Corey v. State

¶1concurring specially.

¶2I concur in the decision of the majority solely because this case was plead by the plaintiff as a “negligence” case and does not raise the issue of whether the statute is unconstitutional by not excluding from immunity intentional, willful, or wanton conduct. I continue to adhere to the views set forth in my dissent in Johnson v. Sunshine Mining Co. Inc., 106 Idaho 866, 684 P.2d 268 (1984).

¶3dissenting.

¶4The complaint alleges that a cable strung across a snowmobile pathway was a trap, and that the State of Idaho installed it, and that the State failed to warn of its presence. The majority opinion read in its entirety so recognizes. Although most would-agree that the use of cables and ropes for traffic control in winter sports areas is not uncommon, and hence not per se tortious, a proposition with which I would not quarrel, the majority enters into no discussion of the failure to warn. Instead, the majority, immediately after mentioning the failure to warn, comes up with the non sequitur that the plaintiffs “neither alleged nor does the record contain any evidence of intentional or willful conduct by the State.” To which I respectfully demur. The majority, although flirting around with language from Johnson v. Sunshine Mining Co., 106 Idaho 866, 684 P.2d 269, 276 (1984), avoids any mention of Huyck v. Hecla Mining Co., 101 Idaho 299, 612 P.2d 142 (1980). Huyck, of course, of the latter two cases, is the more applicable of the two. Therein a *924motorcyclist was picked off by the strung cable. Huyckwas also the case most strongly here relied upon by the State of Idaho. The strung cable in Huyckwas “a one inch yellow steel cable, from which was hung an aluminum reflector some thirty inches long and three inches in width____ At the time of the accident, the weather was fair and visibility good.” Huyck, 101 Idaho at 300, 612 P.2d at 143. The hypothesis of this Court’s holding was, after citing from Bosiljevac v. Ready Mix Concrete Co., 182 Neb. 199, 153 N.W.2d 864 (1967), that “In the instant case, there is no showing but what the barrier was readily observable.” Huyck, 101 Idaho at 301, 612 P.2d at 144.1 Having by sheer hindsight omniscience determined that the fault there was the plaintiff’s, the Court did use the occasion to observe that “the duty of the defendants, as owners or tenants, was to refrain from willful or wanton acts which might cause injuries.” Id.

¶5The trial court likewise made no mention of Huyckin summarily ruling against the plaintiffs, but going directly to I.C. § 36-1604, declared that, that statute eliminated any duty requiring a landowner to conform to a certain standard of conduct.

¶6Both courts, the trial court and now this Court, have simply avoided the proposition that stringing a cable with adequate warning of its presence {Huyck) is not a willful or wanton act,2 but stringing a cable without any warning thereof, is a willful and wanton act. As I wrote of the Johnsontravesty, 106 Idaho at 874, 684 P.2d at 276, there is no language in § 36-1604 which immunizes the owner or possessor of lands for his own acts which create a hazard which was not present when he let open his property for recreational trespass.

¶7Justice Huntley in his Johnsondissent ably demonstrated the distinction between Huyckand Johnson. That distinction, while it failed to sway an unyielding majority in Johnson, is unassailable when applied to this case. Justice Huntley wrote:

To conclude that because the landowner’s conduct in Huyckwas not will- . ful or wanton Sunshine Mining Company’s conduct in this case was not willful or wanton makes little sense. The cases are factually distinct. Whether an act is “willful or wanton” depends on the particular circumstances of each case, and one of the factors distinguishing a willful and wanton act is such absence of care for the person of another as exhibits a conscious indifference to consequences. Dossett v. Anderson, 41 N.E.2d 313, 314 Ill.App. 376 (1942). Whether an injury is a result of “willful and wanton” conduct is a question of fact for the jury to determine from all the evidence. Trennert v. Coe, 124 N.E.3d 79, 83, 4 Ill.App.2d 166 (1955).

In the civil law the words “willful and wanton” mean more than ordinary negligence. Lancaster v. State, 64 S.E.2d 902, 911, 83 Ga.App. 746 (1951). “Wantoness” is the doing of some act or omission to do some act with reckless indifference to knowledge that such an act or omission will likely or probably result in injury; it is not intent, but knowledge which is crucial to wantoness. Gunnells v. Dethrage, Ala. 366 So.2d 1104, 1106 (Ala.1979). As respects the right of a trespasser to recover for injury on the ground that an act causing injury to the trespasser constituted “willful and wanton conduct”, ill-will is not a necessary element of wanton conduct. McDaniels v. Terminal R. Ass’n of St. Louis, 23 N.E.2d 785, 791, 302 Ill.App. 332 (1939).

The essential elements of “willful and wanton misconduct” are knowledge of a *925situation requiring the exercise of ordinary care and diligence to avert injury to another; ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; the omission to use such care and diligence to avert the threat and danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. Olszewski v. Dibrizio, 275 N.W. 194, 195, 281 Mich. 423 (1937). The most critical element of wantoness is knowledge, and that element need not be shown by direct evidence; rather, it may be made to appear by showing circumstances from which the fact of knowledge is a legitimate inference.

Willful acts and omissions are conscious acts and omission; acts and omissions, the possible consequences of which are considered and weighed and present in the mind. To be also wanton acts and omissions, they must be of such character or done in such manner or under such circumstances as to indicate that a person of ordinary intelligence activated by a normal and natural concern for the welfare and safety of his fellow men who might be affected by them could not be guilty of them unless wholly indifferent to their probable injurious affect or consequences. Kile v. Kile, 63 P.2d 753, 756, 178 Okl. 576 (1936).

In light of the pleadings and affidavits in this case, it cannot be said, as a matter of law, that Sunshine’s alleged conduct was neither willful nor wanton. This is a material issue of fact.

Johnson, supra,106 Idaho at 873-74, 684 P.2d at 275-76 (footnotes omitted).

¶8No one contended in Johnsonthat Sunshine Mining Co. had an intent to hurt or kill anyone. No one contends that the State of Idaho here had an intent to injure or maim. In both cases, however, there was a manifested intent to take action which was taken and was harmful, in fact fatal in Johnson. As stated in my Johnsondissent:

The district court wrote that “There is no contention made here, nor would the facts support any inference, that the defendant’s excavation was an intentional act to cause injury to the deceased or other trespassers.” To my mind, that view, while undoubtedly correct, missed the whole point. It is not whether the defendant intended to injure or kill someone by cutting the roadway with a trench, but whether it was foreseeable that taking out part of the roadway, without erecting either a barrier or warning, would result in injury to some person. That is the law of tort.

Johnson, supra,106 Idaho at 877, 684 P.2d at 279 (emphasis added; bold original).

¶9The people of Idaho at the least are entitled to the protection of Posted Notices in recreation lands that by virtue of unfathomable decisions of this Court the owners or possessors of those recreational areas incur no liability whatever for that which is clearly tortious conduct. Legislation intended for beneficial purposes has been judicially so perverted that it is instead disastrous. Perhaps there will be corrective legislative action on that unfortunate day a legislator or a member of a legislator’s family is injured or killed — only to learn from the courts that it is a clear case of damnum absque injuria.