of this chapter, it included the statement that “the sport of skiing is practiced by a large number of citizens of this state and also attracts a large number of nonresidents, significantly contributing to the economy of Idaho,” and since this was a legitimate legislative goal and satisfies the rational basis test, this chapter does not violate the equal protection clause of the constitution. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

Legislative Intent.

In enacting this chapter, the legislature intended to limit rather than expand the liability of ski area operators. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

Purpose.

The government of Idaho clearly has a legitimate interest in promoting the sport of skiing, because the sport “significantly contribut[es] to the economy of Idaho.” This chapter bears a rational relationship to this interest because it clarifies the allocation of risks and responsibilities between ski area operators and skiers. Collins v. Schweitzer, Inc., 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

Nature of Immunity.

Cited

This chapter immunizes ski area operators only from liability arising from risks inherent in the sport of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990). Cited Kirkland ex rel. Kirkland v. Blain County Med. Ctr., 134 Idaho 464, 4 P.3d 1115 (2000).

Amendments.

The 2014 amendment, by ch. 187, substituted “a fiber rope or wire rope tow or a conveyor” for “or a fiber rope tow” in subsection (1); rewrote subsection (6), which formerly read: “’Skier’ means any person present at a skiing area under the control of a ski area operator for the purpose of engaging in the sport of skiing by utilizing the ski slopes and trails and does not include the use of an aerial passenger tramway”; and added subsection (8).

Amendments.

The 2014 amendment, by ch. 187, substituted “its relative degree” for “it relative degree” near the end of subsection (4).

Compiler’s Notes.

The national ski patrol provides training and education programs for emergency rescuers serving the outdoor recreation community. See http://www.nsp.org .

Ignoring Area’s Instructions.

When a skier ignores the ski area’s instructions to ski only on designated trails and embarks on an enterprise too difficult for someone of his ability, the ski area is not liable for his mishaps. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).

Improper Placement of Signs.

Under this chapter, a ski area operator is not liable for the improper placement of a sign erected to eliminate, alter, control or lessen the inherent risks in skiing or for the improper design, construction or padding of a signpost that supported the sign. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

Inherent Risk.

In personal injury action by skier injured when she tripped over a rope intended to guide people away from the exit ramp of a chair lift, summary judgment was properly granted to ski resort, as the rope was intended to eliminate, alter, control, or lessen the inherent risk of skiing. The accident was not caused by the construction, operation, maintenance or repair of the chairlift. Withers v. Bogus Basin Rec. Ass’n, 144 Idaho 78, 156 P.3d 579 (2007).

Ski Races.

Setting up a NASTAR race course is a normal part of running a ski area, and thus, anything a ski area does to eliminate or lessen the inherent risks of skiing in connection with setting up the race course or protecting skiers from hazardous obstacles cannot be the basis of liability for negligence. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

Ski Towers.

Under§ 6-1106, anyone who strikes a ski lift tower while skiing is considered to have expressly assumed the risk and legal responsibility for any injury which results, and in addition, under subsection (10) of this section, anything a ski area operator does to eliminate, alter, control or lessen the risks associated with lift towers — such as placing a fence around a tower or padding it — could not result in the operator being held liable for negligence. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994). Ski area operator owed amateur race skier no duty to reduce the risk of his striking and injuring himself on a lift tower. Collins v. Schweitzer, Inc., 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

Standard of Care.

If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in this section and§ 6-1104 are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

A ski area operator’s duty not to negligently cause injury refers to the failure to follow (1) any of the duties set forth in this section and§ 6-1104 or (2) any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

While one of the duties imposed on ski area operators by this section is to mark conspicuously the top or entrance to each slope or trail or area, with an appropriate symbol for its relative degree of difficulty, even assuming that a ski area operator may not have properly located a sign or properly designed, constructed or padded the signpost, this chapter excludes any liability of ski area operator to the plaintiffs as a result of these activities; while subdivision (3) of this section did require ski area operator to mark the entrance to each of its slopes, trails or areas, subsection (10) of this section negates any duty to accomplish this marking to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

The duties described in this section and§ 6-1104 are the only duties a ski area operator has with respect to the inherent risks of skiing and even anything an operator does to fulfill those duties cannot be held to be negligence because the operator had no duty to accomplish the activity to any standard of care, and in addition, anything else a ski area operator does to attempt to lessen the inherent risks of skiing cannot result in liability for negligence for that action. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

In conducting training sessions, the defendant foundation did not have the responsibility to fulfill the duties under this section; the mere fact that the defendant foundation set up the course within the ski area did not make them a “ski operator.” By setting up the course the defendant foundation was not engaged in any duties or activities of a “ski area operator.” By making use of the ski area for training, defendant foundation did not exercise “operational responsibility” for the ski area, and the court correctly denied defendant’s summary judgment on that basis. Davis v. Sun Valley Ski Educ. Found., Inc., 130 Idaho 400, 941 P.2d 1301 (1997).

A ski area operator does not have the duty to provide a ski patrol that will determine the identity of a skier who was involved in a ski accident with another skier. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

Unmarked Area.

An injury to the body caused by falling while skiing in an unmarked, ungroomed area is an inherent risk of skiing and a ski resort had no duty to take some kind of affirmative steps to have prevented skier from being injured. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).

Compiler’s Notes.

The American national standards institute’s current publication covering tramway safety is ANSI B77.1-2006, “Passenger Ropeway & Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors — Safety Requirement.”

Inherent Risk.

In personal injury action by skier injured when she tripped over a rope intended to guide people away from the exit ramp of a chair lift, summary judgment was properly granted to ski resort, as the rope was intended to eliminate, alter, control, or lessen the inherent risk of skiing. The accident was not caused by the construction, operation, maintenance or repair of the chairlift. Withers v. Bogus Basin Rec. Ass’n, 144 Idaho 78, 156 P.3d 579 (2007).

Standard of Care.

If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in§ 6-1103 and this section are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

A ski area operator’s duty not to negligently cause injury refers to the failure to follow (1) any of the duties set forth in§ 6-1103 and this section or (2) any duty that does not relate to eliminating, altering, controlling or lessening the inherent risks of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

The duties described in§ 6-1103 and this section are the only duties a ski area operator has with respect to the inherent risks of skiing and even anything an operator does to fulfill those duties cannot be held to be negligence because the operator had no duty to accomplish the activity to any standard of care; in addition, anything else a ski area operator does to attempt to lessen the inherent risks of skiing cannot result in liability for negligence for that action. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

Amendments.

The 2014 amendment, by ch. 187, inserted “any movement of snow including, but not limited to, slides, sloughs or avalanches; any depths of snow, including tree wells, or any accumulations of snow, whether natural or man made, including snowmaking mounds; freestyle terrain” in the first sentence of the second paragraph; substituted “a fiber rope or wire rope tow or a conveyor” for “or a fiber rope tow” in the third paragraph; and substituted “equipment” for “skis” in the last paragraph.

CASE NOTES

Ignoring Area’s Instructions.

When a skier ignores the ski area’s instructions to ski only on designated trails and embarks on an enterprise too difficult for someone of his ability, the ski area is not liable for his mishaps. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).

Inherent Risks.

This chapter immunizes ski area operators only from liability arising from risks inherent in the sport of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

Under this section, anyone who strikes a ski lift tower while skiing is considered to have expressly assumed the risk and legal responsibility for any injury which results; in addition, under§ 6-1103(10), anything a ski area operator does to eliminate, alter, control or lessen the risks associated with lift towers — such as placing a fence around a tower or padding it — could not result in the operator being held liable for negligence. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

Legislative Intent.

In enacting this chapter the legislature intended to limit rather than expand the liability of ski area operators. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

This section does not distinguish between injuries suffered during racing and injuries suffered during other types of skiing, and there is no legislative history to indicate that the Idaho legislature intended such a distinction. Collins v. Schweitzer, Inc., 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

Liability.

The assumption of risks contained in this section apply only to any liability of a ski area operator, and the defendant’s contention that, regardless of whether they fell within the definition of a ski area operator, the plaintiff expressly assumed the risk of the injuries she sustained was erroneous. Davis v. Sun Valley Ski Educ. Found., Inc., 130 Idaho 400, 941 P.2d 1301 (1997).

Lift Towers.

According to the plain language of this section, skier expressly assumed the risk of injury resulting from striking a lift tower and, therefore, could not recover from ski area operator for his injury. Collins v. Schweitzer, Inc., 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

ALR.

§ 6-1107. Liability of ski area operators.

Any ski area operator shall be liable for loss or damages caused by its failure to follow the duties set forth in sections 6-1103 and 6-1104, Idaho Code, where the violation of duty is causally related to the loss or damage suffered. The ski area operators shall not be liable to any passenger or skier acting in violation of their duties as set forth in sections 6-1105 and 6-1106, Idaho Code, where the violation of duty is causally related to the loss or damage suffered; nor shall a ski area operator be liable for any injury or damage to a person who is not legally entitled to be in the ski area; or for any loss or damages caused by any object dropped, thrown or expelled by a passenger from an aerial passenger tramway.

History.

I.C.,§ 6-1107, as added by 1979, ch. 270, § 1, p. 701.

Ignoring Area’s Instructions.

When a skier ignores the ski area’s instructions to ski only on designated trails and embarks on an enterprise too difficult for someone of his ability, the ski area is not liable for his mishaps. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).

Inherent Risks.

This chapter immunizes ski area operators only from liability arising from risks inherent in the sport of skiing. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

Legislative Intent.

In enacting this chapter, the legislature intended to limit rather than expand the liability of ski area operators. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990).

Standard of Care.

Unmarked Area.

If a ski area operator has no duty to accomplish any activity undertaken in an attempt to eliminate, alter, control or lessen the inherent risks of skiing and if the duties described in§§ 6-1103 and 6-1104 are the only duties an operator has with regard to the inherent risks of skiing, then it necessarily follows that any activity of an operator to fulfill those duties may not be held to be negligence, since the operator had no duty to accomplish the activity to any standard of care. Northcutt v. Sun Valley Co., 117 Idaho 351, 787 P.2d 1159 (1990). Unmarked Area.

An injury to the body caused by falling while skiing in an unmarked, ungroomed area is an inherent risk of skiing and a ski resort had no duty to take some kind of affirmative steps to have prevented skier from being injured. Long v. Bogus Basin Recreational Ass’n, 125 Idaho 230, 869 P.2d 230 (1994).

ALR.

Public Duty.

Where the legislature has addressed the rights and duties pertaining to personal injuries arising out of the relationship between two groups, i.e., employers/employees, outfitters and guides/participants, and has granted limited liability to one group in exchange for adherence to specific duties, then such duties become a “public duty” within the exception to the general rule validating exculpatory contracts. Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (1984).

Cross References.

Idaho outfitters and guides licensing board,§ 36-2105.

Compiler’s Notes.

The bracketed insertion was added by the compiler to correct the agency reference.

Public Duty.

Where the legislature has addressed the rights and duties pertaining to personal injuries arising out of the relationship between two groups, i.e., employers/employees, outfitters and guides/participants, and has granted limited liability to one group in exchange for adherence to specific duties, then such duties become a “public duty” within the exception to the general rule validating exculpatory contracts. Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (1984).

Cross References.

Idaho outfitters and guides licensing board,§ 36-2105.

Compiler’s Notes.

The bracketed insertion in subsection (a) was added by the compiler to correct the agency reference.

Cross References.

Idaho outfitters and guides licensing board,§ 36-2105.

Compiler’s Notes.

The bracketed insertion in subsection (a) was added by the compiler to correct the agency reference.

