Norton v. Hall

¶1concurring.

¶2[¶ 21] I join the majority opinion of the Court in full and write additionally in concurrence to identify what I believe to be the fulcrum of the analytical dispute that has caused the Court to issue separate opinions on this very important matter.

¶3[¶ 22] It is unquestioned that the Tort Claims Act provides immunity from liability to government actors who are involved in discretionary functions.4 Both the *935Court and the dissent agree that the decision to respond to an emergency is a discretionary function and, therefore, falls within the immunities provided by the Tort Claims Act.

¶4[¶23] The analysis diverges, however, with regard to the possibility of separating the “whether” of the emergency response from the “how” of the emergency response. The Court in its opinion has found no reasonable basis upon which to conclude that the Legislature intended that courts or juries engage in the subtle teasing apart of those two concepts. Thus, the Court has concluded that it is the Legislature’s current intent to cloak the emergency response, both the decision to respond, and the method of response, with sovereign immunity.

¶5[¶ 24] It is within the Legislature’s province to decide whether in the future those two concepts should be separated and whether one or both should not be shielded from liability for negligence. Because I agree with the Court that the Legislature has not yet articulated that distinction, and because it is the Legislature’s role to weigh the competing policy interests, not the role of the Court, I join the Court’s opinion today.