The words “this act” refer to S.L. 1979, ch. 317 compiled as§§ 6-1201 to 6-1206.

Participant.

A passenger on a snowmachine could not be characterized as a “participant” since she did not receive “services” from the defendant. Hanks v. Sawtelle Rentals, Inc., 133 Idaho 199, 984 P.2d 122 (1999).

Public Duty.

Service.

Where the legislature has addressed the rights and duties pertaining to personal injuries arising out of the relationship between two groups, i.e., employers/employees, outfitters and guides/participants, and has granted limited liability to one group in exchange for adherence to specific duties, then such duties become a “public duty” within the exception to the general rule validating exculpatory contracts. Lee v. Sun Valley Co., 107 Idaho 976, 695 P.2d 361 (1984). Service.

Because renting clothing and helmets to the plaintiffs was merely incidental to the defendant’s leasing of equipment, and because the defendant’s decision to retrieve a disabled snowmachine could not be said to be a service to the plaintiffs, this section did not operate to limit the defendant’s liability. Hanks v. Sawtelle Rentals, Inc., 133 Idaho 199, 984 P.2d 122 (1999).

Compiler’s Notes.

Chapters 93 and 225 of S.L. 1980 each purported to enact a new chapter 13 in title 6. Accordingly, chapter 93 was codified as title 6, chapter 13 (§§ 6-1301, 6-1302) while chapter 225 was codified as title 6, chapter 14 through the use of brackets. The redesignation of the sections enacted by S.L. 1980, ch. 225 was made permanent by S.L. 2005, ch. 25.

Cross References.

Immunity of food donor and food bank,§ 5-339.

Compiler’s Notes.

Chapters 93 and 225 of S.L. 1980 each purported to enact a new chapter 13 in title 6. Accordingly, chapter 93 was codified as title 6, chapter 13 (§§ 6-1301, 6-1302) while chapter 225 was codified as title 6, chapter 14 through the use of brackets. The redesignation of the sections enacted by S.L. 1980, ch. 225 was made permanent by S.L. 2005, ch. 25.

The words “this act” refer to S.L. 1980, ch. 225 compiled as§§ 6-1401 to 6-1409.

Comparative Negligence.

Nothing in this chapter modifies the approved and required practice of comparing the responsibility of all alleged tortfeasors on a special verdict form, whether or not those alleged tortfeasors are parties to the action. Vannoy v. Uniroyal Tire Co., 111 Idaho 536, 726 P.2d 648 (1985).

Sellers of Used Products.

Where there was no previous existing law with respect to the liability of sellers of used products, this chapter was not modifying the existing common law with regard to such, even though this section contemplates that existing common law would be modified to the extent that it was inconsistent with the act. Peterson v. Idaho First Nat’l Bank, 117 Idaho 724, 791 P.2d 1303 (1990).

Strict Liability.

Survival of Actions.

Idaho does not recognize a breach of warranty claim in personal injury products liability actions which do not involve a contractual relationship between the manufacturer and the injured person. When a plaintiff brings a non-privity breach of warranty action against a manufacturer or seller to recover for personal injuries allegedly sustained as a result of a defective product, that action is one for strict liability in tort, governed by the provisions of§ 6-1401 et seq. Elliott v. Smith & Nephew, 2013 U.S. Dist. LEXIS 59072 (D. Idaho Apr. 15, 2013). Survival of Actions.

Although this chapter makes reference to claims “asserted on behalf of an estate,” that reference is directly related to the act’s discussion of wrongful death actions, not actions of the decedent which might survive his or her death. Estate of Shaw v. Dauphin Graphic Machs., Inc., 392 F. Supp. 2d 1230 (D. Idaho 2005), rev’d in part, 240 Fed. Appx. 177 (9th Cir. 2007).

ALR.

Products liability: Exercise, fitness, and related equipment. 76 A.L.R.6th 395.

Products liability: Sudden or unexpected acceleration of motor vehicle. 76 A.L.R.6th 465.

Liability of manufacturer or distributor for injuries arising from allegedly defective artificial knee devices or prostheses. 89 A.L.R.6th 337.

Products liability: Pain pumps. 90 A.L.R.6th 75.

Products Liability: Hip Protheses. 96 A.L.R.6th 1.

Products liability: Clothes washing machines. 104 A.L.R.6th 97.

Products Liability: Hormone Replacement Medications. 7 A.L.R.7th 2.

Application of Parental Immunity Doctrine to Claims Against Parents of Minor Products Liability Plaintiffs. 10 A.L.R.7th 2.

Products Liability and Negligence Claims Arising from Use of Stud Guns, Staple Guns, Nail Guns, or Parts Thereof. 12 A.L.R.7th 5.

Products Liability Issues Surrounding Design, Production, Distribution, and Use of Recreational and Vehicular Helmets. 13 A.L.R.7th 5.

Validity, Construction, and Application of Products Liability Statute Precluding or Limiting Recovery Where Product Has Been Altered or Modified After Leaving Hands of Manufacturer or Seller. 13 A.L.R.7th 8.

Products Liability: Personal Injury or Death Allegedly Caused by Defect in Motorcycle or Its Parts or Equipment. 14 A.L.R.7th 7.

Federal preemption of state common-law products liability claims pertaining to medical devices, implants, and other health-related items. 74 A.L.R. Fed. 2d 1.

Commercial Sellers of Used Products.

The language in subdivision (1)(b) of this section is clear and unambiguous and excludes the commercial seller of used products from the definition of a product seller under the Product Liability Reform Act. Peterson v. Idaho First Nat’l Bank, 117 Idaho 724, 791 P.2d 1303 (1990).

Where there was no previous existing law with respect to the liability of sellers of used products, the Product Liability Reform Act was not modifying the existing common law with regard to such, even though§ 6-1401 contemplates that existing common law would be modified to the extent that it was inconsistent with the act. Peterson v. Idaho First Nat’l Bank, 117 Idaho 724, 791 P.2d 1303 (1990).

Manufacturer.

Based on the parties’ express agreement and the degree of distribution company’s involvement in the actual production of the product for distribution in this country, there was substantial, competent evidence in the record to support the trial court’s finding that distribution company held itself out as a manufacturer; trial court did not err in imputing distribution company’s liability to retailer. Hawks v. EPI Prods. USA, Inc., 129 Idaho 281, 923 P.2d 988 (1996).

The determination of whether a company was subject to strict liability as a product seller who remanufactured a product before it was sold to the user or consumer was dependent upon disputed facts, including whether company held itself out as a manufacturer and/or a product seller, whether company remanufactured or serviced other parts of the machine, the extent of the remanufacturing or servicing done to the engine, how the engine ultimately arrived in the hands of the final user, and the extent to which the company altered the engine before it was sold. Britton v. Dallas Airmotive, Inc., 2010 U.S. Dist. LEXIS 19502 (D. Idaho June 15, 2010).

When an employee of a wholesale seed distributor was fatally injured while working at a picking table that was fabricated by another employee and installed to allow employees to sort seeds more efficiently, the distributor was not a manufacturer of the picking table for product liability purposes, because the table was neither a product, nor a component part of a product. The picking table was not produced for introduction into trade or commerce, nor was it sold for integration into other products. Gomez v. Crookham Co., — Idaho —, 457 P.3d 901 (2020).

Accrual of Action.

Under§ 5-219, a cause of action accrues at the time of the wrongdoing, rather than at the time of discovery of the wrongful act. Wing v. Martin, 107 Idaho 267, 688 P.2d 1172 (1984).

Subdivision 4 of§ 5-219 is an integral part of the Idaho Products Liability Act because it defines “accrual” of causes of action under the Act. Jenkins v. Armstrong World Indus., Inc., 643 F. Supp. 17 (D. Idaho 1985).

Products liability cause of action against a manufacturer of a hip device was not property of the estate where, even though it was implanted pre-petition and debtor began experiencing pain pre-petition, his injury had not accrued under Idaho law, as it was not objectively ascertainable. Nor was the cause of action sufficiently rooted in the pre-bankruptcy past, because on the day of the bankruptcy filing, it remained only a nebulous possibility that the device would cause him injury. In re Bolton, 584 B.R. 44 (Bankr. D. Idaho 2018).

Action Barred.

Where wrongful labeling of chemical by defendant chemical company occurred, if at all, at the time of the sale of the chemical to the former lessees, and such sale was more than three years prior to the filing of the amended complaint, the improper labeling claim was barred under either§ 5-218 3. or subsection (3) of this section. Wing v. Martin, 107 Idaho 267, 688 P.2d 1172 (1984).

Burden of Proof.

Worker did not carry his burden of presenting clear and convincing evidence rebutting the presumption, arising under subsection (2)(a), that the useful safe life of splitter had expired by the date of his accident. Worker did not show that machines with regular — not extraordinary — maintenance lasted beyond the ten year limit. Pate v. Columbia Mach., Inc., 930 F. Supp. 451 (D. Idaho 1996).

A plaintiff defending a motion for summary judgment does not have to meet the clear and convincing evidence standard in rebutting the presumption of a ten year useful life under this section, and where the plaintiff submits evidence a product was operating safely at the time of an accident the plaintiff has produced a triable issue of fact. West v. Sonke, 132 Idaho 133, 968 P.2d 228 (1998).

Constitutionality.

This section impacts social and economic areas and must be evaluated under the rational basis test which provides that equal protection is denied and offended only if the classification is based solely on reasons totally unrelated to the pursuit of the state’s goals and only if no grounds can be advanced to justify those goals. Olsen v. J.A. Freeman Co., 117 Idaho 706, 791 P.2d 1285 (1990).

This section is constitutional under the rational basis test as having a reasonably conceived objective and advancing legitimate legislative goals in a rational fashion. Olsen v. J.A. Freeman Co., 117 Idaho 706, 791 P.2d 1285 (1990). The statute of repose contained in this section does not violate the “open courts” provision of Const., Art. 1, § 18. Olsen v. J.A. Freeman Co., 117 Idaho 706, 791 P.2d 1285 (1990).

The product liability statute of repose under this section is not so vague as to deny plaintiff due process of law. Olsen v. J.A. Freeman Co., 117 Idaho 706, 791 P.2d 1285 (1990).

Legislative Intent.

The legislative purpose of Idaho’s statute of repose was to provide for the maximum length of time product sellers are subject to liability. Olsen v. J.A. Freeman Co., 117 Idaho 706, 791 P.2d 1285 (1990).

This section advances a policy of finality in legal relationships and, thus, furthers the objective of the legislature by providing for the maximum length of time product sellers are subject to liability. Olsen v. J.A. Freeman Co., 117 Idaho 706, 791 P.2d 1285 (1990).

Rebuttable Presumption.

This section creates a rebuttable presumption that a product’s useful safe life has expired with regard to those claims that involve harm or injury occurring more than ten years after time of delivery, and failure to rebut the presumption with clear and convincing evidence bars a claim. Olsen v. J.A. Freeman Co., 117 Idaho 706, 791 P.2d 1285 (1990).

Where plaintiff failed to present any evidence that a baler’s useful safe life had not expired, as is necessary to rebut the statutorily imposed period of repose, the district court did not err in granting summary judgment. Olsen v. J.A. Freeman Co., 117 Idaho 706, 791 P.2d 1285 (1990).

Farm worker injured by a ten-year-old potato harvester failed to present any evidence to rebut the presumed fact that the harm was caused after the useful safe life of the potato harvester had expired, and thus, worker’s product liability claim was barred. Mercado v. Baker, 117 Idaho 777, 792 P.2d 342 (1990).

Subsection (2)(a) establishes a presumption that the useful safe life of all products expires ten years after the date of delivery. Thus, a product seller need only show that the harm was caused more than ten years after the date of delivery and it will be presumed that the harm occurred after the product’s useful safe life, and that the product seller is immune from liability. Oats v. Nissan Motor Corp., 126 Idaho 162, 879 P.2d 1095 (1994).

The burden of proof is on the products liability plaintiff to rebut by clear and convincing evidence the presumption that the product’s useful safe life expired after ten years and show that the harm was actually caused before the product’s useful safe life expired. Rebuttal of the presumed ten-year period of repose by clear and convincing evidence is not the only method provided for plaintiffs to avoid the effects of the statute of repose; subsection (2)(b) of this section sets forth a number of limitations which, if shown by the plaintiff, preclude application of the presumptive ten-year period of repose. Oats v. Nissan Motor Corp., 126 Idaho 162, 879 P.2d 1095 (1994).

Application.

Although this section states that comparative negligence shall not be a bar to recover personal injuries, its application is limited to instances where the plaintiff’s responsibility for his injuries is less than that of the manufacturer. Puckett v. Oakfabco, Inc., 132 Idaho 816, 979 P.2d 1174 (1999).

Assumption of Risk.

It is clear that the Idaho Product Liability Reform Act allows the defense of assumption of the risk and product misuse as a component of comparative negligence; such issues should be discussed in terms of contributory negligence, not assumption of risk, and applied accordingly under comparative negligence laws. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992).

Jury Instructions.

The trial court’s instructions to the jury included instructions concerning defendant’s general affirmative defense that plaintiff acted negligently and failed to use ordinary care for his own safety; although the instructions to the jury did not use the words “assumption of the risk” or “misuse,” the jury instructions given adequately explained plaintiff’s duty of due care and defendant’s defense of comparative responsibility. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992).

Where defendant requested an instruction that defined product misuse as the failure to follow directions and warnings provided by the seller but the user’s failure to follow directions was another aspect of comparative responsibility encompassed by the court’s given instructions, it was not error for the trial court to refuse the requested instruction. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992). Although it was clear that both jury instruction nos. 17 and 19 contained language concerning defendant/manufacturer’s duty of care, this repetition was not prejudicial; instruction no. 19 stated the duty of care of both parties fully while instruction no. 17 repeated the duty of care for the manufacturer. Any undue prominence given by this instruction was offset by given instruction no. 9 which defined negligence as the failure to use the ordinary care that a “reasonable careful person would use under circumstances similar to those shown” by the evidence. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992).

Jury Verdict Form.

All negligent actors contributing to the causation of any accident or injuries are required to be listed on the jury verdict form, whether or not they are parties to the action. Vannoy v. Uniroyal Tire Co., 111 Idaho 536, 726 P.2d 648 (1985).

Where, in a personal injury action against tire manufacturer, evidence in the record identified the manufacturers of the mounting machine and wheel rim as manufacturers of products containing defects which proximately caused or contributed to, in whole or in part, the damages complained of, the trial court was required to include their names on the jury verdict form in order for the jury to evaluate and attribute to their products (the tire mounting machine and the wheel rim) that portion of the cause of the accident which those two items contributed or were responsible for, regardless whether the manufacturers could have had a judgment rendered against them. Vannoy v. Uniroyal Tire Co., 111 Idaho 536, 726 P.2d 648 (1985).

Reduction of Damages.

Once a manufacturer proves by a preponderance of the evidence that an alleged defect or danger is obvious, the fact finder will reduce the plaintiff’s damages according to the plaintiff’s own negligence in failing to observe the danger. Puckett v. Oakfabco, Inc., 132 Idaho 816, 979 P.2d 1174 (1999).

Genuine Issues of Facts.

Genuine issues of fact remained as to the defectiveness of warnings and the grain auger covers, and as to whether the alteration of the covers, as compared to the design of the covers, proximately caused plaintiff’s injuries; thus, granting of summary judgment was vacated. Tuttle v. Sudenga Indus., Inc., 125 Idaho 145, 868 P.2d 473 (1994).

Judgment Notwithstanding the Verdict.

Viewing the evidence in a light most favorable to plaintiff/farmer injured in combine, the court could not hold as a matter of law whether a better warning decal or whether appropriate safety information in the owner’s manual may have deterred or prevented plaintiff’s actions; therefore, rather than second-guess the jury’s determination of proximate cause from failure to warn, the Idaho supreme court affirmed the trial judge’s decision denying defendant’s motion for judgment notwithstanding the verdict. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992).

Jury Instructions.

The trial court’s instructions to the jury included instructions concerning defendant’s general affirmative defense that plaintiff acted negligently and failed to use ordinary care for his own safety. Although the instructions to the jury did not use the words “assumption of the risk” or “misuse,” the jury instructions given adequately explained plaintiff’s duty of due care and defendant’s defense of comparative responsibility; accordingly, there was no error. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992).

Misuse.

Where defendant requested an instruction that defined product misuse as the failure to follow directions and warnings provided by the seller but the user’s failure to follow directions was another aspect of comparative responsibility encompassed by the court’s given instructions, it was not error for the trial court to refuse the requested instruction. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992). Misuse.

A manufacturer has no duty to foresee, protect, or warn against product misuse. Corbridge v. Clark Equip. Co., 112 Idaho 85, 730 P.2d 1005 (1986).

Product misuse is an affirmative defense in an action against a manufacturer. Corbridge v. Clark Equip. Co., 112 Idaho 85, 730 P.2d 1005 (1986).

The trial court’s ruling, as a matter of law, that the towing of forklift/loader normally used to load and unload grain, clean up grain spills, and push railroad cars through deep snow over a rough railroad crossing with an abrupt incline constituted misuse, would be upheld. Corbridge v. Clark Equip. Co., 112 Idaho 85, 730 P.2d 1005 (1986).

While the language defining misuse in subdivision (3)(a) of this section creates a jury question, where the undisputed facts lead to only one reasonable conclusion, the court may rule as a matter of law. Corbridge v. Clark Equip. Co., 112 Idaho 85, 730 P.2d 1005 (1986).

Open and Obvious Danger.

The provisions of this section limit and define the open and obvious danger doctrine in a products liability case. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992).

This section incorporates the doctrine of open and obvious danger as a component part of comparative negligence. Puckett v. Oakfabco, Inc., 132 Idaho 816, 979 P.2d 1174 (1999).

Once a manufacturer proves by a preponderance of the evidence that an alleged defect or danger is obvious, the fact finder will reduce the plaintiff’s damages according to the plaintiff’s own negligence in failing to observe the danger. Puckett v. Oakfabco, Inc., 132 Idaho 816, 979 P.2d 1174 (1999).

Percentage of Negligence.

In light of the adoption of comparative negligence in Idaho, the adequacy of a warning is a factor to be considered and determined by the jury. Where there is substantial competent evidence that a manufacturer may have inadequately warned potential users of a danger or defect, the user’s percentage of comparative negligence will determine the reduction in the plaintiff’s damages to the extent that the plaintiff did not act as an ordinary reasonably prudent person under the circumstances. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992).

Question for Jury.

The language in subdivision (4)(a) of this section creates a jury question, unless the court is able to rule as a matter of law that the facts are undisputed and lead to one reasonable conclusion; since reasonable minds could find that facilitating removal of covers on grain auger to better load grain and forestall further mangling of covers was reasonably anticipated conduct, summary disposition of the case was incorrect. Tuttle v. Sudenga Indus., Inc., 125 Idaho 145, 868 P.2d 473 (1994).

Standard of Duty to Warn.

It is clear that this section incorporates the doctrine of open and obvious danger as a component part of the comparative negligence theory and adopts the objective standard of duty to warn to the “ordinary reasonably prudent person;” an objective standard makes non-dispositive an inquiry into the subjective knowledge of the user. As a policy matter, the standard is used to determine whether the danger involved is so obvious that it is unreasonable to impose on the manufacturer a duty to warn; as a result, a product with a danger that is obvious to a particular user may not entirely relieve the manufacturer of a duty to warn of that danger or defect. Instead, it will simply be one of the factors that the jury may consider after being instructed to consider the obviousness of the danger in determining the degree of negligence. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992).

Where plaintiff presented evidence that there was an inadequate “caution” decal on a combine and that a “danger” symbol and a graphical decal showing a person’s leg caught in an auger should have been used and the plaintiff offered further evidence that the operator’s manual failed to indicate that the combine should be adjusted for grass seed harvesting, construing all of the evidence in favor of plaintiff as the court is required to do, the court could not hold as a matter of law that the danger imposed by the auger was so plain, open and obvious that it precluded a duty to warn. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992).

Where the plaintiff placed a ladder on a wet concrete floor, propping it against the rounded surface of a boiler, and where he stood on the unsecured ladder at a point above where it made contact with the boiler, the dangers involved in his use of the ladder were so obvious that imposing a duty on the defendants to warn would have served no function, and the trial court properly granted defendants’ motion for summary judgment on the claim relating to failure to warn. Puckett v. Oakfabco, Inc., 132 Idaho 816, 979 P.2d 1174 (1999).

ALR.

§ 6-1406. Relevance of industry custom, safety or performance standards, and technological feasibility.

1. Evidence of changes in (a) a product’s design, (b) warnings or instructions concerning the product, (c) technological feasibility, (d) “state of the art,” or (e) the custom of the product seller’s industry or business, occurring after the product was manufactured and delivered to its first purchaser or lessee who was not engaged in the business of either selling such products or using them as component parts of another product to be sold, is not admissible for the purpose of proving that the product was defective in design or that a warning or instruction should have accompanied the product at the time of manufacture. The provisions of this section shall not relieve the product seller of any duty to warn of known defects discovered after the product was designed and manufactured.
2. If the court finds outside the presence of a jury that the probative value of such evidence substantially outweighs its prejudicial effect and that there is no other proof available, this evidence may be admitted for other relevant purposes, including but not limited to proving ownership or control, or impeachment.
3. For purposes of this section, “custom” refers to the practices followed by an ordinary product seller in the product seller’s industry or business.
4. For purposes of this section, “technological feasibility” means the technological, mechanical and scientific knowledge relating to product safety that was reasonably feasible for use, in light of economic practicality, at the time of manufacture.

History.

I.C.,§ 6-1306, as added by 1980, ch. 225, § 1, p. 499; am. and redesig. 2005, ch. 25, § 8, p. 82.

Evidence.

If it appears that a party is seeking the introduction of evidence of subsequent remedial measures to imply culpability under the guise of impeachment or any other purpose, certainly the trial court should disallow the evidence; however, the trial court is in the best position to assess the prejudicial effect of the evidence. If the trial court is satisfied that the evidence has substantial probative value on the issue on which it is introduced and that the issue is genuinely in dispute, it should be allowed and a limiting instruction can aid the jury, but if the trial court concludes that factors of undue prejudice, confusion of issues, misleading the jury or a waste of time outweigh the probative value of the evidence, it should properly be excluded. Watson v. Navistar Int’l Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992).

A.L.R.

§ 6-1407. Individual rights and responsibilities of product sellers other than manufacturers.

1. In the absence of express warranties to the contrary, product sellers other than manufacturers shall not be subject to liability in circumstances where they do not have a reasonable opportunity to inspect the product in a manner which would or should, in the exercise of reasonable care, reveal the existence of the defective condition which is in issue; or where the product seller acquires the product in a sealed package or container and sells the product in the same sealed package or container. The liability limitation of this subsection shall not apply if:
   1. The product seller had knowledge or reason to know of the defect in the product;
   2. The product seller altered, modified, or installed the product, and such alteration, modification or installation was a substantial proximate cause of the incident giving rise to the action, was not authorized or requested by the manufacturer and was not performed in compliance with the directions or specifications of the manufacturer;
   3. The product seller provided the plans or specifications for the manufacture or preparation of the product and such plans or specifications were a substantial cause of the product’s alleged defect.
   4. The product seller is a wholly-owned subsidiary of the manufacturer, or the manufacturer is a wholly-owned subsidiary of the product seller.
   5. The product seller sold the product after the expiration date placed on the product or its package by the manufacturer.
2. In an action where the liability limitation of subsection (1) applies, any manufacturer who refuses to accept a tender of defense from the product seller, shall indemnify the product seller for reasonable attorney’s fees and costs incurred by the product seller in defending such action.
3. In any product liability action, the manufacturer of the product shall be indemnified by the product seller of the product for any judgment rendered against the manufacturer and shall also be reimbursed for reasonable attorney’s fees and costs incurred in defending such action:
   1. If the product seller provided the plans or specifications for the manufacture or preparation of the product;
   2. If such plans or specifications were a substantial cause of the product’s alleged defect; and
   3. If the product was manufactured in compliance with and according to the plans or specifications of the seller.
4. A product seller, other than a manufacturer, is also subject to the liability of manufacturer if:
   1. The manufacturer is not subject to service of process under the laws of the claimant’s domicile; or
   2. The manufacturer has been judicially declared insolvent in that the manufacturer is unable to pay its debts as they become due in the ordinary course of business; or (c) The court outside the presence of a jury determines that it is highly probable that the claimant would be unable to enforce a judgment against the product manufacturer.

The provisions of this subsection shall not apply if the manufacturer had knowledge or with the exercise of reasonable and diligent care should have had knowledge of the defect in the product.

History.

I.C.,§ 6-1307, as added by 1980, ch. 225, § 1, p. 499; am. and redesig. 2005, ch. 25, § 9, p. 82.

Cross-Claim Not a Prerequisite.

The filing of a cross-claim is not a prerequisite to an award under this section. Meldco, Inc. v. Hollytex Carpet Mills, Inc., 118 Idaho 265, 796 P.2d 142 (Ct. App. 1990).

Indemnification.

This section relieves certain product sellers of liability and, upon a tender of the defense, triggers the manufacturer’s duty to indemnify the seller “in the absence of express warranties.” Wefco, Inc. v. Monsanto Co., 111 Idaho 55, 720 P.2d 643 (Ct. App. 1986), rev’d on other grounds, Borchard v. Wefco, Inc., 112 Idaho 555, 733 P.2d 776 (1987).

Liability of Distributor.

Based on the parties’ express agreement and the degree of distribution company’s involvement in the actual production of the product for distribution in this country, there was substantial, competent evidence in the record to support the trial court’s finding that distribution company held itself out as a manufacturer; trial court did not err in imputing distribution company’s liability to retailer pursuant to subsection (4) of this section. Hawks v. EPI Prods. USA, Inc., 129 Idaho 281, 923 P.2d 988 (1996).

Distributor of fencing was not liable for the injury of a skier who crashed through the fence and into a ski lift tower where the fences were shipped by the manufacturer in sealed individual packages that remained sealed until delivery to the ski resort and the distributor took no part in the design or manufacture of the fence. Collins v. Schweitzer, Inc., 774 F. Supp. 1253 (D. Idaho 1991), aff’d, 21 F.3d 1491 (9th Cir.), cert. denied, 513 U.S. 962, 115 S. Ct. 422, 130 L. Ed. 2d 337 (1994).

Liability of Seller/Retailer.

Mere Allegations in Complaint.

Where plaintiff alleged that combine had defective braking system, seller may be liable under the Idaho Product Liability Reform Act only if one of the following events occurred: (1) seller made express warranties concerning the design of the combine’s braking system that were inconsistent with those made by manufacturer; (2) seller had a reasonable opportunity to inspect the braking system and should have discovered any alleged defect; (3) seller had reason to know of the alleged defect; (4) seller altered, modified, or installed the system causing the injury. Hoopes v. Deere & Co., 117 Idaho 386, 788 P.2d 201 (1990). Mere Allegations in Complaint.

The mere allegations in a complaint do not dictate whether indemnity will be allowed under this section. Meldco, Inc. v. Hollytex Carpet Mills, Inc., 118 Idaho 265, 796 P.2d 142 (Ct. App. 1990).

Reimbursement for Costs and Fees.

The retailer is not entitled to an award of attorney fees and costs simply because it has tendered the defense and is absolved of liability when the manufacturer is also absolved of liability. Borchard v. Wefco, Inc., 112 Idaho 776, 733 P.2d 776 (1987).

Summary Judgment Inappropriate.

Where there were genuine issues of fact concerning whether the seller had made express warranties, had a reasonable opportunity to inspect the product, or had altered or modified the product, summary judgment for the seller was inappropriate. Green v. A.B. Hagglund & Soner, 634 F. Supp. 790 (D. Idaho 1986).

Trial court properly concluded retailer was immune from direct liability for consumer’s injuries pursuant to this section where there was no finding that retailer made an express warranty regarding use of the product that was inconsistent with the express warranties made by distributor and manufacturer and no finding that retailer altered, modified or otherwise changed the product’s packaging or information, and it was found that, while retailer had a reasonable opportunity to inspect the product, it did not know or have reason to know of the products defective warning. Hawks v. EPI Prods. USA, Inc., 129 Idaho 281, 923 P.2d 988 (1996).

Compiler’s Notes.

The words “this act” refer to S.L. 1980, ch. 225 compiled as§§ 6-1401 to 6-1409.

Section 2 of S. L. 1980, ch. 225 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 3 of S.L. 1980, ch. 225 provided that the act should be effective with regard to all product liability actions filed on or after July 1, 1980.

ALR.

Insufficient Evidence of Economic Damages.

There was insufficient evidence to support the award for economic damages to a father, which would have been incurred by him as a result of the loss of his two-year-old’s financial support, because no direct factual evidence or expert testimony was presented to establish the child’s potential earning capacity or the cash value of financial support she might have provided her parents in the future. Horner v. Sani-Top, Inc., 143 Idaho 230, 141 P.3d 1099 (2006).

Proof of Damages.

Damages may be recovered in a wrongful death case, even though they are not tied to a financial or pecuniary loss, as such a loss is presumed with respect to loss of society or companionship. It does not mean that if a plaintiff seeks special, or out-of-pocket, damages, there is no need to prove them with any specificity or tie them to a particular loss. Horner v. Sani-Top, Inc., 143 Idaho 230, 141 P.3d 1099 (2006). In order for an award of special damages to be upheld, the plaintiff must put on some type of proof to support the damage award; compensatory awards based on speculation and conjecture will not be allowed. When considering an award of damages for future losses, the question is whether the plaintiff has proven the damages with reasonable certainty. Horner v. Sani-Top, Inc., 143 Idaho 230, 141 P.3d 1099 (2006).

Punitive Damages.

Punitive damages are reserved for the most unusual and compelling circumstances; the reason for the disfavor with regard to awarding punitive damages is the emphasis on punishment and deterrence rather than compensation of plaintiff, which is the normal role for a civil action. O’Neil v. Vasseur, 118 Idaho 257, 796 P.2d 134 (Ct. App. 1990).

The trial court committed an error of law by choosing to use the defendant’s proposed jury instructions, rather than the pattern instructions, where the instructions given failed to instruct the jury that punitive damages are intended to take account of a defendant’s egregious actions and punish him accordingly and where the instructions were a misstatement of state law and punitive damages law in general. Schaefer v. Ready, 134 Idaho 378, 3 P.3d 56 (Ct. App. 2000).

The purpose of punitive damages is not to compensate the plaintiff, but to express the outrage of society at certain actions of the defendant. United Heritage Prop. & Cas. Co. v. Farmers Alliance Mut. Ins. Co., 2012 U.S. Dist. LEXIS 17592 (D. Idaho Feb. 9, 2012).

Effective Dates.

Section 18 of S.L. 1987, ch. 278, as amended by § 1 of S.L. 1990, ch. 121, read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987.”

Compiler’s Notes.

Section 19 of S.L. 1987, ch. 278 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Section 5 of S.L. 2003, ch. 122 provides: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 18 of S.L. 1987, ch. 278, as amended by § 1 of S.L. 1990, ch. 121, read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987.”

Section 6 of S.L. 2003, ch. 122 provides: “This act shall be in full force and effect on and after July 1, 2003. Sections 1 through 3 of this act shall apply to all causes of action which accrue thereafter. Section 4 of this act shall apply to all cases in which an appeal is filed thereafter.”

Application.

Trial court appropriately entered judgment in compliance with this section since not one of the family’s damage awards for noneconomic damages in a wrongful death action for their two-year-old child exceeded the statutory cap, and the court correctly initially applied comparative fault to the total damage award for each family member and then multiplied each damage award by the 13% of fault attributable to the product’s manufacturer. Horner v. Sani-Top, Inc., 143 Idaho 230, 141 P.3d 1099 (2006).

After properly apportioning liability as found by the jury at trial, a court must then determine whether the total noneconomic damage award for a particular plaintiff exceeds the cap. If so, the court should further reduce each defendant’s responsibility on a proportional basis, based upon the jury’s allocation of fault so the plaintiff’s total judgment does not exceed the cap. Horner v. Sani-Top, Inc., 143 Idaho 230, 141 P.3d 1099 (2006).

In a tort action filed by plaintiff tenant who fell down the stairs of the leased premises, sufficient evidence showed defendant landlord engaged in willful and wanton misconduct and, therefore, this section’s limit on noneconomic damages did not apply. The landlord knew that the steps had deteriorated to the point that they constituted a hazard, improperly repaired the treads by using brackets of the wrong size, and was warned by another tenant that the stairs treads were loose. Phillips v. Erhart, 151 Idaho 100, 254 P.3d 1 (2011).

In a personal injury action arising out of a car accident that occurred when a student was taking lessons from a school driving instructor, the school was not entitled to judgment as a matter of law on the issue of the instructor’s recklessness. The limitation on non-economic damages in this section did not apply because the instructor told the student to execute a three-point turn when the weather and road conditions were poor, and it was twilight. Hennefer v. Blaine County Sch. Dist. #61, 158 Idaho 242, 346 P.3d 259 (2015).

Constitutionality.

This section does not violate the right to jury trial as guaranteed by Article I, § 7 of the Idaho Constitution; does not constitute special legislation in violation of Article III, § 19 of the Idaho Constitution; and does not violate the separation of powers doctrine embodied in Article II, § 1 and Article V, § 13 of the Idaho Constitution. Kirkland ex rel. Kirkland v. Blain County Med. Ctr., 134 Idaho 464, 4 P.3d 1115 (2000).

In General.

Because the state has a legitimate interest in protecting the availability of liability insurance for Idaho citizens, and this section is neither an arbitrary, capricious, nor unreasonable method for addressing this legitimate societal concern, this section does not violate the constitutional prohibition against special legislation. Kirkland ex rel. Kirkland v. Blain County Med. Ctr., 134 Idaho 464, 4 P.3d 1115 (2000). In General.

Because the legislature has the power to modify or repeal common law causes of action, and consistent with this power, the legislature has limited, and/or eliminated, the liability of defendants in certain personal injury cases and has enacted statutes of limitation and repose which can effectively prevent plaintiffs from recovering damages in personal injury cases, there is no logical reason why a statutory limitation on a plaintiff’s remedy as imposed by this section is any different than other permissible limitations on the ability of plaintiffs to recover in tort actions. Kirkland ex rel. Kirkland v. Blain County Med. Ctr., 134 Idaho 464, 4 P.3d 1115 (2000).

As a matter of law, the statutory cap in this section is the maximum “value” of a claim for noneconomic damages. State Dep’t of Health & Welfare v. Hudelson (In re Hudelson), 146 Idaho 439, 196 P.3d 905 (2008), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

From a plain reading of this section, the noneconomic damages cap applies to each individual bringing a cause of action, not on a per-claim basis. Aguilar v. Coonrod, 151 Idaho 642, 262 P.3d 671 (2011).

Legislative Intent.

This section provides no indication that the legislature was concerned with out-of-court settlements or that these should be taken into consideration when applying the cap: regardless of how many defendants are listed on the verdict form or how many actions the claimant brings to collect damages, ultimately, a judgment cannot be entered in favor of “a claimant” that exceeds the amount of the statutory cap. Horner v. Sani-Top, Inc., 143 Idaho 230, 141 P.3d 1099 (2006).

Willful or Reckless Misconduct.

District court properly denied judgment as a matter of law and submitted the issue of reckless or willful conduct under this section to the jury because conflicting inferences on the issue of foreseeability could be drawn from the facts. Kuntz v. Lamar Corp., 385 F.3d 1177 (9th Cir. 2004).

This section does not require the jury to find that the defendant subjectively knew of a high probability of harm. Phillips v. Erhart, 151 Idaho 100, 254 P.3d 1 (2011).

Trial court did not err in a negligence action in permitting a jury to consider whether a tire company’s conduct was reckless; the allegations placed the company on notice that its conduct might have involved a heightened degree of negligence and that it, therefore, faced potential liability in excess of the cap on noneconomic damages in subsection (1). Carrillo v. Boise Tire Co., 152 Idaho 741, 274 P.3d 1256 (2012).

Objective, “should-have-known” standard is the appropriate standard of recklessness under this section. It is sufficient for a finding of recklessness that the risk and high probability of harm are objectively foreseeable. Hennefer v. Blaine County Sch. Dist. #61, 158 Idaho 242, 346 P.3d 259 (2015).

Compiler’s Notes.

Section 5 of S.L. 2003, ch. 122 provides: “Severability. The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 18 of S.L. 1987, ch. 278, as amended by § 1 of S.L. 1990, ch. 121, read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987.”

Section 6 of S.L. 2003, ch. 122 provides: “This act shall be in full force and effect on and after July 1, 2003. Sections 1 through 3 of this act shall apply to all causes of action which accrue thereafter. Section 4 of this act shall apply to all cases in which an appeal is filed thereafter.”

CASE NOTES

Amended Complaint.

In an insurance action, plaintiff’s motion to amend the complaint to include a claim for punitive damages pursuant to subsection (2) was granted, because defendant insurance company knew that the insured was a covered insured at the commencement of the claims litigation and prevented the insured from learning that information. The totality of the evidence presented by the plaintiff in its motion to amend would support a jury verdict for punitive damages. United Heritage Prop. & Cas. Co. v. Farmers Alliance Mut. Ins. Co., 2012 U.S. Dist. LEXIS 17592 (D. Idaho Feb. 9, 2012).

District court did not err in holding that the insureds were not entitled to amend their complaint to assert a claim for punitive damages, where they did not show that the district court perceived the issue of non-payment as anything other than an exercise of discretion, or that it violated a legal standard. Parks v. Safeco Ins. Co., 160 Idaho 556, 376 P.3d 760 (2016).

Amendment of Claim.

Although the landowner was entitled to amend his complaint, he was not granted leave to add a prayer for punitive damages; accordingly, the district court properly refused to award them. Bach v. Bagley, 148 Idaho 784, 229 P.3d 1146 (2010).

Assignability.

Punitive damages are not necessarily personal to the plaintiff and, therefore, may be assigned, e.g., to an insurance company, along with the assignable underlying cause of action. United Heritage Prop. & Cas. Co. v. Farmers Alliance Mut. Ins. Co., 2012 U.S. Dist. LEXIS 17592 (D. Idaho Feb. 9, 2012).

Award Improper.

Award of punitive damages was vacated; the award was not appropriate because, while there was fraud, the agreement between the parties was illegal, and the plaintiffs knew it. Trees v. Kersey, 138 Idaho 3, 56 P.3d 765 (2002). Given the facts in a fraud case, an award of $250,000 in punitive damages was unconstitutional. Punitive damages in the amount of $100,000, approximately a ratio of 6:1 to the $17,000 damges awarded on the fraud charge, is all that is constitutionally permissible. Alexander v. Stibal, 161 Idaho 253, 385 P.3d 431 (2016), cert. denied, — U.S. —, 137 S. Ct. 258, 196 L. Ed. 2d 136 (2016).

Basis for Award.

Punitive damages are reserved for the most unusual and compelling circumstances; the reason for the disfavor with regard to awarding punitive damages is the emphasis on punishment and deterrence rather than compensation of plaintiff, which is the normal role for a civil action. O’Neil v. Vasseur, 118 Idaho 257, 796 P.2d 134 (Ct. App. 1990).

As a matter of law, the failure to disclose a subsequently discovered fact, absent a duty to do so, is not such conduct that would support an award of punitive damages under this section. Duffin v. Idaho Crop Imp. Ass’n, 126 Idaho 1002, 895 P.2d 1195 (1995).

Nominal damages to a landowner who was prevented from accessing his property by an easement across a neighbor’s property, where the neighbor erected a locked gate across the easement road, supported a punitive damages award because overwhelming evidence showed that the neighbor was aware of the easement. Harwood v. Talbert, 136 Idaho 672, 39 P.3d 612 (2001).

Punitive damage award of $93,498, though a significant portion of defendant’s assets, was not excessive in light of defendant’s dishonest conduct and its status as a bonded warehouse; the award was not disproportionate to the compensatory damages and could deter similar conduct. Griff, Inc. v. Curry Bean Co., 138 Idaho 315, 63 P.3d 441 (2003).

Court did not abuse its discretion when it denied the individual’s motion to amend to add a prayer for punitive damages under subsection (2) because the individual had not established a reasonable likelihood of proving the requisite extremely harmful state of mind. Kuntz v. Lamar Corp., 385 F.3d 1177 (9th Cir. 2004).

In a commercial lease dispute, punitive damages were proper because defendants decided to terminate the lease prior to the expiration, based on circumstances they contrived, and they acted in a manner that was malicious or outrageous. Gunter v. Murphy’s Lounge, L.L.C., 141 Idaho 16, 105 P.3d 676 (2005).

Where the member of a limited liability company and an employee wrongfully diverted jobs from the company and used its employees and equipment to perform those jobs, the company filed a claim for tortious interference with prospective economic advantage. The district court abused its discretion in denying the company’s motion to amend its pleadings to add claims for punitive damages without conducting the analysis required by this section. Todd v. Sullivan Constr. LLC, 146 Idaho 118, 191 P.3d 196 (2008).

Punitive damages may not be awarded based on simple negligence, but instead depend on whether the plaintiff is able to establish the requisite intersection of two factors: a bad act and a bad state of mind. United Heritage Prop. & Cas. Co. v. Farmers Alliance Mut. Ins. Co., 2012 U.S. Dist. LEXIS 17592 (D. Idaho Feb. 9, 2012).

To justify punitive damages, a defendant must have: (1) acted in a manner that was an extreme deviation from reasonable standards of conduct, with an understanding of or disregard for its likely consequences, and (2) acted with an extremely harmful state of mind, whether that be termed malice, oppression, fraud or gross negligence; malice, oppression, wantonness; or simply deliberate or willful. Burks v. Bailey (In re Bailey), 499 B.R. 873 (Bankr. D. Idaho 2013). Trial court did not err in awarding punitive damages to respondents in their action for trespass, as the record showed that one appellant consciously disregarded a permanent injunction when he knowingly trespassed on respondents’ property at night, 30 feet from their home, in an effort to frighten and intimidate one respondent. Akers v. D.L. White Constr., Inc., 156 Idaho 37, 320 P.3d 428 (2014).

A party seeking to recover for punitive damages must prove by clear and convincing evidence oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted. In addition to oppressive behavior in a business context, five factors must be considered in deciding whether there is substantial evidence of an extreme deviation from standards of reasonable conduct: (1) the presence of expert testimony; (2) whether the unreasonable conduct actually caused harm to the plaintiff; (3) whether there is a special relationship between the parties; (4) proof of a continuing course of oppressive conduct; and (5) proof of the actor’s knowledge of the likely consequences of the conduct. Thurston Enters. v. Safeguard Bus. Sys., 164 Idaho 709, 435 P.3d 489 (2019).

Burden of Proof.

The district judge did not abuse his discretion by denying plaintiff’s claim for punitive damages where defendant failed to establish a reasonable likelihood he could prove, by a preponderance of the evidence, that plaintiff acted oppressively, fraudulently, wantonly, maliciously or outrageously. Weaver v. Stafford, 134 Idaho 691, 8 P.3d 1234 (2000), overruled on other grounds, Weitz v. Green, 148 Idaho 851, 230 P.3d 743 (2010).

Injured customer’s motion to add punitive damages was properly granted because the amended complaint put the store on notice of the customer’s claim for punitive damages and it sufficiently alleged that the store’s failure to train employees in safe display techniques was an extreme deviation from industry practice, which was sufficient to establish a “reasonable likelihood” of proving facts at trial to support a punitive damages award. Vendelin v. Costco Wholesale Corp., 140 Idaho 416, 95 P.3d 34 (2004).

Buyer, who alleged that insulation was defective and that its seller breached an agreement to reimburse the buyer for repairs, met the “reasonable likelihood” standard, and was entitled to amend its complaint to include a claim for punitive damages. A statement by the seller’s product manager that the seller didn’t care because the insulation business was being sold, the seller’s failure to inspect the buildings containing the insulation, and its knowledge of past insulation shrinkage problems elsewhere raised a reasonable inference that the seller was not acting in good faith in withholding reimbursement, but instead was stiffing the buyer while reaping the benefits of the repairs. Hansen-Rice, Inc. v. Celotex Corp., 414 F. Supp. 2d 970 (D. Idaho 2006).

Conduct justifying punitive damages requires an intersection of two factors: a bad act and a bad state of mind. The defendant must (1) act in a manner that was an extreme deviation from reasonable standards of conduct with an understanding of — or disregard for — its likely consequences, and must (2) act with an extremely harmful state of mind, described variously as with malice, oppression, fraud, gross negligence, wantonness, deliberately, or willfully. Adams v. United States, 622 F. Supp. 2d 996 (D. Idaho 2009).

Contract Actions.

Where herbicide manufacturer’s conduct does not demonstrate the harmful state of mind necessary to support an award of punitive damages and plaintiff offered no evidence that changes that the manufacturer made to the label of the herbicide were an extreme deviation from industry standards of conduct, plaintiffs were not entitled to amend their complaint to add a claim for punitive damages. Adams v. United States, 622 F. Supp. 2d 996 (D. Idaho 2009). Contract Actions.

Punitive damages are allowed in contract actions; however, they are generally disfavored and should be awarded in only the most unusual and compelling circumstances. Burks v. Bailey (In re Bailey), 499 B.R. 873 (Bankr. D. Idaho 2013).

Determining Amount of Damages.

Calculating 5% of insurance company’s annual profit in arriving at an amount of punitive damages was a reasonable method of determining an appropriate amount for deterrent purposes where facts established deceptive marketing practices and bad faith denial of benefits practices by insurance company which were likely to continue if not deterred. Walston v. Monumental Life Ins. Co., 129 Idaho 211, 923 P.2d 456 (1996).

The most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct. The second indicium of an unreasonable or excessive punitive damages award is its ratio to the actual harm inflicted on the plaintiff. The third indicium is the difference between the punitive damages awarded and the civil penalties authorized or imposed in comparable cases. Alexander v. Stibal, 161 Idaho 253, 385 P.3d 431 (2016), cert. denied, — U.S. —, 137 S. Ct. 258, 196 L. Ed. 2d 136 (2016).

Discretion of Court.

Where the district court acted consistent with legal standards applicable to punitive damages and reached its decision by an exercise of reason, the court did not abuse its discretion in determining not to allow the jury to consider the plaintiff’s claim for punitive damages. Polk v. Robert D. Larrabee Family Home Ctr., 135 Idaho 303, 17 P.3d 247 (2000).

Trial court did not abuse its discretion when it denied the insured and the attorney’s motion to amend their complaint to add a claim for punitive damages because the insurer declined their help, it was not even aware of the mediation, and it was not actively pursuing its claim. Seiniger Law Office, P.A. v. North Pacific Ins. Co., 145 Idaho 241, 178 P.3d 606 (2008).

District court did not abuse its discretion in concluding that a reasonable likelihood existed that the evidence could support a punitive damages award; regardless, the issue of whether the evidence could support an award of punitive damages was moot, because the jury in fact awarded punitive damages and their decision was supported by competent and substantial, although conflicting, evidence. Hall v. Farmers Alliance Mut. Ins. Co., 145 Idaho 313, 179 P.3d 276 (2008).

Failure to Strike Improper Claim.

Where plaintiff’s complaint contained a prayer for relief seeking punitive damages and defendants never moved to strike such improper claim, by failing to object defendants waived their right to object, and because the issue was fully tried by the parties, the court should have treated the issue as if it had been properly pled and determined whether an award of punitive damages was proper. Mikesell v. Newworld Dev. Corp., 122 Idaho 868, 840 P.2d 1090 (Ct. App. 1992).

Federal Diversity Cases.

Hearing.

Subsection (2) of this section is substantive in nature and, therefore, controlling in federal court in a diversity case. Windsor v. Guarantee Trust Life Ins. Co., 684 F. Supp. 630 (D. Idaho 1988). Hearing.

Where the district court held a hearing prior to trial and determined that one of the plaintiffs would be allowed to present punitive damages there was no need to hold a new hearing following the court’s decision to allow a unified trial. Inland Group of Cos. v. Providence Wash. Ins. Co., 133 Idaho 249, 985 P.2d 674 (1999).

No Malice Found.

Where the district court determined that there was sufficient evidence for a jury to find that the defendant intentionally and willfully breached an exclusivity contract with the plaintiff, but that there was no evidence of malice on their behalf, the court’s denial of a motion to amend to add a claim for punitive damages was not an abuse of discretion. General Auto Parts Co. v. Genuine Parts Co., 132 Idaho 849, 979 P.2d 1207 (1999).

From a general partner’s attempt to dissociate from an LLP, the district court properly denied the LLP punitive damages under this section from the LLP’s wrongful dissociation counterclaim, as there was a lack of evidence of oppressive, fraudulent, malicious or outrageous conduct on the part of the partner. St. Alphonsus Diversified Care, Inc. v. MRI Assocs., LLP, 148 Idaho 479, 224 P.3d 1068 (2009).

Procedure.

Employee’s punitive damages claim was dismissed where discovery had not been completed on her state law claims of discriminatory discharge and hostile work environment. Collier v. Turner Indus. Group, L.L.C., 797 F. Supp. 2d 1029 (D. Idaho 2011).

Trial court did not abuse its discretion in declining to permit a plaintiff to reopen its case to present evidence to support its punitive damages claim to the jury, where the decision was rendered on the basis that the plaintiff had rested its case in chief without presenting evidence to support an award of such damages. Printcraft Press, Inc. v. Sunnyside Park Utils., Inc., 153 Idaho 440, 283 P.3d 757 (2012).

Subsection (2) provides that no claim for damages shall be filed containing a prayer for relief seeking punitive damages. Instead, punitive damages may be sought in a lawsuit only after the claimant proves by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted. After presenting such proof at a hearing, the party seeking punitive damages may then amend the complaint to add a claim for punitive damages. Elliott v. Smith & Nephew, 2013 U.S. Dist. LEXIS 59072 (D. Idaho Apr. 15, 2013).

Purpose.

Punitive damages are unavailable in routine, ordinary breach of contract cases; however, this should not be construed as a blanket prohibition against punitive damages in breach of contract claims. Numerous situations arise where the breaking of a promise may be an extreme deviation from standards of reasonable conduct and, when done with knowledge of its likely effects, may be grounds for an award of punitive damages. Thurston Enters. v. Safeguard Bus. Sys., 164 Idaho 709, 435 P.3d 489 (2019).

Cited Doe v. Cutter Biological, 844 F. Supp. 602 (D. Idaho 1994); Mac Tools, Inc. v. Griffin, 126 Idaho 193, 879 P.2d 1126 (1994); Vaught v. Dairyland Ins. Co., 131 Idaho 357, 956 P.2d 674 (1998); McGilvray v. Farmers New World Life Ins. Co., 136 Idaho 39, 28 P.3d 380 (2001); King v. Lang, 136 Idaho 905, 42 P.3d 698 (2002); Wiggins v. Peachtree Settlement Funding, 273 B.R. 839 (Bankr. D. Idaho 2001); Kuhn v. Coldwell Banker Landmark, Inc., 150 Idaho 240, 245 P.3d 992 (2010); Kayser v. McClary, 2011 U.S. Dist. LEXIS 12306 (D. Idaho Feb. 7, 2011); Pierce v. McMullen, 156 Idaho 465, 328 P.3d 445 (2014); Garcia v. Absolute Bail Bonds, LLC, 161 Idaho 616, 389 P.3d 161 (2016).

RESEARCH REFERENCES

ALR.

Liability of cigarette manufacturers for punitive damages. 108 A.L.R.5th 343.

Amendments.

Compiler’s Notes.

The 2008 amendment, by ch. 83, in the section catchline, added “and trustees of charitable trusts”; throughout the section, inserted “trustee” following “director”; in the introductory paragraph in subsection (1), twice inserted “or charitable trust” and inserted “and trustees of the charitable trust who serve without compensation”; in paragraph (1)(b), inserted “or charitable trust”; in paragraph (1)(c), added “or owed by the trustee to the charitable trust or the members thereof”; and in subsection (2), inserted “or of a trustee of a charitable trust.” Compiler’s Notes.

Section 19 of S.L. 1987, ch. 278 read: “The provisions of this act are hereby declared to be severable and if any provision of this act or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of remaining portions of this act.”

Effective Dates.

Section 18 of S.L. 1987, ch. 278, as amended by § 1 of S.L. 1990, ch. 121, read: “The provisions of this act shall take effect on July 1, 1987, provided however, that Section [Sections] 1 through 11 shall apply only to causes of action which accrue on and after July 1, 1987.”

Amounts Paid by Defendant.

In plaintiff’s action to recover damages for personal injuries following a car accident, the district court correctly refused to allow defendant to present evidence to the jury regarding the amounts actually paid to plaintiff’s medical providers. Dyet v. McKinley, 139 Idaho 526, 81 P.3d 1236 (2003), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Attorney’s Fees.

Insurance Payments.

In action alleging breach in agreement concerning sale of plaintiff’s share of stock in corporation founded by plaintiff and defendant, to defendant, contrary to plaintiff’s argument that defendant was not entitled to attorney’s fees since she did not incur any liability as corporation incurred the liability for her attorney’s fees and to award them to her would result in a windfall to her; the collateral source rule found in this section was inapplicable and further, any arrangement defendant may have made with a third party regarding her attorney’s fees was not relevant to the question of whether she, as a party, is entitled to be compensated for attorney’s fees incurred in defending against the complaint. Hines v. Hines, 129 Idaho 847, 934 P.2d 20 (1997). Insurance Payments.

In plaintiff’s personal injury suit for damages following an automobile accident, defendant was not entitled to have plaintiff’s jury award reduced by the amount of payments plaintiff received from her insurance company in underinsured motorist benefits. This section provides that collateral sources shall not include benefits paid which are recoverable under subrogation rights under Idaho law or by contract. Whether or not the insurance company seeks recovery from plaintiff as it is entitled under the insurance policy is a contractual matter between plaintiff and the insurance company. Dyet v. McKinley, 139 Idaho 526, 81 P.3d 1236 (2003), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

District court did not err in reducing a damage award by the amount paid out by an insurance company. Pursuant to this section, the court was required to reduce the damage award by the amount paid by the defendant’s insurance company in order to avoid double recovery by the plaintiff. McCandless v. Pease, — Idaho —, 465 P.3d 1104 (2020).

Medicaid Write-Offs.

Medicaid write-offs should be treated the same as Medicare write-offs for purposes of this section. Noel v. City of Rigby, — Idaho —, 462 P.3d 103 (2020).

Medicare Write-Offs.

In plaintiff’s action to recover damages for personal injuries from a car accident, the district court correctly determined that evidence of Medicare write-offs was inadmissible. By treating a Medicare write-off as a collateral source, the danger of prejudice is avoided, and the jury will not be influenced by the existence of Medicare. Dyet v. McKinley, 139 Idaho 526, 81 P.3d 1236 (2003), overruled on other grounds, Verska v. St. Alphonsus Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011).

Trial court erred in denying defendant’s motion to have plaintiff’s Medicare “write-downs” treated as a collateral source. Slack v. Kelleher, 140 Idaho 916, 104 P.3d 958 (2004).

Evidence of payment by collateral sources is admissible to a court after the finder of fact has rendered an award. Such award shall be reduced by the court to the extent the award includes compensation for damages, which have been compensated independently from collateral sources, like Medicare. Eldridge v. West, — Idaho —, 458 P.3d 172 (2020).

District court erred in concluding that Medicare write-offs had to be subtracted from invoices prior to their submission to the jury for a determination of damages. The jury should be provided with the medical care providers’ bills that were subject to any write-offs, absent those write-offs: if a verdict is rendered that includes those amounts, such award should be reduced by the court. Eldridge v. West, — Idaho —, 458 P.3d 172 (2020).

Offset Not Appropriate.

Trial court did not err in holding that payments for medical and funeral expenses were simply part of a store’s settlement and, therefore, the judgment against the manufacturer in a wrongful death action should not have been offset by the amount of those payments. Horner v. Sani-Top, Inc., 143 Idaho 230, 141 P.3d 1099 (2006).

Social Security Benefits.

Trial court erred in denying a tire company’s motion to reduce a father’s damage award; the father’s social security benefits were deductible collateral source payments. Carrillo v. Boise Tire Co., 152 Idaho 741, 274 P.3d 1256 (2012).

Compiler’s Notes.

The words enclosed in parentheses in subsection (3) so appeared in the law as enacted.

Applicability.

Complaint under§ 49-2417 against a vehicle owner, for allowing a dangerous vehicle to be driven on a public highway, contained no allegation that the claim was based on the employer-employee relationship between the driver and the vehicle owner, therefore,§ 6-1607, covering tort claims based upon the employer-employee relationship, did not apply, although the driver was in fact employed by the vehicle owner. Nava v. Rivas-Del Toro, 151 Idaho 853, 264 P.3d 960 (2011).

Amendments.

The 2007 amendment, by ch. 125, designated the formerly undesignated introductory paragraph as subsection (1), and made related redesignations; added subsection (2); and designated the last formerly undesignated paragraph as subsection (3) and substituted “The civil causes of action provided for in this section” for “This civil cause of action.”

Claims Against Governmental Entities.

Duty of Care.

Idaho department of juvenile corrections and its employees were entitled to summary judgment as to child abuse claims brought by former inmates, because (1) under the plain language of the Idaho Tort Claims Act (ITCA), the ITCA governed those claims, (2) the ITCA, pursuant to§§ 6-906 and 6-908, requires advance notice of the claims, and (3) it was undisputed that no such notice was given. D.A.F. v. Lieteau, — Idaho —, 456 P.3d 193 (2019). Duty of Care.

Church group owes no general duty to prevent harm to child who attended weekend activities, where there was no evidence of a special relationship between the group and the child nor did the group voluntarily assume a duty toward that child. Beers v. Corp. of the President of the Church of Jesus Christ of Latter-Day Saints, 155 Idaho 680, 316 P.3d 92 (2013).

Limitation of Actions.

In a suit by former boy scouts against Boy Scouts of American (BSA) for damages resulting from their abuse by their former scout leader, the BSA’s motion to dismiss should have been granted. Liability imposed under this chapter differed significantly from that formerly available. The chapter could not be applied to conduct that occurred at least six years before it was enacted, and BSA could not be held accountable for behavior that was not actionable at the time it occurred. Doe v. BSA, 148 Idaho 427, 224 P.3d 494 (2009).

Negligence.

This statute sets forth intentional torts only and does not give rise to any actions in negligence or negligence per se. Steed v. Grand Teton Council of the BSA, Inc., 144 Idaho 848, 172 P.3d 1123 (2007) (decided prior to 2007 amendment).

Vicarious Liability.

Although this statute does not create vicarious liability, an employer can be found liable for willfully permitting injury to a child, even if the employer did not actually harm the child directly. Steed v. Grand Teton Council of the BSA, Inc., 144 Idaho 848, 172 P.3d 1123 (2007).

Amendments.

The 2007 amendment, by ch. 125, added the subsection (1) designation and the language beginning “or, after the child reaches the age of eighteen (18) years” therein; and added subsections (2) and (3).

Applicability.

Section 6-906A of the Idaho Tort Claims Act, not this section, applied to a sexual abuse claim brought by a minor against a school district and teacher. Osborn v. Salinas, 131 Idaho 456, 958 P.2d 1142 (1998).

Minor’s claim involving sexual abuse against a school district, brought pursuant to 42 U.S.C.S. § 1983, was subject to the two-year limitations period under§ 5-219(4), not this section. Osborn v. Salinas, 131 Idaho 456, 958 P.2d 1142 (1998).

Compiler’s Notes.

The words “this act” refer to S.L. 1989, ch. 47, which is compiled as§§ 6-1701 to 6-1705.

Compiler’s Notes.

Section 2 of S.L. 1990, ch. 40 read: “The provisions of this act apply only to causes of action filed on or after July 1, 1990.”

ALR.

Amendments.

The 2010 amendment, by ch. 79, corrected the section reference in subsection (2).

Effective Dates.

Section 2 of S.L. 1992, ch. 252 read: “This act shall be in full force and effect on and after July 1, 1992, and shall apply to acts occurring on and after July 1, 1992.”

Effective Dates.

Section 2 of S.L. 1994, ch. 100 provided the act shall be in full force and effect on and after July 1, 1994, and shall apply to acts occurring on or after July 1. 1994.

Protected Activities.

Grant of summary judgment in favor of the employer in the employee’s wrongful termination action was proper where his actions were not protected under the Idaho Protection of Public Employees Act,§ 6-2101 et seq. Mallonee v. State, 139 Idaho 615, 84 P.3d 551 (2004).

Scope of Coverage.

Terminated director of a state agency was not entitled to recover for retaliation under the whistleblower act,§ 6-2101 et seq., because; (1) he did not engage in protected activity, (2) even if his superior in the Idaho state patrol (ISP) did not have the authority to give the directives he did, no laws were violated, and (3) his belief that the ISP did not have authority over him was not reasonable. Black v. Idaho State Police, 155 Idaho 570, 314 P.3d 625 (2013).

Former city employee was not entitled to relief against the city under the Idaho protection of public employees act because: (1) the employee’s severance agreement contractually released the city from any future claims, (2) contradictory parol evidence was inadmissible as the severance agreement was unambiguous, and (3) any claims based on post-termination actions were not covered by the act, as the claimant was no longer an employee of the city. Hammer v. City of Sun Valley, 163 Idaho 439, 414 P.3d 1178 (2016).

Cited

Employer was entitled to summary judgment as to a public policy violation termination claim asserted by the wife of an employee who asserted a whistleblower act claim, because the act’s coverage did not extend to the spouse of an employee seeking the Act’s protection. Berrett v. Clark Cty. Sch. Dist. No. 161, — Idaho —, 454 P.3d 555 (2019). Cited Smith v. Glenns Ferry Highway Dist., — Idaho —, 462 P.3d 1147 (2020).

ALR.

What constitutes activity of private-sector employee protected under state whistleblower protection statute covering employee’s “report,” “disclosure,” “notification,” or the like of wrongdoing — Nature of activity reported. 36 A.L.R.6th 203.

What constitutes activity of public or state employee protected under state whistleblower protection statute covering employee’s “report,” “disclosure,” “notification,” or the like of wrongdoing — Nature of activity reported. 37 A.L.R.6th 137.

Construction and application of whistleblower provision of Sarbanes-Oxley act, 18 USC § 1514A(a)(1). 15 A.L.R. Fed. 2d 315.

Compiler’s Notes.

The words “this act” refer to S.L. 1994, ch. 100, which is compiled as§ 6-2101 et seq.

ALR.

§ 6-2104. Reporting of governmental waste or violation of law — Employer action.

1. 1. An employer may not take adverse action against an employee because the employee, or a person authorized to act on behalf of the employee, communicates in good faith the existence of any waste of public funds, property or manpower, or a violation or suspected violation of a law, rule or regulation adopted under the law of this state, a political subdivision of this state or the United States. Such communication shall be made at a time and in a manner that gives the employer reasonable opportunity to correct the waste or violation. (1)(a) An employer may not take adverse action against an employee because the employee, or a person authorized to act on behalf of the employee, communicates in good faith the existence of any waste of public funds, property or manpower, or a violation or suspected violation of a law, rule or regulation adopted under the law of this state, a political subdivision of this state or the United States. Such communication shall be made at a time and in a manner that gives the employer reasonable opportunity to correct the waste or violation.
   2. For purposes of paragraph (a) of this subsection, an employee communicates in good faith if there is a reasonable basis in fact for the communication. Good faith is lacking where the employee knew or reasonably ought to have known that the report is malicious, false or frivolous.
2. 1. An employer may not take adverse action against an employee because an employee in good faith participates or communicates information in good faith in an investigation, hearing, court proceeding, legislative or other inquiry, or other form of administrative review concerning the existence of any waste of public funds, property, or manpower, or a violation or suspected violation of a law, rule, or regulation adopted under the law of this state, a political subdivision of this state, or the United States. (2)(a) An employer may not take adverse action against an employee because an employee in good faith participates or communicates information in good faith in an investigation, hearing, court proceeding, legislative or other inquiry, or other form of administrative review concerning the existence of any waste of public funds, property, or manpower, or a violation or suspected violation of a law, rule, or regulation adopted under the law of this state, a political subdivision of this state, or the United States.
   2. For purposes of paragraph (a) of this subsection, an employee participates or gives information in good faith if there is a reasonable basis in fact for the participation or the provision of the information. Good faith is lacking where the employee knew or reasonably ought to have known that the employee’s participation or the information provided by the employee is malicious, false or frivolous.
3. An employer may not take adverse action against an employee because the employee has objected to or refused to carry out a directive that the employee reasonably believes violates a law or a rule or regulation adopted under the authority of the laws of this state, political subdivision of this state or the United States.
4. An employer may not implement rules or policies that unreasonably restrict an employee’s ability to document the existence of any waste of public funds, property or manpower, or a violation or suspected violation of any laws, rules or regulations.

History.

I.C.,§ 6-2104, as added by 1994, ch. 100, § 1, p. 226; am. 2017, ch. 272, § 1, p. 712; am. 2020, ch. 295, § 1, p. 848.

Amendments.

The 2017 amendment, by ch. 272, in subsection (1), substituted “paragraph (a) of this subsection” for “subsection (1) of this section” near the beginning of the first sentence in paragraph (b); and, in subsection (2), designated the existing provisions as paragraph (a) and added paragraph (b), inserting “good faith” near the beginning of paragraph (a). The 2020 amendment, by ch. 295, rewrote paragraph (2)(a), which formerly read: “An employer may not take adverse action against an employee because an employee in good faith participates or gives information in an investigation, hearing, court proceeding, legislative or other inquiry, or other form of administrative review.”

Employee Action.

A plaintiff can participate in an investigation in more ways than just conducting the investigation. So long as an individual takes part in the investigation or plays an active role in it, that individual “participates” in the investigation for purposes of the Idaho Protection of Public Employees Act. Eller v. Idaho State Police, — Idaho —, 443 P.3d 161 (2019).

Protected Activities.

Grant of summary judgment in favor of the employer in the employee’s wrongful termination action was proper where his actions were not protected under the Idaho Protection of Public Employees Act,§ 6-2101 et seq. Mallonee v. State, 139 Idaho 615, 84 P.3d 551 (2004).

Claimant presented a prima facie case of retaliatory discharge, because the close relation in time between the discovery of the claimant’s documentation of her coworkers’ waste and her termination supported the reasonable inference that the claimant was discharged for that documentation. Curlee v. Kootenai County Fire & Rescue, 148 Idaho 391, 224 P.3d 458 (2008).

Where an employee resigned due to her perception that there was a hostile working environment, after she complained about an inappropriate romantic relationship between her supervisor and another employee, her constructive discharge claim was time barred. Even if she met the evidentiary burden of showing that the circumstances amounted to constructive discharge, she filed her claim more than 180 days after the discharge occurred. Patterson v. State Dep’t of Health & Welfare, 151 Idaho 310, 256 P.3d 718 (2011).

It was error to grant an employer summary judgment on an employee’s Whistleblower Act claim, because (1) there were fact issues on whether the employee engaged in a protected activity by reporting a building code violation and the employer’s prior knowledge of the issue, and (2) fact issues existed on causation, as it could be concluded that the employee was fired for the report. Berrett v. Clark Cty. Sch. Dist. No. 161, — Idaho —, 454 P.3d 555 (2019).

Scope of Coverage.

Terminated director of a state agency was not entitled to recover for retaliation under the whistleblower act,§ 6-2101 et seq., because; (1) he did not engage in protected activity, (2) even if his superior in the Idaho state patrol (ISP) did not have the authority to give the directives he did, no laws were violated, and (3) his belief that the ISP did not have authority over him was not reasonable. Black v. Idaho State Police, 155 Idaho 570, 314 P.3d 625 (2013).

There is nothing in subsection (2) that requires an investigation to relate to waste or a violation of law, rule, or regulation. The fact that the “waste and violations of law, rule, or regulation” language was left out of subsection (2) suggests that the legislature intended the protections afforded under that subsection to be more broad than those offered under the other subsections of this section. Wright v. Ada Cnty., 160 Idaho 491, 376 P.3d 58 (2016). An investigation for purposes of the Idaho Protection of Public Employees Act encompasses any investigation that involves close examination or observation. This is particularly true where the investigation leads to uncovering waste even though the original purpose of the investigation was into something other than waste or a violation of law, rule, or regulation. If no protection were afforded to public employees who participate in official inquiries into subject matter that is unrelated to waste or a violation of law, rule, or regulation, but which subsequently uncover such waste or violations of law, rule, or regulation, the purpose of the act would be wholly defeated. Wright v. Ada Cnty., 160 Idaho 491, 376 P.3d 58 (2016).

ALR.

What constitutes activity of employee, other than “reporting” wrongdoing, protected under state whistleblower protection statute. 13 A.L.R.6th 499.

What constitutes activity of private-sector employee protected under state whistleblower protection statute covering employee’s “report,” “disclosure,” “notification,” or the like of wrongdoing — Nature of activity reported. 36 A.L.R.6th 203.

What constitutes activity of public or state employee protected under state whistleblower protection statute covering employee’s “report,” “disclosure,” “notification,” or the like of wrongdoing — Nature of activity reported. 37 A.L.R.6th 137.

Amendments.

The 2020 amendment, by ch. 295, added subsection (5).

Actual Damages.

This section provides a whistleblower claimant with an actual damages remedy. “Actual damages” is defined broadly as an amount awarded to a complainant to compensate for a proven injury or loss and is synonymous with compensatory damages, tangible damages, and real damages, including damages for emotional distress. Eller v. Idaho State Police, — Idaho —, 443 P.3d 161 (2019).

Noneconomic damages for emotional distress are part of actual damages under this section for two key reasons. First, the Idaho whistleblower act should be interpreted broadly, because it is a remedial statute, providing claimants with a remedy for all actual damages, based on all claims, including those otherwise available under common-law tort claims. Second, case law provides precedent of an expansive interpretation of the term “actual damages.” Smith v. Glenns Ferry Highway Dist., — Idaho —, 462 P.3d 1147 (2020).

Individual Liability.

City councilor and mayor were not liable for a former employee’s claim under the Idaho protection of public employees act, because, while the act is somewhat ambiguous: (1) “public body,” as defined in§ 6-2103, does not include a council member or employee, (2) this section creates no such liability, and (3) the legislature did not expressly provide such liability. Hammer v. City of Sun Valley, 163 Idaho 439, 414 P.3d 1178 (2016).

Jury.

There is a right to a jury trial for damages under the Idaho whistleblower act. Smith v. Glenns Ferry Highway Dist., — Idaho —, 462 P.3d 1147 (2020).

Notice Requirement.

A whistleblower claim is purely a statutory remedy against governmental employers, and there is no reason to assume that the legislature intended those alleging claims under the statute to have to comply with the notice provision of the Idaho Tort Claims Act,§ 6-906. Van v. Portneuf Med. Ctr., 147 Idaho 552, 212 P.3d 982 (2009).

City was not entitled to dismissal of a former deputy fire chief’s claim alleging wrongful discharge in violation of the Idaho Whistleblower Act, where the claim was filed within the statute of limitations; the notice requirements under§§ 6-906 and 50-219 do not apply to state law claims for damages under the Idaho Whistleblower Act. Brown v. City of Caldwell, 769 F. Supp. 2d 1256 (D. Idaho 2011).

Where an employee resigned due to her perception that there was a hostile working environment, after she complained about an inappropriate romantic relationship between her supervisor and another employee, her constructive discharge claim was time barred. Even if she met the evidentiary burden of showing that the circumstances amounted to constructive discharge, she filed her claim more than 180 days after the discharge occurred. Patterson v. State Dep’t of Health & Welfare, 151 Idaho 310, 256 P.3d 718 (2011).

Prima Facie Case.

Claimant presented a prima facie case of retaliatory discharge, because the close relation in time between the discovery of the claimant’s documentation of her coworkers’ waste and her termination supported the reasonable inference that the claimant was discharged for that documentation. Curlee v. Kootenai County Fire & Rescue, 148 Idaho 391, 224 P.3d 458 (2008).

Summary Judgment.

It was error to grant an employer summary judgment on an employee’s Whistleblower Act claim, because (1) there were fact issues on whether the employee engaged in a protected activity by reporting a building code violation and the employer’s prior knowledge of the issue, and (2) fact issues existed on causation, as it could be concluded that the employee was fired for the report. Berrett v. Clark Cty. Sch. Dist. No. 161, — Idaho —, 454 P.3d 555 (2019).

Torts Claim Act.

The more-specific Idaho Protection of Public Employees Act applies over the more-general Idaho Tort Claims Act,§ 6-901 et seq., when both statutes may cover an action for damages. Eller v. Idaho State Police, — Idaho —, 443 P.3d 161 (2019).

Compiler’s Notes.

The words “this act” refer to S.L. 1994, ch. 100 which is compiled as§ 6-2101 et seq.

Attorney Fees.

Award of attorney fees to the employee with adjustments was proper where there was no need for two attorneys to represent the employee and the court awarded substantially less than the claimed fees for one of the two attorneys. Smith v. Mitton, 140 Idaho 893, 104 P.3d 367 (2004).

Given the remedial nature of this section, the legislature’s authorization of attorney fees is construed to include those incurred in pursuing a meritorious appeal. Smith v. Glenns Ferry Highway Dist., — Idaho —, 462 P.3d 1147 (2020).

Damages.

This section is an independent and expanded list of remedies a court may order when violations of the Idaho Protection of Public Employees Act are found to exist. It is not a restriction on a claimant’s ability to seek and receive redress for non-economic damages, as part of “actual damages.” Eller v. Idaho State Police, — Idaho —, 443 P.3d 161 (2019).

Without Basis.

City was entitled to an award of attorney fees against a former employee, because the employee’s severance agreement unambiguously released any claim the employee had against the city and, thus, her later action against the city was without basis. Hammer v. City of Sun Valley, 163 Idaho 439, 414 P.3d 1178 (2016).

Applicability.

This chapter is applicable to an action relating to the fees levied by school districts, as a claim that they are illegal falls squarely within the definition of a constitutionally-based, educational claim, because the legislature’s duty is to provide free, common schools. Joki v. State, 162 Idaho 5, 394 P.3d 48 (2017).

In General.

The legislature has chosen to fulfill its constitutional obligation by the establishment of local school districts to provide educational services and by granting the school districts the authority to raise and spend money for that purpose, and it is not unreasonable for the legislature to also declare that allegations that the required educational services are not being furnished under the Constitutionally Based Education Claims Act should first be addressed to the local school districts which have been given the responsibility and authority to provide those services. Osmunson v. State, 135 Idaho 292, 17 P.3d 236 (2000).

Cross References.

Superintendent of public instruction,§ 67-1501 et seq.

Injury.

Because the plaintiffs could not show any palpable injury that was fairly traceable to the prohibition of school district suits under the Constitutionally Based Education Claims Act (CBECA), the plaintiffs had no standing to challenge that aspect of the CBECA. Osmunson v. State, 135 Idaho 292, 17 P.3d 236 (2000).

Constitutionality.

The requirement of this section, that a patron must first sue a local school district before suing the state, after authorization by the district court, is not an unconstitutional amendment to the Idaho Rules of Civil Procedure and does not nullify Idaho Civil Procedure Rule 77, allowing class actions. Joki v. State, 162 Idaho 5, 394 P.3d 48 (2017).

Cross References.

Superintendent of public instruction,§ 67-1501 et seq.

Providing Educational Services.

The legislature has chosen to fulfill its constitutional obligation by the establishment of local school districts to provide educational services and by granting the school districts the authority to raise and spend money for that purpose under Article 9, § 1 of the Idaho Constitution, and it is not unreasonable for the legislature to also declare that allegations under the Constitutionally Based Education Claims Act that the required educational services are not being furnished should first be addressed to the local school districts which have been given the responsibility and authority to provide those services. Osmunson v. State, 135 Idaho 292, 17 P.3d 236 (2000).

Construction.

A district court has the power to impose any order that it determines would assist the local school district in providing constitutionally required educational services. Zeyen v. Pocatello/Chubbuck Sch. Dist. No. 25, — Idaho —, 451 P.3d 25 (2019).

Cross References.

Superintendent of public instruction,§ 67-1501 et seq.

Amendments.

Legislative Intent.

Legislative Findings and Intent

“(1) Section 1, Article IX, of the Constitution of the state of Idaho provides that ‘it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.’

“(2) In the case of Idaho Schools for Equal Educational Opportunity v. Evans , 123 Idaho 573 (1993), the Idaho Supreme Court held that the then existing State Board of Education rules for school facilities, textbooks and curriculum, and transportation systems were consistent with the thoroughness requirements of Section 1, Article IX, of the Constitution of the state of Idaho. The Supreme Court remanded the case for trial to determine if the system of funding was providing such school facilities, textbooks and curriculum, and transportation systems called for in the rules.

“(3) In response to that action, the Legislature enacted Section 33-1612, Idaho Code, which defined thoroughness and included ‘a safe environment conducive to learning’ among the statutory definitions of thoroughness.

“(4) In a subsequent ruling in the same case, Idaho Schools for Equal Educational Opportunity v. State , 132 Idaho 559 (1999), the Idaho Supreme Court held that the statutory requirement of ‘a safe environment conducive to learning’ and the rules adopted pursuant to it were consistent with the thoroughness requirements of Section 1, Article IX, of the Constitution of the state of Idaho, and that such a safe environment was inherently part of a thorough system of public, free common schools required by Section 1, Article IX, of the Constitution of the state of Idaho. The Supreme Court remanded the case to the district court to determine whether the funding system was providing a safe environment conducive to learning.

“(5) On February 5, 2001, the Fourth Judicial District Court entered findings of fact and conclusions of law that the system of school funding then in existence was constitutionally deficient in its ability to repair or replace dangerous or unsafe conditions in school buildings.

“(6) On December 21, 2005, on appeal to the Supreme Court, the Idaho Supreme Court affirmed the district court’s February 5, 2001, decision and said:

In sum, the evidence in the record clearly supports the district court’s 2001 Findings. We affirm the conclusion of the district court that the current funding system is simply not sufficient to carry out the Legislature’s duty under the constitution. While the Legislature has made laudable efforts to address the safety concerns of various school districts, the task is not yet complete. The appropriate remedy, however, must be fashioned by the Legislature and not this Court. Quite simply, Article IX of our constitution means what it says: “[I]t shall be the duty of the Legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.” Thus, it is the duty of the State, and not this Court or the local school districts, to meet this constitutional mandate.

“(7) In response to the Supreme Court’s 2005 decision, and mindful that the Supreme Court has recognized the Legislature’s efforts, following the district court’s decision in 2001, to provide a system of funding that provides safe schools, it is the purpose of this Act to fulfill the Legislature’s responsibility under Section 1, Article IX, of the Constitution of the state of Idaho, by establishing an ongoing, state-funded system for funding repair or replacement of unsafe school facilities in a manner that fairly and equitably balances the state and local contributions. It requires funds to be dedicated to maintenance to arrest deterioration of schools before they become unsafe. “(8) In proposing this Act, it is the intent of the Legislature to:

“(a) Amend the statutes addressing the School District Building Account to provide an ongoing means of providing funds from that account for the purpose of assisting school districts to fund repair or replacement of unsafe school facilities; and